Two recent decisions reflect a sharply divided Supreme Court. Such decisions provide little or no guidance to litigants and provoke doubt regarding the legitimacy and expected duration of the current law.

Several weeks ago, the Court heard arguments in a case involving the federal Clean Water Act (“CWA”). Implementation of the Act has led to regulation of private lands with little or no connection to any navigable waterway. As a result of the Act, developers must deal with increasing bureaucracy when contemplating nearly any building project.

For Kentuckians, this case had serious implications. It was anticipated that the Supreme Court would clarify the reach of the CWA and thereby provide guidance for developers and environmentalists. Not so.

In a sharply split decision, the Court vacated earlier rulings against two developers, one who sought to build condominiums about a mile from a Michigan lake and the other who wanted to build a shopping mall some 20 miles from the lake. A bare majority of the Court seemed troubled by the concept that the CWA required federal management of every pond, dry streambed and ditch line in the United States. A separate majority, however, refused to invalidate CWA’s long reach and thus the government could continue to restrict development which impacts nearly any wetland.

In sum, no clear consensus emerged. Trial courts and individual litigants will have to assess each proposed development on a case-by-case basis.

A second recent decision also reflects the divided nature of the Court. A longstanding rule required that police executing a search warrant at a residence must knock and announce their presence and purpose. This rule reflects a value judgment regarding the sanctity of private residences. Arguably, the announcement of the warrant provides the authority to compel compliance by the person in control of the premises.

Application of this rule has never been uniform. Some law enforcement agencies knock, announce and make a nearly contemporaneous entry while others may wait several minutes prior to entry. Police are understandably concerned that by announcing their presence, suspects may dispose of evidence or commence hostile action against officers. Nevertheless, some courts have routinely suppressed evidence seized in violation of the “knock and announce” rule.

In a another 5-4 split decision, the Court refused to suppress crack cocaine and firearms seized by Detroit police during the execution of a search warrant. In this case, officers announced “Police! Search warrant!” and then entered the residence five seconds later — too short of period according to a Michigan federal trial judge. The high Court reasoned that suppression of this evidence served little purpose. Since a valid warrant existed, the homeowner’s rights weren’t violated. The likely long term result is that police nationwide will no longer utilize the “knock and announce” procedure.

What is missing from both of these recent decisions is the binding effect that bright line decisions produce. Last month’s unanimous Supreme Court decision permitting police to enter a private residence to break up a fight without a warrant provides an interpretation of the law which will be binding for many years.

If the bi-polar nature of this Court continues, the country is largely deprived of the benefit of having a final arbiter of the law. Every change in the Court’s membership could easily result in the reversal of prior split decisions. As the new chief, Justice John Roberts must strive for greater unanimity among the Court’s members. Stronger majority opinions produce far less uncertainty about the course of American jurisprudence. Surely, we all deserve to know that the rules today are the same as yesterday and likely the same tomorrow.

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