Update – Hudson v. Michigan – Scalia Is An Activist

I would have added this to the previous post, but it deserved one of its own. From the Agitator:

I just spoke with Prof. Sam Walker, one of the most respected criminologists in the country, and an expert on police tactics and procedures. Justice Scalia cites Walker in his opinion in Hudson, quoting him directly on page 12:

There have been "wide-ranging reforms in the education, training, and supervision of police officers." S. Walker, Taiming the System: The Control of Discretion in Criminal Justice 1950-1990, p. 51 (1993).

Scalia preceded the Walker cite with this thesis sentence:

Another development over the past half-century that deters civil rights violations is the increasing proffessionalism police forces, including a new emphasis on internal discipline.

Walker tells me he learned that Scalia had cited his work, "to my horror."

Walker adds, "Scalia turned my research completely on its head. My point was that these reforms came about because the courts, specifically the Warren Court, forced the police to institute better procedures with judicial oversight. Scalia now wants to take that oversight away."

Walker says poltical leadership, internal procedures, media oversight and public pressure are all necessary to ensure civil liberties, but that judicial oversight is extremely important too, and that Scalia misused his scholarship to imply that Walker supports a diminishing role for the courts.

Walker also says his research focused on conventional policing, not drug policing. The latter, he says, "is a special kind of policing," and says he would agree that the direction of drug policing of late (which of course was what the Hudson case is all about) does raise significant civil liberties concerns. One might also note that Walker's research for that particular book ended in 1990, sixteen years ago.

So Scalia not only used social science research to interpret the constitution, he misused that research. Next thing you know he will be citing foreign law.

As usual, Ed Brayton says it best:

The irony of this is that Scalia, by his own declaration a textualist and an originalist, would be the first one to criticize reliance on social science research to justify a court ruling. Yet not only does he use such research to justify his ruling here, he does so sloppily and inaccurately. If he did not agree with the outcome of the decision, if it was written by someone other than him using the same reasoning for a goal he didn't agree with, Scalia would be the first one out front blistering this decision as exactly the kind of unprincipled, undisciplined judicial reasoning that one would expect from those horrible liberals who ignore sound judicial interpretation in favor of injecting their own social science driven biases into the law.

BTW, if you want more examples of professional police behavior, the Agitator has them here.

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Explore posts in the same categories: Fourth Amendment, Scotus

One Comment on “Update – Hudson v. Michigan – Scalia Is An Activist”

  1. Dan Says:

    My guilty little secret? I used to like Scalia before I started being just a little interested in Constitutional law. Then I read a few things and was quite shocked. This guy is a hack, plain and simple.


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