JUSTICES SAILING INTO STORMIER SEAS

Many Of This Term's More Controversial Cases Await Supreme Court Action

The U.S. Supreme Court is moving from a period when it has been
handling some of the easier cases on its docket, resulting in a
surprising number of unanimous decisions, to handling more
controversial decisions that will almost surely split the high court.
One case decided last week led newly installed Chief Justice John
Roberts to write his first dissent, and a rather stinging dissent it was.

In Georgia v. Randolphthe issue was whether police could enter a
house and search it without a warrant when one of the people in the
house objects to the search, and the other invites it. The case arose
over a child-custody dispute by an estranged couple. Scott Randolph's
wife, Janet, had been separated from her husband but returned to the
home for a brief period. She invited police to come and offered to
show them evidence of her husband's illegal drug use. Over the
husband's objections, the police entered the house and found a straw
with traces of cocaine.

At trial Scott Randolph moved to suppress the evidence on the grounds
that the search was illegal. Lower courts divided on the issue, and
the Georgia Supreme Court ruled it should be suppressed. By a 5-3
vote the Supreme Court agreed. Justice Souter (joined by Justices
Stevens, Kennedy, Ginsburg and Breyer) stressed the importance of the
"a man's home is his castle" tradition. He assured us that the
precedent would not prevent police from entering a house if domestic
violence was alleged to be occurring.

Chief Justice Roberts (joined by Justices Scalia and Thomas) wrote a
tart dissent, arguing that sharing a house with someone reduced a
person's expectations of complete privacy and that allowing one
tenant to authorize a search (rather than making the police go get a
warrant on the basis of that person's allegations) would not
undermine privacy rights and concerns on that score were "overwrought."

The case itself, among other issues, is yet another illustration of
how drug prohibition inevitably raises issues that tend to undermine
our traditional Fourth Amendment rights against unreasonable search
and seizure. A case to be decided later this term, Hudson v.
Michigan, deals with whether police with a warrant need to knock and
announce themselves before breaking in for a search.

A few other cases will probably divide the court and perhaps give us
some hints about the influence of the court's two new members. The
Rapanos and Caravell cases deal with the power of federal agencies to
declare any wet place a "wetlands" and regulate it or whether the
waters in question must be navigable. The Hamdan case deals with
appeals by detainees at the Guantanamo prison against being tried by
a special military tribunal rather than by a court-martial under the
Uniform Code of Military Justice.

Meanwhile, a unanimous decision last week may have more impact on
society at large. In Merrill Lynch v. Dabit, the court limited the
ability of shareholders to bring class-action lawsuits in state
courts rather than in federal courts. Shadi Dabit, a former Merrill
broker, charged that misleading Merrill research cased him to hold
certain securities longer than he should have, and he lost money. He
brought his suit in Missouri state courts.

The Supreme Court ruled that the 1998 Securities Litigation Uniform
Standards Act, which brought most such class-action suits into the
federal courts rather than state courts, really meant what it said
and was constitutional. The practical effect will be to reduce the
number of class-action lawsuits, which had mushroomed during the 1990s.

The court ruled correctly in the Merrill Lynchand Georgia v.
Randolphcases. Before long, however, it will venture into more
controversial and divisive territory.