The following is a series of questions posed by Orin Kerr to Tracey Maclin on the occasion of the publication of The Supreme Court and the Fourth Amendment’s Exclusionary Rule (Oxford University Press, 2012).

Welcome, Tracey.  Thank you for taking the time to participate in this Question and Answer exchange for our readers.  And congratulations on the publication of your book. 

Question:

What inspired you to write a book on the exclusionary rule?

Answer:

Often lawyers and law students ask me to explain what the Justices were thinking when they decided a particular Fourth Amendment case. Before I started the book, I would provide an answer based on the Court’s opinion. After having taught constitutional law and criminal procedure for over twenty-five years, I have learned, however, that although a Court opinion might provide the justification for a particular result, that opinion may not reveal the motivations for the decision. I decided it was time to read the Justices’ private papers to determine the motivations behind their exclusionary rule decisions.

Question:

There is a voluminous scholarly literature on the exclusionary rule found in the law reviews. What makes your book different?

Answer:

Many law review articles describe the state of the law or critique the results of particular rulings. My book focuses on the thoughts and motivations of the Justices when they were deciding questions about the exclusionary rule. Although there is some criticism of the Justices’ rulings, that is not the focus of the book. Rather, my goal is to objectively describe what the Justices were thinking as they decided the cases. Rarely do law review articles examine the motivations behind the Justices as revealed in their private papers.

Question:

You did an enormous amount of research in the private papers of various Justices. Of all you read, what surprised you the most?

Answer:

Several things stand out after reviewing the private papers. First, Chief Justice Warren Burger was determined to repeal the exclusionary rule. In several cases where the rule was not at issue, Burger would propose repealing the rule during the Conference discussion after oral argument. He also frequently lobbied Justice Lewis Powell to eliminate the rule.

Justice Harry Blackmun’s papers also reveal his fierce opposition toward the rule. When Blackmun retired from the Court, he was beloved by many political liberals. However, Blackmun’s views on suppression were hardly “liberal.”

Justice Potter Stewart’s views on exclusion were also intriguing.  In 1983, after his retirement from the Court, Stewart gave a speech at Columbia Law School in which he stated that exclusion, although not required by the Fourth Amendment itself, was nonetheless a constitutionally required remedy. I found many comments and statements by Justice Stewart, however, that suggested that he did not view exclusion or Mapp v. Ohio as constitutionally required or sound judge-made law.

Question:

Which of the Justices have had the strongest impact on the scope of the exclusionary rule? And to the extent that you can say, what shaped their own views on the subject?

Answer:

After reaching a high-water mark in Mapp v. Ohio, which in 1961 mandated suppression in state cases, the exclusionary rule has been subjected to constant contraction. Thus, the Justices with the strongest impact are those who have since restricted the scope of the rule.

First, Justice Felix Frankfurter must be acknowledged as the anti-suppression “Godfather.” In 1949, Frankfurter convinced a majority of the Court to resist imposing the exclusionary rule on the states in Wolf v. Colorado.  While Wolf was later overruled in Mapp, Frankfurter’s opinion outlined the intellectual blueprint for opposing exclusion, and much of his reasoning is still utilized to oppose exclusion by the Justices today. Frankfurter introduced deterrence as the basis for the rule, although he doubted the rule actually deterred illegal searches by the police. Curiously, unlike some of the current conservative Justices, Frankfurter was willing and ready to impose exclusion in federal cases. I think Frankfurter’s views on exclusion stemmed from his views on federalism generally and his opposition to the application of the Bill of Rights to the states.

Both as a Justice and then as Chief Justice, William Rehnquist also deserves a lot of credit for the current status of the exclusionary rule. In United States v. Peltier, Justice Rehnquist intentionally incorporated language into his opinion that was unnecessary for the holding in the case; this language was calculated to restrict the exclusionary rule in future cases. As my book reveals, Rehnquist achieved his goal in Illinois v. Krull (a five-to-four decision by Justice Blackmun) and United States v. Leon (a six-to-three decision by Justice White).  Rehnquist’s opposition to exclusion was a product of his deep-seated conservatism and strong opposition to the rulings of the Warren Court.

Finally, Justice Byron White has had an enormous impact on the law of exclusion. A straight line can be drawn starting from White’s dissent in Stone v. Powell, where White outlined his views on suppression, continuing through his majority opinion in Leon, and ending with the Court’s most recent decisions in Herring v. United  States and Davis v. United States.  White provided the framework for today’s expanded good-faith exception to the exclusionary rule. The origins of White’s view on suppression are hard to pinpoint. Throughout his tenure on the Court, White was willing to impose exclusion for egregious or deliberate forms of police misconduct. But White saw no reason to exclude illegally acquired evidence when police were negligent or simply mistaken on the constitutionality of their actions.

Question:

Based on my reading of your book, it sounds like you expect the Justices to narrow the exclusionary rule in the future so that it will apply only in egregious cases – the kinds of cases that would not trigger qualified immunity. Can you elaborate on where you think the exclusionary rule is headed?

Answer:

I believe four of the Justices (Chief Justice John Roberts, and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito) want to abolish the exclusionary rule. Justice Scalia’s majority opinion in Hudson v. Michigan has prepared the foundation for that result. If abolition is unobtainable, the Court will confine exclusion to cases of deliberate and culpable forms of illegal searches or seizure. Chief Justice Roberts’s majority opinion in Herring v. United States has already achieved that result, although many of the lower courts have yet to follow suit. (By the way, my view of Herring and its impact on the rule was reaffirmed in Davis v. United States. I explain all of this in Chapter 8 of the book.)

Question:

This was your first book. Did you enjoy writing it?

Answer:

I would not describe writing it as “enjoyable.” It is similar to going to the gym to work out. I hate the mood you experience when you walk into the gym knowing what is about to happen, and the feelings you experience in the middle of the workout. But when the workout is over, I love that feeling. That’s how I feel about the book.

The project was rewarding because I learned how the Justices analyzed Fourth Amendment issues, how they attempted to persuade one another, and why, on certain occasions, they changed their votes.

Posted in Book Reviews, Featured

Recommended Citation: Orin Kerr, Ask the author: Tracey Maclin on the Court and the Fourth Amendment, SCOTUSblog (Jan. 3, 2013, 11:06 AM), http://www.scotusblog.com/2013/01/ask-the-author-tracey-maclin-on-the-court-and-the-fourth-amendment/