JUDGING CRIMES

It's infuriating that the Supreme Court considers itself too grand to explain its plans for us.  We just have to wait until they issue the press releases (called "opinions") justifying those plans after they're already put into action.   But from the PR point of view, there's little room to doubt that the justices are better-advised to preserve a silence that the shallow can mistake for profound or principled. 

Consider this object lesson in what happens when a justice tries to explain himself - and does so with unintended thoroughness.  It's from a Washington Post chat with Robert Draper, compiler of Dead Certain, the Bush Administration's weirdly-narcissistic collective self-portrait:

Alexandria, Va.: Given that John Roberts specifically has repudiated your claim that he recommended Harriet Miers for a Supreme Court nomination, why should we rely on the accuracy of anything else in your book?

Robert Draper: I don't blame Chief Justice Roberts for attempting to disassociate himself from an ill-advised recommendation. But two well-placed administration officials told me about Roberts' advice, and I'm confident in their veracity. By the way, his spokesperson's statement was parse-worthy: "Chief Justice Roberts did not recommend Harriet Miers to President Bush." I believe that's correct; according to my sources, Roberts didn't issue his recommendation directly to the president.

I try to think good thoughts about the new Chief Justice, and I'm sure Bush could have done much worse.  Roberts' dabbling in politics from the Court is a throwback to an earlier age, but seems mild enough as such Fortasizing goes.  The prospect of members of the Court selecting their own colleagues is a little more alarming - the last thing we need is an even more insular Court. 

But it's his indulgence in a not-false non-denial that serves as the clearest warning to the rest of us to keep on our toes.  The plan is for this Jack Armstrong to be Chief for a very long time.  But now we know his public words must be examined closely for what they don't say.

I've long thought that lawyers make lousy managers because we're trained to anticipate the worst, even rewarded for it: "A Johns Hopkins study in 1990 showed that in all graduate-school programs in all professional fields except one, optimists outperform pessimists.  The one exception: law school."  The more pessimistic your outlook, the better your law school performance. 

That pessimism, combined with a detailed knowledge of the worst that can happen in the litigation meat grinder, prompts law firms to transfer an incompetent secretary from department to department, unwilling to wield the ax unless there's a paper trail guaranteed to stand up in court: a bulletproof personnel file.  Maybe that's why we have no mechanism for reining in out-of-control judges.  Like the bad secretary, we let the bad judges go on, adding to the file until we're ready to lower the boom.

At least, that's one explanation for the length of Cheryl Aleman's judicial career.  According to Florida's Judicial Qualifications Commission - the most transparent (see post 236) judicial standards commission in the country -  she ordered an attorney to appear in her courtroom the following day, knowing full well that he was out of town.  When he "failed" to show up at the appointed time, Judge Aleman found him in criminal contempt of court and sentenced him to 60 days in jail.  He in fact served four days, getting sprung last Valentine's Day.

Hey, what good is absolute judicial immunity from lawsuits if you don't use it?

Then there was Judge Aleman's sadistic little way of playing with lawyers she didn't like, most of them, it would seem, public defenders.  For example, when a public defender asked for time to prepare a written motion to disqualify Judge Aleman, the judge allowed 15 minutes, and when the lawyer wasn't back in court in time, issued an order to show cause - prelude to a contempt citation.  When the public defender asked that the lunch recess by delayed for 15 minutes to permit her to attend a hearing in another courtroom, the judge refused; "yet, you readily granted a request from the assistant state attorney for a 15-minute delay in the start of the afternoon proceedings".

The judge made national news in 2003, when she refused to furlough an inmate on the point of death.  In response to negative publicity, she filed an order explaining that the defense attorney had failed to present any expert medical testimony - neglecting to mention that the defense and prosecution had stipulated that the man was on death's door.  You have to admit, the order was not-false.  (See post 65.)

