The Fourth Amendment provides, in part, that "...no Warrants shall issue, but upon probable cause." The Supreme Court has issued its (yet another) 8-0 opinion, authored by Justice Scalia in the case of United States v. Grubbs, overturning the Ninth Circuit decision. Justice Souter filed a concurring opinion. Grubbs deals with the question of anticipatory warrants, and it is the first time that the Court has addressed the practice. It appears that under this ruling, preemptive warrants can issue without existing probable cause, but merely on the supposition that probable cause will exist in the future.

Some legal scholars had anticipated that at least the more conservative members of the Court would rule against anticipatory warrants. After all, under Blackstone's analysis of the common law rule that contributed to the Fourth Amendment, as noted by Professor Orin Kerr in the NYU Journal of Law and Liberty symposium on the subject, warrants "issue" when they are signed by the judge, and not when the precedent condition occurs. Professor Chris Slobogin disagrees. Kerr has posted a preliminary analysis of the decision on his new blawg. The case has previously been discussed by the smart people over at the Volokh Conspiracy.
posted by Pontius Pilate on Mar 22, 2006 - 45 comments

Justice Scalia faces probing question at NYU due to previous dissenting opinion in Texas sodomy case. Questioner responds to the controversy. via
posted by peacay on Apr 15, 2005 - 54 comments

Justice Scalia's recusal in the Pledge case has prompted a serious debate on the judicial role. Robert Alt has suggested that the Justice's recusal carries an important warning for the Senate in confirming new judges; if the Senate requires the nominees to answer questions about their opinions on potential cases, those nominees would have to recuse themselves if those cases later indeed came before them. Matthew Franck, on the other hand, suggests "this argument ... permits the requirements of judicial ethics — and even a terribly broad reading of them — to trump the constitutional obligation of senators to inform themselves adequately about the kinds of judges they are being asked to confirm." [more inside]
posted by monju_bosatsu on Oct 22, 2003 - 11 comments

Is the Consitution a "living" document? Following "Scary" Scalia's arguments, the Dread Scott decision was a wise and appropriate one, right?
posted by darren on Mar 14, 2001 - 20 comments

Damn Supreme Court. Just when you thought this was a free country, now they're telling strippers to keep their G-strings on.
posted by veruca on Mar 29, 2000 - 10 comments