Stopping the pendulum: Why stare decisis should constrain the court from further modification of the search incident to arrest exception

University of Illinois Law Review

Volumn 2011, Issue 2, 2011, Pages 695-739

  Berland, David L ^a  

^a UNIVERSITY OF ILLINOIS AT URBANA CHAMPAIGN   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79957627537     PISSN: 02769948     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (466)

1. James J. Tomkovicz, Divining and Designing the Future of the Search Incident to Arrest Doctrine: Avoiding Instability, Irrationality, and Infidelity, 2007 U. ILL. L. REV. 1417, 1421-45.
2. -395 U.S. 752, 770 (1969) (White, J., dissenting).
3. See, e.g., id. at 766 (majority opinion).
4. See id. at 758.
5. Compare Arizona v. Gant, 129 S. Ct. 1710, 1714 (2009).
6. with New York v. Belton, 453 U.S. 454, 460 (1981).
7. See generally David S. Rudstein, Belton Redux: Reevaluating Belton's Per Se Rule Governing the Search of an Automobile Incident to an Arrest, 40 WAKE FOREST L. REV. 1287 (2005).
8. Tomkovicz, supra note 1.
9. See, e.g., Belton, 453 U.S. at 460 ("[We] hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.").
10. -129 S. Ct. at 1714.
11. -453 U.S. at 455.
12. Gant, 129 S. Ct. at 1714.
13. Id.
14. See generally William S. Consovoy, The Rehnquist Court and the End of Constitutional Stare Decisis: Casey, Dickerson and the Consequences of Pragmatic Adjudication, 2002 UTAH L. REV. 53.
15. Charles J. Cooper, Stare Decisis: Precedent and Principle in Constitutional Adjudication, 73 CORNELL L. REV. 401 (1988).
16. Rafael Gely, Of Sinking and Escalating: A (Somewhat) New Look at Stare Decisis, 60 U. PITT. L. REV. 89 (1998).
17. Lawrence B. Solum, The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights, 9. U. PA. S. CONST. L. 155 (2006).
18. Robert Barnhart, Note, Principled Pragmatic Stare Decisis in Constitutional Cases, 80 NOTRE DAME L. REV. 1911 (2005).
19. Todd E. Freed, Comment, Is Stare Decisis Still the Lighthouse Beacon of Supreme Court Jurisprudence?: A Critical Analysis, 57 OHIO ST. L.J. 1767 (1996).
20. James C. Rehnquist, Note, The Power that Shall Be Vested in a Precedent: Stare Decisis, the Constitution, and the Supreme Court, 66 B.U. L. REV. 345 (1986).
21. See, e.g., Consovoy, supra note 12, at 105 ("When stare decisis is viewed in the context of relevant case law, particularly Casey and Dickerson, it is apparent that this haphazard and consequentialist application of stare decisis is not a benefit, but a detriment.").
22. -21 C.J.S. Courts § 193 (2010) (citation omitted).
23. Consovoy, supra note 12, at 57.
24. See generally Roe v. Wade, 410 U.S. 113 (1973) (holding that the fundamental right of privacy includes the right of women to seek an abortion for any reason until the second trimester).
25. Consovoy, supra note 12, at 57-58.
26. Id. Compare, e.g.. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 878-79 (1992) (upholding Roe, 410 U.S. 113).
27. with Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954).
28. overruling Plessy v. Ferguson, 163 U.S. 537 (1896).
29. See Casey, 505 U.S. at 853.
30. See Consovoy, supra note 12, at 64.
31. William N. Eskridge Jr., Overruling Statutory Precedents, 76 GEO. L.J. 1361, 1362 (1988). Some scholars believe that the Supreme Court has created a "threetiered hierarchy of stare decisis." Eskridge, supra, at 1362. In this hierarchy, [c]ommon law precedents enjoy a strong presumption of correctness. The Court applies a relaxed, or weaker, form of that presumption when it reconsiders its constitutional precedents, because the difficulty of amending the Constitution makes the Court the only effective resort for changing obsolete constitutional doctrine. Statutory precedents, on the other hand, often enjoy a super-strong presumption of correctness. Id.
32. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405-13 (1932) (Brandeis, J., dissenting).
33. Eskridge, supra note 20, at 1362.
34. Burnet, 285 U.S. at 407 (noting the difficulty in amending the Constitution). This assumption is false. See infra Part IV.A.3.
35. Dickerson v. United States, 530 U.S. 428, 443 (2000).
36. As Justice Souter noted, overruling constitutional precedents "is a matter of no small import, for 'the doctrine of stare decisis is of fundamental importance to the rule of law.'" Payne v. Tennessee, 501 U.S. 808, 842 (1991) (Souter, J., concurring) (quoting Welch v. Tex. Dep't of Highways & Pub. Transp., 483 U.S. 468, 494 (1987)).
37. For the rest of this Note, "stare decisis" refers to horizontal stare decisis unless otherwise specified.
38. See People v. Petit, 648 N.W.2d 193, 199 (Mich. 2002).
39. But see Anastasoff v. United States, 223 F.3d 898, 900-05 (8th Cir. 2000), vacated, 235 F.3d 1054, 1056 (8th Cir. 2000) (en banc) (arguing that under Article III of the U.S. Constitution stare decisis is a constitutional requirement).
40. For an excellent discussion on why Anastasoff v. United States is inconsistent with the history of stare decisis, see Barnhart, supra note 12, at 1916-19.
41. Vitro v. Mihelcic, 806 N.E.2d 632, 634 (Ill. 2004) (citation omitted).
42. Payne, 501 U.S. at 827.
43. Welch, 483 U.S. at 494.
44. Lawrence v. Texas, 539 U.S. 558, 577 (2003).
45. see Frank H. Easterbrook, Stability and Reliability in Judicial Decisions, 73 CORNELL L. REV. 422, 424 (1988) ("Doctrines with sufficiently bad pedigrees or sufficiently bad effects must go "). Chief Justice Roberts aptly points out that if stare decisis was an inexorable command, "segregation would be legal, minimum wage laws would be unconstitutional, and the Government could wiretap ordinary criminal suspects without first obtaining warrants".
46. Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876, 920 (2010) (Roberts, C.J., concurring).
47. See, e.g., Barnhart, supra note 12, at 1921.
48. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 854-69 (1992).
49. BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 149 (1921).
50. Stare decisis "reflects a policy judgment that in most matters it is more important that the applicable rule of law be settled than that it be settled right." Agostini v. Felton, 521 U.S. 203, 235 (1997) (internal quotations omitted).
