The case was decided six to three. Justice Harlan delivered the dissenting opinion.
In overruling the Wolf case the Court, in my opinion, has forgotten the sense of judicial restraint which, with due regard for stare decisis,
is one element that should enter into deciding whether a past decision
of this Court should be overruled. Apart from that I also believe that
the Wolf rule represents sounder Constitutional doctrine than the new Wolfrule, which now replaces it.
From the Court's statement of the case one would gather that the
central, if not controlling, issue on this appeal is whether illegally
state-seized evidence is Constitutionally admissible in a state
prosecution, an issue which would of course face us with the need for
re-examining Wolf. However, such is not the situation. For,
although that question was indeed raised here and below among
appellant's subordinate points, the new and pivotal issue brought to the
Court by this appeal is whether §2905.34 of the Ohio Revised Code
making criminal the mere knowing possession or control of
obscene material, and under which appellant has been convicted, is
consistent with the rights of free thought and expression assured
against state action by the 14th Amendment. That was the principal
issue, which was decided by the Ohio Supreme Court, which was tendered
by appellant's Jurisdictional Statement, and which was briefed and
argued in this Court.
In this posture of things, I think it fair to say that five members of this Court have simply "reached out" to overrule Wolf. With all respect for the views of the majority, and recognizing that stare decisis
carries different weight in Constitutional adjudication than it does in
non-Constitutional decision, I can perceive no justification for
regarding this case as an appropriate occasion for re-examining Wolf...
It seems to me that justice might well have been done in this case
without overturning a decision on which the administration of criminal
law in many of the States has long justifiably relied...
I would not impose upon the States this federal exclusionary remedy.
Our concern herein is not with the desirability of that [exclusionary]
rule but only with the question whether the States are Constitutionally
free to follow it or not as they themselves determine...
The preservation of a proper balance between state and federal
responsibility in the administration of criminal justice demands
patience on the part of those who might like to see things move faster
among the States in this respect.
Questions to Consider
What does the term "judicial restraint" mean? Does Justice Harlan
think the majority has exercised judicial restraint in this case?
According to Justice Harlan, what was the primary issue raised by the appellant?
What was the issue that the Court ultimately decided?
What does Justice Harlan think of the fact that the Court decided a
different issue than the one that was originally raised? How does he
feel about the decision itself?
Does Justice Harlan support the notion of states controlling their
own criminal justice systems or of the federal government making
decisions for them?