1 Felix Frankfurter: A Biography (New York: Coward-McCann, 1969), and a later work, I'm Radcliffe, Fly Me: The Seven Sisters and the Failure of Women's Education (New York: Macmillan, 1976).Google Scholar

2 349 U.S. 331 (1975).Google Scholar

3 Miranda v. Arizona, 354 U.S. 436, 457 (1966).Google Scholar

4 Without the confession the Supreme Court decision had excluded, the prosecution of Miranda seemed hopeless. But Miranda, annoyed that his common law wife had had a child by another man while he was in prison, wrote to the welfare authorities questioning her fitness as the mother of their daughter. The woman, fearing that Miranda would attempt to take her daughter from her if released, informed the prosecutor that Miranda had confessed to her that he had indeed committed the rape (at 192–93). Her testimony proved enough to convict Miranda a second time. It is just such follow-up details that differentiate this book from others of its kind. Baker gives a postscript on the lives of all the principal characters that touched Miranda's. For example, “Robert Corbin, prosecutor at Miranda's second trial, was elected attorney general of Arizona in 1978” (at 384).Google Scholar

5 While neither of President Nixon's successors (Presidents Ford and Carter) made any such claim to “remake” the federal judiciary, President Carter did leave his mark. Because Congress created 152 judge-ships in 1978, together with those normally becoming vacant, President Carter was able to appoint 202 persons to district court openings and 56 to courts of appeals. By the end of his term, his appointees constituted 40% of the federal judiciary. Of these, 28 went to black Americans, 29 to women (including 6 black women), and 14 to persons of Hispanic origin. The proportion of female judges increased from 1% to almost 7% and that of black judges from 4% to close to 9% of the federal bench. This increase represented the “most conscious effort” of any president to aid these groups. Goldman, Sheldon, Carter's Judicial Appointments: A Lasting Legacy, 64 Judicature 344, 345, 349, 355 (1981).Google Scholar

6 Bickel, Alexander M., The Least Dangerous Branch: The Supreme Court at the Bar of Politics (New York: Irvington, 1962).Google Scholar

7 Toward Increased Judicial Activism: The Political Role of the Supreme Court 10 (Westport, Conn.: Greenwood Press, 1982).Google Scholar

8 Id. at 7.Google Scholar

9 Quoted in id. at 147.Google Scholar

10 Brewer v. Williams, 430 U.S. 387, 421–22 (1977) (Burger, J., dissenting).Google Scholar

11 See, e.g., James F. Simon, In His Own Image: The Supreme Court in Nixon's America (New York: David McKay Co., 1973).Google Scholar

12 401 U.S. 222 (1971).Google Scholar

13 Id. at 226.Google Scholar

14 417 US. 433 (1974).Google Scholar

15 Id. at 444.Google Scholar

16 Id. at 446.Google Scholar

17 399 U.S. 42 (1970).Google Scholar

18 Id. at 52 (emphasis added).Google Scholar

19 103 S. Ct. 2317 (1983).Google Scholar

20 Id. at 2325.Google Scholar

21 Id. at 2329.Google Scholar

22 Id. at 2332 (emphasis added).Google Scholar

23 104 S. Ct. 3405 (1984).Google Scholar

24 Id. at 3409.Google Scholar

25 Id. at 3412.Google Scholar

26 Id. Google Scholar

27 Id. at 3413.Google Scholar

28 Id. at 3413 n.6. Baker assembles exclusionary rule studies from California, Illinois, New York City, and Washington, D.C., and an extensive analysis issued in 1979 by the United States General Accounting Office involving the criminal dockets of 38 U.S. attorney's offices. The latter study found that' “in only 1.3 percent of the total cases was evidence actually suppressed as a result of filing a Fourth Amendment motion, and in the largest offices, those where the seized evidence was the most susceptible to challenge, more than half the defendants were convicted anyway” (at 376). Justice White cites substantially the same studies but comes to different conclusions.Google Scholar

29 104 S. Ct. at 3413 n.6 (emphasis added). After providing considerable empirical evidence for his conclusion that the exclusionary rule does have some effect on entry of evidence in criminal proceedings, Justice White resorts to mere speculation: “Judges and magistrates are not adjuncts to the law enforcement team; as neutral judicial officers, they have no stake in the outcome of particular criminal prosecutions.”Id. at 3418, citing no studies or cases in support of this clearly empirical statement. Justice White obviously confuses statements of judicial ideals with the “practical, common-sense” knowledge of most practitioners, who seem to believe that it does make a difference which judge will decide their case.Google Scholar

30 Id. at 3419.Google Scholar

31 104 S. Ct. 3380(1984).Google Scholar

32 Id. at 3389.Google Scholar

33 Id. at 3389–90 (emphasis added).Google Scholar

34 During the crucial 1930–40 period when these issues were first raised, the following five justices had some important connection with the South: James McReynolds (1914–41) was born on a Kentucky plantation, went to college in Tennessee, to law school at the University of Virginia, and practiced law in Nashville; Willis Van Devanter (1910–37) earned his law degree at the University of Cincinnati Law School; Charles Evans Hughes (1930–41) was the only child of an abolitionist minister; Hugo Black (1937–71) was born, educated, and practiced law in Alabama, investigated cases of police brutality as local solicitor, and was a member of the Ku Klux Klan for two years, 1923–25; Stanley F. Reed (1938–1957) was born and educated in Kentucky and served in the General Assembly. Elder Witt, ed., The Supreme Court and Its Work 113–87 (Washington, D.C.: Congressional Quarterly, 1981).Google Scholar

