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Gates, Leon, And The Compromise Of Adjudicative Fairness (Part Ii): Of Aggressive Majoritarianism, Willful Deafness, And The New Exception To The Exclusionary Rule, Joel Jay Finer
Cleveland State Law Review
Part I examined in a dialogue form the idea that Justice White and other members of the Leon majority had prejudged issues of law in earlier cases––pre-committed themselves in violation of their duty of impartiality––by elaborating in detailed, cohesive, comprehensive opinions, reasons why existing law was incorrect and had to be changed to permit a "good-faith, objective police reasonableness" exception to the exclusionary rule. These prejudgments precluded fair consideration of the merits in Leon. Beyond that, the Leon opinion itself, considered in view of the arguments of counsel and the scholarship in currency, evinced an agenda-driven pre-commitment to its outcome; …
Constitutional Citizenship, Paul Brest
Constitutional Citizenship, Paul Brest
Cleveland State Law Review
Our practices for determining issues of public morality are deeply flawed. We rely too heavily on the Supreme Court of the United States to determine them for us. We give too much responsibility to the Court, and too little to other institutions; we evade our own responsibility as citizens in a democratic polity. The problem is not that too many issues are "constitutionalized," for many of our most important public moral issues are quite properly treated as constitutional questions. The problem, rather, is that we assume that only the Court is authorized to decide, or is capable of deciding, constitutional …