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The Court after Scalia: A mixed bag on criminal law and procedure issues

Rory Little is the Joseph W. Cotchett Professor of Law at UC Hastings College of the Law.

A binary “liberal-conservative” dichotomy simply does not fit when the criminal law jurisprudence of the late Justice Antonin Scalia is examined. That is because, as NYU professor Barry Friedman recently noted, the results of Justice Scalia’s analysis in criminal cases over his thirty-years of service are “complicated” and “conflicted.” Just for example, Justice Scalia ruled pretty consistently in favor of Fourth Amendment privacy rights over three decades, quite often in favor of a criminal defendant and against the government (running, for example, from Arizona v. Hicks in 1987 through Florida v. Jardines in 2013). When you add his decisions in other criminal procedure areas – the Confrontation Clause (Crawford v. Washington, 2004), sentencing facts for the jury (Blakely v. Washington, 2004), and clear and strict construction of criminal statutes (Johnson v. United States, 2015) – the Justice’s jokingly self-imposed descriptor as a “poster child” for the National Association of Criminal Defense Lawyers hits close to reality. But meanwhile, on topics like the death penalty and Miranda rights, and remedial questions such as the exclusionary rule or habeas corpus, Justice Scalia struck what many would call a decidedly “conservative,” or at least not defendant-friendly, tone.

Because of this seemingly conflicted jurisprudence – although I imagine the Justice would see himself as consistent at all times – it seems imprudent, if not impossible, to say what single effect a new “liberal” Justice might have on the Supreme Court’s criminal law docket. The question is, like most in the law, more contextual and granular than that. This is so not just because Justice Scalia’s decisions span the political gamut, but also because the definition of a “more liberal” Justice is itself unclear. For example, some see the current nominee, D.C. Circuit Judge Merrick Garland, as too “liberal,” while others on the left deride him as too conservative.

Given the reality of “confirmability politics” today regarding the Court, it is difficult to imagine any realistically confirmable nominee being more “liberal” on criminal law issues than Justice Scalia on all fronts. Yet at the same time, it seems inarguable that any nominee from a Democratic president is likely to move the Court in a “pro-defendant” (or “pro-rights”) direction in some significant ways.

The Fourth Amendment

It is by now well-recognized that Justice Scalia was, by 2015, “the Fourth Amendment’s greatest [contemporary] champion” on the Court. There are too many examples to discuss them all. In Justice Scalia’s earliest criminal law decision for the Court, Arizona v. Hicks (1987), he wrote (concurring in a decision to condemn an officer’s movement of a stolen stereo just a few inches), “a search is a search, even if it happens to disclose nothing but the bottom of a turntable.” The officer in Hicks had lacked probable cause, and the Court declined to allow a lesser standard. In response to “conservative” dissenters, Justice Scalia boldly wrote that “there is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.”

Indeed, Justice Scalia was consistently a critic of Fourth Amendment standards lower than probable cause. As he famously wrote when concurring in Minnesota v. Dickerson (1993), which strictly held that “reasonable suspicion” frisks are restricted to weapons, not evidence: “I frankly doubt . . . whether the fiercely proud men who adopted our Fourth Amendment would have allowed themselves to be subjected, on mere suspicion of being armed and dangerous, to such indignity.” Twenty years later, he expressed the identical thought when dissenting from the Court’s decision to uphold the taking of “DNA cheek swabs” from all arrestees in Maryland v. King, writing that “I doubt the proud [Framers] . . . would have been so eager to open their mouths for royal inspection,”

Thus Justice Scalia grounded his “liberal” views of constitutional criminal procedure in his textualist-originalist approach. Yet as to results, if not always rationale, he sometimes seemed, as I joke with my students, to “channel Justice Brennan.” Thus current nominee Merrick Garland, who is plainly more “liberal” than Justice Scalia on some fronts (and is also a former Justice William Brennan clerk), does not have a Fourth Amendment record to match Scalia’s. (Disclosure: I worked with Garland in the Justice Department during the Clinton administration, and I think he is an excellent nominee.) Indeed, it is difficult to imagine any Senate, even a newly Democratic one, confirming a nominee who bluntly expresses such strong “anti-government” privacy views as found in some of Justice Scalia’s Fourth Amendment writings.

