SCOTUSBlog: The Court after Scalia: The despicable and dispensable exclusionary rule

SCOTUSBlog: The Court after Scalia: The despicable and dispensable exclusionary rule by Akhil Amar:

Akhil Reed Amar is Sterling Professor of Law and Political Science at Yale University. His new book, The Constitution Today, contains much more material on several of this essay’s themes: the constitutional wrongness of the exclusionary rule, the principled power of originalism, the pending Supreme Court vacancy, and the complex legacy of Antonin Scalia.

“You despise me, don’t you?” simpers Peter Lorre’s character, Signor Ugarte, to Rick Blaine, played by Humphrey Bogart. Bogie’s blunt response in this early scene from Casablanca remains a great line in a film filled with great lines: “If I gave you any thought I probably would.”

Think of the modern Supreme Court as Bogart, and the exclusionary rule as Lorre. Although the Court excludes evidence all the time, a Court majority probably despises the exclusionary rule while almost never thinking about it. In countless cases over the last forty years, the Court has held that the Fourth Amendment was violated by the facts at hand, and has thus ordered or upheld evidentiary exclusion. But in almost none of these cases was the exclusionary rule as such at issue. Rather, in these cases the Court granted review, and the Justices opined, only on the scope of the Fourth Amendment right that underlies the rule. But whenever the modern Court has squarely focused on the exclusionary rule itself – giving express thought to whether the rule’s contours should be widened or narrowed – the Justices have almost always ruled against the rule, and have done so in case after case dripping with implied or express contempt for it.

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