Time for a pop quiz. There's a criminal case that involves whether the court should supress evidence obtained in a search pursuant to a warrant. The panel is Bybee, Fletcher, and Kozinski. One of them dissents. Who is it, and which way does he go (i.e., does he want to supress or admit)?
What's your answer? Write it down in the space provided. You have 60 seconds.
Tick, tock, tick, tock . . .
Okay. The best guess would be that Bybee and Kozinski (the two conservatives) are in the majority upholding the search and that Fletcher dissents. But that's too obvious. It wouldn't be worth mentioning. And it's also wrong. Another good guess would be that Kozinski (the libertarian) would join Fletcher and suppress the evidence, with Bybee dissenting. That could happen too. But not here. The most absurd guess would be that Fletcher and Kozinski would want to admit the evidence and Bybee would want to suppress. That'll happen when pigs fly.
The correct answer is, here, that both the conservative (Bybee) and liberal (Fletcher) vote to admit the evidence and the libertarian (Kozinski) votes to suppress. Not too stunning, but still, not a split that you're likely to see a lot of times. Admittedly, it's a somewhat weird case, in which everyone (including the United States) admits that some of the evidence needs to be suppressed, and the only dispute is about whether the warrant is facially invalid -- and hence all of the evidence needs to be suppressed -- or not. Regardless, the makeup of the majority is an interesting one. Not what you'd probably predict.
