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 Court take 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.
One obvious response would be that there is an interest in uniformity with respect to searches and seizures. But is that interest significantly greater with respect to Fourth Amendment law than for other subjects where people complain that the Court does not take enough cases (antitrust, intellectual property, bankruptcy, etc.)? I don’t see why. Indeed, you could argue that the interest in uniformity is lower in the Fourth Amendment area because the entities doing the searches are largely local. A city police department or a school district can look to circuit precedent for the governing standard, and it is not clear that the application of different rules or standards (up to a point) in different circuits creates a significant problem. Granted, the FBI or ATF would face a problem without uniformity, but the FBI (at least) is organized by regional or local offices and could be mindful of what its circuit required.
I wonder if the explanation is that the Justices just like deciding Fourth Amendment cases, as opposed to other substantive areas that they find (consciously or not) boring. Is there some other explanation? Or am I overstating the frequency with which the Court takes these cases?