Scalia’s Criminal Law Legacy: Fourth Amendment Edition

I just hate Fourth Amendment cases. I think those things–it’s almost a jury question, you know–whether this variation is an unreasonable search and seizure; variation 3,542. Yes, I’ll write the opinion, but I don’t consider it a plum.

So said Justice Scalia, of his distaste for search and seizure cases. It’s a striking statement when you consider the extent of Scalia’s influence on Fourth Amendment doctrine. “When it comes to search and seizure, it is now Scalia’s Court,” Professor Thomas Clancy (University of Mississippi) declared in a 2010 paper on the Fourth Amendment in the Roberts era. Search and seizure cases have also inspired some of Scalia’s sharpest prose. New Republic contributor Jeffrey Rosen adjudged Scalia’s dissent in the Fourth Amendment case Maryland v. King the Justice’s “smartest, wittiest ruling of all time” and “one of the best Fourth Amendment dissents ever.”

Katz v. Text and History

A good starting point for a study of Scalia’s search and seizure jurisprudence is Minnesota v. Carter, 525 U.S. 83 (1998). Three decades earlier Katz v. United States, 389 U.S. 347 (1967), birthed modern Fourth Amendment doctrine. Under Justice Harlan’s two-part test in Katz, the Fourth Amendment’s protections against unreasonable searches and seizures apply when the government invades a person’s “actual (subjective) expectation of privacy” and such “expectation [is] one that society is prepared to recognize as ‘reasonable.’ ” Scalia joined the Court’s opinion in Carter, applying Katz to hold that the defendants, who had been visiting another person’s apartment for a short time to package cocaine, didn’t have a legitimate expectation of privacy in the apartment. He wrote separately to explain how the Court had strayed from the Fourth Amendment’s text and historical context in the generation since Katz. The Carter Court, like the dissenting Justices, relied on Katz—i.e., by deciding whether defendants had a legitimate expectation of privacy in the apartment. Scalia believed that a straightforward application of the amendment’s language led to the same result:

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures … .” [T]he phrase “their … houses” in this provision is, in isolation, ambiguous. It could mean “their respective houses,” so that the protection extends to each person only in his own house. But it could also mean “their respective and each other’s houses,” so that each person would be protected even when visiting the house of someone else. [H]owever, it is not linguistically possible to give the provision the latter, expansive interpretation with respect to “houses” without giving it the same interpretation with respect to the nouns that are parallel to “houses”—“persons, … papers, and effects”—which would give me a constitutional right not to have your person unreasonably searched. This is so absurd that it has to my knowledge never been contemplated. The obvious meaning of the provision is that each person has the right to be secure against unreasonable searches and seizures in his own person, house, papers, and effects.

A review of “founding-era materials” confirmed for Scalia that the Framers understood the Fourth Amendment this way. In his view, an analysis grounded in text and history was preferable to the “fuzzy” and “self-indulgent” Katz test, which lacks a “plausible foundation in the text of the Fourth Amendment.” That “notoriously unhelpful” standard provides judges with no external guidance; and when judges lack external guidance they turn within for the answers: “[U]nsurprisingly, those ‘actual (subjective) expectation[s] of privacy’ ‘that society is prepared to recognize as reasonable,’ bear an uncanny resemblance to those expectations of privacy that this Court considers reasonable.” (Justice Scalia had a similar problem with the Eighth Amendment’s “evolving standards of decency” test—“it is all too easy to believe that evolution has culminated in one’s own views.”)

Katz Plus

Arguably the most significant change to Fourth Amendment doctrine since Katz came in United States v. Jones, 565 U.S. 400 (2012). All nine Justices agreed in Jones that a “search” occurred when the government attached a GPS device to the defendant’s vehicle and used the device to monitor its movements. For a five-justice majority, Justice Scalia relied on the doctrine of common-law trespass, not on the Katz test. Because the government physically intruded upon private property, a search occurred, regardless of whether the owner of the vehicle had a reasonable expectation of privacy in its undercarriage. Scalia explained:

Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, we must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” [F]or most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (“persons, houses, papers, and effects”) it enumerates. Katz did not repudiate that understanding.

In effect, Jones reframed the Katz test as a supplement to, not a substitute for, the common-law trespassory test. As Fourth Amendment scholar Orin Kerr (George Washington University) explained, Justice Scalia’s opinion in Jones caused a stir: “A lot of people had to rewrite treatises and casebooks and commercial outlines because everybody had understood the Katz test to be the only test in town. Not so after Jones.”

Broad on the Right

To limit this post to a digestible length, I’ve been forced to cut a number of opinions that must be studied to comprehend the scope of Scalia’s thinking and influence on Fourth Amendment doctrine. To the chopping block: (1) Scalia’s lone call in Arizona v. Gant, 556 U.S. 332 (2009) to rid the law of New York v. Belton, 453 U.S. 454 (1981), and Thornton v. United States, 541 U.S. 615 (2004), which give police broad search authority when they arrest a suspect during a traffic stop; (2) His skepticism of stop-and-frisk in Minnesota v. Dickerson, 508 U.S. 366 (1993); (3) His dissent in Prado Navarette v. California, 134 S. Ct. 1683 (2014), where he called the Court’s ruling—that an anonymous report of a single instance of careless driving rose to reasonable suspicion for a stop—a “freedom-destroying cocktail”; and (4) his privacy-favoring majority opinions in Kyllo v. United States, 533 U.S. 27 (2001) (re: thermal imaging) and Florida v. Jardines, 133 S. Ct. 1409 (2013) (re: dog sniffs).

