Judicial Accountability and the Fourth Amendment:  An Examination of Republican "Success" in Manipulating the Judicial System

 Craig Curtis
 Department of Political Science
 Bradley University
 Peoria IL 61625
 

A paper prepared for presentation at the 1999 Annual Meetings of the Midwest Political Science Association (revised, Fall 1999).  All rights reserved.


Judicial Accountability and the Fourth Amendment:  An Examination of Republican "Success" in Manipulating the Judicial System

 Abstract

The last years of the Burger Court witnessed a resurgent conservatism on the Court as the retirement of a number of more liberal justices and the continued control of the presidency by Republicans resulted in a dramatic shift to the right.  The expansion of the rights of criminal defendants during the Warren Court and the early years of the Burger Court had created a backlash, and the creation of a judiciary that would, among other things, be "hard" on crime was a top priority for Richard Nixon, Ronald Reagan, and George Bush.  Reagan's efforts were perhaps the most blatant attempt to control the judiciary in our history.  The result was a court that, beginning with United States v. Leon (1984) was increasingly resistant to claims of Fourth Amendment violations by criminal defendants.  A careful analysis of the recent jurisprudence in this area reveals a judiciary that has been fundamentally changed, but not as much as liberals feared and conservatives desired.  For liberals, a few bright spots remain, especially in the increasingly critical way in which Justice O'Connor, a leader among a vital bloc of swing votes, reads the opinions of the more conservative justices on the court, and in the way that Justice Souter has voted on drug testing cases.  The future may not be as bleak as liberals may fear.


Presentation of the Issue

The changes in criminal procedures, among other areas of the law, that were characteristic of the Warren Court, evoked considerable response from conservatives across the nation.  Clearly such activist decisions as Brown v.  Board of Education (1954), Engle v. Vitale (1962), Mapp v.  Ohio (1961), Gideon v.  Wainwright (1963) and Miranda v.  Arizona (1966) had altered the way we educated our children and prosecuted criminals in dramatic ways.  These changes were made rallying cries for two Republican presidential campaigns, Richard Nixon in 1968 and Ronald Reagan in 1980.  Each man vowed to change what they considered to be an overly activist and ideologically unbalanced judiciary.

When Richard Nixon took office in 1968, the Warren Court was in full flower.  Despite his efforts to select ideological conservatives who would be tough on crime to the United States Supreme Court, only one of his appointees (William Rehnquist) ultimately played a key role in that regard, and that not until he was appointed Chief Justice some 15 years after his initial appointment.  One of his appointees, Harold Blackmun, wrote the majority opinion in Roe v. Wade (1973) and remained at the moderate to liberal end of the spectrum until his retirement in 1994.  His new Chief Justice, Warren Burger, was never able to accomplish much in the way of reversal of Warren Court precedent, and some principles were even extended, at least early in his time as the Chief Justice (See, e.g., Coolidge v. New Hampshire, 1971; United States v. Chadwick, 1977, but cf. U. S. v. Leon, 1984).

The election and subsequent administration of  Ronald Reagan marked a key transition in American politics.  Reagan's successful efforts to break apart at least some of the New Deal Coalition meant that not only would the Republicans control the presidency for twelve more years, but they would control the Senate for a period of his administration as well.  His influence on the party is still very much in evidence.  For example, he made it more fashionable to be publicly religious and to openly base one's policy preferences on religious doctrine.  His advocacy of supply side economic theory remains a key part of the Republican policy agenda today.  He and his successor, George Bush, would be able to fundamentally alter the ideological make-up of the judiciary.  It is the purpose of this paper to examine the extent to which the Reagan "revolution" was successful in achieving one of its key goals, i.e., to reverse the Warren Court trend towards granting greater procedural rights to criminal defendants.

The Fourth Amendment jurisprudence is well suited to this analysis because one of the key differences between American society in the 1970s and American society in the 1980s and 1990s is the attitude towards recreational drug use.   Although Nixon tried very hard to wage a war on heroin use, his efforts were not very successful (Silberman, 1978).  Reagan's efforts to change the way that recreational drug use is perceived were more successful.  It is generally regarded as true that issues of exclusion of evidence because of alleged violations of the Fourth Amendment arise more frequently in drug cases than in any other area of the criminal law (Davies, 1983).  While the social science evidence on this point is quite clear that the number of "lost" cases due to the operation of the exclusionary rule is quite low, probably less than 1% (Davies, 1983; Comptroller of the United States, 1979; Nardulli, 1983) conservative rhetoric typically portrays the number of lost cases to be extremely high (Walker, 1998:86-92).  Thus, it was only logical for conservatives to focus their efforts on overturning Mapp v. Ohio (1961).

