Argument recap: Selling complexity
on Mar 21, 2011 at 5:23 pm
Every year, prison inmates file hundreds of appeals in the Supreme Court — many with lawyers’ help, often on their own — and almost all of them are, quite literally, hopeless. Still, they keep filing. That simple fact explains what a hard sell it was for a law professor when he rose in the Court Monday to argue that, unless the Court took steps to prevent it, defense lawyers were likely to stop bringing constitutional challenges — especially under the Fourth Amendment.
It was a complex argument, all about the Court preserving the integrity of its constitutional decision-making, that professor Orin S. Kerr offered to the Justices in Davis v. U.S. (09-11328). And its complexity stood out in quite vivid contrast to the simple — even simplistic — argument that a Justice Department lawyer would make.
While Kerr was at the lectern, the skepticism about his theme ran back and forth across the bench. Still, he was making his points and, as the argument moved on, it became evident that Kerr had stirred some interest, perhaps even sympathetic interest — from several Justices, perhaps most notably Justice Anthony M. Kennedy, often the holder of a decisive vote. He also heard, from Justice Elena Kagan, a compromise way that he could win.
The Davis case is about the so-called “exclusionary rule,” a judge-made doctrine that bars evidence from criminal trials if police got it while violating the Fourth Amendment.  Davis focuses specifically on whether the Court will benefit police by expanding one significant exception to that rule: the doctrine that the evidence can be used anyway, if police got it in “good faith,” believing at the time that what they did was legal.
Now, the Court has been asked to decide whether evidence that was legal when obtained can be used at trial if, it later turned out, the police method used to obtain it was illegal under the Fourth Amendment, because the Supreme Court in the meantime had changed the meaning of that Amendment.  The Eleventh Circuit Court ruled in Willie Gene Davis’s case that the “good faith” exception applies if what police did was constitutional at the time under binding Circuit Court law in their region — even though that Circuit Court turned out to be wrong when the Supreme Court later ruled to the contrary.
Kerr, asking the Court to avoid simple labels, said the main problem with expanding the “good faith” exception so as to allow police to rely on Circuit Court precedent was that it would compromise the effect of the later Supreme Court ruling rejecting that precedent. Lawyers, the professor contended, would be discouraged from taking test cases to the Supreme Court to try to get new rules of Fourth Amendment law if it turned out that their client could not benefit from it: as soon as they asked for a new rule, the prosecution would counter that the “good faith” exception would take hold, and the client would lose anyway — even while winning on the constitutional point. That scenario, Kerr said, would mean the Supreme Court was merely issuing “advisory opinions,” and defense lawyers would see no reason to go for such unhelpful results.
Part of the complexity of Kerr’s argument is that he pitched it as an issue over the retroactivity of Supreme Court constitutional decisions, and not just a test of the scope of the “good faith” exception to the exclusionary rule.
It was, of course, stark simplicity that Kerr and his client were up against Monday. Deputy U.S. Soliicitor General Michael R. Dreeben, the Justice Department’s lawyer, repeating the same theme over and over, said that the exclusionary rule exists for a single purpose only: to deter police misconduct. If a Supreme Court decision, after the fact of the police action, makes what they did unconstitutional, that can’t possibly have a deterrent effect, so the police error should be excused under the “good faith” exception to the rule, he argued.
It was clear, from early in Kerr’s argument, that many of the Justices had already embraced the Justice Department’s syllogism. Early on, first Justice Antonin Scalia, and then Justice Kennedy, pounced on the professor, suggesting that the “good faith” ezception was a solid concept, and had nothing to do with retroactivity of Supreme Court decisions. “Why aren’t we just following the good faith rule here?” Kennedy asked, rhetorically.
Chief Justice John G. Roberts, Jr., reminded Kerr that the exclusionary rule was all about “the deterrence impact on police conduct.” He thus wondered why the professor was trying to “expand that notion to cover” incentives for inmates to sue.  The Court, the Chief said, had rejected that very argument when it created the “good faith” exception to the rule.  The “good faith” exception, the Chief added, applies “across the board” when there is no need to deter police misconduct.
Justice Samuel A. Alito, Jr., disputed Kerr’s argument that defense lawyers would be discouraged from challenging existing Fourth Amendment precedent, saying that even though one Circuit Court may validate police conduct within that circuit, another Circuit Court may not have settled the issue, so it would be likely to be tested.
