Justice Roberts: Tanned, Rested and Ready to Legislate from the Bench.

So much for conservative restraint. Chief Justice Roberts was ready to repeal the 4th Ammendment this week, and in doing so, was ready to write a new law by judicial declaration.

In yesterday's decision Roberts wrote the dissent (vote was 5-3). In the case, a wife gave permission to police to search her home (she was angry at her husband, said he was a cocaine user, and they would find evidence of this); her husband, also present, explicitly denied permission to search. The police searched, found evidence of cocaine use, and arrested the husband.

Roberts:: "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.'"

Here, Roberts is complaining that the majority was silent on a question of law which was not before the court: what should happen if the second co-owner was not present?

Roberts faulted the majority for declining to address a hypothetical question of law -- not the question before the court, and a question that's likely to come up in the future, sure, but a hypothetical question nonetheless. What do the police do if the co-owner is not present?

That is, per definition, legislating from the bench.

This is going to get interesting.