The Supreme Court, with egg on its face, apologized Wednesday when it announced it would not rule on the most controversial question in law enforcement today: whether illegally seized evidence must always be excluded from criminal trials. They had picked the wrong case, the justices said.
It wasn't that they couldn't agree on the answer. They are expected to do that in another case soon, possibly next term. Many court observers believe that, given the right case, a majority is ready to allow the admission of illegally seized evidence when police reasonably believe the seizure was legal. This is called a "good-faith" exception to the exclusionary rule.
It was the "sin in haste, repent in leisure" phenomenon, as one lawyer put it. Six members of the court have complained publicly about the current operation of the exclusionary rule. Pressure from Congress, the White House and the law enforcement community is at a peak.
So the court reached out to get into the act, even as dissenters were telling them they had the wrong case. The justices had Illinois vs. Gates argued twice and twice had new legal briefs submitted, at enormous cost to all involved. The court wasted its own time and the time of dozens of lawyers, then punted.
It was one in a series of such episodes over the past few terms and the second on a major case this term. On May 16, after hearing oral arguments and receiving scores of briefs, the court changed its mind and decided not to rule on the sensitive reverse-discrimination controversy raised in a case involving the Boston police and fire departments.
The court said that case was moot; the dispute in Boston was over. The facts that made it moot--all the laid-off Boston city employes had been reinstated--were available to the court before it decided to grant review in that case.
The problem Wednesday, the court said, was that the crucial exclusionary rule issue had not been presented to the lower state courts. The majority said, in effect, that they cannot second-guess a state court without at least giving it a first guess: you can't be a Monday-morning quarterback unless there was a game Sunday. It would be a bad precedent, the court said.
Justices are allowed to change their minds, and sometimes they too deserve a "good-faith exception." But in the Illinois case, the majority had been expressly warned of this problem by three justices, John Paul Stevens, William J. Brennan Jr. and Thurgood Marshall, who dissented when the court ordered the case re-argued in March.
Since the same justices probably would have voted against a good-faith exception, however, their warnings might fairly have been perceived as an effort to avoid any ruling on the controversy.
It would be easier to accept the court's apology if the justices had not been complaining so vigorously in recent speeches about how overworked they are. The chief justice is seeking legislation to reduce the workload through creation of a new national court of appeals.
Skeptics--and there are many--have already suggested that the court take some steps itself to exercise self-discipline before seeking a fundamental change in the structure of the federal judiciary.
Illinois vs. Gates, like so many of the exclusionary rule cases, involves drugs. Police in Illinois received an anonymous letter alleging that Lance and Sue Gates were going to bring a load of drugs from Florida. Officers obtained a warrant, searched the Gates' home and found drugs.
The Illinois courts threw out the evidence, saying it had been obtained illegally because the warrant was based primarily on the anonymous letter. It was insufficient to show probability of criminal activity, as is required by the Fourth Amendment to the Constitution, the state courts said.
The justices decided that the case really was about the legality of the warrant, and not about the exclusionary rule at all.
Justice William H. Rehnquist, in a dissent earlier this year in an unrelated case, used a nursery rhyme to express his sense of the futility of some of the court's practices:
"The king of France, with forty thousand men, marched up the hill, and then marched down again."
Wednesday, in Illinois vs. Gates, the court--led by Rehnquist--marched down again.