And Kerr’s argument seemed to bog down in detail in an exchange with the Chief Justice over when defense lawyers would be reluctant to pursue cases, and when they would not.
Shortly, however, Justice Kagan stepped in. She suggested she might be concerned about whether defense lawyers would lack incentives to seek new Fourth Amendment rulings, and about “the oddity of the Court deciding a case in which it’s absolutely not possible to grant a remedy” — presumably, because any new defendant-friendly ruling would be nullified in reality by the “good faith” exception.
So, Kagan suggested, why not adopt as a solution giving the inmate who won a new Fourth Amendment interpretation the benefit of that, but denying it to anyone else already tried. Kerr was not ready to embrace denying the relief to any other inmate who had raised it and whose case was not yet final.
When Deputy Solicitor General Dreeben took his turn, the Court was treated to a continued rendition of the theme that the exclusionary rule has always been restricted “to those situations in which it’s necessary to further the deterrent purpose…, namely to shape police conduct.”
It became obvious, though, that Kerr’s more complex points had some lingering effect. Kagan took up with Dreeben her point about the Court’s authority to take on a case where “there was no possibility of relief” because of the “good faith” exception would scuttle any remedy for the inmate who brought the case. Dreeben said there was no doubt the Court did have the authority to decide such a case.  Even if a litigant had brought an “impossible argument,” he went on, the Court could hear and decide it, because it might just change its past decisions.
Justice Sonia Sotomayor took up with him the issue of differences among the Circuit Courts on a Fourth Amendment issue, suggesting that “there’s something illogical” about letting differing interpretations control the outcome of challenges to police conduct across the country.
Justice Stephen G. Breyer had his own suggestion for simplicity, wondering why the Court does not simply apply the “normal rule” — that is, the exclusionary rule — that “when the police violate the Fourth Amendment you exclude the evidence.” Once the Court starts bringing in exceptions to that rule, Breyer said, complexity sets in. “As this last 40 minutes demonstrates, once we do that it’s so complicated, only 14 people are gong to understand it and they’re not going to understand it, either.”
Justice Scalia, who is a known foe of the exclusionary rule itself, had his own version of a simple approach: “Why don’t we just abolish the exclusionary rule?  That would be really simple. Whatever evidence tends to prove the truth comes in.”  Dreeben seemed momentarily tempted, but said the government was not proposing that “in this case.”
At that point, Justice Kennedy intervened with a telling point: “There is something ironic in your position that the defendant who lives in the circuit that is more clearly wrong [because its view was later found invalid by the Supreme Court] is treated worst.”  Dreeben responded that the defendant was not the one given the Court’s protection by the exclusionary rule, it is a remedy to deter police misconduct.
That led Justice Sotomayor to muse further about how police would react if there is a circuit split on what is valid police conduct. Why, she asked, would the Court take away the deterrent effect of discouraging police from following only a circuit’s ruling that validates what they have done, instead of police finding other, certainly valid ways to pursue crime.  It is not the police’s job, Dreeben replied, to decide what the Fourth Amendment allows or doesn’t allow; they take their lead from the courts that govern them, and are trained to follow that.
When the government lawyer sought to reassure those Justices (like Kagan) who had wondered about taking away defense lawyers’ incentive to test Fourth Amendment precedents, Justice Alito brought up Kagan’s suggestion of giving the benefit of a new precedent to the inmate who won the case.  Alito commented dryly: “The Court invented the exclsuionary rule. The Court invented the good faith exception to the exclusionary rule. Is there anything to prevent the Court from inventing a new exception to the exception to the exclusionary rule?”  No, said Dreeben. That, he continued, would serve to benefit the inmate who won the case, but also to limit the social cost in excluding reliable evidence from more trials.
Still, Dreeben said, the Court should approach with caution the notion of creating another reason for the exclusionary rule, beyond deterrence to police misconduct, since litigants would then move to take advantage of another opening. Besides, he said, agreeing with a point Scalia made, it would have the appearance of arbitrariness between those who fortuitously benefitted from the rule and those denied that benefit. “It doesn’t smell very good,” Scalia remarked tartly.
By then, it hardly seemed necessary for Kerr to make a rebuttal; he had gone a good distance to promote his hard sell.