The power to "check" the judiciary is quite limited.  The president has the power to make appointments, with the advice and consent of the Senate.  Congress has the power to change the very composition of the Court, and of the judiciary itself.  In reality, as Franklin Roosevelt discovered, tinkering with the independence of the Supreme Court by proposing to alter the composition of the Court is fraught with political danger.  This leaves the appointments power, one which has been wielded with varying degrees of success throughout American history.

To check the extent to which changes in personnel on the U. S. Supreme Court have affected substantive outcomes of cases,  Fourth Amendment cases decided by the United States Supreme Court were examined.  This process was made easier by the use of the Legal Information Institute's web site maintained by Cornell University <http://supct.law.cornell.edu/supct/>.  One could make a good argument that the Reagan revolution's effects in this area could only be felt after the last true liberal on the Court was replaced.  This happened in 1991 when Clarence Thomas replaced Thurgood Marshall.  Indeed, the number of cases given full consideration concerning the Fourth Amendment during the interval since Justice Thomas ascended to the high court is so low, only 17, that quantitative analysis of the voting line-up of justices is impractical (see, e.g., Sprague,. 1968).  As such, this paper will rely on the old fashioned content analysis of decisions from U. S.  v.  Leon (1984) to the very recent May 24, 1999 decision in Wilson v. Lane.
 

Political Control Over the Judiciary

Before the results of that research are reported, it would seem proper to briefly examine the scholarly literature on political "control" of the judiciary.  Much research has been devoted to an effort to create solid concepts of activism and restraint, to link these concepts to an ideological continuum, and to document the types of language used by justices having either concept of the proper role of the judiciary (see, e.g,. Halpern and Lamb, 1982; Bobbitt, 1982, Sheldon, 1988).  Perhaps the most famous of these is Philip Bobbitt's (1982) continuum.  However useful this work is for pedagogical purposes, efforts to use these concepts in quantitative research have proved less than successful.  We are left with the idea that some justices believe that the judiciary should not interfere in the policy making process and should simply devote itself to deciding individual cases before it.  The Constitution is to be construed strictly, according to the plain wording of the document and to the intent of the founders.  Its meaning was therefore fixed in time when the language in question became part of the Constitution itself.  These justices were, during the Warren Court era, ideological conservatives.

Other justices believe that the role of the judiciary is more broad, and that the judiciary serves the role of protector of individual liberties from the tyranny of the majority.  Since it is up to the Supreme Court to say exactly what the meaning of the Constitution is, and since societies change in meaningful ways, these activist justices conceive of the Constitution as an evolving document.  In times when the Court itself has been dominated by ideological conservatives, such as the early days of the New Deal, these justices have tended to be  ideologically liberal.    For purposes of the current research, it is important to note such distinctions because of the use of such terms as "activist," "restraintist," and "strict construction," by the political actors involved in the effort to assert executive control over the judiciary.

The case of Minnesota v. Carter (1998) can be used to illustrate the value of these concepts.  In that case, the facts were that an officer, acting on an anonymous tip not rising to the level of probably cause, looked in through the damaged blinds of a window in an apartment and saw two men repacking bulk cocaine into smaller packages for street sale.  The officer left the apartment under surveillance while he went to get a warrant.  The two men were arrested when they left the apartment (the officer had not yet returned with the warrant) and argued that their stop was illegal since it based on knowledge gained from an illegal search, i.e., looking through the window. The majority opinion, written by the Chief Justice, relies heavily on a legal analysis based on the use of precedent to come to the conclusion that the two individuals did not have a legitmate expectation of privacy.  They were in the apartment solely to package bulk cocaine for sale on the street, and not as social visitors. This type of analysis is typical of a restraintist, but is not at the extreme restraint end of the continuum.  Justice Scalia's concurrence, by contrast, is extremely restraintist because it relies solely on a textual argument.  Justice Scalia states that the plain meaning of the text of the Fourth Amendment is that people are protected only in their persons, homes and papers, not in somebody else's apartment.  This is a strict" construction of the Constitution.  Justice Kennedy's analysis, as expressed in his concurrence, follows fairly closely with that of the Chief Justice, with the exception of a slightly different interpretation of precedent.  The uncertainty introduced by reliance on analysis of precendent, as opposed to reliance on a textual argument, is what makes reliance on precedent less restraintist than reliance on textual arguments.  Justice Breyer's concurrence is based on a different view of the facts and, as such, is not relevant for our analysis here.  Justice Ginburg's dissent is an example of a more activist opinion.  Her analysis is based on an attempt to harmonize the concept of legitimate expectation of privacy with common patterns of the usage of property in the 1990s.  This attempt to have constitutional meaning reflect contemporary social behavior is much more typical of activist reasoning.