35 See Barak, Gregg, In Defense of Whom? A Critique of Criminal Justice Reform (Cincinnati: Anderson Publishing Co., 1980).Google Scholar

36 This struggle is set forth in Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America (New York: Oxford University Press, 1976); see also Note, Neighborhood Law Offices: The New Wave in Legal Services for the Poor, 80 Harv. L. Rev. 805 (1976).Google Scholar

37 Perhaps its fist use was in an 1885 Chicago mayoralty campaign when Levi Boone ran on a law and order ticket of public safety and reorganization of the police department. David R. Johnson, Policing the Urban Underworld 61–62 (Philadelphia: Temple University Press, 1979). During the nineteenth century the issue intermittently arose but, rather than focusing on the criminals, the issue in municipal elections was the ‘lawlessness’ of the police—their systematic corruption and nonenforcement of the laws.” Samuel Walker, A Critical History of Police Reform: The Emergence of Professionalism 25 (Lexington, Mass.: D.C. Heath & Co., 1977). President Herbert Hoover in 1929 “ran in part on a law and order platform” and appointed the Wickersham National Commisssion on Law Observance and Enforcement, thereby moving the issue from local to national concern. The 1931 Commission report found widespread police brutality and encouraged a wave of popular literature on the subject. T. E. Cronin et al., U.S. v. Crime in the Streets 28 (Bloomington: Indiana University Press, 1981). The issue in its modern form, as Baker points out, began with President Eisenhower and Senator Goldwater's 1964 Republican Convention speeches, which turned the focus from the police to the “criminal forces”. Under each historical use of the issue lay more complex root causes. The Law and Order ticket was directed by nativists who feared the “rowdy Irish” immigrant. In the late nineteenth century, native, Protestant, and middleclass Americans were fearful of “foreigners” taking over local government. The most recent law and order campaign in the mid-1960s deflected concerns from the police as the cause of ghetto riots to the ghetto residents themselves as the criminal class. “Crime” and “disorder” have often been code words for fears among the elite of structural changes brought on by industrialization and apparently uncontrollable lower-class masses (the “dangerous classes”) in cities. See Rothman, David, The Discovery of the Asylum ch. 3 (Boston: Little, Brown & Co., 1971).Google Scholar

Criminals, the poor, and the homeless were lumped together by nineteenth-century elites as the “dangerous classes”. One function of the police was to control these groups, particularly through their “preventive” arrest powers. Eric H. Monkkonen, Police in Urban America, 1860–1920 (Cambridge, England: Cambridge University Press, 1981). For the English scene, see Geoffrey Pearson, Hooligan: A History of Respectable Fears (London: MacMillan, 1983), who finds such campaigns have their origin in upper- and middleclass fears of young working-class activists, especially those exhibiting violent and organized (gang) behavior. For a recent treatment of the topic not available to Baker, see Stuart Schein-gold, The Politics of Law and Order (New York: Longman, 1984).Google Scholar

Baker also ignores the many spin-off effects of law and order campaigns, including the burden on the winning candidate to carry out campaign promises; the initiation of repressive legislation; the funding of short-term demonstration projects over long-term studies; the manipulation of crime statistics; the conflicts among local and state government, among different parts of the criminal justice system, and among different racial and ethnic groups for funding. Cronin et al., supra this note, at ch. 6. The bang was taken out of the issue in the 1976 presidential campaign when both candidates (Ford and Carter) essentially agreed on a hard line on crime. Law and order met its political end in 1979 when President Carter declared it no longer to be a national issue, returning it to local authorities. It was little mentioned in either the 1980 or 1984 campaigns. Id. at ch. 7.Google Scholar

The descent of law and order as a potentially exploitable issue is well illustrated by President Reagan's low-key reaction at a news conference when he was asked about the celebrated Bernhard Goetz affair. Goetz, while riding a New York City subway, was allegedly surrounded by four black teenagers who asked him for five dollars. Some years before, Goetz had been mugged. Motivated by either fear or revenge, he shot all four, two in the back, one of whom is permanently paralyzed. An immediate outpouring of sympathy for Goetz indicated that most people, identifying him as the victim, saw Goetz as their avenging angel. President Reagan is quoted as having commented that while “he sympathized with public frustration about the crime … citizens could not take the law into their own hands”. Similar sentiments were voiced by New York Mayor Koch and Governor Cuomo. Leo, J. & White, J., Low Profile for a Legend, Time, Jan. 21, 1985, at 54. In President Reagan's State of the Union address, two paragraphs were devoted to law and order. After patting himself on the back for causing the crime index to fall two years in a row, the president urged Congress to enact “proposals permitting use of all reliable evidence that police officers acquire in good faith”. N.Y. Times, Feb. 7, 1985, at 13.Google Scholar

38 It would seem that those metaphorically seeing through the eyes of the criminally accused and those seeing through the eyes of the police officer—from a class viewpoint—are seeing through the same eyes. Most police come from the same class background as most defendants.Google Scholar

39 Lasswell, Harold S., Politics: Who Gets What, When, How (Chicago: McGraw-Hill, 1936).Google Scholar

40 Monkkonen, supra note 37, at 155.Google Scholar