13.
WHEN THE JUSTICES MET AT THEIR CLOSED FRIDAY CONFERENCE to take a straw vote and assign the writing of the majority opinion in the case of United States v. Martinez-Fuerte, the vote was 7–2 in favor of the Border Patrol. The conservative, pro–law enforcement slant of the court began to show, with Warren Burger, Harry Blackmun, Lewis Powell, William Request, John Paul Stevens, and Potter Stewart voting to reverse the Ninth Circuit’s ruling. Only William Brennan and Thurgood Marshall voted in favor of Martinez-Fuerte. Chief Justice Burger assigned the opinion to Powell based on his experience with the previous Border Patrol cases.
Powell gave the Martinez-Fuerte case to clerk Carl R. Schenker Jr., who would go on to be a partner at the D.C. firm O’Melveny & Myers before he passed away in 2012. Powell regularly hired clerks with political and legal views that differed from his own, and he was usually open to their arguments for different outcomes in particular cases. When Powell joined the court, he felt confident in business cases but often relied more on the judgment of his clerks in other areas. In Almeida-Sanchez in 1973, a clerk had convinced Powell to change his mind and switch his vote at the very last minute.
By 1976, Powell had several years of experience and was more confident in different areas of the law, particularly regarding the border and the Fourth Amendment, about which he had already written several opinions. Consequently, he was less persuadable than he had been in earlier terms. Powell was kind and supportive of his clerks, leaving notes on their desks thanking them for their work and even sharing memos they wrote with the other justices, crediting them by name for their good work. However, Schenker did not have the same sort of relationship with Powell.1 In his first memo to the justice at the beginning of the term, Schenker had proposed that Powell take a progressive position on a case that even Brennan and Marshall thought was too liberal. After that, Powell just did not seem to trust Schenker and was less open to considering his arguments. The lack of success made Schenker angry throughout the term, as he had to write conservative opinions he loathed.
After Schenker completed the first draft of the Martinez-Fuerte opinion, Powell wrote a long memo with the changes he thought should be made. He offered some praise to Schenker, but the length and tone of the memo made clear he was not particularly happy with the draft. He said Schenker should “take his time” on making the corrections for the next draft. These included condensing it substantially, but also removing any mention that implied that the location of the San Clemente checkpoint could be questioned.
Powell was convinced that the Border Patrol should decide the location of the checkpoint and that the inconvenience to most motorists was slight. Assistant Solicitor General Evans’s line about the checkpoints being the most effective and least intrusive method became the crux of Powell’s opinion.
Schenker finished the revision and Powell circulated the draft opinion to the other justices. By early June, the justices had signed onto the opinion with the same 7–2 majority as the straw poll in the Friday conference. Rehnquist offered two small edits, and Powell agreed to both. Brennan wrote a dissent, after which Powell added two footnotes to the opinion in response, one of which reminded Brennan that the year before, he had signed on to the Brignoni-Ponce opinion that had similar language about race.
The opinion was announced on Tuesday, July 6, 1976, along with the seven other cases that remained on the final day of the term. The week before, the court had announced a series of controversial cases that dealt with the use of the death penalty in the United States. The court reversed its 1972 ban and allowed states to recommence capital punishment. On the final day of the term, there were a series of Fourth Amendment cases, which were announced together with Martinez-Fuerte.
As soon as Lewis Powell began to read his explanation of the Martinez-Fuerte decision, it was clear which way it was headed. The first thing he emphasized was the substantial problem of people crossing the border from Mexico, suggesting that many did so clandestinely along the long and mostly open border line, even though the two women in the case actually crossed with forged documents at the official crossing point. Powell then minimized the intrusion of a checkpoint, comparing it to tollbooths and agricultural checks. He said these sorts of stops were familiar to all motorists and that the “[i]ntrusion on privacy and the limitation on freedom of movement in these situations are minimal.”2
Although his clerk, Christina Whitman, tried to convince Powell that the checkpoints were unreasonable because they were so far from the border, his opinion made the case that they had to be quite distant. His reasoning was that many areas around the border are densely populated, so checkpoints needed to be farther away, in rural areas with fewer roads.
