Joel Jacobsen

In the Davis v. Washington decision of a couple years ago (see post 127), Justice Scalia's opinion for the Supreme Court contained a footnote explaining that suppression of evidence under the sixth amendment has no deterrent effect on police officers:

Police investigations themselves are, of course, in no way impugned by our characterization of their fruits as testimonial. ...  The Confrontation Clause in no way governs police conduct ...

That's a bit odd, because for the past 47 years the Supreme Court has been telling us that suppressing evidence under the fourth amendment has the effect of "deterring official misconduct and removing inducements to unreasonable invasions of privacy". 

So suppressing evidence under the fourth amendment affects police behavior in a way that suppressing evidence under the sixth amendment's confrontation clause doesn't.  Identical judicial actions produce opposite results. 

This is what I worry about: What if Scalia really believes it?

Have you ever seen late de Koonings?  Well, I haven't, since I live so far from New York.  But in reproductions, all the sometimes-hateful intensity of the earlier works is gone.  In the late paintings, the lines are loose, the colors simple - and many people have wondered whether the new style was the result of de Kooning's Alzheimer's (or alcohol-induced dementia) rather than artistic inspiration.

Comparing opinions like Davis to almost any of Antonin Scalia's opinions from the 1980s produces a disturbingly similar memento mori sensation.  The tight logic has come unwound, the careful use of language replaced by meaningless catchphrase: "testimonial statements are what they are".  That last phrase is lame coming from the mouths of losing football players, and they have the excuse of playing through repeated concussions. 

But then again, maybe there's a deeper meaning to Scalia's words.   Maybe he meant to imply that suppressing evidence under the fourth amendment doesn't affect police conduct, either.  But, no, I'm sorry - he's been a fairly enthusiastic fourth amendment suppressor recently.

The whole idea that suppressing evidence under the fourth amendment has any deterrent effect on cops has always struck me as more a matter of hope than experience.  After all, if after 47 years the rats still aren't pressing the right lever, wouldn't even the most die-hard behaviorist consider the possibility that the experiment is a failure?  (See post 6.) 

What percentage of officers ever learn of the existence of judicial orders denouncing their actions?   Of those that do, how many see any point in ploughing through page after page of lifeless prose to discover what the judge said about them?  And of those who do that, how many can recognize themselves in the judges' words? - that is, how many trust the judge's reconstruction more than their own memories, retroactively shaped as those have been by the need to defend one's actions? 

Furthermore, why wouldn't an officer say exactly what lawyers say all the time, that the judge is full of it? biased? clueless? chummy with / intimidated by the other side? so scared of getting reversed that he bases his rulings on his perception of the bias of the next court up the ladder? 

Besides, is it altogether rational for a person in any profession to follow the advice of someone with no training or experience in that particular profession?  

You wouldn't trust your car to a mechanic whose only training was reading books written by people who had never themselves worked on cars.  You wouldn't trust your health to a physician whose only knowledge of medicine came from reading the works of his predecessors, whose sole experience came from studying the written works of their predecessors.   I mean, that's so 14th century.   

But, nonetheless, the Supreme Court has told us that police officers will trust their lives to judges, changing their future behavior in response to the signals given by judges a year or two after the officer's previous behavior, and so it's true that they do so - or, rather, it's not open for debate, which inside the pyramidal hierarchy of our courts is even better than true.

Scalia's Davis opinion is magical thinking - the belief that words can control reality - and, I suspect, a symptom of a cerebral event, probably a small stroke, that's been kept from us.  But magical thinking is hardly unique to Justice Scalia.  In 1961, the Supreme Court announced the result of its experiment before beginning it, telling us what they were about to accomplish before attempting it.  Abracadabra, my Brethren.