Magazine article Reason

How Antonin Scalia Shaped-And Misshaped-American Law: The Mixed Legacy of the Late Supreme Court Justice

Magazine article Reason

How Antonin Scalia Shaped-And Misshaped-American Law: The Mixed Legacy of the Late Supreme Court Justice

Article excerpt

ANTONIN SCALIA, who died in February at age 79, will be remembered as a giant of American law. Appointed to the U.S. Supreme Court in 1986 by President Ronald Reagan, Scalia left his mark on some of the most significant issues facing the judiciary, from the debate over competing methods of constitutional interpretation to the clash over the proper role of the courts. Politicians, judges, and law-yers--not to mention generations of future law students--will be grappling with Scalia's handiwork for decades (or more) to come.

For many Americans, Scalia will be perhaps best remembered for his caustic dissents in cases dealing with issues such as abortion rights and gay marriage. When the Supreme Court struck down Texas' controversial ban on "homosexual conduct" in 2003, for instance, Scalia made headlines with his statement that the Court's decision in Lawrence v. Texas was "the product of a Court that has largely signed on to the so-called homosexual agenda." Scalia did not mean that as a compliment.

Yet despite his reputation as a right-wing culture warrior, Scalia was equally outspoken in other areas of the law that are commonly (if erroneously) associated with the legal left. When it came to the Fourth Amendment and its protections against unreasonable searches and seizures, Scalia frequently led the way in rejecting the pro-government interpretations favored by state and federal law enforcement. In 2014's Navarette v. California, for example, the Supreme Court ruled that a traffic stop and resulting drug bust that occurred thanks to an anonymous telephone tipster "complied with the Fourth Amendment." Scalia thought otherwise. In his dissent, Scalia attacked the majority for producing "a freedom-destroying cocktail" that privileges an anonymous and uncorroborated tip over a core constitutional right. "All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police." That ugly scenario, Scalia declared, "is not my concept, and I am sure it would not be the Framers', of a people secure from unreasonable searches and seizures."

Likewise, in his 2001 majority opinion in Kyllo v. United States, Scalia came out swinging against the use of warrantless thermal imaging to detect signs of marijuana cultivation inside of a suspect's house. "Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion," Scalia wrote, "the surveillance is a 'search' and is presumptively unreasonable without a warrant."

Justice Scalia wrote many influential opinions during his three decades on the Court, but the one he often said he was most proud of was his 2008 majority opinion in District of Columbia v. Heller, the landmark case in which the Supreme Court struck down Washington's handgun ban and ruled that the Second Amendment protects an individual right, not a collective one, to keep and bear arms.

Scalia was proud of Heller not only because it vindicated the Second Amendment, which until then had been in a sort of legal limbo at the high court, but because he saw it as a "vindication of originalism," the theory of legal interpretation that he did so much to help popularize and establish. …

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