4th Amendment Overload

Concurring Opinions asks a question that has been in the back of my mind for years: why do appellate courts and the Supreme Court hear so many 4th Amendment search and seizure cases? Has_the_fourth amendment jumped the shark?

One advantage of blogging is that I get to pose questions that have always bugged me. In light of the Supreme Court's activity this week, in which they handed down Arizona v. Gant (a case on warrantless car searches), and heard argument in Safford United School District v. Redding (a case about the strip-search of a teenage student), here's my question -- why does the Courttake so many Fourth Amendment cases?

Now I am not a Fourth Amendment scholar, so perhaps this just reflects a certain envy that the Justices don't take the cases that I'm interested in more often. But it's always struck me that most of the Fourth Amendment cases where certiorari is granted are pretty fact-intensive. Ordinarily, you wouldn't think they would be good candidates for Supreme Court attention, even in the presence of a circuit split.

The obvious reason for this is that 4th Amendment cases arise in criminal cases; and, if there is one thing the US is capable of producing in great numbers, it is criminal cases. Moreover, modern 4th Amendment jurisprudence is a product of the Sixties civil rights movement, and the attorneys and litigants who bring such cases often see themselves as protecting the gains of that era.

Still, the basic point that there is a surfeit of 4th Amendment cases is a valid one. The average American could be forgiven for thinking that most of the Supreme Court's docket deals with cases arising from the 1stAmendment, 4th Amendment, and 14th Amendment with special emphasis on religious monuments, abortion, and gay rights. While these issues are interesting and touch on active social controversies, they also diminish other constitutional issues that may come up simply by drowning them out in the public consciousness. While the public is often focused on their political and civil liberties, the Court often hands down decisions that impact our economic liberties without a ripple of interest (the "Kelo" decision being a notable exception). Questions of federalism and states' rights receive even less attention, even though such decisions can grant the federal government sweeping powers to legislate at the expense of the states' ability to do so.

In addition, the debates surrounding 4th Amendment cases have become as choreographed and taped down as a Bob Fosse dance number. There has eveolved an annual ritual in which the Court hands down a decision on some obscuranist question of whether the police should have patted down a coat or a shirt, which is quickly denounced/hailed by a hectoring Alan Dershowitz type on the one hand and a jut jawed Nancy Grace type on the other. It's always a "crushing loss"/"vast expansion" of civil rights that will "destroy minority neighborhoods"/"make us all less safe." Blah Blah.

The reality is that, while modern 4th Amendment jurisprudence can strike laymen as being finely detailed, it is actually quite user friendly. This is so that it can be applied by the police on the one hand, and defended against by jailhouse lawyers on the other. The cases themselves are often the playthings of civil liberties organizations like the ACLU, which seem to delight in bringing such cases to prevent the dark cloud o fascism from descending upon the US (but always fails to land). If anything, the large number of 4th Amendment cases is to protect what is a functioning system from being nitpicked to death.