The United States Supreme Court Tuesday issued two hard-fought rulings that further tip the balance in our criminal justice systems toward the police and prosecutors. In Fernandez v. California, the justices held that the police could search an apartment without a warrant even if one of its inhabitants refused to consent to such a search. And in Kaley v. United States, the justices held that criminal defendants are not entitled to a pretrial hearing to determine whether prosecutors may freeze assets that could be used to pay for defense attorneys.
Both decisions generated strong dissents. In Fernandez, Justice Ginsburg wrote that the majority's opinion "tells the police that they may dodge" the warrant requirement of the Fourth Amendment even though they would have "ample time to secure the approval" for such a warrant from "a neutral magistrate." And in Kaley, Chief Justice Roberts wrote that the majority's opinion impermissibly denied a criminal defendant the right to challenge the freezing of his assets at a time, before trial, when he would most need those assets to pay for an attorney.
Now, it isn't exactly news when this court sides with the government against the individual in cases involving matters of criminal justice. In many fundamental ways this court is the opposite of the Warren Court. But it is a bit of news when the Chief Justice, this Chief Justice, writes an ode to criminal defense attorneys and the critical role they play in the administration of justice. This is what Chief Justice Roberts did in Kaley and it's worth a closer look because it highlights the hypocrisy of the Court's current position on the constitutional right to counsel.