The organizers of this Conference obviously gave a lot of thought to its structure. We started off with a session that showed the Supreme Court at its best, working under the gentle leadership of Chief Justice Warren, and guided by the sage counsel of Justice Brennan, to balance the demands of the Fourth Amendment with the exigencies of street encounters. Now we come to a session in which the Supreme Court comes off well, not merely in one, but in both papers. For Steve Saltzburg, Terry itself may not have been perfect, but, over time, the Court has made it "practically perfect." David Harris is not so satisfied, however, he has no quarrel with the Court either. The bad actors in David's piece are the lower courts that have been tonedeaf to the Supreme Court's demands for particularized inquiries into reasonable suspicion. These courts have instead developed gross categorical rules that relieve police officers of the burden of justification that the Court tried to put on them in Terry.
Given what I know about some of the people who will be participating in sessions of this Conference after this one, I have a feeling it's going to be downhill for the Supreme Court from here. I don't want to be too mean. I will not condemn the Court. My politeness will go even further; I will not castigate the lower courts. I will not even really disagree with either Steve or David. I shall be the model guest.
Fourth Amendment | Law | Supreme Court of the United States
Daniel C. Richman,
The Process of Terry-Lawmaking,
St. John's L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2489
Originally published in the St. John's Law Review.