Antonin Scalia

Antonin Scalia Was a Great Jurist for Criminal Defendants

The Supreme Court Justice's opinions often favored the accused-because their rights were in the Constitution.



“I ought to be the darling of the criminal defense bar,” Supreme Court Justice Antonin Scalia once said. “I have defended criminal defendants’ rightsâ€"because they’re there in the original Constitutionâ€"to a greater degree than most judges have.”

Many criminal defense lawyers might gag at the thought. After all, Scalia was the most vociferous defender of the death penalty, even pushing (in losing causes) for its application to minors and the mildly mentally retarded. He wrote the majority opinion that upheld a grotesquely disproportionate drug mandatory minimum sentence from an Eighth Amendment challenge.

Yet Scalia was not delusional. He believed his opinions in those cases were well grounded in the text of the Constitution. After all, capital punishment is mentioned specifically in the Constitution and thus cannot now be considered unconstitutional As for mandatory sentences, the use of prison, even for lengthy terms, would not have struck the Framers as both “cruel” and “unusual,” as the Eighth Amendment required. Thus, Scalia’s originalist approach led to unhappy results for criminal defendants in these cases.

Yet other Scalia opinions, also rooted in “the original Constitution,” favored criminal defendants and were cheered by the defense bar. Indeed, in many cases Scalia sounded like a full-throated civil libertarian. Most famously, Scalia voted to protect American flag-burning protestors from criminal punishment, even though, he later admitted, he had no love for the “scruffy, bearded, sandal-wearing people” who did such things.

Scalia is rightly credited with single-handedly reviving the Sixth Amendment’s guarantee that "[i]n all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him." Before Scalia joined the Court, it had held that out-of-court statements could be used against a defendant if they were deemed reliable. Scalia convinced his colleagues that the guarantee made by the Framers is greater than that and gives the accused the right to confront witnesses and cross-examine their testimony.  

Scalia also stood strong in defense of Americans’ Fourth Amendment guarantee against unreasonable searches and seizures. In Maryland v. King (2013), for example, Scalia disagreed with the Court’s conservatives about the constitutionality of a Maryland law allowing law enforcement to take DNA by mouth swab of anyone charged with a violent crime.

In a typically stirring dissent, Scalia argued the Fourth Amendment prohibits Maryland from conducting such suspicionless searches. “Solving unsolved crimes is a noble objective,” he wrote, “but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches.”

Perhaps the public would be made safer if the government were allowed to take minimally invasive DNA samples from anyone who flies on an airplane or applies for a driver’s license, Scalia wrote, “But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.” Liberal privacy expert Jeffrey Rosen said Scalia’s opinion was “not only one of his own best Fourth Amendment dissents, but one of the best Fourth Amendment dissents ever.”

Scalia sided with criminal suspects (and the Constitution) in several other search cases. For example, he prevailed in blocking law enforcement’s use of modern technology, such as thermal imaging to search a house for contraband or a GPS monitor to track a suspected criminal’s car. He strenuously dissented from a 2014 decision allowing warrantless traffic stops based on “an uncorroborated, vague, and nameless tip.” Not unaware of law enforcement’s interest, Scalia nevertheless concluded, “Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference.”

Finally, Justice Scalia spoke out strongly against two very current criminal justice system concerns: the eroding of the Sixth Amendment’s right to trial, and the tendency of Congress to criminalize everything.

Those of us who care deeply about criminal sentencing are indebted to Justice Scalia for helping ensure that a juryâ€"not a judgeâ€"finds beyond a reasonable doubt all the facts that could increase a defendant’s prison sentence. Scalia described this as the “the fundamental meaning of the jury-trial guarantee of the Sixth Amendment.” In Sykes v. United States (2011), Justice Scalia wrote:

We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nitty-gritty. In the field of criminal law, at least, it is time to call a halt.       

Last yearâ€"four years after calling for an end to the overcriminalization madnessâ€"Scalia prevailed. He wrote the majority opinion striking down the vague criminal law that aroused his ire in Sykes. The Due Process Clause, he wrote for the Court, prohibits the government from “taking away someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” 

With Justice Scalia’s passing, conservatism might have lost its best friend on the Supreme Court. But all of us who believe in the rights of the accused lost a good friend, too.

