Civil Liberties

Scalia's Not Half-Bad—More Than You Can Say for Most Justices

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Supreme Court Justice Antonin Scalia has been receiving a lot of criticism around here lately, much of it deserved and some of it from me. I did not like the way he bent over backward in D.C. v. Heller to reassure gun control supporters that existing federal restrictions on firearms are not in danger. His position that the Second Amendment covers only weapons "in common use…for lawful purposes," as opposed to the "unusual and dangerous weapons" that can be banned without violating the Constitutution, is a circular argument that seems designed to uphold the status quo. Neither the federal machine gun ban nor any other form of national gun control was before the Court, so Scalia should have left such issues for another day.

By the same token, however, I don't think it's fair to criticize Scalia, as Radley Balko does, for failing to describe the exact parameters of the right to keep and bear arms (whether it extends beyond self-defense in the home, for example) or for refraining from deciding whether states and cities are bound to respect it by the 14th Amendment. Those questions were not before the Court either. The most important thing Scalia did in Heller (and did quite well, I thought) was to settle the question of whether the Second Amendment protects an individual right to arms and to lay out the reasons for concluding that it does.  

More generally, some of the stronger libertarian attacks on Scalia obscure the fact that, from both an originalist and an anti-statist perspective, he is substantially better than the average Supreme Court justice. Although he does not consistently apply his professed principles, he does stand up for a more eclectic mix of individual rights than any other justice, with the possible exception of Clarence Thomas. For the average self-styled progressive, the fact that Scalia upholds property rights in cases involving eminent domain and regulatory takings fits the profile of a reactionary Republican, confirmed by his position on the Second Amendment. But Scalia's wide-ranging defenses of free speech, in cases involving issues such as online "indecency," commercial speechcampaign finance restrictions, and flag burning (which the "liberal" Justice John Paul Stevens wanted to exclude from the protection of the First Amendment), does not jibe with that stereotype.

Neither do Scalia's defenses of the Fourth Amendment. Although he has joined the majority in whittling away at the guarantee against unreasonable searches and seizures, especially in the name of the war on drugs, he also has occasionally resisted that trend, both in the majority and in the minority.

Radley writes that Scalia "has a history of prioritizing his law-and-order instincts over his allegiance to limited government principles and originalism, as he did when he sided with the Court's liberal justices in the medical marijuana case Gonzales v. Raich." Joining the majority in Raich is one of the worst choices Scalia has ever made, hammering what may prove to be the final nail into the coffin of the "federalism revolution" he ostensibly supported. But Scalia's law-and-order instincts have not prevented him from standing up for the rights of defendants, despite his reputation as pro-government. In a pair of recent cases, for example, Scalia joined Thomas in narrowly construing the federal definition of money laundering, thereby overturning two convictions. Together with Thomas, he has led the charge against mandatory federal sentencing guidelines, insisting that the Sixth Amendment right to trial by jury means judges may not determine facts that automatically trigger harsher punishment. And in Hamdi v. Rumsfeld, the 2004 case involving an American citizen detained in the United States as an "enemy combatant," Scalia took the most radical position against the Bush administration, saying the government had to try Hamdi in civilian court or let him go. 

In short, Scalia is in many ways more liberal (in the classical sense) than the allegedly liberal members of the Court, and we should not lose sight of that fact when we criticize him for his inconsistencies. On balance, I'd much rather see more justices like Scalia than more justices like Stevens.

Mark Moller tries to figure out what Scalia was thinking when he took the wrong side in Raich. Cathy Young reviews Scalia's deviations from judicial restraint. Damon Root asks what's so great about judicial restraint anyway.