Analysis Review

The New York Times, the Supreme Court, and the slow death of the Fourth Amendment

It’s Supreme Court decision season as its term ends. On Tuesday, the New York Times ran a giant graphic on its front page purporting to document a leftward shift in the ideological bias of the Supreme Court. I learned about this from a damning takedown of the attribution of that graphic in an article on the blog of the nonprofit media watchdog FAIR (Fairness and Accuracy In Reporting). What’s particularly interesting about that FAIR article is that it cites, in mockingly discrediting the assertion of any kind of progressive “golden age” for the Court, a shocking case that I had only days before learned about from a friend. The opportunity to criticize both the Times and the Court in one go was too much for FAIR to resist, and the same goes for me now.

The FAIR article is brief and is worth the quick read in its entirety, but the gist is that the algorithm that generated the graph — the Martin-Quinn score — is a relative comparison of the voting records of the Court Justices against each other. So at any given time, all we get is a measure of the conservative or liberal spread of the Court relative to itself. Any single justice’s position is something like the extent to and the direction in which that justice disagrees with the court average. As you can see, this conclusively identifies Clarence Thomas as a fucking asshole.

Temporal Problems

But using this measure over time becomes increasingly problematic since the makeup of the Court changes as do as the times themselves. If justices start agreeing more they all tend toward the center of the graph, but that doesn’t necessarily imply that they’ve all moderated ideologically. For example, Scalia’s rightward march reversed right around 9/11, about the same time that Ginsburg’s leftward march tapered, and Stevens’s — one of my favourites and one of the most liberal jurists then on the bench — even reversed. Significantly, all the conservatives swooped left by this measure beginning in 2010, the year Stevens retired, but none of the liberals moved right. It just meant that all the conservative justices became lesser outliers when compared with Stevens’s successor, the less liberal Kagan. All the conservative justices, that is, except Thomas. Asshole.

Interestingly, the same Martin-Quinn measure was used by Nate Silver in 2012, writing for FiveThirtyEight — at the time, a Times owned blog! — when he suggested that the “Supreme Court May Be Most Conservative in Modern History.” That conclusion was reached by analyzing the totality of the Court membership over the last 80 years rather than only the currently sitting members and only over the last 30 years.

If we’re going to talk about trends, Silver’s approach seems more likely to deliver, but the problems with using this measure over time are fairly clear. For example, did William Douglas, the longest serving justice to ever sit on the bench, march steadily into progressive dreamland throughout the 50s and 60s? Or was a shifting Court drifting rightward together and away from him? Either way, in selling their graphic as a seemingly absolute measure of the ideology of the court with no explanation of how it is calculated, the Times is either ignorant on the facts or looking to deceive.

Utah v. Strieff

The serendipitous thing about this, as I mentioned, is that the FAIR article cited to further discredit the Times a case that I had only finished reading for myself days earlier:

Considering that the Court recently ruled 5–3  that evidence found in an illegal stop is admissible so long as the suspect has an outstanding warrant, it’s safe to say that the golden age of progressive Supreme Court jurisprudence is not yet upon us.

That case, Utah v. Strieff, is also well worth the short read in full. In 31 pages, the Court delivers its opinion and two justices deliver their dissents on a Fourth Amendment issue that, for the shocking precedent it sets, should probably concern anyone who’s ever run in with State authority, even over parking violations. My analysis follows.


The defendant, Strieff, is a white resident of Salt Lake City who had the bad fortune to leave a house that a detective had been surveiling based on an anonymous tip about possible narcotics trafficking. That detective, Fackrell, had observed people entering and then leaving the house shortly afterward over several days. But he hadn’t noted when Strieff had entered the house before detaining him for questioning about the activities in the house in a parking lot across the street after he’d left, a move which even the State of Utah conceded was unlawful under the Fourth Amendment. In line with common practice in Utah, Fackrell ran a warrant check against Strieff after demanding his identification during this questioning and found that Strieff had an outstanding warrant for a traffic violation. The detainment then escalated into an arrest pursuant to the warrant, and the subsequent search revealed methamphetamine and drug paraphenalia for which Strieff was charged.

Strieff’s motion to suppress that evidence was denied but then reversed by the Utah Supreme Court on appeal, which found it to be plainly tainted due to the unlawful detention. The US Supreme Court reversed again in an opinion written by Thomas — asshole — by erroneously applying something known as the attenuation doctrine of the exclusionary rule.

