You’ll recall that last week, Sam Walker told Radley Balko that Scalia had gotten his research considerably wrong in his opinion in Hudson v Michigan. Walker has now written an op-ed piece for the LA Times making the same argument. That prompted Orin Kerr to argue that Walker’s complaint is invalid because it’s not dishonest for someone to cite a scholar on the facts while disagreeing with his solution:
Scalia cites Walker’s book accurately about existing police practices, but then takes the normative position that in light of those changes there is no need to further expand the exclusionary rule. In other words, Scalia agrees with and cites Walker’s descriptive argument but then disagrees with Walker’s normative views. But contrary to the suggestion of Walker’s op-ed, Scalia does not suggest that Walker would agree with Scalia’s view about the normative scope of the exclusionary rule.
Which prompted Balko to respond:
But I don’t think that’s an accurate description of Walker’s complaint. His compaint is that Scalia inaccurately (or incompletely) cites his work to further a point that doesn’t rise from Walker’s research.
Were we to boil Walker’s research down to one sentence, it would read something like, “While under close supervision and oversight from the courts, police seem to behave themselves.”
Scalia took the portion of Walker’s research that says “police seem to behave themselves,” and used it to justify less supervision and oversight from the courts.
That, I think is a legitimate gripe.
I do too.