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There is No Place for Picking Sides in the Court System

Antonin Scalia’s Other Legacy
He was often a friend of criminal defendants.

Originally by Robert J. Smith,

“In addition to his fiery rhetoric, his originalism, and his profound impact on his fellow Supreme Court justices and the court itself, Antonin Scalia was famous for another thing: his surprising support of criminal defendants in many cases.

“I ought to be the darling of the criminal defense bar,” Scalia once pleaded. “I have defended criminal defendants’ rights—because they’re there in the original Constitution—to a greater degree than most judges have.”

If Scalia was a champion of those rights, he was an accidental champion, a jurist with a deeper objective—namely, fidelity to what he dubbed the “original meaning” reflected in the text of the Constitution—that happened to intersect with the interests of the accused at some points in the constellation of criminal law and procedure. Scalia is more easily remembered not as a champion of the little guy, the voiceless, and the downtrodden, but rather, as Texas Gov. Greg Abbott said, an “unwavering defender of the written Constitution.”

Still, Scalia’s opinions for the court—and, as ferociously, his dissents—have shaped the landscape of protections afforded to criminal defendants. Charles Ogletree, a famed public defender, adviser to President Obama, and Harvard Law School professor, said of Scalia, a brilliant, colorful, towering giant of the legal community who died suddenly on Saturday at the age of 79, “We are from different worlds, but we both appreciate the Constitution and the Bill of Rights.” Here are the myriad ways in which Scalia treated the founding document as protections against overzealous police investigations, intrusions on the right of the accused to examine witnesses at trial, and attacks on the right to a jury trial.”

I just tried to explain this to a jury recently. There is no place for picking sides or “us vs. them” in the court system. The only right “side” is the “side” of our Constitution. – Criminal Law Attorney Tim Farrow


Protections From Unreasonable Searches and Seizures

“Scalia wrote several opinions vigorously protecting the Fourth Amendment. “Justice Scalia actually believed that a group of revolutionaries cared deeply about privacy,” says Richard Myers, a law professor and former federal prosecutor. Scalia’s Fourth Amendment opinions, Myers added, illustrate that while “he did not believe in a living Constitution, he believed in a powerful, binding one.” For example, in Kyllo v. United States, the court held that the use of a thermal-imaging device to keep tabs on a private home is a Fourth Amendment search.

The government argued that no search of the home occurred because the thermo-imaging device captured “only heat radiating from the external surface of the house.” Scalia, however, in his opinion for the court, was having none of it: “But just as a thermal imager captures only heat emanating from a house, so also a powerful directional microphone picks up only sound emanating from a house—and a satellite capable of scanning from many miles away would pick up only visible light emanating from a house.”

More than a decade later, in Jones v. United States, the court, with Scalia again at the helm, held that the government violated the prohibition against unreasonable searches and seizures when it placed a GPS device on a suspected drug dealer’s car and tracked the vehicle’s movements for nearly a month. The prosecution argued that the defendant did not have a “reasonable expectation of privacy” on public roads. Scalia focused on the particular concern for government trespass on “persons, houses, papers, and effects” at the time of the drafting of the Constitution to strike down the search.

Scalia also was strong in dissent when a majority of the court disagreed with his Fourth Amendment views. In a 2014 case, Navarette v. California, the court held that the Fourth Amendment tolerated a warrantless traffic stop where the officers said they stopped the truck because it “matched the description of a vehicle that a 911 caller had recently reported as having run her off the road” and “as the two officers approached the truck, they smelled marijuana.” Justice Clarence Thomas, writing for the court, concluded “under the totality of the circumstances, the officer had reasonable suspicion that the driver was intoxicated.” In a powerful dissent, Scalia referred to the logic of the court’s opinion as a “freedom-destroying cocktail” that provided law enforcement with more leeway in stopping motorists based on “anonymous claims.”

Scalia also dissented from the court’s recent decision in Maryland v. King, which affirmed against a Fourth Amendment challenge to the taking of a DNA sample from inside the mouth of a person as “part of a routine booking procedure for serious offenses.” Scalia wrote, “No matter the degree of invasiveness, suspicionless searches are never allowed if their principal end is ordinary crime-solving. … That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment.” Scalia continued: “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 … , 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.””

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