51. See Thomas R. Lee, Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court, 52 VAND. L. REV. 647, 650 n.14 (1999).
52. See Christopher P. Banks, The Supreme Court and Precedent: An Analysis of Natural Courts and Reversal Trends, in JUDICIAL POLITICS: READINGS FROM JUDICATURE 378, 379 tbl.1 (Elliot E. Slotnick ed., 2d ed. 1999).
53. Eskridge, supra note 20, at 1362 n.11. But see Lee, supra note 33, at 733 ("Rumors of the recent demise of the Supreme Court's doctrine of precedent are greatly exaggerated.").
54. Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in 18 THE TANNER LECTURES ON HUMAN VALUES 79, 87 (Grethe B. Peterson ed., 1997). Justice Scalia contributed to this deterioration in Arizona v. Gant, the case that sparked this Note. See infra Part III.A.4.b.
55. See, e.g., Cooper, supra note 12, at 402 ("The truth, of course, is that stare decisis has always been a doctrine of convenience, to both conservatives and liberals.").
56. For a more thorough discussion of the historical origins of stare decisis see Consovoy, supra note 12, at 66-69.
57. see also Lee, supra note 33, at 659-67.
58. SIR MATTHEW HALE, THE HISTORY OF THE COMMON LAW OF ENGLAND 45-46 (Charles M. Gray ed., Univ. of Chi. Press 1971) (1713).
59. Prior to the eighteenth century, English Courts did not view themselves as bound by past precedent. See Lee, supra note 33, at 660.
60. WILLIAM BLACKSTONE, COMMENTARIES *69.
61. see Lee, supra note 33, at 661.
62. See BLACKSTONE, supra note 39, at *69.
63. See Robert A. Sprecher, The Development of the Doctrine of Stare Decisis and the Extent to Which It Should Be Applied, 31 A.B. A. J. 501, 502 (1945).
64. See Schick v. United States, 195 U.S. 65, 69 (1904) ("At the time of the adoption of the Federal Constitution it had been published about twenty years, and it has been said that more copies of the work had been sold in this country than in England, so that undoubtedly the framers of the Constitution were familiar with it.").
65. Consovoy, supra note 12, at 67.
66. Lee, supra note 33, at 661.
67. For example, Alexander Hamilton seemingly favored a stronger, less flexible, application of stare decisis than James Madison. Compare THE FEDERALIST No. 78 (Alexander Hamilton), with Letter from James Madison to Charles Jared Ingersoll (June 25, 1831).
68. reprinted in THE MIND OF THE FOUNDER: SOURCES OF THE POLITICAL THOUGHT OF JAMES MADISON 391, 391 (Marvin Meyers ed., rev. ed. 1981).
69. See also Consovoy, supra note 12, at 69 ("The thoughts of Hamilton, Madison, Cranch, and Kent reveal a deep internal conflict between the concreteness required by the rule of law, and the flexibility demanded in error correction.").
70. Consovoy, supra note 12, at 69.
71. Compare Thomas Healy, Stare Decisis as a Constitutional Requirement, 104 W. VA. L. REV. 43, 91-106 (2001).
72. with Lee J. Strang, An Originalist Theory of Precedent: Originalism, Nonoriginalist Precedent, and the Common Good, 36 N.M. L. REV. 419, 447-72 (2006).
73. See Lee, supra note 33, at 662-65.
74. see also Barnhart, supra note 12, at 1913.
75. See Lee, supra note 33, at 666-81 (discussing the Marshall Court's application of stare decisis).
76. Consovoy, supra note 12, at 55-56 ("Rehnquist Court rulings have clouded notions of stare decisis Rehnquist Court decisions cannot possibly form a coherent, principled theory.").
77. See Banks, supra note 34, at 379 tbl.1.
78. Consovoy, supra note 12, at 76-78.
79. see also Payne v. Tennessee, 501 U.S. 808, 849 (1991) (Marshall, J., dissenting).
80. Consovoy, supra note 12, at 76.
81. See id. at 78-81.
82. See, e.g., Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876, 920-24 (2010) (Roberts, C.J., concurring).
83. Consovoy, supra note 12, at 77.
84. see also Dickerson v. United States, 530 U.S. 428, 443-44 (2000) (upholding Miranda v. Arizona, 384 U.S. 436 (1966), in part because of the reliance law enforcement had on the decision).
85. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 854 (1992) ("[W]e may ask... whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation ").
86. Consovoy, supra note 12, at 77.
87. Casey, 505 U.S. at 854-55.
88. See Gely, supra note 12, at 133-34.
89. Patterson v. McLean Credit Union, 491 U.S. 164, 173 (1989).
90. Swift & Co. v. Wickham, 382 U.S. 111, 124-25 (1965).
91. Id.
92. Id.
93. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 855 (1992).
94. see Consovoy, supra note 12, at 77.
95. Gely, supra note 12, at 136.
96. Compare Casey, 505 U.S. at 864 (upholding Roe v. Wade, 410 U.S. 113 (1973), after noting that "neither the factual underpinnings of Roe's central holding nor our understanding of it has changed"), with Lawrence v. Texas, 539 U.S. 558, 573 (2003) (overturning Bowers v. Hardwick, 478 U.S. 186 (1986), because legal and factual circumstances had perceptibly changed).
97. Gely, supra note 12, at 135.
98. Patterson v. McLean Credit Union, 491 U.S. 164, 173 (1989).
99. -514 U.S. 695, 713 (1995).
100. see Gely, supra note 12, at 135-36.
101. Compare Braden v. 30th Judicial Circuit Ct., 410 U.S. 484, 497-99 (1973), with Patterson, 491 U.S. at 173.
102. Ernest A. Young, Judicial Activism and Conservative Politics, 73 U. COLO. L. REV. 1139, 1168 (2002) (italics omitted).
103. See Banks, supra note 34, at 379 tbl.1.
104. -501 U.S. 808 (1991).
105. -539 U.S. 558 (2003).
106. Id. at 573-78.
107. -501 U.S. at 817.
108. -482 U.S. 496 (1987).
109. -490 U.S. 805 (1989).
110. Payne, 501 U.S. at 827.
111. Id. at 817-27 (arguing that considering the personal characteristics of the victim is necessary to assess the blameworthiness of defendants).
112. Id. at 828-29.
113. Lawrence v. Texas, 539 U.S. 558, 566 (2003) (quoting Bowers v. Hardwick, 478 U.S. 186, 190 (1986)).
114. Id. at 578 ("Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.").
115. Payne, 501 U.S. at 827.
116. See Lawrence, 539 U.S. at 573-79.
117. Id. at 573 ("The 25 States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States where sodomy is still proscribed... there is a pattern of nonenforcement with respect to consenting adults acting in private.").
