Author
Timothy C. MacDonnell

Citation
Timothy C. MacDonnell, The Rhetoric of the Fourth Amendment: Toward a More Persuasive Fourth Amendment, 73 Wash. & Lee L. Rev. 1869 (2016)

Published
January 29, 2017

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In the last forty-five years, the United States Supreme Court’s jurisprudence through the lens of classical rhetoric. Opinions are assessed based on three areas of persuasion: appeals to logic (logos); appeals to emotion (pathos); and appeals to credibility (ethos). By examining the Justices’ opinions in this fashion, patterns of unpersuasive opinion writing emerge. While a common source for all unpersuasive opinions is not available, common patterns of weak persuasion in particular appeals do exist. Weak appeals to ethos commonly stem from Justices failing to fully confront the doctrine of stare decisis. Weak pathos-based appeals often involve Justices engaging in misplaced emotive arguments, where a Justice seeks to persuade by appealing to emotions that are disconnected from the Fourth Amendment or the facts of the case. Logically weak arguments usually include one or more logical fallacies. Misplaced pathos appeals and weak logos appeals often leave readers with the sense that these flaws stem from poorly disguised outcome-directed opinions. Any opinion written in this fashion runs the risk of appearing like an elaborate rationalization and thereby being unconvincing. Additionally, I assert that apparent outcome-directed judicial opinions, particularly Supreme Court decisions, violate one of the core principles of classical and modern rhetoric— that persuasive speech should be modified to account for the expectations of an audience. Fourth Amendment jurisprudence has been under siege. As early as 1971 one of the Court’s own members, Justice Harlan, stated there were “serious distortions and incongruities” in the Court’s Fourth Amendment case law. Since Justice Harlan’s criticism numerous scholars have echoed his dissatisfaction, calling the Court’s Fourth Amendment jurisprudence “unstable and unconvincing,” a “tar- baby,” and “a mass of contradiction and obscurity.” The Court itself seems as unconvinced by its own Fourth Amendment case law as the academic community. In 1967 the Court appeared to have placed the final nail in the trespass doctrine’s coffin, only to resurrect the theory in 2012. Between the 1980s and 2000s, the Court significantly altered the contours of the search incident to arrest doctrine with regard to automobiles. In 2006 the Randolph Court created the rule that one resident’s decision to permit police to search a home may not overrule another resident’s decision to prevent the search. Approximately eight years later, the Fernandez Court limited the applicability of the Randolph Court’s rule to such an extent as to make it virtually irrelevant.

The focus of this Article is on why many Fourth Amendment opinions are unconvincing. To answer this question, I analyze various Fourth Amendment opinions by the Justices of the United States Supreme Court between 2005 and today. I examine and evaluate the persuasiveness of the Court’s Fourth Amendment