In Criminal Justice Cases, Justice Scalia Didn't Fit Neatly Into Any Category

WASHINGTON - MAY 20:  U.S. Supreme Court Associate Justice Antonin Scalia testifies before the House Judiciary Committee's Co
WASHINGTON - MAY 20: U.S. Supreme Court Associate Justice Antonin Scalia testifies before the House Judiciary Committee's Commercial and Administrative Law Subcommittee on Capitol Hill May 20, 2010 in Washington, DC. Scalia and fellow Associate Justice Stephen Breyer testified to the subcommittee about the Administrative Conference of the United States. (Photo by Chip Somodevilla/Getty Images)

The recent passing of Supreme Court Justice Antonin Scalia has prompted a vigorous debate over the type of justice who should be nominated to replace him. As is typical in these debates, the discussion tends to focus on the differences between "conservative" and "liberal" justices. But that distinction can be misleading, as it often obscures key aspects of an individual justice's judicial philosophy. Scalia himself illustrated this point, particularly with respect to his opinions on criminal justice topics.

Criminal justice has historically been one of the key fault lines between "conservative" and "liberal" justices. The former are generally associated with tough-on-crime, pro-prosecution opinions, and the latter are generally thought of as favoring defendants. Some of Richard Nixon's famous law-and-order campaigning, for example, focused on his promises to nominate Supreme Court justices who would reverse the wave of pro-defense rulings from the Warren Court.

Scalia, to many, was the prototypical "conservative" justice. This would seem to suggest that he'd be consistently pro-prosecution in his jurisprudence. In fact, his record was much more complex; he frequently authored or joined significant opinions in favor of criminal defendants.

Scalia certainly wasn't uniformly pro-defense, and he ruled in favor of the government in a number of controversial criminal justice cases. On the whole, Scalia's record in criminal justice cases was consistent with his avowed philosophies of "textualism" and "originalism"--broadly speaking, his belief that constitutional or statutory text, interpreted according to how its authors likely understood it at the time it was drafted, should govern how cases are decided.

Scalia was often criticized for deviating from this professed philosophy in certain cases; for example, many had a hard time reconciling the Bush v. Gore opinion, which he joined, with textualist principles. But in the criminal justice field, his application of his stated philosophy was remarkably consistent.

Scalia was generally unreceptive to arguments that he didn't view as being rooted in identifiable constitutional or statutory text. He consistently rejected, for example, the argument that the Eighth Amendment's bar on cruel and unusual punishments forbade capital punishment.

On the other hand, when considering rights that he did view as being textually rooted, Scalia tended to enforce those rights rigorously--more so than some of his more "liberal" colleagues.

One topic on which he was particularly strident was the Sixth Amendment's "Confrontation Clause," which mandates that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." To Scalia, this meant what it said--subject to a small number of historically recognized exceptions, if a person provided information that was being used against a defendant in a criminal prosecution, that person had to show up personally in court so the defendant's lawyer could "confront" him through cross-examination.

Over the years, prosecutors and legislatures have often attempted to circumvent this right when they believed it was outweighed by more important considerations. For example, in one case the Supreme Court upheld a state statute allowing child abuse victims to testify by closed circuit television if doing so was necessary to avoid serious emotional distress. Scalia disagreed, writing that however salutary the goals underlying that statute, the Court wasn't free to disregard the Sixth Amendment's guarantee. As he saw it, "[f]or good or bad, the Sixth Amendment requires confrontation"--which he understood to mean face-to-face confrontation--"and we are not at liberty to ignore it."

In that case Scalia was in dissent--joined, interestingly, by Justices Brennan and Marshall, considered two of the Court's most stalwart "liberals." Fourteen years later, though, he authored the Court's opinion in Crawford v. Washington, which dramatically reshaped Confrontation Clause law in favor of defendants. (Crawford was a unanimous decision, but that unanimity hasn't lasted; in recent years, Justice Alito and others have repeatedly grumbled about it and attempted to cut back on its scope--efforts that did not escape Scalia's notice.)

Scalia also took an unusually strong pro-defense line regarding certain aspects of the Fifth Amendment's self-incrimination clause, which provides that no person "shall be compelled in any criminal case to be a witness against himself." Historically, the law has drawn a key distinction in this area. Although a defendant can't be forced to make actual statements that could incriminate him, it's generally been considered permissible to force him to turn over pre-existing documents--for example, a journal in which he made incriminating confessions--on the theory that the government didn't "compel" him to make the statements at issue.

In the Web Hubbell case, arising out of the Whitewater investigation, the Court partially cut back on the government's power in this area, holding that a defendant can't be compelled to produce materials if the "act of producing" those materials could itself incriminate him--by, for example, constituting an admission of the materials' existence or his custody of them. Scalia may have been willing to go further--he joined Justice Thomas's concurring opinion suggesting that the Fifth Amendment might protect a defendant from being required to produce any incriminating evidence at all.

Scalia was also willing to consider the Constitution's overall structure, including its division of responsibilities between the various branches of government, in deciding criminal justice issues. Perhaps his most famous dissent was in Morrison v. Olson, a 1988 case in which he warned of the dangers of the then-existing independent-counsel law--a warning which many recalled during Kenneth Starr's later investigation of Bill Clinton.

Those who disagree with Scalia's overall judicial philosophy might argue that his criminal justice philosophy was selectively applied, with emphasis on those rights that tend to protect the powerful and privileged. That may well be true of some of his opinions; most garden-variety defendants, for example, don't have to worry about special prosecutors, and issues involving incriminating documents often arise in cases with well-heeled, white-collar defendants.

But I don't think that would be a fair reading of Scalia's overall criminal-justice record. Many of his opinions tend to support the very defendants for whom progressives and other reformers express the most concern. His Confrontation Clause intransigence, for example, extended to government attempts to introduce lab technicians' analyses' via written reports in run-of-the-mill drug cases. And in one of his last major opinions, he wrote for the Court in striking down a controversial provision of the federal Armed Career Criminal Act, which had for years been used to dramatically increase sentences for drug dealers and violent offenders.

It's not my purpose here to opine on whether Scalia was a good or bad justice, or on what qualities we should look for in his replacement. But it's worth noting that this justice, to many the very picture of judicial conservatism, had a record in this area that was difficult to fit into our typical categories.