Dispatches from the Creation Wars

Scalia’s Scholarly Screwup

Wow, this is pretty big news and Balko found it. In last week’s Hudson ruling, Scalia makes the following argument as a reason why it was not necessary for the judiciary to enforce the knock and announce rule because there are safeguards in place within the law enforcement community to take care of the problem:

Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline. Even as long ago as 1980 we felt it proper to “assume” that unlawful police behavior would “be dealt with appropriately” by the authorities, United States v. Payner, 447 U. S. 727, 733-734, n. 5 (1980), but we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been “wide-ranging reforms in the education, training, and supervision of police officers.” S. Walker, Taming the System: The Control of Discretion in Criminal Justice 1950-1990, p. 51 (1993).

S. Walker is Prof. Sam Walker of UN-Omaha, a criminologist. Balko talked to Walker to see if Scalia was representing his work accurately and this is Walker’s response:

Walker tells me he learned that Scalia had cited his work, “to my horror.”

Walker adds, “Scalia turned my research completely on its head. My point was that these reforms came about because the courts, specifically the Warren Court, forced the police to institute better procedures with judicial oversight. Scalia now wants to take that oversight away.”

Walker says poltical leadership, internal procedures, media oversight and public pressure are all necessary to ensure civil liberties, but that judicial oversight is extremely important too, and that Scalia misused his scholarship to imply that Walker supports a diminishing role for the courts.

Walker also says his research focused on conventional policing, not drug policing. The latter, he says, “is a special kind of policing,” and says he would agree that the direction of drug policing of late (which of course was what the Hudson case is all about) does raise significant civil liberties concerns. One might also note that Walker’s research for that particular book ended in 1990, sixteen years ago.

The irony of this is that Scalia, by his own declaration a textualist and an originalist, would be the first one to criticize reliance on social science research to justify a court ruling. Yet not only does he use such research to justify his ruling here, he does so sloppily and inaccurately. If he did not agree with the outcome of the decision, if it was written by someone other than him using the same reasoning for a goal he didn’t agree with, Scalia would be the first one out front blistering this decision as exactly the kind of unprincipled, undisciplined judicial reasoning that one would expect from those horrible liberals who ignore sound judicial interpretation in favor of injecting their own social science driven biases into the law.

Let me add one more irony to the mix: Scalia’s ruling essentially guts an earlier case, Wilson v Arkansas, that is an absolutely originalist decision. That case, written by Clarence Thomas for a unanimous court, declared that the knock and announce rule was intrinsic to the 4th amendment and a key criteria for determining whether a search was unreasonable. And Thomas’ ruling was a quintessentially originalist one, tracing the knock and announce rule back to our nation’s founding and even back to common law precedent. Thomas wrote:

In evaluating the scope of this right, we have looked to the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing. “Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable,” New Jersey v. T. L. O., 469 U.S. 325, 337 (1985), our effort to give content to this term may be guided by the meaning ascribed to it by the Framers of the Amendment. An examination of the common law of search and seizure leaves no doubt that the reasonableness of a search of a dwelling may depend in part on whether law enforcement officers announced their presence and authority prior to entering.

So we have a unanimous court, including Thomas and Scalia, declaring that the knock and announce rule is an intrinsic part of the 4th amendment, making it absolutely binding upon both federal and state law enforcement to follow, yet now those same two justices have signed on to a ruling that says that there is no judicial remedy for violating that law. Now what do you suppose is going to happen when an important part of the constitution’s protections cannot be enforced by the courts? You’re gonna get a whole lot more violations of it. This is a stunningly incoherent ruling from Scalia.

Comments

  1. #1 Joe Shelby
    June 21, 2006

    Gee, and this is on top of the general fact that his ruling violated his so-called “originalism” creed elsewhere as well.

    Scalia’s theory of “originalism” holds that the one thing that matters is what the writers of the Constitution “originally” meant. That often seems to correlate with what conservatives want to do, although Scalia will occasionally ditch his devotion to originalism if he needs another way to get to a conservative outcome. That’s what happened last week in a 5 to 4 decision expanding police search powers. A more libertarian approach, Scalia said, applied “in different contexts and long ago.” So much for originalism.

    E. J. Dionne Jr.

  2. #2 Ed Brayton
    June 21, 2006

    One quibble with Dionne’s statement: Scalia’s brand of originalism argues not for what the writers originally meant (original intent originalism) but what those who ratified the provision took it to mean (original public meaning originalism). Of course, since Scalia clearly is not an originalist despite his many claims to be one, that’s a pretty minor quibble. There are now far too many examples of his breezy abandonment of originalist principles in order to achieve his preferred outcome for anyone to take seriously his claim to be an originalist. Even Prof. Bainbridge agreed a few months ago that it’s far too late for anyone to seriously consider Scalia an originalist.

  3. #3 ruidh
    June 21, 2006

    “Stunningly inchoherent” exactly how I would describe the whole of Scalia’s jurisprudence.

  4. #4 tacitus
    June 21, 2006

    Now I assume Scalia doesn’t think he’s made a mistake with this ruling, but if, for some reason he later decides he has erred in his reasoning, is there any possible way to remedy the situation or do they have to wait for a related case to make its way up to the Supreme Court before they can do anything about it?

  5. #5 Ed Brayton
    June 21, 2006

    tacitus-

    It would take another case making its way up, and frankly I think that’s not all that unlikely. We’re going to see an explosion of no knock raids now, with a corresponding increase in wrong door raids as well.

  6. #6 ctw
    June 22, 2006

    “Scalia’s brand of originalism argues not for … original intent … but … original public meaning.”

    interesting how people who might be expected to know better get this confused. it’s admittedly a subtle point, but one presuming to opine publicly on the topic really should know more about it than a retired EE (or be more precise if they actually do).