Additionally, since the 1950s, Mexican citizens have been eligible for Border Crossing Cards, which are valid for unlimited entries to the United States for a period of ten years. However, the cards are meant only for short-term trips. The cards are only valid for travel within twenty-five miles of the border in Texas and California, fifty-five miles in New Mexico, and seventy-five miles in Arizona. Consequently, Powell wrote, the checkpoints needed to be beyond these zones of free travel for Mexican citizens.
The opinion conceded that the stops, even if they were fleeting, “are ‘seizures’ within the meaning of the Fourth Amendment.” However, because “the resulting intrusion on the interests of motorists [is] minimal” and the need for stops is “legitimate and in the public interest,” the court held “that the stops and questioning at issue may be made in the absence of any individualized suspicion at reasonably located checkpoints.”
The lawyers from the Federal Defenders of San Diego were stunned. The Supreme Court had found that a seizure without any individualized suspicion was reasonable.
Even after a year to consider the implications of the racial profiling that was allowed in the Brignoni-Ponce ruling, the majority of the court reiterated that the race of the individual was a legitimate factor for the agents to consider. The opinion continued: “We further believe it is constitutional to refer motorists selectively to the secondary inspection area at the San Clemente Checkpoint on the basis of criteria that would not sustain a roving-patrol stop. Thus, even if it be assumed that such referrals are made largely on the basis of apparent Mexican ancestry, we perceive no constitutional violation. As the intrusion here is sufficiently minimal that no particularized reason need exist to justify it, we think it follows that the Border Patrol officers must have wide discretion in selecting the motorists to be diverted for the brief questioning involved.”
It was the first loss for the Federal Defenders of San Diego before the Supreme Court. After three previous victories in Almeida-Sanchez, Brignoni-Ponce, and Ortiz, which limited the Border Patrol’s authority to stop and search vehicles in the border zone, the Martinez-Fuerte decision was a complete and total defeat. Chuck Sevilla had hoped that the court would affirm the Ninth Circuit’s ruling that invalidated the checkpoints altogether. However, at minimum, even if they allowed the checkpoints, it seemed logical that they would use the same standard of reasonable suspicion for stops at checkpoints, as they had required for stops on roving patrols in the Brignoni-Ponce decision the previous year. The court’s final decision that the Border Patrol did not need any reason at all to stop a particular vehicle at interior checkpoints was an unexpected and shocking result.
“The Continuing Evisceration of the Fourth Amendment”
In the previous year, the court’s progressive wing had signed on to the Brignoni-Ponce decision that legalized racial profiling as one of the multiple factors that could be used by Border Patrol to decide whether to stop a vehicle during a roving patrol. In that case, the conviction of Felix Brignoni-Ponce was overturned, which perhaps led them to overlook the implications of the rest of the opinion. In Martinez-Fuerte, William Brennan did not make the same mistake again. He wrote an angry dissent, which was joined by Thurgood Marshall, blasting the weakening of the Fourth Amendment of the Constitution and the legalization of racial profiling by the Border Patrol.
After the retirement of William O. Douglas in November 1975, Brennan and Marshall found themselves outnumbered. As conservative opinions came one after another in 1976, Brennan’s dissents became more and more biting. At a Friday conference at the end of the term when they were discussing Martinez-Fuerte and Powell’s other Fourth Amendment cases, Brennan and Powell got under each other’s skin. Powell said, “I’m ready, but I don’t know if Bill Brennan is ready. He may have some more dissenting to do.” To which Brennan responded, “I don’t know why you even have to ask me. I take it you don’t feel you have to read my dissents or respond to them anyway.”3
Brennan’s Martinez-Fuerte dissent was sharp, coming on the final day of a frustrating term. He first took aim at the hollowing out of the constitutional protection against unreasonable searches and seizures: “Today’s decision is the ninth this Term marking the continuing evisceration of Fourth Amendment protections against unreasonable searches and seizures [. . .] the Court’s decision today virtually empties the Amendment of its reasonableness requirement by holding that law enforcement officials manning fixed checkpoints stations who make standardless seizures of persons do not violate the amendment.”4
Brennan argued the Martinez-Fuerte opinion was not in concert with the recent decisions in Almeida-Sanchez, Brignoni-Ponce, and Ortiz. Courts have set various standards in different situations, but “Conduct, to be reasonable, must pass muster under objective standards applied to specific facts.” In his view, the Border Patrol’s ability to stop a vehicle should always be based on at least reasonable suspicion. As Chuck Sevilla said during the oral arguments, it is illogical that reasonable suspicion should be required to stop a single vehicle but not required to stop every vehicle on the highway. Therefore, the opinion amounts to the “defacement of Fourth Amendment Protections.”
