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.
If a justice who liked Miranda was appointed to replace Scalia, every one of those decisions potentially could be overruled.
When it comes to searches and seizures, though—the lifeblood of policing, governed by the Fourth Amendment to the Constitution—the picture of Scalia is far more complicated.
In recent years, Scalia emerged as the Fourth Amendment’s greatest champion, often ruling against the police. He was particularly steadfast in guarding the sanctity of the home, or limiting police use of new technologies. He wrote the main opinion in United States v. Jones, holding that the Fourth Amendment governed long-term GPS surveillance of a suspected drug dealer’s car. And he wrote a critical opinion saying that the police have to get a warrant before they use new technologies to gather information from inside homes—in that case the police had used a thermal heat sensor to figure out the defendant was growing pot with heat lamps.
Still, Scalia-as-champion of Fourth Amendment rights has two complications of its own.
First, Scalia also authored or joined other opinions that give the police greater license. He believed that merely running away when police were in the vicinity was enough to provide probable cause to search a person. He joined opinions allowing the police to approach people in the confined spaces of buses and ask to search bags and bodies with no cause at all to believe the person had done anything wrong. He wrote a majority opinion saying that the cops could stop people for the most trivial of traffic offenses—like turning without signaling—even if the stop was a complete pretext to investigate something like drug dealing. Decisions like these give cops a great deal of discretion, which accounts in part for the racial disparities in the criminal-justice system today.
It’s hard to know what to make of these search-and-seizure cases in which Scalia favored the police. One hypothesis is that Scalia cared a lot about the home, and as one who believed in interpreting the Constitution according to its original meaning, preferred strict regulation of new policing technologies. But that he didn’t care much at all about urban youth whose lives were affected by these Supreme Court invitations to aggressive street policing.
On the other hand, it may simply be that there was an “old” Scalia who typically voted for the police, and a “new” Scalia of his later years, who was more skeptical of police tactics. For years the justices had held that if the police arrested you for any traffic offense—say, speeding—they could search your car. Scalia pushed the justices to put a stop to this. Similarly, in a strident dissent Scalia shredded his usual conservative compatriot, Clarence Thomas, for allowing the police to stop a car after an anonymous tip that the driver was swerving, even though the cops subsequently followed the suspected car for five minutes and saw nothing untoward.
Second, even though Scalia could be extremely protective of Fourth Amendment rights, the real curiosity is that he didn’t seem to think you should have any remedy if your rights were violated. He loathed the exclusionary rule—which requires tossing out evidence collected in violation of the Constitution—and played a big part in dismantling it. And he also hated allowing plaintiffs whose rights were violated to get money damages, regularly joining and writing opinions affording government officials wide immunity from ever being held liable for their actions. And if you wanted an injunction against the government to stop it from violating rights, like the NSA collecting data in bulk, just forget about it.
So, what will replacing Scalia mean? Because he was often a swing vote, it depends on who replaces him. It’s not just whether a Democrat or a Republican president is doing the appointing. It’s easy to imagine that a justice appointed by a Democrat could save both Miranda and the exclusionary rule, and also vote to limit much of the free rein given police, which ultimately led to over- incarceration of so many urban youth.
But that’s harder to imagine with Merrick Garland, President Barack Obama’s pick for the Court. Garland is a former prosecutor whose rulings typically are pro-police. In a Garland-for-Scalia swap, the police actually might have more license, rather than less.
All this is complicated further by the strange case of Justice Stephen Breyer. As often as Scalia switched sides to join the Court’s liberals in policing cases, Breyer would flip the other way, leaving the conservatives in control.
As Erwin Chemerinsky pointed out in these pages recently, “the next president, especially if he or she serves two terms, is likely to have three other vacancies to fill on the Court.” Chemerinsky included on his list Breyer, as well as Justices Ruth Bader Ginsburg and Anthony Kennedy. With those positions to fill, a new president could change the constitutional law of policing more dramatically than it has been in decades.