On the Anniversary of His Death: Justice Scalia and the Criminal Law

Tomorrow marks the first anniversary of Justice Antonin Scalia’s death. In the way of flashbulb memories, I suspect I’ll remember the moment I learned of his passing as vividly in fifty years as I recall it now.

In the days after Justice Scalia’s death, I surveyed a number of defense attorneys for their reflections on the man. The response was uniformly negative. One told me he was “elated” by the news. Others soberly assessed his legacy: he was no friend to their side. “What about all his defendant-friendly decisions?” I asked. To which I received some quizzical looks. “Crawford? Jones?” Some gave an inch; though Scalia was a rotten apple, he had a few edible bites to him.

If I’d probed for the root of these unfavorable takes, I surmise I might have found Scalia’s acerbic dissents on hot-button topics like gay rights as much to blame as any opinions of his that disadvantaged criminal defendants. Still, the defense attorneys I questioned had a point: Scalia was not a friend of the accused in the same way and to the same extent as Justice Thurgood Marshall. This, it seemed, overshadowed my counterpoint—that Scalia frequently favored the rights of criminal defendants over the law enforcement interests of governments and even pioneered areas of constitutional law that benefitted the accused.

Of course, to analyze Scalia’s criminal law jurisprudence through the binary of pro-defendant/pro-government is to embark on a pointless quest. Scalia was committed above all to interpreting the Constitution as it was understood at the time of its drafting and ratification. That method of interpretation routinely placed him on both sides of disputes between criminal defendants and the sovereigns prosecuting them.

Scalia’s influence on our criminal law was profound. However, as Professor Rachel Barkow (NYU) noted in a tribute to her former boss, his contribution in this area “does not always receive the attention it deserves.” To help shine some more light on Scalia’s criminal law jurisprudence I’m planning a series of posts, which will be organized by Amendment (4th, 5th, 6th, and 8th, though not in that order). Check back soon for the first entry in the series, highlighting Scalia’s transformative influence on the right to trial by jury and confrontation.

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