A Tale of Two Judges
"I fear that, eventually, we are all going to become collateral damage in the war on drugs, or terrorism, or whatever war is in vogue at the moment. I retain an abiding concern that our Declaration of Rights not be killed by friendly fire. And, in this day and age, the courts are the last, if not only, bulwark to prevent that from happening."
"And, I also know that my most unwelcome and paternalistic relative, Uncle Sam, is with me from womb to tomb. Fueled by the paranoia of “ists” and “isms,” Sam has the capability of spying on everything and everybody--and no doubt is. But, as Sam says: “It’s for my own good.”"
"I don’t like living in Orwell’s 1984; but I do."
Montana v. 1993 Dodge Pickup, et.al. (Judge Nelson concurring in the decision to permit the police's trash-diving to get probable cause for a search warrant. "I have signed our Opinion because we have correctly applied existing legal theory and constitutional jurisprudence to resolve this case on its facts.")
Judge Posner didn't have to include that he thought the cop was full of crap. He ruled that the cop's encounter with the defendant was consensual. Analysis over. No need to check for reasonable suspicion to support a Terry stop. Done. Judge Posner didn't need to assuage any guilt over ruling against the defendant, he did it to let the system know about a specific problem.
Judge Nelson's legal and citizen conscience bothered him enough to write a powerful and compelling concurrence, but not enough to do the right thing. He's looked at the sorry state of the 4th Amendment and realized that we're all the proverbial frogs in the pot and the water's boiling. So he decides that's OK because he didn't notice the temperature rising earlier. Hence the-this-is-bad-but-I'm-too- scared-to-jump-out-of-the-pot concurrence. ...full of sound and fury, signifying nothing.
Granted, one could make an argument that to go against 'existing legal theory' would be 'judicial activism.' However, even assuming that our Founding Fathers would be OK with trash-diving (a big assumption) Judge Nelson has laid out a compelling argument for judicial activism (or rather judicial correction) that even Real Republicans (TM) would agree with. But he couldn't bring himself to jump out of the pan of water that's slowly boiling all of us.