El Nino Scalia

Antonin Scalia is dead. Say what you will, there is no rejoicing from me. Was Nino a malefactor in Supreme Court jurisprudence over the decades since his confirmation on September 26, 1986? Yes, and an irascible one as well. Once Bork got Borked, Scalia was the whipping post for all liberals, on the continuity of the spectrum. Did he earn that status? Yes, and maybe then some.

The hagiography of Nino is already quite well underway. I was out shopping for garden/landscaping things and had no idea until called by Marcy. It still took me a while to get back and dive into this. There are a million takes already underway on the net and in the press, such as the press may be these days. If you want a recap of the same old, this ain’t it. And, for now, what I have to say is not all that long or extricated.

First off, let’s talk about Scalia the man and Justice. As said above, once Bork got Borked, there was going to be a piñata for liberals (like me) to pound on. And, over the years, boy have I, and we, done just that. And for, mostly, good reason.

But anybody can blabber about what a prick Nino was. Fairly. But, in the current context, I want to do something different. As loathsome as Scalia often was, he was still somewhat of a hero to people that practice actual criminal law. No, not across the board, but enough that it ought be mentioned and left as a part of his legacy.

Why? Okay, this is a quick take:

Fourth Amendment: There is actually a long thread of Scalia decency on Fourth Amendment issues over the years. I have had occasion to quote him from both majority and dissents frequently. But, most recently, you can probably relate most easily to United States v. Jones, Riley v. California and, significantly, Kyllo v. United States. Now Scalia only penned Jones and Kyllo, but his fingerprints were all over Riley too. This is just my opinion, but I am not sure that a lesser conservative justice on the court would have seen these decisions through, and allowed them to be as consensus as they were.

One law professor, Tim MacDonnell, put it this way:

Since joining the United States Supreme Court in 1986, Justice Scalia has been a prominent voice on the Fourth Amendment, having written twenty majority opinions, twelve concurrences, and six dissents on the topic. Under his pen, the Court has altered its test for determining when the Fourth Amendment should apply; provided a vision to address technology’s encroachment on privacy; and articulated the standard for determining whether government officials are entitled to qualified immunity in civil suits involving alleged Fourth Amendment violations. In most of Justice Scalia’s opinions, he has championed an originalist/textualist theory of constitutional interpretation. Based on that theory, he has advocated that the text and context of the Fourth Amendment should govern how the Court interprets most questions of search and seizure law. His Fourth Amendment opinions have also included an emphasis on clear, bright-line rules that can be applied broadly to Fourth Amendment questions. However, there are Fourth Amendment opinions in which Justice Scalia has strayed from his originalist/textualist commitments, particularly in the areas of the special needs doctrine and qualified immunity.

I do not agree with everything in MacDonnell’s article, but it is quite good and his dubious context is spot on. Scalia has been more than prominent in Fourth Amendment jurisprudence since his time on the court. I have serious issues with many of the “exceptions” he has bought off on in the name of police expediency, but I can, and do, imagine a different justice being far, far, worse on the Fourth (can you say “Alito”? Of course you can). So, there is that. But, by the same token, I remember coming out of court and getting informed of the Kyllo decision. Several drinks were hoisted to Scalia that afternoon and night.

Then, there is the Sixth Amendment. This is an area on which Scalia gets scant attention and credit for. And, yes, if you practice criminal law, it is one of critical importance, whether pundits or the press realize it or not. Because if you happen to actually do criminal jury trials (or bench for that matter), you know the critical importance of being able to confront and cross-examine the witnesses and evidence against your client, the defendant. I have cited Scalia’s words, both successfully and unsuccessfully, for a very long time on confrontation issues. But the successes I, and clients, have had owe in large part due to Scalia. Here is a bit from David Savage, of the LA Times, from 2011 that summarizes Scalia’s Confrontation Clause championing about perfectly:

The 6th Amendment to the Constitution says the “accused shall enjoy the right … to be confronted with the witnesses against him.” To Scalia, this clause not only gives defendants the right to challenge actual witnesses, but also the right to bar testimony from all those “witnesses” who did not or cannot testify in court. He takes this view even if the witness is dead.

Three years ago, Scalia led the court in reversing the murder conviction of a Los Angeles man who shot and killed his girlfriend. A police officer testified the victim had reported that Dwayne Giles threatened to kill her. Scalia said that testimony violated Giles’ rights because he could not confront or cross-examine her.

