Mimesis Law
22 January 2020

Scalia’s Greatest Hits

Feb. 15, 2016 (Mimesis Law) — The passing of Justice Scalia has led most of his eulogists, at some point or another, to describe him as a “polarizing” figure. Which is true, so far as it goes, but it’s not the whole story. Most of his notoriety stemmed from his bluntness and pugnacity, both as a speaker and in his writing. He seemed to take delight in phrasing things in such a way as to piss off as many people as possible, such as his infamous line in the Troy Davis case that

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent.

Scalia was a smart guy, and must have known exactly how the public would interpret that. He didn’t care. (His larger point was that actual innocence claims in the absence of any constitutional violations was not something that federal courts should involve themselves in; an unpalatable position but a defensible one.)

Why was Scalia regarded as the Court’s iconic conservative, more so than Roberts, Thomas, or Alito? Part of it was his persona. But more than that, it was the simplicity of his jurisprudence: the Constitution and the laws meant what the people who wrote them thought they meant. If you don’t like it, amend them. While one might disagree with that principle, it made the logic and the reasoning of opinions extraordinarily clear.

This could lead him to accept outcomes that are unacceptable. In Missouri v. Frye, the Court held defense counsel’s egregious failures during the plea-bargaining process was a violation of the Sixth Amendment right to the effective assistance of counsel. Justice Kennedy wrote for the majority that:

The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages.

In today’s criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.

Justice Scaliabadger don’t care. In his dissent, he said:

The plea-bargaining process is a subject worthy of regulation, since it is the means by which most criminal convictions are obtained. It happens not to be, however, a subject covered by the Sixth Amendment, which is concerned not with the fairness of bargaining but with the fairness of conviction. “The Constitution . . . is not an all-purpose tool for judicial construction of a perfect world; and when we ignore its text in order to make it that, we often find ourselves swinging a sledge where a tack hammer is needed.” Padilla v. Kentucky, 559 U. S. ___, ___ (2010) (Scalia, J., dissenting) (slip op., at 1).

Leave aside that quoting his own dissent is poor form. What he’s essentially saying here is that two and a quarter centuries of the evolution of the criminal justice system are irrelevant. Since plea bargains weren’t as common in 1791 or 1868, they have no bearing on a defendant’s constitutional rights in 2012. If you believe in originalism, that makes sense. But the suggestion that a lawyer can screw over a defendant so long as he doesn’t fall asleep in trial (or maybe even if he does) is ludicrous.

The thing is, he stuck by his principles even when it led him to come down in favor of the defense. He wrote the majority opinion in Crawford v. Washington, the case that held that the Confrontation Clause meant that the defendant actually got to confront the complainant. He stuck with that position in Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico, which held the same for scientific testimony. Most tellingly, he joined the dissent in Williams v. Illinois, in which the plurality fudged the holding of Melendez-Diaz and Bullcoming because they didn’t want to let a rapist go. His partners in the dissent were Kagan, Sotomayor, and Ginsburg. That wouldn’t have happened if he were the hack his critics sometimes assumed him to be.

The best thing Scalia ever wrote, though, wasn’t in a criminal case. In 1992, Planned Parenthood v. Casey was the latest attempt to overturn Roe v. Wade. Scalia, in his dissent, said the following:

The Court’s description of the place of Roe in the social history of the United States is unrecognizable. Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress, before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue–as it does over other issues, such as the death penalty–but that disagreement was being worked out at the state level. As with many other issues, the division of sentiment within each State was not as closely balanced as it was among the population of the Nation as a whole, meaning not only that more people would be satisfied with the results of state by state resolution, but also that those results would be more stable. Pre-Roe, moreover, political compromise was possible.

But to portray Roe as the statesmanlike “settlement” of a divisive issue, a jurisprudential Peace of Westphalia that is worth preserving, is nothing less than Orwellian. Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since. (emphasis added)

Whatever your opinion on abortion, Scalia is absolutely right about this. Since Roe, judicial nominations have become a proxy fight over various social issues, not just abortion. Judges are evaluated not by their decision-making abilities or their reasoning, but by whether or not they decided in favor of one’s political party. That’s the opposite of Justice Scalia was about. Agree or disagree with him, he had his principles and he stuck to them. Love him or hate him, people respected him for that. Here’s hoping we get back to that.

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