Also (side note), this seems as good a time as any to note that whether the next Justice is liberal, conservative, or speaking Trumpism, there is no potential nominee on the horizon who writes with the consistently entertaining wit, eloquence, and pithiness of Justice Scalia.

Yet Justice Scalia was hardly “liberal” on all Fourth Amendment fronts. He authored the Court’s unanimous decision in Whren v. United States, rejecting claims of “pretextual” traffic stops under the Fourth Amendment even when the alleged actual motive was racial bias. A number of Justices, as well as scholars, have come to regret that decision, and it of course lies at the root of some current concerns regarding police encounters on the street. Justice Scalia also routinely ridiculed the exclusionary rule (which today is hardly a “rule” in most cases) and wrote to limit it at every opportunity (see, for example, Justice Scalia’s opinion for the Court in Hudson v. Michigan, 2006). Thus, even in the Fourth Amendment area, Justice Scalia’s opinions present a “mixed bag.” Without a doubt, a new “liberal” Justice will be asked to reconsider some of his more “conservative” results.

Other “liberal” criminal law doctrines of Justice Scalia

One fascinating aspect of Supreme Court “inside baseball” in the criminal law area is that Justice Stephen Breyer – a “liberal” Bill Clinton appointee – was often the more pro-government “foil” to Justice Scalia in some areas. As others have also noted, in numerous Fourth Amendment cases Justice Breyer often provided the Court’s fifth vote for the government, while Justice Scalia joined the “liberals” in dissent.

Thus, given Justice Scalia’s competing views – disapproving “reasonable suspicion” searches while excoriating the exclusionary remedy – it is a serious question which way Justice Scalia would have voted in the Court’s recent Utah v. Strieff decision, in which the Court declined to order the exclusion of evidence found after an unlawful stop made without any suspicion. Had Justice Scalia voted with the dissenting “liberals,” he might also have attracted Justice Breyer’s “moderate” vote – and thereby changed the result in this hugely significant five-three decision that is still “under the radar” for most politicians and the public. A new liberal Justice will undoubtedly be asked to reconsider Strieff, although new Justices are notoriously cautious in their early years.

The political “role reversal” of Justices Scalia and Breyer is also true in another “liberal” branch of Justice Scalia’s criminal law rulings: his strong protection for “right to jury trial” rights even for facts used to increase sentences rather than find guilt at trial. It was Justice Scalia’s dissent in Almendarez-Torres v. United States (1998, in which Justice Breyer wrote for the majority) that first advanced the constitutional theory adopted by the Court in Apprendi v. United States (2000) and expanded by Justice Scalia in Blakely (2004), requiring that facts which increase a statutory maximum sentence must be found by a jury, not judge, and beyond reasonable doubt, not just a preponderance. Justice Scalia’s theory revolutionized much criminal sentencing and statute-writing. But Justice Breyer, who dissented in Apprendi, has consistently said that he cannot join his fellow liberals in “Apprendi-land.” A new liberal Justice will have to decide where he or she stands on this doctrine.

The final “liberal” area of Justice Scalia’s jurisprudence that I will discuss here is the constitutional doctrine that condemns “vagueness” in criminal statutes. In Johnson, authored just one Term before he died, Justice Scalia finally persuaded a majority of the Court to adopt a version of “constitutional vagueness” that he had pushed in separate opinions for years. Scalia’s theory struck down the statutory subsection at issue there, but he was unable to further develop it prior to his unexpected passing. The sentencing provision in Johnson had bedeviled the Court for years, producing confusing and arguably inconsistent guidance for lower courts. Justice Scalia’s rationale for finally striking down the statutory language in 2015 relied on concepts of “fair notice” for “ordinary people” and protection against “standardless” statutory phrases that “invite arbitrary enforcement.” These may sound like well-accepted bromides – but Justice Samuel Alito wrote in dissent that Justice Scalia was “transforming [constitutional] vagueness doctrine.”

The criminal defense bar’s excitement about Johnson was palpable, and speculation about how the analysis might be extended to other statutes in the future was strong. But Justice Scalia never got a chance to further apply his Johnson theory of statutory vagueness. A new liberal Justice will have an opportunity to consider expanding on Justice Scalia’s thinking in this area.