“We decline to approve an exception to the Confrontation Clause unheard of at the time of the founding,” Scalia said for 6-3 majority. This went too far for liberal Justices John Paul Stevens and Stephen G. Breyer.

Two years ago, Scalia spoke for a 5-4 majority reversing the conviction of an alleged cocaine dealer from Massachusetts because prosecutors did not bring to court a lab analyst whose test confirmed the bags of white powder were indeed cocaine. The dissenters, including Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy and Samuel A. Alito Jr., said a lab technician who conducts a test is not a “witness” in the ordinary sense of the term.

In June, the court went one step further. The Scalia bloc, by a 5-4 vote, overturned the drunken-driving conviction of a New Mexico man because the lab analyst who testified about his blood alcohol did not actually work on the defendant’s blood sample. He put together an odd-couple coalition with Justices Clarence Thomas, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

“This is not a left-right split. This is principle versus pragmatism,” said University of Michigan law professor Richard Friedman.

Frankly, Scalia has only reinforced that since late 2011 when Savage wrote said words. If you practice in a criminal trial courtroom, you owe a debt of gratitude to Antonin Scalia for your ability to still confront and cross-examine witnesses and evidence. I don’t think it is hyperbole to say that, without Scalia, this fundamental procedural right would be totally shit right now.

So, this is but a nutshell of the greater whole, and I am still trying to catch up. But those are my thoughts for now. Do not get me wrong, Antonin Scalia was never, nor will ever be, my favorite, nor even an overall positive Supreme Court Justice in my eyes. There is too much malignancy and caustic history from Scalia, on far too many fronts, for that to ever be the case. But the man is not yet even in the ground, and there were a couple of important positive things to say before the ultimate obituary is written.

And, on one other note, let’s keep in mind that the warm and fuzzy stories of Scalia with Ruth Bader Ginsburg, from court interaction, to opera to shooting at animal trips is not the only history of Nino Scalia and women on the Supreme Court. He was, certainly less famously, in some instances, a frat boy jerk to Sandra Day O’Connor. So, take the lionization of the Kagan relationship with a healthy grain of salt.

Antonin “Nino” Scalia was a flawed, but important man. He is now gone. So, the biggest issue is, what happens now? Republican leadership did not have to announce that they will stall their asses off and try to prevent the confirmation of ANY nominee that Obama would put up. Frankly, that went without saying in today’s Congress.

But, can they do that, will there be no Obama SCOTUS nominee confirmed, no matter what? I would not be shocked if that were not so. By the same token, the longest a confirmation battle has ever taken to confirm a SCOTUS Justice is 125 days (Obama has 361 left).

Obama has already said he will make a nomination, and I believe he will. If I had to bet right now, my bet is that the nominee is Sri Srinivasan. I have long thought this, and Sri, while being a decent guy, is a dead nuts centrist, barely a “liberal” at all kind schlub that Obama loves. But I doubt the crazed GOP led Senate would confirm even a milquetoast centrist like Srinivasan. Let other speculation begin now even though the chances of confirmation of any nominee are close to nil.

Irrespective, the primary, and certainly the general, elections just got FAR more interesting. Frankly, this is the only part of the election I was really worried about from the get go. Now it is squarely on everyone’s plate.

47 replies
  1. rosalind says:

    to give bmaz further agina, reposting fm twitter: consulting my Plutocracy Nepotism handbook the only acceptable candidate is: Eugene Scalia.
    as for the video, damn. RIP Warren, Don Alias and Hiram Bullock. My buddy is the keyboardist for David Sanborn and I have been fortunate to see Don & Hiram (and Warren!) in action many times. also feeling extra feelz over finding out a good high school bud is battling Parkinson’s.
    ah life. the bitter & the sweet.

  2. Peterr says:

    Thanks for this, bmaz. Like you, I’m hardly one who would be pegged to write a haigographic piece on Nino, but I’m grateful to see where the classic “Scalia=Evil” framing does not fit.

  3. Hcgorman says:

    Bzaz, I wonder why you would feel that the first thing(s) to mention about Scalia would be the so called “good things”? He was awful on almost every issue that most of us who read this blog care about. I for one cannot/will not focus on any of his so called good decisions…. but instead I must focus on the very long list of awful decisions? I will not revel in his death but I also will not look for a silver lining in his life. Scalia was a disaster on the bench and we will spend decades unraveling what he did — unless of course we don’t! Which of course will be an even greater disaster.
    Best regards,

    • bmaz says:

      Well, the awful of Scalia, and there is a lot of that, is pretty well documented. It is a narrow niche, but there were a couple of notable areas that impinged on what I do. So, thought I would get that out and over with, and I do think his efforts, especially on the 6th Confrontation, the Fourth less so, but still notably, are worth acknowledging.
      As bad as Scalia was, he was, in my book, not nearly as malignant a judicial actor as either Alito or Thomas. If the GOP gets a President elected who appoints another Alito, which is exactly what they would do, you will look back fondly on Scalia. But those are the stakes now for the upcoming election.

