The Supreme Court’s Originalist Evasions

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The justices of the Supreme Court, Washington, D.C., April 23, 2021

At the start of each summer, Supreme Court commentators are tasked with summarizing an unwieldy body of work—dozens of opinions on widely ranging areas of law, as many as nine different authors, concurrences, dissents, and a docket of unsigned orders. With a pool so big and incohesive, any attempt to sum it up runs the risk of being sunk by caveats. This term, the first with Amy Coney Barrett rounding out a decisive conservative majority, that risk was especially visible.

Many observers chose, as the overall theme of the term, unexpected unanimity. These commentators marveled at the number of cases in which liberal and conservative justices joined together to produce somewhat moderate decisions, framing it as a rebuke to predictions of a sharp rightward turn. But others were quick to point out the ways in which the Court’s decisions—especially those that came in a late flurry—were decidedly conservative, attacking voting rights, campaign finance laws, juvenile defendants, and unions. In other words, while the term wasn’t all bad, its handful of very bad decisions could not be treated as mere exceptions to an overall pattern of unanimity. Even where the justices did concur, moreover, it was to be wondered what might have been sacrificed for the sake of consensus.     

Three of the cases cited as examples of the Court’s surprising solidarity involved the constitutional rights owed to criminal suspects and limits on law enforcement. In each decision, conservatives joined with the three Democratic-appointed justices to deliver wins for criminal suspects, strengthening their Fourth Amendment rights against law enforcement. These decisions provide needed protections against police overreach, but what’s most interesting is how this ideologically divided court arrived at them: through an originalist method of interpretation initially championed by the late Justice Antonin Scalia. Two of the cases rely heavily on early English common law, while one summarily decides its issue on the basis of a case from the 1970s, in what some have identified as a quieter victory for originalism.

Against the background of this past year and a half, when George Floyd’s murder inspired a summer of mass protests, it might seem hard to contemplate the appropriate scope of police power without considering how often it is abused and how often this abuse goes unpunished. But the Court’s opinions nimbly avoid any discussion of the dangers to citizens of extensive police contact, the prevalence of misconduct, or the disparate impact of these hazards on people of color. Instead, they rely on cases involving English countesses and coercive debt collection, grafting their seemingly anachronistic lessons onto the present day.

It is a great relief that this conservative court produced decisions that will preserve crucial protections for criminal defendants, and many have praised the Court’s reasoning as appropriately neutral and apolitical. But it is worth reflecting on what we lost in these wins.


Torres v. Madrid was the first of these three cases decided this term. Roxanne Torres, a then twenty-eight-year-old New Mexico woman, had sued the government in 2014 after police shot at her thirteen times while she drove away in her car. She claimed that the officers had violated her Fourth Amendment rights against excessive force, but lower courts decided against her, saying she hadn’t been “seized” at all—a prerequisite for the Fourth Amendment to apply—since the officers hadn’t succeeded in restraining her.

The Supreme Court decided for Torres, ruling that police didn’t need to get control over someone in order to “seize” them—thereby keeping the door open for excessive force claims even by those who escape an officer’s grasp. Chief Justice John Roberts’s majority opinion was joined by all three liberal justices as well as Brett Kavanaugh. After referring to a previous opinion by Scalia, the Court reached its conclusion by tracing the meaning of “seizure” and the related concept of “arrest” at the time of the country’s founding, guided heavily by Scalia’s prior analysis. 

A romp through early British and American common law, the Torres majority decision draws on a series of arcane cases involving debt collection practices. One rule in place at the founding, for instance, allowed officers to forcibly enter a debtor’s home so long as the debtor had escaped arrest, and defined arrest to occur when the collector merely touched the suspect.

At one point, the opinion seems to delight in the whimsy of its originalist approach. It makes an analogy between Torres’s predicament and a common law case from early seventeenth-century England concerning Isabel Manners (née Holcroft), countess of Rutland, in which serjeants-at-mace “shewed her their mace, and touching her body with it, said to her, we arrest you, madam.” Just as the mace effected an arrest in that case, a bullet did so here, the argument goes. In a footnote following the citation, the majority relishes the fact that Holcroft had previously stolen jewels from another countess, leading to what the Court refers to as the “clash of the countesses.”


Reading this historical analysis, which, between the majority and dissent, includes four different instances of the word “shew,” it would be easy to miss what was at stake. As Torres’s brief points out, the rule that the police officers preferred would leave “many wholly unjustified uses of deadly force untouched by the Fourth Amendment.” It would prevent anyone who escaped the police’s grasp, or who was merely injured but not incapacitated by the bullets of a gun, from pursuing excessive force claims. In one example, also out of New Mexico, a court applying that rule dismissed a claim by a man who was shot ten times but managed to drive a short distance and call his mom. An amicus brief by the NAACP Legal Defense and Educational Fund goes further in stating the obvious: the burden of this rule would fall most heavily on the communities of color that have always disproportionately been victims of police misconduct. 

