This case was the oldest undecided case on the court’s docket, and it is likely that Justice Breyer’s vote was in play until the final stages. One indication was Chief Justice Roberts’s reference in his opinion to Justice Breyer’s having joined “what becomes the majority opinion,” an odd present-tense locution suggesting that the outcome had once been otherwise.
What’s interesting about this, the first dissent by Chief Justice John Roberts in Georgia v. Randolph, is that the Chief takes a tone that indicates he feels it is appropriate to attack an opponent on the Court rather than just reason with him or her. Furthermore, he exposed the give-and-take that happens on the Court as casually and acidly as President Bush attacks as “politics” anything that crosses swords with his decisions. Give-and-take is the basis for all political decision-making, but these conservatives don’t seem to accept that.
It suggests the Supreme Court is headed down the path of confrontation politics that has already destroyed much of what was valuable in American discourse.
On another angle, this also suggests there is a majority on the Court that would find unwarranted wiretaps illegal. If the opinions in that case, when it comes to the Supreme Court, display the same personal animus, it will demonstrate beyond doubt that the conservatives on the Supreme Court intend to make every ruling deeply political, not judicial.