So the Supremes waded into the K-9 “search” area again and came up with a decision that at least on the surface is a win for the good guys. A vindication for 4th amendment rights and so on.
A few comments may be in order, though. There seems to be a lot going on here.
First, it’s a 5-4 split. Whatever 4th amendment right is being vindicated here is hanging by a thread.
Second, Scalia wrote the opinion, in which Thomas joined. Siding with a criminal defendant. A little odd. No, a lot odd.
Third, Kagan’s concurrence, about which I’ll say a couple of things: a) her emphasis on a “privacy” analysis rather than a “property” analysis – and indeed this seems the entire point of writing her concurrence – is heavily, and probably unnecessarily, ideologically inspired. Or perhaps generationally inspired, as if to say something along the lines of “Scalia can dispose of this on those stodgy old property grounds, but I represent the changing of the guard and think “privacy” grounds are more important, which was the whole point of the Robert Bork fiasco, which took place during my intellectually formative years.”; and b) Kagan’s writing style seems very conversational, light and informal for a court opinion. Almost like blog writing. There’s nothing necessarily wrong with that, it might even be refreshing, but it’s noteworthy in the sense that it’s a departure from tradition. And this is consonant with (a), above. And this may not be a coincidence.
In other words, Kagan may be consciously changing the style of the SCOTUS, or representing that such a change is in the air when the next round of appointments comes about, whenever that is.
In any case, for those reasons I thought the opinion was interesting.