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Quick Notes On Hudson


With respect to the merits of Hudson v. Michigan, I remain mostly happy to second iocaste and Lindsay. I have a couple of additional points:

  • Orin Kerr notes the distinctly non-originalist nature of Scalia’s opinion. (I disagree with Publius that this means that Scalia didn’t write and perhaps barely read the opinion; for Scalia to submit non-originalist opinions to reach desired outcomes is utterly banal.) Scalia’s defenders might argue that Scalia’s preferred option would be to entirely overturn the exclusionary rule–something which could be justified in originalist terms–but this was the best available outcome, so he took what he could get. In isolation, that’s true enough; it’s fairly run-of-the-mill strategizing, and there’s no such thing as a Supreme Court justice that doesn’t do it. The problem is the insufferable arrogance of Scalia and his followers, who constantly accuse others of being unprincipled hacks while ignoring his own tendency to abandon even his shallow law-office history when it threatens to produce inconvenient policy results, which in the wake of Bush v. Gore has become particularly intolerable.
  • Publius, who as has been widely noted has the best defense I’ve seen of the opinion, leads us to another argument, which can be summarized as: given that I don’t think that there’s anything wrong with utilitarian analysis what’s wrong with Scalia’s opinion? Like Radley Balko, where I completely disagree with Publius is in Scalia’s pragmatic justifications, which I found entirely unconvincing. (Breyer, who is at least an open pragmatist, takes the empirical evidence much more seriously.) Publius is right, of course, that the exclusionary rule is just a remedy, and because of its consequences it would be preferable if there was a better one. The problem is that neither he nor Scalia takes any account of the fact that using civil liability as a disincentive to unconstitutional behavior is not remotely viable politically. When Congress passes the “Ice Cream Castles In The Air. And A Pony!” act creating an effective, viable civil remedy for this particular violation of the 4th Amendment I might happily join Publius and Scalia, but until then, nope. Moreover, if we’re going to be good utilitarians, perhaps we should go all the way and consider the context of the drug war. No-knock searches (like most of the ongoing gutting of effective Fourth Amendment protections) are particularly endemic to the War On Some Classes of People Who Use Some Drugs, made necessary by the facts that the criminal transaction is consensual and outside of normal public bookkeeping and the only evidence can usually be disposed of quickly. So perhaps we should ask: what compelling public interest is being served by the WOSCoPWUSD that makes it worth turning it into a solvent into which the Bill of Rights is slowly dissolved? A violent criminal being released because evidence is suppressed is a serious public cost (but how often does this actually happen?), but person X rather than person Y selling the drugs that will inevitably be sold as long as there’s a demand, rather less so. In the cases most likely to be affected by effectively removing any legal barrier to the no-knock rule, the risk of excluded evidence isn’t all that appalling, and to my mind doesn’t remotely outweigh the negative externalities. In addition, some evidence that the militarization of some police forces is an effective means of stopping crime would also be nice, but (correct me if I’m wrong) I can’t find it in Scalia’s opinion. Scalia’s argument not only fails on originalist grounds, but fails on its own pragmatic terms as well.
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