That was nearly four years ago.  How abusive does a judge have to be, before she gets the first tap on the shoulder?  (Three disciplinable events seems to be the minimum, presumably based on the ancient Rule of Three.)  As Bill Gelin wrote on the collective blog known (I'm sure there's an explanation somewhere) as JAABlog,

The anger and resentment in Broward is leading to complaints in Tallahassee because there is no remedy or redress at the local level.  Our judges are not held accountable by judicial administration, the same judicial administration that sets the tone and the example as to how judges should behave.  While we have mostly good judges, the fact that the outlyers are given carte blanche and never called to task, no matter how weird, destructive, or dysfunctional their behavior, results in the complete undermining of the reputation of Broward's judiciary (IMHO, of course).

The lesson Judge Aleman learned from her abuse of the public defenders is that she could do what she wanted.  So she spent the next three and a half years doing it.  Should we be surprised?  Meanwhile her superiors refrained from taking the first step until they were sure they were ready to take the final one.  

(Hat-tip to Me-Mo.  Thanks!)

A prosecutor friend told me this story.  A young woman was murdered, and a man was convicted of killing her.  Many years later, the federal courts reversed his murder conviction (that is, granted a writ of habeas corpus).  The prosecution elected to re-prosecute, always a difficult task after the passage of so many years.

The defense lawyer persuaded the judge to suppress some important evidence - statements made in a private conversation by a co-perpetrator who exercised his fifth amendment right not to testify at the retrial.   I'll call the co-perpetrator Abel Baker. The judge granted the defense attorney's request to prohibit the prosecution from telling the jury anything Baker said.

At the end of the long trial, the defense attorney made his closing argument to the jury, and in the course of it said something like: "Ladies and gentlemen, I want you to think for a moment about some evidence that you didn't hear.  Did you hear the testimony of Abel Baker?  Did anyone - any single one of these government witnesses - come into court and tell you anything that Abel Baker said?  Doesn't it make you wonder what they are trying to hide?"

I suppose my friend objected, but he would have provoked a mistrial if he had made a "speaking objection" - saying in front of the jury: "Counsel knows full well that he is responsible for keeping that testimony away from the jury!"  Instead, he would have had to approach the bench for a whispered conference that could only have played into the defense attorney's hands:  "Did you see him repressing me? You saw him, didn't you?"

After the jury retired, my friend made some bitter remark.  Defense counsel smiled and said, "Just representing my client!"

I was reminded of that story by a recent attack ad launched by my sitting member of Congress, Heather Wilson, against her opponent, Patricia Madrid, who happens to be my boss.  Here's an Albuquerque Journal story about the ad:

Republican Rep. Heather Wilson is airing a new TV attack ad claiming that Democratic Attorney General Patricia Madrid let a man caught attempting to rape a teen girl "walk" on the charges.
 

Although the defendant didn't serve prison time after a making a plea deal, the "victim" in the case was actually an adult detective posing as a teen on the Internet. No physical assault ever took place.

Court records show that the plea deal the AG's office reached with 41-year-old Matthew Ward cut his potential prison time from three years to 18 months, but left it up to a judge whether to lock Ward up or give him probation.

Records show that District Judge Albert S. "Pat" Murdoch last month gave Ward 18 months of probation and required him to register as a sex offender.

You can see that the Wilson ad is, just barely, not-false.   Just as the defense lawyer's closing argument was not-false.

One of the worst developments of the past half-century is lawyerization: the way values and modes of thinking that are appropriate for law courts have come to define acceptable behavior outside the courtroom.  This can be seen in the Interior Department's ethics office saying that any conduct that's not outright criminal is ethical enough for government work.  (See post 173.) 

It can be seen again when a cricket blog asks, "Whatever happened to the presumption of innocence?", as if a fan who formed an opinion about a cheating scandal were transformed into a judge with the black handkerchief on his wig, about to tell some poor sod, "May the Lord have mercy on your soul." 

