By Matthew Tokson
Now that American politics has returned to something resembling normalcy, it's a good time to consider the future of the Supreme Court in the Biden era. Eric Segall recently previewed the direction that the Court is likely to take over the next several years. As he convincingly argues, on issues like abortion, regulation of business, civil rights, affirmative action, voting rights, and many others, the Court's rulings will likely shift from conservative to very conservative. On a theoretical note, I'd add that increasing polarization and the expanding politicization of policy issues will likely shrink the sphere of legal issues where party affiliation is irrelevant. To be sure, the recent resolution of cases like Trump v. New York suggests that the Court may exhibit meaningful restraint in adopting radical changes to existing laws or constitutional practices. But generally, the Court's strong rightward tilt will drive outcomes in most of the ever-growing proportion of cases with a strong political valence.
In the Fourth Amendment context, however, there is less polarization--and substantial ambiguity. Justices Barrett and Kavanaugh are a particular enigma here, as they've decided few or no Fourth Amendment cases since joining the Court. And Fourth Amendment search law was undergoing dramatic changes even before the Court's composition changed. In this post, I'll describe some mysteries about the future direction of Fourth Amendment law and make some evidence-based predictions about the new Justices' approaches to future cases.