118. Id at 573-76.
119. Id. at 577 ("Indeed, there has been no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding once there are compelling reasons to do so."). But see id. at 589-91 (Scalia, J., dissenting) (arguing that overruling Bowers would cause a "massive disruption of the current social order").
120. Id. at 577 (majority opinion). It seems that Justice Kennedy was referring to the workability of the rule, but it is not entirely clear.
121. Id. at 578 ("Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent."). Merely attacking the debatable reasoning of a prior decision opens up the doctrine of stare decisis to legitimate criticism. Id. at 592 (Scalia, J., dissenting) ("It has thereby exposed Casey's extraordinary deference to precedent for the result-oriented expedient that it is.").
122. -505 U.S. 833 (1992).
123. -530 U.S. 428 (2000).
124. Id. at 443 ("Whether or not we would agree with Miranda's reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now.").
125. Casey, 505 U.S. at 853 ("[T]he reservations any of us may have in reaffirming the central holding of Roe are outweighed by the explication of individual liberty we have given combined with the force of stare decisis.").
126. But see Consovoy, supra note 12, at 83-87, 98 (arguing that Casey's application of stare decisis was unprincipled and that the doctrine is used only to justify the Justices' desired outcome).
127. Casey, 505 U.S. at 846.
128. See id. at 854-69.
129. Id. at 855 ("While Roe has, of course, required judicial assessment of state laws affecting the exercise of the choice guaranteed against government infringement, and although the need for such review will remain as a consequence of today's decision, the required determinations fall within judicial competence.").
130. Id. at 856 (emphasis added).
131. Id. at 857 ("No development of constitutional law since the case was decided has implicitly or explicitly left Roe behind as a mere survivor of obsolete constitutional thinking.").
132. Id. at 860 ("[N]o change in Roe's factual underpinning has left its central holding obsolete, and none supports an argument for overruling it.").
133. Dickerson v. United States, 530 U.S. 428, 444 (2000).
134. Id. at 443 ("Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.").
135. Id. at 443-44 ("If anything, our subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement while reaffirming the decision's core ruling that unwarned statements may not be used as evidence in the prosecution's case in chief.").
136. Justice Scalia attacked the majority's presumptive use of stare decisis in his dissent. Id. at 465 (Scalia, J., dissenting).
137. See, e.g., Consovoy, supra note 12, at 105 ("When stare decisis is viewed in the context of relevant case law, particularly Casey and Dickerson, it is apparent that this haphazard and consequentialist application of stare decisis is not a benefit, but a detriment.").
138. See Drew C. Ensign, Note, The Impact of Liberty on Stare Decisis: The Rehnquist Court from Casey to Lawrence, 81 N.Y.U. L. REV. 1137, 1138 (2006) ("The Court's approach to stare decisis in constitutional cases can be explained remarkably well with the addition of a single factor to the stare decisis analysis: the impact of the previous decision on individual liberty rights.").
139. Id. at 1138.
140. See id. at 1144-54.
141. Id. at 1160 ("The inclusion of liberty in stare decisis analysis is faithful to [constitutional] traditions, and it may even be required by them.").
142. Id. at 1164. Ensign believes that Justice Kennedy is the critical proponent of the "liberty thesis." Id. at 1165.
143. See, e.g., Payne v. Tennessee, 501 U.S. 808, 827 (1991) (holding that the Eighth Amendment did not prevent the introduction of victim impact evidence).
144. See discussion infra Part IV.A.3.a.
145. See Linda Greenhouse, Precedents Begin Falling for Roberts Court, N.Y. TIMES, June 21, 2007, at A21.
146. Demise of Stare Decisis Under the Stewardship of Chief Justice Roberts, THE DAILY CENSORED: UNDERREPORTED NEWS AND COMMENTARY (Jan. 22, 2010), http://dailycensored.com/2010/01/22/demise-of-stare-decisis-under-the- stewardship-of-chief-justice-roberts/.
147. -130 S. Ct. 876 (2010).
148. Lewis F. Powell, Jr., Stare Decisis and Judicial Restraint, 47 WASH. & LEE L. REV. 281, 288 (1990).
149. Arizona v. Gant, 129 S. Ct. 1710, 1722 n.9 (2009).
150. U.S. CONST, amend. IV.
151. Certain members of the Court have always advocated that the Fourth Amendment does not require warrants, but only that all searches and seizures be reasonable. See, e.g.. United States v. Rajubinowitz, 339 U.S. 56, 66 (1950).
152. The Court in recent years has shown a tendency to move away from the warrant requirement and toward a reasonableness test, which balances the individual's privacy interest against the governmental interest. See, e.g., Maryland v. Buie, 494 U.S. 325, 333-34 (1990). Under this approach, the search incident to arrest rule would not be characterized as an "exception" to the Fourth Amendment's warrant requirement, but instead merely a situation where a search is reasonable.
153. Katz v. United States, 389 U.S. 347, 357 (1967) (citations omitted).
154. see also Johnson v. United States, 333 U.S. 10, 14 (1948).
155. See Chimel v. California, 395 U.S. 752, 755 (1969) ("The decisions of this Court... have been far from consistent, as even the most cursory review makes evident.").
156. Tomkovicz, supra note 1, at 1421.
157. -232 U.S. 383, 392 (1914) (citations omitted). It should be noted, however, that the case did not make "reference to any right to search the place where an arrest occurs, but was limited to a right to search the 'person.'" Chimel, 395 U.S. at 755.
158. Agnello v. United States, 269 U.S. 20, 30 (1925) ("The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted."). The full scope of a permissible search was not made clear.
159. Tomkovicz, supra note 1, at 1422 n.24.
160. -275 U.S. 192, 199 (1927).
161. Id.
162. -282 U.S. 344 (1931).
163. -285 U.S. 452 (1932).
164. Id. at 465-67.
165. Go-Bart Importing Co., 282 U.S. at 358.
166. Go-Bart Importing Co., 282 U.S at 358.
167. Harris v. United States, 331 U.S. 145, 156 (1947).
168. Id. at 151-52 ("The opinions of this Court have clearly recognized that the search incident to arrest may, under appropriate circumstances, extend beyond the person of the one arrested to include the premises under his immediate control.").
169. -334 U.S. 699, 708 (1948).
170. Id. It should be noted that despite the broad language, the Court did not directly overrule Harris. Id. at 708-09. Despite conciliatory language, only Justice Douglas voted for the majority in both Harris and Trupiano, highlighting a sharp philosophical schism between the Justices over the search incident to arrest rule. Id. at 699 (majority opinion written by Justice Murphy and joined by Justices Frankfurter, Douglas, Jackson, and Rutledge).
