Tagged: Justice Antonin Scalia

In Memoriam: “Justice Scalia’s Faux Originalism”

The passing of Justice Scalia last week shook the Nation. As many share memories, review his work, and analyze his jurisprudence, we present our third in a series of observations on Justice Scalia’s tenure as a Supreme Court Justice.  This one, by Prof. Bennett L. Gershman of Pace Law School, is a link to his most recent HuffPost piece entitled “Justice Scalia’s Faux Originalism.”

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In Memoriam: Justice Antonin Scalia

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

When a Justice of the United States Supreme Court dies while still in service, commentators typically come forward to denounce or praise the Justice’s Court decisions and engage in speculation about the Justice’s replacement. All of that, of course, is fair game.

All of us, no matter what our station, who have chosen the law as a profession must, if we are conscientious, think about how we will be remembered after we are gone and our work is done.

Justice Scalia served on the Supreme Court for thirty years and participated in numerous Court decisions that have divided commentators as to their merits. But whatever the merits, we should all be mindful of how much effort, devotion, and care must have been undertaken over decades to try to remain faithful to the solemn oath to preserve and protect the Constitution and laws of the United States.

One of the writings Justice Scalia most admired was the passage below from the 1960 play, A Man for All Seasons, about the life of Thomas More, Lord Chancellor of England in the 16th Century. What the passage says about adherence to the law is perhaps worth remembering in our troubled times.

Roper: So now you’d give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I’d cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast — man’s laws, not God’s — and if you cut them down — and you’re just the man to do it — d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

Justice Antonin Scalia and His Legacy in Criminal Law

WRITTEN BY: Anjelica Cappellino, Esq. & Prof. John Meringolo, Esq.

Justice Antonin Scalia’s recent passing has shocked the public, to say the least. The 79-year old Supreme Court Justice died in his sleep on February 13, 2016, while staying at a Texas resort during a hunting trip. The first Italian-American to serve on the Supreme Court, Scalia leaves behind his wife of fifty-five years and nine children.

Scalia’s death has already caused political chaos and derision as to who will appoint his successor and whether said appointment can be postponed until next year when the succeeding United States president takes office, even though President Obama is constitutionally beholden to choose the appointment and

[t]he historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election.  In that period, there were several nominations and confirmations of Justices during presidential election years.

It is no secret that Justice Scalia’s passing immediately furthered the divide between political parties, as Scalia was considered a staunchly conservative linchpin for many right-leaning opinions and his successor could tilt the direction of the Supreme Court. Interestingly, however, Scalia’s record on criminal law issues is quite diversified and does not prescribe to the values of only one political side.

Scalia was oftentimes a protector of Fourth Amendment rights, as evinced in several different opinions. In Kyllo v. United States, 533 U.S. 27 (2001), Scalia wrote the majority opinion which held that a thermal-imaging device used to detect amounts of heat emanating from a private home – which uncovered the defendant’s homegrown marijuana operation – constituted a search within the meaning of the Fourth Amendment. As Scalia writes,

in the case of the search of the interior of homes – the prototypical and hence most commonly litigated area of protected privacy – there is ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment.

In other majority opinions penned by Scalia, he has evoked similar rhetoric, holding that GPS tracking in vehicles, United States v. Jones, 132 S.Ct. 945 (2012), as well as the use of drug sniffing dogs on a person’s front porch, Florida v. Jardines, 133 S.Ct. 1409, both constitute a search within the meaning of the Fourth Amendment.

Scalia has always stressed the manifest importance of the Sixth Amendment to all defendants. In the seminal case Blakely v. Washington, 542 U.S. 296 (2004), which held that the Sixth Amendment right to a jury trial prohibited judges from using facts that were not presented to a jury or admitted by the defendant to sentence a defendant above the maximum penalty, Scalia writes that the “right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure.”

A strong proponent of the Sixth Amendment’s Confrontation Clause, Scalia wrote for the majority in Crawford v. Washington, 541 U.S. 36 (2004), which held that defendants have the right to live testimony in order to cross-examine the witnesses against them. Scalia articulates that, “the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Similarly, in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), which held the defendant’s Sixth Amendment rights were violated when a forensic analyst’s lab report was admitted against him without him having the opportunity to cross-examine the individual who prepared the report, Scalia states

[a] forensic analyst responding to a request from a law enforcement official may feel pressure – or have an incentive – to alter the evidence in a manner favorable to the prosecution. Confrontation is one means of assuring accurate forensic analysis.

The above cases are just a few examples of the myriad of ways Scalia has shaped criminal law throughout his three decades on the bench. While the appointment of his successor is undoubtedly a hot button, partisan issue, Scalia’s own opinions, particularly on issues of criminal law, are that of a jurist with allegiance not to one political view but to one document – the Constitution.

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