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08/25/2016

Barry Friedman on Justice Scalia and the Police
Michael Ramsey

At The Atlantic, Barry Friedman (NYU):  How Did Justice Scalia Shape American Policing? Donald Trump wants a Supreme Court appointee like the formidable late judge. But Scalia had a controversial and sometimes conflicted opinion on law enforcement. 

From the discussion:

[W]hen it came to the parts of the Constitution that governed policing ... Scalia often was the critical swing vote. And not infrequently he was the one writing the majority opinion.

One place Scalia’s passing might very well spell change is with regard to the Miranda ruling. ... Conservatives hate the Miranda rule, and Scalia was no exception. ...

When it comes to searches and seizures, though—the lifeblood of policing, governed by the Fourth Amendment to the Constitution—the picture of Scalia is far more complicated.

In recent years, Scalia emerged as the Fourth Amendment’s greatest champion, often ruling against the police. He was particularly steadfast in guarding the sanctity of the home, or limiting police use of new technologies. He wrote the main opinion in United States v. Jones, holding that the Fourth Amendment governed long-term GPS surveillance of a suspected drug dealer’s car. And he wrote a critical opinion saying that the police have to get a warrant before they use new technologies to gather information from inside homes—in that case the police had used a thermal heat sensor to figure out the defendant was growing pot with heat lamps. ...

[But] even though Scalia could be extremely protective of Fourth Amendment rights, the real curiosity is that he didn’t seem to think you should have any remedy if your rights were violated. He loathed the exclusionary rule—which requires tossing out evidence collected in violation of the Constitution—and played a big part in dismantling it. ...

Some commentary on Justice Scalia has accused him of following his policy preferences despite his purported attachment to originalism.  As this essay illustrates, criminal procedure is one area that is hard to square with that thesis.  If one is looking for pro-police or anti-police tendencies, Scalia seems all over the place.  But thinking in terms of originalism, his record is neither "conflicted" nor "a curiosity."  To take two of Professor Friedman's examples, Miranda and the exclusionary rule are judicial inventions; that, and not partiality to the police, accounts for Scalia's hostility to them.  But the Fourth Amendment, given its original meaning, plausibly imposes material limits on modern police practices, and so Scalia was much more sympathetic to such claims.

Ironically, Professor Friedman concludes:

Merrick Garland, President Barack Obama’s pick for the Court ... is a former prosecutor whose rulings typically are pro-police. In a Garland-for-Scalia swap, the police actually might have more license, rather than less.

(Via How Appealing).