An interesting little tidbit from CNN this morning. Yes, CNN. It seems they sometimes provide some actual information and insight despite themselves. We are sure they have no idea why there’s a modicum of significance to their piece this morning on RBG. But there is:
In the 2018 DC v. Wesby case, Justice Ginsburg wrote a solo concurrence saying, “The Court’s jurisprudence, I am concerned, sets the balance too heavily in favor of police unaccountability to the detriment of Fourth Amendment protection. … I would leave open, for reexamination in a future case, whether a police officer’s reason for acting, in at least some circumstances, should factor into the Fourth Amendment inquiry.”But I should emphasize that the 1996 Whren was unanimous, and no other justice joined Ginsburg’s concurrence in the 2018 Wesby.
What’s the significance?
Well, the article points out, as we did in the wake of RBG’s passing, that the late Justice was hardly solicitous of the rights of criminal defendants. In so doing, you know, that passage we just quoted.
RBG apparently had this idea – an idea she never sold to any of her colleagues on the SCOTUS, or came even close to selling – that the Whren doctrine, which holds that subjective intentions do not matter in a 4th amendment context, should have some kind of exception, or exceptions. Apparently she brought this up in a 2018 case, District of Columbia v. Wesby. And we must admit to being impressed that her concurring opinion there resonates rather well with a concurring opinion she authored in 1994 in a case we have had to tangle with ourselves: Albright v. Oliver. We are impressed because it indicates a consistency in thought over a period of 24 years on a very fine point of law that didn’t arise with any real frequency during her time on the SCOTUS, and didn’t attract any real attention.
Except from us here at LoS.
So we infer from this that RBG was at least capable of intellectual integrity and consistency. This is a good quality in a SCOTUS Justice.
We figure her soon to be replacement has the same quality. Hopefully in greater measure.