In his legal philosophy, the late Justice Antonin Scalia was a rigid “textualist” who believed in judicial restraint. He purported to rely on the plain meaning of statutes and often construed laws narrowly to the detriment of deserving litigants. In his personal life, he loved great opera, food, and friends, among them, Justice Ruth Bader Ginsburg. He was a larger-than-life figure—a metro-textual—who transcended the stodgy customs of our nation’s court of last resort to become part of the public discourse.
As a jurist, Justice Scalia was not on the side of the angels when it came to most of the pressing issues of his day. His written opinions and oral comments revealed a reactionary, disdainful approach to the LGBT community, the rights of women, the plight of African-Americans, and the environment. And that’s just to name a few. The consequence of his judicial philosophy was to reinforce the status quo; the Constitution originally benefitted particular groups and Justice Scalia’s adherence to original intent thwarted efforts at progress by historically disadvantaged groups. He called this a principled approach to constitutional interpretation; others called it bigotry.
But Justice Scalia’s record is more mixed in regard to criminal law issues. To be sure, he was an outright denier on the topic of wrongful convictions. In his 2006 concurring opinion in Kansas v. Marsh, for instance, he disparaged the very idea that people are ever convicted of crimes they did not commit, and cited a negligible error rate. He was particularly dismissive of the notion that a wrongful conviction could occur in a death penalty case. In Marsh, he asserted “that the dissent does not discuss a single case—not one—in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby (https://www.law.cornell.edu/supct/html/04-1170.ZC.html ).”
Justice Scalia believed the death penalty, a popular punishment tool at the time of constitutional enactment, was not “cruel and unusual” in violation of the Eighth Amendment. As a result, he provided a consistent, occasionally caustic vote against efforts to limit capital punishment. In a 1994 concurrence in Callins v. Collins, he chided Justice Blackmun for critiquing lethal injection as a method of execution. In the process, he referred to a well-known North Carolina case as an exemplar of the need for capital punishment: “the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. How enviable a quiet death by lethal injection compared with that!” As fate would have it, twenty years later DNA evidence exonerated the two mentally disabled men from death row—Henry Lee McCollum and Leon
Brown—who had been wrongfully convicted of the crime http://www.slate.com/articles/news_and_politics/jurisprudence/2014/09/henry_lee_mccollum_cleared_by_dna_evidence_in_north_carolina_after_spending.html ).
Yet Justice Scalia’s devotion to the Framers’ original distrust in government overreaching manifested itself in a number of progressive—yes, progressive—opinions that advanced the rights of criminal defendants. Take some of his opinions on the Fourth Amendment, the provision of our Constitution that protects citizens from unreasonable searches and seizures by the government without a warrant. In the 2001 case of Kyllo v. United States, his majority opinion served as a powerful victory for individual privacy. In that case, the Court held that the use of thermal imagery technology to detect excessive heat from outside an apartment wall in order to substantiate suspicions about an indoor marijuana production facility represented an unwarranted “intrusion into a constitutionally protected area.” If the police use technology that is not generally available to the public to obtain information that could only otherwise be gleaned through physical entry then, according to Justice Scalia, such behavior violates the Fourth Amendment (https://www.law.cornell.edu/supct/html/99-8508.ZO.html ).
Most notably, a series of opinions authored by Justice Scalia over the past dozen years reinvigorated the Court’s lackluster jurisprudence surrounding the Sixth Amendment’s Confrontation Clause. The upshot of this effort has dramatically benefitted criminal defendants.
The Confrontation Clause grants criminal defendants a right to confront their “accusers,” which has long meant that defendants must be allowed to cross-examine key witnesses against them. The right to confrontation evolved in response to egregious instances of abuse in England in which people were convicted of heinous crimes—most famously, Sir Walter Raleigh’s conviction for treason—based on out-of-court, unsworn statements that were never tested through the crucible of cross examination. For years, the Court’s quixotic interpretation of the Confrontation Clause permitted all sorts of evidence to come in against criminal defendants without cross-examination through exceptions to the ban against hearsay evidence (out of court statements in which a person heard someone say something).
In 2004, Justice Scalia’s majority opinion in Crawford v. Washington revolutionized the Court’s approach to confrontation, ushering in a new era in which any hearsay evidence that is the functional equivalent of in-court “testimony” must be subjected to cross-examination at some point. In an important twist, Justice Scalia identified statements procured as part of a police interrogation in a “colloquial sense” as just the type of testimonial hearsay that deserves Confrontation Clause protection (https://www.law.cornell.edu/supct/html/02-9410.ZO.html ). This doctrinal approach made it much harder for prosecutors to prove criminal defendants guilty beyond a reasonable doubt in open court through damning hearsay evidence alone. The Court solidified this novel approach in a pair of 2006 cases (https://www.law.cornell.edu/supct/html/05-5224.ZS.html ), and in two other important cases that later extended the concept of testimonial hearsay to forensic lab reports http://www.supremecourt.gov/opinions/08pdf/07-591.pdf ; http://www.supremecourt.gov/opinions/10pdf/09-10876.pdf . Justice Scalia wrote for the majority in three of these cases—and joined in Justice Ginsburg’s opinion in the fourth.
The point here is not to praise Justice Scalia’s record, which is abysmal on the vast majority of social issues. But his record is complicated in the realm of criminal law. And, in some respects, it deserves admiration.
Daniel S. Medwed is a professor of criminal law at Northeastern University Law School, and a legal analyst for WGBH News.
