North Carolina Law Review
Fourth Amendment, Justice Marshall, search and seizure, Supreme Court, 1990
In its 1990 Term, the United States Supreme Court heard five cases involving the Fourth Amendment. In this article, Professor Bruce Green analyzes these five search-and-seizure decisions in light of Justice Marshall's criticism that '[Plower, not reason, is the new currency of this Court's decision-making." He examines the various considerations the Court advances in its Fourth Amendment analysis-interpretive principle, policy, and precedent--and discovers inconsistencies in the importance assigned to each of these considerations in a series of cases decided very close together by virtually the same Justices. Each approach controlled, Professor Green argues, only when it could be said to warrant a restrictive reading of the Fourth Amendment, one that favored the State. He concludes that, as Justice Marshall's observation suggests, the decisions of a majority of the Court in the Fourth Amendment area were dictated by nothing more than a shared set of personal preferences and a feeling of empowerment to enact these preferences into law.
Bruce A. Green,
Power Not Reason: Justice Marshall's Valedictory and the Fourth Amendment in the Supreme Court's 1990 Term , 70 N.C. L. Rev. 373
Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/252