And it's seen again in the Wilson attack ad.  The decision to invest so much money in the running of such a deeply dishonest ad was made without regard to honor, honesty, or even the avoidance of shame.  The only question was whether its falsity could be so easily demonstrated that it was liable to backfire politically.   If not, there was nothing wrong with it.  Just like the defense lawyer's zealous representation of his client.

One of the most-cited constitutional decisions of all time is Johnson v. Zerbst.  Westlaw counts 14,048  documents citing to it, and that doesn't includes the tens of thousands of unpublished little opinions that never made it into anyone's database.  Its claim to fame is that it established the constitutional principle that "that there is a strong presumption against waiver" of constitutional rights, to use Justice Blackmun's words.  

Oddly enough, Johnson v. Zerbst didn't actually say anything about the strength of the presumption.   Justice Black's opinion for the Court contained this famous passage:

It has been pointed out that "courts indulge every reasonable presumption against waiver" of fundamental constitutional rights and that we "do not presume acquiescence in the loss of fundamental rights."

This actually states two inconsistent rules, although I don't think Justice Black realized he was contradicting himself.  The second (waiver is not be presumed) is a declaration of judicial neutrality, but the first (judges presume that the defendant didn't waive his constitutional rights) is a declaration of bias.   In practice the first rule instantly swallowed the second, because a judge who keeps an open mind obeys the second rule but violates the first.  

A legal "presumption" is solemn make-believe.  A judge indulging a presumption (and "indulge" is the favored verb) pretends she has heard evidence when she hasn't.  A legal presumption is a thumb on the scales of justice, a way to achieve a desired result in the absence of an evidentiary basis for doing so.  The most famous presumption is that of innocence. 

In modern America, virtually everything a police officer, prosecutor or state criminal judge does implicates one or another of the defendant's constitutional rights.   Most of these rights weren't recognized as constitutional in 1938, when Black was writing.  Today it's nearly impossible for a police officer to obtain evidence from a suspect without a waiver of rights denominated "constitutional."   So not only did one of Black's rules immediately swallow the other, but the survivor quickly burst from its cage.  It has thrived out of doors, like a feral pig grown to State Fair-ribbon size.

Presuming that a confessing suspect didn't waive his fifth amendment right against self-incrimination, or that the drug courier who opened the trunk of the rental car didn't waive her fourth amendment right against unreasonable searches and seizures, is the same as presuming that the cops did something wrong.  They shouldn't have gathered that evidence.

The lesson is that a modern criminal judge is constitutionally required to approach every criminal case with two biases: that the defendant is innocent of the crime, and that the police are guilty of violating the defendant's rights. 

But why should the courts approach questions of waiver with a biased outlook?  The glib answer is: to protect the rights guaranteed by the Constitution.  But that answer assumes that judges would prove inadequate to the task of protecting those rights if they approached the task with open minds  -- and if so, they really shouldn't be judges at all.

Black himself didn't give any reason for his declaration of bias.  The Court's political situation in 1938 offers one possible reason for his reticence.  In reaction to the excesses of the reactionary Four Horsemen who had so enthusiastically wielded their veto pens against New Deal legislation, making up constitutional doctrines as necessary to justify their political prejudices, Roosevelt-appointed justices such as Black felt some compulsion to pretend they took an entirely different approach to their duties.  

If Black had included a defense of the dual doctrines that leapt, Athena-like, from his brow, he would have been tipping off the Court's critics that he was just making the stuff up, condemning actions of the democratically-elected branches of government just because he didn't like them.  And so, in support of his two contradictory propositions, he cited three cases, so he could give the impression that he was actually just offering a pithy summation of long-established authority. 

None of the three cases, tellingly, was even a criminal case.  Black didn't cite them for their holdings, which had no bearing on the actual issues before the Court.  He cited them for stray words and phrases found embedded in their text - for things they said but didn't mean in the way Black pretended to understand them.