In retrospect, the conservative backlash against the Warren Court Due Process "revolution" should come as no surprise.  A number of prominent scholars in the area of judicial politics have recognized that the judiciary has some limits to its power that are unique in our system of government (see, e.g., Bickel, 1962).  Charles Sheldon (1988) conceived of the judiciary as forever in flux as it attempted to balance its independence with the need for accountability to the larger political system.  Whenever it went too far in any one direction, the judicial system would suffer in terms of lost legitimacy.  Thus, such decisions as Dred Scott (1857) and Lochner v.  New York (1905) have generally been regarded as poor decisions because the Court was more worried about accountability than independence.  In the opposite extreme, activist decisions such as those listed above, because of their independence, tended to spur efforts to rein in the Court.  These decisions were at odds with popular sentiment and tended to force governments to do things that the citizens did not want done such as eliminate prayer in the public schools, pay for legal representation for indigent criminal defendants, and limit the discretion of the police to search for evidence of crime.

In an effort to permanently change the judiciary on these, and other issues, Ronald Reagan undertook more careful personal control of the judicial appointments process than any president before him (Goldman, 1985; Fowler, 1984).  He required that appointees be tough on crime, strict constructionists, pro-family, and anti-abortion (American Bar Association Journal, 1985, Goldman, 1985).  He even encroached on the Senate prerogative of having Senators of the president's own party (or the ranking member of the House) select District Court nominees.  He purposely selected relatively young nominees so as to maximize the length of time that his policies would affect the judiciary, and he cared little for the rankings of the American Bar Association.  While attempts to act strategically in the effort to appoint justices that will think and act like the president who appoints them are the norm (Moraski and Shipman, 1999; Perry and Abraham, 1998; Watson and Stookey, 1995; Rehnquist, 1985), Reagan's efforts set a new standard for explicitness in using ideological "litmus" tests.  The most far reaching appointments that he made were in 1986, when the very conservative Associate Justice Rehnquist was elevated to Chief Justice and the very conservative Antonin Scalia was appointed to the Court.
 

The Significance of U. S. v.  Leon

The decision in U. S. v. Leon (1984) at first glance does not seem to be very important.  Indeed, the basic principle of that case is that the exclusionary rule shall not apply when the police make a "good faith" error.  In that case, the error was a search warrant that looked valid on its face, but was later determined to be invalid.  This in itself seems as though it would apply only in a few cases wherein a clerical error led to a mistaken search.  What was much more significant, however, was the rationale by which the Court reached its conclusion.  Justice White, joined by 5 other justices, stated that the rule was not constitutionally mandated.  Rather, the sole rationale for the exclusionary rule was to deter misconduct by the police.  There was precedent for this position prior to the decision in Mapp (1961), in the 1948 case of Wolf v. Colorado, wherein the Fourth Amendment was incorporated into the Fourteenth, but the exclusionary rule was not.  The majority opinion in Mapp would seem to indicate that the rationale for the existence of the rule lay on a much more broad foundation.  An oft cited law journal article written by Justice Stewart (1983) asserts that a right without a remedy has no substance.  Therefore, the requirement is inherently part of the Fourth Amendment.  The Editors of the Northern Illinois University Law Review (casenote, 1985) suggest three possible justifications for the exclusionary rule.  These are: 1) the rule serves to protect the integrity of the judicial system. The court which admits evidence obtained through illegal means becomes a party to the illegal act; 2) deterrence of official misconduct; and, 3) the admission of the evidence is a new violation of the rights of the accused (casenote, 1985).  Taken together, all these justifications  provide a seemingly sound argument that the rule is constitutionally mandated and justified not only by deterrence of police misconduct, but also by the need to protect the privacy rights of law abiding citizens, and the need to preserve the legitimacy of the court system itself.  Justice Stevens' view as expressed in a significant number of dissenting opinions (including U. S. v. Leon, 1984; Arizona v.  Evans, 1995; Wyoming v.  Houghton, 1999; and Florida v. White, 1999) is that the rule rests on a much broader foundation than that accepted by the majority of the Court today.

