Legal Commentary

Oral Argument in Ashcroft v. Al-Kidd

By Orin Kerr

I attended oral argument this morning in Ashcroft v. Al-Kidd, the material witness detention case. As expected, it seemed pretty certain the Court would reverse on immunity grounds. Beyond that, the Justices didn?t seem terribly interested in the substantive Fourth Amendment standard for using the material witness statute pretextually. As best I can remember, it didn?t even come up in Acting SG Neal Katyal?s initial argument. The Justices seemed kind of bored with the case and didn?t have a lot to ask about it, and Katyal ended up sitting down after only 20 minutes.

Lee Galernt?s argument for Al-Kidd focused on the Fourth Amendment issues, and was more active, although the Justices seemed pretty skeptical about inquiring as to motive when the statute was used. Justice Kennedy raised the interesting question of whether construing the materiality requirement in the statute could deal with the pretext problem: The higher the standard of materiality ? that is, of the materiality of the witness?s testimony to a pending criminal case ? the less likely it is that the statute could be used entirely pretextually. If the Justices decide to answer the Fourth Amendment question, I wouldn?t be surprised if they uphold the use of the material witness statute but give guidance on the materiality requirement to ensure that the statute is not abused.

Full post as published by The Volokh Conspiracy on March 02, 2011 (boomark / email).