The dissent at one point suggests that the majority decided the way it did because of an “impulse that individuals like Ms. Torres should be able to sue for damages” on the grounds that police shootings sometimes “cry out for a remedy.” The majority retorts that there is “no call for such surmise,” since they “simply agree with the analysis of the common law of arrest and its relation to the Fourth Amendment set forth thirty years ago by Justice Scalia.” This exchange should help explain why Kavanaugh and Roberts signed onto the majority. It also reveals the rules of originalist constitutional interpretation, where common sense and concerns about the unpunished harms of police violence are pushed aside by case law drafted three centuries ago. 


An approach less narrow, though still confined, shows up in another Fourth Amendment case decided in late June, Lange v. California, about an exception to the general requirement that police must obtain a warrant before entering someone’s home. One exception exists when there are “exigent circumstances.” The Court was tasked with determining whether this exception always existed when someone suspected of criminal activity, even if only a misdemeanor, had fled the police. The petitioner in that case, Arthur Lange, a retired real estate agent, was listening to loud music in his car with the windows down and honking his horn as he drove on a highway in Sonoma. An officer indicated that Lange should pull over, but he kept driving, pulled into his driveway, and entered his garage. The officer followed him in without a warrant.

The Court decided that there was no categorical warrant exception for fleeing suspects. The majority opinion, written by Justice Elena Kagan and signed onto by the other liberal justices as well as Neil Gorsuch, Kavanaugh, and Barrett, reached this decision in two parts. The first one begins with clarity and perspective, by reviewing some of the “core” values of the Fourth Amendment as well as the Court’s own case law. This part expounds on the “sanctity of a person’s living space” and the “centuries-old principle” that the “home is entitled to special protection.” In the second part, Kagan turns to the common law in place when the Constitution was ratified. She opens the discussion humbly, acknowledging that the law of the time is often hard to determine and does not “reveal a limpid legal rule,” but then proceeds to consult the typical array of originalist sources, including Sir William Blackstone’s definitions and William Hawkins’s 1716 treatise Pleas of the Crown.

Lange’s brief to the Court set out the importance of the issue before it: the rule that the defendants supported would have given officers “wide discretion to enter private dwellings without warrants based on a vast array of minor offenses,” risking “confrontations that can end in tragedy.” Lange pointed out that racial minorities, because of discriminatory policing, were especially likely to be involved in misdemeanor pursuits, and that allowing police to enter homes as a result of these pursuits would “raise the stakes in a significant subset of citizen-police encounters.” The petition listed several recent cases of people injured, traumatized, or even killed as a result of such encounters. In one, an officer in a fatigue-style camouflage uniform chased someone into his home and ended up killing another resident who had pulled out a gun, not knowing that the pursuer was a police officer.

One might think that it would be relevant to consider the prevalence of these encounters in drawing the line that police cannot cross. An invasion of one’s living space, after all, feels very different when the invader is an officer with a gun and the authority to use it—a power that they may abuse. The violation is not just to an abstract sense of the sanctity of the home, but to the dignity and safety of those within it. This is all part of the actual burden imposed on civilians by warrantless police entry, yet this was a burden the Court did not consider, sticking instead to its own case law and guidance from the seventeenth and eighteenth centuries.


The final Fourth Amendment case argued this term, Caniglia v. Strom, was about another exception to the warrant requirement. It contemplated whether officers could enter someone’s home without a warrant in order to perform non-law enforcement, “community caretaking” duties, such as performing welfare checks on neighbors who live alone. The Court, relying narrowly on a 1973 Rehnquist opinion, unanimously and briefly found they could not.


By expanding protections against the police, these cases warrant optimism. And it is arguably satisfying to see originalism, which often guarantees conservative outcomes, at the heart of them. As it happens, for the last several decades, largely due to Scalia’s influence, the Fourth Amendment has been one area of jurisprudence in which an originalist approach has strengthened rights that liberals want to protect. This makes sense if you think about the trajectory of historical development. The Fourth Amendment was drafted and ratified before police units were created, before they multiplied, and before they became armed. What is often a critique of originalism—that it freezes the rights of citizens in a time when Black people were enslaved, women couldn’t vote, and gay sex was criminal—here turns into a virtue: it holds them fast against new realities.

