With Scalia’s Passing, Criminal Suspects Lost an Unexpected Ally

Criminal suspects recently lost an unexpected ally. Heralded as one of the most outspoken conservative jurists and legal scholars in history, Supreme Court Justice Antonin Scalia was also known to side with the court’s liberal bloc on a number of legal issues expanding the rights of criminal suspects. Scalia’s profound skepticism about the powers of government, along with his fervent advocacy of what he perceived as the original intentions of the constitution’s founders, created a perfect storm to occasionally count his vote in a way that favored criminal defendants.


Scalia’s distrust of government was most visible in the landmark Fourth Amendment search-and-seizure decision he authored in 2001: Kyllo v. U.S. In Kyllo, federal law enforcement agents believed an Oregon man was growing quantities of marijuana in his home. The agent obtained a thermal imaging device that allowed him to determine unusual heat levels in the building. Commanding a narrow 5-4 majority, Scalia wrote a decision that eliminated the critical thermal imaging evidence, finding that the search did not meet constitutional standards. The search could not meet the rule that mandates judges review search warrants before allowing an invasion of privacy into the sanctity of the home.

The justice said the Fourth Amendment’s time-honored protections needed to adapt to new technology: “It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology,” Scalia wrote.

In 2004, Justice Scalia authored two more groundbreaking important opinions vindicating criminal defendants’ rights. Crawford v. Washington interpreted the Sixth Amendment’s confrontation clause to exclude reliable testimonial hearsay unless the defendant had been able to cross-examine the evidence. In Blakely v. Washington, he required juries and not judges find, beyond a reasonable doubt, all facts that trigger sentences above ordinary sentencing-guidelines ranges.

As with many other justices, it’s hard to pigeonhole Scalia’s criminal law and procedure beliefs as either pro prosecution or pro defense, liberal or conservative. He was a vocal critic of parts of the “criminal procedure revolution” of the 1960s that expanded the rights of criminal defendants such as Miranda v. Arizona (restricting coerced confessions), which he called a “milestone of judicial overreaching,” and Gideon v. Wainwright (the indigent right to counsel) and was of the belief that capital punishment was constitutional. Yet, Scalia mounted a long-term battle against criminal laws he felt were unconstitutionally vague. For example, his efforts to have the Armed Career Criminal Act struck down was ultimately successful in 2015, and he often weighed in against other criminal laws he felt were so vague as not to give citizens adequate notice of what conduct was illegal. He authored the landmark decision that struck down a St. Paul hate crime ban as conflicting with the First Amendment’s protection of freedom of expression.

It’s fair to say Antonin Scalia will be better remembered for his decisions on the second amendment and an individual right to bear arms, in support of religious expression, his positions on cultural issues such as abortion, race, gender and sexual orientation. He will be remembered for his scholarship, the colorful language of his prose and the often-scathing tone in a history of 30 years of dissents. Scalia’s conservatism was not monolithic, and his insistence on keeping the probing nose of the police and government out of your business, of your home as your castle, and his devotion to a fair criminal trial, too, will punctuate his legacy.


Justice Scalia: “The Fourth Amendment Must Prevail”

Can a person arrested–but not convicted–for a crime be made to give up a DNA sample which will be used to see if they have committed an unsolved crime? Yes said the United States Supreme Court last week, by a narrow 5-4 decision.

In a week that revealed unprecedented attacks on American privacy, the Supreme Court leaped on top of the pile. It  held (Maryland v. King) that a Maryland law that allows bucal swabbing upon arrest is essential for identification of those arrested, and may be compared with samples left at the scene of unsolved crimes, regardless if the person was never suspected of the unsolved crime.

Justice Antonin Scalia
Justice Antonin Scalia

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