Listen: Supreme Court After Scalia, Roberts Covers, Thomas Speaks, Company Settles

Listen as Chief Justice John Roberts and Samuel Alito try to support an illegal police stop, then listen as Justice Clarence Thomas stands up for guns.

Recently departed Justice Antonin Scalia was known for his vigorous questioning in Supreme Court oral arguments. He held a  general disdain of the Fourth Amendment right to be free from search and seizure, for example in the Hudson case where he allowed a court to use evidence found in an Unconstitutional police break-in to a home. However, he was notorious for his support of Second Amendment gun rights in the Heller case where a divided court overturned a citywide law making it illegal to own working hand guns. He was also well known for his pro-business stances.

Since 1970, the majority of the Justices on the Supreme Court have been selected by Republicans. In 2016, this 45 year stretch of Republican control ended suddenly when Reagan appointee Antonin Scalia died. Today, the Court is tied four to four.

The fallout: In the days following his loss, the void could be felt. Listen to John Roberts and Samuel Alito trying to cover for Scalia and support expanded police searches without the benefit of the Antonin Scalia interjecting. In contrast, listen to Clarence Thomas break his silence to question an attorney on gun rights. Finally, read how Dow Chemical settles for 835 million dollars to avoid the risk of losing at the Court.


Based on a general tip, police set up a stake-out of a residence. After three non-consecutive hours of observation, a man was seen exiting the premises. An officer stopped the pedestrian illegally. When the officer ran the person’s name, he found an outstanding traffic warrant. The man was arrested and searched. Drugs were found. The man was charged with a drug crime.

The Fourth Amendment protects citizens from unreasonable searches. In the past, the minimal standard for a Constitutional stop of a person was “reasonable suspicion,” with some exceptions. In this case, nobody — nobody — finds the standard met. All parties agree that the stop is a violation of the Fourth Amendment — the prosecution, the defense, the lower court, and the Justices.

So the question essentially becomes: can the drugs found on this man be used in a criminal trial despite the Constitutional violation?

Listen to this section of oral argument where John Roberts and others question the attorney who is trying to defend the Constitution. John Roberts interjects to talk about “the number.” He suggests that an illegal stop is allowed unless the person is “very likely to have an arrest warrant.” If finding a warrant is not likely, then searching for one is not “the purpose of the stop.”

John Roberts suggests that a different reason to search for a warrant might be “to protect [the officer] as he walks up to the car” even though this person is on foot, not in a car.  The attorney replies, “When you’re running the warrants check, you’re looking for a warrant.” Roberts parses the issue: it “makes a difference” whether the warrant is run to protect the officer’s safety or to find out information. In other words, officer beliefs matter more than a violation of the Constitution.

Justice Sonia Sotomeyer asks, “Can you have an investigatory stop based on no suspicion?” The attorney says no.  Without reasonable suspicion, an  officer cannot stop a person to run a warrants check.

Justice Samuel Alito notes: “So the arrest was lawful” and the search was lawful too. The attorney agrees. The conversation turns to “fruit.” Generally, the findings from an illegal search is “fruit” that cannot be used against a suspect in court. The implication of Alito’s observation is that  the original illegal stop becomes irrelevant because proper procedures were followed at some point afterward.

Samuel Alito suggests that it is a “curiosity … to suppress the fruit of a lawful search.” Alito wants another example of such a thing. There is no prior exact example. Underlying this line of questioning is a very big and circular ideology — that, if an exact fact situation treading upon a right has never come up before, it cannot be determined now.

The attorney places together elements of Constitutionality in other cases and applies them to this situation. For example, the attorney explains “deterrence” — the incentive for police to follow the law. If the fruit from an illegal stop can be used in a trial, then officers may be inclined to set up “dragnets.”

The attorney argues that the search was created by the officer’s illegal conduct, not an “intervening” event.  An intervening event is something outside the control of the investigating officers. In this case, the event was within the control of the officer who made the illegal stop. The officer cannot create the circumstances for an illegal search.

Next up is Justice Ruth Bader Ginsburg. Then, Samuel Alito speaks again. The last question in the clip is by John Roberts.

In this case, police found drugs. Typically, cases reach the Supreme Court because drugs are found. Outcomes of these decisions affect innocent people. If the discovery of drugs from this illegal stop is allowed into court, then police will be able to stop and detain innocent people routinely without reasonable suspicion.

If Antonin Scalia could, he likely would be supporting the same view that Roberts and Alito suggest, only he would be doing it with more confidence and flare.


A few days later, the legendarily quiet Associate Justice Clarence Thomas extensively cross-examines an attorney who is trying to connect a misdemeanor that does not involve guns to an “indefinite” forfeiture of Second Amendment gun rights.

Listen to this section of oral argument. Clarence Thomas has “one question” to add. He then proceeds with a series of questions implying that gun rights should not be in question for individuals who are charged with domestic violence misdemeanors where no weapon was involved in the incident. The next questioner is Justice Stephen Breyer following-up on the issue.

If Antonin Scalia could, he would have filled this oral argument with discussion of gun rights. Instead, Clarence Thomas has to bring it up almost as an afterthought.


Dow Chemical was found responsible in a polyurethane price-fixing scandal. Other companies who sued in a class action won over a billion dollars. Dow appealed the decision and lost. At the time of the loss of Scalia, Dow had an appeal pending at the Supreme Court. In reaction to the loss, Dow is settling. According to the  press release:

Dow has agreed to pay the plaintiff class $835 million. This settlement agreement is conditioned on the United States Supreme Court agreeing to hold Dow’s Petition for a Writ of Certiorari in abeyance and the subsequent approval of the class settlement by the United States District Court of Kansas. The settlement will resolve the $1.06 billion judgment (and also resolve post-judgment interest and an anticipated award of attorney’s fees) against Dow entered in 2013…

Growing political uncertainties due to recent events within the Supreme Court and increased likelihood for unfavorable outcomes for business involved in class action suits have changed Dow’s risk assessment of the situation. Dow believes this settlement is the right decision for the company and our shareholders.

While Dow is settling this case, it continues to strongly believe that it was not part of any conspiracy and the judgment was fundamentally flawed as a matter of class action law.

Transparently, when Dow Chemical said “the judgment was fundamentally flawed as a matter of class action law,” the company implied that the law was according to Antonin Scalia, who breaks the tie.

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