The Exclusionary Rule is Alive and Well
The Exclusionary Rule is: Your civil rights are excluded from consideration. America’s Most Important Blogger is all over the Hudson decision, in greater detail and eloquence than I could hope to manage. Read everything. I was especially struck by his response to Scalia’s perorations on police “professionalism”:
Police are certainly more highly trained than they once were, but they aren’t better trained at obseving constitutional protections. They’re better trained at paramilitary tactics. They’re now trained by former Navy SEALs and Army Rangers. They’re better trained at treating civilians like enemy combatants, not at treating them as citizens wih constitutional rights.
Scalia’s synopsis is shockingly naive. He ought to look up Hearne. Or Tulia. He might look into the Dallas informant scandal, or the Miami SWAT-Internal affairs scandal, or LAPD’s multiple police scandals, including a civilian review board scandal, or the fact that New York City’s civilian review board has no jurisdiction whatsoever over — guess what? — no-knock raids.
He also quotes his Cato colleague Mark Moller:
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.â€
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.
If there’s a legal method more prone to abuse by outcome-oriented judges, I can’t imagine it.
Radley also describes his one hostile radio interview:
Doesn’t bode well for what’s coming when the guy invokes 9/11 in the introduction. What’s funny is that each time he made a point (”these raids aren’t ever conducted on small-time dope users”; “nobody gets shot in these things”; “yeah, but no innocent people ever get shot in these things”), I’d provide evidence to the contrary. Which only seemed to make him angrier. He ended the interview in O’Reilly-esque fashion: “Well, you can show me all the research and data you want, but the bottom line is….” Then, something about how we have to protect our men in blue. After I hung up, he said something about how a ruling the other way would make it harder to fight terrorism.
Terrorism. 9/11, 9/11. God bless America.
There are two strains of libertarian thought that stand definitively rebuked by recent history. The first is that we should prefer Republicans because they’ll appoint “good judges.” But for the most part, the Republican Party in power has appointed “law-and-order” conservatives who who are maybe willing to counsel a little less of both for the sort of corporations who can afford to hire lawyers cleared for the Supreme Court bar. There was a moment in the 1990s when the Supreme Court flirted with systematically reining in the Commerce Clause, but the Court clearly got cold feet on that score. In the Bush II era the Court has become a rubber stamp for government power at all levels, by design: that is what the Republican Party in power wants it to be.
The second is less prominent. It’s the “realistic” so-called libertarians who show up in one or other forum to chide the movement for marginalizing itself by pursuing the “fringe issue” of drug prohibition. But realistically, drug prohibition is the whole political ballgame. It drives the aggrandizement of police power and the paring of civil liberties. It establishes precedents that generalize to other law enforcement issues. It exemplifies and undergirds the principles of the Loco Parentis state. It is everything any libertarianism worthy of the name must not only oppose, but make central. There is no area of American life where the state said more clearly, “We must be free to kill you with impunity to protect you from making bad choices.”
Lastly we see how fear of terrorism makes Americans craven. Here too the Republican Party in power earns scorn. It’s been of political benefit to the Bush Administration and its junior auxiliary to instill as much continuing, ubiquitous fear of terror attacks as possible. It’s also been of great political harm to the country. When we talk about “bedwetters,”that’s why.
Comment by Nell —
June 17, 2006 @ 9:35 am
This decision is right up there in the top ten most horrifying developments of the Cheney-Bush regime, and you know how tough the competition is.
Someone had a scathing, pithy assessment of the ’originalists’ who formed part of the 5, but I seem to have just nodded emphatically rather than clipped it…
Comment by Steve —
June 17, 2006 @ 9:54 am
At one point in time, I was able to think of Scalia as a serious-minded jurist with a legal philosophy that I thought was somewhat unhinged but which he would apply fairly. Did he change, or was I wrong? (Or was I right, but the legal philosophy was merely ”the state is presumptively right unles Title IX or affirmative action was involved”?) And if I was wrong, why was it so easy to come to the conclusion that I drew?
Comment by Bruce Baugh —
June 17, 2006 @ 10:21 am
Steve: You were wrong, as nearly as I can tell from reviewing Scalia’s history. He used to talk a better line than he does now, that’s all, and like many folks who find judicial whim unsettling, you were probably cutting him slack in hopes that he’d live up to his rhetoric. (I say this with no sneer at all, because I’m still working through some nasty disappointments of my own with similar decisions. If anything, I may be projecting.) But he never was what a decent libertarian or a serious federalist would actually want when it comes to the rule of law.