171. Harris, 331 U.S. at 145 (majority opinion written by Chief Justice Vinson and joined by Justices Black, Reed, Douglas, and Burton).
172. -339 U.S. 56, 66 (1950).
173. Id. at 58-59.
174. Id. at 66.
175. Chimel v. California, 395 U.S. 752, 760 (1969).
176. See Tomkovicz, supra note 1, at 1425-26.
177. Chimel, 395 U.S. at 768.
178. Id. at 754. The search involved at least a cursory examination of every room in the house and opening drawers. Id.
179. For example, the Court could have narrowly held that the search of an entire house is unacceptable, but that Harris involved a four room apartment and Rabinowitz merely involved a single room. See id. at 758-60.
180. Justice Stewart examined the historical basis of the Fourth Amendment's warrant requirement and asserted that it should only be dispensed with when there is ample justification. See id. at 759-61.
181. Id. at 764-65 (emphasis omitted) ("Under such an unconfined analysis, Fourth Amendment protection in this area would approach the evaporation point. It is not easy to explain why, for instance, it is less subjectively 'reasonable' to search a man's house when he is arrested on his front lawn-or just down the street-than it is when he happens to be in the house at the time of arrest.").
182. Id. at 766. Justice Stewart explained that it is reasonable for an officer to search an arrestee's person because the arrestee may be carrying weapons that could be used to harm the officer or evidence that could be concealed or destroyed and similarly that "the area into which an arrestee might reach in order to grab a weapon or evidentiary items must... be governed by a like rule." Id. at 761.
183. Tomkovicz, supra note 1, at 1429.
184. Justice White advocated for a broader search incident to arrest exception that would include "those areas under the control of the defendant and where items subject to constitutional seizure may be found." Chimel, 395 U.S. at 772 (White, J., dissenting).
185. United States v. Robinson, 414 U.S. 218, 235 (1973) ("A police officer's determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search.").
186. Id. ("[O]ur more fundamental disagreement with the Court of Appeals arises from its suggestion that there must be litigated in each case the issue of whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest."). But see Arizona v. Gant, 162 P.3d 640, 644 (Ariz. 2007) ("But Robinson does not hold that every search following an arrest is excepted from the Fourth Amendment's warrant requirement; if it did, the Court's opinions in the cases following Chimel would hardly have been necessary. Rather, Robinson teaches that the police may search incident to an arrest without proving in any particular case that they were concerned about their safety or the destruction of evidence; these concerns are assumed to be present in every arrest situation. Once those concerns are no longer present, however, the 'justifications [underlying the exception] are absent' and a warrant is required to search." (alteration in original)).
187. New York v. Belton, 453 U.S. 454, 455-56 (1981).
188. Id. at 456.
189. Id. at 460 (footnote omitted).
190. Id. at 460 n.3 (asserting that decision was only interpreting Chimel's principles in the automobile context and that the decision "in no way alters the fundamental principles established in the Chimel case"). Justice Brennan disagreed, writing in his dissent, "the Court for the first time grants police officers authority to conduct a warrantless 'area' search under circumstances where there is no chance that the arrestee 'might gain possession of a weapon or destructible evidence.'" Id. at 468 (Brennan, J., dissenting).
191. Id. at 458 (majority opinion) ("A highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts and requiring the drawing of subtle nuances and hairline distinctions... may be literally impossible of application by the officer in the field." (quotation marks omitted)). But see infra Part III.C.2.d (arguing that officer safety remains a concern even after a suspect is handcuffed and placed in a police car).
192. Belton, 453 U.S. at 458 ("[A] single familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interest involved in the specific circumstances they confront." (quoting Dunaway v. New York, 442 U.S. 200, 213-14 (1979))).
193. Id. at 460 (quotations and citations omitted).
194. Id. at 459 ("[In Robinson] the Court rejected the suggestion that 'there must be litigated in each case the issue of whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest.'").
195. See generally Carol A. Chase, Cars, Cops, and Crooks: A Reexamination of Belton and Carroll with an Eye Toward Restoring Fourth Amendment Privacy Protection to Automobiles, 85 OR. L. REV. 913 (2006).
196. Leslie A. Lunney, The (Inevitably Arbitrary) Placement of Bright Lines: Belton and Its Progeny, 79 TUL. L. REV. 365 (2004).
197. Rudstein, supra note 6.
198. -541 U.S. 615, 617 (2004).
199. Id. at 617-21 ("The stress [of an arrest] is no less merely because the arrestee exited his car before the officer initiated contact, nor is an arrestee less likely to attempt to lunge for a weapon or to destroy evidence if he is outside of, but still in control of, the vehicle.").
200. Id. at 625-32 (Scalia, J., concurring).
201. Id. at 625-29 (noting that Thornton was handcuffed and locked inside a police car and that the government could not provide a "single example of a handcuffed arrestee's retrieval of arms or evidence from his vehicle").
202. Id. at 629.
203. Id. at 632. Justice Scalia's proposal implicitly overrules the holding of United States v. Robinson. Id. at 631-32. See generally United States v. Robinson, 414 U.S. 218 (1973) (holding that the search incident to arrest exception automatically applies after a lawful arrest).
204. Arizona v. Gant, 129 S. Ct. 1710, 1714 (2009). Ironically, Justice Scalia no longer fully supported his own proposal four years later. Id. at 1724-25 (Scalia, J., concurring).
205. Id. at 1714 (majority opinion).
206. Id. at 1714-15.
207. Id. at 1715.
208. Id.
209. Id.
210. Id.
211. Id.
212. Id.
213. Arizona v. Gant, 162 P.3d 640, 646 (Ariz. 2007) ("[W]e hold that the warrantless search of Gant's car was not justified by the search incident to arrest exception to the Fourth Amendment's warrant requirement.").
214. Id. at 644 ("[W]hen, as here, the justifications underlying Chimel no longer exist because the scene is secure and the arrestee is handcuffed, secured in the back of a patrol car, and under the supervision of an officer, the warrantless search of the arrestee's car cannot be justified as necessary to protect the officers at the scene or prevent the destruction of evidence.").
215. Arizona v. Gant, 552 U.S. 1230, 1230 (2008).
216. Gant, 129 S. Ct. at 1723 (emphasis added).
217. Id. at 1724. Justice Stevens pointed out that Gant was in handcuffs and secured in the back of a locked squad car and thus, not within reaching distance of the inside of his car and that the officer lacked a reasonable basis to believe evidence was in the car because Gant was arrested for driving on a suspended license. Id. at 1719.