    • emptywheel says:

      Plus, I asked him to do it!

      (Maybe I’ll make him to do a summary of all his worst later in the week.)

    • John Casper says:

      bmaz, thank you.

      In 2008 the passing of liberal Steve Gilliard schooled me in how much deaths, and the obituaries that follow them, matter.

      Warning: the link below is refined, well-educated, white supremacy.

      “DEATH OF A HOUSE NEGRO: First Hogzilla II, now this?”

      “Which brings us to today’s marquee morbidity. The tragic, untimely death of Donk House Negro and all around bigot Steve Gilliard. Who knew that boiling bacon grease in a spoon and mainlining it into the neck vein was bad for your health?”


      When liberals die, the wing nuts will find the most vitriolic condemnations of Scalia to justify their obits. They’ll be disappointed when they read this.

  4. Bitter Angry Drunk says:

    I guess, in the interest of fairness, I can appreciate the lawyerly perspective of bmaz on some of the very few matters Scalia was on the right side of, On the other hand, he’s in hell now and I’m not too broken up about it.

    And I’m totally cool with making this a Zevon tribute thread. Mr. Bad Example is one of the very few songs I vividly recall hearing for the first time. Just knocked me on my ass with its awesomeness then, and now. And it’s a polka.


      • Bitter Angry Drunk says:

        Wish I could attribute knowing that to my superior musical acumen, but the truth is about 20 years ago I bought a 4-CD box set of Zevon’s best-known songs. Naturally his notes on each track made for entertaining reading.

  5. Ed Walker says:

    I despised Scalia as a judge. In partisan cases, he was strictly a partisan. It’s also true that in some complex matters which are essentially non-partisan, his decisions were reasonable. No one, including me, expects anything different on the latter kind of case. It’s the partisan cases where the reputation is made.
    Still, it’s important to get a good round look at the overall picture. For that I thank bmaz.

  6. pdaly says:

    A friend found this Bette Davis quote:
    “You should never say bad things about the dead, you should only say good . . . Joan Crawford is dead. Good.”

  7. scribe says:

    Pretty much what you said, Bmaz. Worth noting, too, that in Massachusetts …

    Two years ago, Scalia spoke for a 5-4 majority reversing the conviction of an alleged cocaine dealer from Massachusetts because prosecutors did not bring to court a lab analyst whose test confirmed the bags of white powder were indeed cocaine. The dissenters, including Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy and Samuel A. Alito Jr., said a lab technician who conducts a test is not a “witness” in the ordinary sense of the term.

    it’s worth remembering that the Massachusetts government has had to hire additional lawyers to defend convictions of drug dealers who were convicted on the falsified evidence provided by Annie Dookhan, a lab tech who wanted to help the prosecution and “be a part of the team”. https://en.wikipedia.org/wiki/Annie_Dookhan http://www.bostonglobe.com/metro/2013/02/03/chasing-renown-path-paved-with-lies/Axw3AxwmD33lRwXatSvMCL/story.html Melendez-Diaz won’t prevent liars and lies like Dookhan and her bogus work, but cross-examination can uncover them.
    Another thing Bmaz did not mention was Scalia’s support of Apprendi and its requirement of proving facts to the jury. https://en.wikipedia.org/wiki/Apprendi_v._New_Jersey While the odious rules permitting sentencing on the basis of uncharged conduct, let alone unproven conduct, still remain, without Apprendi things would be much worse.

    The thing about Scalia is that he hewed to principles. Whether you agree with how he came out in the end or not – and I have a lot of problems with his decisions, too – you have to credit him for being consistent. That’s the problem with principles – they cut in every direction, often through something you like.

    • phred says:

      Thanks for the post bmaz. Yours is the only one I have bothered to read as I’m not particularly interested in obituaries and tributes to a Supreme Court justice who bragged about the constitution being a dead document (which is absurd for any document that governs the living) only when it suited his ideology.
      scribe, I had the same reaction about the Massachusetts case, Annie Dookhan is the poster child for why cross-examination is essential. However, I disagree with your view that Scalia was consistent. Like all those who rail against “judicial activism”, Scalia only insisted the constitution was fixed and immutable when it was convenient to his argument, otherwise he happily interpreted it to suit his cause.
      I was delighted to read that he had departed the court, but that reaction is tempered by the reality that Obama is unlikely to choose a nominee to celebrate.

