Oren Kerr

Thank you.

Thank you.

Well, first of all, thanks for having me on the show. As you mentioned, a big, big fan, longtime listener. So happy to be here. Well, we can only speculate. We don't know, obviously. But I think there are a couple possible clues or a couple possible reasons. One might be that the good faith exception has expanded so far.

Well, first of all, thanks for having me on the show. As you mentioned, a big, big fan, longtime listener. So happy to be here. Well, we can only speculate. We don't know, obviously. But I think there are a couple possible clues or a couple possible reasons. One might be that the good faith exception has expanded so far.

You actually don't have that many merits rulings on big Fourth Amendment issues in the courts of appeals anymore. So I follow published courts of appeals opinions in the Fourth Amendment space. There actually aren't that many. And any really notable ruling is going to be followed by a backup ruling that says, oh, and by the way, the good faith exception applies. There's really no remedy here. So –

You actually don't have that many merits rulings on big Fourth Amendment issues in the courts of appeals anymore. So I follow published courts of appeals opinions in the Fourth Amendment space. There actually aren't that many. And any really notable ruling is going to be followed by a backup ruling that says, oh, and by the way, the good faith exception applies. There's really no remedy here. So –

I realize there's a risk of that. But yeah, Davis is decided in 2011 and then it takes four or five years and then the cases really dry up. And so there just aren't – there are preexisting splits, but you don't have many cases where lower courts say, well, here's this deep split. We're going to pick a side and gosh darn it, that's the remedy. Like the bad guy goes free and that's it.

I realize there's a risk of that. But yeah, Davis is decided in 2011 and then it takes four or five years and then the cases really dry up. And so there just aren't – there are preexisting splits, but you don't have many cases where lower courts say, well, here's this deep split. We're going to pick a side and gosh darn it, that's the remedy. Like the bad guy goes free and that's it.

That naturally leads to a cert petition. Instead, you have almost everything is kind of advisory litigation if it's anything novel or anything like that. cutting edge, that's kind of where you end up.

That naturally leads to a cert petition. Instead, you have almost everything is kind of advisory litigation if it's anything novel or anything like that. cutting edge, that's kind of where you end up.

So, yes, this is another possibility that there's either they're fine with that or or maybe and I think this is a suggestion, Will, you've had on the show that that they're not sure of what they want to do with the exclusionary rule. So that maybe they avoid merits rulings because they don't want to open the door to the question of what the remedies for the Fourth Amendment might be.

So, yes, this is another possibility that there's either they're fine with that or or maybe and I think this is a suggestion, Will, you've had on the show that that they're not sure of what they want to do with the exclusionary rule. So that maybe they avoid merits rulings because they don't want to open the door to the question of what the remedies for the Fourth Amendment might be.

It's also possible, if you go back and read the Davis case from 2011, Justice Alito says, Davis argues that this will dry up Fourth Amendment case law. If that happens, we might carve out an exception to our exception, allowing challenges to go forward.

It's also possible, if you go back and read the Davis case from 2011, Justice Alito says, Davis argues that this will dry up Fourth Amendment case law. If that happens, we might carve out an exception to our exception, allowing challenges to go forward.

The actual person whose case is granted at Supreme Court and who wins, maybe they get the exclusionary rule. But I don't know exactly when they would know that their rule has led to that result. It's kind of a mystery passage, but at least there's a possibility. But Yeah, I think it's uncertainty over the exclusionary rule.

The actual person whose case is granted at Supreme Court and who wins, maybe they get the exclusionary rule. But I don't know exactly when they would know that their rule has led to that result. It's kind of a mystery passage, but at least there's a possibility. But Yeah, I think it's uncertainty over the exclusionary rule.

The scope of the good faith exception are probably significant influences on this. And it may just be, you know, the originalist turn in Fourth Amendment law generally is sort of started to happen or waited to happen. And really, if you look historically back. The justices have always been interested in the original – in the common law history and the enactment of the Fourth Amendment.

The scope of the good faith exception are probably significant influences on this. And it may just be, you know, the originalist turn in Fourth Amendment law generally is sort of started to happen or waited to happen. And really, if you look historically back. The justices have always been interested in the original – in the common law history and the enactment of the Fourth Amendment.

But there may just be uncertainty or – and this pains me the most, a lack of interest among the justices in this particular area of law. So who knows? But those are all possible.

But there may just be uncertainty or – and this pains me the most, a lack of interest among the justices in this particular area of law. So who knows? But those are all possible.