Justice Roberts Renews Old ‘Exclusionary’ Fight


In 1983, a young lawyer in the Reagan White House was hard at work on what he called “the campaign to amend or abolish the exclusionary rule” – the principle that evidence obtained by police misconduct cannot be used against a defendant. The Reagan administration's attacks on the exclusionary rule – a barrage of speeches, opinion articles, litigation and proposed legislation – never gained much traction. But now that young lawyer, John G. Roberts Jr., is chief justice of the United States, notes the New York Times.

This month, Chief Justice Roberts, writing for the majority in Herring v. United States, a 5-to-4 decision, took a big step toward the goal he had discussed a quarter-century before. Taking aim at one of the towering legacies of the Warren Court, its landmark 1961 decision applying the exclusionary rule to the states, the chief justice's majority opinion established for the first time that unlawful police conduct should not require the suppression of evidence if all that was involved was isolated carelessness. That was a significant step in itself. More important yet, it suggested that the exclusionary rule itself might be at risk.

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