Kevin Ring is the vice president of Families Against Mandatory Minimums (FAMM) and editor of Scalia Dissents: Writing of the Supreme Court’s Wittiest, Most Outspoken Justice. His new book, Scalia’s Court, will be published by Regnery in April.

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  1. "With Justice Scalia's passing, conservatism might have lost its best friend on the Supreme Court. But all of us who believe in the rights of the accused lost a good friend, too."

    Defending the rights of the accused is absolutely at the heart of principled conservatism. It makes me sad that conservatism has somehow been twisted around to the point that respect for the rule of law has morphed into cheerleading the abuses of law enforcement.

    1. It makes me sad. And both sides cheer lead for law enforcement. The left just does it for the regulatory state. Make no mistake, it is all law enforcement and it is all counter to the rule of law.

      1. The left just does it for the regulatory state.

        You don't even have to add that caveat, John. The last couple of weeks, we were treated to the sight of a horde of HuffPo, Salon, and even NPR, screaming for Lon Horiuchi and company to spill the blood of a couple of folks who occupied an abandoned rangers' station in the middle of Bumfuck, Oregon.

        1. Yeah, if the case involves LEOs abusing people they don't like, the left is all about LEO abuse. You just can't overstate how appalling they are.

          1. No principles, no logic, no reason. Just pure emotion. Nothing else. "Damn right-wingers! I hate 'em! Kill 'em all!" immediately followed by "Those damned racist cops! Kill 'em all!" No self awareness either.

            1. "It's only a crime when X does it." A house built on fallacy.

        2. Don't let 'em fool you, HM. The left is just as eliminationist as they accuse everyone else of.

  2. It says something about the our current President, that people are so upset by the prospect of him nominating a Supreme Court justice. I don't know what Obama's approval ratings are right now, but I suspect the Americans who disapprove of him do so much more deeply than people disapproved of other Presidents before him.

    Not all disapproval is created equal.

    I suppose the Constitution matters more to conservatives and Republicans.

    When's the last time Senate Democrats defeated a Supreme Court nomination by a Democratic President? Senate Republicans defeated a Republican President's nomination in 2005.

    1. I think the deep-rooted disapproval comes from the contempt with which the President and his people view his critics. Bush and Clinton never (publically, at least) were so dismissive and so contemptuous of the other side.

      1. Progressives are generally contemptuous of average Americans and the middle class.

        It's hard for average Americans to trust a President who is so contemptuous of them.

        1. Progressives just blame the contempt on racism and discount any criticism -- constructive or otherwise -- on those grounds.

    2. There was the nomination of Abe Fortas as Chief Justice.

  3. I didn't always agree with Scalia's interpretations of the constitution. I could always live with this disagreement because at least Scalia thought the document objectively meant something instead of just seeing it as meaning whatever gave what he considered the "right result".

    Remember, the liberal justices disagreed with Scalia on the confrontation clause and the right to a jury trial. In both of those issues, Scalia looked at the history of the document and made a conclusion about what it is supposed to mean. And when that worked out in the criminal defendants' favor, Scalia didn't let some commitment to a particular result stop him. You have to respect that.

    1. The one obvious exception was Raich, where Scalia just lost it.

      1. And Hudson v. Michigan, which had some of the most laughable assumptions ever in a case.

        1. Scalia didn't "just lose it" in either opinion. You may disagree with his opinion, but his logic is constitutionally compelling, even if you ultimately find it unpersuasive.

          1. No, those rulings were outright insane. The logic was utterly broken so as to allow the government to do as it pleases, and there is no constitutional basis for either opinion whatsoever.

    2. Agreed. Scalia's resuscitation of the confrontation clause and his defense of the right to a jury trial were among the great victories for the accused in the last few decades.

