Justice Scalia Was More Pro-Defendant Than His Reputation Let On

Posted by Richard Lawson | Feb 28, 2016 | 0 Comments

In the wake of Antonin Scalia's unexpected death, there has been a great deal of discussions as to the future makeup of the U.S. Supreme Court. No matter his successor, Scalia will most certainly go down as one of the greatest Justices this nation has seen. His name remembered next to the great John Marshall, Benjamin Cardozo, Sandra Day O'Connor, and Warren Burger. As Capitol Hill strategizes on finding his successor, this country can only hope the person who steps into the shadow of the honorable Justice, can make as strong of an impression on individual rights, as Justice Scalia once did.

Scalia was most recently known for his dissent in the historic same-sex marriage case last summer. It should be noted that Scalia's dissent was in opposition to making changes to the constitution and not opposing same-sex marriage. He felt the need for same-sex marriage should derive from Congress or individual state laws. This view is typically regarded as conservative, yet the second-longest sitting Justice referred to himself more as an originalist. His devotion to originalism has left behind a bigger impression on protecting individual rights than his conservative reputation lead on. Scalia was a guardian of the 4th and 6th Amendment and protecting citizens from overreaching police and government, just as the founders of this country once concerned for this country.

Guardian of the 4th and 6th Amendment:

The 4th Amendment to the United States Constitution protects people from unreasonable search and seizure.  Essentially, it protects the lock on your front door, your email, and your basic privacy from Governmental interference and overreach.

The 6th Amendment provides people the right to an attorney, trial by jury, the right to know your accusers, and finally, the right to confront those accusers in court through cross-examination.

Justice Scalia authored some of the most groundbreaking majority opinions which protected defendants from overreaching police investigations. As the turn of the technology era was introduced to searches and seizures, Scalia was the patriarch defender of the constitution and the 4th amendment. He authored the majority opinion in Kyllo v. U.S., 533 U.S. 27 (2001) where he shut down the use of thermal imaging technology to detect marijuana growing operations without a warrant. In 2012, he was of the same opinion when it came to the use of tacking GPS devices to suspect vehicles because this was a clear violation the 4th amendment. US v. Jones, 132 S. Ct. 945. Each of these cases came down to a 5-4 vote on the Supreme Court. Without his position in the future, search and seizure could be at the mercy of his liberal counterparts who valued stronger police power and degraded the 4th amendment.

More notable for defendants, Scalia authored the important opinion preventing ex-parte examinations from being admitted into evidence at criminal trials. This opinion prevents recorded conversations of unavailable witnesses from being admitted into evidence at trial. More importantly, it upholds testimonial evidence without an opportunity for the defendant to cross-examine. Scalia's point being that the admission of such evidence would infringe upon the Defendant's 6th Amendment right to confront his accusers. Crawford v. Washington, 541 U.S. 36 (2004).

Scalia Decisions that Merit Criticism:

Having some pro-defendant rights decisions should not make Justice Scalia immune from critique.  Richard Posner, a judge on the influential 7th Circuit Court of Appeals, has pointed out that Justice Scalia's passive role of judicial interpretation is overly simplistic.  For example, if a park ordinance bans motorized vehicles, a reasonable person would understand that it would not apply to wheelchairs or ambulances.  However, Justice Scalia would possibly have argued that the exact language of the stature must be followed. 

The problem with that view is that out laws cannot be so expansive as to predict all future events.  Reasonable minds must prevail.  There is a famous case where a mail carrier was accused of murder.  A warrant was issued, and the local constable executed the warrant.  Somehow politics ran amuck, and that constable was arrested for interfering with the delivery of the mail. 

In a 9-0 Supreme Court Decision, United States v. Kirby, 74 U.S. 482 (1868) the court held that “that all laws should receive a sensible construction," and that literal interpretations which "lead to injustice, oppression, or an absurd consequence" should be avoided. The Court concluded that "The reason of the law in such cases should prevail over its letter", and, therefore, ruled that the law could not be applied to the sheriff's actions.

Now, would an originalist like Justice Scalia disagree with this holding?  Additionally, in cases involving women's rights Justice Scalia also held to the belief that if it was not in the Constitution, those rights do not exist.  Yet, in 2016, it is almost universally accepted that our Constitution should be interpreted based on today's norms, not the standards of the 18th Century. 

What should we expect in Scalia's absence?

Scalia's death is leaving a less than balanced bench of 4 conservatives and four liberals. Although a reliable conservative, Justice Kennedy has been the swing vote joining the liberal counterparts in more recent cases. Obama's administration likely won't get the chance to refill the appointment in their short time left in office, given that the Senate's conservative majority will oppose any liberal appointment until time runs out. That will be crucial for the upcoming election.

The Supreme Court docket for 2016 includes controversial public policy and human rights cases. You can expect to see cases concerning abortion, affirmative actions, powerful unions, voting rights, and a review of Obama's immigration policy. In the wake of Scalia's death, the outcome of these cases could be far less predictable when boiled down to the even number of votes. We will see the role of Justice Kennedy's notorious swing vote become more important than ever before.

Given Scalia's commitment to his originalist views, we should expect the opinion of the court will lack strong persuasion for the intent of the framers of the constitution. Justice Scalia was a fighter for originalism and the theory that the Constitution should be interpreted as it was once written by the founders of this country. Appointed by President Reagan back in 1986, Scalia feared that if the Constitution were invariably interpreted to fit the demands of the masses, it would evolve to the point that the most important document, in the history of the world, would be unrecognizable and thus less influential. His role on the court was a balance of principles to Justices Ginsburg and Stevens, who so quickly sought to expand the enumerated rights assumed to be protected by the Constitution.

There has been concern whether Scalia's successor will be appointed during the final days of the Obama Administration or if the conservative Senate will keep the appointment at bay until the newly elected president takes office. I guess we will just have to wait and see.

About the Author

Richard Lawson

Managing Partner at Lawson & Berry:


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