Despite the language in Weeks v.  U. S. (1914), the case in which the exclusionary rule was announced, in Mapp (1961), and in the scholarly work of a noted Republican Supreme Court Justice (Stewart, 1983), the Court has embraced this very limited rationale for the existence of the exclusionary rule.  The origins of this attack on the underlying justification of  the exclusionary rule can be traced to Chief Justice Berger's dissent in Bivens v.  Six Unknown Federal Agents (1971).  The majority opinion in U. S.  v. Calandra (1974) relied on a cost-benefit analysis that balanced the liberty interests of the accused against the state's interest in prosecution of the guilty.  The rule is to be applied where to do so would serve to deter official misconduct and where the liberty interests of the accused are strong.  The cost-benefit approach used in Calandra was cemented into place when the Court announced the good faith exception to the exclusionary rule in U. S. v.  Leon (1984), and is commonly used in deciding Fourth Amendment cases (see, e.g., Wilson v. Lane, 1999; Pennsylvania Board of Probation and Parole v.  Scott, 1998; Maryland v. Wilson, 1997; and Minnesota v. Carter, 1998) .  Justice Stevens seems isolated from the rest of the Court in rejecting this cost-benefit approach, despite the fact that his arguments are well founded in both theory and precedent.  The impact of this change of rationale has been greater than one might think at first glance.
 

Extensions of U. S. v. Leon

The history of Supreme Court jurisprudence is full of examples of situations wherein major cases are followed by refinement of the principles announced in that case in later cases.  Thus, changes in the meaning of the Constitution can occur in dramatic fashion, as in Brown v.  Board of Education (1954) or in U. S. v.  Leon (1984) or by a slower process of refinement.  This latter process serves better to protect the Court from political controversy.  Indeed, the norms and rules inherent in legal training that serve the ends of judicial restraint are well documented elsewhere (Bickel, 1962; Bobbitt, 1982).  For example, in the area of the law surrounding execution of search warrants, a number of incremental changes were made by recent cases.  In both Wilson v.  Arkansas (1995) and U. S. v.  Ramirez (1998), the Court let stand practices that would likely make a Montana Freeman cringe, but which were simply common practices taken just one little step further.  To show that this process is slow and often takes the form of two steps forward and one step back, the reader is advised to review the case of Richards v.  Wisconsin (1997) in which the Court ruled that there is no general rule that excuses law enforcement officers from the knock-and-announce requirement in felony drug cases.

In the aftermath of the Leon decision, a process of gradually enlarging its reach, and consequently eroding the impact of the exclusionary rule, occurred.  For example, in the case of Maryland v.  Garrison (1987) a search was upheld when the police made a good faith error with regard to the address of the premises to be searched.  In Illinois v. Rodriguez (1990) the court held that when police reasonably believe that a third party has authority to give consent to search shared premises, a search pursuant to that consent will be valid, even if that third party did not have such authority.  In Arizona v.  Evans (1995) the Court held that evidence seized in a search incident to an arrest made pursuant to an arrest warrant that had been quashed several months before would not be excluded.  In that case, the error was a clerical one made by employees of the local court system, who had failed to notify the police that the warrant had been quashed.

Two recent cases illustrate the significance of the holding in U. S. v. Leon (1984) that the sole justification for the exclusionary rule is to deter police misconduct.  In Pennsylvania Board of Probation and Parole v.  Scott (1998), the Court held that the use of evidence seized by parole officers in violation of the rights of the parolee would not be excluded from administrative hearings regarding the parolee's status (i.e., whether the parolee would go back to prison).  The rationale of that case was that the purpose of deterring police officers would not be served since the proceeding is not a criminal one.  Moreover, since the exclusionary rule is a prudential one only, rather than being constitutionally mandated, a balancing of interests would occur.  This balance swings hard against parolees since the government interest in protecting law abiding citizens from the predation of convicted felons is so high.  In Florida v. White, (1999) the issue was whether the seizure of a vehicle without a warrant was permissible.  The officers had observed the vehicle being used in a drug transaction two months earlier and this might well have been sufficient evidence to convince a court to order forfeiture of the property.  Thus, the court reasoned, since the officers could reasonably have believed that the vehicle was subject to forfeiture, the vehicle itself became contraband.  However, no court had ordered the forfeiture of this vehicle.  The holding apparently allowed the officers to use their legal opinion regarding the outcome of a potential lawsuit as a substitute for a valid judgment of a court on the matter of whether the property was forfeit under the applicable Florida law.

