Where is the Fourth Amendment docket?

By Orin Kerr
on Apr 14, 2010 at 12:48 am

Next Monday, the Court will hear oral argument in City of Ontario v. Quon, a Fourth Amendment case on employee rights in text messages. Notably, Quon is one of only two Fourth Amendment cases to be decided this Term.   And the other Fourth Amendment case, Michigan v. Fisher, was at best a minor footnote: Fisher was a per curiam summary reversal, meaning that the Court thought the case was so easy that it reversed without merits briefing or oral argument.  The presence of only two search and seizure cases is a bit surprising.  In the previous Term, for example, the Court handed down decisions in five such cases.  The dearth of cases raises a question: What happened to the Court’s Fourth Amendment docket?

If you look closely, some clues emerge.

First, note that City of Ontario v. Quon was a somewhat surprising grant.  No real split existed, and the issues raised were pretty novel.   In my view, the most likely explanation for the grant was that the Justices saw the case as a pro-defendant outlier thanks to a heated dissent from denial of rehearing en banc by Judge Ikuta joined by several other conservative Ninth Circuit Judges.  Ikuta’s dissent was essentially a cert. petitition from the conservative judges on the Ninth Circuit asking the Justices to review the case.

The story of Michigan v. Fisher is similar.   The lower court decision was a pro-defendant outlier that the Court reversed over the dissents of Justices Stevens and Sotomayor.   Justice Stevens criticized the Court for even taking the case, writing that “it is hard to see how the Court is justified in micromanaging the day-to-day business of state tribunals making fact-intensive decisions of this kind.” As I wrote elsewhere when the decision came down, “The most surprising aspect of the case is the Court’s bothering to take it. The Court reviewed a state intermediate appellate decision after the state Supreme Court denied review. So my overall take is that this seems like error-correction just to make sure the state Supreme Courts are paying attention.”

The third data point to review is Chief Justice Roberts’ dissent from denial of certiorari in Virginia v. Harris, joined by Justice Scalia.  In Harris, Chief Justice Roberts and Justice Scalia joined to express their wish that the Court had granted cert. to review the standard for stopping suspected drunk drivers.  It’s possible that a third Justice also voted to hear the case but declined to join the Roberts opinion: We don’t know.  But only Chief Justice Roberts and Justice Scalia went on the record as wanting to take the case.

So those are the clues. Where do they point?  We only have the public record, and we’re stuck trying to read the tea leaves to figure out what’s happening in the building.   And it might just be a coincidence.  But  Quon, Fisher, and Harris share a theme.  In each case, the lower court decision ruled for a criminal defendant.    In each case, it seems likely that the  Justices most likely to rule for the government in Fourth Amendment cases were the ones who wanted to take the case.   They were the natural audience for Judge Ikuta’s dissent in Quon, and they were the natural group to agree to summarily reverse in Fisher.   And we saw at least two votes on the record in Harris: the Chief Justice and Justice Scalia, both more likely than the median Justice to vote for the government in Fourth Amendment cases, wanted to take the case.  It was the more pro-government Justices who wanted to hear the cases.

On the flip side, the Court took zero Fourth Amendment cases from petitions filed by criminal defendants.  Further, there are no public clues of any cases that any of the more pro-defendant Justices wanted to take.  To my mind, that raises the possibility that the more pro-defendant Justices are voting against cert. in Fourth Amendment cases because they worry about how the cases might come out.  This practice is generally known as a “defensive denial.”   The basic idea is that a Justice will vote against taking an otherwise-certworthy case if the Justice is likely to be in dissent on the merits.  We can’t be sure, but I wouldn’t be surprised if the Court’s unusually low docket of Fourth Amendment cases this Term might be the result of defensive denials among the more pro-defendant Justices.