Terry V. Ohio in Hindsight: The Perils of Predicting the Past
Bandes, Susan, Constitutional Commentary
Making a hit list of wrongly decided cases is fun and easy: mine includes Ex parte McCardle, the Slaughter-House Cases, Younger v. Harris, McCleskey v. Kemp, DeShaney v. Winnebago County, City of Los Angeles v. Lyons, Bowers v. Hardwick and others too numerous to mention. At first, I fancied that tracing the consequences of their obliteration would be easy too. I was sure I could show, for example, in straight linear progression, why Hans v. Louisiana should never have been decided, and how only good consequences (greater government accountability and a far more cogent eleventh amendment jurisprudence) would have followed. At the time, that seemed almost too easy, and so I decided to play the game using what seemed a harder case: Terry v. Ohio.(1) Now that I have given substantial thought to the possible consequences of Terry's obliteration, and have immersed myself in chaos theory for nearly a week,(2) I suspect that the argument in the other cases would have been more complex than I originally thought. As to Terry, the complexity of the analysis is daunting. It raises questions about many things: from the ways in which law professors use knowledge from other disciplines, to the feasibility of hindsight analysis, to the interactions among the many complex systems affected by constitutional rulemaking.
It's a tough call whether to obliterate Terry. The question can't be whether Terry was correct when decided, because there is no way, from our current vantage point, to ignore more than thirty years of evidence about how it has worked in practice. The rules of this game don't deprive us of our historical knowledge (indeed time travel was specifically mentioned) so the question must be: in light of what we know now, would we have been better off without the Terry decision? The question is complicated by the fact that during the time we were accruing evidence about the effects of stop and frisk, we were also gaining a less linear, more sophisticated understanding of the laws of cause and effect.
Chaos theory studies the behavior of dynamic systems, or systems that are not in constant equilibrium. It posits that in such systems, cause and effect are not linear or proportionate-instead, seemingly minor causal agents may lead to disproportionately major effects. The connection among forces in a system may even appear random, though over time more complex and subtle patterns may appear. But even these patterns will not be exactly duplicative because each recurrence takes place in a different environment. Moreover, individual systems do not exist in isolation, but are themselves part of a complex environment that is in a continual state of flux. Changes result from the interaction of many forces that are constantly changing, as are the interactions among them.(3)
It does seem that chaos theory offers some important lessons here. Take the question: what would have occurred if Terry had never been decided.(4) Several interdependent systems would be affected by this disturbance.(5) But before reviewing all the possible interactions, let's examine the choices before the Supreme Court in 1968.
Terry v. Ohio was widely viewed as a compromise. Civil libertarians had urged the Court to keep in place the traditional Fourth Amendment structure, which required that searches and seizures be accompanied by probable cause and either a warrant or an exception to the warrant requirement.(6) This path would most likely have meant holding stops and frisks invalid, since police with probable cause could simply arrest and perform a more intrusive search incident to arrest.(7) The Court's solution(8)--bringing the practice within the Fourth Amendment by severing the warrant clause from the reasonableness clause and holding that certain categories of police conduct need only be reasonable--was billed as a middle ground between the civil libertarian position and the position that stops and frisks weren't Fourth Amendment activity at all. …