Still, the left’s hand twist and the right’s celebration might be premature.
History tells us that until the Court renders a decision, it remains possible for the judges to change their minds. In fact, an unexpected turnaround (unlike Dobbs, there had been no leaks) occurred in 1973, when conservative Justice Lewis F. Powell Jr. – one of Richard M. Nixon’s new appointees to the Court – swung at the last minute into Almeida-Sanchez v. United States, a case the Tories saw as a chance to start rolling back the excesses of the liberal Warren Court.
Powell’s unexpected ruling dashed conservative hopes that Nixon’s appointees would quickly overturn Supreme Court criminal justice decisions from the 1960s that had provided greater protection for defendants.
In 1968, Nixon won the presidency on a law and order platform, pledging to rein in the liberal Supreme Court. In his acceptance speech at the Republican Convention in Miami, Nixon said, “Let us also recognize that some of our courts, in their rulings, have gone too far in weakening the forces of peace against the criminal forces of this country. . He was referring to Supreme Court decisions, including Mapp vs. Ohio in 1961 and Miranda v. Arizona in 1966, which conservatives considered pro-criminal. Mapp extended Fourth Amendment protections against unreasonable search and seizure to local and state police, and prohibited the use of improperly gathered evidence in court. The Miranda decision stipulated that the police must inform suspects of their right to remain silent and to have a lawyer.
After his election, Nixon had an unprecedented opportunity to deliver on his promise with four Supreme Court vacancies during his first term. He appointed Chief Justice Warren E. Burger in 1969, Harry A. Blackmun in 1970, who wrote the roe deer v. Wade opinion, then Powell and William H. Rehnquist together in late 1971.
Almeida-Sanchez v. United States in 1973 provided an early test of whether the new justices would implement Nixon’s desire to roll back some of the protections for defendants enacted by the court in the 1960s.
Border Patrol agents had arrested Condrado Almeida-Sanchez on a California road 20 miles north of the border in 1971. The agents had no search warrant or any evidence that Almeida-Sanchez was involved in smuggling . At the time, however, their regulations stated that Border Patrol agents did not need the same probable cause to search a vehicle as regular police.
Instead, their authorization from Congress stated that they could “board and search for aliens in any vessel within the territorial waters of the United States, railroad car, conveyance, or vehicle within a reasonable distance of any boundary outside the United States”. Almeida-Sanchez gave officers documents that showed he was a lawful permanent resident of the United States, but they decided to search his vehicle anyway. They located bags of marijuana hidden under a seat.
The Supreme Court heard argument in Almeida-Sanchez v. United States twice in March 1973 because Almeida-Sanchez’s lawyer had a heart attack minutes into the first session (he survived). The case centered on the rules that applied to Border Patrol: the Fourth Amendment to the Constitution, which prohibited unreasonable searches and seizures inside the United States, or the Border Patrol Regulations, which allowed warrantless searches within 100 miles of the US border or coastline.
After the postponed closing arguments, the judges split five-to-four when discussing the case at their private conference, with the four Nixon appointees joining Judge Byron R. White in favor of the Border Patrol law. to search any vehicle within the vast 100 mile area.
The split on the Court was not just ideological. In fact, liberal Justice William O. Douglas appointed the generally conservative Eisenhower-appointed Justice Potter Stewart to write the dissent. Stewart’s dissent project was filled with righteous indignation. He called the idea that Border Patrol could stop any vehicle in the border area a “gross violation of the Fourth Amendment” that amounted to an “outlandish permit to search.”
Stewart’s closest friend on the court was one of Nixon’s new law and order judges, Lewis Powell. Given their moderately conservative judicial approaches, Stewart and Powell tended to vote together on most cases in their decade together on court. However, Powell was a more measured man and on his copy of Stewart’s Dissent Draft he underlined each of Stewart’s rhetorical flourishes and even wrote “absurd” next to one. In June, when White circulated the final draft of his opinion, Powell again indicated his support for Border Patrol.
In Powell’s apartments, however, there was disagreement. One of Powell’s clerks was adamant that the search of Almeida-Sanchez’s vehicle was a clear violation of the Constitution. The clerk had already written a note to Powell about this earlier in the term. Powell was an impartial judge and gave his clerks a strong voice in working out his positions, so he scheduled a meeting to allow the clerk to make his case once more.
Powell listened to the clerk and re-read White’s opinion and Stewart’s dissent. Then, to the surprise of Nixon, the other conservative law and order judges, and probably the clerk, Powell changed his mind.
On June 8, just weeks before the end of the term, Powell sent another memo to White and Stewart changing his vote on the case. Because the other justices were split four to four, Powell’s change of heart swung the majority to Stewart’s view that the Border Patrol’s search deep within the United States without a warrant or probable cause was unconstitutional.
The result was that the supposedly conservative Supreme Court struck down the Border Patrol’s 50-year-old practice of searching any vehicle in the border area. Rather than reversing or limiting the rule of exclusion of Mapthe Supreme Court, replete with Nixon’s four law-and-order justices, extended it to border patrol — excluding evidence obtained in the illegal search.
As the current judges deliberate on whether to invalidate roe deer v. Wade, there’s no way to know what’s going on in each of their rooms. While the leaked opinion gives us a bigger picture than usual, Powell’s last-minute change of heart — in which a conservative appointee sided with more liberal judicial precedent — suggests that everything is possible. This indicates that we would be wise to wait for a final decision on abortion, instead of assuming we know how the Court will rule.