The New York Times reports that the Supreme Court is close to overturning Mapp v. Ohio, the 1961 court case that established the exclusionary rule, which states that evidence obtained by police against a criminal defendant in violation of 4th Amendment guidelines must be excluded from court:
The United States takes a distinctive approach to the exclusionary rule, requiring automatic suppression of physical evidence in some kinds of cases. That means, in theory at least, that relatively minor police misconduct can result in the suppression of conclusive evidence of terrible crimes.
In essence, the dispute lies in whether society is endangered more by criminal defendants -- who may actually be guilty of the crime they are accused of -- being set free, or police departments that are can search any one at any time for any reason.
This issue stems from the court's decision in a recent case Herring v. the United States, where:
an Alabama man, Bennie D. Herring, was arrested on officers’ mistaken belief that he was subject to an outstanding arrest warrant — was sloppy recordkeeping in a police database rather than a mistake by an officer on the scene.
For me, the fascinating part is that the current dispute has been built up over time.
In 1983, a young lawyer in the Reagan White House was hard at work on what he called in a memorandum “the campaign to amend or abolish the exclusionary rule” — the principle that evidence obtained by police misconduct cannot be used against a defendant.
The Reagan administration’s attacks on the exclusionary rule — a barrage of speeches, opinion articles, litigation and proposed legislation — never gained much traction. But now that young lawyer, John G. Roberts Jr., is chief justice of the United States.
This month, Chief Justice Roberts, writing for the majority in Herring v. United States, a 5-to-4 decision, took a big step toward the goal he had discussed a quarter-century before. Taking aim at one of the towering legacies of the Warren Court, its landmark 1961 decision applying the exclusionary rule to the states, the chief justice’s majority opinion established for the first time that unlawful police conduct should not require the suppression of evidence if all that was involved was isolated carelessness. That was a significant step in itself. More important yet, it suggested that the exclusionary rule itself might be at risk.
This illustrates the fact that the political process is full of various movements and goals that take years to bring to fruition. This is little different than other efforts to change legal precedent going back to the Warren Court. Many critics argue that Brown v. Board of Ed. was overturned recently. Free speech protections and the separation of church and state among them. In many ways this has been the handiwork of the groups of lawyers and professors who created the Federalist Society years back, and helped influence Reagan's appointments to the judiciary, appointments which are bearing fruits to this day. The major goal of course would be overturning Roe v. Wade.
Considering the state of the political landscape at the moment, and the fact that its has been drifting leftwards in the past two electoral cycles and may continue in that direction for the next few, these current effort may well come to a head. The next handful of appointments to the federal judiciary will not be made by either a conservative Republican or a centrist Democrat. The window of opportunity for the conservative movement on the court may be closing, so they need to make their moves now.
But these victories might also help the liberal opposition. Consider that the conservative movement built its strength for three and four decades partly on opposing key decisions of the Warren Court. If they make the same decisions now, they will hand viable galvanizing issues to the opposition.
This is probably unavoidable. Its how politics swings back and forth.