From this plethora I’ll highlight Scalia’s tour de force dissent in Maryland v. King, 133 S. Ct. 1958 (2013). The Court held that using an oral swab to obtain a DNA sample from an arrestee did not violate the Fourth Amendment, even where there were no grounds to suspect the sample would link the arrestee to a crime. The intrusion was justified, the Court said, because DNA allowed the justice system to establish the defendant’s identity. In response, Scalia issued a heated, “let the Court be anathema” dissent:

The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.

It is obvious that no such noninvestigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous.

As Jeffrey Rosen wrote at New Republic, “With rigor and wit, Scalia meticulously demolishes [the Court’s] made-up claim.” Scalia’s wit was also on display at oral argument, after counsel for Maryland began her address by stating, “Since 2009, when Maryland began to collect DNA samples from arrestees charged with violent crimes and burglary, there have been 225 matches, 75 prosecutions and 42 convictions, including that of Respondent King.” Scalia shot back: “Well, that’s really good. I’ll bet you if you conducted a lot of unreasonable searches and seizures, you’d get more convictions, too.” (Which triggered the sort of laughter that made Scalia the Court’s funniest justice.)

Scalia recognized the benefits of DNA science, but didn’t believe those benefits justified the Court’s position: “Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail.”

He concluded:

Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. 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.

I therefore dissent, and hope that today’s incursion upon the Fourth Amendment, like an earlier one, will some day be repudiated.

To which he appended this footnote:

Compare, New York v. Belton, 453 U. S. 454 (1981) (suspicionless search of a car permitted upon arrest of the driver), with Arizona v. Gant, 556 U. S. 332 (2009) (on second thought, no).

Narrow on the Remedy

While Scalia frequently interpreted the Fourth Amendment in ways that protected privacy and limited the government’s investigatory powers, he had a narrow conception of the exclusionary rule, which generally operates to exclude the government’s illegally-seized evidence of the defendant’s guilt from a trial. As Professor Kerr wrote:

Scalia was a strong opponent of the Fourth Amendment exclusionary rule. When the Court heard a case about its scope, Scalia’s vote was easy to predict. Scalia took the government’s side every time. His votes made him part of a conservative majority that consistently chipped away at the exclusionary rule over Scalia’s thirty years on the Court.

Scalia’s opinion in Hudson v. Michigan, 547 U.S. 586 (2006), emphasized the limits of the exclusionary rule. Because of the rule’s “substantial social costs”—to quote Justice Cardozo on the subject, “The criminal is to go free because the constable has blundered”—Scalia reasoned that the rule is a “last resort, not our first impulse” and should not be applied unless its benefit of deterring police misconduct outweigh its substantial social costs.

About the Constitution, Not Political Ideology

Of final note is that Justice Scalia’s Fourth Amendment jurisprudence, like his views on the Sixth Amendment, proves he was no ideologue. (The same can said of his colleagues, too; judges are less political and ideological than some would have us think.) In Prado Navarette and King, for instance, each of his dissents were joined by the same three justices, all of whom are considerably more liberal than Scalia (Ginsburg, Sotomayor, and Kagan). In Gant, Scalia joined Stevens’ opinion for the Court, along with Justices Souter, Thomas, and Ginsburg—to make a diverse group of three liberals and two conservatives. Similarly diverse was Scalia’s Kyllo majority, with Souter, Thomas, Ginsburg, and Breyer—a slightly different set of three liberals and two conservatives.


Scalia won and lost many of his Fourth Amendment battles by a one-vote margin. Whether his impact on the Fourth Amendment perseveres—or even grows posthumously—may depend on Judge Neil Gorsuch. As Professor Lawrence Rosenthal (Chapman University) wrote about the future of search and seizure law in the post-Scalia era, “Fourth Amendment jurisprudence is at a crossroads. If Justice Scalia’s replacement adheres to originalism, a narrow majority may continue along that path . . . . A replacement sympathetic to Justice Brandeis’s pragmatism, however, would follow a far different course.”

Scalia’s Criminal Law Legacy: The Batson Edition

If you’re a litigator, or have sat on a jury panel, you know that jury selection is really a process of deselection. Attorneys for each side challenge members of the venire to effect their removal. The remainder comprises the jury and any alternates. Our legal system recognizes two forms of challenges attorneys may raise to boot prospective jurors from the panel. The first, the for-cause challenge, is a request to dismiss a prospective juror because he or she is disqualified from service. Disqualification usually arises because the venireperson has a demonstrable bias in favor or against one of the parties. For-cause challenges are not automatic; the judge must find that the potential juror is legally disqualified from service. The other is the peremptory challenge. Each party to a trial has a limited number of peremptory strikes it can use to remove prospective jurors without having to state its reasons, without regard to jurors’ legal qualification to serve, and without having to suffer objections from the opposing party (for the most part—see below).

Five months before Scalia took his seat as an Associate Justice, the Supreme Court decided Batson v. Kentucky, 476 U.S. 79 (1986), which held that a prosecutor violates the Equal Protection Clause by using a peremptory challenge to exclude a juror solely because that juror shares the racial identity of the defendant. Justice Thurgood Marshall hailed the 7-2 decision as “a historic step toward eliminating the shameful practice of racial discrimination in the selection of juries.” Over the next decade, Justice Scalia led a tiny battalion intent on halting Batson’s encroachment into peremptory challenge territory. In three major cases that extended Batson’s protections, Scalia found himself on the losing side.

White defendants can challenge exclusion of a black venireperson: Powers v. Ohio, 499 U.S. 400 (1991)

Under the doctrine of stare decisis, judges generally adhere to precedent. Stare decisis is not an “inexorable command,” however—the Constitution Annotated’s list of “Supreme Court Decisions Overruled by Subsequent Decision” is 236 rulings long. When a judge concludes that a precedent is erroneous, the judge must choose to overrule the decision or follow stare decisis. In making that choice, judges consider, among other factors, how much time has passed since the precedent was handed down. The longer a precedent has survived, the more weight is given stare decisis. Today, three decades later, Batson is a fixture, probably beyond reproach. Not in 1991. Five years after Batson was decided, Scalia, joined by Justice Rehnquist (who had been among the Batson dissenters) challenged its foundations.