One, Aetna Insurance Co. v. Kennedy, involved the interpretation of a fire insurance policy.  The Third Circuit had held that by asking the trial court to grant it a directed verdict (a routine step in all modern trials), the parties waived their right to trial by jury.  To a modern lawyer, that holding was simply ludicrous, and the Supreme Court flipped it.

The second case cited by Justice Black, Hodges v. Easton, was a 19th-century dispute about the ownership of a silo full of wheat.  The judge submitted special interrogatories (that is, specific questions in writing) to the jury, but the jury's answers to the questions didn't fully settle the question of ownership.  The judge then filled in the gaps on his own.  That, the Supreme Court held, the judge couldn't do.  If a jury was going to decide the case, it had to decide the whole thing.

The third case, Ohio Bell Telephone Co. v. Public Utilities Commission, was a rate case in which the state commission, without notice to the phone company, chose "to wander afield and fix the composite value of the system without reference to any evidence, upon proofs drawn from the clouds."  That sort of thing, Justice Cardozo wrote, really wasn't quite right.

None of the three cited cases had anything remotely to do with the situation presented by Johnson v. Zerbst, two Marines caught passing funny money off base who were arraigned, tried and sentenced in one whirlwind day, without the assistance of their lawyer who had taken their $100 and then fired them as clients because they wouldn't take his advice to plead guilty.   (More facts of the case can be found at 13 F.Supp. 253 and 92 F.2d 748.)  But all of them contained asides that had something to do with the waiver of the right to jury trial or (in the Ohio rate case) to a fair hearing, phrases Black stretched to cover the right to counsel. 

Justice Black was himself wandering far afield, drawing his precedential authority from the clouds, when he press-ganged the three civil cases into service as authority for the proper construction of the sixth amendment right to counsel.  Nearly 70 years later, we live with the consequences.

Voir dire (the pronunciation is strictly a matter of geography - people in one place say it differently than those living a hundred miles away) means "speak the truth."  It's the tedious process of questioning prospective jurors in order to select a biased jury.

Of course, the party line is that the ritual is gone through for the purpose "of enabling the court to select an impartial jury", but no one with an interest in the outcome of a lawsuit truly wants an impartial jury, least of all a guilty murderer.  Voir dire is, in practice, one of the many barriers American judges raise against the conviction of the rich: defendants with money hire consultants whose job is to to predict how prospective jurors are likely to vote.  The ultimate goal is to assemble a biased jury - biased, that is, in one's favor.

In Placer County, near Sacramento, Judge Joseph O'Flaherty confronted what he considered a problem.  He had a black defendant in a county whose population was less than 1% black, resulting in a nearly all-white jury pool.  He also knew, from experience, that white jurors who admitted to racism in open court were subjected to hostility, which led him to believe closet Aryan Nation members were unlikely to out themselves on voir dire.  All well and good.

So how to identify the racists?  The judge hit upon a novel approach.  Here's a transcript of the judge instructing the panel members:

I don't want any racism in my court, which most of you know by now, but  I go a little further than that.

I recognize that most people in today's age don't want to raise their hand and say I am a bigot or I'm a racist.  So what I'm going to do, if any of you have the slightest doubt that you might not, for racial reasons, be able to give this defendant a fair trial, I'm going to give you permission to lie.

Those italics were added by the California Commission on Judicial Performance, which as you may gather didn't like the judge's approach, publicly admonishing him.   (There was also a second, nearly identical incident.)  The public admonishment was enough to cause the Sacramento Bee to recommend the ouster of "Placer's renegade judge" in tomorrow's election.

I admit to being of two minds.  The judge's heart seems to have been in the right place.  But the Bee's high dudgeon has a certain appeal: "In a courtroom that requires the truth under oath, no matter how uncomfortable the truth may be, there is no room for lying."

O'Flaherty's point, I gather, was precisely that people who are racist are likely to lie about it, and that seems plausible.  The idea that you can get honest information out of people by singling them out of a large group and asking them straight questions ("Anyone here a dirt bag?  Can I see a show of hands?")  might very well be unrealistic.  Then again, the judge's idea that such people will consult their consciences and then tell a little white (or white-only) lie to avoid giving their racism concrete expression is also perhaps a tad fairy taleish.