      On the whole, I think Scalia was among the more tolerable because, even where his outcomes were anti-liberty, there was usually a textual basis for it in the Constitution; as in, he wasn't just making shit up, as is common among the justices. He sometimes did stray from the Constitution and its original meaning when he didn't like the result, of course. Raich comes to mind immediately, and some of the Fourth Amendment cases from the 1990's and early 2000's, as well.

      1. Nobody expects the New Professionalism

  4. Scalia was sometimes good, sometimes awful. In his dissent in the "Texas Homo" case, he argued on behalf of criminalizing, not just "unnatural" sex practices but also fornication and even masturbation. Sadly, we never got to see episodes of "Masturbation Police," nor can you be arrested for possession of masturbation paraphernalia or be subject to "no knock" raids, complete with flash grenades and other "shock and awe" tactics. But Nino would have been totally down with that.

    1. Sadly, we never got to see episodes of "Masturbation Police,

      1. It cut off my response!

        Anyway, if you want to see episodes of the masturbation police, I will link you to one of my cam shows. Let me know.

        1. It cut off my response!

          Is that your pet name for it?

          1. He might be able to Thai it back on.

          2. Never mind the name, I want to know if he's bothered to train it.

    2. he argued on behalf of criminalizing, not just "unnatural" sex practices but also fornication and even masturbation

      No, he argued that the constitution didn't prevent states from doing that. He made no normative argument about the desirability of states doing those things. Saying the constitution does not invalidate a bad law is not the same as supporting that law.

      1. Saying the constitution does not invalidate a bad law is not the same as supporting that law.

        A very important distinction that far too many people no longer make.

        1. A very important distinction that far too many people no longer make.

          You have to add a few more emojis, and maybe a reference to Tay-Tay.

      2. Sorry, but by including masturbation and fornication (and adultery) in a list of largely "unnatural" practices, he was implicitly equating them. Also, can anyone name a state that has made masturbation illegal? I think that Scalia came up with that one on his own. Note that Clarence Thomas said he thought the Texas law was "wrong" but not unconstitutional. Clearly, Scalia thought state laws banning homosexual conduct were both constitutional and "right". Also, if a state can ban a venial sin like masturbation, why not a deadly one like gluttony? More at my site here

        1. So because he categorized them as "unnatural" you consider that a normative argument for them? Sorry but you are an idiot. You just are. "Unnatural" is a term of art here. It applies to every sexual act not done for the purpose of procreation and between husband and wife. Historically, states have banned virtually every type of sex, outside of marital sex, at some point and time or another. Scalia's argument was that states were presumed to have the right to ban "unnatural" sex acts when the Constitution was passed and therefore retain that right today. That is not any kind of an argument for or against the laws. You just think it is because he categorizes your jerking off the Sherlock Holmes novels as "unnatural" and can't get your mind past that word.

      3. What John said.

        And if you want to argue that he wrong about that too, fine go ahead. But making him out to be the sex police here is at best inaccurate, and at worst dishonest.

    3. "In his dissent in the "Texas Homo" case, he argued on behalf of criminalizing, not just "unnatural" sex practices but also fornication and even masturbation. Sadly, we never got to see episodes of "Masturbation Police".

      Scalia also supported pregnant teenage girls bleeding to death from back alley, coat hanger abortions.

      I know this is true because the progressives say so.

      1. If you don't support the state paying for or outlawing something, you must either object to it or support it Ken. You have to remember that people like Veneman are totalitarians, thought Veneman is likely too stupid to understand his own views well enough to even realize it. Nothing is outside the state and your opinion of state action is the totality of your opinion on anything.

        1. Not forcing Catholic organizations to pay for your birth control = denying access!

          1. Im wonder why this same rationale does not apply to wine.

      2. And he wants poor people to die in the streets from lack of access to healthcare, just as they were in 2008 before God Barack H. Christ pulled Obamacare from the heavens and bestowed it upon us.

    4. he argued on behalf of criminalizing, not just "unnatural" sex practices but also fornication and even masturbation.

      I suspect what he really argued was that the federal government/Constitution could not prohibit states from passing such laws.

      Its the difference between "You can do that" and "You should do that".