Scalia began his dissent in Powers by affirming that all citizens have an equal protection right not to be excluded from jury rolls on the basis of race or other irrelevant factors. “This principle,” he continued,

would also prohibit the systematic exclusion of a particular race or occupation from all jury service through peremptory challenges. When a particular group has been singled out in this fashion, its members have been treated differently, and have suffered the deprivation of a right and responsibility of citizenship. But when that group, like all others, has been made subject to peremptory challenge on the basis of its group characteristic, its members have been treated not differently but the same. In fact, it would constitute discrimination to exempt them from the peremptory-strike exposure to which all others are subject.

In Scalia’s view, the equal protection clause is implicated when peremptory strikes are employed systematically to exclude all members of a group from jury service, but not when the racially-discriminatory use of peremptories falls shy of systematic exclusion. Scalia acknowledged that his interpretation of equal protection principles would allow the government to strike a black juror solely because of his race, but

the stricken juror has not been “treated differently” in the only pertinent sense-that is, in the sense of being deprived of any benefit or subjected to any slight or obloquy. The strike does not deprecate his group, and thereby “stigmatize” his own personality. Unlike the categorical exclusion of a group from jury service, which implies that all its members are incompetent or untrustworthy, a peremptory strike on the basis of group membership implies nothing more than the undeniable reality (upon which the peremptory strike system is largely based) that all groups tend to have particular sympathies and hostilities-most notably, sympathies towards their own group members. Since that reality is acknowledged as to all groups, and forms the basis for peremptory strikes as to all of them, there is no implied criticism or dishonor to a strike. Nor is the juror who is struck because of his group membership deprived of any benefit. It is obvious . . . that a defendant belonging to an identifiable group is benefited by having members of that group on his jury, but it is impossible to understand how a juror is benefited by sitting in judgment of a member of his own group, rather than of another.

The result of Batson was the abolition of the traditional, unfettered peremptory challenge, which Scalia felt was deserving of preservation:

“[I]rrelevant” personal characteristics are by definition the basis for using [peremptory challenges]; relevant characteristics would produce recusal for cause. . . . [T]he irrelevant characteristics relied upon are frequently those that would promptly trigger invalidation in other contexts-not only race, but religion, sex, age, political views, economic status. Not only is it implausible that such a permanent and universal feature of our jury-trial system is unconstitutional, but it is unlikely that its elimination would be desirable. The peremptory challenge system has endured so long because it has unquestionable advantages. . . . [I]t is a means of winnowing out possible (though not demonstrable) sympathies and antagonisms on both sides, to the end that the jury will be the fairest possible. In a criminal-law system in which a single biased juror can prevent a deserved conviction or a deserved acquittal, the importance of this device should not be minimized.

The theme running through Scalia’s dissent in Powers is that the Court’s approach is nakedly results-driven. To reach its end, Scalia argued, the Court (1) ignored “a vast body of clear statement” that defendants could not challenge the exclusion of a juror of another race; (2) invented a right that jurors have an equal protection interest not to be excluded from a jury because of their race (Batson, Scalia explained, “announced an equal protection right, not of prospective jurors to be seated without regard to their race, but of defendants not to be tried by juries from which members of their race have been intentionally excluded.”); and (3) relaxed the strictures of the third-party standing doctrine to allow a criminal defendant to challenge the violation of another person’s constitutional rights.

I’d bet that Scalia was fond of the aphorism, “The road to Hell is paved with good intentions.” While recognizing that the Court was acting on a sense of justice, and that many would see the decision as a triumph for racial justice, Scalia saw something darker. It wasn’t just that the Court had twisted the law to achieve its desired result—the result would produce real injustices:

The Court’s decision today is unprecedented in law, but not in approach. It is a reprise, so to speak, of Miranda v. Arizona, in that the Court uses its key to the jailhouse door not to free the arguably innocent, but to threaten release upon the society of the unquestionably guilty unless law enforcement officers take certain steps that the Court newly announces to be required by law. . . . The sum and substance of the Court’s lengthy analysis is that, since a denial of equal protection to other people occurred at the defendant’s trial, though it did not affect the fairness of that trial, the defendant must go free. . . .

Judging from the Court’s opinion, we can expect further, wide-ranging use of the jailhouse key to combat discrimination. Convictions are to be overturned, apparently, whenever “race is implicated in the trial” . . . . To me this makes no sense. Lofty aims do not justify every step intended to achieve them. Today’s supposed blow against racism, while enormously self-satisfying, is unmeasured and misdirected. If for any reason the State is unable to reconvict Powers for the double murder at issue here, later victims may pay the price for our extravagance. Even if such a tragedy, in this or any case, never occurs, the prosecutorial efforts devoted to retrials will necessarily be withheld from other endeavors, as will the prosecutorial efforts devoted to meeting the innumerable Powers claims that defendants of all races can be relied upon to present-again with the result that crime goes unpunished and criminals go free.

Private litigants are also bound by Batson: Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991)

Edmonson expanded the protections of Batson by holding that private litigants in civil cases cannot exercise race-based peremptory strikes without violating the Constitution. The ruling’s constitutional underpinnings are found not in Batson, but in the state action doctrine. Private actors can’t violate the Constitution. For instance, a private employer who tells her employees they can’t have right-leaning bumper stickers on their vehicles if they want to avail themselves of the company parking garage doesn’t violate the First Amendment. If a governmental office instituted such a policy, it would be unlawful viewpoint discrimination. The Edmonson Court applied the Constitution to private litigants by reasoning that private litigants become governmental actors when they use peremptory strikes, and are thus subject to the same constitutional restrictions placed on the government in Batson and Powers. In Georgia v. McCollum, 505 U.S. 42 (1992), Edmonson reached its logical extension—that criminal defendants are also governmental actors when they exercise peremptory challenges.