The cases of Florida v. White (1999) and  Pennsylvania Board of Probation and Parole v.  Scott (1998) are especially significant in that neither case involved any good faith error at all.  In the Pennsylvania case, the parole officers' search was clearly not based upon probable cause or on a warrant.  A well trained law enforcement officer should know that such a search is a Fourth Amendment violation.  Granted one might make the argument that accepting parole status creates a consent to such searches, but such an argument was not necessary for the Court to reach its decision.  Rather, the decision rested on the premise laid out in U. S.  v.  Leon (1984) that the sole justification of the exclusionary rule was its tendency to deter the police from engaging in constitutional violations while investigating criminal activity.  Similarly, in Florida v. White, the officers did not mistakenly believe that the car was subject to forfeiture.  The officers were allowed to substitute their judgment for that of a court on the issue of whether the car was forfeit.  Because, in the judgment of the officers, the state would likely have won a lawsuit in which the forfeture of the vehicle was sought, the officers were allowed to seize it without any other justification.
 

Cars and Warrantless Searches

The advent of the automobile has long caused courts to consider about the effects that ease of mobility would have on the ability of criminals to engage in deviant behavior.  As a consequence, an exception to the warrant requirement has been carved out for searches of cars.  When a police officer has probable cause to believe that evidence of a crime will be found, he or she can search the car (Carroll v.  U. S., 1925)  and containers found therein (U. S.  v.  Ross, 1982).  Additionally, whenever a car is to be impounded, an inventory search of the car is also allowed and the fruits of that search are admissible evidence in a criminal trial (South Dakota v.  Opperman, 1976; Illinois v.  Krull, 1987).   Thus, the police have very wide latitude in searching motor vehicles.

Several recent cases have expanded the reach of this power in incremental ways that, taken together, represent a significant increase in the discretion of the police.  In Florida v. Jimeno (1991) and California v.  Acevedo (1991), the court expanded the ability of the police to search containers found in a car without first seeking a separate warrant for that container as had been previously required in some cases (see, e.g., Arkansas v.  Sanders, 1979).  In Whren v.  U. S. (1996), the Court upheld a search based on the automobile exception to the warrant requirement even though the original traffic stop was merely a pretext to search for drugs.. The officers lacked probable cause to believe that drugs would be found in the car, but the stop was justified by the officers observing a minor traffic violation.  In Maryland v.  Wilson (1997), the Court held that a police officer may order passengers out of the car during a routine traffic stop.  Prior to this case, the police could certainly order drivers out of the car, but not necessarily passengers.  In Wyoming v.  Houghton (1999) the Court held that the police may search containers within the car known to belong to passengers.  In that case, the search was of a woman's purse.  In Florida v. White (1999) the Court allowed the seizure of a vehicle on the theory that the officers could reasonably believe that the car was subject to civil forfeiture under Florida law.  In Maryland v. Dyson (1999), in a per curiam opinion, the Court saw fit to chastise the Court of Special Appeals of Maryland for holding that a warrantless search of an automobile was impermissible because the officers in question had ample time to get a warrant, but choose not to do so.  Lest a casual observer think that the Court never decides cases in favor of the accused in a case involving an automobile, in Ornelas v.  U. S. (1996) the Court was careful to state that appellate review of warrantless searches would still be thorough, and the justices would take a new look at the facts as opposed to merely trusting the trial court's interpretation.
 

