Orin S. Kerr is a Professor at George Washington University Law School, where he teaches criminal law and procedure. His scholarly work focuses on the Fourth Amendment and computer-related crimes.

Justice Antonin Scalia was a strong opponent of the Fourth Amendment exclusionary rule. When the Court heard a case about its scope, Scalia’s vote was easy to predict. Scalia took the government’s side every time. His votes made him part of a conservative majority that consistently chipped away at the exclusionary rule over Scalia’s thirty years on the Court. Scalia’s death, and the possibility that he will be replaced by a very different Justice, raises the possibility that further chipping away may now stall – and may, over time, be reversed.

Scalia’s opposition to the exclusionary rule is easy to forget today because he developed a reputation near the end of his career as a friend of criminal defendants. That reputation was only partially deserved. For most of his career, Scalia was among the Court’s most government-friendly votes in criminal cases. But during his last decade on the Court, Justice Scalia became something of a “swing vote” in several Fourth Amendment cases.

That role did not extend to cases about the exclusionary rule. Justice Scalia was an originalist. It is widely understood that suppression of evidence was not an available remedy for violations of search and seizure rules at the time the Fourth Amendment was ratified. In the view of some originalists, that makes the exclusionary rule illegitimate. It is a made-up judicial remedy that has nothing to do with the original Fourth Amendment. Even if the exclusionary rule should be retained in some form as a matter of stare decisis, the thinking runs, it should be read narrowly and imposed only as the “last resort.”

This appears to have been Justice Scalia’s view, although the evidence is somewhat indirect because he wrote opinions on the subject only rarely. For the most part, Scalia joined exclusionary rule opinions rather than wrote them himself.

Scalia was often in good company in voting to limit the rule’s scope. Although it’s often forgotten today, the exclusionary rule was a significant political issue in the 1980s. The Reagan administration was opposed to it, at least in its bolder formulations. Cutting back the exclusionary rule was a priority. The Justices with ties to the Reagan administration generally shared that view. And their number had an impact: As far as I can tell, no criminal defendant has won a case about the scope of the exclusionary rule since 1990. Before Scalia’s death, the exclusionary rule seemed to be on a five-four path to being further narrowed even if never eliminated.

With Scalia’s passing and future replacement, what might change? I think we shift from certainty to uncertainty. The five-Justice conservative majority that consistently voted for the government is no longer in place. Scalia’s passing, and his possible replacement by a Democratic president, means that the Supreme Court may go from a very unfriendly place for defendants in exclusionary rule cases to more of a toss-up.

It’s hard to be more specific than that. Fourth Amendment law is famously fact-specific. It’s impossible to know what future cases that would have been five-four with Scalia will end up five-four the other way without him. It’s also hard to know how Scalia’s absence might lead to shifts in opinions with larger majorities. A decent guess might be that Scalia’s passing means a shift in the fifth vote from Justice Anthony Kennedy in a court with Scalia to someone more like Justice Stephen Breyer in a Court without him. At the margins, that likely means less cutting away of the exclusionary rule and perhaps some victories for it.

Posted in The Court after Scalia, Featured

Recommended Citation: Orin Kerr, The Court after Scalia: Scalia’s absence may help preserve the exclusionary rule, SCOTUSblog (Sep. 16, 2016, 10:51 AM), http://www.scotusblog.com/2016/09/the-court-after-scalia-scalias-absence-may-help-preserve-the-exclusionary-rule/