It was “terminally absurd,” Scalia thought, for the Court to say that “a criminal defendant, in the process of defending himself against the state,” is in fact “acting on behalf of the state.” His strongest condemnation of the Court’s ruling was directed not at the “sheer inanity” of its justifications, but at its consequences for criminal defendants:

Today’s decision gives the lie once again to the belief that an activist, “evolutionary” constitutional jurisprudence always evolves in the direction of greater individual rights. In the interest of promoting the supposedly greater good of race relations in the society as a whole (make no mistake that that is what underlies all of this), we use the Constitution to destroy the ages-old right of criminal defendants to exercise peremptory challenges as they wish, to secure a jury that they consider fair.

Sex discrimination in jury selection is unlawful: JEB v. Alabama, 511 U.S. 127 (1994)

Welcome to Scalia at his most sarcastic. Dissenting from the Court’s ruling that using peremptory challenges to exclude a potential juror because of his or her sex violates equal protection, Scalia opened, “Today’s opinion is an inspiring demonstration of how thoroughly up-to-date and right-thinking we Justices are in matters pertaining to the sexes (or as the Court would have it, the genders), and how sternly we disapprove the male chauvinist attitudes of our predecessors.” He went on to poke fun at the Court for spending much of its opinion condemning historic discrimination against females, while the case at hand concerned the exclusion of male jurors from a trial over paternity and child support.

Scalia revisited his objections to the Court’s constitutional policing of jury selection, before arguing that the Court’s fourth expansion of Batson and corresponding curtailment of the peremptory was more bad news for criminal defendants:

The loss of the real peremptory will be felt most keenly by the criminal defendant, whom we have until recently thought “should not be held to accept a juror, apparently indifferent, whom he distrusted for any reason or for no reason.” And make no mistake about it: there really is no substitute for the peremptory. Voir dire (though it can be expected to expand as a consequence of today’s decision) cannot fill the gap. The biases that go along with group characteristics tend to be biases that the juror himself does not perceive, so that it is no use asking about them.

By JEB, it was clear that Scalia had lost the fight to preserve an unfettered peremptory challenge. By a significant margin, too—he never had more than three votes for his position. Batson and its progeny have now woven their way into the very DNA of trial procedure. So much so one may question the relevance of Scalia’s Batson-line dissents. But his opinions on the subject are worth a read because they display Scalia’s thinking on a range of subjects at the heart of his legal philosophy: tradition, the minting of new constitutional rights, the Court’s willingness to bend its own precedents and rules to facilitate their expansion, and the unintended costs of such rights.

Scalia’s Criminal Law Legacy: Sixth Amendment Edition (Part 2)

For a second (and abbreviated) post on Scalia and the Sixth Amendment (first post here), I turn to the Sixth Amendment’s last-enumerated right: “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” At minimum, the clause means that the government cannot bar an accused’s privately-retained attorney from the courthouse. (At the time of the founding, England prohibited most felony defendants from employing counsel.) Over time, the Supreme Court has interpreted the clause to guarantee five distinct rights: (1) the right to court-appointed (i.e., publicly-funded) counsel, if the accused cannot afford to hire counsel; (2) the right to counsel of the accused’s choice; (3) the right to effective assistance of counsel; (4) the right to conflict-free counsel; and (5) the right to forgo counsel and represent oneself.

I had initially planned to cover at least three of the above categories, but I’ve committed to bring this series to a close within a month of its start. Due to unexpected obligations at work my pace has lagged. In light of my approaching deadline, I’ll limit myself here to the right of self-representation . . .

Since Faretta v. California, 422 U.S. 806 (1975), the Supreme Court has recognized that the Sixth Amendment guarantees a defendant the right to waive his right to counsel to represent himself at trial. The right of self-representation is not made explicit in the Sixth Amendment’s text. As Justice Breyer explained in Indiana v. Edwards, 554 U.S. 164 (2008), the Court

implied that right from: (1) a “nearly universal conviction,” made manifest in state law, that “forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so”; (2) Sixth Amendment language granting rights to the “accused”; (3) Sixth Amendment structure indicating that the rights it sets forth, related to the “fair administration of American justice,” are “persona[l]” to the accused; (4) the absence of historical examples of forced representation; and (5) “respect for the individual.”

Faretta is not universally beloved. In Martinez v. Court of Appeal of California, Fourth Appellate Dist., 528 U.S. 152 (2000), which declined to recognize a right of self-representation on appeal, the Court cast a cold eye on Faretta. Justice Breyer’s concurrence noted that “judges closer to the firing line have sometimes expressed dismay about [Faretta’s] practical consequences.” Doubtless, in most cases of pro se representation the adage “one who is his own lawyer has a fool for a client” is proved true. I’ve tried two pro se cases. In one, the defendant took the stand and admitted to the crime. In the second, in which the defendant was accused of his beating his girlfriend, he stood up for closing argument, stated “Let me just say it takes two to tango,” and then sat down. Both defendants were quickly convicted.

Scalia defended the right of self-representation against doubts about its wisdom and constitutional pedigree. In Martinez, he concurred only in the judgment, declaring, “I do not share the apparent skepticism of today’s opinion concerning the judgment of the Court (often curiously described as merely the judgment of ‘the majority’) in Faretta . . . .” In Edwards, Scalia, joined only by Justice Thomas, disagreed with the Court’s allowing a state to deny the defendant the right to represent herself when she is not mentally competent to conduct a trial without counsel.