Comment by Nell —
June 17, 2006 @ 10:24 am
Since it’s torture awareness month:
Radley Balko’s excellent point that police are increasingly better trained at treating civilians like enemy combatants, not at treating them as citizens wih constitutional rights has implications for the detention phase that follows the raids.
That is, suspected criminals and members of their households are likely to be treated as ’enemy combatants’ in the Rumsfeld-Cheney-Bush regime’s non-Geneva sense of the term. That’s the brave new world in which our military, and the police modeling themselves on the military, are operating. Geneva protections have been dropped from the current verstion of the new Army Field Manual on interrogation (still being struggled over, so not a done deal).
The massive case of systematic police torture in Chicago, which went on for years and has taken decades for justice to begin to be done, has gone almost unremarked outside that city. By itself it does a lot to undermine Scalia’s assertion. The Tennessee case that Radley publicized is another. (Didn’t the torture take place in the victim’s home in the immediate aftermath of a raid, in fact?)
Comment by Rich Puchalsky —
June 17, 2006 @ 10:40 am
Scalia always was an authoritarian. The people who thought that originalism was serious — well, they are the equivalent of the ”liberal hawks”. They thought that they should sign on to any originalism because they thought they’d get *their* originalism, not originalism as actually carried out by the people propounding it.
And seriously, people: the 2000 election was stolen by judicial fiat. Under any actually-carried-out counting scheme, Gore would have won. Anyone who stills looks to the Supreme Court for anything reveals themself as someone who finds judicial partisanship fine as long as it’s partisanship on their side.
I don’t think that people really appreciate the slow-burning Constitutional crisis that we’ve been under since 2000. Any Democratic administration that comes into power is in my opinion going to have to make one of its first orders of business the destruction of the Court, probably through FDR-style court packing. They Democrats may not do it out of some ingrained timidity, but the longer the Republicans last in power, the more radical the Democrats are going to get.
Comment by Brian C.B. —
June 17, 2006 @ 11:00 am
The Republican’s Party is becoming the organ of autoritarian Christian nationalists. This creeping militarism that Balko writes about engenders an ”us versus the Other” conduct that motivates the Republican’s base. Immigration, the dispensation of due process and the cherished Enlightenment idea of autonomous rights, that’s all sacrificed to power. We must protect our boys in blue because they’re all that stands between us and them, and they’re never wrong. Plus, we won’t acknowledge it if they were, because that would encourage us toward a more nuanced view of the world. And, that would mean that the terrorists would have won.
Comment by Hesiod —
June 17, 2006 @ 11:44 am
This decision is nothing more than bullshit results oriented judging. The police fucked up, violated some guy’s rights, and found drugs on the premises.
So, no harm no foul.
Just once I’d like an INNOCENT person who got screwed to make it to the Superem Court. But, by design, the pusillanimous a-holes up there wouldn’t take a no-knock warrant case where an innocent person got shot to death.
Because if they did, they’d have to inval;idate them. Or the coun try would be outraged if they didn’t.
So, they take the ones where the guy is a druggie or a drug dealer, and nobody will care except for the pure civil libertarians.
By the way, lest there be any doubt now, this Court will easily approva eall of Bush’s wiretapping, enemy conmbatant, no-Lawyer bullshit if it ever gets up there.
It’s one thing for Scalia to say in the Hamdi case: ”Charge him with a crime or release him,” when he’s in the minority. But when he migt actually have to hold he President accountable, count on him to ind some excuse for why he changed his position.
Comment by Gary Farber —
June 17, 2006 @ 12:22 pm
Mine was here, two days ago.
Comment by srv —
June 17, 2006 @ 4:17 pm
We need a new acronym:
WJE – Worst Justice Ever
Comment by Wild Pegasus —
June 17, 2006 @ 4:23 pm
Hesiod,
To be fair, the prohibition on using the poisoned fruit was also a results-oriented decision.
- Josh
Comment by Leonard —
June 17, 2006 @ 6:56 pm
Rich: Bush would have won in Florida regardless of the SC short-circuiting the process.
Sorry about that. Ah, democracy! Thy fruit is fulsome; thy mein is fair!
As for what the Democrats would do if somehow they achieved power… the point is moot. Y’all may get back to divided government, and I wish you well on this project. But I really, really, don’t foresee a Democratic dominated House, Senate and Presidency any time in the foreseeable future. Too many albatrosses are hanging on your collectivist necks.
Comment by Leonard —
June 17, 2006 @ 7:03 pm
”Terrorism. 9/11, 9/11. God bless America.”
