Here’s Cato Supreme Court guru Mark Moller, who attacks Scalia on his own terms:

In Hudson, the cops broke the rule. They announced. They didn’t knock and they didn’t wait. So what’s the remedy? The Court’s answer (lawyerly “ifs,” “buts,” and “maybes” aside) boils down to: There is no remedy. Or, perhaps, more accurately: We don’t care if there is a remedy.

The traditional remedy for Fourth Amendment violations is suppression of evidence obtained as a result of the violation (the exclusionary rule). The best reading of Hudson is that exclusion is never, or very rarely, appropriate if police don’t knock and announce.

Suppression isn’t needed as a deterrent, says Scalia, because, unlike the bad ol’ days when Justice Scalia was a young’un, we can assume that in our enlightenend modern legal system, civil liability will be an adequate deterrent. (I oversimplify only slightly.) No empirical evidence is provided for this claim. The evidence that does exist — such as my Cato colleague Radley Balko’s study of abusive warrant service by militarized police — goes the other way.

The result: 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.

If there’s a legal method more prone to abuse by outcome-oriented judges, I can’t imagine it.

Can we put to bet the idea that Scalia is in any sense an originalist? As he showed in Raich, he’s an originalist when it suits him. He’s more than happy empoying logical and legal chicanery when it suits his purposes.

Now, Thomas? Thomas broke my heart on this one. I don’t know how the guy who wrote the dissent in Raich could possibly have signed on to Scalia’s dreadful opinion. I was prepared for Thomas to vote the wrong way on this one. But I’d hoped for a satsifactory explanation as to why. Thomas wrote the opinion in Wison, the opinion that established knock-and-announce as part and parcel of the Fourth Amendment. I don’t how you can assert the rule, then turn around and take away the only realistic way of enforcing it.

This entry was posted on Thursday, June 15th, 2006 at 10:14 pm by Radley Balko and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.