More generally, there's plenty of room for lying in courtrooms.  As a rule of thumb, I'd say the percentage of criminal trials that involve deliberate untruths is, oh, somewhere in the range of, let's say ... 100%.  Mind you, that's just a rough guess. 

Cops lie sometimes, for reasons that will be the subject of a later post.  Some victims lie out of malice, others will describe their experience in ways that exhibit the strange knobby growths of obsession.  Guilty defendants who testify almost always lie.  Their buddies who testify that they were shooting pool together at the time of the murder, and they're sure of the times because they kept checking the clock over the bar that night - guess what?   Convicted defendants who stand before the judge to explain how sorry they are and how they've found God - well,  it's probably true sometimes.

But then, how about the lawyer - prosecutor or defense attorney, it doesn't matter - who predicts in opening statement what the evidence will show, and then it doesn't?  Or in closing argument ties all the strands together to tell a story that no one in the courtroom buys for a second?  Are they lying?  Or just not telling the truth?  (We lawyers would say neither, but to understand our reasons you'd have to listen to us some more.  See post 65.)

The chief project in the criminal law since 1961 has been to reduce the flow of information to the jury.  Lies of omission are so common in American jury trials that most lawyers and judges don't find anything remotely unusual about going to elaborate lengths to give jurors a false impression.  (See post 115.) 

And then there's the "consecrated lie" of the Supreme Court itself, claiming that voir dire is a device to seat an impartial jury.  And, speaking of which, do prospective jurors ever lie in order to get out of jury service?  (See post 98 and post 108.)   Here's a whole web page of excuses, with a link to more.  And let's not even get into the topic of Professor Anthony D'Amato's paper, "The Ultimate Injustice: When A Court Misstates the Facts."  (Ultimate?)

So while I think Judge O'Flaherty crossed a line, I don't think it's the line identified by the Bee.  It's more like shhhh, not so loud!

UPDATE (6/7/06):  The one thing we can all agree about is that O'Flaherty showed poor judgment, which one might consider a problematic failing in a judge, but he won his primary race pretty easily.

Without knowing anything at all about the particular case, could you guess the profession of a witness?  Here's the witness's description of the testimony he gave several years earlier in a corruption trial involving Italy's media mogul/Prime Minister Silvio Berlusconi:

I kept in close touch with the B people...they also knew quite how much the way in which I had been able to give my evidence (I told no lies, but I turned some very tricky corners, to put it mildly) had kept Mr B out of a great deal of trouble...I was told I would receive money...$600,000 would be put in a hedge fund...For obvious reasons...it needed to be done discreetly.

He wrote this in a letter to his accountant after the tax authorities had begun questioning his failure to pay tax on the $600,000.  (Here's the full text of the letter, supposedly.)   He claimed at first that the money was merely a gift given from the goodness of the Prime Minister's heart, like the du Pont heiress's spontaneously-generous gift of $2.3 million to the Delaware county executive (see post 64), although he later claimed the money was instead from a different client altogether.  (You can understand how easy it is to lose track of the origin of the $600,000 in your Swiss bank account.)

The letter to the accountant must certainly have been part of a consciously-created paper trail.  The writer thought he was helping his cause when he he wrote "I told no lies, but I turned some very tricky corners, to put it mildly".  His point was that he didn't take a bribe for providing false testimony, because while his testimony wasn't true, it was not-false.  And that, the writer took as a self-evident truth, meant there was nothing wrong with it.

Of course the writer, David Mills, was a lawyer.  No other profession views the not-false as an acceptable substitute for truth.  (See post 65.)  The American Bar Association's Model Rules of Professional Conduct state that a lawyer has a "duty of candor" to the court, but then define that duty in strictly negative terms, as the duty not to say anything provably false.  Truth, like innocence (as opposed to not-guilty), is simply not a category recognized by the law.

