Justice Kennedy's soft-shoe approach was, in turn, too light for Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Stephen Breyer. The trio also concurred in the disposition of the case without agreeing with the rationale offered by most of the rest of their berobed colleagues. They asked: Why was Justice Scalia so quick to assume that the material witness against al-Kidd was valid under the Fourth Amendment when the plaintiff had raised so many legitimate questions surrounding its application? Justice Ginsburg wrote:
In addition to the questions Justice Kennedy poses, and even if the initial material witness classification had been proper, what even arguably legitimate basis could there be for the harsh custodial conditions to which al-Kidd was subjected: Ostensibly held only to secure his testimony, al-Kidd was confined in three different detention centers during his 16 days' incarceration, kept in high-security cells lit 24 hours a day, strip searched and subjected to body-cavity inspections on more than one occasion, and handcuffed and shackled about his wrists, legs, and waist.
Justice Sotomayor wrote separately, too, to demonstrate that she wasn't at all crazy about Justice Scalia's opinion. She wrote:
Nor is it clear that the affidavit supporting the warrant was sufficient; its failure to disclose that the Government had no intention of using al-Kidd as a witness at trial may very well have rendered the affidavit deliberately false and misleading. The majority assumes away these factual difficulties, but in my view, they point to the artificiality of the way the Fourth Amendment question has been presented to this Court and provide further reason to avoid rendering an unnecessary holding on the constitutional question.
So the actual result, and the precedential impact of Monday's ruling, belies the tidiness of the 8-0 score. What we have instead is a quirky series of opinions (totaling only 26 pages in all) that likely won't end the legal debate over the government's use of material witness warrants as a tool in the war on terror, even as they do end the exposure that Ashcroft and company have faced for the past six years. Bad luck for al-Kidd, perhaps, but definitely an uncertain future for the next plaintiff who comes to court claiming officials wrongly used the material witness statute to get around Fourth Amendment requirements.
And what about Justice Kagan? Would the outcome of al-Kidd have been different had she heard and helped decide the case? Would she have pulled Justice Kennedy over toward the Court's liberals and thus generated a different Fourth Amendment outcome here? Or maybe she would have pulled her liberal colleagues back toward Justice Kennedy's view and thus taken the majority opinion away from Justice Scalia? We'll never know for sure but it's easy to see how the fluid dynamics of Monday's scattershot opinions in al-Kidd could have been altered, or would have been altered, with the addition of the Court's ninth voice.
That's small solace, indeed, for al-Kidd, a U.S. citizen who evidently has never recovered from having his life so starkly interrupted eight years ago by his arrest. For him, surely, Monday's result is no exercise in judicially-nuanced opinion writing. Instead, it's probably just another reminder that being a part of the U.S. government means never having to say you're sorry.