Putting Scalia in Perspective

By David Gespass, Nathan Goetting & Meredith Osborne

Donald J. Trump, having somehow become president of the United States, nominated Judge Neil M. Gorsuch of the United States Court of Appeals for the Tenth Circuit to replace Associate Justice Antonin Gregory Scalia on the Supreme Court. The Senate recently confirmed him and he now sits on the highest court in the land. Gorsuch’s primary qualification, based on news reports and Trump’s public comments, seems to have been the likelihood that he will promote and continue Scalia’s legacy on the Court.1  He has written and spoken admiringly of, nearly deifying, virtually all things Scalia—his scholarship, his methodology, his “roar that could echo for miles.”2 Shortly after Scalia’s sudden death in early 2016, Gorsuch delivered what amounted to a eulogy of Scalia and his approach to decid­ing cases at the Case Western Reserve University School of Law. There, Gorsuch confessed that he was breathless and teary-eyed3 at the news of Scalia’s passing and made it clear he believed the late justice had been a judicial model to be followed. Word of this emotional episode was quickly circulated among right-wing legal activists as assurance that Gorsuch shared their admiration for the reactionary justice and could therefore be relied on to continue his legacy on the bench.4

This legacy needs a closer examination.

Scalia’s originalism: Equal parts conceit and deceit

Almost immediately after the announcement of his death, both the “left” and the right were quick to offer paeans to Scalia. He was, we were told, “a conservative icon”5 with an “outsized legacy”6—a man who “changed the Court more than the Court changed him.”7 Scalia was almost universally described as a legal colossus who forever altered the course of American jurisprudence. George Mason University’s Law School now bears his name. So does a new lectureship series at the Harvard Law School, where its inaugural speaker, moderate-liberal Associate Justice Elena Kagan, lauded his virtues.8

Popular and scholarly assessments of Scalia’s thirty-year tenure on the Court—where he pioneered the interpretive methodologies known as originalism and textualism to discern the “original meaning” (hereinafter “originalism”) of the Constitution, now so tightly held to the bosom of the right-wing—have almost universally insisted that his work will have a lasting impact. We trust otherwise. Originalism is hopelessly flawed and amounts to a counterfeit methodology—with insidious and malicious consequences. It should be exposed and resisted.

The animating principle of originalism is that the scope of the Constitution is limited to the meaning of its text at the time of its ratification. In Scalia’s hands, it does not even seek to divine the intent of the Framers as a way of understanding the text9 but narrowly focuses on the ordinary understanding of the meaning of the words themselves at the time of enactment. Originalists tout this textual enterprise as its primary virtue because, they say, its application requires judicial restraint and a healthy respect for the constitutional doctrine of the separation of powers. They claim that this method ensures that a judge’s personal policy preferences play no part in the outcome of the cases he or she presides over. An originalist judge is prevented by his or her own methodology from retrofitting the Constitution’s text to suit contemporary political trends and social mores. To Scalia, the Constitution is “dead, dead, dead.”10  It is not a document amenable to adaptation in light of cultural shifts, technological advancement, or pressing human needs.11  It is not meant to be a vehicle through which a court can solve social problems. Instead, every act of interpretation is a journey into the increasingly distant past when many of the issues before the court—freedom of expression on social media, warrantless electronic surveillance, etc.—could never have been imagined.

Originalism is an intellectual edifice based on conceit and deceit. Its conceit is that the original meaning of an ancient legal text can actually be ascertained. Establishing the original meaning of a constitutional provision—like arriving at the objectively correct understanding of the Sermon on the Mount—poses an ultimately impossible epistemological task. The mere fact that the Constitution is a written document belies an immutable meaning. The essence of constitutionalism—like scripture and Shakespeare—necessitates evolution and reinterpretation through the lens of the interpreter. Seeking to apply the Fourth Amendment, as it was understood upon ratification in 1791 (assuming for the sake of argument that there was just one way of understanding it), to cases involving government drone surveillance of political protesters or police hacking into a Facebook account, is a fool’s errand. An attempt to find a rough understanding of the original meaning of the Constitution may be a fair starting point, but it should never serve as a finish line. The race would never end.