      • John Casper says:

        “I was delighted to read that he had departed the court, but that reaction is tempered by the reality that Obama is unlikely to choose a nominee to celebrate.”

        The hope is that the GOP Senate is too dumb to confirm Obama’s nominee and we get someone better after January ’17. #terminaloptimist

        • phred says:

          And that is what I like so much about you, your “terminal optimism” ; )
          Feeling the Bern, eh? Me, too : )
          KMA Madeleine and Gloria. You can’t tell me that the latter would have told me to vote for Phyllis Schafly back in the day. Un-freaking-believable that those two are advocating gender-specific vote casting. All men should vote for men and all women should vote for women?!?!? Umm, did they miss the last 50 years of feminism? Sorry for the digression, but I’ve been away and that little dust-up really frosted me…

  8. orionATL says:

    scalia may have been good for criminal lawyers, and thus for all of us, but scalia was

    – a republican political operative on the supreme court, just like alito, roberts, and rehnquist

    – a very confident, arrogant legal sophist who made sure his argument fit his conclusion.

    – an american citizen who burdened his country with old world moral views, if you don’t understand my abstractness, i’m speaking of his peculiar brand of catholicism.

  9. Cujo359 says:

    I remembered Scalia being on the side of the angels at least a few times in his SC career, but not being a lawyer ,I didn’t know in what areas he usually managed that. So, thanks for the rundown.
    Like most important people, his effect was a mix of good and bad.

  10. orionATL says:

    to me the case of jose padilla is a central matter in the-war-on-terror’s destruction of constitutional guarantees of citizen protection against arbitrary executive action. .

    i have tried just now to check scalia’s votes on padilla. it’s a windy road and i’m not capable of evaluating him fairly but my quick reading is that he

    – gave a ringing declaration of opposition to executive (presidential) authority to detain without clear cause

    but then

    – voted on a technicality (where and whom to sue) to allow the government temporarily to continue to detain padilla.

    executive detention at will and “material support for terrorism” laws are two constitutional disasters arising from the bush-cheney “global war on terrorism”.

    where did salia land on these?

    • Bitter Angry Drunk says:

      God, that Lithwick piece. I’ve officially reached my limit of “say something nice” anecdotes about that hateful old POS.

      • lefty665 says:

        bmaz@32 Very good:) The trains have gotten worse and the cars a lot faster since his passing, in all the country is hugely better off.
        I hear you, none of us is all good (especially me) or all bad (ditto), and it is appropriate to note the places Scalia got it right. As you open with, he was a prick. A friend of mine, a member of the D.C. bar who had local experience with him, noted when Scalia was nominated: “The bastard is young enough to screw things up for a long time.” He was right.
        My wager is if O really wants to get someone confirmed, he nominates a Senator. Them boys will have a harder time not confirming a member of the club. For example, someone like Sheldon Whitehouse who sits on the Judiciary Committee.

  11. Bay State Librul says:

    “Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed them both better.” Gay Rights Decision

    Some will rejoice in losing Scalia, others will mourn.

    For me, I enjoyed his prose and metaphors, that’s about all. His decisions were losers. He owed us much more, He chose bias over honesty. I though he was mean and arrogant.

    • Bill Michtom says:

      He was a total bigot and the creator of a fabulist version of the actual Constitution. “Originalism” is total bullshit and the “what a great guy” crap is nauseating to read.

      My first response upon hearing the joyful news was to sing “Ding dong the witch is dead”!

      • orionATL says:

        “… [Scalia’s] Originalism” is total bullshit…”

        indeed it is.

        but not just “originalism”. scalia’s originalism combined with his complete dismissal of legislative intent, i. e., history.

        what might originalism + dismissal of legislative history have given scalia?

        it wipes the slate clean,

        and thereby gives justice scalia carte blanche to write his own (current, republican) version of the constitution.

      • bmaz says:

        There won’t be a recess appointment. It would have to be done right now, and that just isn’t happening. Frankly, not even sure Obama has the power to do so with the way the Senate adjourned in light of the Noel Canning decision. I know it is the chatter on the internets, but it is not happening. Obama will make a normal nomination in due course by my bet.

