By Andrew Manuel Crespo. Full text here.
Anthony Amsterdam’s seminal Perspectives on the Fourth Amendment opens with a discussion of the various institutional “vexations” that confront the Supreme Court when it works to interpret and implement the Fourth Amendment. Commemorating the centennial volume of the Review that first published that legal classic, this Article offers a renewed assessment of the institutional vexations confronting the Court in this arena, tracing three new institutional developments that have emerged over the four decades that have followed in the Perspectives’ wake. Those new developments are: (1) the sharp shift in the composition of the Supreme Court toward Justices with prior professional experience as prosecutors; (2) the rise of a markedly imbalanced Supreme Court Bar, in which criminal defendants not only lack the expert representation common to litigants in civil cases, but are also dramatically outmatched by the expertise of opposing government counsel; and (3) the rise of “constitutional-claim bargaining,” a process in which prosecutors exercise their considerable charging leverage to shape the pipeline of constitutional issues that are exposed to the light of litigation in the first instance, and that are thus able to make their way to the Supreme Court for review. This Article examines each of these new developments in turn. In so doing, it identifies specific steps that the Supreme Court itself could take to mitigate the potentially ill effects that these new vexations might entail—steps by which the Court could begin to regain a more balanced institutional perspective of the criminal justice system over which it presides.