    5. "he argued on behalf of criminalizing, not just "unnatural" sex practices but also fornication and even masturbation"

      So you just don't know how to read an opinion. You can his full opinion, including the context in which he mentions fornication and masturbation, to understand that he is talking about consistency in the law, rather than seeking preferred outcome independent of anything resembling constitutionality or stare decisis, selectively applying these things. Or you can continue to be a dishonest hack. Your choice.

  5. Scalia wasn't just good for criminal defendants, he was good for the people. He understood it was up to us (voters/legislators) to create valid laws and not fuzzy laws that can easily be abused leaving the Supreme Court to micromanage the details. Because then it becomes the Supreme Caliphate. Which of course many justices want, but he understood that this temptation must be resisted. The road to hell is paved with good intentions. Including the temptation of 'justice for victims!'

    1. he was good for the people

      Mixed bag at best. The Supreme Court ought to be in the business of foiling the majority's will, as expressed by their "elected" legislators.

      1. Exactly. If the enacted law was unconstitutional ('bad for the people') he invalidated it. E.g Sykes. You're making my point, so thank you. (It amazes me how the Constitution is still outsmarting people 250 years on.)

        1. Raich. Clearly unconstitutional, but he was happy to validate it.

          1. Right because pot heads are never wrong.

            1. If a pothead understands what "interstate commerce" is, he's ahead of a "scholar" who habitually read his own preferences into law.

              1. You see these GOP politicians struggling with the issue of legalized pot at the federal level. If they would just get their heads out of their asses, there is an easy answer to the dilemma of pot being legal in some states and illegal under federal law; you just enforce federal law to the extent it was supposed to be under the interstate commerce clause (that is before Wickard used it to rape the constitution). Pot remains illegal at the federal level to import or transport across state lines into or out of a state where it is illegal. Pot which does not cross state lines is not subject to federal jurisdiction and therefore it is not a conflict of laws when states choose to legalize it.

                It is not hard. Its amazing at how good the Constitution works if we interpret it as the framers intended. So many of these issues just go away.

                1. Pot which does not cross state lines is not subject to federal jurisdiction and therefore it is not a conflict of laws when states choose to legalize it.

                  IOW, the opposite of what Scalia said.

                  there is an easy answer to the dilemma of pot being legal in some states and illegal under federal law

                  The easy answer is, "The constitution does not grant the power to regulate intoxicants to the Federal government." That's why we had to have an amendment to prohibit alcohol.

                  1. I agree with you. And Scalia was wrong about that. I would still say that because the Congress has the power to regulate international trade, it has the power to ban importation of pretty much whatever it wants.

                    And we had to have a constitutional amendment for prohibition because they wanted to ban alcohol altogether. Even back then, everyone agreed that the Congress had the power to bad the transport of it across state lines. That is, however, not what the prohibitionists wanted. They wanted to ban it completely. And no the federal government didn't have the power to do that because it has no jurisdiction over intrastate commerce.

                    1. Scalia did accept the New Deal, as well as Wickard v. Filburn, which is why he ruled the way he did in Raich.

                    2. Yes he did SPQR. and he was wrong to do that.

                2. I think we need to also get away from the idea that the federal government can ban things from crossing state lines simply because it wants to.

                  If State X legalizes something, it's not the federal government's if they choose to allow shipments of it from state Y, where it's also legal. To say that goods cannot be shipped at all between two states essentially limits to them whatever they can produce entirely intrastate or is approved by the federal government. Add in a prohibition about people, money, communication, etc. crossing state lines and you essentially allow the government to isolate any or all states from all other states.

                  1. I disagree Brendan. The Constitution gives the feds the exclusive power to regulate interstate commerce. If it crosses state lines, the feds have exclusive jurisdiction over it if they choose to exercise it. I think saying that can't is just as bad as saying they can regulate anything in the name of interstate commerce. The clause doesn't mean what the post Wickard cases say it does, but it isn't a dead letter either.

    2. That is a good point. There are any number of examples of liberal justices putting their preferred policies in place. The worst that can be said about Scalia is that he left lousy laws in place. That of course is not always good or desirable. Even at its worst, however, it is better than a judge who enforces their own laws.