Somehow reminds me of ”Durka durka mohammed jihad”.
Comment by Leonard —
June 17, 2006 @ 7:10 pm
Just to add to what Bruce Baugh said up there: there’s a big difference between a person who has power, and one who doesn’t. When Scalia was losing all those 5-4 and 6-3 decisions, he wrote a certain kind of decision (generally). The sort of thing that Steve noticed – intellectual and consistent, if a bit wingnutty.
When Scalia suddenly got the chance to be part of the 5, and not the 4, that’s when I think his decision style changed. (Or to be more candid, he defenestrated pesky ”principles”.) Pace Rich, you can see that in Bush v. Gore. And now we’re seeing it more broadly, ’cause he’s got the 5 now. Expect his inner authoritarian to blossom.
What does this show? Well, power corrupts, but more than that. Perhaps we might say, lack of power glibbens.
Trackback by The Agitator —
June 17, 2006 @ 7:40 pm
Twenty Years of Torture by Chicago Police
Just another example of that “new professionalism” Scalia was telling us about. Via Jim Henley’s comments section….
Comment by Avram —
June 17, 2006 @ 9:05 pm
Leonard, whoever wrote that Wikipedia page doesn’t know what he’s talking about. ”Overvote” doesn’t refer to a ballot that actually records two votes for the same position, it refers to a ballot that has been rejected by a voting machine as having two such votes — perhaps erroneously. (Consider, for example, an optical ballot with a crease in it causing the machine to register an empty box as filled. Or a machine that’s just plain malfunctioning and rejects some number of ballots as overvotes even though they really aren’t.)
Florida election law in 2000 required that ”If any paper ballot is damaged or defective so that it cannot be counted properly by the automatic tabulating equipment, the ballot shall be counted manually at the counting center by the canvassing board. The totals for all such ballots or ballot cards counted manually shall be added to the totals for the several precincts or election districts.” This isn’t optional. It also wasn’t done.
According to Mickey Kause, a circuit judge supervising the recount told the Orlando Sentinel that he wouldn’t have ignored the overvotes, and had been planning to bring the matter up at a hearing when the recount was stopped by the Supreme Court decision.
Back in 2002 I put together a page about the election, arguing at tedious length that Bush was illegitimate for a variety of reasons, but sadly most of the links I used as sources have gone bad since.
Comment by Gary Farber —
June 17, 2006 @ 9:08 pm
”Perhaps we might say, lack of power glibbens.”
What would we mean if we said it?, he asked, scratching his head.
This isn’t a subway announcer expression, is it?
Comment by Leonard —
June 17, 2006 @ 10:24 pm
Gary, ”makes glib”. (Purely made up word.)
Stated long: lack of power allows people the freedom to proclaim their ideology in a relatively pure form. Once they get near to power (which on the SC is very boolean, and known before writing), then they get tempted and usually the former ideology goes out the window.
Comment by Gary Farber —
June 18, 2006 @ 9:13 am
”According to Mickey Kause….”
I’m thinking more likely Mickey Kaus.
Leonard: ”(Purely made up word.)”
Ah. Gotcha. It sounded a tad jabberwocky on first impression.
Comment by Jackmormon —
June 18, 2006 @ 9:56 am
”glibbens” is genius.
Comment by Nell —
June 18, 2006 @ 10:23 am
I’d prefer ’englibbens’ (on the model of ’embiggens’ — makes bigger).
Comment by Walt —
June 18, 2006 @ 2:50 pm
Leonard: I would say that rather when people are far from power, they are inspired to invent an ideology that justifies to themselves why they deserve the power they lack. Once they have it, they don’t need the ideology anymore.
Comment by Leonard —
June 18, 2006 @ 6:26 pm
Walt, interesting idea, but you’re talking to a libertarian here… our ideology is, if anything, made up to justify to ourselves why nobody deserves the power we lack. If we ever got that power abolished, I think we’d still need the ideology, else the power would return. ”Eternal vigilance is the price of liberty.”
Comment by Bruce Baugh —
June 18, 2006 @ 8:19 pm
Leonard, there’s a line of thought (which I find persuasive) that if elected in enough numbers to set the course of policy, libertarians would end up being as disastrous as this crop of Republicans, and for basically the same reason. The temptations of power will be there. Genuine needs will be there, too. And in the absence of a model on how to use the power responsibly, it’s not that it won’t get used, it’s just that it’ll get used badly. Even if legislationa nd executive decrees went out the very day the new administration came into power abolishing all the bad stuff, and they wouldn’t, the temptations to modify, adjust, restore, and so on, would all still be there.
