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Getting to Five in Georgia v. Randolph

In her New York Times article on the opinions filed in Georgia v. Randolph, Linda Greenhouse points out an interesting part of Chief Justice Roberts’ dissent:

The discussion by Chief Justice Roberts of the implications for domestic violence cases might have been an effort to win, or a failed effort to hold, the vote of Justice Breyer.

When the case was argued on Nov. 8, Justice Breyer raised the issue of domestic abuse. Addressing Mr. Randolph’s lawyer, Thomas C. Goldstein, he said, “I haven’t seen anything on your side that wouldn’t prevent many cases of domestic spousal abuse from being investigated.” He added, “Quite frankly, it bothers me a lot.”

In his concurring opinion on Wednesday, Justice Breyer noted that in this case, the police were searching “solely for evidence,” and domestic abuse was not at issue. While he pronounced himself satisfied by “the case-specific nature of the court’s holding,” he said the outcome might well be different in the context of domestic abuse, in which police entry even over one spouse’s objection could be reasonable.

This case was the oldest undecided case on the court’s docket, and it is likely that Justice Breyer’s vote was in play until the final stages. One indication was Chief Justice Roberts’s reference in his opinion to Justice Breyer’s having joined “what becomes the majority opinion,” an odd present-tense locution suggesting that the outcome had once been otherwise.

Here’s some speculation to add on to Linda Greenhouse’s speculation.  If I recall correctly, Justice O’Connor was still on the bench when Randolph was argued and seemed strongly inclined at argument to rule in favor of Randolph.  If that’s right, and if Breyer’s vote after argument was uncertain, then there would have been at least five solid votes to affirm: Souter, Ginsburg, Stevens, Kennedy, and O’Connor.   Alito was confirmed and O’Connor retired on January 31, about 10 weeks after argument.  By the time Souter sent a draft around, the picture might have looked different.  At that point, either the vote was 4-4 or 4-1-3 (that is, a 4-vote Souter plurality plus a solo Breyer concurrence), depending on Breyer’s original inclination.

If the vote after O’Connor’s departure was 4-1-3, then there would have been pretty intense pressure on Breyer to sign on to Justice Souter’s opinion to make it a majority opinion.  The key is the rule used to identify holdings when there is no majority opinion.   As explained in Marks v. United States, 430 U.S. 188, 193 (1977): “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds.”

The Marks rule would have been difficult if not impossible to apply to the combination of Justice Souter’s 4-Justice plurality opinion and Justice Breyer’s concurrence.  Souter’s concurrence offers a rule, with the key question being whether the person who objects is “in fact at the door” or is “nearby but not invited to take part in the threshold colloquy.”  Justice Breyer’s concurrence offers a standard: Justice Breyer thinks that the key question should be case-by-case reasonableness based on the totality of the circumstances.  But which of these approaches is narrower, and thus the guiding law under Marks?  No one would know — it’s impossible to tell.  And that would have meant that no one would have any idea whether the holding of the Court was Souter’s rule or Breyer’s standard.

This is obviously all just sheer speculation, but what might have happened is that Souter persuaded Breyer to join Souter’s opinion to avoid this unhappy result.  This would explain the reference in Chief Justice Roberts’ dissent that Greenhouse picks up on in the Times.  From the Chief’s dissent:

The concurrence advises . . . that “no single set of legal rules can capture the ever changing complexity of human life,” ibid., and joins what becomes the majority opinion, “[g]iven the case-specific nature of the Court’s holding,” ante, at 3. What the majority establishes, in its own terms, is “the rule that a physically present inhabitant’s express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant.” Ante, at 18 (emphases added). The concurrence joins with the apparent “understandin[g]” that the majority’s “rule” is not a rule at all, but simply a “case-specific” holding. Ante, at 3 (opinion of Breyer, J.). The end result is a complete lack of practical guidance for the police in the field, let alone for the lower courts.

Incidentally, I don’t think Roberts is exactly right on the “complete lack of practical guidance” point.  And that’s one of the interesting things about Breyer’s joining the majority: He joins an opinion that creates a rule, but says that he himself sees the rule as really part of a standard.   Law enforcement and lower court judges presumably have to take the majority’s rule as the holding of the Court — after all, the opinion had five votes.  But a cop or lower court judge would also know that if his case happens to be one of the extremely rare cases that the Supreme Court agrees to hear, and the reasonableness of the officer’s search looks different in that case, then Breyer is a likely vote to approve the search even if it is unconstitutional based on the decision that he joined.