I Think I Know Why SCOTUS Does Not Grant Fourth Amendment Cases Anymore

On October 15, the Supreme Court heard nearly 2.5 hours of oral argument in the Voting Rights Act Case. Without even taking a break, the Court heard the second case, fittingly titled Case v. Montana. It was obvious the Justices were spent. They said so. At one point, Justice Gorsuch referred to a case called Brigham City as Brigham Young. He apologized, and said “Sorry. I am tired.” At another point, Justice Barrett apologized for mispronouncing Caniglia, and said “it’s been a long day.”

Still, for those who managed to slog through the arguments, there was an important takeaway. The Justices did not want to write an opinion based on the unusual facts of this case. They wanted to write a broader rule that would be easy to apply.

Fred Rowley, who represented Case, spent a lot of time discussing the particular facts that the police officers knew about the defendant. He mentioned several officers by name, and referenced what they said on body camera footage. This approach may have been appropriate for this case, but it was unusual. In most Supreme Court cases, the facts on the ground really don’t matter. The Justices are trying to set some sort of national rule. In this case, Justice Jackson in particular seemed frustrated with the fixation on the record. At one point, Jackson interrupted Rowley, who was talking about the facts, and said “We’re trying to think about a standard here.” Later, Rowley was talking about knowledge that one of the officers had about Case. Jackson again said, “Well, setting aside this particular case, let me just try to understand the standard that you want us to apply.”

Fourth Amendment caselaw can be very fact-bound. The Justices did not want to get into the weeds. They seemed content to just announce a test, and let the lower courts figure it out. In this case, the test is “objective reasonableness” from Brigham City. Justice Barrett, in particular, did not want to say what that test entailed.

JUSTICE BARRETT: But are you really saying that we should do something different than in Brigham City or –or muddy the waters by saying, oh, you know, objectively reasonable basis but could be reasonable suspicion?

MR. CORRIGAN: You’re –you’re correct on –on the first part, on your –on the former. We are not saying that they should –that the Court –that Brigham City means reasonable suspicion. What –what we’re saying is, in some instances, it could, as you said Justice Barrett, yield a result like reasonable suspicion, just like it could yield a result like probable cause.

JUSTICE BARRETT: Well, we don’t need to say that. I think that would be confusing. I think we could just say Brigham City, objectively reasonable basis to believe, and put a period on that.

MR. CORRIGAN: I –I agree, Justice Barrett.

JUSTICE BARRETT: Okay. Thanks.

Put a period on it and wrap it with a bow.

Justice Jackson tried to put forward some sort of “matrix” that would apply different factors. The SG favored a “sliding scale.” But those tests didn’t get much traction. Justice Gorsuch said, “Yeah, I don’t understand the sliding scale thing at all, I’ll be honest, so help me out.”

The Court is content to speak in bright line rules. Fourth Amendment caselaw is seldom about bright line rules. The Court just didn’t seem comfortable here. This case may illustrate why the Court grants so few Fourth Amendment cases.

I still think a DIG is possible. It is not at all clear to me why the Justices took this case. And if they aren’t prepared to write a clean opinion applying the facts, I don’t know how much can be gained.

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