Judicial Fundamentalism, the Fourth Amendment, and Ashcroft v Al-Kidd

Virginia Journal of Criminal Law, Vol. 2, No. 1, 2013

30 Pages Posted: 15 Oct 2013

See all articles by Ofer Raban

Ofer Raban

University of Oregon - School of Law

Date Written: October 14, 2013

Abstract

The Supreme Court's opinion in Ashcroft v. Al-Kidd is a classic of judicial fundamentalism. The decision held that the former U.S. Attorney General was immune from a lawsuit alleging he misused the Material Witness Statute as a pretext for detaining individuals suspected of terrorist activities. The article argues that the decision is based on an untenable interpretation of precedent, and is rooted in a fundamentalist judicial philosophy long advocated by Justice Antonin Scalia, who wrote the opinion. The article then surveys the potential impact of the decision on Fourth Amendment protections, and concludes with brief remarks on the intellectual foundations of Scalia’s judicial philosophy.

Keywords: 4th Amendment, judicial fundamentalism, Al-Kidd, material witness statute

Suggested Citation

Raban, Ofer, Judicial Fundamentalism, the Fourth Amendment, and Ashcroft v Al-Kidd (October 14, 2013). Virginia Journal of Criminal Law, Vol. 2, No. 1, 2013, Available at SSRN: https://ssrn.com/abstract=2340126

Ofer Raban (Contact Author)

University of Oregon - School of Law ( email )

1515 Agate Street
Eugene, OR Oregon 97403
United States

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