needs,” she reminds him. Yet McCarthy continues to 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.
“Justice Sotomayor is assuming that you’re going to lose,” Alito quips, filling the silence. “So she wants to know what your reaction is to that.”
All the justices laugh hysterically, including Sotomayor, who looks down the bench at Alito with a fond grin. Keena stays absolutely stone-faced.
“I don’t like it,” she says quietly. “I don’t like it one bit.” She then quietly retreats.
Don’t feel too bad for Keena and McCarthy: They’re essentially arguing that rural states’ refusal to update their warrant systems should excuse systemic Fourth Amendment violations. Following Keena’s and McCarthy’s brain-melting performances, it looks like the justices will forge a compromise, requiring a warrant for a blood test except perhaps in a few exceptional circumstances. That is likely the correct outcome: Most Americans—and, for that matter, the framers of the Fourth Amendment—would probably be alarmed to hear that cops can draw drivers’ blood without judicial oversight in many states. With Birchfield, the court has an opportunity to impose sensible limits on that troubling practice. On Wednesday, Keena and McCarthy tried to stand in the way of reform. Thanks in part to their own ineptitude, they almost certainly failed.
Stern, Mark. "Blood Tests and Bad Lawyering." Slate. 20 April 2016.