“Conservative” criminal law areas in which a new Justice will make a difference

Space permits little more than listing some areas here. Most obviously, perhaps, is capital punishment, and this symposium has a more detailed discussion elsewhere. With Justice Breyer penning a foundational dissent against the death penalty in Glossip v. Gross (2015), and four current Justices clearly suspicious of capital sentences in general, a fifth “liberal” Justice would likely have a huge impact, limiting if not overruling some of the more disappointing capital case precedents. Just for example, think of McCleskey v. Kemp, in which the Court rejected statistical race-disparity in capital prosecutions as a constitutional concern, and Witherspoon v. Illinois, in which the Court allowed the strike of anti-death-penalty jurors at the guilt-innocence stage.

Similarly, the hostility of Justice Scalia (as part of a slim five-to-four majority of the Court) to the exclusionary rule, not just for the Fourth Amendment but as a constitutional remedy in general, is likely to be moderated if not reversed by any new Justice nominated by a Democrat. (Justice Scalia rejected the exclusionary rule as not found in the text of the Constitution – yet he substantively extended the Fourth Amendment to thermal heat imagers and GPS trackers, clearly not within the ken of the Framers.)  Part of the original constitutional rationale for adopting an exclusionary remedy in Weeks v. United States and Mapp v. Ohio – upholding “judicial integrity” rather than allowing courts to become “party” to executive branch violations – could be revived by any nominee feeling some allegiance to Justice Brennan rather than Scalia.

Similarly, the five-four decision in Herring v. United States (2009), prohibiting exclusion of evidence obtained by Fourth Amendment violations described as “negligent,” would likely come under serious reconsideration. (Negligence, as Justice Ruth Bader Ginsburg has consistently pointed out in dissent, is the foundation for tort liability, yet its deterrence theory has been rejected on the criminal law side.)

Likewise, the structure of Miranda doctrine, colorfully twice described by Justice Scalia as “a veritable fairyland castle of imagined constitutional restriction upon law enforcement,” might receive some shoring up if a more liberal Justice is confirmed. Justice Scalia plainly disliked the non-textual existence of Miranda warnings, and he rejected the psychological theory that all custody is “inherently coercive” – which actually provides the textual “hook” for Miranda because the Fifth Amendment says that confessions may not be “compelled.” A new Justice committed to a more “liberal” view of Miranda – and recall that it was the Republican stalwart Chief Justice William Rehnquist who ultimately reaffirmed Miranda – may stop what some have called the eroding of Miranda’s protections.

Finally, let’s note that Justice Scalia was consistently hostile to the granting of federal habeas corpus relief to defendants whose state court convictions were final years earlier. This is largely – although not entirely – an area of statutory rather than constitutional concern, and there are undoubtedly serious federalism concerns underlying Justice Scalia’s views. But many of the Court’s federal habeas decisions have been decided by a vote of five to four, and it seems certain that a Justice professing more liberal views regarding criminal defendants’ rights and a less conservative commitment to “finality,” could shift and perhaps overrule some precedents here.


Even an overlong blogpost is too short to do justice to the Justices, and particularly to the complexity of Justice Scalia’s doctrinal views regarding criminal law and procedure. So, for example, I haven’t discussed at all his opinions in Kyllo v. United States (2001) or Thornton v. United States (2004), both of which “liberally,” and presciently, changed the law. The foregoing is merely a sampling of thirty years of jurisprudence that may provide some guideposts for the future.

Politics of course are often unpredictable – as was Justice Scalia’s passing – and issues that may divide the Court in the future are often presently unseen. Predicting where any particular nominee will take the Court some years or decades in the future is not much more fruitful than barroom chatter. (Witness the examples, still within the memory of some, of Chief Justice Earl Warren and Justices Brennan, John Paul Stevens, and David Souter.) The Court’s decisions are driven by many factors, and no one personality should be accorded too much credit. Still, it is undoubtedly true that a new “liberal” nominee could well shift the balance of the current Court in a number of significant areas. The criminal law is certainly one of those.

[Disclosure: Tom Goldstein and Kevin Russell – who serve as the publisher and an occasional contributor to this blog, respectively – were among the counsel to the petitioner in Herring v. United States, as was Amy Howe, now a reporter whose coverage is published by the blog. However, the author of this post was not involved in the case.]

Recommended Citation: Rory Little, The Court after Scalia: A mixed bag on criminal law and procedure issues, SCOTUSblog (Sep. 9, 2016, 10:20 AM),