A paper prepared for presentation at the 1999 Annual Meetings of the Midwest Political Science Association (revised, Fall 1999). All rights reserved.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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).
Bobbitt, Philip J. (1982) Constitutional Fate: Theory of the Constitution. New York: Oxford University Press.
Comptroller General of the United States (1979) Impact of the Exclusionary Rule on Federal Criminal Prosecution. Washington D.C.: General Accounting Office (ggd-79-45).
Davies, Thomas Y. (1983) "A Hard Look at What We Know (and Still Need to Learn) About the ‘Costs' of the Exclusionary Rule: The NIJ Study and Other Studies of ‘Lost" Arrests," American Bar Foundation Research Journal, 1983:611-690.
Editors, American Bar Association Journal (1985) "Reagan Molds the Federal Courts in his Own Image," American Bar Association Journal, 71(August):60-64.
Editors, Northern Illinois University Law Review (1985) "Casenote: United States v. Leon: The Adoption of Justice White's Good Faith Exception to the Exclusionary Rule," Northern Illinois University Law Review, 5:335.
Fowler, W. Gary (1984) "Judicial Selection under Reagan and Carter: A Comparison of their Initial Recommendation Procedures," Judicature, 67(6):265-283.
Goldman, Sheldon (1985) "Reaganizing the Judiciary: The First Term Appointments," Judicature, 68(9-10):313-329.
Halpern, Stephen and Charles Lamb (1982) Supreme Court Activism and Restraint. Lexington, MA: Lexington Books.
Moraski, Bryon J. and Charles R. Shipman (1999) "The Politics of Supreme Court Nominations: A Theory of Institutional Constraints and Choices," American Journal of Political Science 43(4):1069-1095.
Nardulli, Peter F. (1983) "The Societal Costs of the Exclusionary Rule: An Empirical Assessment," American Bar Foundation Research Journal, 1983:585-609.
Perry, Barbara A. and Henry J. Abraham (1998) "A 'Representative' Supreme Court? The Thomas, Ginsburg, and Breyer Appointments," Judicature 81(4):158-165.
Rehnquist, William H. (1985) "Presidential Appointments to the Supreme Court," Constitutional Commentary, 2(2):319-330.
Sheldon, Charles H. (1988) A Century of Judging: A Political History of the Washington Supreme Court. Seattle: University of Washington Press.
Silberman, Charles (1978) Criminal Violence, Criminal Justice. New York:Vintage Books.
Sprague, John (1968) Voting Patterns of the United States Supreme Court: Cases in Federalism, 1889-1959. Indianapolis: Bobbs-Merrill.
Stewart, P. (1983) "The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases," Columbia Law Review 83:1365.
Tindall, George Brown, and David E. Shi (1998) America: A Narrative History (5th edition). New York: W. W. Norton.
Walker, Samuel J. (1998) Sense and Nonsense About Crime and Drugs in America: A Policy Guide (4th Edition). Belmont, CA: West/Wadsworth.
Watson, George, and John A. Stookey (1995) Shaping America: The Politics of Supreme Court Appointments. New York: Harper Collins.