It should be easy to predict the votes of the cartoon court in a case like this: The lock-'em-up "conservatives" (Chief Justice William Rehnquist joined by Justices Antonin Scalia and Clarence Thomas) would vote to smooth the way for government drug warriors, while the soft-on-crime "liberals" (Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer and David Souter) would take a stand for privacy, liberty and maybe even a little personal experimentation. In fact, though, the arch-conservative cartoon villain Scalia, joined by Thomas and liberals Ginsburg and Souter, wrote the majority opinion upholding the sanctity and privacy of the home and protecting it from high-tech government snooping, over the dissent of the often lonely liberal Justice Stevens, who was joined by the "swing" justices, Anthony Kennedy and Sandra Day O'Connor.
No. The same judicial tools and philosophical commitments that so often attract knee-jerk labels like "conservative" compelled Scalia and Thomas to the "liberal" result in [Kyllo]. The text of the Constitution, after all, clearly guarantees the right to "be secure in [our] houses" from "unreasonable searches and seizures." This, for a conservative like Scalia, is not a right that should wax and wane with the times and technology. Scalia was not out to unearth new rights in a "living" Constitution. It is a deeply rooted principle of Anglo-American law and tradition that the privacy of the home is protected against government intrusion. Scalia's purpose was, as he put it, to preserve "that degree of privacy against government that existed when the Fourth Amendment was adopted."
Again, we might have expected in [Wilbert Rogers] a typecast 5 to 4 split between left and right. Instead, Justices Souter and Ginsburg joined with Rehnquist, Kennedy and O'Connor to affirm the conviction. Scalia, on the other hand -- again joined by Thomas, but also by the more liberal justices Breyer and Stevens -- insisted that the Constitution did not permit, because the Framers would not have permitted, the Tennessee courts to so dramatically change the rules of the game in the course of a criminal case. It is, Scalia wrote, one of the most "widely held value-judgment[s] in the entire history of human thought" -- and one incorporated into our Constitution at the founding -- that a court "cannot make murder what was not murder when the act was committed."
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