218. Id. at 1718.
219. Id. at 1718-19. Justice Stevens stated that Justice Brennan's Belton dissent-characterizing Belton's holding as built on a fiction that the inside of an automobile is always within reach of arrestees who were recent occupants of a car-resulted in this incorrect broad interpretation. Id. at 1718.
220. Id. at 1719.
221. Id. at 1720.
222. Id.
223. Id. at 1720-21 ("[Courts] are at odds regarding how close in time to the arrest and how proximate to the arrestee's vehicle an officer's first contact with the arrestee must be to bring the encounter within Belton's purview and whether a search is reasonable when it commences or continues after the arrestee has been removed from the scene." (footnotes omitted)).
224. Id. at 1721.
225. Id. at 1722 n.9. The majority opinion distinguished Belton, pointing out that in Belton the arrestees were within reach of the car and not handcuffed and then distinguished Thornton by noting that Gant was not arrested for a drug offense. Id. at 1722. Justice Stevens's distinguishing fact from Thornton is misleading, however, because the type of offense committed by the arrestee was not relevant under the old Belton test and therefore, cannot explain the inconsistent outcome.
226. Id. at 1722-23 ("[There is a] checkered history of the search-incident-to-arrest exception [N]one of the dissenters [in these cases] . . . argued that law enforcement reliance interests outweighed the interest in protecting individual constitutional rights so as to warrant fidelity to an unjustifiable rule.").
227. Id. at 1723.
228. See infra Part III.A.4.C (discussing Justice Alito's dissent).
229. Gant, 129 S. Ct. at 1725 (Scalia, J., concurring). Justice Scalia recognized that the Court needed a legitimate and significant reason to overturn precedent but thought that Belton's poor reasoning and wrong result provided the necessary justification. Id.
230. Id. at 1724-25.
231. Id. (pointing out that police could "leave the scene unsecured... in order to conduct a vehicle search").
232. Id. at 1725.
233. Id.
234. Id.
235. Id. at 1726-32 (Alito, J., dissenting). Justices Roberts and Kennedy in full and Justice Breyer except as to Part II-E (bad reasoning) joined Justice Alito's dissent. Id. at 1726.
236. Id.
237. Id. at 1727.
238. Id.
239. Id. at 1727-28 ("Because the Court has substantially overruled Belton and Thornton, the Court must explain why its departure from the usual rule of stare decisis is justified.").
240. Id. at 1728.
241. Id.
242. In Dickerson the Court refused to overturn Miranda v. Arizona, 384 U.S. 436 (1966).
243. in part because of the doctrine of stare decisis. See Dickerson v. United States, 530 U.S. 428, 431-44 (2000).
244. Gant, 129 S. Ct. at 1728-29.
245. Id. at 1729 ("[S]urely it was well known in 1981 that a person who is taken from a vehicle, handcuffed, and placed in the back of a patrol car is unlikely to make it back into his own car to retrieve a weapon or destroy evidence.").
246. Id.
247. Id.
248. Id. Justice Alito argued that the Chimel Court must have wanted the scope of a search incident to arrest "to be measured at the time of the arrest" because otherwise the rule would rarely be applicable and would create "perverse incentive[s]" for police to manipulate the scene. Id. at 1730.
249. Id. at 1725-26 (Breyer, J., dissenting).
250. Id. (asserting that the search incident to arrest exception developed in Belton "can produce results divorced from its underlying Fourth Amendment rationale").
251. Id. at 1722 n.9 (majority opinion).
252. Id. at 1719.
253. Id. at 1718.
254. Id. at 1718 n.2.
255. Id. (citing United States v. Green, 324 F.3d 375, 379 (5th Cir. 2003)).
256. Green, 324 F.3d at 378-79. It should be noted that this case would have turned out differently after Thornton v. United States, 541 U.S. 615, 623-24 (2004) (expanding the Belton bright-line rule to recent occupants of automobiles).
257. Gant, 129 S. Ct. at 1718 n.2 (citing United States v. Edwards, 242 F.3d 928, 938 (10th Cir. 2001)).
258. Edwards, 242 F.3d at 938.
259. Gant, 129 S. Ct. at 1718 n.2 (citing United States v. Vasey, 834 F.2d 782, 787 (9th Cir. 1987)).
260. Vasey, 834 F.2d at 787.
261. Id. ("These cases are distinguishable, however, because the searches in these cases followed closely on the heels of the arrest.").
262. Gant, 129 S. Ct. at 1721 n.8.
263. See, e.g.. United States v. Hrasky, 453 F.3d 1099, 1102 (8th Cir. 2006).
264. United States v. Weaver, 433 F.3d 1104, 1106 (9th Cir. 2006).
265. United States v. White, 871 F.2d 41, 44 (6th Cir. 1989).
266. -541 U.S. 615 (2004) (applying Belton when the defendant was handcuffed and locked in a squad car at the time of the search).
267. Justice Alito, Chief Justice Roberts, Justice Kennedy, and Justice Breyer all dissented, asserting that Belton allowed the police to automatically search an automobile contemporaneously to a lawful arrest. Gant, 129 S. Ct. at 1731 (Alito, J., dissenting). Justice Scalia concurred with the majority but agreed with the dissenters that Gant overturned Belton. Id. at 1724-25 (Scalia, J., concurring).
268. See New York v. Belton, 453 U.S. 454, 458 (1981).
269. see also Gant, 129 S. Ct. at 1727 (Alito, J., dissenting).
270. Belton, 453 U.S. at 468 (Brennan, J., dissenting).
271. Id at 460 n.3.
272. see Gant, 129 S. Ct. at 1719 (majority opinion).
273. Belton, 453 U.S. at 460 ("In order to establish the workable rule this category of cases requires, we read Chimel's definition of the limits of the area that may be searched in light of that generalization.").
274. See discussion supra Part III. A.
275. See Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876, 920 (2010) (Roberts, C.J., concurring) ("When considering whether to reexamine a prior erroneous holding, we must balance the importance of having constitutional questions decided against the importance of having them decided right.").
276. Gant, 129 S. Ct. at 1722 (majority opinion).
277. Id.
278. Id. at 1723 ("The fact that the law enforcement community may view the State's version of the Belton rule as an entitlement does not establish the sort of reliance interest that could outweigh the countervailing interest that all individuals share in having their constitutional rights fully protected."). This argument is contrived because the Belton search only became unconstitutional after Gant.
279. See infra Part IV for a discussion of why the reasoning and merits of a past decision should not be considered in a stare decisis analysis.
