Donald Trump has repeatedly declared himself the “law and order candidate.” He’s also promised to place conservative justices on the Supreme Court, in the mold of Antonin Scalia. But would Scalia himself have supported Trump’s views on policing?
Antonin Scalia, the hero of conservatives, was known more for the force of his pen than the law that he made. He often chose to write alone, to make a point, or say things in his own indomitable way. As a consequence, Scalia was rarely a powerbroker among the justices, which requires compromise and suppressing one’s own views in order to put together the five votes needed to form a majority. That was not Scalia.
Except, ironically, when it came to the parts of the Constitution that governed policing. Here, Scalia often was the critical swing vote. And not infrequently he was the one writing the majority opinion.
One place Scalia’s passing might very well spell change is with regard to the Miranda ruling. In a decision well known to anyone who watches police procedurals on television, the Supreme Court held that before the police can question a suspect, they must inform that person of their right to remain silent and to have a lawyer.
Conservatives hate the Miranda rule, and Scalia was no exception. In recent years the justices have gutted Miranda, typically in 5-4 conservative-liberal decisions. They decided that police can in some circumstances repair the failure to issue Miranda warnings by telling the suspect about his rights after he already has confessed, then simply getting a new statement. They held that even if the statement itself is kept out because no Miranda warnings were read, any physical evidence (like guns and drugs) that the suspect led them to can be admitted at trial, creating incentives for police not to read the warnings. They have said that you waive your right to remain silent if you say as much as one word, even after the police question you for long stretches of time. In fact, there isn’t really even a “right to remain silent” anymore, because if you’re questioned without Miranda warnings, but clam up because you know your rights, the prosecutor can use your silence against you anyway.