Conservative lawyering has aspired to create rules that restrain the ad hoc policymaking power of judges. The idea is that judges, ensconced among leatherbound books in oak-paneled chambers, don’t make good legislators. They can’t assess changing facts on the ground or balance difficult policy tradeoffs. What’s needed, conservative legal theorists tell us, is a set of clear rules, grounded in legal tradition, that lets us know where courts stand.
Justice Scalia’s opinion in Thursday's announced decision of Hudson v. Michigan guts that aspiration in the realm of the Fourth Amendment. 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.
If there’s a legal method more prone to abuse by outcome-oriented judges, I can't imagine it.