Mock and Announce
How long does it take to flush the 9th Circuit down the toilet?
Justice Breyer cuts to the heart of things: "Is there anything other than your opinion, which I respect, to use as the basis for this?" he asks.
Shortly, Roske notes that the smallness of Banks' apartment was also a factor for the police decision to break down the door. Scalia snaps back that he can't believe the rule is that it's OK for people to deal drugs, "so long as they do it in really big houses with lots of toilets."
Stevens presses Roske to come up with some clear unit of time after which it's all right to enter without consent. Roske refuses to "set a bright-line rule" (which is of course why this case is unwinnable). Stevens says to just give him a rule for the facts of this case. Scalia offers "the shower rule." Roske says a minute would be OK. (That would be the "leave-in conditioner" rule?)
Then there's one of those moments where you can actually see each of the justices glaze over while Roske really just chats for a while. He talks about dignity and purpose, the inevitable discovery doctrine, and the dimensions of Banks' apartment. When he gets to King Edward I, the questions stop altogether. The court did not take this case from the 9th Circuit to affirm it. They will trash the exigency/door-bash test faster than you could shave your right leg. The real question is, why does the 9th Circuit keep making it so damn easy?
Correction, Oct. 16, 2003: This article originally stated that the authoring judge was sitting by designation from the 6th Circuit. He was in fact from the 5th Circuit. (Return to corrected sentence.)
Dahlia Lithwick writes about the courts and the law for Slate.
Illustration by Mark Alan Stamaty.