  7. #7 ctw
    June 22, 2006

    ‘ “Stunningly inchoherent” exactly how I would describe the whole of Scalia’s jurisprudence.’

    oh, I’m not so sure. my preferred tack is to accept that he often is very “coherent” (ie, consistent with his principles) but has adopted principles that are very likely to lead to his desired results. eg, he is very big on deference to democractic process – and voila! it just so happens that at least in cultural matters, his conservative, religious orientation is most often supported by the majority.

    I find his lawrence dissent telling. my lay assessment of his rebuttal to the majority opinion is that it’s pretty effective. but his rebuttal of J o’connor’s concurring opinion (which is based on my preferred ground, equal protection) does in fact seem incoherent because of the diatribe about the gay “agenda”. but ignoring the diatribe, he’s implicitly assuming that homosexuality is chosen (like being a nudist or robber), therefore if the associated activity (sodomy) is decreed a crime by the majority, so be it. not a hint that the assumption is debatable – which of course it isn’t, if you subscribe to RC doctrine, which he does.

  8. #8 Ancient Brit
    June 22, 2006

    I may be way out on a limb here (so saw it off if I am) but doesn’t this ruling take away a protection for law enforcement?

    Doesn’t it allow an individual inside a dwelling to respond with armed force (believing their life and/or their property to be under attack) if one or more unknown and unidentified individuals suddenly and without warning storm into the dwelling?

    If a bunch of armed people suddenly stormed into my premises and I had access to arms to defend myself I’d be shooting first and asking questions later. Without knock and announce how does anyone distinguish between a home invasion robbery and legitimate law enforcement activity?

    Law enforcement is not known for its perfect record for storming into the right dwelling, after all.

    I can see a rise in the number of defense strategies that begin “How was my client supposed to know these were police officers?”

  9. #9 Ed Brayton
    June 22, 2006

    Ancient Brit wrote:

    I may be way out on a limb here (so saw it off if I am) but doesn’t this ruling take away a protection for law enforcement?

    Doesn’t it allow an individual inside a dwelling to respond with armed force (believing their life and/or their property to be under attack) if one or more unknown and unidentified individuals suddenly and without warning storm into the dwelling?

    Well, it takes away one of the incentives to avoid this outcome, yes. But it’s almost impossible for someone to win such a complaint against the police, or use that as a defense. Radley Balko is working on a project now on every wrong door raid he can find, and there are many situations where the police go through the wrong door and get shot and killed by someone just thinking they’re defending their home. The Cory Maye case is a good example. But they rarely get off because juries tend to side with the police no matter what.

  10. #10 Barry
    June 22, 2006

    Ancient Brit, the officers have numbers, preparation, training, equipment and surprise on their side. They kick in the dorr, you reach for a gun/shiny object/your bathrobe, and voila! Several – several dozen shots are fired, the officers are found to have acted in reasonable self-defense. Perhaps I’m going out on a limb, but, IMHO, those same ‘conservative’ judges tend to be pretty lenient on the right of the police to kill.

  11. #11 thegoldenbb
    June 23, 2006

    The US Supreme Court is completely arbitrary and probably always has been. Their job is to make unpopular state decisions more palatable and back the executive 100% while maintaing the pretence of answering to the rule of law. I would be concerned except that it appears to me that the Federal Government is increasingly desperate in its actions and will collapse like the Soviet Union did. I think it’s all coming apart soon, the only question is: How many Americans will be killed in the process?

    Ask yourself: Why else would they bother to gut the 4th Amendment (over 200 years of established precedent, not to mention the legal basis of, oh I don’t know, the Magna Carta?) if major crackdowns weren’t going to be used in an attempt to maintain control? Could the entire western tradition of individual rights be at risk of being extinguished in the coming downfall?

  12. #12 Ed Brayton
    June 23, 2006

    The US Supreme Court is completely arbitrary and probably always has been.

    I’ll take ridiculous and exaggerated generalizations for $1000, Alex.

    Their job is to make unpopular state decisions more palatable and back the executive 100% while maintaing the pretence of answering to the rule of law.

    If you really believe that, you’re going to have a tough time explaining a whole lot of Supreme Court decisions that went squarely against the executive. You might start with Youngstown v Sawyer and NYT v Sullivan. This is, like the statement above, nothing more than an absurdly simplistic generalization.

    I would be concerned except that it appears to me that the Federal Government is increasingly desperate in its actions and will collapse like the Soviet Union did.

    Would you care to wager on that?

    Ask yourself: Why else would they bother to gut the 4th Amendment (over 200 years of established precedent, not to mention the legal basis of, oh I don’t know, the Magna Carta?) if major crackdowns weren’t going to be used in an attempt to maintain control? Could the entire western tradition of individual rights be at risk of being extinguished in the coming downfall?

    It’s one thing to take a strong stand against the usurpation of power; it’s quite another to run around screaming “the sky is falling”. Our government is not on the verge of collapse, nor do our current president’s attempts to gather more authority to himself portend the end of all liberty. We have been here many times in our past with many threats to our liberty, from the Alien and Sedition Acts to Lincoln’s ignoring of the Supreme Court and arbitrary suspension of habeas corpus (not to mention the civil war itself) to the arrest and prosecution of war opponents during both world wars to FDR’s attempts to pack the court, and so forth. Liberty is never safe from the executive or legislative branch, but it is the courts that have been our greatest bulwark against their machinations (though obviously not 100% effective or perfect in this regard). The union has been in much worse shape than it is now with regard to both liberty and stability and it has survived; Bush only wishes he could be enough of a threat to be taken as hysterically as you’re taking him.

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