Oral Argument in Fernandez v. California: An Initial Reaction

I was at the Supreme Court this morning for the oral argument in Fernandez v. California, the Fourth Amendment case on third-party consent that I blogged about last week. I have just a few minutes now and more time later, so I will offer a few quick thoughts here and hope to offer more detailed reactions later. [UPDATE: The transcript is here.]

1) Chief Justice Roberts, Justice Kennedy, and Justice Alito were very clearly on the government’s side. In describing this case, Justice Kennedy declared, “this is not Randolph,” and he described Fernandez’s position as asking for a “vast expansion of Randolph.” Justice Alito was not on the Court when Randolph was decided, but he suggested that Randolph was not only wrong but that it should be overturned.

2) Justice Scalia (who dissented in Randolph) also seemed to be on the government’s side. Although Justice Thomas did not speak at the argument, as is custom, his dissent in Randolph suggests that he is likely to agree. If so, that’s five votes for the government from the five conservative (or conservative-ish) Justices.

3) The one Justice who was clearly on the defense side was Justice Sotomayor. Justice Sotomayor stated that “the first obligation under the Fourth Amendment is to get a warrant,” and she wondered aloud why police officers can’t get that simple message. (Perhaps because that’s not what the Supreme Court has told the police, but I digress.)

4) I think Justice Breyer was also a likely vote for the government, as he was having a hard time articulating a rule without strange implications that would give the defense a victory. Justice Breyer also wins the award for the most outdated hypothetical, involving a person who comes to a suspect’s house and gets him to leave by saying that there is a telephone call for him at the pharmacy.

5) I couldn’t get a good sense of where Justice Ginsburg and Justice Kagan were, as they both asked good questions of both sides. At the same time, the general momentum in the room was in favor of the Government. The defense side was peppered with questions from the get-go, while there were long periods during the government arguments when there were no questions, and often pauses before the Justices asked questions of the government advocates.

Anyway, that’s a very quick reaction. I’ll have more thoughts later this afternoon.