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Will the New Roberts Court Revive a Formalist Approach to Fourth Amendment Jurisprudence?
Get PDFWhile all Chief Justices leave behind distinctive periods of judicial thought and practice, the quantitative and qualitative data presented in this article show that the Roberts Court in particular stands out in the development of Fourth Amendment precedent. The key cases that shaped the search and seizure doctrine before and during his rise show that, contrary to what many may expect, Chief Justice Roberts will likely oversee limited, pro-defendant decisions that could grant additional legitimacy to the Court’s crime-control jurisprudence. On the other hand, the new Justices’ voting records and writings suggest that there are several potential coalitions that could form and force his hand, effectively reviving a more formalist approach. Those possibilities, however, do not necessarily signal the end of varied, even unexpected, outcomes for Fourth Amendment cases. Instead, even when one accounts for the new Court’s composition, this research suggests that there is in fact no conservative supermajority that will do away with Fourth Amendment protections because of the complex history and nature of the search and seizure doctrine and each Justice’s distinctive approach to it. Especially as the Court continues to grapple with the intersection of rapid technological change and the third-party doctrine, Robert’s legacy and the future of this new Court may hinge on whether, and how, the Chief Justice adopts a formalist approach to the Fourth Amendment––marking another distinct change in this impactful arena of American jurisprudence