In one sense, Scalia’s opinions on self-representation aren’t standard Scalia fare. He believed Faretta was correctly decided, but wasn’t certain the right fell under the Sixth Amendment. If he’d authored Faretta he “might have rested the decision upon the Due Process Clause rather than the Sixth Amendment.” Here, Scalia seems to suggest that self-representation is a “substantive due process” right. During his tenure on the Court, Scalia was a consistent and vocal critic of the substantive due process doctrine, which he argued was an “infinitely plastic concept” that allowed judges to impose their personal preferences without constitutional authority. Scalia was almost always scrupulous in identifying the source of a right (or the lack thereof)—but not here. To justify the right of self-representation, Scalia also invoked “the supreme human dignity of being master of one’s fate rather than a ward of the State—the dignity of individual choice.” This passage called to my mind Justice Kenney’s (in)famous words in the abortion ruling Planned Parenthood v. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Scalia had ridiculed Kennedy’s proclamation as the “famed sweet-mystery-of-life passage” and “the passage that ate the rule of law.”

In another sense, Scalia’s affinity for the self-representation right is only natural. No fan of paternalism, he could appreciate that Faretta allowed for self-determination, notwithstanding that in most cases self-representation is the fool’s prerogative. It’s not surprising that the Justice who once referred to judges as “employee[s] of the State” would not be keen to have another “employee of the State” (a majority of defendants are represented by public defenders or private attorneys who accept appointments) commandeer the defense of an unwilling defendant. Scalia also spent a career opposing what he saw as the proclivity of judges to contort the Constitution in the service of some supposed higher good. In Edwards he wrote, “In my view the Constitution does not permit a State to substitute its own perception of fairness for the defendant’s right to make his own case before the jury.” And then, the Framers wouldn’t have approved either: “I have no doubt that the Framers of our Constitution, who were suspicious enough of governmental power-including judicial power-that they insisted upon a citizen’s right to be judged by an independent jury of private citizens, would not have found acceptable the compulsory assignment of counsel by the government to plead a criminal defendant’s case.”

Scalia’s Criminal Law Legacy: Eighth Amendment Edition

Before returning to the Sixth Amendment, I’ll turn to the Eighth Amendment, with a focus on Scalia’s death penalty jurisprudence.

The Eighth Amendment bars the government from imposing excessive fines, excessive bail, and “cruel and unusual punishments.” In the 1958 case Trop v. Dulles, 356 U.S. 86 (1958), Chief Justice Earl Warren established the modern jurisprudence of the Eighth Amendment, writing that its prohibition on “cruel and unusual punishments” is not static, but “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.”

One string of post-Trop law prohibits specific punishments as applied to classes of offenders (e.g., no death penalty for juveniles) and classes of offenses (e.g., no death penalty for the crime of child rape). Until the Court’s 2010 decision in Graham v. Florida, 560 U.S. 48, holding that juveniles cannot be sentenced to life without parole for non-homicide offenses, the Court’s decisions in this area dealt almost exclusively with the death penalty. In the early 2000s, opponents of capital punishment won two major victories before the Supreme Court. As a result, the federal government and states can no longer execute persons who are intellectually disabled (Atkins v. Virginia, 536 U.S. 304 (2002)), or who were juveniles (i.e., under the age of 18) at the time of the crime (Roper v. Simmons, 543 U.S. 551 (2005)). Roper extended the holding of Thompson v. Oklahoma, 487 U.S. 815 (1988), which had outlawed the death penalty as a punishment for persons who committed a capital offense when under the age of 16.

Justice Scalia authored dissents in all three cases. He never expressly advocated for the death penalty—“I take no position on the desirability of the death penalty,” he once wrote—but Scalia’s feelings on that form of punishment are, I think, apparent (it’s safe to say he’d be “death-qualified” to sit on a capital jury). Nevertheless, his opinions also show that his votes had nothing to do with the appropriateness of the death penalty—and everything to do with who gets to decide how society punishes those convicted of the gravest offenses. In Scalia’s view, in almost all cases the people through their elected representatives, and not judges, should have the power to decide whether death is an appropriate punishment for particular classes of offenders or offenses. “By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the Nation?” he asked (rhetorically) in Roper.

Scalia grounded his position first in the text of the Constitution and the original meaning of the Eighth Amendment. As he wrote in Baze v. Rees, 553 U.S. 35 (2008),

[T]he very text of the document recognizes that the death penalty is a permissible legislative choice. The Fifth Amendment expressly requires a presentment or indictment of a grand jury to hold a person to answer for “a capital, or otherwise infamous crime,” and prohibits deprivation of “life” without due process of law. The same Congress that proposed the Eighth Amendment also enacted the Act of April 30, 1790, which made several offenses punishable by death.

Thus, Scalia rejected the prevailing view that federal judges could rely on “evolving standards of decency” to declare punishments unconstitutional. He rather believed that the Eighth Amendment’s meaning is static. In an interesting essay on the morality of capital punishment, which Scalia published in the journal First Things, he explained:

[The Eighth Amendment] means today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted. For me, therefore, the constitutionality of the death penalty is not a difficult, soul-wrenching question. It was clearly permitted when the Eighth Amendment was adopted (not merely for murder, by the way, but for all felonies—including, for example, horse-thieving, as anyone can verify by watching a western movie). And so it is clearly permitted today. There is plenty of room within this system for “evolving standards of decency,” but the instrument of evolution (or, if you are more tolerant of the Court’s approach, the herald that evolution has occurred) is not the nine lawyers who sit on the Supreme Court of the United States, but the Congress of the United States and the legislatures of the fifty states, who may, within their own jurisdictions, restrict or abolish the death penalty as they wish.

