Not-So-“Accidental” Justice
Scalia Didn’t Arrive at “Liberal” Views by Happenstance
In the days since Justice Antonin Scalia’s death, obituaries and retrospectives have told a standard story about his jurisprudence: Scalia was a conservative whose originalism sometimes led him to “liberal” outcomes, especially in the criminal justice domain. As Adam Liptak put it in his New York Times obit:
[O]riginalism generally led [Scalia] to outcomes that pleased political conservatives, but not always. His approach was helpful to criminal defendants in cases involving sentencing and the cross-examination of witnesses.
Jeffrey Rosen told PBS NewsHour that in a “series of cases” involving “the rights of criminal defendants,” among other issues, Scalia felt “compelled” by his originalism to reach “liberal results” that diverged from his own policy “preferences.” Jacob Sollum at Reason highlights “Scalia’s liberal tendencies” on certain criminal justice issues, and the editors of the National Review also note that “some of [Scalia’s] most notable opinions had ‘liberal’ results for criminal defendants.” And over at Slate, Robert Smith emphasizes Scalia’s “surprising support of criminal defendants in many cases.” Smith goes on to say:
If Scalia was a champion of those rights, he was an accidental champion, a jurist with a deeper objective — namely, fidelity to what he dubbed the “original meaning” reflected in the text of the Constitution — that happened to intersect with the interests of the accused at some points in the constellation of criminal law and procedure.
The standard story captures an important truth: Scalia often voted in favor of criminal defendants, and he was out in front of even his most liberal colleagues on quite a few criminal justice questions. But the emerging conventional wisdom — that originalism led Scalia to liberal outcomes on sentencing, cross-examination, and other issues of criminal law and procedure — obscures as much as it illuminates. Scalia’s sometimes-support for the rights of criminal defendants was neither “accidental” nor especially “originalist.” The “accidental champion” story oversells originalism and underestimates Scalia.
Scalia sided with criminal defendants in more cases than I can possibly cover here, so I’ll focus on three of the most oft-cited examples (with brief background for readers unfamiliar with Scalia’s criminal justice jurisprudence):
— The Confrontation Clause. The Sixth Amendment says that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .” In other words, criminal defendants have a right to confront and cross-examine witnesses for the prosecution. Before Scalia joined the bench, the Supreme Court held that prosecutors could nonetheless introduce statements by unavailable witnesses if those statements bore “adequate indicia of reliability” — a slippery standard. From the time he arrived at the Court, Scalia sought to strengthen the confrontation right. His view won out in the 2004 case Crawford v. Washington, in which Scalia wrote the majority opinion. Crawford holds that when the prosecution seeks to introduce a witness’s “testimonial” statement, the defendant must be allowed to cross-examine the witness at trial unless the witness is unavailable and the defendant has had a prior opportunity for cross-examination. Commentators call it the “Crawford revolution” and say it “thoroughly upended” trial practice across the country.
— Sentencing. In the late 1970s and 1980s, states began to adopt “determinate” guidelines that limited the discretion of judges when sentencing criminal defendants. While state law might prescribe, say, a sentencing range of zero to 10 years for a defendant convicted of kidnapping, the guidelines might narrow that range based on the facts of a defendant’s crime (e.g., 4 to 5 years if the defendant used a firearm; 7 to 9 years if the defendant acted with deliberate cruelty). In many state systems and under the federal Sentencing Reform Act of 1984, the trial judge — not the jury — would determine the facts that placed a defendant within a specific sentencing range. Scalia voted in 1989 to strike down the Sentencing Reform Act on separation-of-powers grounds, but he was the lone dissenter from the 8–1 decision. Then in a series of cases in the early- and mid-2000s, the Supreme Court held that the federal sentencing guidelines and the guidelines in several states were unconstitutional for a different reason: they violated the Sixth Amendment right to a jury trial insofar as they relied on judges, not juries, to find the facts that determined a defendant’s sentencing range. Here, like in the Confrontation Clause context, Scalia led the way. As Scalia wrote for a 5–4 majority in the 2004 case Blakely v. Washington, “every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment.” According to Scalia, determinate guidelines infringed on this right when they made the defendant’s punishment depend on facts found not by “the unanimous suffrage of twelve of his equals,” but instead by “a lone employee of the state.”
