No one, no matter how politically disengaged, could have possibly missed the last several days of talk regarding the death of Supreme Court Justice Antonin Scalia.

He was a luminary in popular culture and in law—a man both hated and loved. Here at the University, the reaction certainly centered on the former group, with people ringing in the death of the wicked witch, so to speak, mostly implicitly, but more than a few times with outright and explicit happiness. To be clear, I’m not writing this piece to rebut those individuals, nor should you expect to read 700 words fawning over the late justice, or a citation of the piece by Justice Ginsberg regarding her friendship with Antonin Scalia. Instead, I wanted to write this because, as someone who is more than a little interested in law, there is a huge part of Scalia’s legacy that few people really know about.

Let’s start with flag burning. Scalia, being a rather conservative justice, opposed the act. At least that’s what someone might expect from the “leader of the conservative legal movement.” Rather, Scalia was a powerful advocate of First Amendment protections, of protections against unwarranted search and seizure, and of defendants’ Sixth Amendment rights. In the flag burning case, Texas v. Johnson, a member of the Revolutionary Communist Youth Brigade was arrested in Texas for burning a flag outside the 1984 Republican National Convention. Accused of “vandalizing respected objects,” he was convicted and sent to prison for a year. In a 5–4 decision, Scalia joined the majority in declaring that the First Amendment specifically forbids the stifling of speech and that speech was considered to go beyond just words. Scalia argued that despite his dislike of flag burning, it is simply unconstitutional for the government to repress people’s free expression to express dissatisfaction with the state of the nation through the burning of the flag.

For fans of video games, Brown v. Entertainment Merchants Association (EMA) may be of interest. In this case, California attempted to ban the sale of certain violent video games, with the EMA arguing it as a violation of their First Amendment rights. Scalia, writing for the majority, eviscerated California’s argument that they had to ban the game to protect children and stated that there should be no restrictions on media. Stephen Breyer, a Democratic justice, joined those in the minority arguing that the government could ban media, going so far as to write that the government could create unclear or arbitrary restrictions.

In Maryland v. King, Alonzo Jay King Jr., upon arrest for assault in Maryland, had a DNA swab taken from him that linked him to an unsolved case from 2003. His lawyers argued, all the way to the Supreme Court, that such a swab constituted an unwarranted search in violation of the Fourth Amendment. The court ruled 5–4 in favor of Maryland’s swab, with Scalia writing a vigorous dissent, arguing the majority opinion as simply unconscionable. He explained that Maryland’s argument—that they took the DNA from the defendant to simply identify him and that the linking of the defendant to another crime as a happy accident—as simply unbelievable. In perhaps his most well-known line, the justice laments, “The proud men who wrote the charter of our liberties would not have been so eager to open their mouths for royal inspection.” Once again Justice Breyer joined the majority in supporting the swab.

In another Fourth Amendment case, Scalia declared in a 5–4 verdict that police had no right to use thermal imaging to scan someone’s home, that there is a “firm but also bright line” to security in one’s property.

Time and again Scalia also defended the rights of a defendant under the Sixth Amendment. In one opinion, he assaulted the government in a case that involved testimony not by an in-person witness, but by a tape recording, with no hope of cross-examination by the defense. In another, he argued that those facing evidence by DNA or other forensics have the right to face the technicians involved and explore their methodology. In another, he lampooned the police for stopping a car based on a vague 911 description and then arresting the driver for possession of marijuana. In many of these cases, Democratic justices seemed to switch sides, so it’s no wonder Kevin Ring, Vice-President of Families Against Mandatory Minimums writes, “With Justice Scalia’s passing, conservatism might have lost its best friend on the Supreme Court. But all of us who believe in the rights of the accused lost a good friend, too.”

We don’t know who President Obama will appoint as the new justice for the court, or whether that individual will be confirmed. But, whoever ends up taking Scalia’s seat, don’t assume they will protect First, Fourth, or Sixth Amendment rights like the departed justice has, or that a Democratic Supreme Court means a more liberal one.

 



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