The justices of the United States Supreme Court are at their best when united against a common foe. It’s much easier to put aside doctrinal differences and work together when an attorney at the lectern sounds like a clodhopping amateur trying out for the moot court team. On Wednesday, in a critically important Fourth Amendment case, not one but two advocates performed so terribly that the justices effectively gave up and had a conversation among themselves. The result was a deeply uncomfortable 70 minutes during which the clash between state power and individual autonomy took a back seat to jokes about night court and hillbilly judges.
Wednesday’s case, Birchfield v. North Dakota, involves laws that impose criminal penalties when motorists suspected of drunk driving refuse to take a “chemical test”—usually a blood or breath test. North Dakota, Minnesota, and 10 other states have passed such measures to avoid pesky issues like obtaining a warrant before sticking a needle in a driver’s arm or a tube in her mouth. Danny Birchfield, who was arrested for refusing to take a blood test, argued that these laws violate the Fourth Amendment, which typically requires a warrant before police can conduct a search. North Dakota says motorists give consent to chemical tests when they drive in the state. Birchfield says legally mandated consent is no consent at all.
One problem for Birchfield is that he was definitely drunk when he was arrested—after driving into a ditch, attempting to drive out of it, then emerging from his car reeking of booze. His fellow petitioners in this consolidated case were similarly sloshed. Steve Michael Beylund was pulled over after nearly hitting a stop sign, then halting his car on the road; when a cop approached the car, he saw an empty wine glass in the cup holder. William Robert Bernard was drunkenly attempting to pull a boat out of a river with a truck—in only his underwear—when a witness called the cops on him. These fellows are not exactly model defendants.
They do, however, seem to have the Constitution on their side. A few terms ago, the court found that police generally require a warrant before drawing blood from a driver. Blood tests, the court reasoned, are a highly invasive type of search. In the old days, warrantless blood tests may have been a necessary evil, because a driver’s blood alcohol level could fall while the cops secured a warrant. But today, thanks to technological developments like electronic warrants—which let officers ask judges for warrants quickly and remotely—that concern has largely faded. In one sense, Birchfield boils down to a simple inquiry: If cops can get an insta-warrant before drawing a driver’s blood, shouldn’t the Fourth Amendment mandate that they do?
When Charles Rothfeld approaches the bench to defend this position, Justice Stephen Breyer—who begins in the morning with a cheerful smile and closes it out with a demoralized rictus—corners him. Rothfeld has the unenviable position of arguing against both blood tests and breath tests. Blood tests, Breyer notes, involve jabbing a needle into a vein and are vastly more invasive than breath tests, which involve blowing into “a little box the size of a cellphone. It has a little straw on the end, and you breathe into it.” (As a demonstration, Breyer loudly blows air onto his microphone, which startles everybody in the courtroom.)
Rothfeld must defend all his clients, so he has to say that a breath test is “a significant intrusion on personal integrity” and a search of “deep-lung air,” which is apparently very intimate air indeed. But it’s pretty clear that the court will write off the Breathalyzer issue as a reasonable search incident to arrest, leaving only the blood test on the table.
On this issue, it looks like Rothfeld has an evenly divided court. Chief Justice John Roberts, who’s sometimes amenable on privacy rights, is pretty sure that anybody who refuses a chemical test is definitely sozzled. “If you’re not drunk, you’d be happy to be tested, right?” he asks Rothfeld, who looks fleetingly aghast. But when Rothfeld sits down and Thomas McCarthy steps up to defend warrantless testing, everything changes. Ever wondered what it felt like on the Titanic when that iceberg ripped the hull? The sensation, I suspect, was quite similar to the horror that rippled through the courtroom when McCarthy begins to defend his position.
McCarthy really only has one job: to explain why states should be allowed an exception to the Fourth Amendment just because they decline to create an insta-warrant regime. Justice Samuel Alito notes that, unlike New York, North Dakota doesn’t have “night court going all the time.” McCarthy agrees: “There aren’t judges or magistrates on duty all the time in North Dakota,” he tells Alito. There are judges “on call, reachable somewhere, typically by phone, but it often takes a while, especially in rural jurisdictions.”