Its great deceit, which perhaps also involves some degree of self-deceit, is that judges are able to both recognize and set aside their personal political commitments and experiences while attempting to answer novel constitutional questions, especially when those questions lack any judicial precedent. Because originalism is unworkable, its practitioners account for its shortcomings by doing exactly what they have always—usually very publicly—flattered themselves that they never do: they infuse political preferences into their judicial opinions. Scalia was a master at this.

The inherent dishonesty of originalism has long been lamented and resisted among progressive legal activists and scholars. Erwin Chemerinsky, for instance, exposed the faults and the cognitive dissonance of Scalia’s jurisprudence with devastating clarity and thoroughness years ago.12  Likewise, constitutional scholars Sanford Levinson, Jack M. Balkin, and David A. Strauss have criticized the methodology with force.13 Even so, the impact of these criticisms has been largely muted by the right-wing legal and political establishment’s successful mobilization in response to the liberal reforms of the Warren Court and, in particular, Roe v. Wade in 1973.14

Any pretense of apolitical purity in Scalia’s approach was exploded when he joined the majority opinions in Texas v. Johnson15 and Bush v. Gore.16 In Johnson, the Court held that burning a United States flag in protest is a form of speech protected by the First Amendment. Seventh Circuit Judge Richard Posner—like Scalia, a conservative Reagan appointee—points out that the majority opinion in Johnson was a strange argument for an originalist, as it is hard to conclude that the meaning of “speech” in 1789 included the kind of “symbolic speech” the Supreme Court endorsed therein.17 And, in Gore, the majority per curiam opinion found that an order to recount ballots in certain counties, but not the entire state, deprived voters whose ballots were not recounted of their right to equal protection of the law. The holding was so far-fetched, not to mention unmoored from originalism, that the Court specifically said it could not be used as precedent for any future case.18  Scalia’s response to critics of his vote in this 5–4 case that decided a presidential election was “get over it.”19

Our expectation is that once the hopeless flaws and political ideology behind originalism are more universally understood, it will lose the cachet it currently enjoys.

A reactionary through and through

Scalia was a right-wing ideologue. His judicial opinions, unsurprisingly, connected perfectly with his reactionary worldview. His originalist pretenses hardly covered up the true animating force behind his rulings. But even liberals were wont to pay lip service to his “restraint,” particularly when he broke from the Court’s conservative bloc. In particular, he was praised for his perceived civil libertarian bent on criminal procedure issues.20  This praise is undeserved. It is rooted in a misunderstanding of Scalia’s underlying political commitments and long-term jurisprudential goals. Even when Scalia argued in favor of the rights of the criminally accused, a close reading of his opinions shows he has done so in ways which so constrain constitutional rights as to apply to a small and diminishing class of cases, but which would place far more in jeopardy. Because this aspect of Scalia’s jurisprudence is not well understood, we will discuss it at more length than the few examples would otherwise merit.

Scalia was a proponent of nearly unbridled executive and police power, especially when that power was used to control and discipline the poor, racial minorities, LGBTQ persons, and immigrants. Perhaps most stark was his assertion in Herrera v. Collins21 that “[t]here is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.”22 To hammer home his contention, he suggests:  if, as the dissent argued, it shocks the conscience to find that the Constitution would allow such a result if a person were innocent, as the dissent argued, then it is the conscience of the dissenters that should be recalibrated.23

Although there were a few instances where Scalia could make one scratch one’s head, as with his Confrontation Clause opinions,24 he was usually merciless in his willingness to allow the state to minimize the rights of the accused and heap cruelty upon the convicted. Scalia’s criminal law and procedure jurisprudence, as with his career on the Court generally, was largely an effort to roll back the milestone progressive victories of the Warren Court. There was hardly a brick in the edifice of the Warren Court Criminal Procedure Revolution that he did not seek to grind into dust.