Mr. Mills' affairs have become big news in Britain because his wife happens to be a member of Tony Blair's cabinet, secretary for one of those peripheral ministries that European governments reserve for female politicians.  The news today is that the couple has separated in advance of new revelations expected in Sunday's papers.  It was a choice between marriage and career, I suppose.   And, to paraphrase Caspar Gutman, if you lose a husband, you can always get another, but there's only one slippery pole for a politician to climb. 

Here's some comments from the British blogosphere, and a sympathetic profile of Mills here.

Gene Weingarten's Below the Beltway column from the January 29 Washington Post described a new wrinkle in lawyer advertising: New Jersey lawyers writing him to encourage him to contest a speeding ticket he received in the Garden State.  (To know why Weingarten was driving through New Jersey, check out his profile of The Great Zucchini, which manages to be moving, disturbing, funny and acute all at once.)

In his January 29 column, Weingarten lets us listen in on his phone conversation with Ed, a NJ lawyer with the true NJ accent, whose fee would have exceeded the fine:

Ed: Okay, but let's say it goes to trial. They have to prove it beyond a reasonable doubt. In a utopian world, everything would go perfect, and everyone would know that, and everyone who was guilty would just plead guilty. But what if the officer got caught in a hurricane and didn't show? Then they wouldn't have a case because he couldn't show his certification as a radar operator. It would be dismissed.

Me: But if I went to trial, I would have to testify that I was going 82. I'm honest.

Ed: That's not a problem.

Me: Why?

Ed: Because then I wouldn't put you on the stand.

Fuhgeddaboudit.  I paid the ticket.

But Ed was making a perfectly valid point.  From a lawyer's point of view, what he was saying wasn't even remotely sleazy.  He just meant there's a vast difference between reality, on the one hand, and the courtroom record, on the other hand.  The lawyer's job isn't to give the factfinder an accurate picture of reality.  On the contrary.

The lawyer wants to provide the picture that is (1) optimally useful to his or her client while (2) accommodating all of the facts provable by the other side.  The point is not to be true, but to be not-false. 

One of the subtler  effects of the litigiousness of American society is the way in which the courtroom ethos has permeated the broader society.  In politics, the standard of not-false has almost totally displaced any concept of truth or honor. 

Some years ago, during that brief period in which he was writing for the New Yorker, Michael Kinsley did a hilarious article on the Carville / Matalin match.  He wondered "how you can love someone whose values you purport to despise" and provided the answer he gleaned from the power couple's book All's Fair: "by always making the crucial, if puzzling, distinction between the individual and everything he or she stands for."  (The piece, called "True Lies," is collected in Kinsley's Big Babies.)

Most lawyers make a similar distinction in their everyday relationships with opposing lawyers.  You have to.  Otherwise you'd hate them.  The other side's closing argument is full of half-truths, unwarranted speculation, absurd inferences - but, hey, that's their job.  This is nothing new: Henry Fielding, the magistrate/novelist, was ridiculing the courtroom displacement of "true" with "not-false" two and a half centuries ago in Joseph Andrews (book II, chapter 3).

(The true believers are the ones who really do hate the other side.  I once served on a committee with a public defender who started visibly every time I spoke to her:  "How are you?" "Hunh! - Oh.  Okay."  Picture poor Dracula, trying to pass the time at the Department of Motor Vehicles by striking up a conversation with the person behind him in line.)

When two lawyers each present half the story, the jury theoretically gets to hear the whole thing.  It's when judges embrace the not-false standard in their opinions, and their evidentiary rulings, that things start to go seriously wrong.

In 1963, Justice Brennan wrote:

It was firmly established long before the adoption of the Bill of Rights that the fundamental liberty of the individual includes protection against unannounced police entries. "[T]he Fourth Amendment did but embody a principle of English liberty, a principle old, yet newly won, that finds another expression in the maxim 'every man's home is his castle.'"....

