Justice Scalia -- Conservative Icon?

The Constitution of the United States of America on a wooden desk
The Constitution of the United States of America on a wooden desk

It has been less than a week since Supreme Court Justice Antonin Scalia died, and the GOP is in full glorification mode. Donald Trump tweeted that the loss of Scalia "is a massive setback for the conservative movement." Ohio Governor John Kasich called Scalia, "an essential, principled force for conservative thought." Senate Majority Leader Mitch McConnell and Senators Ted Cruz and Marco Rubio have taken the position that President Obama can't be trusted to replace Scalia and that it should be up to the next president to name his replacement.

But was Scalia really the conservative icon he's being made out to be?

Sure, Justice Scalia's record on issues like marriage equality, affirmative action, and abortion are in lockstep with right-wing conservatives. Scalia invoked mismatch theory in oral argument this past December, asking whether it might be better for black students to go to "a slower-track school where they do well" than attend a highly selective college. And he dissented in the Court's decisions banning execution of the "mentally retarded" and execution of anyone under the age of 18. In 2009, Scalia went so far as to argue that the Constitution did not prohibit putting to death someone who was factually innocent as long as they had a "full and fair trial."

But Senator McConnell mustn't forget that Scalia was actually instrumental in increasing the rights of criminal defendants under the 4th and 6th Amendments. Before United States v Jones (2012), the Supreme Court used only a notoriously ambiguous privacy test for determining whether government action constituted a search under the Fourth Amendment. It was Scalia who resurrected the trespass test, writing that where "(t)he Government physically occupie(s) private property for the purpose of obtaining information" it is a search. One year later, Justice Scalia penned the majority opinion in Florida v Jardines, which relied on the trespass test to hold that without a warrant, the police were forbidden from using a dog to sniff at the front door of a house where they suspected marijuana was being grown. The Court came to this decision despite briefs on behalf of a number of states (mostly republican) urging it to come out the other way.

Indeed, it was Scalia who helped turn the 6th Amendment into a lightsaber for criminal defendants everywhere. Before Scalia's majority opinion in Crawford v Texas (2004), courts routinely allowed the introduction of victim statements against the accused without the victim actually being present in court and subject to cross examination. For a former public defender like myself, that meant that as long as a judge deemed the statement reliable, it was admitted. In a decision that would dramatically impede the prosecution's ability to secure convictions and lock people away, Scalia condemned this practice. "Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross examination."

Finally, in Apprendi v New Jersey (2000), Scalia joined a decision authored by the liberal justice John Paul Stevens, which put serious bite into a defendant's due process rights. The Court ruled that it violated the Due Process Clause of the Fourteenth Amendment for a judge to increase a defendant's sentence based on facts never pleaded or found by a jury. In 2004, Scalia wrote the majority opinion in Blakeley v Washington, which struck down Washington's sentencing scheme for empowering judges to give defendants custodial terms stretching beyond the sentence associated with the jury's finding. This led directly to United States v Booker (2005), which invalidated part of the federal sentencing guidelines -- clearly a blow to law and order conservatives like Cruz and Rubio. The rationale behind Apprendi also led the Court to overturn the death penalty regimes of Arizona and Florida for putting too much power in the hands of judges -- decisions that Scalia joined.

It's easy to celebrate (or vilify) Scalia's originalism because it allowed him to interpret the Constitution in a way that resonated with his conservative values. Yet this same jurisprudence underlay decisions dramatically increasing the rights of the accused, even in areas near and dear to Scalia's heart like the death penalty. Supreme Court justices are complicated, and we shouldn't be looking to clone a replacement (especially one that misses critical nuance.) Besides, if conservatives really want to honor Scalia, they should follow the demands of the Constitution and allow President Obama to appoint his successor.