280. Gant, 129 S. Ct. at 1723 ("The fact that the law enforcement community may view the State's version of the Belton rule as an entitlement does not establish the sort of reliance interest that could outweigh the countervailing interest").
281. -530 U.S. 428, 443 (2000) (noting that the Miranda rule had become "embedded in routine police practice").
282. see also Gant, 129 S. Ct. at 1728 (Alito, J., dissenting) ("If there was reliance in Dickerson, there certainly is substantial reliance here.").
283. See Gant, 129 S. Ct. at 1723 (majority opinion).
284. id. at 1728 (Alito, J., dissenting).
285. WAYNE R. LAFAVE, CRIMINAL LAW 25-26 (4th ed. 2003).
286. See, e.g.. United States v. Hrasky, 567 F.3d 367, 368 (8th Cir. 2009).
287. But some courts have been unwilling to suppress evidence for illegal Belton searches made in good faith. Compare United States v. McCane, 573 F.3d 1037, 1045 (10th Cir. 2009) (holding the good-faith exception to the Fourth Amendment's exclusionary rule applied).
288. and People v. Branner, 103 Cal. Rptr. 3d 256, 259 (Ct. App. 2009) (refusing to apply the exclusionary rule to an unconstitutional search under Gant because the officers relied in good faith on Belton).
289. with United States v. Buford, 623 F. Supp. 2d 923, 927 (M.D. Tenn. 2009) (refusing to apply the good-faith exception to an unlawful Gant search). Of course, evidence will not be suppressed if a search falls within the new Gant rule.
290. Gant, 129 S. Ct. at 1728 (Alito, J., dissenting) ("It is likely that, on the very day when this opinion is announced, numerous vehicle searches will be conducted in good faith by police officers who were taught the Belton rule.").
291. Prosecutors have successfully invoked the inevitable discovery doctrine to avoid evidence suppression in some cases. See, e.g., United States v. Morillo, No. 08 CR 676(NGG), 2009 WL 3254431, at *8 (E.D.N.Y. Oct. 9, 2009).
292. See, e.g., People v. Hunter, 766 N.W.2d 844, 844 (Mich. 2009).
293. Admittedly, any Supreme Court decision creating new constitutional protections for criminal defendants could be characterized as interfering with society's interest in enforcing the law and the efficiency of the judiciary. Thus, neither can be outcome determinative. Nevertheless, these societal reliance interests remain relevant to a stare decisis analysis.
294. New York v. Belton, 453 U.S. 454, 458 (1981) (citations omitted).
295. see also Gant, 129 S. Ct. at 1729 (Alito, J., dissenting).
296. Gant, 129 S. Ct. at 1720-21 (majority opinion).
297. E.g., United States v. Hrasky, 453 F.3d 1099, 1101-02 (8th Cir. 2006) (noting that 8th Circuit precedent plainly illustrates that searches of an automobile incident after a suspect has left the scene are proper and discussing how case law has developed the meaning of "contemporaneous").
298. United States v. Weaver, 433 F.3d 1104, 1106 (9th Cir. 2006) (discussing how the 9th Circuit applies the Belton rule).
299. Gant, 129 S. Ct. at 1729 (Alito, J., dissenting).
300. Id. at 1719 (majority opinion) (citations omitted).
301. id. at 1729 (Alito, J., dissenting).
302. Myron Moskovitz, The Road to Reason: Arizona v. Gant and the Search Incident to Arrest Doctrine, 79 Miss. L.J. 181, 193-94 (2009) (attempting to explain what "reasonable to believe" means).
303. Gant, 129 S. Ct. at 1723 (majority opinion) (internal quotation marks omitted).
304. Id. at 1729 (Alito, J., dissenting).
305. Thornton v. United States, 541 U.S. 615, 617-18, 623-24 (2004) (holding that a search of an automobile incident to arrest was valid despite the search occurring while the arrestee was handcuffed in the back of a squad car).
306. See, e.g. Chambers v. Maroney, 399 U.S. 42, 52 (1970) (permitting searches or seizures of automobiles when officers have probable cause to believe that evidence of a crime or contraband will be found therein).
307. See New York v. Belton, 453 U.S. 454, 460-61 (1981) (allowing police officers to search the passenger compartment of the car and any containers therein incident to a lawful arrest of one of its occupants).
308. See California v. Acevedo, 500 U.S. 565, 580 (1991).
309. Michigan v. Long, 463 U.S. 1032, 1051- 52 (1983).
310. See Thornton, 541 U.S. at 623-24 (expanding Belton to apply to recent occupants of automobiles).
311. But see Arizona v. Gant, 129 S. Ct. 1710, 1721 n.8 (2009) (noting that a minority of states refuse to apply the Belton rule to their own state constitutions).
312. See Consovoy, supra note 12, at 78-81 (discussing how those factors are used in a stare decisis analysis).
313. Id. at 79.
314. See Thornton, 541 U.S. at 623.
315. See, e.g., Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954).
316. To support overturning Plessy v. Ferguson, 163 U.S. 537 (1896), the Court noted that circumstances had changed drastically since 1896, particularly the importance of public education.
317. South Carolina v. Gathers, 490 U.S. 805, 824 (1989) (Scalia, J., dissenting).
318. New York v. Belton, 453 U.S. 454, 454-55 (1981).
319. Id. at 463 (Stevens, J., concurring).
320. Chief Justice Rehnquist wrote the majority opinion joined by Justices Kennedy, Thomas, and Breyer in full and Justice O'Connor except for footnote four. Thornton, 541 U.S. at 616. Justice Scalia concurred in the judgment and in an opinion joined by Justice Ginsburg. Id. Justice Stevens dissented in an opinion joined by Justice Souter. Id.
321. See Consovoy, supra note 12, at 78-79.
322. See Linda Greenhouse, In Latest Term, Majority Grows to More than 5 of the Justices, N.Y. TIMES, May 23, 2008, at A22.
323. See Ensign, supra note 105, at 1138.
324. See Thornton, 541 U.S. at 630 (Scalia, J., concurring).
325. New York v. Belton, 453 U.S. 454, 462-63 (1981).
326. See, e.g., United States v. Buford, 623 F. Supp. 2d 923, 927 (M.D. Tenn. 2009) (suppressing evidence despite the officer's good-faith reliance on the old Belton rule).
327. See infra Part III.D.
328. But see Arizona v. Gant, 129 S. Ct. 1710, 1725-26 (2009) (Breyer, J., dissenting) (arguing that stare decisis should apply despite disagreeing with Belton on its merits).