— Vagueness Doctrine. Scalia’s most recent criminal justice victory came in the context of the void-for-vagueness doctrine, under which a statute violates the Fifth Amendment’s Due Process Clause if it “fails to give ordinary people fair notice of the conduct it punishes.” The Armed Career Criminal Act provides that if a defendant is found in possession of a firearm after previously being convicted of crimes that pose a “serious potential risk of physical injury to another,” he is subject to a mandatory 15-year sentence. In a 2007 case, Scalia — joined in dissent by Justices Stevens and Ginsburg — said that the “serious potential risk” provision, as interpreted by the Court, was unconstitutionally vague. Over the next eight years, Scalia brought several more of his colleagues around to that view. This past June, in Johnson v. United States, Scalia and five others voted to strike down the “serious potential risk” provision on void-for-vagueness grounds. The decision will result in shorter prison terms for thousands of current prisoners and future defendants.
All of these decisions are “pro-defendant,” though that does not necessarily mean that liberals will love the results. Scalia’s reinvigoration of the Confrontation Clause has made it harder to prosecute cases of domestic violence — a core “liberal” concern. Meanwhile, some studies suggest that the demise of determinate sentencing guidelines has led to larger racial disparities in prison term lengths (though that claim is contested). And the Armed Career Criminal Act is, after all, a gun control statute; Johnson was in that sense a decision striking down a gun control law. In other cases Scalia invoked the void-for-vagueness doctrine to argue for vacating convictions of corporate executives — including ex-Enron CEO Jeffrey Skilling, who was convicted of scheming “to deprive another of the intangible right of honest services.” Protecting the constitutional rights of corporate executives is not exactly a cause célèbre on the left right now.
None of this is to suggest that Scalia’s decisions on confrontation, sentencing, and vagueness were wrong: the Constitution applies to domestic abusers and Enron executives too. It is to emphasize, though, that these decisions defy ideological labels. In this respect, the standard story of originalism sometimes leading Scalia to “liberal” results is itself somewhat misleading. It is true only to the extent that “liberal” means “pro-defendant.” But the standard story is also misleading in another respect: it puts far too much emphasis on Scalia’s originalism and too little on Scalia himself.
Start with the Confrontation Clause. In Crawford, Scalia wrote: “[T]he common law in 1791 conditioned admissibility of an absent witness’s examination on unavailability and a prior opportunity to cross-examine. The Sixth Amendment therefore incorporates those limitations.” Yet in a widely cited article published shortly after Crawford, University of Tennessee law professor Thomas Davies dissected Scalia’s claim about the state of the common law in 1791 and argued, quite persuasively, that the claim amounted to “historical fiction.” According to Davies, it would not have been unusual at a felony trial in 1791 for prosecuting counsel to introduce testimony from an unavailable witness, even when the defendant did not have a prior opportunity for cross-examination. Not everyone who has studied the issue agrees with Davies on this point, but at least this much seems solid: reasonable people can look at the Founding-era evidence regarding the scope of the confrontation right and reach conclusions that contrast starkly with Scalia’s. To say that originalism “led” Scalia to a particular result ignores the fact that Scalia easily could have followed the Founding-era evidence to a different destination.
The claim that originalism led Scalia to the result in Crawford is anachronistic for a further reason: Scalia arrived at his Confrontation Clause views before he undertook the historical analysis reflected in Crawford. For evidence on this score, see Scalia’s majority opinion in the 1988 case Coy v. Iowa. There, Scalia said that an Iowa court violated a sexual assault defendant’s rights by placing a physical screen between him and his two accusers (both 13-year old girls). Scalia’s opinion drew extensively from the New Testament, Latin grammar, Roman law, Shakespeare’s Richard II, and an autobiographical 1953 speech by Dwight Eisenhower — without a single citation to Founding-era materials. Scalia concluded: “[T]here is something deep in human nature that regards face-to-face confrontation between accused and accuser as essential to a fair trial in a criminal prosecution.” That may be true, but it is difficult to derive that conclusion from late 18th century sources.