In any event, Scalia did not trust himself or his colleagues to gauge accurately society’s evolving standards. “The risk of assessing evolving standards,” he wrote in Thompson, “is that it is all too easy to believe that evolution has culminated in one’s own views.” His dissent in Atkins scolded, “Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its Members,” before accusing the majority of fabricating a “national consensus” against execution of the intellectually disabled.

Causing Scalia to take even more umbrage was the Court’s reliance on the views of professional and religious groups, as well as the views of other developed countries. In Atkins he wrote that “the Prize for the Court’s Most Feeble Effort to fabricate ‘national consensus’ must go to its appeal (deservedly relegated to a footnote) to the views of assorted professional and religious organizations, members of the so-called ‘world community,’ and respondents to opinion polls. [T]he views of professional and religious organizations and the results of opinion polls are irrelevant. Equally irrelevant are the practices of the ‘world community,’ whose notions of justice are (thankfully) not always those of our people.”

Scalia’s opinions on the death penalty are frequently blistering and deal scathing criticism against colleagues who disagree with him. When I studied constitutional law, my professor made a point of contrasting Scalia’s dissent in Lawrence v. Texas (where the majority held that the Constitution protects homosexual relations) with Justice Rehnquist’s dissent in Roe v. Wade. “That’s how you write a dissent on a contentious issue,” she remarked, holding up Rehnquist’s less combative writing style as a model of persuasion. She thought Scalia’s derisive, dismissive tone made his opinions less persuasive. In a Los Angeles Times op-ed, renowned legal scholar Erwin Chemerinsky wrote that Scalia’s “nasty, sarcastic and personal” opinions were having a negative effect on a generation of law students and young lawyers. They were developing the habit, attributable to a steady diet of Scalia, of lacing their briefs with “derision and ad hominem barbs.” Chemerinsky concluded, “If legal professionals ignore Scalia’s meanness or—worse—pass around his insults at cocktail parties like Wildean witticisms, they’ll encourage a new generation of peevish, callous scoffers.” Scalia’s writing, however, is widely admired across the political spectrum. As Jeet Heer wrote in The New Republic (“Antonin Scalia Is the Supreme Court’s Greatest Writer”), months before the justice died, “Scalia is the foremost living practitioner of performative legal prose, a masterful writer who can make torts tarty and judgments jazzy.”

Chemerinsky’s and Heer’s sentiments both find expression in Scalia’s concurrence in Glossip v. Gross, 576 U. S. ___ (2015). Responding to Justice Breyer’s dissent, which called for the abolition of the death penalty under the Eighth Amendment, Justice Scalia crafted a short, punchy opinion with prose that is at once marvelous and intemperate. I’ll end with these selections:

Welcome to Groundhog Day. The scene is familiar: Petitioners, sentenced to die for the crimes they committed (including, in the case of one petitioner since put to death, raping and murdering an 11-month-old baby), come before this Court asking us to nullify their sentences as “cruel and unusual” under the Eighth Amendment. . . . The response is also familiar: A vocal minority of the Court, waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good.


Even accepting JUSTICE BREYER’s rewriting of the Eighth Amendment, his argument is full of internal contradictions and (it must be said) gobbledy-gook.


[W]hether the death penalty and life imprisonment constitute more-or-less equivalent retribution is a question far above the judiciary’s pay grade. Perhaps JUSTICE BREYER is more forgiving—or more enlightened—than those who, like Kant, believe that death is the only just punishment for taking a life. I would not presume to tell parents whose life has been forever altered by the brutal murder of a child that life imprisonment is punishment enough.


[W]e federal judges live in a world apart from the vast majority of Americans. After work, we retire to homes in placid suburbia or to high-rise co-ops with guards at the door. We are not confronted with the threat of violence that is ever present in many Americans’ everyday lives. The suggestion that the incremental deterrent effect of capital punishment does not seem “significant” reflects, it seems to me, a let-them-eat-cake obliviousness to the needs of others. Let the People decide how much incremental deterrence is appropriate.


As JUSTICE BREYER concedes, for more than 160 years, capital sentences were carried out in an average of two years or less. But by 2014, he tells us, it took an average of 18 years to carry out a death sentence. What happened in the intervening years? Nothing other than the proliferation of labyrinthine restrictions on capital punishment, promulgated by this Court under an interpretation of the Eighth Amendment that empowered it to divine “the evolving standards of decency that mark the progress of a maturing society,”—a task for which we are eminently ill suited. Indeed, for the past two decades, JUSTICE BREYER has been the Drum Major in this parade. His invocation of the resultant delay as grounds for abolishing the death penalty calls to mind the man sentenced to death for killing his parents, who pleads for mercy on the ground that he is an orphan. Amplifying the surrealism of his argument, JUSTICE BREYER uses the fact that many States have abandoned capital punishment—have abandoned it precisely because of the costs those suspect decisions have imposed—to conclude that it is now “unusual.” (A caution to the reader: Do not use the creative arithmetic that JUSTICE BREYER employs in counting the number of States that use the death penalty when you prepare your next tax return; outside the world of our Eighth Amendment abolitionist-inspired jurisprudence, it will be regarded as more misrepresentation than math.)


Capital punishment presents moral questions that philosophers, theologians, and statesmen have grappled with for millennia. The Framers of our Constitution disagreed bitterly on the matter. For that reason, they handled it the same way they handled many other controversial issues: they left it to the People to decide. By arrogating to himself the power to overturn that decision, JUSTICE BREYER does not just reject the death penalty, he rejects the Enlightenment.

Scalia’s Criminal Law Legacy: 6th Amendment Edition (Part I)

The Sixth Amendment to our Constitution guarantees persons charged with crimes certain trial-related rights: to be tried by an impartial jury, to a speedy and public trial, to be informed of the nature of the charges, to confront the witnesses against them, to subpoena witnesses for their defense, and to the assistance of counsel.