Beyond the context of the Confrontation Clause, Scalia’s reputation as a rebel conservative defender of the accused is based primarily on his opinions in Fourth Amendment cases involving law enforcement searches. However, a closer reading of these cases shows that Scalia’s objective for the Fourth Amendment, while benefitting certain criminal defendants in the short term, is consistent with his general effort to eviscerate the liberties conferred by the Warren Court. Here, the particular Warren Court case under attack is Katz v. U.S, decided in 1967.25

In Katz, the Court held that warrantless bugging of a public telephone booth, where the defendant had no protected property interests, violated the Fourth Amendment because it intruded on the defendant’s “reasonable expectation of privacy.”26  In announcing this rule, the Court radically broadened the scope of what constituted a “search” under the Fourth Amendment.27 It rendered obsolete the “physical trespass doctrine” established by Olmstead v. United States28—a notorious case that, even when it was decided in 1928, was so out-of-touch and offensive to privacy rights that it inspired Justice Brandeis to write perhaps the most famous and eloquent dissent in the history of this area of the law.29  Katz stands for the proposition that governmental intrusion on an individual’s reasonable expectation of privacy constitutes a “search” for which a warrant is required and that only that which an individual “knowingly exposes to the public” is excluded from constitutional protection.30  Although this test contains serious problems of its own that may eventually require reconsideration,31 Katz was a necessary innovation that allowed the Court to resist increasingly ubiquitous government surveillance.32

Scalia always had contempt for Katz.33  He viewed the Court’s reimagining of a more expansive right to privacy in Katz as a mistake and, while he subsequently voted to uphold Katz under the principle of stare decisis,34 he sought to diminish its use and impact by resurrecting Olmstead’s physical trespass doctrine. His major opinions interpreting what constitutes a search under the Fourth Amendment were, in varying degrees, parts of this effort.

In his 2001 opinion for the Court in Kyllo v. United States, Scalia concluded that the Fourth Amendment protected homes from warrantless surveillance by government agents using supersensory equipment not available to the general public.35 In Kyllo, government agents stationed themselves in a van outside the home of a suspected drug dealer and used a thermal imaging sensor to determine if the temperature inside the home was hot enough to suggest he was using grow lamps to cultivate marijuana. While criticizing Katz, Scalia, perhaps in order to maintain a majority, nonetheless recognized its precedential authority and used it as the basis for the Court’s ultimate holding.36  However, it is plain that in this case Scalia sided with the defendant because the intrusion—albeit technological, not physical—was into his home, a place in which the defendant had a property interest that is explicitly protected in the Fourth Amendment.37

Scalia later wrote for the Court in U.S. v. Jones, a case in which the government surreptitiously and exceeding the scope of its warrant, maintained a GPS monitoring system on the defendant’s car to track the vehicle’s whereabouts.38 Holding that such conduct violated the Fourth Amendment, Scalia based the Court’s reasoning in the physical trespass doctrine.39  More recently, in Florida v. Jardines,40 Scalia built on the Olmstead underpinnings of Jones.41 Writing for the majority, Scalia addressed yet another governmental supersensory investigation of a defendant’s home, this time through the use of a police dog that sniffed the exterior of the house. In Jardines, a more emboldened Scalia expressly championed the property interests of the suspect.

In both Jones and Jardines, Scalia saw no reason to apply Katz’s “reasonable-expectation-of-privacy test.” In Jones, he wrote, “Katz did not repudiate the understanding that the Fourth Amendment embodies a particular concern for government trespass upon the areas it enumerates, [where] the Katz reasonable-expectation-of-privacy test has been added to, but not substituted for, the common-law trespassory test.”42 In Jardines he even more heavily emphasized the physical trespass test, quoting an 1886 ruling43 for support: “[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave.” As it is undisputed that the detectives had all four of their feet and all four of their companion’s firmly planted on the constitutionally protected extension of [the defendant’s] home, the only question is whether he had given his leave (even implicitly) for them to do so. He had not.44

This interpretation of Katz as a complement to, rather than a replacement of, the physical trespass test, would have come as a shock to the Katz Court itself, which made a point of expressly abrogating the outdated concept, writing: “the underpinnings of Olmstead . . . have been so eroded by our subsequent decisions that the ‘trespass’ doctrine there enunciated can no longer be regarded as controlling.”45

Scalia’s repeated de-emphasizing of Katz and reprioritizing of the long-discredited ideas of Olmstead have moved the Court in a dangerous direction that is contemptuous of basic notions of personal privacy. Scalia’s physical trespass test turns the motto of the National Lawyers Guild—“[T]hat human rights shall be more sacred than property interests”—directly on its head.

