In my FindLaw column appearing today, I discuss the recent Supreme Court decision in Herring v. United States, which held that when a police officer carries out an arrest without probable cause and without a warrant, on the basis of an erroneous entry on a sheriff's office computer listing outstanding arrest warrants, the evidence that results from the search and seizure will be admissible at the trial of the person erroneously searched. In my column, I discuss the "good faith" doctrine which, up until now, has provided an exception to the Fourth Amendment "exclusionary rule" (which suppresses illegally obtained evidence) for errors that resulted from objectively reasonable reliance by a police officer on a non-law-enforcement actor who made the mistake in question, such as a magistrate, a clerk of court, or a legislature. In this case, for the first time, a law enforcement agency can be the source for the error on which the police officer relies without compromising the admissibility of the resulting evidence. My column focuses on the likely incentive effects of this extension.
In this post, however, I want to focus on what I view as the dishonesty of the Supreme Court's approach to this and other issues. The Court is plainly engaged in a process of gutting the Fourth Amendment exclusionary rule. Indeed, the Court acknowledges that applying the rule in the case before it would have some deterrent effect but that the deterrent is not worth the cost here. Tellingly, the majority (a 5-4 majority) indicates that the exclusionary rule has always been a "last resort," thus ignoring the fact that from its inception, the exclusionary rule was meant to apply to Fourth Amendment violations with a limited set of exceptions. Rather than say, however, that there is -- so to speak -- a new sheriff in town who wishes to do away with the exclusionary rule, Chief Justice Roberts maintains that he is following existing precedents rather than staking out a new approach. The pretense seems calculated, much in the way that Chief Justice Roberts's praise of stare decisis at his confirmation hearings seemed calculated, to reassure the audience that nothing has changed.
Why bother, though? No one who cares about the exclusionary rule is fooled (though many, I suspect, were fooled by the apparently moderate rhetoric during the Chief Justice's confirmation tesitmony; our current President, of course, was not fooled). One possibility is that the Chief Justice believes his own story. He views the Constitution differently from those on the left and in the center, but he is not going to overrule long-standing case law because he has too much respect for the institution of the Court to do that. Instead, he will simply "develop" the law in new directions when it comes to cases that have not been decided before. Open questions will be closed in a manner that might seem radically at odds with the logic of yesterday, but the Supreme Court never explicitly held to the contrary.
The same could be said for the Court's current approach to abortion. Though the Court had, not very long ago, struck down a so-called "partial-birth abortion" ban that did not provide a "health of the mother" exception, the "new" Supreme Court upheld a virtually identical statute, making arguments (including the paternalistic idea that women who seek an abortion don't realize what they are doing) that are utterly inconsistent with the arguments that animated prior cases. Nonetheless, the Court did draw a window-dressing sort of distinction between the two statutes, such that it would be (sort of) inaccurate to say that the later partial-birth abortion case had overruled the earlier one. It is possible, again, that the new Justices on the Court (Roberts and Alito) believe they are respecting prior precedents by drawing distinctions, but the respect is hollow and unconvincing, much in the way that when someone says "with all due respect," he clearly means to say that almost no respect is actually due.
Based on these observations, I would tentatively describe Chief Justice Roberts's jurisprudence as "passive-aggressive." That is, the language overtly respects the boundaries drawn by existing law but covertly does not. As an "aggressive-aggressive" Justice, Scalia has shown impatience and annoyance at the Roberts approach to dismantling precedents. But passive-aggression can sometimes be more effective and more lethal than Justice Scalia's more candid alternative. For those of us who find the Roberts agenda frightening and dispiriting, there is little comfort to be had in Roberts's plausible deniability.
Posted by Sherry Colb