The story? The Chief Justice of the US Supreme Court was in the minority on a question of constitutional validity of a search. What was at issue was the justification the judges used to alter the law, something similar here in Israel in terms of sociall norms, etc.
Writing for the majority, Justice David H. Souter said the search was unreasonable, given the vocal objection of the husband, Scott Randolph. True, Justice Souter said, the court had long permitted one party to give consent to a search of shared premises under what is known as the "co-occupant consent rule." But he said that rule should be limited to the context in which it was first applied, the absence of the person who later objected.
The presence of the objecting person changed everything, Justice Souter said, noting that it defied "widely shared social expectations" for someone to come to the door of a dwelling and to cross the threshold at one occupant's invitation if another objected.
"Without some very good reason, no sensible person would go inside under those conditions," he said.
"We have, after all, lived our whole national history with an understanding of the ancient adage that a man's home is his castle," Justice Souter said. "Disputed permission is thus no match for this central value of the Fourth Amendment."
The dissenters, in addition to Chief Justice Roberts, were Justices Antonin Scalia and Clarence Thomas. In his opinion, the chief justice took aim at the majority's description of social custom, as well as its reliance on that description to reshape "a great deal of established Fourth Amendment law."
Every lower federal court to have considered the issue, as well as most state courts, had concluded that one party's consent was sufficient. The Georgia Supreme Court, in its 2004 decision that the justices affirmed, was in the minority, ruling in this case that the evidence of Mr. Randolph's cocaine use was inadmissible.
"The fact is that a wide variety of differing social situations can readily be imagined, giving rise to quite different social expectations," Chief Justice Roberts said. For example, he continued, "a guest who came to celebrate an occupant's birthday, or one who had traveled some distance for a particular reason, might not readily turn away simply because of a roommate's objection."
Noting that "the possible scenarios are limitless," he said, "Such shifting expectations are not a promising foundation on which to ground a constitutional rule, particularly because the majority has no support for its basic assumption — that an invited guest encountering two disagreeing co-occupants would flee — beyond a hunch about how people would typically act in an atypical situation."
The majority missed the point, the chief justice said; the fact is that someone choosing to share space has also, already, chosen to share privacy.
"Our common social expectations may well be that the other person will not, in turn, share what we have shared with them with another — including the police," he said, "but that is the risk we take in sharing."
In a concluding paragraph of his dissent, he said: "The majority reminds us, in high tones, that a man's home is his castle, but even under the majority's rule, it is not his castle if he happens to be absent, asleep in the keep or otherwise engaged when the constable arrives at the gate. Then it is his co-owner's castle."
In Israel, I can't recall the judges voting that way. In fact, they usually kowtow to Professor Aharon Barak's activism and liberalism.