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“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 continuesto 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.
- Oyez: Birchfield v. North Dakota.