“The Irrelevancy of the Fourth Amendment in the Roberts Court”

Lawprof Thomas K. Clancy has posted a short essay, “The Irrelevancy of the Fourth Amendment in the Roberts Court,” predicting “the substantial elimination of Fourth Amendment litigation in the Roberts Court.”

Clancy’s claim is provocative, but I’m not sure I agree. I am particularly unpersuaded by Clancy’s first argument, that the number of Fourth Amendment cases will decline because today’s Justices are less interested in Fourth Amendment cases than the Justices of the Rehnquist Court. Perhaps that’s true, but I don’t think the support Clancy offers makes his case. Clancy looks at the number of Fourth Amendment decisions that the Justices have written during their tenure to gauge their interest in hearing Fourth Amendment cases. Clancy’s hypothesis is that Justices who have written a lot of majority opinions in an area are likely interested in that area, and they probably are more likely to vote grant cert in those cases. In contrast, those who haven’t written in the area very much probably aren’t agreeing to take those cases. Clancy focuses in particularly on the switch from Chief Justice Rehnquist to Chief Justice Roberts:

A principal reason [for the decline in cases] is the change in Chief Justices: during his term, William Rehnquist penned the majority opinion in twenty-five cases. In contrast, John Roberts, during his brief tenure, has written two majority opinions. At bottom, it was Rehnquist’s interest in the area that drove much of the volume of cases. . . . [M]ost of the Justices on the current Court have little interest in Fourth Amendment cases; in the absence of Rehnquist’s leadership, they are less likely to grant review in search and seizure cases.

I’m not sure this argument works. Votes to grant cert have no necessarily correlation with opinion assignments. A Justice might vote to hear a lot of Fourth Amendment cases but write few opinions in the area, or may not want to hear cases but might write a lot of them. This is particularly true for the more junior Justices, who tend to have little control on what kinds of majority opinions they are writing. The Chief Justice or most senior Justice in the majority makes the assignments, and those assignments can be made for tactical reasons rather than to give a Justice a writing opportunity in an area of interest.

Consider the case of Justice Scalia. Clancy argues that “[w]hen it comes to search and seizure, it is now Scalia’s Court,” and he names Scalia as one of the two Justices most interested in Fourth Amendment law based on the number of significant majority opinions he has written. But Justice Scalia has spoken on the record about how much he hates writing Fourth Amendment cases. Here’s Scalia, with emphasis added:

I pretty much take what I’m given and both of the chiefs that I’ve served under have tried to be fair in giving you good ones and dogs.

Of course, sometimes what they think is a good opinion is not what you think is a good opinion. Chief Justice Rehnquist used to love Fourth Amendment cases involving searches and seizures and I just hate Fourth Amendment cases.

I think those things– it’s almost a jury question, you know– whether this variation is an unreasonable search and seizure; variation 3,542. Yes, I’ll write the opinion, but I don’t consider it a plum.

(As an aside, Justice Scalia’s Fourth Amendment decisions tend to reflect his attitude: His decisions often suggest a Justice who would rather be doing something else. I’m generally a fan of Scalia’s opinions, but his Fourth Amendment writing contains an unusual number of uncertainties, oddities, and loose ends. But I digress.)

Further, I think Chief Justice Roberts has given some signals that he is interested in Fourth Amendment law. He has authored two dissents from denial of certiorari in Fourth Amendment cases, Virginia v. Harris in 2009 and Pennsylvania v. Dunlap in 2008. I would think that public dissents from denial of certiorari are a relatively useful way to guess whether a Justice is voting to grant cert in a particular area of law. While every case is different, a Justice who goes on record explaining a vote to take a case may be pretty interested in hearing cases in that area more generally.

David Stras has more thoughts over at SCOTUSblog (and thanks to David for the link).