Cato blogger Mark Moller weighs in on Justice Antonin Scalia's decision in Hudson v. Michigan, which declined to apply the exclusionary rule to no knock raids by police:
An originalist constraint on police entry is recognized on paper, but left unenforced as a matter of breezy, factually unsupported judicial policy that would make even Justice William O. Douglas blush. As Justice Breyer says, the majority’s argument is, in essence, “the [knock-and-announce requirement] is fine, indeed, a serious matter” — wink, wink — “just don’t enforce it.”
Rights grounded in originalism backed with real remedies: That’s an interpretive method with the courage of conviction in the outcomes it produces. It’s an interpretive method that forces clear, serious judicial thinking because it doesn’t shrink from the consequences of interpretation. Scalia’s opinion, by contrast, is “let’s pretend originalism” — a Potemkin fidelity to the old ways, robbed of any force by a deceptive, lawyerly slight of hand.
A couple of thoughts:
- The exclusionary rule long has been controversial. US Supreme Court Justice Benjamin Cardozo famously remarked: “The criminal is to go free because the constable has blundered.” Lots of folks think that's bad public policy. Me? I think the trade-off between civil liberties and legitimate police work is a very difficult policy question and, as such, one as to which reasonable people can disagree, although I lean towards the liberty position on search and seizure issues.
- Anybody who thinks Scalia is an originalist is either ill-informed or being disingenuous. Scalia goes back and forth between originalism, textualism, and traditionalism with no apparent hierarchy for resolving conflicts between the three approaches nor any consistent metric for deciding which to apply in any given case. It is, perhaps, his greatst weakness as a jurist and the main reason his historical legacy is lilkely to be relatively modest.
