First Among Equals (26 page)
With no statutory remedy available, Bivens's lawyers sought damages by alleging a Fourth Amendment violation. The Supreme Court, in a divided judgment, agreed, holding that an individual whose constitutional rights are violated by federal law-enforcement officers—and who is otherwise without a remedy under federal law—may proceed under the Constitution to claim money damages.
The new chief justice wrote a stirring dissent, a classic statement of the need for judicial restraint. The Court, wrote Burger, had engaged in a quintessentially legislative act by creating a new cause of action against officers. The Court, he argued, had no authority to assume “the legislative and policy functions that the Constitution vests in Congress.” Burger thus answered the
Bivens
majority— and then he took on
Mapp,
on similar grounds. To Nixon's chief justice, it was fundamentally wrong for courts to get into the legislating business, either by creating a new
“Bivens
action” or by imposing a supervisory rule like the exclusionary rule on the states. Moreover, the chief maintained, the Fourth Amendment exclusionary rule was fundamentally flawed. Echoing Cardozo's earlier critique, Burger bemoaned the high social cost of allowing the guilty to go free because the cop on the beat made a mistake. Fourth Amendment law was becoming more and more technical and complicated, he wrote. Federal trial judges trying to resolve a particular Fourth Amendment issue occasionally found themselves reversed. Appellate judges frequently disagreed with their colleagues on some fine point of Fourth Amendment law. If federal judges sometimes fumbled the Fourth Amendment ball, Burger asked, how could the police officer on the street be expected to maintain an almost superhuman ability always to make the right judgment call on complicated issues involving many facets, such as probable cause? These issues were simply too easy for judges sitting in the quiet of their appellate chambers, with ample time to study and reflect, to second-guess. The world of appellate judging was light-years away from the realities of law enforcement on the streets.
Bivens
was one of Chief Justice Burger's proudest judicial moments. He had been in dissent, but bench and bar took notice. His opinion was respectful but vigorous; it was widely seen as a sign of the new chief justice's intention to dismantle the exclusionary rule. After all, it was only 1971. The chief was healthy, vigorous, and spoiling for a fight. Or so it seemed from the tone of his
Bivens
dissent.
But
Mapp
survived Chief Justice Burger, and carries on to this day. Throughout his long tenure, Burger could only gather expressions of discontent about the exclusionary rule. He left office in 1986 with no fewer than five justices having, at various times, expressed concern with both the constitutional foundations and the social costs of the exclusionary rule. But a majority never formed in a single case to reverse
Mapp.
This failure was a large one. In one of his earliest terms, the chief had sounded the clarion call, only to see year after year pass with opportunities irrevocably lost. Overruling
Mapp
would have been his stamp, an enduring contribution to constitutional law. It would have signaled a return to traditional forms of constitutional interpretation. He well knew that the pundits and commentators would be sharply critical; that loud lamentations would ensue were this Warren Court “reform” interred—and by a Nixon appointee to boot. Civil libertarians would be stirred to anger. The chief was not particularly concerned. He was an unusual Washington figure, a top government officer utterly unmoved by negative press. So what if the
New York Times
attacked him? When it came to the cultural elite, the midwestern-born-and-bred chief had a streak of Clint Eastwood in him. The chief called them as he saw them, period.
Why, then, did he fail to root out this excess of Warren Court extravagance? The answer is not to be found in Burger's personality. True, he was less than beloved within the Court, an unfortunate fact that his intemperate critics loved to trumpet. But no justice declined to move against the exclusionary rule because of any animosity toward Warren Burger.
The reason
Mapp
survived lies in the other selections that Nixon made. In terms of Nixon's criteria for a justice, especially those concerning the criminal law, Burger measured up quite well. So did his fourth choice, William Rehnquist. Nixon's second appointee, Harry Blackmun, another federal appellate judge, turned out to be a judicial activist save on criminal justice matters, where at least in his early years on the Court he often sided with the chief justice. On this question of
Mapp's
reversal, it was Nixon's third choice, Lewis Powell, who let the president down.