In principle it’d be possible to prepared for a lot of it, but I would expect another catastrophe, just because people do that.
Comment by Neel Krishnaswami —
June 18, 2006 @ 8:32 pm
Walt, I don’t think that’s right. Have you ever read Vaclav Havel’s essay The Power of the Powerless? In it, he gives an example of a greengrocer who is required by the state to put a sign reading ”Workers of the World Unite” in his shop window.
Now, the real meaning of the sign is ”We, the authorities, are demonstrating our power by forcing this man to put this sign in this window.” However, if they tried to make people put signs saying exactly that in their windows, they would face immediate rebellion, because such a sign would be an un-rationalizable slap in the face. But, faced with a sign that says ”Workers of the World Unite”, the grocer can rationalize that the workers uniting isn’t such a bad sentiment, and this gives him a way to kowtow to power while maintaining a fiction of his dignity.
That’s why you don’t find un-ideological ruling classes; ideology is necessary for the rulers and the ruled to rationalize their oppression and sleep at night.
This is the reason that Scalia is going on and on about the professionalism of the police; he’s exhibiting bad faith in the Sartrean sense of believing a known-false fact in order to avoid having to give up a cherished belief. In this case, Scalia wants to punish, and he wants to believe that he’s an originalist, so he’s making up exactly what he needs to believe in order to not give up on either.
Comment by Neel Krishnaswami —
June 18, 2006 @ 8:38 pm
Bruce, that’s silly. Libertarians would mess up in characteristically different ways from the two major parties. The Democrats and Republicans both frequently advocate different bad policies, and that difference is due to the differing ideologies they adopt. Why do you think that libertarians would somehow be exempt?
Comment by Bruce Baugh —
June 18, 2006 @ 9:42 pm
Neel, I think the current Republican crew is qualitatively worse than any Democratic administration of my lifetime, though admittedly that’s not as many, and that it rises precisely from lack of interest in governance as a task. And it seems to me that this is pretty close to the prevailing outlook among most of the Libertarians I’ve known who were active in politics. They seemed not to believe that a job could be done well or poorly, if it were sufficiently out of line with their model of acceptable state activity, and they weren’t interested in things like how you’d measure performance or waste. That’s been proven to be a particular kind of disaster.
The details would of course vary. More kickbacks to software firms, fewer to defense contractors. (Dammit, I wish Jim’s setup didn’t demand I take out smilies. I want one here.) But the broad framework of disbelieving in the worth of the job plus regarding corruption and failure as inevitable strikes me as reminiscent, to put it mildly.
The cure would be practical Libertarian experience in governance, which is just one more reason to favor focusing on scales smaller than the national. Getting folks who know how to retain principles while dealing with others’ reality is usually a good idea.
Comment by Bruce Baugh —
June 18, 2006 @ 11:42 pm
Later thought…
I’ll bet there’s at least some study been done of efforts to attain a piece of power or influence with the goal of abolishing it – what works, what doesn’t. If anyone has pointers for that, I’d welcome them, as they’d be relevant for some upcoming work.
Comment by Thomas Nephew —
June 19, 2006 @ 3:50 pm
Rather than lurk, as usual, I’ll wholeheartedly agree about the Hudson decision. I’m just flabbergasted by it, and flabbergasted by the ”so what,” ”balanced” (a term of art, in this case) attitude of some commentators about it.
I’m interested if anyone has looked into the origins of (and historical development and enforcement of) ”no knock”; while I don’t consider originalism the final word in Constitutional reasoning, I do think it’s often very instructive to see what the various, precise issues were once upon a time — sometimes they still apply.
Comment by Walt —
June 19, 2006 @ 4:43 pm
I guess to say that they discard all ideology once they acheive power is going too far. But (and this applies to the Soviet case as well, I suspect), surprisingly large amounts of ideology turn out to be convenient to reject when the time comes.
Comment by Gary Farber —
June 19, 2006 @ 7:52 pm
”Dammit, I wish Jim’s setup didn’t demand I take out smilies.”
Thus proving libertarians favor censorship. (Smiley.)
Comment by Avram —
June 19, 2006 @ 9:57 pm
Or hate Watchmen.
Comment by Neel Krishnaswami —
June 19, 2006 @ 10:22 pm
Maybe smilies only work for libertarians, because we aren’t consumed with class envy?
Comment by Bruce Baugh —
June 20, 2006 @ 3:03 pm
Neel, it is a hypothesis that is not contradicted by the evidence, to be sure.