The argument that constitutionalists should not object if President Obama replaces a liberal justice with another liberal (for 30 more years?) is absurd for several reasons, including that such simple political labels don’t fit what most judges do. More to the point, while Justice Stevens’s decisions frequently disappointed those who understand that the original meaning of the Constitution is the only legitimate guide to its interpretation, there are some areas of law in which Justice Stevens departed from the more predictably activist views of Justices Brennan, Marshall, Souter and Ginsburg. My colleague highlighted Stevens’s important ruling in the voter ID case, and this post explores another vital area of law.
With respect to criminal law and procedure, Justice Stevens’s decisions were a mixed bag. He frequently ruled against the people’s interests with respect to death penalty and habeas corpus cases. Yet, at the arrest stage, Stevens wrote some notable opinions and cast votes in the search and seizure context that sided with law enforcement concerns and opposed justices who rarely saw a criminal defendant whose “rights” were not violated.
The heat and light associated with search and seizure issues have waned with time. In the 1960s, conservatives criticized the “liberal Warren Court” and its criminal law decisions. Richard Nixon ran for President as a law-and-order candidate, and, as members of the Warren Court departed, Chief Justice Burger and Justices Blackmun, Rehnquist, and Powell replaced them. Justice Stevens was nominated by President Ford, and, more significantly, he succeeded Justice Douglas. By the early 1980s, the Court’s composition was significantly different, and, in a number of cases, the Court found ways to limit some of the more serious rulings of the Warren Court. That was true in the search and seizure context, and issues like the scope of automobile searches and the degree to which police officers could rely on a judicially-issued search warrant.
In Illinois v. Caballos (2005), for example, the Court held that the use of a well-trained narcotics-detection dog to sniff the exterior of a lawfully stopped vehicle does not violate the Fourth Amendment’s prohibition of unreasonable searches and seizures. Justice Stevens wrote the 6-2 opinion for the Court, with Justices Souter and Ginsburg in dissent, and Chief Justice Rehnquist not participating. He wrote, “A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has a right to possess does not violate the Fourth Amendment.”
Justice Stevens also distinguished the decision in Kyllo v. United States (2001), in which the Court, with Justice Scalia writing the opinion, held that the use of thermal imaging technology to measure the heat emanating from a house was a search. Justice Stevens had written a dissent in the thermal imaging case, which was joined by Chief Justice Rehnquist and Justices O’Connor and Kennedy. In that dissent, Justice Stevens wrote that the thermal readings, which were produced by observing the exterior of the house, did not invade any constitutionally protected privacy interest.
In the 1980s, Justice Stevens wrote opinions and cast votes in search and seizure cases that sometimes put him on the opposite side of Justices Brennan and Marshall. In Michigan v. Summers (1981), the Court, with Justice Stevens writing, held that police officers who were executing a warrant to search a citizen’s home were authorized to detain the occupants while the search was being conducted. He noted the interests of law enforcement in preventing flight and in controlling the situation to minimize the risk of harm. Justice Stewart, joined by Justices Brennan and Marshall, dissented. In United States v. Ross (1982), the Court, with Justice Stevens writing and Justice White, joined by Justices Brennan and Marshall, in dissent, the Court held that police officers who had lawfully stopped an automobile and had probable cause to search it could search the containers and packages within it that might contain the object of the search. Justice Stevens wrote that the officers could “conduct a search of the vehicle that is as thorough as a magistrate could authorize in a warrant ‘particularly describing the place to be searched.’”
Finally, in California v. Ciraolo (1986), Justice Stevens joined the opinion of the Court written by Chief Justice Burger, in which the Court held that the warrantless aerial observation of the fenced-in backyard that was within the cartilage of a home was not an unreasonable search. Justice Stevens’s vote was critical, because the Court split 5-4 with Justices Brennan, Marshall, and Blackmun joining a dissent written by Justice Powell.
Reasonable people may disagree with Justice Stevens’s views in these cases. In fact, Justice Scalia sometimes sided with the criminal defendant when Justice Stevens would not. The point is not so much that Justice Stevens was always right, but that he was not as uniformly hostile to law enforcement interests as Justices Brennan, Marshall, Souter, and Ginsburg seem to have been. Furthermore, much of the light and heat is gone from the search and seizure issue because of these very decisions he helped craft over the years.
As Justice Stevens comes to the end of his tenure on the Court, it is worth reminding ourselves that there are some in the legal profession who seem less open minded or even hostile to law enforcement concerns. Most people may have forgotten the days of the Warren Court, but the Administration and the Senate would do so at our peril.