Mapp V. Ohio Revisited: A Law Clerk's Diary

Abstract

This paper reviews diary entries by a Supreme Court law clerk during the 1960 term of the Warren Court, with a specific focus on the decision process in Mapp v. Ohio (1961). Mapp held that the Fourth Amendment’s protection against 'unreasonable searches and seizures' required the exclusion of evidence found through an illegal search by state and local police officers, extending to the states a rule that previously applied only to federal law enforcement. As the diary reveals, Justice Felix Frankfurter was sufficiently upset with the Court's action that he termed Mapp 'the worst tragedy since Dred Scott.' Richard S. Arnold, a law clerk for Justice William Brennan, wrote this diary during the 1960 term. Arnold's diary has not previously been available to researchers. His recounting of the decision in Mapp is instructive for the level of disagreement and temper it reveals, and enhances our understanding of the division-creating federalism issues in the early stages of the Warren Court’s Due Process revolution.

Keywords: Mapp v. Ohio, exclusionary rule, Fourth Amendment, selective incorporation, Bill of Rights, Supreme Court history, William Brennan, Supreme Court law clerk; Warren Court; Richard S. Arnold, Felix Frankfurter, Hugo Black, William O. Douglas, Earl Warren, Tom Clark, Potter Stewart,