at least if they had reasonable suspicion to stop him. That’s what I infer from SCOTUSBlog’s report that the Supreme Court affirmed the Nevada Supreme Court’s decision in the Hiibel case. Will read it as soon as it’s available, and blog more about it.
UPDATE: Looks like the 5 conservative / 4 liberal split; Justice Kennedy, joined by Chief Justice Rehnquist and Justices O’Connor, Scalia, and Thomas is writing for the majority.
FURTHER UPDATE: Justice Stevens dissents solely on Fifth Amendment privilege against self-incrimination grounds, with an interesting argument that I hope to blog about shortly.
Justice Breyer, joined by Justices Souter and Ginsburg, dissent on Fourth Amendment grounds, though generally appealing to one precedent — dictum (which is to say a statement that wasn’t necessary to the past opinion’s holding), albeit considered dictum, in a past decision — rather than Fourth Amendment text, policy, or broader precedent-based rules. Breyer’s opinion also argues that the majority’s Fifth Amendment holding may prove unadministrable, but doesn’t make any broader defenses of the right not to identify oneself.
That’s rather odd, since it seems to me that such a broader defense would have made the opinion considerably more rhetorically effective, to the public, to state courts interpreting state search and seizure provisions, and to future Justices who might be considering whether to adhere to the majority’s position, or even to extend it. But perhaps the dissenting Justices thought their time was better spent elsewhere. (It’s also possible that they didn’t have firm views on the Fourth Amendment first principles involved here, and really were relying solely on the precedent, but given that the precedent is so weak — the dissent acknowledges that it was dictum, and even a judge who thinks precedent should nearly always be adhered to wouldn’t feel actually bound by such dictum — I assume that the dissenters really did differ with the majority on the principle as well as the precedent.)
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