European Stars And Stripes (Newspaper) - November 4, 1986, Darmstadt, Hesse Page 10 columns the stars Ald stripes tuesday november 4,1986 William f. Buckley Meese is right the High court in t infallible the speech by attorney general Edwin Meese is by my reckoning being misunderstood As to particular Sand underappreciated As to theory. But first let us dispose of the charge so widely levelled during the past few Days that the attorney general is engaged in undermining the Constitution. The easiest Way to handle that complaint is to reassure the fearful that even if he desired to do this the attorney general has t the Power to do so. He could undermine his obligations to the Constitution by lying and cheat ing but we Aren t talking about Are asking whether he has the Power to invalidate in effect a ruling of the supreme court and the answer he himself would give is no he has no such Power. But comes then the question is he in fact endeavouring to invalidate the Power of the supreme court to that question we need to give the answer yes and no. Yes in that he seeks a Public attitude that Grants to a supreme court decision less than the re Spect paid to a mosaic certitude no in that he docs not seek to undermine the authority of the Federal court system. Let us illustrate this Point. Suppose that on monday the court rules 5-4 that the City of Cambridge mass., violated the first amendment in voting Public funds to build a creche As a Public exhibit. For the hell of it Well Call the decision o Hare is. God. Now on tuesday the City of san Jose,calif., votes to appropriate Money for a creche for Public exhibit nex Christmas and a local Guy sues citing o Hare is. God. What happens is that the lawsuit goes to . District court. There the judge examines the complaint and finding that in the san Jose Case there Are no significant differences from the Cambridge Case he hands Down a summary judgment Cit ing o Hare is. God and what on earthman de Meese do about that what or. Meese is arguing is really a mind set the tendency of a great Many people not Only lawyers but also theologians to assume that the supreme court is always right that Assumption is cherished James Kilpatrick. Notwithstanding that history makes it utterly Plain that the supreme court snot always right by any understand ing of what right Means. Moreover the supreme court itself documents its unpredictability and there is no clearer example of this than a ruling by the majority of the court in 1973 that was specifically overruled by the majority of the court in 1977. Yes the court went 7-1 in one direction in Bonelli cattle co. Is. Arizona in 1973, an four years later in Oregon sex Rel. State land Board is. Corvallis Sand an gravel co., by a vote of 6-3 it declared its antecedent position wrong. In the june 1984 Issue of the journal of Legal studies two scholars . Good an Gordon Tullock dwell in an article called judicial errors and a proposal for re form on the interesting question of the difficulty a democratic society has in deciding whether a particular supreme court decision is the problem is hardly new. British common Law was until quite recent time organized in a set of courts each jealous of its prerogatives with the result that precedent was not considered entirely binding until the same decision on the subject had been Given several the professors go on to suggest a re form it is simply that in those cases where the probability is Low that the court is Correct that is in the supreme court the 5-4 and 6-3 cases the decision should not be regarded As a precedent. The court would await another Case Deal ing with the same Point of Law but with different parties and somewhat different facts. The procedure will be very similar to what we now have in those rare cases in which the court ties. A striking Case occurred while we were preparing this Arti Cle. A $1,000 limit for Independent expenditures in presidential campaigns was struck Down by an appellate court and the appellate Case was appealed tothe supreme court where Bec a jus Tice Sandra Day o Connor abstained a4-4 tie resulted. The Federal election commission decided that it would ignore the decision of the appellate court and enforce the Law in spite of its apparent conflict with free speech. This will Lead to another lawsuit and another hearing before the court i which presumably there will be a Deci Sion that will be binding. We Are propos ing that this procedure be used much More and Edwin Meese without being nearly so specific is asking merely that we whether legislator voter pundit or moralist withhold judgment on the Judi Cial let alone moral finality of a court ruling until it has survived the acquiescence of time. That is sound conserva Tive thinking of the kind that would surely have been welcomed by dred t . Searching for the exclusionary Rule in a trash bin a .,.j in a i. A.mhT, or Tiv. Mid shows. Wit Toner had abandoned in times past the supreme court has looked into Glove compartments Mobile Homes and Fields of marijuana i search of the exclusionary Rule. This term it will look into Peter Rooney trash bin. The Case arose in december 1983 when police in West Hollywood calif., heard that Rooney was making Book on football games from an apartment on North Flores Street. The cops obtained a warrant to search the apartment. The went to the address but before knocking on the door they had a Happy thought Why not search the trash bin first thus inspired officers went to the basement of the building where a Capa Cious bin had been provided for communal use of tenants occupying the 28 apartments. The bin was full. The offi cers not discouraged went to work. Sure enough about Halfway Down they found paper shopping bag filled with Dis carded mail that had been addressed to Pete Rooney Apt. No. 8. Within the bag according to their affidavit were pieces of paper with sports wagers pays and owes and a tally Sheet of wagers on Dif Ferent pro police also searched Rooney s apart ment pursuant to the warrant but there the pickings were slim. In january 1984the state of California charged Rooney with bookmaking but before the Cas could go to trial Rooney s lawyers moved to suppress the evidence obtained fro the trash bin. The lower courts agreed. The state appealed to the supreme court and a few Days ago the High court agreed to review the Case. The state argues that once Rooney threw the sack into the communal bin the trash became abandoned property. After All not Only the cops but also Rooney s 27 neighbors had immedi ate Access to the Container. This was Notan individual single family garbage can which under California Law is As privates a bedroom. Anyone could have gone Down to the basement and rooted around. Rooney s lawyers in an impassioned Brief argue that the communal aspect of the trash bin is irrelevant. The privacy of millions of garbage cans trash bins and dumps is at stake. Every citizen is entitled to full fourth amendment Protection of his trash. Thus the Issue is drawn. The Only supreme court Case that appears to be even remotely in Point is Abel is. Unite states decided in 1960. Here a suspected spy Rudolph Ivanovich Abel was under surveillance by government agents. The instant Abel moved out of his new Yor hotel room the agents moved in. In a wastepaper Basket they found a hol Lowed out Pencil containing microfilms and a Small Block of Wood containing cipher pad. Abel was not the smartest spy who Ever lived. A sharply divided supreme court ruled that the search was entirely awful and the evidence was admissible. Said Justice Frankfurter this is so forthe reason that at the time of the search the Petitioner had vacated the room. The hotel then had the exclusive right to its Possession and the hotel management freely gave its consent that the search remade. Nor was it unlawful to seize the entire contents of the wastepaper Basket even though some 9f its contents had no connection with crime. So far As the re co petition d these articles. He had thrown them away. So far As he was concerned they were Bona vacant a " not Only trash bins but also Auto Mobile junkyards will occupy the Nifon court s attention. In new York a. Bun or the question is whether police Wiki out a warrant May search junkyard for evidence of stolen can. The new Yont court of appeals said no. Neither the Rooney Case nor the Buffer Case appears to provide the raw mate rial for a landmark decision but you never know. In recent years the supreme court has wrestled earnestly with Istueta rising under the fourth amendment. What is an unreasonable search what is meant by the Security of our person houses papers and effects what Etta Lishes probable cause for issuance Oft warrant the fourth amendment rooted in the Magna Carta is the individual s greatest Protection against we powerful state. There s nothing wrong in searching for its meaning in a Heap of trash. Universal press Syndicate
