Mapp v. Ohio Revisited: A Law Clerk’s Diary

Abstract

Mapp v. Ohio Revisited: A Law Clerk’s Diary POLLY J. PRICE1 At conference Frankfurter said Mapp is the worst tragedy since Dred Scott. Justice Brennan says he means it. —Richard S. Arnold, from his diary of the 1960 Supreme Court Term2 The 1960 Supreme Court Term laid the groundwork for the subsequent revolution in the relationship between state and federal law accomplished by the Supreme Court under ChiefJustice Earl Warren. The “most famous search and seizure case in American history”3 —Mapp v. Ohio4—would be decided that Term. Mapp held that the Fourth Amendment’s protection against “unreasonable searches and seizures” required the exclusion of evidence found through an illegal search by state and local police officers, extending to the states a rule that had previously applied only to fed­ eral law enforcement. Mapp became a pivotal chapter in the story ofcivil rights in the United States. Mapp v. Ohio remains a prominent topic today. In bringing state law in line with the older federal exclusionary rule, the decision made the United States the only country to take the position that some police misconduct must automatically result in the suppression of physical evidence. The position of the United States on this subject remains unique more than fifty years after Mapp was decided.5 The future of the exclusionary rule, however, has been the topic ofmuch debate, particularly fol­ lowing the Supreme Court’s decision in Her­ ring v. United States in January 2009.6 Richard S. Arnold, later a renownedjudge on the Eighth Circuit Court ofAppeals, kept a diary ofhis clerkship year with Justice William Brennan in 1960-1961. When Arnold began his clerkship, Chief Justice Warren met with all of the new law clerks to impress upon them the need for secrecy. “You will learn things, hear things, know things that you will take to your grave with you,” Warren said.7 But the secrecy already had been breached. Before Arnold began his clerkship, William MAPP V. OHIO REVISITED: A LAW CLERK’S DIARY 55 Richard S. Arnold (pictured), later a re­ nowned judge on the Eighth Circuit, kept a diary of his clerkship with Justice William J. Brennan in the 19601961 Term, the year Mapp ir. Ohio was handed down. Rehnquist, a law clerk for Justice Robert H. Jackson and later ChiefJustice ofthe Supreme Court, provided the “first signed statement”8 by a former law clerk describing the role, in a 1958 article entitled, “Who Writes Decisions of the Supreme Court?”9 Arnold, by contrast, did not share any part of his diary until af­ ter all the Justices who had served during his clerkship had died.10 When Arnold became a law clerk, Warren—appointed by Dwight Eisenhower— had been serving as Chief Justice since 1953. The “Warren Court” became synonymous with the liberal exercise of judicial power in favor of civil liberties and civil rights. Brown v. Board ofEducation?1 decided in 1954, was only the beginning, but already the Warren Court had engendered a political backlash. When driving Justice Brennan to his home in the evenings, Arnold and his fellow clerk Daniel Rezneck would pass along the way an occasional “IMPEACH EARL WARREN” billboard.12 The Supreme Court in 1960 In addition to Warren, Felix Frankfurter, and Brennan, the other members of the Supreme Court in 1960 were William O. Douglas, Hugo L. Black, Potter Stewart, Charles Evans 56 JOURNAL OF SUPREME COURT HISTORY Whittaker, Tom C. Clark, and John Marshall Harlan II. “Harlan II” was the grandson of the first John Marshall Harlan, who served on the Supreme Court from 1877 until 1911 and who was the only Justice to dissent in Plessy v. Fer­ guson}3 Arnold’s diary reveals his fascination with the Supreme Court as an institution that was dependent upon the character of the individu­ als who comprised it. He especially enjoyed the tradition of each Justice inviting the other law clerks to lunch during the year, at the Supreme Court dining room usually populated only by the law clerks and staff. Arnold recorded per­ sonal characteristics of each Justice, along with anything particularly memorable that the Justice had said. One example is Arnold’s diary entry for...