A Roadblock Too Far?

• Published date: 01 May 2003
• Date: 01 May 2003
• DOI: 10.1177/1043986203251609
• Subject Matter: Article

10.1177/1043986203251609ARTICLEJournal of Contemporary Criminal Justice / May 2003Zalman, Shartsis / O’CONNOR’S LEFT TURN ON FOURTH

A Roadblock Too Far?

Justice O’Connor’s Left Turn on the Fourth

MARVIN ZALMAN

Wayne State University

ELSA SHARTSIS

This first study of Justice O’Connor’s Fourth Amendment jurisprudence notes the shift in her

decision pattern from a very conservativeposition from 1982 to 1986 to a more moderate posi-

tion in subsequent years. Prior scholarship characterizes Justice O’Connor’sjudicial opinions as

contextual and fact driven,her style of judging as “behavioral accommodationism,” or the seek-

ing of consensus, and her judicial policy preferences as moderately conservative. The authors

explore these categories by a close examination of five recent cases: City of Indianapolis v.

Edmond, Fergusonv. City of Charleston, Atwater v.City of Lago Vista, Illinois v. McArthur,and

Kyllov. United States. The authors conclude that her decisions in these cases, liberal and conser-

vative,reflect both the earlier explanations of her decisions and an unstated set of complex per-

sonal predilections reflecting political sensitivity to middle-American views that demands an

adherence to basic liberties in a crime-control context.

Keywords: FourthAmendment; Justice Sandra Day O’Connor; U.S. Supreme Court; judicial

decision making; law and politics

Justice Sandra Day O’Connor is recognized by scholars and journalists as

the most influential justice on the Supreme Court (Amar, 2001;

Chemerinsky,2001; Lazarus, 2000; Rosen, 2001). This perception derives in

part from her position as a centrist on an ideologically divided Court. The

Court’s conservativebloc includes Chief Justice William Rehnquist and Jus-

tices Antonin Scalia and Clarence Thomas. The “pragmatic moderates” to

the left include Justices John Paul Stevens, David Souter, Ruth Bader

Ginsburg, and Stephen Breyer. Between these wings sit Justices O’Connor

and Anthony Kennedy, “pragmatic conservatives” who often provide the

182

Journal of Contemporary Criminal Justice, Vol. 19 No. 2, May 2003 182-204

DOI: 10.1177/1043986203251609

© 2003 Sage Publications

swing votes that decide cases (Amar, 2001; Kelso & Kelso, 2001; Maveety,

1996; Yarbrough,2000). Justice O’Connor’s leadership, however,rests more

on success in formulating doctrines on which cases are decided than on her

ability to side with the majority in most cases.

Justice O’Connor’s jurisprudence has been closely studied in substantive

areas where she has had the greatest influence, including reproductive rights,

the establishment clause, affirmativeaction, and federalism. Slight attention

has been paid to her criminal decisions, and to the best of our knowledge,

there is no published study of her Fourth Amendment opinions. The obvious

reason for this is that she has not written extensivelyin the search and seizure

area, where her voting record has been conservative.1Inseveral recent cases,

Justice O’Connor has taken liberal Fourth Amendment positions, piquing

our curiosity as to whether this indicates a measurable shift of her stance. We

examined 92 decisions in which she has participated, dividingthem into three

time periods: 1982 to 1986 (34 cases), 1986 to 1994 (32 cases), and 1994 to

2001 (26 cases). During the first and third periods, the composition of the

Court did not change, forming what is called “natural” Courts.2In the first

period, we estimated Justice O’Connor’s overallFourth Amendment conser-

vativevoting average at 85.3%, in the second period at 78.1%, and in the third

period at 53.8%. Because unanimous 8-to-1 or 7-to-2 decisions often do not

present polarized or ideological issues, they are not the best measure of pol-

icy preferences. A better measure of Justice O’Connor’s liberal Fourth

Amendment score is her liberal dissenting opinions or votes in conservative

decisions or her liberal opinions or votes in 5-to-4 or 6-to-3 decisions. Using

this measure, Justice O’Connor’s liberal voting percentage was 5.8% in the

first period, 12.5% in the second period, and 19.2% from 1994 to the present.3

This cursory view of her Fourth Amendment voting record indicates a left-

ward shift but not a sharp left turn.

This article begins with a brief overview of Justice O’Connor’s jurispru-

dence, examining her judicial philosophy,style of judging, and policy prefer-

ences. Wedo not explore the larger corpus of her Fourth Amendment cases or

pursue more refined quantitative analysis. After this sketch, we review her

opinions and votes in the following fiverecent cases: City of Indianapolis v.

Edmond (2000), Ferguson v. City of Charleston (2001), Atwater v. City of

Lago Vista (2001), Illinois v. McArthur (2001), and Kyllo v. United States

(2001).4Our goal is to evaluate her decisions in light of her general jurispru-

dential approach. Weask whether her recent Fourth Amendment decisions fit

her established jurisprudential style and the degree to which her decision

making can be said to be political. In the conclusion, we speculate on the

future direction of Justice O’Connor’s Fourth Amendment jurisprudence.

This direction takes on a measure of urgencyfor law enforcement in the wake

of the events of September 11, 2001. The antiterror legislation and investiga-

Zalman, Shartsis / O’CONNOR’S LEFT TURN ON FOURTH 183