Brennan was even more surprised at Powell’s suggestion that the interior checkpoint was a minor inconvenience. If you added up all the inconveniences experienced by over 10 million motorists per year, it was a far different story. He wrote: “[C]heckpoints, unlike roving stops, detain thousands of motorists, a dragnet-like procedure offensive to the sensibilities of free citizens.” The suggestion that the highways represented the easiest place for the Border Patrol to check for undocumented immigrants was preposterous, as both the Ninth Circuit and Sevilla argued. Brennan extended that argument: “There is no principle in the jurisprudence of fundamental rights which permits constitutional limitations to be dispensed with merely because they cannot be conveniently satisfied.”
Brennan then turned his ire toward the racial profiling that the Supreme Court sanctioned in both Brignoni-Ponce and Martinez-Fuerte: “[C]heckpoint officials, uninhibited by any objective standards and therefore free to stop any or all motorists without explanation or excuse, wholly on whim, will perforce target motorists of Mexican appearance. The process will then inescapably discriminate against citizens of Mexican ancestry and Mexican aliens lawfully in this country for no other reason than that they unavoidably possess the same ‘suspicious’ physical and grooming characteristics of illegal Mexican aliens.”
This would mean the clear and obvious infringement on the constitutional rights of American citizens. “Every American citizen of Mexican ancestry and every Mexican alien lawfully in this country must know after today’s decision that he travels the fixed checkpoint highways at the risk of being subjected not only to a stop, but also to detention and interrogation, both prolonged and to an extent far more than for non-Mexican appearing motorists.” Brennan concluded: “Today’s decision would clearly permit detentions to be based solely on Mexican ancestry.”
In the end, William Brennan belatedly realized what he and Thurgood Marshall had voted for the previous year: the Supreme Court had legalized racial profiling by the Border Patrol. The combined result of these cases was the formal approval of the Supreme Court for interior operations for the Border Patrol in the one-hundred-mile border zone that includes the homes of two-thirds of the United States population.
John Cleary and Chuck Sevilla did succeed in reining in the Border Patrol’s authority to search vehicles. In Almeida-Sanchez in 1973 and Ortiz in 1975, the Supreme Court ruled that the Border Patrol needed probable cause to search a vehicle during a stop by roving patrol or at an interior checkpoint. However, in Brignoni-Ponce in 1975 and Martinez-Fuerte in 1976, the court established guidelines that made it possible for the Border Patrol to stop virtually any vehicle in the one-hundred-mile border zone and to use racial profiling in the decision. Brignoni-Ponce said that the agents needed only two facts of reasonable suspicion to pull over a vehicle. The opinion listed a wide range of possible facts for a stop, which means that in practice virtually any stop could be justified, including stops based on the race of the occupants. Martinez-Fuerte went even further by allowing the Border Patrol to establish interior checkpoints that stop every single vehicle on an American road without any cause or suspicion whatsoever. Furthermore, the agents could use the race of the occupants to decide whether to send a particular vehicle to secondary inspection for more thorough questioning. All this was allowed within an area that the congressional legislation said should be a reasonable distance of the border, but which the Department of Justice decided in 1947 was one hundred miles from borders and coastlines.
The true implications of the Supreme Court’s Border Patrol rulings would become clear on highways across the border zone over the ensuing decades. The results were as bad as William Brennan and Thurgood Marshall had feared.