OK, Breyer says—so how long? In Wyoming, cops can obtain electronic warrants in five minutes. In Montana, it takes 15 minutes. How long in North Dakota?
McCarthy says the process can take up to an hour in populous districts and even longer in rural ones.
“Why is it harder to get somebody on the phone in rural areas than in big cities?” Justice Anthony Kennedy asks. “I would think people in the rural areas were sitting waiting for the phone call.” In other words, judges in rural areas are frequently less busy than those in cities, at least according to Kennedy. Shouldn’t they be available to answer a call from a cop?
McCarthy defends North Dakota, insisting that it has a “lack of resources and manpower.”
“So that excuses you from a constitutional requirement?” Justice Sonia Sotomayor says. “We’re now going to bend the Fourth Amendment?”
Justice Elena Kagan jumps in.
“I think what people are asking you,” she says patiently, “is to try to get some sense of the real-world harms here.” Imagine a system where cops could get a warrant within 10 or 15 minutes, Kagan offers. “What would be the problem with just relying on a system like that?”
McCarthy begins to talk about Fourth Amendment complications, and Kagan butts in.
“But I’m asking about your practical needs,” she reminds him. Yet McCarthy continues to talk about the complexities of Fourth Amendment law, seemingly ignoring Kagan’s question.
“I did not understand that answer!” Kennedy says. “We’re saying: Suppose it takes 15 minutes. What then?”
“Well … ” McCarthy begins, but Kennedy just gives up and starts lecturing.
“You’re asking for an extraordinary exception here,” he tells McCarthy. “You’re asking for us to make it a crime to exercise what many people think of as a constitutional right!”
A flustered McCarthy starts citing cases, but Breyer cuts in again.
“None of us want an answer in terms of law!” he says. “We want to know a practical fact!” Could North Dakota create a workable insta-warrant system—and if so, would a warrant requirement for blood tests be reasonable?
McCarthy says he wants to “step back here” then babbles for a few seconds.
“You’re not answering the question,” Kennedy says flatly.
When McCarthy’s time runs out, he is replaced at the lectern by Kathryn Keena, who is, to everybody’s astonishment, even worse than McCarthy. Keena begins by summarizing her autobiography. “Having grown up 20 miles from the North Dakota border and attending college in the Fargo-Moorhead area,” she tells the justices, who look visibly confused and irritated, “I’m very familiar with what the realities are in the rural area. And yes, it may be possible to get a search warrant in every case. But if that’s what this court is going to require, in Minnesota, we are going to be doing warrants for blood draws in every case. And that is not what this court wants.”
A majority of justices spent the last several minutes suggesting that, in fact, warrants are exactly what the court wants. Everyone looks befuddled.
“What?” Breyer says. “Why?”
And it goes on like this for 10 excruciating minutes, during which Keena accidentally reveals that cops bring drivers to stations for chemical tests anyway—meaning they could easily request warrants on the ride there. I will spare you the bulk of Keena’s outrageously bumbling performance, but I must share this closing colloquy. When Sotomayor gives Keena a brutally frank summary of her untenable position, Keena does not respond.
“Justice Sotomayor is assuming that you’re going to lose,” Alito quips, filling the silence. “So she wants to know what your reaction is to that.”
All the justices laugh hysterically, including Sotomayor, who looks down the bench at Alito with a fond grin. Keena stays absolutely stone-faced.
“I don’t like it,” she says quietly. “I don’t like it one bit.” She then quietly retreats.
Don’t feel too bad for Keena and McCarthy: They’re essentially arguing that rural states’ refusal to update their warrant systems should excuse systemic Fourth Amendment violations. Following Keena’s and McCarthy’s brain-melting performances, it looks like the justices will forge a compromise, requiring a warrant for a blood test except perhaps in a few exceptional circumstances. That is likely the correct outcome: Most Americans—and, for that matter, the framers of the Fourth Amendment—would probably be alarmed to hear that cops can draw drivers’ blood without judicial oversight in many states. With Birchfield, the court has an opportunity to impose sensible limits on that troubling practice. On Wednesday, Keena and McCarthy tried to stand in the way of reform. Thanks in part to their own ineptitude, they almost certainly failed.