In other areas of criminal procedure, Scalia made his commitment to governmental power at the expense of individual liberty and the tenets of democracy far more clear. He sought to dismantle the Exclusionary Rule, which ever since Mapp v. Ohio46 in 1961 has helped to deter police misconduct and preserve the integrity of the trial process by ensuring that evidence illegally obtained by police cannot be used against the accused.47  He voted to overturn Miranda v. Arizona,48 one of the great rulings in the history of civil liberties, which protects criminal suspects from coercion and abuse during police interrogations. Scalia wrote that Miranda represented a “milestone in judicial overreaching.”49 He repeatedly dissented in cases prohibiting the death penalty for juvenile offenders.50 And, despite the incredible work of groups such as the Innocence Project, who have used DNA testing to exonerate countless wrongfully convicted inmates nationwide, he repeatedly opposed making such testing more accessible to those seeking post-conviction relief,51 including in the case of one death-row inmate who was ultimately exonerated.52

In the midst of a mass incarceration crisis, in which thousands of financially destitute criminal defendants around the country were being locked up for non-violent and low-level crimes, Scalia set his sights on Warren Court landmark Gideon v. Wainright,53 which established the constitutional right to court-appointed, state-funded counsel for indigent felony defendants. His dissent in Alabama v. Shelton,54 in which his colleagues extended the right conferred by Gideon to the countless misdemeanor defendants subject to imprisonment, again showed solidarity with law enforcement and indifference to the indigent accused. Providing lawyers to poor criminal defendants was simply too costly, Scalia claimed. “Today, the Court gives this consideration [the cost of furnishing counsel in these cases] the back of its hand,” lamented the associate justice who spent thirty years backhanding the poor and desperate who sought justice at the Court.

A blowhard in a black robe

Scalia was voluble and antagonistic during oral arguments.55 He was notorious for directing barbs at his colleagues. He seemed to relish debasing the other justices in his written opinions, as well.

In his dissent in Obergefell v. Hodges, a decision that recognized same-sex marriage as a fundamental right, he sharply criticized Justice Anthony Kennedy’s majority opinion, snarling:

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.56

In King v. Burwell,57 a case revisiting the constitutionality of the Afford­able Care Act, Scalia, in a series of bizarre flourishes, called Chief Justice John Roberts’s majority opinion “pure applesauce” and “interpretive jiggery-pokery.”58 In his concurrence in Glossip v. Gross, a death penalty case, Scalia mocked Justices Stephen Breyer and Ruth Bader Ginsburg for “waving over their heads a ream of the most recent abolitionist studies (a superabun­dant genre) as though they have discovered the lost folios of Shakespeare, insist[ing] that now, at long last, the death penalty must be abolished for good.”59 Even Justice Thomas, his closest ideological companion on the Court, was not immune. Scalia once accused him of promoting “a presidency more reminiscent of George III than George Washington.”60 Such attacks have had their price. It has been reported that Scalia’s rebuke of Sandra Day O’Connor in Webster v. Reproductive Health Services61—where he labeled the perspec­tive of the first woman Supreme Court justice “irrational”—so alienated her that she may have moved leftward politically as a result.62  This is not to say that her politics shifted politically just to spite him, but his sneering and off-putting arrogance seemed to make O’Connor, a fellow Reagan-appointee, less inclined to embrace his views.

