The Supreme Court Giveth and the Supreme Court Taketh Away: The Century of Fourth Amendment "Search and Seizure" Doctrine

Article excerpt

[I]ndependent tribunals of justice ... will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the [Bill of Rights].

--James Madison **


The century during which the Journal of Criminal Law and Criminology has been published roughly matches the lifespan of Fourth Amendment "search and seizure" doctrine. The Journal appeared in 1910, while it is generally (and correctly) accepted that the 1914 decision Weeks v. United States (1) marks the birth of the modern Fourth Amendment. (2) Unsurprisingly, the Journal has published many articles on search and seizure issues since that time. (3)

However, the two stories have now diverged. The Journal continues to be a vibrant institution, but over roughly the last four decades the continuing conservative majority of the justices of the Supreme Court have reduced Fourth Amendment doctrine to little more than a rhetorical apparition. Hence, it is appropriate to refer to "the" century of search and seizure doctrine. Although it is unclear whether the justices will refrain from explicitly ending enforcement of constitutional limits on government arrest and search powers, they have already drained those limits of almost all of their practical content. And, notwithstanding the usual cliches regarding historical pendulums (where does such nonsense come from?), it seems quite unlikely that destruction will be reversed.

My assignment for this Symposium is to tell the story of the invention, development, and dismantling of Fourth Amendment search and seizure doctrine over the last century. Of course, readers will likely already be familiar with at least the landmarks. Hence, my ambition is to broadly sketch out what might be called the trajectory of search and seizure doctrine while at least beginning to link that story to the larger history of the Supreme Court itself--that is, to the shifting concerns that motivated the justices as the Court's membership and the politics of criminal procedure changed.

The Fourth Amendment reads:

   The right of the people to be secure in their persons, houses,
   papers, and effects, against unreasonable searches and seizures,
   shall not be violated, and no Warrants shall issue, but upon
   probable cause, supported by Oath or affirmation, and particularly
   describing the place to be searched, and the persons or things to
   be seized. (4)

It is fashionable to lament the maddeningly cryptic character of the Fourth Amendment's text (5) as well as the confused or unmoored state of search and seizure doctrine. (6) Indeed, those complaints may seem painfully obvious if one attempts to systematically set out the rationales and content of current search and seizure doctrine and to then relate that doctrine to the text. However, such doctrinal incoherence should hardly come as a surprise. If the professional pretense that the law develops through judicial discovery of the true meaning of a text or of the internal logic of principles and precedents was ever tenable, it surely no longer is.

Instead, the basic contention advanced by the legal realists more than a half century ago--that textual interpretations and doctrinal conceptions are shaped by the outcomes that judges seek to justify far more than the other way around--is patently obvious. Indeed, the realists' insight provides a particularly powerful explanation of Supreme Court decisions regarding ideologically charged topics such as criminal procedure. (7) Although the potential for appellate review means that lower court judges are constrained to hew to the legal doctrine set out by the high court to some significant degree, the justices of the Supreme Court are not similarly confined.

Perhaps because no other institution has the power to review constitutional rulings by the Supreme Court, (8) the justices' behavior often resembles that of a vote-casting legislature at least as much as a court in the usual sense. …