Evolving The 4th Amendment

The Supreme Court just issued a 5-4 decision (along the normal lines) in Hudson v. Michigan. The opinion looks to dramatically restrict the potency of the exclusionary rule, which has served as a check against police excesses since the 1960s. What the exclusionary rule says is that any evidence obtained via illegal police action is inadmissable in court. This case refused to apply the exclusionary rule in a case where the police did not (as legally required), knock to announce themselves before carrying out a search.

I haven't read the opinions, so I'm in no position to comment. But there is a fair amount of blogger chatter about the structural aspects of the case. Orin Kerr, for example, notes how Justice Scalia, normally so quick to extoll the virtues of originalism, rested his argument here on how new social circumstances have changed the meaning of the 4th amendment from prior understandings. Specifically, he noted the rise of both attorneys willing to file complaints against illegal police action, and the increased "professionalism" of the police force which now can be expected to discipline internal infractions, as reasons why civil remedies are sufficient deterrence for police misconduct.

(Quick digression: Is it just me, or is that justification essentially eliminating the rule because it has been effective? I'd say that the zero-tolerance approach embodied by the exclusionary rule has a lot to do with the change in environment which makes both outsiders and insiders more vigilent in policing the police. There is no reason to think that their behavior will not lapse if this tool is taken out of the tool box)

Anyway, whatever merits this argument might have from a public policy perspective, it is quite far from originalism. As Justin Gardner points out, this case was effectively dismissive of the past regime of police abuses--a sterling example of what the boys and girls at Southern Appeal would applaud as "Stare Decisis is fo' suckas" opinion-making. I concur with Kevin Drum: it is cases like this which make me decline to take originalism seriously as a judicial doctrine. And this isn't an outlier for Scalia: his opinions have come under serious originalist fire in both Affirmative Action and Free Exercise cases.

In any event, the point is that Scalia really has to come up with some compelling explanation why recent evolutions alternatively start and stop mattering from case to case.