Attenuation Doctrine of the Exclusionary Rule

The exclusionary rule is the obvious consequence of the Fourth Amendment’s prohibition on “unreasonable searches and seizures… but upon probable cause”: namely, that unlawful activity on the part of investigating detectives will not be rewarded in court by allowing any evidence they then discover to be brought to bear against the accused. Instead, any such tainted evidence will be excluded from consideration, and in theory, that should have a chilling effect on the willingness of police to engage in unconstitutional searches when investigating potential crimes.

But there is also the attenuation doctrine to leaven the exclusionary rule: the social costs of letting known criminals run free simply due to the irregularities in the manner in which the evidence against them was obtained must be balanced with the desired chilling affect against those irregularities that is ultimately prescribed by the Fourth Amendment. If it can be shown, through a complicated three-part test elaborated by existing Court precedent, that the connection between the illegal action and the discovery of the evidence in question of exclusion was sufficiently remote — or attenuated — as to have little impact on the chilling effect intended under the exclusionary rule, then the evidence may still be admitted for prosecution and the good of society.

And at issue in Utah v. Strieff was whether this attenuation doctrine was in effect. Thomas decided in a poorly worded and overly brief opinion that even though the stop itself was illegal, the fact that the existing traffic warrant was eventually discovered attenuated the stop from the search which led to the evidence. Read his asshole opinion if you’re curious about his reasoning, or if you enjoy pain, or if you would like to try to convince me that I’m mistaken about its status as an abomination of english. The gist is nevermind that the stop was illegal, and nevermind that the officer didn’t know about the traffic warrant before the stop; the fact that it did exist means that the officer could be forgiven his mistake after the fact and the fruit of his illegal search admitted. This was a decision on which not only all the conservatives, but also a usually center-left judge, Breyer, joined without complaint.


Of interest is Sotomayor’s dissent, in which she discusses the implications of the precedent this decision sets:

Outstanding warrants are surprisingly common… The States and Federal Government maintain databases with over 7.8 million outstanding warrants, the vast majority of which appear to be for minor offenses… In a single year in New Orleans, officers “made nearly 60,000 arrests, of which about 20,000 were of people with outstanding traffic or misdemeanor warrants from neighboring parishes for such infractions as unpaid tickets.”

And most affecting is her graphic and moving discussion of the realities of these arrests [emphasis mine]:

Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more… The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction—even one that is minor, unrelated, or ambiguous… The officer may next ask for your “consent” to inspect your bag or purse without telling you that you can decline. Regardless of your answer, he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.” … As onlookers pass by, the officer may “‘feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.’” … If the officer chooses, he may handcuff you and take you to jail… At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to “shower with a delousing agent” while you “lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.”

This goes on. Especially given Sotomayor’s perspective as the first Latina to sit on the Court, this line is particularly biting in context: “The white defendant in this case shows that anyone’s dignity can be violated in this manner.”

Kagan filed her own dissent that in less provocative but more germane terms explains how ridiculous Thomas’s opinion is on the facts. In fact, in reading Kagan’s opinion, I struggle to understand how anyone could substantially disagree with her. And she’s the newest, less liberal justice that made the conservatives seem more reasonable in comparison! Her conclusion is perhaps the most chilling of all [emphasis mine]:

Consider an officer who, like Fackrell, wishes to stop someone for investigative reasons, but does not have what a court would view as reasonable suspicion. If the officer believes that any evidence he discovers will be inadmissible, he is likely to think the unlawful stop not worth making—precisely the deterrence the exclusionary rule is meant to achieve. But when he is told of today’s decision? Now the officer knows that the stop may well yield admissible evidence: So long as the target is one of the many millions of people in this country with an outstanding arrest warrant, anything the officer finds in a search is fair game for use in a criminal prosecution.

And Thomas’s asshole response to the idea that this ruling could lead to wanton, arbitrary police behaviour [emphasis mine]?

Strieff argues that, because of the prevalence of outstanding arrest warrants in many jurisdictions, police will engage in dragnet searches if the exclusionary rule is not applied. We think that this outcome is unlikely. Such wanton conduct would expose police to civil liability.

So we have the highest court trusting that criminal excess will be checked by civil liability even though an Amendment to the Bill of Rights explicitly calls out this scenario. And at the same time the New York Times is reporting a leftward drift on the Court. Colour me unconvinced.


  • Clarence Thomas Must Die
  • The New York Times is detestable
  • Think twice about going out if you have unhandled parking violations
  • Subscribe to FAIR‘s newsletter if this sort of thing interests you

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