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The Fourth Amendment Docket

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Orin Kerr has this post at SCOTUSblog on the sparse Fourth Amendment docket at the Supreme Court. He references that post at Volokh Conspiracy. His theory is that the justices inclined to vote for criminal defendants are denying certiorari because they fear their side will lose and make more restrictive precedent.

As I note in the comments at VC (because SCOTUSblog no longer allows comments), I think Orin is overlooking an important aspect of the problem. Some of the justices are receptive to a relatively expansive view of substantive Fourth Amendment rights but hostile to the exclusionary rule. I think it is significant that the only Fourth Amendment case on the docket for full briefing and argument this term is a civil case with no Mapp v. Ohio implications.

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The problem with Orin's analysis -- and it's a major problem -- is that it takes only four votes to grant cert. But there are five non-liberals on the Court, so even if the liberals voted in a bloc to deny cert., that wouldn't do the trick. Indeed even if the liberals were to carry Kennedy as well, that STILL wouldn't do the trick. The four-member conservative bloc has the power to grant cert. without winning over anyone else.

It might be, of course, that some of the four conservatives are hesitant to vote for cert. because, understandably, they're wary of how Kennedy would vote on the merits. But that's a different dynamic from saying, as I understand Orin to be saying, that cert. is not being granted in Fourth Amendment cases because the liberal bloc is employing a "defensive denial" strategy. The liberals simply don't have the votes to make such a strategy work.

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