In Collins v. Virginia, the Court held that the automobile exception to the warrant requirement does not permit police officers to enter the curtilage of a home to search a parked vehicle. Although he joined the majority, Justice Thomas wrote a separate opinion in which he questioned the application of the exclusionary rule to the states.

Justice Thomas’s opinion is part of a long line of cases and individual Justice's writings that chip away at the foundations for the exclusionary rule. His opinion also illustrates a phenomenon I wrote about in a paper forthcoming in the California Law Review, Remedial Convergence and Collapse. In the paper, I argue that the Court’s opinions engage in something of a shell game with respect to remedies for violations related to policing: The Court will question and limit one remedy, while also suggesting that another remedy could substitute for it and incentivize the government to comply with the law. But when faced with a case in which a plaintiff seeks that other remedy, the Court will deny that one too.

Collins showcases how that might occur. In that case, Justice Thomas questioned the application of the exclusionary rule. Without the exclusionary rule, damages suits against officers would presumably serve as the remedy for Fourth Amendment violations. But as anyone following the Court’s docket over the last decade knows, the Court has ratcheted up the standard for qualified immunity, making it hard, if not impossible, to recover damages in most cases of Fourth Amendment violations. The Court summarily reversed a denial of qualified immunity just a few weeks ago, in Kisela v. Hughes, over a dissent by Justice Sotomayor, which was joined only by Justice Ginsburg, and not Justice Thomas.

Now, Justice Thomas has also questioned the Court’s qualified immunity jurisprudence. But until he gets five Justices to cut back on the Court’s qualified immunity jurisprudence and actually stick with that rule, doing away with the exclusionary rule will only further entrench the lack of any viable remedies for parties aggrieved by constitutional violations. And the difficulty of assembling and coordinating five Justices who can agree not only that there should be a remedy in cases involving constitutional violations, but also what the appropriate or default remedy should be, has created a real problem in the Court’s remedies jurisprudence.

@LeahLitman

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