Justice Thomas on Criminal Law

(By John Adams, Partner at McGuire Woods LLP and Former Law Clerk to Justice Thomas and Brian D. Schmalzbach, Associate at McGuire Woods LLP and Former Law Clerk to Justice Thomas)

Justice Thomas has extended his unapologetic effort of recovering the original meaning of the Constitution into the law of criminal procedure.

The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”  Although the Fourth Amendment had been largely unmoored from its text and history by the Warren Court, Justice Thomas has moved Fourth Amendment jurisprudence back in the direction of its original foundations.  In Wilson v. Arkansas, for example, Justice Thomas addressed the need for police officers to knock and announce their presence before entering with careful attention to the history behind the constitutional text.  His opinion for a unanimous Court investigated the foundations of the knock-and-announce principle in English common law, explained its adoption in early American law, and persuasively reconciled it with the constitutional text.  Rather than relying on the whims of modern judges to decide the scope of the Fourth Amendment, Justice Thomas took a principled step toward “the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing.”

Justice Thomas has also proved willing to part company with precedent and his peers in pursuit of the Fourth Amendment’s original meaning.  In Safford Unified School District No. 1 v. Redding, the Court held that school administrators violated the Constitution by performing a partial strip search of a middle-school girl who was accused of distributing pain pills to other students.  In dissent, Justice Thomas explained that Fourth Amendment jurisprudence cannot ignore the doctrine of in loco parentis that gave early American school officials substantial discretion to establish and enforce rules to maintain order.  Because a parent could have lawfully performed the same search as the school administrators, the Fourth Amendment should not restrict school officials from doing what is necessary to maintain order.

In other cases, Justice Thomas would read the Fourth Amendment much more broadly than past and present Justices.  For example, in City of Indianapolis v. Edmond, most of the Court took for granted previous cases that allowed police to set up highway checkpoints to combat drunk driving and to intercept illegal immigrants, but held that checkpoints to detect illegal drugs violated the Fourth Amendment.  Although no party had asked the Court to overrule those past cases, Justice Thomas set down a clear invitation for future litigants: “I rather doubt that the Framers of the Fourth Amendment would have considered ‘reasonable’ a program of indiscriminate stops of individuals not suspect of wrongdoing.”

The Fifth Amendment, which provides that no person . . . shall be compelled in any criminal case to be a witness against himself,” has also proved ripe for Justice Thomas’ originalist reexamination.  In United States v. Hubbell, the Court held that someone who is subpoenaed to provide documents could not invoke the Fifth Amendment unless the act of producing those documents would be the equivalent of self-incriminating testimony (such as a confession that the documents belonged to that person).  Although Justice Thomas (joined by Justice Scalia) agreed that the Fifth Amendment protects testimonial acts of production, he explained that the Court should go much further and apply the Fifth Amendment to the compelled production of all incriminating evidence.  As he explained, the Fifth Amendment should protect all witnesses, as that term was originally understood.  Justice Thomas examined the founding-era evidence to show that the Fifth Amendment should apply even to witnesses who provide only documentary evidence, not just testifying witnesses.

As in other areas of the law, here we see Justice Thomas returning to the original meaning of the Constitution and restoring the liberty that has been so crucial to our Nation’s growth and prosperity.  And perhaps more importantly, he has laid the foundation for more principled law in the future.