Gates, Leon, and the Compromise of Adjudicative Fairness (Part II): Of Aggressive Majoritarianism, Willful Deafness, and the New Exception to the Exclusionary Rule

Part I examined in a dialogue form the idea that Justice White and other members of the Leon majority had prejudged issues of law in earlier cases––pre-committed themselves in violation of their duty of impartiality––by elaborating in detailed, cohesive, comprehensive opinions, reasons why existing law was incorrect and had to be changed to permit a "good-faith, objective police reasonableness" exception to the exclusionary rule. These prejudgments precluded fair consideration of the merits in Leon. Beyond that, the Leon opinion itself, considered in view of the arguments of counsel and the scholarship in currency, evinced an agenda-driven pre-commitment to its outcome; as the majority disregarded a fundamental obligation of an adjudicator, the duty to listen to contentions in behalf of the outcome ultimately rejected. This Article will offer an elaboration of the idea of judicial "aggressiveness" through examination of the majority opinion in United States v. Leon and its application in Massachusetts v. Sheppard.

It will also advance the thesis that the majority in Leon exhibited a particular kind of aggressiveness –willful deafness.