Drug Testing

While Richard Nixon clearly wanted to eliminate drug use, his efforts to do so were not effective (Silberman, 1978).  The Reagan Administration, and its successor, the Bush Administration, took significant steps and invested billions of dollars toward the goal of fighting a "war" on drugs.  By the time of the Bush Administration, a powerful new office, that of the Director of National Drug Control Policy had been created and total budget expenditures on the "war" on drugs for fiscal year 1990 would exceed eight billion dollars (Tindall and Shi, 1998:1634).  During that time, employers in both the private and public sectors began the practice of drug testing as a condition of employment.  While the use of this practice by private employers creates no federal constitutional issue, the use of the practice in the public sector does.  Challenges to required drug testing in the federal work place led to two significant lawsuits, Skinner v. Railway Labor Executives Association (1989) and National Treasury Employees Union v. Von Raab (1989).  The holdings of these two cases yield two main principles. First, drug testing was held to be a search within the meaning of the Fourth Amendment.  The significance of this is that the burden of justifying the search then falls on the government.  Second, drug testing was held to be acceptable in two instances, where there was individualized suspicion of drug use by an employee, and where the job was such that there was a significant government interest in the employee being drug free.  Thus, law enforcement officers, employees who operate potentially dangerous equipment or who operate vehicles on the public thoroughfares could be subject to random drug testing, but not all employees.

These issues came up again in two contexts most recently.  In the case of Veronia School District 47J v. Acton (1995), a junior high school student challenged his school district's ability to force him to subject himself to a drug test as a pre-condition for playing football.  The six member majority had very little difficulty in deciding that the privacy interest of student were quite weak compared to the horrors that drugs were wreaking in this particular school district.  The dissents were quite bitter.  Following the rationale in the seminal case of New Jersey v. T.L.O. (1983) the court made it clear once again that the rights of children are of lesser significance than adults and that this is doubly so when they are in school.  By contrast, the case of Chandler v. Miller (1997) reached an opposite result in holding that the State of Georgia could not require all candidates for state office to provide proof of a negative drug test.  In neither case was the search based on any individual suspicion.  A good conflict criminologist would likely interpret these results as evidence that elites in society are often placed above certain onerous legal requirements.

It is significant to note that Justice O'Connor was among the dissenters in the Veronia School District case and in the majority in Chandler.  As long ago as 1987, Justice O'Connor began to have some doubts about the extent to which the Court had gone too far in restricting the Fourth Amendment rights of the accused in drug cases (Illinois v. Krull, 1987; Florida v. Riley, 1989).  While she was not a signatory to Justice Marshall's stinging criticism in dissent in the case of U. S. v. Sokolow (1989), one might speculate that she is not unsympathetic:

 The majority's hasty conclusion ... serves only to indicate its willingness, when drug crimes or anti-drug policies are at issue, to give short shrift to constitutional rights . . .  (U. S. v. Sokolow, 1989:  Marshall dissenting).

Her votes in Chandler v. Miller (1997) and Veronia School District 47J v. Acton (1995) may well be due to a perception that the Court is too unbalanced and might well suffer a loss of legitimacy if it goes too far towards the extreme right.
 

Extension of Terry v.  Ohio

The famous case of Terry v. Ohio (1968) is a case that has spawned many small extensions over the years.  Indeed, the general trend is to allow the police great leeway in conducting limited investigatory stops and limited searches on a mere showing of reasonably articulable suspicion, not even rising to the level of probable cause.  The aforementioned case of U. S. v. Sokolow (1989) is a prime example of police using a set of shortcut decision rules to stop and detain suspects.  The use of the Drug Courrier Profile by the DEA has been widely accepted by the Courts, but cannot survive close inspection by a critical observer.  A skilled officer may make virtually anyone they choose fit into the profile.  A similar rationale was employed by the officer who stopped the accused in the case of Whren v. U. S. (1996).  In that case, the officers were patrolling in a "high drug area" and observed the suspects waiting in a car.  Once the suspect became aware of the police officers' presence, they left in a hurry, violating a traffic law (they turned without signalling).  They were stopped and the officers observed crack cocaine in Whren's hands as they approached the vehicle.  The officers did not have probable cause to believe that the persons in the car were engaged in drug sales or use, but they did "know" that drugs were involved and acted upon that suspicion.  The Court held that any legal justification for a traffic stop, no matter whether it is merely a pretext, is sufficient to justify the detention.  Once detained, the escalation of the incident into a full blown arrest and drug investigation was an easy matter for the experienced police officers in question, and the Court had no problem with that escalation.

