//  5/31/18  //  Quick Reactions

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


Versus Trump: Watch Out, Watch List

9/12/19  //  Commentary

On this week's episode of Versus Trump, Charlie and guest-host Alexandra Brodsky discuss a recent opinion invalidating the FBI's terrorism watch-list. They discuss the implications of the opinion for the Trump administration (and beyond), the merits (and demerits) of the court's reasoning, and all sorts of other cool stuff, including how annoying it is when people think they're important enough to be spied on by the FBI. Listen now!

Charlie Gerstein

Civil Rights Corps

Federal Defenders and the Sixth Amendment's Zone of Interests

9/6/19  //  In-Depth Analysis

The zone of interests test shouldn't apply to constitutional claims seeking injunctive relief. But even if it does apply, it doesn't prevent federal defenders from challenging arbitrary limits on attorney access under the Sixth Amendment.

United States v. Davis: And Now Comes The Good Part

6/24/19  //  Quick Reactions

The reach of the Supreme Court’s opinion in United States v. Davis will be dictated by a host of procedural rules.

Leah Litman

Michigan Law School