One can tell a similar story with respect to Scalia’s other landmark criminal justice decisions — or, to put it a different way, the standard story of originalism “leading” Scalia to a particular liberal outcome doesn’t fit the other cases either. As Jeffrey Fisher, the Stanford law professor who represented the defendant in Blakely, later wrote:
It was not easy for me, as the lawyer representing Mr. Blakely, to tell the Court that the proceedings leading to his enhanced sentence constituted a historic kind of violation of the Sixth Amendment right to jury trial. Sentencing guidelines are a purely modern innovation, so I could not say that the common law cases clearly indicated how the Court should decide Mr. Blakely’s case.
To be sure, the Founding-era evidence did not preclude the result that Scalia reached. But even Blakely’s own lawyer doubted that originalism required the Court to reach that result. So while Blakely is not exactly inconsistent with Scalia’s originalism, Scalia could have remained true to his methodology and still come out the other way.
This point is clearest with respect to the vagueness doctrine, where Justice Clarence Thomas broke away from Scalia precisely because Thomas thought that Scalia’s view lacked originalist support. As Thomas wrote in a separate opinion in Johnson: “Although vagueness concerns played a role in the strict construction of penal statutes from early on, there is little indication that anyone before the late 19th century believed that courts had the power under the Due Process Clauses to nullify statutes on that ground.” Scalia offered no response. For historical support, Scalia’s majority opinion reached back to 1926, but no further.
In fairness, Scalia never claimed that originalism would resolve every constitutional case. “Sometimes (though not very often) there will be disagreement regarding the original meaning,” he wrote in 1997. I would suggest that his parenthetical underestimated just how frequently the original meaning would turn out to be ambiguous, but that is beside the present point. Scalia did not argue for originalism only on the ground that it would be easy to apply. Nor did he claim that all of his views in constitutional cases flowed smoothly from the document’s original meaning. Scalia’s decisions on confrontation, sentencing, and vagueness illustrate this reality. The reasons why Scalia reached the outcomes that he did have much less to do with originalism than with Scalia.
In one sense, Scalia’s pro-defendant decisions do cohere with the worldview that led him to originalism. By his own account, Scalia embraced originalism precisely because it provides a stable base for the rights of individuals — including individual criminal defendants. He wrote that “the society is, as a whole, happy and pleased” to see child abusers put behind bars without an opportunity to cross-examine their accusers, “[b]ut the Sixth Amendment nonetheless gave all criminal defendants the right to confront the witnesses against them.” More generally, Scalia said:
If the courts are free to write the Constitution anew, they will, by God, write it the way that the majority wants; the appointment and confirmation process will see to that. This is, of course, the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority. By trying to make the Constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all.
On this view, Scalia’s pro-defendant decisions were no “accident.” It is not just that his philosophy “happened to intersect with the interests of the accused at some points”; rather, that was the whole point of his originalism (or at least one of them). Scalia justified originalism precisely on the ground that any other philosophy would form too flimsy a foundation for individual rights. As it turned out, originalism may not have provided such a sound basis for his criminal justice jurisprudence. But if that is the case, it casts further doubt on the standard story that Scalia was an originalist first and a friend of criminal defendants only second (if at all).
One can quarrel with Scalia’s claim that originalism will prove to be a durable safeguard for the rights of criminal defendants. But I do not think it is fair to suggest that Scalia’s pro-defendant decisions were unintended consequences of his originalist commitments. It is not clear that they were consequences, and it is clear that they were not unintended. Scalia told us that in many cases his originalism would protect the unpopular from results that “the majority wants”; Scalia’s originalism may not have provided that protection in the confrontation, sentencing, and vagueness contexts, but Scalia certainly did. By exaggerating the extent to which his method mattered, we fail to appreciate the extent to which Scalia himself mattered.
