13. "The Government"

Dahlia Lithwick, whose every word is worth reading, wrote about Samuel Alito:

Robert Gordon has written in Slate, for instance, that in his survey of the criminal and Fourth Amendment cases Alito heard as an appeals court judge, he adopted the position most supportive of the government every time. Justice Antonin Scalia is a conservative who has crafted a healthy jurisprudence of doubt about limitless government powers. Alito, on the other hand, is a former prosecutor who has seemingly never met a search, seizure, warrant, or arrest he couldn't love.

(The Gordon article she's referring to can be found here.  It equates "libertarian" and "liberal," capturing just how far legal liberalism has diverged from political liberalism.  Where else does the Cato Institute equal People for the American Way?)

Look at Dahlia's choice of words.  "[H]e adopted the position most supportive of the government".  By "the government" she means the prosecution, and behind the prosecutors, the cops.  In the conventional way of looking at things, the opposite of "the government" is the individual citizen.  That's how it plays out in the defendant's life, and in the courtroom.

But there's a world beyond the courtroom that involves players not sitting at either of the tables arrayed on either side of the podium.  In practical terms, the core question in fourth amendment cases is: Who decides?   Who gets to decide whether a police action is reasonable?  The cops who were there, or the judge who wasn't?   The conflict is between the executive branch (prosecutors and cops) and the judicial branch.    So in concrete terms the opposite of "the government" is ... a different part of the same government. 

The law is unusually susceptible to Bacon's "idols of the theater", because conventional wisdom is enforced by judicial power.  A practicing lawyer trying to do right by her client has no alternative but to go along with notions she might recognize as false or even absurd.  The judge ruling on her case is, at least in theory, bound by the same notions, if they have been announced by a superior court.  (See post 10.)  I understand that.  I live with it every day.  But I've never understood why commentators standing outside the pyramid of judicial power are willing to go along.

A judge who suppresses evidence of criminal wrongdoing is exercising "limitless government power" just as much (or, making allowances for hyperbole, as little) as the cop who obtained the evidence.  The difference is that the cop was enforcing democratically-enacted laws.  The judge is forbidding their enforcement.

But there's another wrinkle, too.  Search warrants are orders issued by a judge.  An appellate court that orders the suppression of evidence seized pursuant to a warrant is saying that the police were wrong to follow the judge's order.  So in that case the core question is still, "Who gets to decide?" but the conflict is between the appellate court and the trial court.  One part of the judiciary is wrestling with another.  These rulings go both ways, of course (the prosecution can appeal pre-trial suppression orders, although the sclerotically bureaucratic federal Department of Justice does not always do so), so it is not automatic that the individual defendant benefits.  Power itself is inherently neutral.

Alito's rulings mean he was not intent on using the powers of government to impose his will on a democratic polity.   And what's illiberal about that?