During his tenure on the Court, from 1973 to 1987, the Burger Court was often the Powell Court. It was moderation, not counterrevolution against the Warren Court, that characterized the bulk of the Burger Court's work. Powell labored entirely behind the scenes, without fanfare, and achieved dramatic success in shaping the Court's jurisprudence. He recruited the smartest law clerks, gave them marching orders, worked prodigiously hard, and was kind to everyone in the building. It was a formidable combination. In a courthouse full of towering egos and clashing personalities, Powell was universally respected and admired within the cozy, insular atmosphere that prevailed inside the courthouse walls. He was especially beloved by law clerks, and not just his own.
I had a special fondness for Justice Powell. Back in the clerkship application process, he graciously invited me to Richmond to see him in his summer chambers at the federal courthouse in his hometown. He could not have been kinder. But the eventual answer was no. I didn't quite pass muster with him, but I was finally picked by Chief Justice Burger. The interview had likely been a courtesy and a tribute to the judge for whom I had clerked, David Dyer, who had known Justice Powell for years. They had both been highly successful lawyers in private practice. But even to this reject, Justice Powell remained unfailingly kind. In fact, the justice was genuinely interested in clerks from other chambers. He would gently inquire into your thinking about the future. He even had kindly advice for us twenty-somethings: Find a professional home, and always use that as your base—even if you launch out from time to time in public service or other activities.
In short, Justice Powell made law clerks feel very important. He paid tribute, frequently, to the role of clerks. Not surprisingly, the favor was returned. One of his clerks, a journalist-turned-lawyer destined to serve as chief judge of the U.S. Court of Appeals for the Fourth Circuit (headquartered in Lewis Powell's Richmond), wrote an admiring memoir of his term in Justice Powell's chambers. J. Harvie Wilkinson styled his book, charmingly,
Serving Justice.
Lewis Powell was the most influential member of the Burger Court.
That was especially so on the question as to the future of
Mapp
and the much-criticized exclusionary rule. Indeed, the battle over this issue demonstrated quite early that the Court was being led on the matters that counted most not by the chief justice but by the soft-spoken, genteel Virginian whose instincts and temperament invariably led him to middle ground. He would balance competing interests and come down in or around the middle, eschewing the more rigorous, doctrinally demanding, analytical approach that Justices Antonin Scalia and, later, Clarence Thomas brought to the Court.
Powell ensured the viability of the exclusionary rule by limiting its most unsettling, or at least burdening, implications. Thanks to
Mapp,
state prisoners began filing in the federal courts a steady stream of Fourth Amendment–based challenges to their state court convictions. The justices, upset by the swelling dockets, were concerned. They, and all the federal judges below them, were now experiencing an unanticipated result of the Warren Court revolution in criminal law. Individuals languishing in prison understandably wanted the benefit of a decision like
Mapp
. And, as another part of the Warren Court's legacy, increasingly attractive federal courthouses frowned on quick, summary dismissals of prisoner petitions. Everyone, including convicted prisoners, had a right to his day in federal court.
Jailhouse lawyers found their practices flourishing. State court convictions came under assault in federal district courts around the country. So it was that
habeas corpus,
historically a fairly limited, discrete category of cases in federal court, mushroomed. Under
habeas corpus,
state prisoners whose appeals from state convictions had been exhausted could petition a
federal
court for relief on the basis of a claimed violation of federal constitutional rights.
Habeas
became a growth industry, to the chagrin of increasingly overworked federal judges. Not even the Supreme Court justices were spared. The Court's docket exploded, especially criminal cases. The floodtide of cases, many of them of dubious legal merit, was distracting the Court from larger, more important questions.
