Hudson and Originalism

I have not yet addressed the Supreme Court's ruling in Hudson v Michigan, where the court essentially reversed itself on the question of no-knock warrants. It's a very odd decision in light of their previous rulings, particularly Wilson v Arkansas, which established that the requirement that police must announce themselves and identify themselves as police officers prior to serving a warrant is part of the 4th amendment's criteria for determining whether a search is reasonable or not. That was a unanimous ruling, written by the most conservative and the most consistently originalist member of the court, Justice Thomas.

Yet now, Scalia's ruling in Hudson has essentially gutted that ruling and eliminated any remedy for unconstitutional searches by ordering that the exclusionary rule does not apply if the police violate the knock and announce rule. In other words, the court is saying, "Yes, this is a constitutional requirement, but if the police choose not to follow it, there's nothing anyone can do about it." The Cato Institute legal scholars are blistering this decision. Mark Moller writes:

The case is about remedies for violations of the knock-and-announce rule. The rule is pretty easy to describe: When the police serve a warrant, they must knock, announce, wait... then enter. The rule is an ancient one, with a high originalist pedigree.

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."

Rigths 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.

And Radley Balko writes:

Can we put to bed 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.

Hear, hear.