Comments on: Decisions: No bar on evidence in police entry case

By: Commentator

Commentator — Fri, 16 Jun 2006 18:36:55 +0000

It would help me if you could tell me what “sense” you think the justices should be limiting their discussing of causation?

When did I say the discussion of causation should be limited? My point was only that tort law causation was rrelevant. There is a difference between a limit and irrelevance. Forking the word “sense” won’t help.

By: Adamos

Adamos — Fri, 16 Jun 2006 01:44:07 +0000

Commentator, you wrote:

My point, which should be reasonably clear if one reads the decision, is that both the majority and dissent are discussing causation in a broader sense without directly stating so.

I have just read the opinions, and I must confess that your point is not clear to me (although this may be due to a deficiency with my brain rather than your point.) It would help me if you could tell me what “sense” you think the justices should be limiting their discussing of causation? I’m not sure it is the criminal sense, since the discussion is about the unconsitutional search rather than Hudson’s drug and firearm possesion, and this is not a crime.

By: Kent Scheidegger

Kent Scheidegger — Thu, 15 Jun 2006 23:20:55 +0000

r. friedman: “When I say ‘activist’, I mean the extent to which judges are constrained by the facts of a case and precedent.”

If I read you correctly, you are using the term “activist” to refer to any decision where you disagree with the court’s reading of precedent. Perhaps you should change your nom de blog to Humpty Dumpty.

By: Commentator

Commentator — Thu, 15 Jun 2006 21:22:59 +0000

R. Friedman: This goes to the core of the exclusionary rule, just as Dickerson went to the core of the Miranda rule, as Lyle’s subsequent post shows.

I guess you think U.S. v. Patane was a radical, activist decision too, then? And, if not, why not?

By: r.friedman

r.friedman — Thu, 15 Jun 2006 20:26:07 +0000

When I say “radical”, I mean going to the root as opposed to the margins. When I say “activist”, I mean the extent to which judges are constrained by the facts of a case and precedent. I think the dissent shows well how this is not refusal to “extend” the exclusionary rule, but instead a statement that even if the search was found to be unreasonable (as required by prior precedent, the unconvincing figleaf notwithstanding — the figleaf being Alito’s favorite outfit in his activist 3rd circuit opinions), exclusion came at too high a cost. This goes to the core of the exclusionary rule, just as Dickerson went to the core of the Miranda rule, as Lyle’s subsequent post shows.

By: Commentator

Commentator — Thu, 15 Jun 2006 19:19:56 +0000

And, just to head off the pass, I realize the discussion centered on “but-for” causation. My point, which should be reasonably clear if one reads the decision, is that both the majority and dissent are discussing causation in a broader sense without directly stating so.

By: Commentator

Commentator — Thu, 15 Jun 2006 19:12:26 +0000

Judicial activism is when courts overrule the democratic process by engrafting their personal opinions onto the Constitution, creating a restriction on democratic policy choices that is not really there.

What is interesting is that Justice Breyer makes the charge that judicial activism is exactly what happened here. Then again, he also bizarrely cites to texts on causation in torts law to explain how causation works in criminal law. Nevermind that the burden of proof is higher in the criminal context (so proving causation in the criminal context is harder) and the defendant is a real person who has finite foreknowledge, as opposed to the legal fiction of a reasonable person into which infinite counterfactual foreknowledge can be crammed.

By: Kent Scheidegger

Kent Scheidegger — Thu, 15 Jun 2006 18:38:02 +0000

I do not agree with r. friedman that the replacement of Rehnquist with Roberts made a difference here. Although the late Chief did write Dickerson, that was a case where the Court was asked to overrule a landmark precedent. In cases like the present one, where the question was whether to expand the exclusionary rule, he voted consistently not to. I think most SCOTUS-watchers would agree that Rehnquist would almost certainly have joined today’s majority.

R.’s thesis is also very doubtful regarding Justice O’Connor. Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357 (1998) is very similar to today’s case. The Court had to decide whether to expand the Fourth Amendment exclusionary rule to a context it had not previously addressed: parole revocation hearings. It was a 5-4 decision with Rehnquist and O’Connor in the majority, and the other seven lined up exactly as they did today.

To call today’s decision “activist” would require a definition of that word far different from what I understand it to mean. Judicial activism is when courts overrule the democratic process by engrafting their personal opinions onto the Constitution, creating a restriction on democratic policy choices that is not really there. By no stretch of the imagination does today’s decision fit that definition. If the people of Michigan, or any other state, want to enact a statute excluding evidence as a remedy for knock-notice violations, nothing in today’s decision stands in the way.

By: Commentator

Commentator — Thu, 15 Jun 2006 18:25:14 +0000

I'm sorry to be dense, R. Friedman, but could you please explain what is so radical about this? Also, I thought Dickerson was a 5th Amendment case; and if you're casting the exclusionary rule as spreading evenly over the 4th and 5th Amendments, how do you account for the decision in U.S. v. Patane? It seems the majority position is perfectly justifiable.

By: Roger

Roger — Thu, 15 Jun 2006 18:12:13 +0000

I’m not convinced the lineup in Empire Health is so strange. The fairly common formalist/realist lineup before this year was Stevens / Scalia / Thomas / Ginsburg versus Rehnquist / O’Connor / Kennedy / Breyer / Souter. This lineup is the same, just with Alito on the realist side and Roberts on the formalist side. Given that we haven’t seen much, as I recall, to indicate how Roberts and Alito would come down on that sort of case, this would seem to be a clue that perhaps the change in personnel has helped the formalist side. (Which means, among other things, any post-Booker sentencing guideline cases coming up should be interesting.)

On another note, it’s interesting (but not particularly surprising) to see much of Roberts’ apparent skill for creating unanimity decline in the last days of the term.

By: supremecourt

supremecourt — Thu, 15 Jun 2006 17:24:11 +0000

Hudson is truly an awful opinion. The majority forgets that the life of thelaw is not logic but experience. We can expect more doors battered in at night and more wild shoot outs with the police. Maybe the gun nuts have been right all along. Protect your castle. Shame on the Court. Deep disappointment with Kennedy.

Michael R. Levine
Portland, Oregon

By: r.friedman

r.friedman — Thu, 15 Jun 2006 17:19:02 +0000

Hudson is the first case where having Alito and Roberts instead of O’Connor and Rehnquist has made a clear difference. Both of the departed justices voted with the majority in Dickerson, both the new justices joined the dissenters. Because the majority decision is based on their distaste with exclusion as a remedy, a position clearly rejected in Dickerson, as the dissent notes, the new justices can be seen in their true light as radical activists.

By: Paul Wolfson

Paul Wolfson — Thu, 15 Jun 2006 17:16:30 +0000

The Empire Health case is actually 5-4, and quite a remarkable 5-4 split it is: the majority opinion, written by Justice Ginsburg, was joined by Chief Justice Roberts, Justice Stevens, Justice Scalia, and Justice Thomas. The dissent, by Justice Breyer, was joined by Justice Kennedy, Justice Souter, and Justice Alito. I’ll be amazed if we ever see this 5-4 lineup again.