I agree with what Professor Amar says about the exclusionary rule, but not so much what he says about the Justices. He begins by noting the difference between cases where the Court was focused on the substantive Fourth Amendment question and cases where it focused on the exclusionary remedy:
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 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.This contempt is well founded:
The exclusionary rule has no sound footing in any originalist legal source material. None. Nothing in the text as originally understood supports it; no framer ever endorsed it; no judge in America for the first century after independence ever followed the exclusionary rule or any genuine prototype of it. On one of the very few occasions when a lawyer tried to argue for exclusion before 1876, the lawyer was laughed out of court by America's preeminent jurists, led by Joseph Story.A bit of rhetorical exaggeration there. Laughing wasn't Justice Story's style. But he did make very clear that the exclusionary argument had no basis in the law at that time. My brief in Utah v. Strieff has more on this.
Mapp v. Ohio, the case that imposed the exclusionary rule on the states, was wrongly decided as an original matter. A long string of decisions has chipped away at it, limiting the damage it does to some extent, but the case has not been overruled. Why not, and what of the future?