Many of us have always admired Justice Scalia. When reading his opinions not only in law school but as practicing attorneys, we always admired his writing, his prose and his wit. Additionally, he will be remembered for his commitment to the principle that judges should be guided in deciding cases by the original public meaning of the texts that they are interpreting. As an op-ed in the USA Today put it so eloquently, he has totally reshaped the legal culture so that today there is much less use of legislative history and much more reliance on the constitutional text than there was prior to his elevation to the Supreme Court in 1986. As lawyers, that is what we want. We want judges to look at the plain text of the law, not reshape it. Here is a look at what we see as some of Justice Scalia’s significant opinions:
Right to Privacy:
Kyllo v. United States: The court declared 5-4 in 2001 that scanning a house with a thermal-imaging device without a warrant was unconstitutional because Americans had an expectation of privacy while in their residences. “To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment,” Scalia wrote for the majority
Jones v. United States: The court decided 5-4 in 2012 that law enforcement officials generally need probable-cause warrants to place a GPS tracker on a suspect’s vehicle and monitor their every move. Writing for the majority, Scalia said that affixing the device to the car was a search, requiring Fourth Amendment scrutiny. “We hold that the government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search,'” he wrote.
Florida v. Jardines: The top court ruled 5-4 in 2013 that the authorities usually need a warrant to use a drug-sniffing dog outside a residence to determine if there are drugs on the inside. Scalia wrote the majority opinion.
“But when it comes to the Fourth Amendment, the home is first among equals. At the Amendment’s ‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion,'” the justice wrote, quoting a 1961 high court decision. “This right would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity; the right to retreat would be significantly diminished if the police could enter a man’s property to observe his repose from just outside the front window.”
Independent Prosecutor Law:
Morrison v. Olson: Justice Scalia was the lone dissent on this opinion but it changed the law several years later. In a 7 to 1 opinion, in which Scalia argued that the independent prosecutor law, which was on the books from 1978 to 1999 was both dangerous and unconstitutional. His arguments persuaded many and by 1999 both the Democrats and the Republicans in Washington, D.C. had seen the logic of Scalia’s dissent. The independent counsel law was changed.
Protecting the Right to Bear Arms:
District of Columbia v. Heller – In 2008, the Supreme Court held for the first time that the Constitution protects an “individual” right to keep and bear a handgun for purposes of self-defense and not only if they are members of a state national guard unit. It was Justice Scalia who wrote for a five-justice majority. Many see this opinion as one of his most important and historical opinions in his career. Many also see this landmark ruling as having a massive effect in protecting the gun rights of law abiding citizens.
Planned Parenthood v. Casey: In a 5-to-4 ruling upheld women’s right to an abortion but allowed states to impose some restrictions on the procedure. Justice Scalia, along with Chief Justice William H. Rehnquist, dissented. He argued that while the states had a right to permit abortions, they were not required to do so. He further insisted that the issue should be resolved by the democratic process, instead of through the courts. Justice Scalia’s death comes just weeks before the Supreme Court is to hear oral arguments on another abortion-related case, Whole Woman’s Health v. Cole.
Same Sex Marriage:
Obergefell v. Hodges: In 2015, this decision legalized same-sex marriage throughout the nation. Justice Scalia angrily attacked the majority opinion from Justice Anthony Kennedy, saying that, while what laws say about marriage “is not of immense personal importance to me,” the justices in the majority had usurped the power of the people to govern themselves through the legislative process.
Scolding the President/Affordable Care Act
National Labor Relations Board v. Noel Canning: “The court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future presidents against future Senates.” -2014
Delivering a concurrence to a unanimous decision by the court more specifically defining the presidential power of appointments during recesses, Justice Scalia was cynical how the defined time would be used by future presidents.
King v. Burwell: In a 6-3 2015 decision, the court ruled to uphold Obamacare, aka the Affordable Care Act (President Barack Obama’s universal healthcare initiative). “We should start calling this law SCOTUScare,” Scalia wrote in his dissent.
A New Culture
Lawrence v. Texas: The court decided 6-3 in 2003 to outlaw criminal sanctions for acts of homosexuality. Scalia issued a blistering dissent: “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.”
Kansas v. Marsh: Justice Scalia joined the majority in ruling that the State of Kansas’ death penalty law was constitutional. The state’s Supreme Court had struck down the law in 2004. Justice Clarence Thomas wrote the majority opinion, and Justice David Souter wrote a passionate dissent citing the exonerations after death penalty convictions, which he referred to as “hazards of capital prosecution.” Justice Scalia’s scornful response has been widely quoted as the number of exonerations in capital punishment cases has grown.