I recently put up a post by that title over at SCOTUSblog. From the introduction:
Next Monday, the Court will hear oral argument in City of Ontario v. Quon, a Fourth Amendment case on employee rights in text messages. Notably, Quon is one of only two Fourth Amendment cases to be decided this Term. And the other Fourth Amendment case, Michigan v. Fisher, was at best a minor footnote: Fisher was a per curiam summary reversal, meaning that the Court thought the case was so easy that reversed without merits briefing or oral argument. The presence of only two search and seizure cases is a bit surprising. In the previous Term, for example, the Court handed down decisions in five such cases. The dearth of cases raises a question: What happened to the Court’s Fourth Amendment docket?If you look closely, some clues emerge.
Anonymous says:
Not sure how persuasive that theory sounds. It is certainly true there are defensive denials, but it only takes 4 votes – which are less than 5 votes required to decide a case – to hear a case. And of course under current composition of the court, the liberals on the court may not want to hear any constitutional case, not just 4th amendment case.
Glancing Roberts’ dissent in Virginia v. Harris, it’s sad to be reminded where the 4th amendment right stands in today’s court. The thought that police should be able to, according to Roberts, stop me on the street while driving without any suspicion except ‘anonymous’ tip that I was drunk(which can be anything, if you think about it) is really depressing. And if I’m not drunk, what will police say to me? Oh, sorry someone mistakenly reported you? Geez.
April 14, 2010, 2:15 amCrazyTrain says:
The more obvious explanation that Orin clearly wants to avoid is that now that we have President Obama, the government no longer violates the Fourth Amendment.
April 14, 2010, 2:25 amOrin Kerr says:
There are always the states, CrazyTrain, which Obama doesn’t control. Yet.
April 14, 2010, 2:31 amKazinski says:
I think the most obvious explanation is the Supreme Court is embargoing likely topics for Orin to blog about.
April 14, 2010, 2:44 amSara says:
I thought, to a 4th amendment scholar, every problem is a 4th amendment problem.
April 14, 2010, 7:58 amvsjb says:
How much of the 4A docket was coming from qualified-immunity cases? I imagine there will be fewer of those now, after Callahan.
April 14, 2010, 9:59 amGreg Dodge says:
One question that comes to mind — and I don’t have the data — is how the size of the 4th Amendment docket has changed relative to the overall criminal docket, and the overall criminal docket as compared with the docket at large?
My sense is that the size of the criminal docket hasn’t changed much, but with two former prosecutors on the bench (Alito and Sotomayor), we’re seeing a shift away from chic Fourth Amendment cases only to minutiae of day-to-day criminal justice, i.e. the workings of good time credits and armed career criminal factors, confrontation issues, plenty of habeas cases (particularly from the Ninth and Sixth) and so on. Sorry that I don’t have better numbers, but that’s my sense.
The other factor is whether or not there are a lot of cert-worthy Fourth Amendment cases the Court is denying. It strikes me that there are not (partially because Bush was effective in getting a lot of like minded folks on the CoAs, and Obama hasn’t been swift to replace them). My sense is that there aren’t a ton of issues causing massive splits in the circuits, and, coupled with deferential habeas review of state court judgments, not a lot of issues are bubbling up.
April 14, 2010, 10:12 amtroll_dc2 says:
Prof Kerr, could it be that maybe the lower courts and the state courts are doing a better job and getting to the right answers more frequently than in the past? Have you seen any petitions not already mentioned that you would have been inclined to grant cert on?
April 14, 2010, 10:28 amAF says:
Orin, you didn’t mention it in your post, but didn’t you represent a defendant in a 4A cert petition where there appeared to be a split but cert was denied? That would support your defensive-denial hypothesis.
April 14, 2010, 11:01 amtim baughman says:
I’d think Professor Kerr believes they should have taken McCane on the application of the exclusionary rule to “Belton compliant/pre-Gant” police conduct. And I believe ultimately they will take the issue. But the timing of these things works in mysterious ways–maybe they wanted a bigger split than just McCane and Gonzalez. I’m not aware of any other sort of “striking” denials.
April 14, 2010, 11:02 amanonymous says:
Fourth Amendment cases generally won’t go up through the habeas corpus process because, under Stone v. Powell, Fourth Amendment search and seizure/unlawful arrest claims are not ordinarily cognizable on federal collateral review, unless the defendant didn’t have a full and fair opportunity to raise a Fourth Amendment claim in the state courts. The Supreme Court would typically have to grant cert. on direct review; by the time the case goes to postconviction collateral review, the train will have left the station.
April 14, 2010, 11:08 amDilan Esper says:
What happened to the Fourth Amendment docket? Well, they are searching for it right now….
April 14, 2010, 1:33 pmTim says:
The Court was afraid of what you might say about their decisions, and denied to grant cert because they don’t want their feelings hurt.
April 14, 2010, 1:58 pmtdsj says:
where is the evidence law docket?
Aren’t evidence law questions outcome-determinative in at least as many cases as Fourth Amendment questions?
April 14, 2010, 2:58 pmKent Scheidegger says:
From the referenced SCOTUSblog post:
Nope. Quon is not a criminal defendant. Quon is a civil plaintiff. Ontario v. Quon is a Fourth Amendment case, but it is not an exclusionary rule case.
Looking back over Supreme Court Fourth Amendment cases for the last decade or two, we see that when the question is focused on the substantive Fourth Amendment, the more expansive view often wins, and conservative justices often join in (thermal imaging, knock-and-announce …).
However, when the focus is specifically on the exclusionary remedy, criminal defense victories are quite rare.
April 14, 2010, 7:23 pm