Great Dissents in Fourth Amendment Cases
posted by Thomas Clancy
I want to thank Dan Solove for inviting me to be a guest this month. For those who have read my bio below or otherwise know my work, it should come as no surprise that I intend to discuss the Fourth Amendment in this space for the month. First some background (and a commercial).
The National Center for Justice and the Rule of Law (of which I am the director), a program of the University of Mississippi School of Law, has the Fourth Amendment Initiative, which promotes awareness of search and seizure principles through conferences, training, and support for selected publications. To implement the Initiative, the Center holds an annual Fourth Amendment Symposium to increase awareness of Fourth Amendment principles. The resulting articles are published in the Mississippi Law Journal as a special edition. Since we began this Initiative, we have had some of finest scholars in the country participate in our programs. The Center has also partnered with the National Judicial College, located in Reno, NV, to create the only national training program for state trial and appellate judges regarding search and seizure principles. Additional information, including articles and video presentations by many of the finest scholars in the area, may be obtained from our website, www.NCJRL.org.
The topic of the 2009 symposium, to be held (and webcast) on February 13, is one that I hope you find interesting: “Great Dissents in Fourth Amendment Cases.” Five dissents will be examined, including such seminal dissents as Justice Harlan’s dissent in United States v. White, 401 U.S. 745 (1971), Justice Marshall’s dissent in Schneckloth v. Bustamonte, 412 U.S. 218 (1973), Justice O’Connor’s dissent in Atwater v. Lago Vista, 532 U.S. 318 (2001), and Justice Brandeis’ dissent in Olmstead v. United States, 277 U.S. 438 (1928). Expected speakers are: Professor Paul Butler of The George Washington University Law School, Professor Catherine Hancock of Tulane University School of Law, Professor Arnold H. Loewy of Texas Tech University School of Law, Professor Wayne A. Logan of Florida State University College of Law, and Professor Carol S. Steiker of Harvard Law School.
So, what makes a dissent “great”?
Depending on one’s point of view, there are many candidates for such designation, ranging from Justice Brandies’ dissent in Olmstead that first proposed privacy as a centralizing principle, Frankfurter’s defense of the warrant preference view in Rabinowitz and Harris, Brennan’s normative approach to privacy in such cases as Greenwood, to Black’s conservative views of the structure of the Fourth Amendment in Katz and Berger. Professor Catherine Hancock’s recent article, Justice Powell’s Garden: The Ciraolo Dissent and Fourth Amendment Protection for Curtilage–Home Privacy, 44 San Diego L. Rev. 551 (2007), is a wonderful treatment of that dissent.
Turning to a current member of the Court, Justice Stevens has served on the Court since December 19, 1975, and that term has encompassed the tenure of three different Chief Justices. He was written only 11 majority or lead opinions in Fourth Amendment cases, averaging one every three years. Nonetheless, that list is impressive: Payton; Walter; Summers; Ross; Jacobsen; Maryland v. Garrison; Horton; Richards; Ferguson; Groh; and Caballes. Within that list, however, is a mixed record of siding with individuals and the government. Indeed, Stevens has seen many changes on the Court and, in my view, some of those changes include his own views. More remarkable than the number of majority opinions, however, is the vast number of dissents and concurring opinions by Stevens, which are–by my count–74. He has expressed his views in virtually every major Fourth Amendment opinion since joining the Court, regardless of whether the government or the individual prevailed. Perhaps Justice Stevens’ most influential dissent was in California v. Hodari D., 499 U.S. 621 (1991). In that case, Justice Scalia, writing for the majority, redefined the concept of a seizure, marking the point at when a person submits to a show of authority by the police or use physical force. This contrasted to the commonly held view prior to Hodari D. that applicability of the Fourth Amendment was not dependent upon an individual’s actions and that it did not matter if the person stopped as a result of the intimidating police action. Justice Stevens, dissenting in Hodari D., mounted a significant defense of that view, arguing, inter alia, that “the character of the citizen’s response should not govern the constitutionality of the officer’s conduct.” Thirteen state courts, on independent state grounds, have rejected the Hodari D. majority’s approach based, in large part, on Stevens’ dissent. Does the mere number of his dissents put Stevens in a category of a great dissenter or does the persuasiveness of his views in Hodari D., as measured by the number of courts adopting that dissent, so qualify that dissent?
What other dissents should be characterized as “great?”
September 2, 2008 at 3:04 pm
Posted in: Criminal Procedure
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Responses (1)
Orin Kerr - September 2, 2008 at 7:34 pm
I think Justice Brandeis’s dissent is considered “great” because it was rhetorically powerful, strongly civil libertarian (and therefore, in academic circles, obviously correct), and beautifully written. It also benefited from the fact that parts of it (although not all) later became law. But do the rest of these dissents (of the ones mentioned) count as great? That’s a very surprising label, I think.
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