Supreme Court

L.A. Times: "Criminal defendants find an unlikely friend in Justice Scalia"


Writing in the Los Angeles Times, David Savage argues that Supreme Court Justice Antonin Scalia "has led an unusual pro-defendant faction at the high court in reversing convictions for murder, drug dealing, wife beating and drunken driving." As Savage writes:

Sometimes, Scalia's insistence on following the "original" Constitution leads to unexpected results. And for him, there are no shades of gray and no halfway measures.

The 6th Amendment to the Constitution says the "accused shall enjoy the right … to be confronted with the witnesses against him." To Scalia, this clause not only gives defendants the right to challenge actual witnesses, but also the right to bar testimony from all those "witnesses" who did not or cannot testify in court. He takes this view even if the witness is dead….

"This is not a left-right split. This is principle versus pragmatism," said University of Michigan law professor Richard Friedman. For Scalia, "this is all about adhering to originalism," regardless of whether the results seem strange.

Read the whole story here. Back in 2008, Jacob Sullum surveyed Scalia's jurisprudence on issues ranging from the Fourth Amendment to the war on terror and concluded that "Scalia's not half-bad," which is "more than you can say for most justices." As for the bad half of Scalia's half-bad record, I discuss some of it here.


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  1. He takes this view even if the witness is dead….

    Woo-Hoo! My business opportunities just jumped 500%!!!!

  2. insistence on following the “original” Constitution leads to unexpected results.

    To some people maybe.

  3. For Scalia, “this is all about adhering to originalism,” regardless of whether the results seem strange.

    Doesn’t he know that a judges duty is to get to what he feels is the proper result? The man is a monster.

    1. “”For Scalia, “this is all about adhering to originalism,” “”

      What a joke, so says Raich.

  4. But with the relentless Scalia leading the charge, it may well succeed, a prospect that worries prosecutors and crime lab directors across the nation.

    Yes, and since they’re the ones who matter, we should pay exclusive attention to how it affects them.

  5. Sometimes, Scalia’s insistence on following the “original” Constitution leads to unexpected results.

    Since when are robust due process rights for the accused an unexpected result of following the Constitution?

    1. Only one who has no Constitutional principles can look at the application of such as “strange”.

      1. Only those who see a “Living Constitution” would see government not having unlimited power as strange.

  6. scalia’s a constitutional originalist since drunk driving & wife beating werent crimes for the founders.

    1. Wocka wocka wocka!

    2. It’s exceptionally nice that we don’t even have to resort to calling OO stupid. His posts speak for themselves.

      1. drink your raw milk so you wont be mad honey.

  7. It seems the left will never cease to be amazed when Scalia “sides with” the potential criminal.

    So many on the left seem terminally unable to grasp the concept that a jurist’s job is to apply the law to reach the result legally mandated by the law, not function as a super-legislator and reach the result that is politically desirable or popular as a matter of public policy.

    Scalia actually is not too bad at doing that most of the time. It’s silly to assume that just because he’s an eeeeeee-vil “conservative” justice that he’s going to rule against accused criminals. He actually has been pretty good in ruling on issues of the rights of the accused.

    1. I don’t think it is just the left. God knows the right has freaked out about past decisions consistent with a more originalist interpretation (e.g. free speech).

      Moreso, I think the media is confused when they can’t distill the Court’s decisions down to a simple blue/red narrative. Which is probably why they don’t cover the 75% of so cases that deal with more mundane (and non-constitutional), but important, issues, like preemption, statutory interpretation, etc. Hell, those things can’t even get boiled down to originalist/living constitution discussions. What’s the originalist take on ERISA?

  8. Scalia is god-awful on 4th and 5th amendment issues. His originalist concept of an “unreasonable” search/seizure is (a) not getting a warrant to search the contents of a home and (b) if not a warrantless search of a home, anything the cops do or want to do is reasonable. As for the 5th Amendment, apparently we should celebrate all confessions, even in the face of evidence that a significant percentage of them are false.

    But he takes the confrontation clause seriously. Respect is due.

    Criminals should be advised to make sure witnesses against them die.

  9. insistence on not following the “original” Constitution leads to unexpected results.

    I believe a problem occurs when the courts make a decision based on their own interpretation of the Constitution or on the outcome that they believe is correct.

  10. To Scalia, this clause not only gives defendants the right to challenge actual witnesses, but also the right to bar testimony from all those “witnesses” who did not or cannot testify in court. He takes this view even if the witness is dead….

    Maybe I’m just dumb, but how is that a “strange” interpretation? Can these people not see the potential for abuse if you admit the testimony of witnesses for the prosecution who are “unable to testify in court”?

    1. There are traditional exceptions from the hearsay rule, that include allowing testimony from dead people and presumably others who are legitimately unavailable.

  11. I see I’m not the first one to object to the terms “unlikely” and “unexpected.” David Savage is usually more sophisticated than this.

    Scalia isn’t fitting the journalist’s stereotype, so “unexpected” means “we have our heads too far up or asses to notice the obvious until we get hit over the head with reality like a tire-iron.” Scalia actually has to do some work and find facts which challenge his preconceptions. This is annoying, and the blame must be with that weird Scalia dude, not with the preconceptions.

    Also, look how Scalia prefers the original meaning of the jury-trial clause to the “sentencing reform” law which lets judges rather than juries determine degrees of guilt.

    Most of the Bill of Rights protects criminal defendants. An originalist approach to the Bill of Rights would predictably lead to many pro-defendant decisions.

    Scalia distinguishes between the government getting information for evidence purposes, which has to be tested by confronting the witness in court, and information collected by the government for some other purpose, like treating a patient at a state hospital. The crime labs are obviously gathering information for evidentiary purposes.

    Scalia has been insisting on confrontation rights from the beginning, insisting that (for example) accused child molesters get to confront their accusers face to face.

    The Founders, based on their handiwork, were very worried about an oppressive government using unfair procedures against criminal defendants, so they insisted on certain protections. The individual and ancestral memory of the Founders included George III’s anti-defendant innovations in judicial procedure, the Bloody Assizes under James II, and other unfair trials of English history (especially in the Stuart era).

    1. “Scalia actually has” should be “journalists actually have.” Thank you.

    2. I agree for the most part, but let’s not bring the Founders into this. They didn’t intend the BoR to apply to the states, and they saw federal criminal trials as being an relatively rare occurrence.

  12. What the hell is “pro-defendant”?

    They’re not supposed to be pro-anybody.

    1. Liberals no longer believe that a judge is supposed to be impartial and only for the law. Look at what they argued as to why Sotomayor would be a good justice. They are profoundly disconcerted when presented with evidence that someone like Scalia holds to principles even if it means the side he is supposed to disfavor wins the case. They always assume that Scalia is lying about his principles because that is what they would do in Scalia’s place.

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