Moreover, in addition to carrying forward the protections already afforded by English law, the Framers also meant by the Fourth Amendment to eliminate once and for all the odious practice of searches under general warrants and writs of assistance against which English law had generally left them helpless.

So not only did the English law treat a man's home as his castle, but it permitted the odious practice of searches under general warrants and writs of assistance.  Everyone clear on that? 

Justice Scalia wrote in the same vein in his concurring opinion in Minnesota v. Carter.  Scalia presented a series of examples from English history, and then concluded:  "These principles are embodied in the Fourth Amendment of the United States Constitution".  So let's look at those principles, one by one:

In Semayne's Case, 77 Eng. Rep. 194 (K.B.1604), the King's Bench resolved that "the house of every one is to him as his castle and fortress," id. at 195, and prohibited the government from forcibly entering a home at the behest of a private party, id. at 198.

This is a not-false description of Semayne's Case, Coke's report of which can be examined here (pdf format), and a summary of which can be read here.  As can be seen, the case's reference to "castle and fortress" referred to the right to resist a burglar.  The case actually affirmed the right of the government to break into anyone's house whenever "the King is party", meaning in all criminal cases.  Can anyone seriously believe that English law in 1604 permitted a peasant to set himself up as lord of his castle, legally entitled to resist the King's officers?  Scalia continues:

Although Semayne's Case accepted broad powers of search in cases where the government was a party, Lord Coke (who witnessed Semayne's Case as attorney general) later applied its adage that a man's house was his castle to curtail the arbitrary government invasion of private homes. See Cuddihy & Hardy, supra, at 376.

What does it mean to say that Coke "applied its adage"?  You'd have to look up the law review article, and then look up the references in the article, to find out what Scalia is actually referring to.   At most he's referring to commentary by one respected lawyer/courtier.  (Coke was, however, not universally respected -- Bacon, possessor of a much greater intellect, despised him and even helped to engineer his downfall.) 

William Pitt elaborated upon the sanctity of the home in his impassioned defense of private homeowners against discretionary government searches before Parliament in 1766. See id. [the same law review article] at 386.

Sometime during the 150 years between Coke and the American Revolution, a famous politician made a speech on the topic.  And this proves what, exactly?  Doesn't the mere fact that Pitt found it necessary to address the topic suggest the principle for which he agitated was not firmly established?  Scalia's heavy reliance on a single secondary source, in this case a law review article -- an article published in a non-peer-reviewed journal edited by law students rather than historians -- is characteristic of the faux-history found in judicial opinions.

And William Blackstone, in his Commentaries wrote: "And the law of England has so particular and tender a regard to the immunity of a man's house, that it stiles it his castle, and will never suffer it to be violated with impunity.... For this reason no doors can in general be broken open to execute any civil process; though, in criminal cases, the public safety supersedes the private." William Blackstone, 4 Commentaries on the Laws of England 223 (1769).

Blackstone's comments are found in a section that begins: "Burglary, or nocturnal housebreaking ..."  He was describing the homeowner's right to defend his property against thieves in the night.  His only reference to government searches was that last bit, an aside affirming that "in criminal causes, the public safety supersedes the private." 

In short, the sources cited by Scalia contradict his argument more than they support it.  If the principles they announce are "embodied in the Fourth Amendment", then the fourth amendment doesn't mean what Scalia says it means.

For Scalia, and for lawyers in general, research consists of looking for authorities to support the conclusion one has already reached (for example, because it's the conclusion most favorable to one's client).  As soon as you find something good to stick into your argument, there's no reason to continue the investigation.  It's evident that Scalia, or rather the clerk assigned to work up the particular case, found a little nest of posh-sounding quotes in a law review article and figured that was good enough.  Whether the published opinion was accurate about English legal history was neither here nor there.

For lawyers, historical research is essentially decorative.  It's a hunt for something impressive to drape over one's argument.  It's the opposite of history as practiced by historians.