In the 1976 case of
Stone v. Powell,
Justice Powell found a solution. Employing the critique of the exclusionary rule set forth by Chief Justice Burger in his
Bivens
dissent, Powell fashioned a compromise: The exclusionary rule would be maintained but could not be employed by state
habeas
petitioners who had already had a fair shot to litigate the Fourth Amendment issue in their state criminal cases. Powell observed that the exclusionary rule was not mandated by the Constitution itself, but designed to deter constitutional violations. Yet what might the rule deter in this context? Powell emphasized that the Fourth Amendment challenge was to a law-enforcement action that had long since been concluded and to state criminal proceedings that had already provided the defendant with his day in court.
For Powell, in this case as in many others, his pragmatic analysis guided constitutional interpretation. He was willing to make policy choices. That is, of course, the business of legislatures, but the Burger Court, influenced primarily by Powell, felt more at home sitting as a legislature than might reasonably have been expected when Nixon launched his project to undo the Warren Court, the most legislative ever. For Powell, and indeed for all justices, the costs of the exclusionary rule were quite high. The fight was over the benefits of the rule. For Justice Powell and the four justices whose allegiance his views commanded, the benefits were quite modest for state prisoners assailing their convictions in federal court.
This middle-of-the-road position was lacking in intellectual consistency. The reasons given for curbing the exclusionary rule could just as easily be used to do away with the rule entirely. But this did not appear to give pause to Powell, the gentlemanly apostle of moderation. His task, as he saw it, was not to fashion the most intellectually coherent and rigorous rule, but to take the existing body of law and proceed in a common-sense, mainstream fashion and come up with a reasonable, presentable result. Justice Powell was acting like Senator Powell.
His approach thus avoided what could be perceived as revolutionary results: the actual overruling of
Mapp v. Ohio.
The chief's position in
Bivens
went too far for the gentleman from Richmond. He was readily willing to sacrifice intellectual rigor for a result that could be persuasively defended to mainstream America. Leading editorial pages, which routinely trumpeted the perceived virtues of confining police excesses, would be muted in what otherwise would be a scathing denunciation of the “right-wing” Court for “turning back the clock” on the progressive reforms fashioned by the Warren Court. Unlike Chief Justice Burger, and like many justices before and after him, Justice Powell was not tone-deaf. The outside world could have a siren song effect on a justice especially sensitive to his place in history, and Justice Powell was very mindful of history.
Powell's approach—find the middle ground and plant the flag firmly there—often prevailed in Fourth Amendment cases as the Court, year after year, carved out exceptions to the exclusionary rule and wove interpretations of the Fourth Amendment so as to find no violation in the first instance.
Justice Sandra Day O'Connor and Justice Anthony Kennedy, the philosophical progeny of Justice Powell, have carried on this tradition. In fact, as a federal appellate judge, Justice Kennedy framed the enormously important exception—the good-faith rule—that many in the criminal defense bar viewed with alarm as swallowing up the Fourth Amendment's basic teaching. Under the good-faith exception, if police acting in good faith secure from a magistrate a search warrant, the evidence resulting from their search is admissible, even if the warrant is ultimately judged defective. In
United States v. Leon
(1982), the Court embraced the good-faith exception.
In the forty years since
Mapp,
law enforcement has simply had to learn to live with the exclusionary rule, as modified. The post-Warren Court was unwilling to try to reverse
Mapp
outright. It would be content to tinker with the exclusionary rule, but not to do away with it. Meanwhile, the surrounding body of Fourth Amendment law has grown to a state of almost Byzantine complexity. Tributaries and branches have emerged, with an entire body of law growing up, for example, about car searches. A moving car, when stopped for a traffic violation, can be searched; but what about containers in the trunk, or how about the highway patrolman opening up the glove compartment? All these questions, and more, have continued to march into the Court for resolution—all thanks to the unwillingness of the post-Warren Court to do away with a jurisprudentially weak and irregularly born exclusionary rule.
“Y
OU
H
AVE THE
R
IGHT TO
…”:
M
IRANDA
AND THE
F
IFTH
A
MENDMENT