Two of those rights—trial by jury and confrontation of adverse witnesses—underwent a transformative decade in the 2000s. Justice Scalia was instrumental to both transformations, which favored defendants.

Right to Trial by Jury

Criminal offenses consist of “elements” that the government must prove beyond a reasonable doubt to get a conviction. In recent decades, lawmakers have created schemes whereby facts and circumstances that aren’t “elements” of the charged offense, but relate to the offender and his crime, may increase the punishment for the offense. In the landmark case Apprendi v. New Jersey, 530 U.S. 466 (2000), the defendant pleaded guilty to a crime (possession of a weapon for an unlawful purpose) that carried a maximum penalty of 10 years. The prosecutor asked the judge to increase the sentence based on the fact that Apprendi’s crime was racially motivated. Because the judge agreed with the prosecutor, the law allowed the judge to impose up to 20 years, double the 10-year maximum for the crime. (The judge gave 12 years.) Under New Jersey law, the government had no obligation to present the hate crime enhancement to a jury and have its members find beyond a reasonable doubt that Apprendi’s motives were racial. Instead, the judge was permitted to make the finding by a preponderance of the evidence (a lighter, and from the government’s perspective more favorable, burden of proof).

In Apprendi’s case, the Supreme Court held that “any fact [other than a prior conviction] that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi’s sentence was invalid because a judge, not a jury, had determined the existence of an aggravating fact necessary to increase the sentence.

Apprendi upended the criminal sentencing landscape. Although Justice Stevens authored Apprendi on behalf of five justices, Justice Scalia laid the groundwork for the sea change in sentencing laws. In a dissent in Almendarez-Torres v. United States, 523 U.S. 224 (1998), Scalia set forth the rule that would carry the day two terms later in Apprendi: “[I]t is genuinely doubtful whether the Constitution permits a judge (rather than a jury) to determine by a mere preponderance of the evidence (rather than beyond a reasonable doubt) a fact that increases the maximum penalty to which a criminal defendant is subject.” Dissenting in Monge v. California, 524 U.S. 721 (1998), later in the same term as Almendarez-Torres, Scalia argued that the constitutional right to trial by jury meant little if it permitted judges to increase criminal sentences based on a range of sentencing enhancements a judge could unilaterally apply:

Suppose that a State repealed all of the violent crimes in its criminal code and replaced them with only one offense, “knowingly causing injury to another,” bearing a penalty of 30 days in prison, but subject to a series of “sentencing enhancements” authorizing additional punishment up to life imprisonment or death on the basis of various levels of mens rea, severity of injury, and other surrounding circumstances. Could the State then grant the defendant a jury trial, with requirement of proof beyond a reasonable doubt, solely on the question whether he “knowingly cause[d] injury to another,” but leave it for the judge to determine by a preponderance of the evidence whether the defendant acted intentionally or accidentally, whether he used a deadly weapon, and whether the victim ultimately died from the injury the defendant inflicted? If the protections extended to criminal defendants by the Bill of Rights can be so easily circumvented, most of them would be, to borrow a phrase from Justice Field, “vain and idle enactment[s], which accomplished nothing, and most unnecessarily excited Congress and the people on [their] passage.”

The views expressed in Scalia’s dissents in Almendarez-Torres and Monge would in short course become law.

Though no fan of the Court’s Eighth Amendment jurisprudence policing the death penalty (where he often found himself in dissent), Scalia joined the majority in Ring v. Arizona, 536 U.S. 584 (2002), invalidating the piece of Arizona’s capital sentencing law allowing a judge to determine the presence or absence of aggravating factors required for imposition of the death penalty. Scalia lamented that the Court’s own misguided interpretation of the Eighth Amendment had forced states to “specify particular ‘aggravating factors’ that must be found before the death penalty can be imposed.” Of overriding importance, however, was his belief “that the fundamental meaning of the jury-trial guarantee of the Sixth Amendment is that all facts essential to imposition of the level of punishment that the defendant receives—whether the statute calls them elements of the offense, sentencing factors, or Mary Jane—must be found by the jury beyond a reasonable doubt.” He added this powerful paean to the jury’s role in capital trials:

[M]y observing over the past 12 years the accelerating propensity of both state and federal legislatures to adopt “sentencing factors” determined by judges that increase punishment beyond what is authorized by the jury’s verdict, and my witnessing the belief of a near majority of my colleagues that this novel practice is perfectly OK, cause me to believe that our people’s traditional belief in the right of trial by jury is in perilous decline. That decline is bound to be confirmed, and indeed accelerated, by the repeated spectacle of a man’s going to his death because a judge found that an aggravating factor existed. We cannot preserve our veneration for the protection of the jury in criminal cases if we render ourselves callous to the need for that protection by regularly imposing the death penalty without it.

In Blakely v. Washington, 542 U.S. 296 (2004), Scalia’s majority opinion furthered the aims of Apprendi by holding that a trial judge violated Blakely’s jury right when the judge, in accordance with statute, gave an “exceptional sentence” (three years in excess of the maximum) to Blakely because he’d acted with “deliberate cruelty.” Like much of his best work, Scalia’s opinion in Blakely is at heart about power. He characterizes the jury right as “a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.” To conclude, Scalia drew on his lodestar, the original meaning of Constitution, noting, “The Framers would not have thought it too much to demand that, before depriving a man of three more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to ‘the unanimous suffrage of twelve of his equals and neighbours,’ rather than a lone employee of the State.”

