In November 2001, Brendlin was a passenger in a car driven by a woman friend on a road in rural California. For no particular reason, just bad luck, Deputy Sheriff Robert Brockenbrough ordered her to pull over. He harbored a vague suspicion that her temporary vehicle license might not be in order. To his surprise, he recognized Brendlin as a violator of parole. There was an outstanding warrant for the fellow.
Arrest at gunpoint followed. Amazingly, an ensuing search turned up palpable trappings of the drug trade. Brendlin protested in vain that the officers had violated his Fourth Amendment right to be free from unreasonable search and seizure. Finally he pleaded guilty, subject to appeal. A trial court sentenced him to four years in prison. The Supreme Court of California affirmed. This appeal followed.
Justice Souter's opinion of June 18 was vintage Souter. Judged for style, it was barely drinkable. Souter has served on the high court for 16 years. He writes murkily at least half the time, and here he delivered an opinion replete with sentences like this one:
"A traffic stop necessarily curtails the travel a passenger has chosen just as much as it halts the driver, diverting both from the stream of traffic to the side of the road, and the police activity that normally amounts to intrusion on 'privacy and personal security' does not normally (and did not here) distinguish between passenger and driver."
Never mind. In the case at hand, said Justice Souter, "Brendlin was seized from the moment his car came to a halt on the side of the road, and it was error to deny his suppression motion on the ground that seizure occurred only at the formal arrest."
This was, to the cops, a routine case — but unoffending passengers have rights: "Holding that a passenger in a private car is not ... seized in a traffic stop would invite police officers to stop cars with passengers regardless of probable cause or reasonable suspicion of anything illegal. The fact that evidence uncovered as a result of an arbitrary traffic stop would still be admissible against any passengers would be a powerful incentive to run the kind of 'roving patrols' that would still violate the driver's Fourth Amendment right."
It was a sound decision, murkily written. But apropos of literary style: It would be unjust to cast aspersions only on Justice Souter. The court is composed of nine justices whose job is to deliver written opinions. Skillwise, they are divided into three parts.
Judged merely for their literary skills, Anthony Kennedy, Samuel Alito and David Souter form a mediocre middle rank. Kennedy tends toward verbosity. As a newcomer Alito is still tentative, but his six majority opinions this term were clearly written. Souter has too many bad hair days, as in the Brendlin case, but he asks informed questions at oral argument and he's mostly readable.
That leaves Justices Clarence Thomas, Ruth Bader Ginsburg and Stephen Breyer. As stylists they're hopeless. Granted, if a case presents a racial issue, Thomas rouses from his torpor with clarity and passion. Similarly with Ginsburg: Given a women's issue, which seldom occurs, she writes quite readable stuff. Breyer is hopeless. He dips his pen in tapioca.
It was predictable that Chief Justice Roberts' honeymoon would soon end. In his first term two years ago, everybody loved him: Only 11 of 82 cases were decided 5-4. Alas, in the 2006 term just ended, 24 of 72 cases saw a 5-4 split. Roberts may have lost some of the charm that goes with novelty, but he remains an immensely attractive fellow. Nobody speaks for the court's press corps, but as the oldest guy in the press room I can try: Get well, chief! Get well.
(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)
