In our system of constitutional decision-making, the Supreme Court makes law as an institution in its formal written opinions. The Court and its individual members make their official legal marks in the printed pages of the United States Reports. In June 1968, in Terry v. Ohio and Sibron v. New York, the two decisions that approved the constitutionality under the Fourth Amendment of police stop and frisk practices, the Court filled many official pages with rich discussion. Over the ensuing thirty years, these Court and individual opinions have shaped the course of constitutional analysis in our courts and guided the conduct of law enforcement officers on our streets. This article looks behind the pages of the United States Reports to information that illuminates the Court's decision-making, including the specific roles that individual Justices played, in the 1968 stop and frisk cases. Seven of the nine Justices who served during the October 1967 Term have left history with extensive documentation of the Court's stop and frisk decision-making. Four of the Justices left papers and other records that are openly available in research libraries: Chief Justice Earl Warren, and Associate Justices William O. Douglas, John M. Harlan, and Thurgood Marshall. Three other Justices left papers that are available for review with the permission of the respective Justice's executor: Associate Justices Hugo L. Black, William J. Brennan, Jr., and Abe Fortas. This article is based upon the available papers of the former Supreme Court Justices. It chronicles the Court's deciding of the stop and frisk cases during its October 1967 Term. Part II describes the setting: the Justices of the Warren Court, the emergence of stop and frisk as a constitutional issue, and the paths by which four stop and frisk cases—Terry v. Ohio, Sibron v. New York, Peters v. New York, and Wainwright v. City of New Orleans—reached the Court. Part III tracks these cases from their acceptance for Supreme Court review, through the Justices votes in conference. It describes in detail the Justices' remarks and positions during their private conference discussions of the stop and frisk cases. Part IV chronicles the first phase of the Court's opinion-writing process. It examines Chief Justice Warren's efforts to write opinions for the Court that decided the cases under the Fourth Amendment's probable cause requirement and the varying, though generally unsatisfied, reactions he received from his colleagues. Part V describes how Justice Brennan persuaded Warren to abandon the probable cause approach in favor of an analysis based on the Fourth Amendment's first clause, which prohibits only unreasonable searches and seizures. Part VI shows how Warren garnered a Court with this "reasonableness" approach but lost the vote of Justice Douglas, who decided to dissent. It also discusses the Court's announcement of its stop and frisk decisions, and its dismissal of Wainwright. Part VII concludes the article by considering what the papers of the Supreme Court Justices tell us about the Court's process of decision-making, its diligent and capable work, its choices among differing ways to frame and resolve the constitutional questions about police stops and frisks, the openness of those questions thirty years ago, and the societal circumstances in which the Court decided them.
Barrett, John Q., "Deciding the Stop and Frisk Cases: A Look Inside the Supreme Court's Conference" (1998). Faculty Publications. 22.