The Volokh Conspiracy

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Can an Amicus Ask the Supreme Court to Overrule a Case Where the Parties Don't?

The ACLU successfully asked the Court to reverse Wolf v. Colorado in Mapp v. Ohio.


All law students study Mapp v. Ohio (1961). In this landmark case, the Supreme Court held that the exclusionary rule should be applied to state criminal prosecutions. In other words, evidence seized in violation of the Fourth Amendment could not be admitted in Court. Previously, in Wolf v. Colorado (1949), the Supreme Court declined to "incorporate" the exclusionary rule. (Incorporation is not exactly the right term here, but it is close enough.) Rather, Wolf held, the exclusionary rule would only be enforced with regard to federal criminal prosecutions as part of the Supreme Court's "supervisory power" of the lower courts.

In the lower courts, Mapp was litigated as a First Amendment case. Dollree Map was arrested for possessing certain obscene materials. Indeed, the oral arguments focused extensively on the First Amendment issues. It was not litigated as a Fourth Amendment case.

Mapp's counsel did not ask the Supreme Court to overrule Wolf. Justice Frankfurter pointed out that the counsel for Mapp did not even mention Wolf in their brief.

Felix Frankfurter: Are asking us to overrule the Wolf case in this Court? I notice it isn't even cited in your brief.

The Ohio Supreme Court didn't even mention the issues!

Felix Frankfurter:  Well, as I understand it, when dealing with an Ohio case, what the court decides is authoritatively expressed only in the syllabi, but I can go to the opinion to find out, perhaps to get some light on what the syllabi means. . . . So far as I can make out in reading Ohio State, 170 Ohio State, that matter wasn't adverted to in the opinion, and certainly not in the syllabi. That's right, isn't it?

And Justice Harlan explained that the only issue before the Court was the First Amendment question:

John M. Harlan II: Well, that's the only question we've got here, as to whether the statute's constitutional or not constitutional, isn't it?

Harlan asked Mapp's lawyer point blank if they were asking the Court to overrule Wolf. The lawyer said no.

John M. Harlan II: Well, that means you're asking us to overrule Wolf against Colorado?

A. L. Kearns: No, I don't believe we are.

So who asked for Wolf to be overruled? The ACLU arguing as amicus.

Bernard A. Berkman: Mr. Chief Justice, may it please the Court. Before I get into the area which was allotted to me, I would like to say that the American Civil Liberties Union and its Ohio Affiliate, the Ohio Civil Liberties Union, is very clear, in response to the question which was directed to counsel for the appellant, that we are asking this Court to reconsider Wolf versus Colorado and to find that evidence which is unlawfully and illegally obtained should not be permitted into a state proceeding, and that its production is a violation of the Federal Constitution, the Fourth Amendment and the Fourteenth Amendment. We have no hesitancy about asking the Court to reconsider it because we think that it is a necessary part of due process.

Justice Stewart inquired if the ACLU was asking the Court to overrule Wolf. The lawyer for the ACLU contended that its interest did not line up with that of Dollree Map, but it didn't matter.

Potter Stewart: Are you asking us to re-examine Wolf, or are you relying on Rochin against California?

Bernard A. Berkman: We are asking the Court to re-examine Wolf. Our interest is not necessarily the same as that of the defendant who was convicted in this case, and our claim is more broad than that, Mr. Justice Stewart.

And the Supreme Court did exactly what the ACLU as amicus asked for. The Court overruled Wolf. Footnote 3 of the majority opinion states:

Other issues have been raised on this appeal but, in the view we have taken of the case, they need not be decided. Although appellant chose to urge what may have appeared to be the surer ground for favorable disposition, and did not insist that Wolf be overruled, the amicus curiae, who was also permitted to participate in the oral argument, did urge the Court to overrule Wolf.

Justice Harlan's dissent was incensed that the Court took this approach. He wrote:

[Obscenity] was the principal issue which was decided by the Ohio Supreme Court, which was tendered by appellant's Jurisdictional Statement, and which was briefed [Footnote 5] and argued [Footnote 6] in this Court. In this posture of things, I think it fair to say that five members of this Court have simply "reached out" to overrule Wolf.

[Footnote 5] The appellant's brief did not urge the overruling of Wolf. Indeed, it did not even cite the case. The brief of the appellee merely relied on Wolf in support of the State's contention that appellant's conviction was not vitiated by the admission in evidence of the fruits of the alleged unlawful search and seizure by the police. The brief of the American and Ohio Civil Liberties Unions, as amici, did, in one short concluding paragraph of its argument, "request" the Court to reexamine and overrule Wolf, but without argumentation. I quote in full this part of their brief:
"This case presents the issue of whether evidence obtained in an illegal search and seizure can constitutionally be used in a State criminal proceeding. We are aware of the view that this Court has taken on this issue in Wolf v. Colorado, 338 U. S. 25. It is our purpose by this paragraph to respectfully request that this Court reexamine this issue and conclude that the ordered liberty concept guaranteed to persons by the due process clause of the Fourteenth Amendment necessarily requires that evidence illegally obtained in violation thereof, not be admissible in state criminal proceedings."

[Footnote 6] Counsel for appellant on oral argument, as in his brief, did not urge that Wolf be overruled. Indeed, when pressed by questioning from the bench whether he was not, in fact, urging us to overrule Wolf, counsel expressly disavowed any such purpose.

Whenever I hear outrage about overruling Roe in Dobbs, I think back to Mapp. There was no discussion of stare decisis at all, and the Court "reached out" to overrule a precedent that only an amicus asked to be overruled, and did so in a single paragraph without any meaningful analysis. But the Warren Court took the "right" approach to stare decisis. I suppose if you remember the 1960s, you weren't there.

More relevant to the present day, the holding of Mapp suggests that an Amicus who is invited to participate can ask the Supreme Court to overrule a precedent, and the issue is not waived. Indeed, the Amicus was allowed to make this request for the first time before the Supreme Court, even where it was not raised in the lower court litigation. The Supreme Court apparently did not see any problem with waiver or the party presentation rule here. If what the ACLU did was proper, it stands to reason that a similar request could be made by an amicus who is invited to participate in the lower courts, if only to put everyone on notice that a precedent is in doubt, and to preserve the issue for review by the Supreme Court.