Scalia’s Liberal Tendencies

In October 2012, during oral argument in a case that raised the question of whether and when a canine “alert” justifies a car search, Supreme Court Justice Antonin Scalia seemed genuinely flabbergasted not only by the idea that a police dog might be inadequately trained but also by the suggestion that police might exaggerate a dog’s abilities. “Why would a police department want to use an incompetent dog?” he asked. “What incentive is there for a police department?” The lawyer representing a man who had been incriminated by a dog-triggered search patiently explained that “the incentive is to acquire probable cause to search when it wouldn’t otherwise be available.”

In light of that exchange, it was not surprising that Scalia four months later joined the rest of the Court in a unanimous decision that effectively gave any cop with a dog the power to search cars at will. Yet a month after that ruling, Scalia wrote a majority opinion—joined by the unusual left-right alliance of Clarence Thomas, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor—that said deploying a drug-sniffing dog at the doorstep of a home qualifies as a search under the Fourth Amendment, meaning it generally requires a warrant. “The officers were gathering information in an area belonging to [the defendant] and immediately surrounding his house—in the curtilage of the house, which we have held enjoys protection as part of the home itself,” Scalia wrote. “And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.”

These contrasting decisions—one highly deferential to the police, the other demanding that they get a warrant if they want to go snooping around a suspected pot grower’s house—show how Scalia, who died on Saturday, alternately delighted and disappointed libertarians. Although he was not a consistent defender of individual rights (or a consistent originalist or federalist), he was nothing like the authoritarian ogre depicted by his critics on the left.

Daily Kos blogger Sylvia Moore thought Scalia was “clearly an authoritarian.” Panda’s Thumb blogger Matt Young was less definitive, saying “Justice Scalia generally comes across as an authoritarian.” Even legal writer Joan Biskupic, in her relatively respectful and sympathetic biography of Scalia, refers to his “authoritarian bent” and “authoritarian instinct.” Yet on the whole Scalia was more liberal than some of his purportedly liberal colleagues, frequently questioning the government’s authority to invade our literal and metaphorical curtilage.

Although Scalia’s defenses of property rights and the Second Amendment were of a piece with that libertarian tendency, progressives tended to see those stances as consistent with his reactionary reputation. They were less likely to notice when Scalia agreed with them on issues such as privacy, due process, and freedom of speech, since those positions did not fit his image as an arch conservative who automatically sided with the government. Here are some of the cases that contradict the caricature. 

Fourth Amendment. In addition to rejecting canines in the curtilage, Scalia wrote majority opinions requiring warrants for infrared surveillance of homes and GPS tracking of cars. In a 1989 dissent, he said requiring applicants for Customs Service jobs to pass urine tests represented an “immolation of privacy and human dignity in symbolic opposition to drug use.” In a 2009 concurrence, he rejected the notion that the danger posed by hidden weapons automatically justifies searching an arrestee’s car without a warrant, noting that “when an arrest is made in connection with a roadside stop, police virtually always have a less intrusive and more effective means of ensuring their safety.” Scalia also joined the 2014 decision that rejected warrantless searches of arrestees’ cellphones and the 2009 ruling that school officials violated the Fourth Amendment when they searched a student’s underwear for unauthorized ibuprofen. In 2013 Scalia dissented from a decision upholding a Maryland law requiring routine collection of DNA from arrestees:

The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous….These DNA searches have nothing to do with identification….If the Court’s identification theory is not wrong, there is no such thing as error.

Due Process. In Hamdi v. Rumsfeld, the 2004 case involving an American citizen detained in the United States as an “enemy combatant,” Scalia took the most radical position against the Bush administration, saying the government had to try Hamdi in civilian court or let him go.

Sixth Amendment. Scalia and Thomas led the charge against mandatory federal sentencing guidelines, insisting that the Sixth Amendment right to trial by jury means judges may not determine facts that automatically trigger harsher punishment. Because that position prevailed, the guidelines are now merely advisory, allowing judges to give defendants shorter sentences when they deem them appropriate (as long as no statutory minimum applies). In a 2011 dissent, Scalia mocked the majority’s conclusion that a dying victim’s identification of his attacker was not “testimonial” and therefore could be repeated in court without violating the defendant’s right to confront his accusers:

Today’s tale—a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose—is so transparently false that professing to believe it demeans this institution…

For all I know, [the defendant] has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all.

First Amendment. Scalia demonstrated a wide-ranging respect for freedom of speech in cases dealing with advertising, online indecency, flag burning, dog fight films, violent video games, and criticism of politicians. His record in this area is stronger than those of justices commonly portrayed as more liberal. John Paul Stevens, for example, thought neither flag burning nor documentaries produced by advocacy groups organized as corporations should be covered by the First Amendment. 

In these cases, we see Scalia rejecting the arguments of law enforcement agencies, sometimes in scathing terms; defending the freedom to say controversial, offensive, and outrageous things; questioning the war on drugs as a justification for invasions of privacy; and upholding the rights of accused drug dealers, terrorists, rapists, and murderers. That is arguably the profile of a true conservative, assuming he wants to conserve the Constitution and the civil liberties it protects. But it is not the profile of an authoritarian.