  12. bloopie2 says:

    Scalia was possibly racist, as well as being against abortion and gays. That (racism) is not in the Catholic catechism, I believe. Perhaps although his Catholicism played a large part in his beliefs and led him not to question “ancient” teachings (viz the Constitution), still he may have also been one of those who grew up before the civil rights movement and who had trouble changing horses in midstream, leaving the underlying prejudices to surface now and then. Likely a combination of factors. Nevertheless, as the Onion said, his thirty year battle with social progress is over now. Kudos to bmaz to starting this thread off with a well-considered post.

  13. orionATL says:

    after the xecember, 2000 putsch was over, and the bush-cheney gang installed in washington, my recollection is that an fsu professor discovered there were 750, 000 floridian votes that had been disqualified solely because voters, wanting to be certain of being heard, had both used the voting machine to select their candidate and handwritten in their candidate’s name. no ambiguity at all.

    so much for sonorous legal writing.

  14. orionATL says:

    wikipedia, bush v. gore:

    [… By December 8, 2000, there had been multiple court decisions regarding the presidential election in Florida[12] and on that date the Florida Supreme Court, by a 4–3 vote, ordered a statewide manual recount.[13] On December 9, the U.S. Supreme Court voted 5–4 to stay the Florida recount, because according to Justice Scalia:

    It suffices to say that the issuance of the stay suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success. The issue is not, as the dissent puts it, whether “counting every legally cast vote can constitute irreparable harm.” One of the principal issues in the appeal we have accepted is precisely whether the votes that have been ordered to be counted are, under a reasonable interpretation of Florida law, “legally cast vote[s].” The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.[14]

    The dissenters opined:

    Counting every legally cast vote cannot constitute irreparable harm… Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election.[14]

    The four dissenting justices argued that stopping the recount was an “unwise” violation of “three venerable rules of judicial restraint”, namely respecting the opinions of state supreme courts, cautiously exercising jurisdiction when “another branch of the Federal Government” has a large measure of responsibility to resolve the issue, and avoiding making peremptory conclusions on federal constitutional law prior to a full presentation on the issue…]

  15. P J Evans says:

    There are people already whining about Srinivasan, for various reasons:
    his corporate clients, his friendship with Cruz (according to Cruz), his clerking for O’Connor, his (assumed) conservative political views.

  16. Bill Michtom says:


    My only concern is doing as much as possible to get a recess appointment of someone at least half decent, certainly not a centrist like Sri Srinivasan. Do you have suggestions that we could inundate Obama with?


  17. Denis says:

    bmaz, you’re absolutely right to press back on the liberal tunnel vision of Nino as a total, intractable right wing-nut, and thank you.
    Nino could lean even farther to the left than his buddy Kiki Ginsburg normally does, Example: his ripping liberal dissent in Riverside County v. McLaughlin. In that 4th amendment dissent he discussed a case I was a defendant in, and so thereafter his liberal opinions/dissents caught my attention more than they would have. Consequently, my opinion of him is likely a bit softer than a criminal defense attorney’s would be, and not as well informed.
    Back story on how Nino helped me win a big one in the Virginia Supreme Court: http://logophere.com/Topics2016/16-02/16-02-14-Nino.htm
    But every justice has cases he/she will be hated for by future generations. As “W” once said, “You can please all of the people some of the time and some of the people all of the time, and you can please somebody as brain damaged as I am most of the time.”
    I don’t know of any opinion Nino wrote that has caused more damage to Americans’ personal liberties than Kiki’s opinion in Bennis v. Mich, which opened the flood-gates of the civil asset forfeiture scam. Kiki teamed up with Scalia, Rhenquist, and Thomas on that fascist fuster-cluck ™, and yet to the liberals she’s the queen of American liberalism. When the Texas cops pull you over for a tail-light and lift $5000 from your pocket without charging you with anything, thank Ginsburg.
    Kiki was also on the majority in the Kelo v. New London, which that gave the stamp of approval to local government kick-back crooks using eminent domain to take private property for WalMart et al. private development. If that case doesn’t make you throw up, you ain’t got cred as a liberal, and yet Scalia was on your side on that one, too.
    At least Nino had the good taste to make a timely exit. Shall we note in this context the old hag’s refusal to retire a year or two ago so Obama could appoint a liberal to fill her place? Kiki said her motivation for hanging on was to be on the bench as long as her hero, Brandeis. It’s a Jewish thing. And it could very well result in another 30 years of a conservative court if the Republicans take over.
    IMO liberals should be a lot less happy that Scalia died during Obama’s term and a lot more depressed that Ginsburg hasn’t.

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