  6. Last year?four years after calling for an end to the overcriminalization madness?Scalia prevailed. He wrote the majority opinion striking down the vague criminal law that aroused his ire in Sykes. The Due Process Clause, he wrote for the Court, prohibits the government from "taking away someone's life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement."

    Alito dissented. Why couldn't he have died instead?

    1. Crocodile tears.

    2. The Due Process Clause, he wrote for the Court, prohibits the government from "taking away someone's life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.

      If only the Internal Revenue Code were next...

  7. Here is the other question, other than Sotomayor, who has shown some independence on 4th Amendment issues, what liberal justice has a legacy as complex and varied as Scalia? Whatever you think of Scalia, you can't call him a hack. You may think he was wrong about some or even most things but the complexity of his judicial legacy prevent you from calling him a hack. This stands in stark contrast to the three liberal justices outside of Sotomayor who can be counted on to always vote for whatever the "liberal" side is seen to be. If there is a worse and more unthinking hack ever put on the Supreme Court than Kagen, the answer doesn't come to mind.

      1. I have met a lot of people who do. I frankly have no idea why. I know several people who attended Harvard while she was dean and they all consider her not just a hack but a really lousy person.

        If Scalia had a real blind spot it was that he was an insufferable elitist. And Kegan being a former dean at Harvard, no doubt appealed to his elitism. Regardless, she is still a mindless hack of a justice.

        1. I met her a few years back. She's witty and charismatic in a way that you don't really get from her opinions or transcripts of oral arguments. Maybe that's a change from how she was at Harvard, but that was my impression of her.

          That doesn't make her any less of a hack jurist, of course.

          1. My two friends that were there were both veterans and were there when the issue of letting JAG recruiters on campus arose. They tell me she wasn't so charming then. Clearly, she is charming or she wouldn't have made it to Dean. That is a political job if there ever was one.

            1. Uber liberal political people are often mean to military members, especially because of the draft era, where the "smart, elite people" went to college and escaped the draft, and the "dumb hicks" went into the military. That attitude hasn't left people like her.

    1. Well, Breyer is reliably inventive in his utilitarian approach to Constitutional law.

    2. If there is a worse and more unthinking hack ever put on the Supreme Court than Kagen, the answer doesn't come to mind.

      Ginsburg. They are both hacks, but Kagan, at least, is charming in person.

      The thing about Scalia's legacy, in my view, is that it goes far beyond the body of cases he left behind. He and a few of his contemporaries completely changed the terms of the debate from the chaos of the 1960's and 1970's activist courts to a more rigorous focus on the meaning of the words of the Constitution and statutes as written and passed. An entire generation of attorneys has been raised in that mindset, and even those who reject that approach know that, for their case to have any legitimacy, they must grapple with those issues head-on now. This was all but unheard of just a few decades ago.

      1. I read a while back that had Earl Warren and Abe Fortes not retired and replaced by Nixon appointees, the Warren court planed to go full socialist and declare a right to a minimum income, education and every other Prog goody. Even without the Warren Court, courts took over and ran entire school districts in the 70s, and unilaterally raised taxes and forced students to be bused away from their homes. People forget how bad things were getting and how much worse they could have been had the Court continued on the same path it was on in the 1960s.

        1. Bussing was for the purpose of assigning students to schools on the basis of their race- the diametric opposite of Brown v. Board of Education, 347 U.S. 483 (1954)

          1. Yeah, funny that. You start out with a case that involves a girl wanting to go to her neighborhood school and you end up with forcing millions of kids to be bused to schools well away from their homes.

            Brown is a perfect example of the perils of reaching the right result for the wrong reasons. Instead of following Justice's Harlan's dissent in Plessey, the Warren court in essence affirmed the reasoning of Plessey but overruled it based on a bunch of bullshit pseudo science about the effect of segregated education. The majority in Brown didn't reject segregation in principle. It said that in practice, separate could never be equal and thus government forced segregation had to end.

            That is different than the Harlan dissent in Plessey. Harlan said it didn't matter that it was equal or even better for the plaintiff. The only thing that mattered was the principle that the government had no right to deny someone access to something based on their race. That is different and much better and more pro liberty than what the court in Brown did, which was essentially say that segregation is only bad if the results are bad.

