David M. Dorsen, a Washington lawyer, is author of “The Unexpected Scalia: A Conservative Justice’s Liberal Opinions,” to be published by Cambridge University Press on Feb. 24.
As President Trump prepares to name a successor to Justice Antonin Scalia, the conventional wisdom is that the choice will not change the liberal-conservative balance on the court. After all, this argument goes, if Trump chooses any of the names on his previously published list, the court and the country will simply be swapping one conservative justice for another.
That understanding is incorrect and, as the Senate considers Trump’s nominee and the impact on the court, could be dangerously misleading. This will come as a surprise to many, but in a number of important areas, including the rights of criminal defendants and freedom of speech, the justice was actually quite liberal, as that term is commonly applied. Of Scalia’s approximately 879 opinions, including comments on denials of petitions for certiorari, I have counted 135 as liberal and a number of others as arguably liberal.
No doubt, Scalia was personally a committed conservative and originalist. He relied on that pair of approaches to render conservative opinions on abortion, the right to die, women’s rights, rights of gays and lesbians, obscenity, the death penalty, habeas corpus, the exclusionary rule relating to illegal searches and seizures, regulatory takings of private property, gun rights, establishment of religion, states’ rights, standing to challenge federal regulatory statutes, the scope of the commerce clause, the Freedom of Information Act and more.
Yet Scalia’s commitment to his jurisprudence led him to write many important liberal opinions, although they are less well-known than his conservative decisions, with their often provocative language.
In criminal cases, Scalia was the court’s leading protector of defendants’ rights under the confrontation clause. Because the testimony had not been subject to cross-examination, he disallowed the use of previous grand jury testimony by a witness who was unavailable at trial. He prevented screens to shield child witnesses in child abuse cases from seeing their alleged abusers. Likewise, Scalia was liberal in his interpretation of the double jeopardy clause and the prohibition against ex post facto judicial decisions under the due process clause. He insisted that indictments, to be valid, list all the elements of a crime, and consistently relied on the rule of lenity, which requires criminal statutes to be clear before they are enforced against a defendant. He also broadly supported the right to trial by jury in civil cases, protected by the Seventh Amendment.
Scalia took a similarly liberal approach on questions of what constitutes an unreasonable search or seizure. He protected homes from searches by heat-detectors seeking signs of marijuana plants or dogs sniffing around a house to detect narcotics. He dissented when the court upheld the taking of a DNA sample from the mouth of someone arrested on one offense and then charged with another crime based on a DNA match. Invasive searches to detect the commission of other crimes, he said, violated the Fourth Amendment and due process. He insisted that any interference with personal property by law-enforcement officers amounted to a search that required a warrant or exigent circumstances, such as when the police affixed a GPS device on a suspect’s car without a warrant.
When it came to the Sixth Amendment’s right to trial by jury, Scalia once again was a leader of the liberal position. He insisted that juries, not judges, make the critical decision of whether an action amounted to a hate crime, and therefore was subject to more severe punishment. Scalia made the powerful point that judges were part of the state, and that trial by jury was designed to protect Americans from the state.
On matters involving the First Amendment, Scalia advocated a broad scope for freedom of speech. Notwithstanding Trump’s argument that flag-burners should be subject to criminal prosecution, Scalia joined the opinion of liberal justice William Brennan striking down laws making flag desecration a crime as unconstitutional. He wrote his own opinion striking down a law prohibiting cross-burning that intimidated African Americans. Scalia’s First Amendment prohibited making distinctions based on the content of a statement. He opposed extending the limited protections afforded obscenity to animal cruelty and violence on First Amendment grounds. However, to the dismay of many liberals, he rejected all attempts by those who sought to curtail the influence of money in politics by voting to hold all limitations on campaign contributions and spending unconstitutional under the First Amendment’s right to freedom of speech.
When the time comes to evaluate Trump’s nominee to the Supreme Court, we should not be misled by statements that he or she is a conservative in the mold of Scalia. The reality is much more nuanced. The odds are that we are going to have a nominee who not only follows Scalia’s conservative opinions, but also rejects his liberal ones. In short, the court without Scalia is likely to be a lot worse than the one with him still serving.