Moral Justifications on the Rehnquist Court

• Author: James A. Woods,Bradley Stewart Chilton
• DOI: 10.1177/0887403405284859
• Published date: 01 September 2006
• Date: 01 September 2006
• Subject Matter: Articles

10.1177/0887403405284859Criminal Justice Policy ReviewChilton, Woods / Moral Justifications on Rehnquist Court

Moral Justifications on

the Rehnquist Court

Hercules, Herbert, and “Druggies” Under

the Fourth Amendment

Bradley Stewart Chilton

Appalachian State University

James A. Woods

Administrative Office of the U.S. Courts

What moral justifications do we find in Fourth Amendment judicial opinions of the

Rehnquist Court, and what does this suggest about future Court decision making? First,

the authors develop the moral justification model of judicial decision making in a litera-

ture review,with linguistic patterns and categories by Hercules and Herbert for content

analysis. Second, they discuss the methodological strategies used in this content analysis

of official opinions of the Court on the Fourth Amendment from 1986 to 1994. Third,

from this content analysis, the authors describe the patterns of moral justification in

Rehnquist Court Fourth Amendment opinions, including the Court’s assessments of the

moral virtue of “druggie” defendants. Finally, they draw conclusions from this analysis

for a moral science of the politics of law.

Keywords: Rehnquist Court; FourthAmendment; moral justifications

There has been a rebirth of moral inquiry in the social sciences, overcoming old

fears of conformity, intolerance, and idiosyncratic and superstitious approaches

to morality. Social scientists such as James Q. Wilson, Amartya Sen, Robert Bellah,

Carol Gilligan, and many others have persuaded social scientists to attend to the moral

aspects of social phenomena. Morality is not relegated to the heap of traditionalism

343

Criminal Justice

Policy Review

Volume 17 Number 3

September 2006 343-361

© 2006 Sage Publications

10.1177/0887403405284859

http://cjp.sagepub.com

hosted at

http://online.sagepub.com

Authors’Note: The opinions expressed in this article are those of the authors and are not to be viewed as a

statement of the official viewsof the Administrative Office of the U.S. Courts. We gratefully acknowledge

the efforts of the many students of Professor Chilton’s graduateseminar at the University of North Texas

(CJUS 5870–Criminal Evidence) in assistance in data collection, content analysis, analysis, and discussion

ofthis project. We also acknowledge a former student, TracyGoss Wolf, who applied this justification theory

to the Burger Court’s FourthAmendment decision making in her M.A. thesis on which we served as chair

(Chilton) and reader (Woods)at the University of Toledo and in a article Professor Chilton coauthored with

Ms. Wolf for the 1996 Academy of Criminal Justice Sciences meeting, “Towarda Justification Theory of

JudicialDecisions: Chief Justice WarrenEarl Burger and the Fourth Amendment.” This article continues the

developmentof a moral justification theory first espoused by Chilton as a graduate student in a 1983 article

and conformity, for even the liberal belief in individual freedoms is itself a moral

belief about state evenhandedness among the competing conceptions of the good life.

Fears of an imperialistic and intolerant morality are unfounded; in reality, moral

inquiry most threatens the identity politics of those who believe that pluralism should

not involvea genuine give-and-take with others. And the dismissal of morality as idio-

syncratic, superstitious, and merely the “will to power” would similarly make all

social science impossible and anarchistic; objectivity is as possible and desirable in a

moral science as in any other (Wolfe, 1999).

The revivalof moral inquiry in the social sciences has prospered particularly in the

study of the politics of law (Murphy,Pritchett, & Epstein, 2002, p. 17). After decades

of skepticism in legal realism, legal positivism, and economic and critical legal stud-

ies, a growing group of scholars and practitioners have argued against moral relativ-

ism and legal positivism and posited alternatives,including “moral realism” (Barber,

1993; Moore, 1985, 1992) and “deep conventionalism” (e.g., Dworkin, 1978, 1986,

1996). Not limited to merely some revival of “natural law” jurisprudence, these

diverse scholars havesought to more systematically understand amoral science of law

(e.g., Ackerman, 1991; Bobbitt, 1982; Bork, 1990; Chilton, 1998; Levinson, 1988;

Perry, 1982; Powell,1993; Smith, 1985; Sunstein, 1990; Tushnet, 1988) and applica-

tions, such as public administration (e.g., T. Cooper, 1991; Green, 1992; Rohr,1978;

Rosenbloom & O’Leary, 1997).

Although these explorations into the moral science of law greatly illuminate the

ethical reality of legal phenomena, they frequently proceed without a rich appreciation

of specific cases and an empirical, hardnosed inquiry. Moral studies by practitioners

give valuable attention to the special problems of moral reasoning that stem from

actual experiences as participants (e.g., Bork, 1990; Zitrin & Langford, 1999) but

leave much to be desired when compared against a systematic understanding of the

moral science of law. Case studies and biographies of individual justices typically

assess the compliance of an individualdecision or judge with a moral principle or ethic

(e.g., Dworkin, 1985; Gerber, 2002), but these external, post hoc studies of moral

compliance do not offer a systematic understanding of a moral science of law.

It is fitting at this time that we systematically examine the moral underpinnings of

the Rehnquist Court’s opinions with the end of the Rehnquist Court and the beginning

of the Roberts Court. To be sure, there are rich descriptions, biographies, and some

analyses of the moral science of law, especially of the Rehnquist Court. There are

excellent biographies and analyses of the moral underpinnings of legal interpretation

of justices on the Rehnquist Court (e.g., Yarbrough, 2001). There are applications of

ethics and philosophy of law to illuminate how Rehnquist Court justices base deci-

sions on their philosophies and ethics. And a number of political analyses touch on

issues of the moral underpinnings of the Court’s decisions (e.g., P. Cooper, 1999;

Garbus, 2002; Schwartz, 2003; Simon, 1999). These analyses and many others have

344 Criminal Justice Policy Review

presented at the American Political Science Association meeting, “Rights and the Politics of Faith.” It is

wonderful to learn from and with our students,as well as the many scholars with whom we discussed these

ideas, but we take full blame for any shortcomings.