Cultural Revolutions

Refusing to Do Something New

The Supreme Court attracts the most attention when it does something new, or does something so old that it seems new. For example, the Court's decision last May declaring that Congress had no authority to enact the Violence Against Women Act under the guise of regulating interstate commerce received plenty of media attention. And since 1995, the Court has begun tentatively to enforce the constitutional limitations on the powers granted to Congress, something it had ignored since 1937.

But some of the Supreme Court's most important work is performed when it refuses to do something new, declining to create an "innovative" exception to constitutional rights. Thus, the most important Bill of Rights decision of the 1999-2000 term came when the Court refused to invent a loophole that would have nearly destroyed the Fourth Amendment, which prohibits unreasonable searches and seizures.

In Florida v. J.L., an anonymous telephone tipster had claimed that a young black male, wearing a plaid shirt and standing at a certain bus stop, was carrying a gun. Some police officers went to the bus stop and saw three young black males, one with a plaid shirt. They frisked him and found a gun.

Under current Fourth Amendment doctrine, the search was unconstitutional. The 15-year-old had not been doing anything illegal or suspicions, or anything which would make a police officer concerned about public...

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