In Ashcroft v. al-Kidd, there is a stark disagreement between Justice Scalia’s majority opinion and Justice Ginsburg’s opinion concurring in judgment, focusing on what “individualized suspicion” refers to.
In a massive one-page long footnote, after including a parenthetical string of about a dozen cases, noting that the Court has “uniformly used the term ‘individualized suspicion’ to mean ‘individualized suspicion of wrongdoing,’” Ginsburg finds that the Court’s suggestion that the term “individualized suspicion” ismore commonly associated with “know[ing] something about [a] crime” . . . is hardly credible.”
The import of the term in legal argot is not genuinely debatable. When the evening news reports that a murder “suspect” is on the loose, the viewer is meant to be on the lookout for the perpetrator, not the witness. Ashcroft understood the term as lawyers commonly do: He spoke of detaining material witnesses as a means to “tak[e] suspected terrorists off the street.
Scalia reads the phrase “individualized suspicion” more broadly, though doesn’t really define it. Scalia basically notes that the the precedents support Justice Ginsburg’s position says nothing more than that the current case—where the suspicion is that someone knows something, and would not be present to testify at trial—is rather rare.
JUSTICE GINSBURG suggests that our use of the word “suspicion” is peculiar because that word “ordinarily” means “that the person suspected has engaged in wrongdoing.” Post, at 3, n. 2 (opinion concurring in judgment). We disagree. No usage of the word is more common and idiomatic than a statement such as “I have a suspicion he knows something about the crime,” or even “I have a suspicion she is throwing me a surprise birthday party.” The many cases cited by JUSTICE GINSBURG, post, at 3, n. 2, which use the neutral word “suspicion” in connection with wrongdoing, prove nothing except that searches and seizures for reasons other than suspected wrongdoing are rare.
It seems Ginsburg has the better argument here. Scalia’s position seems to have 5 votes though.