Scalia’s scoffing and derisiveness is unsurprising in light of his other values, all of which combine to form a stereotypically bigoted personality. In his dissent from Romer v. Evans,63 a major gay rights case, he callously compared consensual gay sex to murder, polygamy, and animal cruelty:

The Court’s opinion contains grim, disapproving hints that Coloradans have been guilty of “animus” or “animosity” toward homosexuality, as though that has been established as un-American. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible—murder, for example, or polygamy, or cruelty to animals—and could exhibit even “animus” toward such conduct. Surely that is the only sort of “animus” at issue here: moral disapproval of homosexual conduct . . . 64

During oral argument in Fisher v. Texas, which preserved certain limited forms of affirmative action in higher education, he approvingly cited briefs that argued blacks belonged at less prestigious colleges and universities:

There are those who contend that it does not benefit African-Americans to get them into the University of Texas, where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well . . . . One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.65

While there has been no shortage of louts, boors, and obnoxious blowhards who have served as Supreme Court justices, most have shown enough self-discipline to keep their petty insults out of their judicial opinions. In a marked departure from traditional decorum (and basic standards of collegiality), Scalia’s dissenting opinions often bristle with contempt, sarcasm, and the puerile anger of a sore loser. Never in history has a justice so eagerly displayed his disrespect for the Court and his colleagues.

Scalia’s ideological bete noir, Earl Warren, was able to steer the Court toward progressive ends during his tenure because he knew how to forge consensus. Scalia had no aptitude for this.66 Scalia could write with great literary aplomb but, in major cases, it was usually in concurrence or dissent—and often only for himself. He energized his fellow right-wing jurists, especially younger acolytes like Gorsuch, but disrespected and alienated colleagues who failed to recognize his superior intellect and methods. His belief in his own greatness turned him into a diva on the bench who was as reluctant to compromise with others as others were to compromise with him.

We suspect that Scalia’s greatest legacy will be his partisanship and the boorish and obnoxious manner with which he behaved as a justice.  His vitriolic language, open contempt for the work of colleagues with which he disagreed, and lack of impulse-control on the bench has coarsened the Court’s discourse. He often wrote and behaved like a pettish child with no sense of basic manners or common courtesy. We should remember the virulence of his character, not the color of the robe it was cloaked in.”

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NOTES

1. Richard Wolf, ‘Scalia Index’ Shines Light On Possible Trump Supreme Court Pick, USA Today (Jan. 30, 2017, 3:36 PM), http://www.usatoday.com/story/news/politics/2017/01/30/supreme-court-trump-scalia-pryor-gorsuch/97057474/.
2. Neil M. Gorsuch, 2016 Sumner Canary Memorial Lecture: Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia, 66 Case W. Res. 905 (2016).
3. Id.
4. Ed Whelan, A Supreme Successor to Justice Scalia, National Review (Jan. 31, 2017, 8:06 PM), http://www.nationalreview.com/article/444439/neil-gorsuch-justice-scalias-supreme-successor.
5. All Things Considered: Reflections Of Conservative Icon Supreme Court Justice Antonin Scalia, National Public Radio (Dec. 29, 2016, 4:08 PM), http://www.npr.org/2016/12/29/507436655/reflections-of-conservative-icon-supreme-court-justice-antonin-scalia.
6. Garrett Epps, Justice Scalia’s Outsized Legacy, The Atlantic (Feb. 13, 2016), https://www.theatlantic.com/politics/archive/2016/02/justice-scalias-outsized-legacy/462756/.
7. Jonathan Turley, Scalia’s Greatest Strength, His Steadfastness, Was Also His Greatest Weakness, Wash. Post (Feb. 14, 2016), https://www.washingtonpost.com/postevery­thing/wp/2016/02/14/scalias-greatest-strength-his-steadfastness-was-also-his-greatest-weakness/?utm_term=.a2fb8dedddf1.
8. See, In Scalia Lecture, Kagan Discusses Statutory Interpretation, Harvard Law Today (Nov. 25, 2015), https://today.law.harvard.edu/in-scalia-lecture-kagan-discusses-statutory-interpretation/.
9. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 38 (Amy Gutmann ed., 1997) (“It is curious that most of those who insist that the drafter’s intent gives meaning to a statute reject the drafter’s intent as the criterion for interpretation of the Constitution. I reject it for both.”).
10. Nicole Flatow, Justice Scalia: The Constitution Is ‘Dead, Dead, Dead’, Think Progress (Jan 29, 2013), https://thinkprogress.org/justice-scalia-the-constitution-is-dead-dead-dead-baf9d39b44aa#.4x9qwcuyr.
11. Nolan D. McCaskill, The 11 Most Memorable Scalia Quotes, Politico (Feb. 14, 2016, 12:59 AM), http://www.politico.com/story/2016/02/best-antonin-scalia-quotes-219274.
12. Erwin Chemerinsky, The Jurisprudence of Justice Scalia: A Critical Appraisal,