Right to Confrontation of Witnesses

Around the same time as the Apprendi revolution, Scalia helped to reshape the meaning of the Confrontation Clause, which gives a criminal defendant the right “to be confronted with the witnesses against him.” According to the Court’s ruling in Ohio v. Roberts, 448 U.S. 56 (1980), the Confrontation Clause did not prohibit the government from introducing an unavailable witness’s statement against a criminal defendant if the statement bore adequate “indicia of reliability.” Roberts meant that the government could (unless hearsay rules said otherwise) admit a witness’s out-of-court statements without affording the defendant an opportunity to cross-examine that witness in court. Scalia’s opinion in Crawford v. Washington, 541 U.S. 36 (2004), changed that by holding the government cannot introduce a witness’s out-of-court, testimonial statement unless the witness is unavailable and the defendant had a prior opportunity for cross-examination.

Because testimony from civilian witnesses who are vulnerable to intimidation or just don’t want to show up for court (which is common with domestic violence) is an integral piece of many prosecutions, Crawford raised the bar for prosecutors. Scalia raised the bar even higher in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), where the prosecution submitted a certified drug test report without also presenting live testimony of the forensic chemist who tested the drugs. In Scalia’s book, this scenario allowed for a “straightforward application” of Crawford; the government could not introduce the results of the drug test without offering up the analyst who tested the drugs for cross-examination. A certified report did not do.

Melendez-Diaz presents a particular challenge for forensic laboratories and prosecutors. Because the kinds of cases that often require forensic analysis, e.g., DUIs and drug cases, are high-volume, the demand for forensic witnesses in such routine cases cannot easily be met. Justice Kennedy captured such challenges well in his dissent in a related case, Bullcoming v. New Mexico, 564 U.S. 647 (2011):

New Mexico’s experience exemplifies the problems ahead. From 2008 to 2010, subpoenas requiring New Mexico analysts to testify in impaired-driving cases rose 71%, to 1,600—or 8 or 9 every workday. In a State that is the Nation’s fifth largest by area and that employs just 10 total analysts, each analyst in blood alcohol cases recently received 200 subpoenas per year. The analysts now must travel great distances on most working days. The result has been, in the laboratory’s words, “chaotic.” And if the defense raises an objection and the analyst is tied up in another court proceeding; or on leave; or absent; or delayed in transit; or no longer employed; or ill; or no longer living, the defense gets a windfall. . . . The concomitant increases in subpoenas will further impede the state laboratory’s ability to keep pace with its obligations. Scarce state resources could be committed to other urgent needs in the criminal justice system.

I doubt Scalia enjoyed the prospect that the rule he championed would give the defense a windfall in many cases (as the author of the law review article “The Rule of Law as a Law of Rules,” he probably had little sympathy for lawbreakers), but he was firm in his belief that inconvenience to the prosecution and its witnesses did not overcome the confrontation right. “The Confrontation Clause,” he wrote in Melendez-Diaz, “may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination. The Confrontation Clause—like those other constitutional provisions—is binding, and we may not disregard it at our convenience.”

Scalia’s preference for in-the-flesh confrontation was on display long before Crawford and Melendez-Diaz. In 1990 the Supreme Court was asked to decide whether the Confrontation Clause categorically prohibited a child victim in a child abuse case from testifying outside the physical presence of the defendant by one-way closed circuit television. (Maryland v. Craig, 497 U.S. 836 (1990)). The Court found that the “State’s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face his or her accusers in court. That a significant majority of States have enacted statutes to protect child witnesses from the trauma of giving testimony in child abuse cases attests to the widespread belief in the importance of such a public policy.” In dissent, Scalia grasped the charitable impulse behind the policy, but gave no quarter in rejecting it:

Seldom has this Court failed so conspicuously to sustain a categorical guarantee of the Constitution against the tide of prevailing current opinion. The Sixth Amendment provides, with unmistakable clarity, that “[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” The purpose of enshrining this protection in the Constitution was to assure that none of the many policy interests from time to time pursued by statutory law could overcome a defendant’s right to face his or her accusers in court.

Scalia’s deconstruction of the majority’s reasoning is an analytical gem worth quoting at length:

According to the Court, “we cannot say that [face-to-face] confrontation [with witnesses appearing at trial] is an indispensable element of the Sixth Amendment’s guarantee of the right to confront one’s accusers.” That is rather like saying “we cannot say that being tried before a jury is an indispensable element of the Sixth Amendment’s guarantee of the right to jury trial.” The Court makes the impossible plausible by recharacterizing the Confrontation Clause, so that confrontation (redesignated “face-to-face confrontation”) becomes only one of many “elements of confrontation.” The reasoning is as follows: The Confrontation Clause guarantees not only what it explicitly provides for—“face-to-face” confrontation—but also implied and collateral rights such as cross-examination, oath, and observation of demeanor (TRUE); the purpose of this entire cluster of rights is to ensure the reliability of evidence (TRUE); the Maryland procedure preserves the implied and collateral rights (TRUE), which adequately ensure the reliability of evidence (perhaps TRUE); therefore the Confrontation Clause is not violated by denying what it explicitly provides for—“face-to-face” confrontation (unquestionably FALSE). This reasoning abstracts from the right to its purposes, and then eliminates the right. It is wrong because the Confrontation Clause does not guarantee reliable evidence; it guarantees specific trial procedures that were thought to assure reliable evidence, undeniably among which was “face-to-face” confrontation. Whatever else it may mean in addition, the defendant’s constitutional right “to be confronted with the witnesses against him” means, always and everywhere, at least what it explicitly says: the “right to meet face to face all those who appear and give evidence at trial.”

One of the common criticisms of Justice Scalia’s jurisprudence is that his originalist legal philosophy served as a veneer allowing him to pursue his personal preferences under the guise of interpreting the Constitution. Scalia’s rulings on the jury right and confrontation right, which assisted criminal defendants, undermine that criticism, since there is nothing in Scalia’s writings that indicate a soft spot for criminals. Rather, his decisions in the Apprendi– and Crawford-line of cases, as well as in Craig, show how he carried out his formalist approach to constitutional interpretation without regard for which side he was helping.

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.