In a year of widespread protests against police brutality and misconduct, the Supreme Court’s avoidance of contemporary concerns about Fourth Amendment violations seems deliberate. By invoking a countess from Stuart England instead of Breonna Taylor, they appeared to be flaunting their blinders. On some level, this involves a welcome discretion. The Supreme Court, after all, is an unelected group of nine elite-educated justices with the power to strike down laws and policies enacted by popularly elected representatives. Although the success of originalism as a basis for judicial decision-making is debatable, the doctrine at least purports to restrict justices to objective sources.

Unleashing a court thus composed to consider pressing public controversies about police abuse, racism, and unaccountability, which inspire deep political divides, may be unadvisable for its legitimacy—especially when many of its critics are proposing to reduce, not expand, its purview and power. We already know the very conservative instincts of Justices Samuel Alito and Clarence Thomas; do we really want to discover how Justice Barrett, unbound from such restraint, would write opinions?

But these virtues of the Court’s recent approach hide a grave flaw in both originalist and textualist interpretations: the Founders were oblivious to concerns at the heart of today’s conversations about policing. For them, the Fourth Amendment was primarily a vehicle to prevent the king’s minions from searching the homes of political opponents and pamphleteers. Their fear of tyranny does not extend to our modern experience of mass incarceration or the police brutality that killed Eric Garner, Philando Castile, and George Floyd. As the Stanford professor David Sklansky wrote in a 2000 Columbia Law Review article, the problem with relying on early modern common law in arguments about the Fourth Amendment is “the limited range of the questions it asked.”

A Fourth Amendment that draws its meaning from centuries-old law leaves little room for the questions we might want the Supreme Court to consider today—about such matters as the way police practices disparately affect people of color, how police routinely abuse their power, and how they evade accountability. And while the common law that preceded the Founders’ era often yields strong Fourth Amendment rights, there is no guarantee that every trip to the archive will uncover cases that, properly applied, curb police power.

Translating old precedent to the present works in strange ways. Take the “mere touch” rule relied on in Torres: in the debtor cases, an expansive definition of arrest provided law enforcers with greater power to invade a person’s privacy; applied in Torres, this precedent is deployed to provide stronger protection against law enforcement abuses. Scalia himself, while often hailed as a guardian angel of criminal suspects, did not always come out on their side when he consulted originalist sources.

It is not too much to ask the Court to see more fully the stakes of the text it interprets. Justices already allow themselves to be pulled by the facts of modern life, sometimes even straying from what is cited in the petitioners’ briefs. This is especially true in dissenting or concurring opinions that agree with the majority’s conclusion but use different reasoning. In 2016, for instance, Justice Sonia Sotomayor wrote an extraordinary dissent in a case about remedies for unlawful searches and seizures. Citing Ta-Nehisi Coates, W.E.B. Du Bois, and James Baldwin, she expounded on the need for robust Fourth Amendment rights to protect against suspicionless police stops, describing how they violate dignity and unequally affect people of color.

Justice Alito’s concurrence in the last of this session’s Fourth Amendment cases, Caniglia v. Storm, in which he expressed a nagging concern left unresolved by the majority’s opinion, provides another illustration. Invoking a hypothetical that Chief Justice Roberts had posed at oral argument, Alito imagines the case of an elderly woman whose neighbors call the police after she fails to come over for dinner. He goes on to cite statistics showing that “more than ever, many people, including many elderly persons, live alone” and are liable to “fall in their homes” or “become incapacitated for other reasons.”

Unfortunately, though, he says, “there are many cases in which such persons cannot call for assistance. In these cases, the chances for a good recovery may fade with each passing hour.” He concludes the thought with a dramatic plea: “This imaginary woman may have regarded her house as her castle, but it is doubtful that she would have wanted it to be the place where she died alone and in agony.” Alito’s concerns are not grounded in legal doctrine, precedent, or constitutional text. They are supported by citations from the recent US census, as well as a blog post published on the website of a financial technology company.

It should astonish us that these three cases give more consideration to a hypothetical old lady than to the real people most affected by the policies the Court is discussing (the only time you’ll find the word “Black” here is in the name of William Blackstone, who died in 1780). It is too easy to chalk up the Court’s evasions to judicial principles of neutrality and restraint when those principles are already selectively discarded. Maybe this is the best we’ll get from this Supreme Court: a Fourth Amendment defined on the basis of centuries-old common law and a restrained reading of the Court’s own precedent.

This is nothing to scoff at, so long as the casebooks keep yielding precedents that help protect people accused of crimes. But if it’s reassuring that the justices are not overstepping their authority, it’s also worrying that they are not considering what the Fourth Amendment—the Constitution’s primary limitation on police power—ought to protect against today. Celebrating that the justices strengthened protections for criminal defendants this spring need not stop us from wishing they didn’t determine our future rights on the basis of past law without confronting the present moment.

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