Scalia Will Be Missed By People Being Prosecuted
When eulogizing Justice Scalia, don't forget his significant contributions to criminal law.
Justice Antonin Scalia’s death last weekend is incredibly sad. He’s a giant of a figure in American law.
For lawyers who came of age when Scalia was already entrenched on the Court, it’s just second nature to discount legislative history. First, we know, one must turn to the text of a statute to see what it says. Only when it’s truly ambiguous can you resort to something as suspect as a committee report. To point that out is like pointing out that we move through air. Scalia’s views on interpretation have come to be so dominant they aren’t even views; they’re simply how we do things.
Of course, losing Scalia on the Court will change what the Court does, whether Obama’s nominee is able to be confirmed or whether it’s our next President’s.
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(Or the one after that — I don’t know why we would think that partisan gridlock will end anytime soon. Perhaps the election that really matters ought to be the one in 2020. Yes, it will cripple the Court, but at least Congress will be able to ensure that it isn’t the only branch unable to function.)
One dramatic change on the Court — almost regardless of who nominates the next Justice — is how people accused of crime are treated in our criminal justice system.
Scalia, for all his faults, was more often than not a principled defender of the rights of those among us who are accused of a crime. If it weren’t for Scalia, we wouldn’t have the same vibrant right to confront someone who accuses us of a crime as we now have. Scalia led the charge in Crawford v. Washington; a sea change in when out of court statements can be used against someone accused of a crime.
Scalia was instrumental in the Apprendi line of cases, that culminated in United States v. Booker. If it weren’t for Scalia, the federal sentencing guidelines would be mandatory. Obama’s Justice Department may be trying to loosen excessive federal sentences; Justice Scalia did more.
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His Fourth Amendment cases were also often strong. Who can forget this line from Kyllo v. United States — holding that the use of thermal imaging technology used to scan what heat comes from a house requires a warrant:
The Government… contends that the thermal imaging was constitutional because it did not “detect private activities occurring in private areas.”… In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes… [T]here is no necessary connection between the sophistication of the surveillance equipment and the “intimacy” of the details that it observes-which means that one cannot say (and the police cannot be assured) that use of the relatively crude equipment at issue here will always be lawful. The Agema Thermovision 210 might disclose, for example, at what hour each night the lady of the house takes her daily sauna and bath — a detail that many would consider “intimate.”
In criminal cases, too often the Justices think only of Johnnie on the corner slinging rock. Scalia was the rare Justice — or Judge — who gave serious weight to the idea that each of us may want, for completely legitimate reasons, to be treated in the way that the Constitution says we should be.
Justice Scalia wasn’t always as reliable as one would hope for those who walk on the shady side of the street. But he was more than reliable enough. And, I fear, he’s a fair lot better than anyone we can reasonably hope to replace him.
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Matt Kaiser is a white-collar defense attorney at Kaiser, LeGrand & Dillon PLLC. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. Most of his clients come to the government’s attention because of some kind of misunderstanding. Matt writes the Federal Criminal Appeals Blog and has put together a webpage that’s meant to be the WebMD of federal criminal defense. His twitter handle is @mattkaiser. His email is [email protected] He’d love to hear from you if you’re inclined to say something nice.