22 Hawaii L. Rev. 385 (2000).

13. Sanford Levinson, Constitutional Faith (2001); Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (2011); David A. Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877 (1996).

14     The Federalist Society, of which Scalia was an active part, was the primary engine of that change. In The Federalist Society: How Conservatives Took the Law Back from Liberals our colleague, Michael Avery, has examined the impact of the Federalist Society as well as its legal strategy and tactics. See Danielle McLaughlin & Michael Avery, The Federalist Society: How Conservatives Took the Law Back from Liberals (2013).

15     491 U.S. 397 (1989).

16     531 U.S. 98 (2000).

17. Mark Joseph Stern, Listen to Federal Judges Shred Arguments That Civil Rights Law Doesn’t Protect Gay Employees, Slate (Dec. 1, 2016, 1:20 PM), http://www.slate.com/blogs/outward/2016/12/01/_7th_circuit_judges_shred_arguments_that_civil_rights_law_doesn_t_protect.html.
18. Gore, 531 U.S. at 109.
19. Scalia On Bush v. Gore: “Get Over It,” RealClear Politics (July 18, 2012), http://www.realclearpolitics.com/video/2012/07/18/scalia_on_bush_v_gore_get_over_it.html.
20. See Caleb Mason, Antonin Scalia, Civil Libertarian?, Salon (April 2, 2013, 8:18 PM), http://www.salon.com/2013/04/02/what_do_drug_sniffing_dogs_have_to_do_with_the_18th_century_justice_system_partner/; Viveca Novak, Antonin Scalia, Civil Libertarian, Time (June 14, 2001), http://content.time.com/time/nation/ar­ticle/0,8599,130509,00.html; Robert J Smith, Antonin Scalia’s Other Legacy, Slate (Feb. 15, 2016 7:28 AM), http://www.slate.com/articles/news_and_politics/jurispru­dence/2016/02/antonin_scalia_was_often_a_friend_of_criminal_defendants.html.
21. 506 U.S. 390 (1993).
22. Id. at 427.
23. Id. at 428.
24. See, e.g., Maryland v. Craig, 497 U.S. 836 (1990); Crawford v. Washington, 541 U.S. 36 (2004), Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). However, it should not go unnoticed that Scalia’s broad, pro-defendant interpretation of the Confrontation Clause has the effect, either intentionally or incidentally, of thwarting the aims of femi­nists and others by especially benefitting defendants accused of violence against women. Scalia was a notorious bete noire on the Supreme Court to many on the feminist left. See Ruthann Robson, The Legacy of Antonin Scalia: Don’t Mourn, Organize, Wellesley Centers for Women, http://www.wcwonline.org/Women-=-Books-Blog/scalia (last visited Apr. 5, 2017). In Giles v. California, for instance, Scalia, writing for the Court, granted a new trial to a man convicted of murdering his girlfriend because he was unable to cross-examine his dead girlfriend about a 9-1-1 tape played for the jury in which she reported his domestic violence. 554 U.S. 353 (2008). Scalia’s broad interpretation of the Confrontation Clause is also strong ammunition against efforts minimize the traumatic effects of the trial process for rape (and child molestation) accusers. See Hannah R. Norman, Adult Rape Victims Need Protection Too: The Application of Closed Circuit Television and the Exception from Maryland v. Craig to Adult Rape Victim Testimony, 55 Washburn L.J. 701, 720-22 (2016).
25. Katz v. U.S., 389 U.S. 347 (1967).
26. Id. at 361 (Harlan, concurring).
27. The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or af­firmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV (emphasis added).
