My Supreme Court Fashion Felony
In March 1995, I visited the sacred burial ground of Americans’ rights and liberties – the Supreme Court. Working on an article for Playboy, I went to watch lawyers argue a case of great principle and tawdry details. Sharlene Wilson was a repeat offender and former government snitch who had been nailed for two sales of marijuana totaling $105. The state of Arkansas – which could not afford to pave many of its own roads – planned to spend hundreds of thousands of dollars incarcerating Wilson for the next 30 years.
The case reached the Supreme Court because Arkansas police carried out a no-knock raid on her home, during which they discovered marijuana and drug paraphernalia. John Wesley Hall, an Arkansas attorney and author of a treatise on the Fourth Amendment, believed the no-knock raid was unconstitutional and petitioned the court to overturn Wilson’s convictions for marijuana possession and paraphernalia. (He did not challenge Wilson’s drug dealing conviction.)
No-knock raids were routinely carried out by SWAT teams wearing masks and black Ninja outfits and toting submachine guns. The right to violently batter down a front door necessarily included the right to shoot any citizen who tried to stop the police from invading his home. And what did it take to justify government effectively declaring war on its own citizens?
Flush toilets. Law enforcement agencies were paranoid that the slightest delay in barging in could allow residents to flush away small amounts of drugs. The Clinton administration told the Supreme Court that “if the officers knew that . . . the premises contain no plumbing facilities . . . then invocation of the destruction-of-evidence justification for an unannounced entry would be unreasonable.”
Americans are raised to believe that judicial processes favor truth and fairness, but cravenness is the coin of the realm at the Supreme Court. I watched lawyers grovel before the Justices like slaves trying to avoid a whipping. Some Justices were martinets, interrupting and browbeating disputants to their hearts’ content. When Chief Justice William Rehnquist mocked one lawyer’s assertion, everyone in the house responded with a polite chuckle.
Hall, who was short, bearded and bespectacled, told the Justices that the “knock and announce” rule for police searches goes back to 1603 in English common law – before the Mayflower reached these shores. Hall included in his brief to the Court a Playboy piece I wrote -“Oops – You’re Dead” – chronicling cases of innocent people killed in no-knock raids.
One of the Justices asked Michael Dreeben, the zealous beanpole representing the Justice Department, if the Clinton administration thought that no-knock entries were always justified. Dreeben magnanimously granted two exceptions: “if, based on confidential informants, the police know that all the drugs in question are stored in relatively indestructible crates,” and second, if cops were searching for stolen televisions, there “would be no reason to believe that the occupants would have any means of being able to destroy the televisions.”
Hall retorted that, according to Dreeben’s logic, “the more drugs you’ve got, the more right you have to an announcement” prior to a police search.
I thought that was hilarious. Alas – my boisterous laugh proved to be a solo performance. All the Justices – and dang near everybody else in the courtroom – turned and stared in my direction.
Being a rube, I did not realize that there were different standards for laughter, depending on whether the jokester was wearing a bat suit. (Admittedly, my laugh has often spooked people and it did spark complaints from children when I worked as a Santa Claus at a Boston Filene’s Department store.)
Here is how the Washington Post’s Al Kamen described what happened next in his “In the Loop” column:
Once in Court, His Shirt Lost Its Appeal
There was freelancer James Bovard yesterday in the front row of the press section at the Supreme Court minding his own business: on assignment from Playboy magazine to cover oral arguments in a case about whether police officers with warrants must knock before entering a home.
About 15 minutes into the argument, a court police officer approached Bovard and told him to move to a rear alcove.
Seems Bovard had violated a Supreme Court rule — one that veteran reporters had never seen enforced — that asks the press sitting in the first two rows of the reserved section to follow the same dress code as those in the section reserved for the bar: coats and ties, general business attire.
It could not be learned whether the court police acted on their own or were prompted by a displeased justice.
A miffed Bovard says it’s not like he had on a T-shirt or anything. It was a light blue, striped, “fancy business shirt” that was from “Lord & Taylor.”
Maybe he should try Brooks Brothers.
After the hearing concluded, I had briefly returned to the press room. Several reporters who regularly covered the Court asked what I’d been told when I got the heave-ho. The Post reporter mentioned the episode to Kamen, who gave me a ring. I explained that my laugh had drawn the attention that sparked the eject. However, my response to his attire question provided a better story.
After reading about the incident in the Post, Nancy Dunne, a friend who wrote for the Financial Times, called and asked if I felt terribly embarrassed about the episode.
“Hell no – I wasn’t responsible for that stupid rule,” I replied. If people feel guilty about violating arcane, secret edicts, government agents can always subdue them by pulling out a rule book and pronouncing them “guilty.” The real problem was that I wasn’t permitted to summon police to haul away any Justice who voted to uphold some tyrannical federal policy.
The Supreme Court reached a new low in constitutional depravity the following year when it upheld the city of Detroit’s confiscation of a Pontiac jointly owned by a married couple after police caught the husband, John Bennis, getting tooted by a prostitute on the front seat. There was never any evidence that the wife had consented to the use of their vehicle for a dalliance. But the Clinton administration implied in a court brief that Tina Bennis was complicit because she failed to take “all reasonable steps” to prevent the illegal use of the vehicle. Since she had not hired a detective to stalk her husband, she had no right to complain about losing the car. Chief Justice Rehnquist based his decision on an 1827 case involving the seizure of a Spanish pirate ship that had attacked U.S. ships.
Regrettably, Rehnquist did not deign to explain the legal equivalence of piracy in the 1820s and contemporary fellatio. The forfeiture was justified as a way to curb prostitution; but, since police interrupted before she finished and was paid, Bennis was actually convicted only for “gross indecency.” This is a charge that any overheated teenage couple parking on Lovers Lane could face. The court’s ruling was so broad that even a married couple who stopped on some desolate dead-end street for a quickie (solely for the purposes of procreation) could lose their car. I lampooned the decision in a Playboy piece titled “Blown Away.”
James Bovard is the author of Attention Deficit Democracy (Palgrave, 2006), Lost Rights: Destruction of American Liberty (St. Martin’s, 1994), and a new e-book memoir, Public Policy Hooligan. He is on Twitter @jimbovard and his email is email@example.com