329. See Thornton, 541 U.S. at 625-33 (Scalia, J., concurring).
330. Rudstein, supra note 6, at 1287-88.
331. Belton, 453 U.S. at 460 (1981) (quotation marks and brackets omitted).
332. See Gant, 129 S. Ct. at 1723.
333. Thornton, 541 U.S. at 626 (Scalia, J., concurring) (noting that the government could only provide a single instance of a handcuffed arrestee "retriev[ing) a weapon from somewhere else").
334. Myron Moskovitz, A Rule in Search of a Reason: An Empirical Reexamination of Chimel and Belton, 2002 WIS. L. REV. 657, 675-76.
335. -395 U.S. 752 (1969).
336. Gant, 129 S. Ct. at 1730 (Alito, J., dissenting) (quotation marks and brackets omitted). To illustrate this confusing concept, imagine that Daisy Defendant is in her automobile when approached by police officer Paulina who has probable cause to arrest Daisy for driving on a suspended license. At the time of arrest, Daisy would likely be inside the car or right next to it and therefore would likely be able to reach inside the passenger compartment for evidence or weapons. After she is handcuffed and put inside the police car, however, Daisy would likely not be able to reach inside the passenger compartment of her car. Because most searches occur after the suspect is completely secured, measuring from the time of the search would usually make the ChimellBelton rule inapplicable. Id.
337. Id. It would also "create a perverse incentive for an arresting officer to prolong the period during which the arrestee is kept in an area where he could pose a danger to the officer." Id. (quotation marks omitted).
338. Compare United States v. Moclavo-Cruz, 662 F.2d 1285, 1289-90 (9th Cir. 1981) (suppressing evidence when the police searched the arrestee's purse at the police department).
339. with Curd v. City Court, 141 F.3d 839, 842 (8th Cir. 1998) (holding that a search of an arrestee's purse was constitutional despite occurring fifteen minutes after arrest).
340. See Gant, 129 S. Ct. at 1730 (Alito, J., dissenting).
341. United States v. Robinson, 414 U.S. 218, 235 (1973).
342. Id.
343. See, e.g., Man Leads Police on Chase While Wearing Handcuffs, WKYT 27 NEWSFIRST, http://www.wkyt.com/news/headlines/7645087.html?story (last visited Jan. 31, 2011).
344. Handcuffed Suspect Steals Police Car, Strikes SUV, MSNBC (Dec. 23, 2010), http://www.msnbc.msn.com/id/21134540/vp/35601669#35601669 (presenting video evidence of a handcuffed arrestee locked in the back of a police car escaping).
345. For a plethora of other examples see also Trooper Trap: Prisoner Seatbelt Alarm, http://www.oktrooper.com/examples-2007.html (last visited Jan. 31, 2011).
346. See Consovoy, supra note 12, at 80.
347. See id.
348. See infra Part IV.A.4.
349. See New York v. Belton, 453 U.S. 454, 463 (1981) (Stevens, J., concurring).
350. see also Thornton v. United States, 541 U.S. 615, 633 (2004) (Stevens, J., dissenting).
351. Consovoy, supra note 12, at 54.
352. Arizona v. Gant, 129 S. Ct. 1710, 1731 (2009) (Alito, J., dissenting).
353. Id. at 1723 (majority opinion).
354. Admittedly, the application of Belton was not always straightforward. See, e.g., United States v. Doward, 41 F.3d 789, 791-93 (1st Cir. 1994).
355. Usually, however, the bright-line rule could be summarily applied. See, e.g., United States v. Maguire, 918 F.2d 254, 259 (1st Cir. 1990).
356. Gant, 129 S. Ct. at 1731 (Alito, J., dissenting).
357. Id. at 1714 (majority opinion).
358. Chimel v. California, 395 U.S. 752, 764 (1969).
359. United States v. Morillo, No. 08 CR 676(NGG), 2009 WL 3254429, at *12 (H.D.N.Y. Aug. 12, 2009).
360. see, e.g., United States v. Nelson, 102 F.3d 1344, 1347 (4th Cir. 1996).
361. United States v. Hernandez, 941 F.2d 133, 135-37 (2d Cir. 1991).
362. United States v. Fleming, 677 F.2d 602, 607-08 (7th Cir. 1982).
363. Montejo v. Louisiana, 129 S. Ct. 2079, 2098-99 (2009) (Stevens, J., dissenting).
364. Id. at 2094 (Alito, J., concurring) (emphasis omitted).
365. Gely, supra note 12, at 106.
366. Consovoy, supra note 12, at 54.
367. Arizona v. Gant, 129 S. Ct. 1710, 1729 (2009) (Alito, J., dissenting) ("[T]he [Belton] rule was adopted for the express purpose of providing a test that would be relatively easy for police officers and judges to apply.").
368. See, e.g., United States v. Jorge, 865 F.2d 6, 9 (1st Cir. 1989).
369. See, e.g., United States v. Doward, 41 F.3d 789, 791-93 (1st Cir. 1994).
370. See, e.g.. United States v. Morillo, No. 08 CR 676(NGG), 2009 WL 3254429, at *12-14 (E.D.N.Y. Aug. 12, 2009).
371. Gant, 129 S. Ct. at 1725 (2009) (Scalia, J., concurring).
372. Vasquez v. Hillery, 474 U.S. 254, 265-66 (1986).
373. Howard Wilkinson, Rare Intersection of Law, Politics Raises Questions, CINCINNATI ENQUIRER, Dec. 12, 2000, at A3.
374. Gerald E. Rosen & Kyle W. Harding, Reflections upon Judicial Independence as We Approach the Bicentennial of Marbury v. Madison. Safeguarding the Constitution's "Crown Jewel, " 29 FORDHAM URB. L.J. 791, 792 (2002).
375. See Banks, supra note 34, at 379 tbl.1.
376. see also Rehnquist, supra note 12, at 370-76.
377. Compare Gant, 129 S. Ct. 1710, with Montejo v. Louisiana, 129 S. Ct. 2079 (2009).
378. For one thing, such judicial flip-flopping resulted in a painful, but necessary lengthy march through the history of the search incident to arrest doctrine in Part III.A.
379. See supra Part III.A for a complete discussion of this erratic history.
380. Moskovitz, supra note 247, at 201 ("There are still several kinks in the opinion that need straightening ").
381. ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES § 1.4 (3d ed. 2006).
382. Consovoy, supra note 12, at 54.
383. This test is also applicable in statutory and common law cases; however, its application in such settings is beyond the scope of this Note.
