Search ruling was 'judicial activism'
By Robert L. Kelly
Your article on the recent "knock-and-announce" Supreme Court decision (June 16) gets it right, but your headline, "Court says it's legal for police to barge in," is dead wrong. A better headline would be "Justice Scalia's judicial activism."
Precedents in all states had required that, prior to executing a search warrant, police had to knock, announce themselves as police, and wait a reasonable time for a response before forcibly entering.
If they did not "knock-and-announce," whatever evidence of criminal activity they might find could not be admitted in a trial. This principle was based on the Fourth Amendment to the Constitution, forbidding unlawful search and seizures.
In the case in question, the court ruled it is indeed illegal for the police to enter without these preliminaries, but doing so does not invalidate evidence the police might discover. Some legal remedy against the unlawful entry could be used other than throwing the evidence out of court.
Surprisingly, Justice Scalia, in writing the majority opinion, based his decision not on the principle he famously avows, "strict construction" of the Constitution and precedents based on it, but rather on balancing societal costs of "knock-and-announce" restraints on police against their societal benefits.
Such an approach to legal decisions goes back to a tradition that emerged from 19th century American Pragmatic philosophy. Most notably espoused by Justice Oliver Wendell Holmes, it was called "social jurisprudence," "legal empiricism" or "legal realism."
Recently, this principle has been demonized by the American right wing as "judicial activism."
Right-wing pundits, including Rush Limbaugh, are quick to condemn as "activist" any judge who rules in a way they don't like — in cases such as prayer in schools, posting the Ten Commandments in public places or gay marriage. Judges so labeled are harassed and threatened with recall.
I'm waiting for the right to denounce Scalia's decision. Or is activism OK when its aim is to expand policing powers regardless of the Bill of Rights?
The writer lives in Greensboro.
Comments (10)
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"I'm waiting for the right to denounce Scalia's decision. Or is activism OK when its aim is to expand policing powers regardless of the Bill of Rights?"
You'll be waiting a long time. Activism is OK when it reinforces something wanted by the Neo's or their kissing cousins, the Republican party.
Activism is negative when it reinforces something wanted by the nasty liberal Democrates, or any group or persons not in lock-sync with the Neo's or their kissing cousins, the Republican party.
Posted on July 1, 2006 5:41 AM
Bingo, James.
Posted on July 1, 2006 6:27 AM
The police have had the power to enter without knocking to exceute a search warrant for years. It's called a "no-knock" warrant, and is issued under some circumstances in both State and Federal jurisdictions.
You entirely missed the point of the Court decision, and have extrapolated wild consequences that just aren't going to happen.
What you dumba$$'s DON'T know about the law would fill volumes.
Posted on July 1, 2006 7:44 AM
Liberal activists judges, and their kissing cousins the democratic party, get a pass from liberals and their kissing cousins the democrats, on tossing out the confession of a child rapist/murderer like Couey down in Fl. because "he had indicated he wanted to speak with a lawyer (tax payer funded no doubt) prior to his confession", but they have a big problem with police entering the home of a known drug dealer, search warrant in hand mind you, and confiscating evidence.
Their REAL problem is watching on the sidelines while their grip on the courts via liberal activist judges, and of course their kissing cousins in democratic party, is slipping away from them.
Posted on July 1, 2006 8:44 AM
This LTE is Great! Activist Judges are
those whose decisions right wingers don't
agree with--pure and simple.
Posted on July 1, 2006 10:43 AM
I don't even begin to understand the term 'activist' judges but will point out that the Supreme Court passed this legislation. It wasn't just Scalia's opinion but the majority's.
Posted on July 1, 2006 12:08 PM
YD,
"Activist Judges" is the straw man built by conservative Republicans (right wingers)to describe ANY ruling that is not one they want. That may sound simplistic, but it is the crux. For example, you will hear conservatives say activists judges (read: Supreme Court) took God out of public schools. They then say, well, we can legislate this (knowing that it is Unconstitutional) to set up debate that would say, "Democrats are against God! Democrats are bad people! Democrats want to take God our of our schools!" You can get the picture?
Bottom line: It is a tactic used to divide and conquer, as JDR says above. The "righties" have gotten very good at dividing people along emotional lines.
Does that help?
Posted on July 1, 2006 12:39 PM
Here's a nut case Carter appointed judge who fills the bill as a "liberal activist". Check out some of his antics:
http://www.theweeklystandard.com/Content/Public/Articles/000/000/001/414ilyss.asp
Posted on July 1, 2006 1:56 PM
Here's a great Right wing judge who seemed to be activist in more ways than one!! Maybe he should borrow some pills from comedian,Rush Limbaugh!
http://www.courttv.com/trials/thompson/062806_ap.html
Posted on July 1, 2006 3:48 PM
James D. Rockefellar,
You are THE man. You put the neocons (Facists) in the proper place above. Their hijacking of this country was evidenced by the response to 9/11----instead of attacking Afghanistan and doing it the right way, they used their influence to move into Iraq for a middle eastern beach head. Now generations of Americans will never know peace. And I loved the "Kissin' cousins of the Republicans" comment. Keep up your great work of bringing those in darkness, into the light.
Posted on July 1, 2006 5:05 PM