The Courts have been willing to allow the police to engage in a number of tactics that many law abiding citizens would likely find offensive in their search for drugs.  In these situations, the officers lack even a reasonably articulable suspicion, but the conduct is not held to be illegal.  For example, in the case of Florida v. Bostick (1991), the routine practice of boarding common carrier buses and asking passsengers for permission to search luggage was upheld.  In the case of Ohio v. Robinette (1996) the Court had no difficulty in upholding the practice of routinely investigating whether anyone stopped in a routine traffic stop was carrying contraband, regardless of the fact that the officer had no individualized suspicion regarding the accused.  In Maryland v. Wilson (1996) the Court upheld the practice of detaining the passengers of a vehicle stopped for a routine traffic stop rgardless of the lack of individualized suspicion. Lest the reader think that all these cases have gone in favor of the state, in the case of Minnesota v. Dickerson (1993), the Court did strike down a search that went beyond the permissible scope of a limited search pursuant to Terry v. Ohio (1968).
 

Some Unexpected Outcomes

The Republican goals of overturning a wide range of Warren Court precedents has not been realized.  For example, Mapp v. Ohio (1961) is still good law, despite the exceptions carved out to the exclusionary rule and to the warrant requirement.  Miranda v. Arizona (1966) is still good law, despite being attacked repeatedly.  Gideon v. Wainwright (1963) is still good law and poor criminal defendants still get legal representation at no cost to them.  Of the 17 cases concerning the Fourth Amendment that have been decided since the last true liberal left the Court, 5 have been decided in favor of the defendant.  In the case of Wilson v. Lane (1999), even though the Court upheld the qualified immunity from civil suit of the deputy federal Marshals and local sheriff's deputies in question, the Court was unanimous in holding that the officers in that case had violated the Fourth Amendment rights of the occupants of a private home when they brought in a newspaper reporter and photographer with them when they attempted to execute an arrest warrant.  Three of the Republicans on the Court, Stevens, Souter and O'Connor, have been notable in dissent on some key cases.  For example, Stevens' objection to the basic underlying rationale of U. S. v. Leon (1984) has been well documented above, and he was in dissent in all three of the Fourth Amendment cases decided in 1999.  O'Connor's unease with the court's seeming willingness to apply a different standard when drugs are involved, as noted above, is also significant.  Justice Souter was among the dissenters in Minnesota v. Carter (1998), Wyoming v. Houghton (1999) and Pennsylvania Board of Probation and Parole v. Scott (1998), and saw fit to qualify his concurrence in Florida v. White (1999).

Nothing in this analysis suggest that the conventional wisdom regarding the voting blocs (see,e.g., Perry and Abraham, 1998) on the current Court does not hold true for Fourth Amendment cases.  The three conservatives (Rehnquist, Scalia and Thomas) pretty consistently vote with the prosecution.  Justices Rehnquist, Scalia and Thomas voted together on thirteen out of the seventeen most recent Fourth Amendment cases examined.  The cases in which they did not vote as a bloc are: Powell v. Nevada (1994); Ornelas v. U. S. (1996); Chandler v. Miller, (1997);  and Minnesota v. Dickerson (1993).  The swing bloc of  moderate to conservative Republicans (O'Connor, Kennedy and Souter) have some doubts about the more extreme rationales offered in some cases (especially Justice Souter), and the three moderate to liberal justices (Stevens, Breyer and Ginsburg) do not present a united front.  Stevens seems to be most frequently isolated justice, but his stance can be explained by the fact that he was simply more liberal than his other Republican brethren in the first place, having been the product of a very different Republican Party than now exists.  Justice Souter's votes in some of these cases are a little harder to explain, although one could argue that he was a moderate to begin with and that, given the earlier failure to confirm Robert Bork, that it was clear to President Bush that a Democratic Senate was not going to allow a truely conservative ideologue to be appointed (See. e.g., Moraski and Shipman, 1999).  Justice O'Connor's stance is harder to explain.  She was a prize pick of Ronald Reagan early in his first term, and had impeccable conservative credentials at the time.  She may have moderated while serving on the Court.
 

Conclusion

The bottom line is that the self-conscious efforts by the Republican party to remake the judiciary in its own image were not as successful as they had hoped.  Signficant changes in the personnel who serve in the judiciary, especially on the Supreme Court, have been made, and, from the perspective of a liberal, there has been significant erosion of rights.  Still, significant victories for liberals remain.  Perhaps the most surprising area is drug testing.  While public sector employees in many areas are drug tested, there are important limits on that practice, and the Chandler decision, while largely symbolic, is heartening to liberals and libertarians.