            1. It's the same thing with Obergfell, where the right conclusion was reached, but for the entirely wrong reasons. People have a right to associate with whoever they want, without the state getting involved or giving bonuses for certain types of associations.

  8. The government and law enforcement are always trying to criminalize everything and make bad laws that leave it to their discretion to prosecute. Scalia understood this dynamic (as did the founding fathers of course). People deny that anyone could be so evil and calculating to trap people with bad laws but it is still happening today (e.g. 'sex trafficking' which is basically whatever they say it is). So given the choice he felt it was better for us to live with bad but clearly defined laws than fuzzy laws which can be abused and exploited. I agree with this. Because if a law really is bad you can fight it, as long as you have strong First Amendment protections, which he also defended. It's a little scary now, to be honest, because even the Republicans don't understand this. They are more likely to sympathize with law enforcement.

    1. Scalia wasn't above playing dumb in order to get his way. His bafflement at the idea that police dogs are used to create probable cause is a prime example. Scalia wasn't stupid. He certainly understood that the state is willing to do things ti citizens that are not allowed. The IR scanners for example. Using false alerts to circumvent the rights of citizens is just as illegal as using the edges of the light spectrum to peer into someone's home. Somehow, Scalia didn't see that. Not believable. He was fine with fucking us, as long as it was the kind of fucking he liked. Fuck him.

      I don't know what his major malfunction was, but he was certainly an arrogant prick with the same personality disorders that plague our political class.

      1. I agree. It is not that he didn't think cops were capable of abusing the system. He wasn't stupid. It was that he was more afraid of the harms associated with judges having the power to constantly second guess cops than he was of cops abusing the system. I disagree with him about that. I think he lived a bit of a sheltered life and was naive. It was not however an unreasonable position. It was just wrong in my opinion.

        1. Judges, prosecutors and cops[gypsies, tramps and thieves] are about the only people who we aren't allowed to second guess. It's fine for LE to peer, at length, into everyone else's business. It's 3 felonies a day for us, if they want it. Sovereign immunity for them, no matter what we want.

          I bet Scalia was especially proud of his sovereign immunity.

          1. Scalia's blind spot was his elitism. He really believed in the best and the brightest fallacy. He had a lot of virtues as a judge but that was his one big flaw.

    2. Don't forget the crime of "money laundering"! And, if you're a financial institution, the crime of not properly reporting something that could be "money laundering".

  9. One of my coworkers just wondered out loud if BB Ghali was a US presidential candidate. Yes, she has a PhD.

  10. Even with rulings from SCOTUS frowning on the practice, we have no idea how much these fuzzy laws are corrupting our constitutional protections because they are rarely challenged.

    Alleged violations of fuzzy laws can be tacked on to indictments that have the potential to add many years if not decades if convicted on them (since they're fuzzy, convictions are likely). Defendants have little incentive to challenge the fuzzy laws -- especially if they're alleged alongside violations of not-so-fuzzy laws -- because a failed challenge can mean decades in prison and are forced into plea agreements they otherwise would not make. Prosecutors get a "conviction" feather in their hat without ever having to make a case before a jury.

  11. just before I saw the bank draft that said $7985 , I have faith friend woz trully making money in there spare time at there computar. . there uncle haz done this 4 only twenty months and just now repaid the mortgage on there mini mansion and bought a brand new Dodge . learn the facts here now......

  12. And apparently Mr. Ring thinks that Hudson v. Michigan and Florida v. Harris were fantastic for criminal defendants. The latter included that hilarious exchange during oral arguments where Scalia just could not fathom any possible reason why the police would want a drug sniffing dog that gets a lot of false positives. The very thought seemed ridiculous to him.

  13. til I saw the receipt that said $6460 , I did not believe mother in law woz like they say actualy earning money in their spare time from their computer. . there aunt started doing this for under thirteen months and recently cleard the depts on there mini mansion and bourt a great Aston Martin DB5 . go to this website...

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