A Roadblock Too Far?

Abstract

This first study of Justice O’Connor’s Fourth Amendment jurisprudence notes the shift in her decision pattern from a very conservative position from 1982 to 1986 to a more moderate position in subsequent years. Prior scholarship characterizes Justice O’Connor’s judicial opinions as contextual and fact driven, her style of judging as “behavioral accommodationism,” or the seeking of consensus, and her judicial policy preferences as moderately conservative. The authors explore these categories by a close examination of five recent cases: City of Indianapolis v. Edmond, Ferguson v. City of Charleston, Atwater v. City of Lago Vista, Illinois v. McArthur, and Kyllo v. United States. The authors conclude that her decisions in these cases, liberal and conservative, reflect both the earlier explanations of her decisions and an unstated set of complex personal predilections reflecting political sensitivity to middle-American views that demands an adherence to basic liberties in a crime-control context.