The future behavior of Supreme Court nominees has long been hard to predict (Watson and Stookey, 1995:66-71).  As time passes and an individual justice feels that the Court is going too far in either ideological direction, that justice may alter their voting patterns in an attempt to counteract the trend.  These people are careful guardians of their traditions and the Court as an institution.  Additionally, divided government may well mean that a president's power to appoint ideologically compatible justices is limited (Moraski and Shipman, 1999).  This seems to have been the case with the appointments of Justices Kennedy and Souter.  The prospects for the future are a Court that leans towards the right, but not as far as conservatives hoped.

The prospects for a vacancy in the near future on the Court are fairly small (Perry and Abraham, 1998), unless Justice Ginsberg's colon cancer is more severe than is apparent from news media reports. Only Justices Rehnquist and Stevens are above age 70.  While replacement of Justice Rehnquist by a Democratic President holds some promise of moving the Court to the left, the replacement of Justice Ginsburg with another moderate would have little effect, and the replacment of Justice Stevens with a moderate Democrat might even move the court to the right.  Thus, the year 2000 presidential election does not, as did the 1980 election, offer a presidential aspirant the prospect of  significantly altering the ideological composition of the Supreme Court. 


List of Cases Cited

Arkansas v.  Sanders, 442 US 753 (1979).

Arizona v.  Evans, 514 US 1 (1995).

Bivens v.  Six Unkown Federal Narcotics Agents, 403 US 388 (1971).

Brown v.  Board of Education, 347 US 483 (1954).

California v.  Acevedo, 500 US 565 (1991).

Carroll v.  United States, 267 US 132 (1925).

Chandler v.  Miller, 520 US 305 (1997).

Coolidge v. New Hampshire, 403 US 443 (1971).

Dred Scott v.  Sanford, 10 Howard 393 (1857).

Engle v. Vitale, 370 US 421 (1962)

Florida v. Bostick, 501 US 429 (1991).

Florida v. Jimeno, 500 US 248 (1991).

Florida v. White, No. 98-223,  ____ US ____ (1999).

Florida v. Riley, 488 US 445 (1989).

Gideon v.  Wainwright, 372 US 335  (1963).

Illinois v.  Krull, 480 US 340 (1987).

Illinois v. Rodriguez, 497 US 177 (1990).

Lochner v.  New York, 198 US 45 (1905).

Mapp v.Ohio, 367 US 643 (1961).

Maryland v. Dyson (per curiam), No. 98-1062, ____ US ____ (1999).

Maryland v. Garrison, 480 US 87  (1987)

Maryland v.  Wilson, 519 US 408 (1997).

Minnesota v. Carter, No. 97-1147, ____ US ____ (1998).

Minnesota v.  Dickerson, 508 US 366 (1993).

Miranda v.  Arizona, 384 US 436 (1966).

National Treasury Employees Union v. Von Raab, 489 US 656 (1989).

New Jersey v.  T.L.O., 469 US 325 (1983).

Ohio v.  Robinette, 519 US 33 (1996).

Ornelas v.  United States, 517 US 690 (1996).

Pennsylvania Board of Probation and Parole v.  Scott, No.  97-581, ____ US ____ (1998).

Powell v.  Nevada, 511 US 79 (1994).

Richards v.  Wisconsin, 520 US 385 (1997).

Roe v.  Wade, 410 US 113 (1973).

Skinner v. Railway Labor Executivess Association, 489 US 602 (1989).

South Dakota v.  Opperman, 428 US 364 (1976).

Terry v.  Ohio, 392 US 1 (1968).

United States v.  Calandra, 414 US 338 (1974).

United States v. Chadwick, 433 US 1 (1977).

United States v. Leon, 468 US 867 (1984).

United States v.  Ramirez, No.  96-1469, ____ US ____ (1998).

United States v.  Ross, 456 US 798 (1982).

United States v.  Sokolow, 490 US 1 (1989).

Veronia School District 47J v.  Acton, 515 US 646 (1995).

Weeks v.  United States, 232 US 283 (1914)

Whren v.  United States, 517 US 806 (1996).

Wilson v.  Arkansas, 514 US 927 (1995).

Wilson v. Lane, No. 98-83, ____ US ____ (1999).

Wolf v.  Colorado, 338 US 25 (1949).

Wyoming v.  Houghton, No 98-184, ____ US ____ (1999).
 

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