The Washington Post highlighted “the eagerness of the White House to distance Roberts from the Federalist Society”, a move which was something the Post claimed “baffled many conservatives", and said many conservatives believed “the reaction fed a false perception that membership in the organization -- an important pillar of the conservative legal movement -- was something nefarious that would damage Roberts's chances of confirmation.”
As Roger Pilon, a vice president at the libertarian Cato Institute put it, "Are you now or have you ever been a member of the Federalist Society?...The Republicans and the White House in particular should take this issue on head-on. What are we talking about here? The Communist Party? The Ku Klux Klan? This is an organization of conservative and libertarian law students, lawyers and legal scholars."
Pilon was “mocking” the suspicions some Americans have toward the group. Are any of these suspicions reasonable?
A long-drawn-out article, “In Defense of Evidence: Against the Exclusionary Rule and Against Libertarian Centralism” posted on LewRockwell.com, a site created by a former chief of staff to Congressman Ron Paul, explains why the “rule” should be opposed by libertarians:
“In its current form, therefore, the exclusionary rule is a means by which federal courts illegally usurp powers that are constitutionally reserved to the states. Of course, libertarians must oppose the states as well as the federal government, since both by their nature commit aggression against innocent victims. From the libertarian standpoint, however, it is better that government power be dispersed rather than centralized. A weak federal government is preferable to a strong one, ceteris paribus. It is generally better for the federal government not to have a particular power, even if that power could be used to protect individual freedom. This is all the more true where the power in question is the power to exclude probative evidence, something that can only protect criminals. Criminals do not deserve protection, least of all from the federal government, itself a criminal organization.”
This argument is not far from the opinion Chief Justice Roberts gave in the recent decision concerning the “exclusionary rule.” Since the Federalist Society consists of conservatives and libertarians, it might be fair to further explore the threat to the “exclusionary rule” by following this ideology which suggests the state must always be opposed and even if it threatens individual freedom because “criminals do not deserve protection.”
The Hoover Institution has posted an essay by Edwin Meese III, who was attorney general under Reagan from 1985-1988. In “The Imperial Judiciary—And What Congress Can Do About It”, which was published in 1997, Meese wrote about how “unelected federal judges are using their awesome power to usurp democracy from the American people.”
The article is a porthole into the ideology of the Reagan alumni which currently occupy the Supreme Court of the United States. Much of it explains why these justices oppose the “exclusionary rule.”
To people like Meese, a key problem in America now (and then) is (and has been) “judicial excesses”, which occur when “federal judges exceed their proper interpretive role” and engage in “judicial activism” and “undermine nearly every aspect of public policy.”
Instances of concern to Meese are explained thoroughly (and I encourage you to explore the other “excesses” described in the article that are not related to "exclusionary rule").
For the purposes of this article, this is what Meese has to say about the “exclusionary rule”:
Hampering criminal prosecution. In Mapp v. Ohio (1961), the Supreme Court began a revolution in criminal procedure by requiring state courts to exclude from criminal cases any evidence found during an "unreasonable" search or seizure. In so holding, the Court overruled a previous case, Wolf v. ColoradoMapp decision unjustifiably infringed upon the states' sovereign judicial systems and forced them to adopt a uniform, federal procedural remedy ill-suited to serve states with "their own peculiar problems in criminal law enforcement." (1949), which had allowed each state to devise its own methods for deterring unreasonable searches and seizures. The Supreme Court in effect acted like a legislature rather than a judicial body. As a dissenting justice noted, the
In fact, nothing in the Fourth Amendment or any other provision of the Constitution mentions the exclusion of evidence, nor does the legislative history of the Constitution indicate that the Framers intended to require such exclusion. Instead we ought to explore other means of deterring police misconduct without acquitting criminals, such as permitting civil lawsuits against reckless government officials and enforcing internal police sanctions against offending officers with fines and demotions.
Since Mapp v. Ohio, the exclusionary rule has had a devastating impact on law enforcement in America. One recent study estimated that 150,000 criminal cases, including 30,000 cases of violence, are dropped or dismissed every year because the exclusionary rule excluded valid, probative evidence needed for prosecution.
The Federalist Society honored former Attorney General Edwin Meese III in 2006.
The NY Times claims, “The United States takes a distinctive approach to the exclusionary rule, requiring automatic suppression of physical evidence in some kinds of cases. That means, in theory at least, that relatively minor police misconduct can result in the suppression of conclusive evidence of terrible crimes.”
(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).