28. 277 U.S. 438 (1928).
29. Katz, 389 U.S. at 353.
30. Id. at 352.
31. Amitai Etzioni, Eight Nails Into Katz’s Coffin, 65 Case W. Res. 413 (2014).
32. Indeed, the physical trespass doctrine has no place in any society that respects privacy and is further made obsolete by failing to account for technological advances—satellites, drones, online tracking software, etc.—that allow police to investigate deeply into the private life of individuals from remote distances without physical intrusion.
33. Minnesota v. Carter, 525 U.S. 83, 91 (1998) (Scalia, J., concurring).
34. See Kyllo v. United States, 533 U.S. 27 (2001).
35. Kyllo, 533 U.S. at 40.
36. Id. at 32.
37. Id.
38. U.S. v. Jones, 565 U.S. 400 (2012).
39. Id. at 406.
40. Florida v. Jardines, 133 S. Ct. 1409 (U.S. 2013).
41. Id. at 1415
42. Jones, 565 U.S. at 406.
43. Boyd v. United States, 116 U.S. 616, 626 (1886).
44. Jardines, 133 S. Ct. at 1415 (Quoting Boyd).
45. Katz, 389 U.S. at 353.
46. 367 U.S. 643 (1961).
47. See, e.g., Hudson v. Michigan, 547 U.S. 586 (2006); Herring v. U.S., 555 U.S. 135 (2009); Utah v. Strieff, 136 S. Ct. 2056 (U.S. 2016).
48. 384 U.S. 436 (1966).
49. Dickerson v. U.S., 530 U.S. 428, 434 (2000).
50. See, e.g., Thompson v. Oklahoma, 487 U.S. 815 (1988); Stanford v. Kentucky, 492 U.S. 361 (1989); Roper v. Simmons, 543 U.S. 551 (2005).
51. See, e.g., House v. Bell, 547 U.S. 518 (2006), District Attorney’s Office v. Osborne, 557 U.S. 52 (2009).
52. See House v. Bell, 547 U.S. 518 (2006).
53. 372 U.S. 335 (1963).
54. 535 U.S. 654 (2002).
55. In our view, it is it is more accurate to say that the Federalist Society, of which Scalia was an active part, was the primary engine of that change.
56. Obergefell v. Hodges, 135 S. Ct. 2584, 2630 n.22 (2015).
57. 135 S. Ct. 2480, 2501 (U.S. 2015); see also Transcript of Oral Argument, Fisher v. Texas, 579 U.S. ____ (No. 14-981), available at https://www.supremecourt.gov/oral_arguments/argument_transcripts/14-981_4h25.pdf.
58. Id.
59. Glossip v. Gross, 135 S. Ct. 2726, 2747, 192 L. Ed. 2d 761, reh’g denied,136 S. Ct. 20, 192 L. Ed. 2d 990 (2015).
60. https://www.washingtonpost.com/politics/courts_law/supreme-court-strikes-down-born-in-jerusalem-passport-law/2015/06/08/19562bb2-d71d-11e4-ba28-f2a685dc7f89_story.html?utm_term=.3b03bdd0b509
61. Webster v. Reprod. Health Servs., 492 U.S. 490, 537 (1989).
62. Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court 369 (2007).
63. Romer v. Evans, 517 U.S. 620 (1996).
64. Romer, 517 U.S. at 644.
65. Transcript of Oral Argument, Fisher v. Texas, 579 U.S. ____ (No. 14-981), available at https://www.supremecourt.gov/oral_arguments/argument_transcripts/14-981_4h25.pdf.
66. The Warren Court’s major decisions were rarely, if ever, by 5-4 votes. Brown v. Board of Education was unanimous. Baker v. Carr, the one person, one vote case that Warren said was the most important of his tenure, eventually had a 6-2 majority even though it had to be reargued because no clear majority emerged when it was first considered. Thus, we suggest that John Roberts promises (or threatens) to be a far more influential justice than Scalia ever was. Roberts is all, at once, a politician, a strategist, and a tactician. He will willingly sacrifice a short-term victory for long-term advantage. He will likely be on the Court for decades and will likely use that tenure to advance a reactionary agenda.

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