384. Joel S. Hjelmaas, Stepping Back from the Thicket: A Proposal for the Treatment of Rebuttable Presumptions and Inferences, 42 DRAKE L. REV. 427, 430-31 (1993) (footnotes omitted) (quoting 7 JAMES A . ADAMS & KASEY W. KINCAID, IOWA PRACTICE, EVIDENCE § 301.1 (1988)).
385. Id. at 431.
386. See Dickerson v. United States, 530 U.S. 428, 443 (2000).
387. See id.
388. See, e.g., Payne v. Tennessee, 501 U.S. 808, 817-27 (1991).
389. Justice Alito's dissent in Gant provides an example of how this would look. See Arizona v. Gant, 129 S. Ct. 1710, 1728-31 (2009) (Alito, J., dissenting).
390. Consovoy, supra note 12, at 76-78.
391. See, e.g., Payne, 501 U.S. at 817-27.
392. See Cooper, supra note 12, at 402.
393. Powell, supra note 114, at 288 (noting that judicial restraint is crucial to the future success of stare decisis).
394. Gely, supra note 12, at 133-34.
395. Id. at 136-37.
396. See discussion infra Part IV.A.3.C.
397. See supra Part II.C.1.d.
398. Ensign, supra note 105, at 1138.
399. Id.
400. Id. at 1161-62.
401. Id. at 1160.
402. Emery G. Lee III, Overruling Rhetoric: The Court's New Approach to Stare Decisis in Constitutional Cases, 33 U. TOL. L. REV. 581, 617 (2002).
403. -285 U.S. 393, 405-13 (1932) (Brandeis, J., dissenting).
404. see Lee, supra note 333, at 617.
405. Burnet, 285 U.S. at 409 n.5.
406. Rehnquist, supra note 12, at 352-53.
407. Earl M. Maitz, Some Thoughts on the Death of Stare Decisis in Constitutional Law, 1980 WIS. L. REV. 467, 470-71.
408. Id. at 471.
409. Id.
410. Id.
411. Freed, supra note 12, at 1176 n.64.
412. Obviously, Congress and state legislatures can only pass legislation within the limits prescribed by the Constitution, but this rarely is an issue. Maitz, supra note 337, at 471.
413. Justice Kennedy's stare decisis analysis in Lawrence v. Texas provides an apt example. See Lawrence v. Texas, 539 U.S. 558, 573-79 (2003).
414. supra Part IL.C.1.b.
415. -347 U.S. 483 (1954).
416. James A. Gardner, Madison's Hope: Virtue, Self-interest, and the Design of Electoral Systems, 86 IOWA L. REV. 87, 89 (2000).
417. See Catharine Skipp, A Bridge Too Far, NEWSWEEK, July 25, 2009 (discussing how Florida's residency restrictions on sexual predators have forced some to live under an overpass).
418. Ensign, supra note 105, at 1161.
419. See supra text accompanying note 259.
420. South Carolina v. Gathers, 490 U.S. 805, 824 (1989) (Scalia, J., dissenting) ("[T]he respect accorded prior decisions increases, rather than decreases, with their antiquity, as the society adjusts itself to their existence, and the surrounding law becomes premised upon their validity.").
421. See, e.g., Lawrence v. Texas, 539 U.S. 558, 573-74 (2003) (overruling Bowers v. Hardwick, 478 U.S. 186 (1986), a 5-4 decision, in part because the decision was inconsistent with developments in the law).
422. See Robert E. Riggs, When Every Vote Counts: 5-4 Decisions in the United States Supreme Court, 1900-90, 21 HOFSTRA L. REV. 667, 710 (1993).
423. Maitz, supra note 337, at 484.
424. Compare Arizona v. Gant, 129 S. Ct. 1710, 1719 (2009), with id. at 1729 (Alito, J., dissenting).
425. But see id. at 1725 (Breyer, J., dissenting).
426. EUGENE WAMBAUGH, THE STUDY OF CASES § 48, at 50 & n.l (Little, Brown & Co., 2d ed. 1894).
427. See supra note 12 and accompanying text.
428. Barnhart, supra note 12, at 1921.
429. See supra Part IV.A.2.
430. See supra Part IV.A.3.C.
431. See Freed, supra note 12, at 1771-75 (arguing that the "congressional acquiescence theory" is illogical).
432. See supra Part IV. A.3.C.
433. Countless polls indicate that the general public does not possess even minimal knowledge regarding the Supreme Court. See, e.g., William Ford, The Polls - Supreme Court Awareness, EMPIRICAL LEGAL STUDIES (Feb. 23, 2006, 02:00 AM), http://www.elsblog.org/the-empiricaUegal-studi/2006/02/supreme-court-a.html (indicating that a recent FindLaw poll showed that over half of Americans cannot name a single Supreme Court Justice).
434. Maitz, supra note 337, at 472.
435. Arizona v. Gant, 129 S. Ct. 1710, 1722 (2009).
436. Id. at 1722-24.
437. WILLIAM SHAKESPEARE, THE MERCHANT OF VENICE act 4, sc. 1.
438. see Freed, supra note 12, at 1767.
439. Barnhart, supra note 12, at 1921-22.
440. See supra Part III A.
441. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 179 (1803).
442. Rehnquist, supra note 12, at 368.
443. Id. at 368-69. But see Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 COLUM. L. REV. 723, 740 (1998).
444. Rehnquist, supra note 12, at 366.
445. -407 U.S. 514, 523 (1972).
446. -18 U.S.C. §§ 3161-3174 (2006).
447. See generally Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (establishing authority for judicial review on legislative and executive actions).
448. Lee, supra note 33, at 670-74.
449. Rehnquist, supra note 12, at 369.
450. See Steven G. Calabresi & Livia Fine, Original Ideas on Originalism: Two Cheers for Professors Balkin's Originalism, 103 NW. U. L. REV. 663, 685 (2009).
451. Dickerson v. United States, 530 U.S. 428, 443 (2000).
452. Powell, supra note 114, at 288.
453. See Consovoy, supra note 12, at 55-56.
454. see also supra Part II.C.1.b.
455. See, e.g., Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876, 920-25 (2010) (Roberts, C.J., concurring).
456. Rehnquist, supra note 12, at 376.
457. Consovoy, supra note 12, at 54.
458. Id. at 54-56.
459. Maitz, supra note 337, at 471.
460. Ensign, supra note 105, at 1160-61.
461. Consovoy, supra note 12, at 54.
462. See supra Part III.D.
463. See supra Part III.D.
464. See supra Part III.D (discussing many of the negative implications of the Gant decision).
465. See supra Part III.D.
466. See Chimel v. California, 395 U.S. 752, 758 (1969).