Will Gorsuch Be Another Scalia on Criminal Justice Issues? Not Likely

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Neil Gorsuch. Photo courtesy Wikipedia

Neil Gorsuch. Photo courtesy Wikipedia

What’s the  outlook for criminal-justice jurisprudence from the new Supreme Court, if Neil Gorsuch fills the late Justice Antonin Scalia’s seat?

It’s an interesting question, because, as I’ve written here before, Justice Scalia was genuinely idiosyncratic when it came to criminal cases.  And the short answer is that Gorsuch  won’t be another Scalia on criminal law, because no one can be. Scalia’s influence on criminal jurisprudence was powerful and multifaceted, and cut across the usual left-right voting divide on the Court.

Whether your perspective is defense or prosecution, you can say with conviction that Scalia was the driving force behind some of the best case law and some of the worst case law.

Here are some areas in which Scalia moved the law dramatically.  On each of these issues, he argued vehemently for years before lining up the votes to shift doctrine.  I’ve labeled each as pro-defense or pro-prosecution, with some important caveats at the bottom.

Confrontation Clause—Crawford and Progeny (2004)

Who benefits? Defendants.

The Confrontation Clause says that the government has to put on witnesses to testify against a criminal defendant, and the defendant has the right to cross-examine those witnesses at trial.  Throughout the 20th century, the Court had essentially ignored the Confrontation Clause, allowing the government to use out-of-court statements in criminal trials so long as those statements appeared “generally reliable” to the court, or fit into the categories of admissible hearsay under the rules that govern civil trials.

Scalia pushed hard against that interpretation, and in 2004 he finally persuaded a majority to join him in a series of cases, starting with Crawford v. Washington, holding that live witness testimony is constitutionally required in criminal trials for all “testimonial” out-of-court statements—statements as to which it was reasonably foreseeable that they would be used in a prosecution.

The new Confrontation Clause jurisprudence is a huge benefit to the defense; while there is still uncertainty at the margins as to exactly what statements are “testimonial,” Crawford significantly limits the government’s ability to just put on an agent or officer to testify about what third parties said.

Pretextual Searches: Whren (1996)

 Who benefits? The government.

Whren v. United States is, in my opinion, among the worst decisions ever issued by the Supreme Court.  Whren, without exaggeration, endorses racial profiling as an investigation tool.  Whren’s precise holding is that so long as the police have probable cause to believe that a defendant violated any provision of law, then even if the police decided to enforce a particular law against that defendant because of the defendant’s race, the defendant cannot suppress any evidence found as a result of that admittedly discriminatory police action.  Whren is the ne plus ultra of pretextual racial profiling: the cops said their suspicions were alerted because the driver “stopped for an unusually long time—more than 20 seconds” at a stop sign.

So under Whren, an officer can go out on patrol and pull over every black driver who forgets to use her turn signal or “stops too long at a stop sign” (the actual claimed traffic violation in Whren), and then develops further evidence during the stop.  The doctrinal basis of Whren is paradigmatic Scalia. Sure, race discrimination may be illegal, but it’s a 14th Amendment problem, not a 4th Amendment problem, so you can’t use the 4th Amendment to enforce it.

The late Justice Antonin Scalia (2010 photo) by Stephen Masker via Flickr

The late Justice Antonin Scalia (2010 photo) by Stephen Masker via Flickr

Whren is particularly pernicious because it endorses perhaps the single most common act of official racial discrimination in the United States: the “Driving While Black” traffic stop.  By “endorses” I mean expressly tells the nation’s police that they don’t need to worry about using DWB stops to meet their arrest quotas, because the courts won’t suppress any evidence they find, even if they are caught red-handed intentionally targeting black drivers.

Worse—if it can get worse—Whren does this while giving lip service to the claim that racial profiling is illegal.  “Sure, it’s illegal,” says Scalia, “It’s just that when the police do it, we’re still going to let them use the evidence they get as a result.”

Look up the opinion, and go to the second and third sentences of the ninth paragraph.  They’re a portrait in constitutional cowardice.  If you wanted a recipe for destroying people’s faith in the rule of law, and in our courts as watchdogs protecting us from government overreach, there you have it.

Fourth Amendment’s Scope: Kyllo (2001)

Who benefits?  Defendants.

Kyllo v. United States is a well-known 2001 case holding that police need a warrant to point a thermal-imaging camera at the side of your house to see whether you have “hot spots” that might indicate indoor grow lights.  (It seems a little quaint here in California, where towns are competing with one another to offer the best development incentives for legal marijuana operations to take over unused warehouse and industrial spaces.  I know things are different outside of Cascadia, or whatever we’re calling the CalExit coalition nowadays.)

It’s a good case for people who care about privacy, because it is about the definition of “search” for Fourth Amendment purposes.

As readers know, a “search” is presumptively unreasonable without a warrant, and to get a warrant the government has to have probable cause that they can articulate to a judge.  So the government is often quite aggressive in claiming that conduct which  might(to the man on the street) sure look like a search, is not really a “search” for the constitutional analysis.

In Kyllo, the government said, well, sure, we took a piece of high-tech surveillance equipment and used it on the house to try to figure out what was inside, but it wasn’t really a “search” because the literal information we got from our surveillance device was simply temperature readings from the exterior walls.  So we didn’t actually “look” inside; we just made inferences based on the wall temperature.

Justice Scalia led the majority, which held that the key fact was that the government was using technology “not readily available to the public” to learn facts about the private spaces in the home that are not discernible to the public.

It’s a pretty decent “walks like a duck/quacks like a duck” analysis of the private sphere the Fourth Amendment protects, and it provides endless fodder for people who like to make jokes about stoners pondering Deep Questions, like whether the Fourth Amendment would permit the government to let Superman look through the walls and tell them what he saw (no use of technology, right?), or what happens to the Kyllo holding when we all have bionic thermal-imaging sensors built into our retinas, like the Predator?

I give Scalia props for Kyllo: He had Thomas, obviously, but he dragged along Souter, Ginsburg, and Breyer to create a good and usable precedent on an important issue.  Query where career prosecutor Merrick Garland would have been on Kyllo—quite likely in the pro-government dissent authored by… wait for it… liberal lion John Paul Stevens.  That’s what I liked about Scalia in criminal cases.  He shook things up.

Sixth Amendment and Jury Fact-finding: Blakely and Progeny (2004)

Who benefits? Defendants

Perhaps Scalia’s most doctrinally radical achievement was a case you’ve probably never heard of, Blakely v. Washington, which was the culmination of another of Scalia’s campaigns to find 18th-century meanings in the Constitution.   Scalia did not like the modern “professional” sentencing trend, whereby sentencing was governed by guidelines assigning points to particular “sentencing facts,” and then totaled up and converted to a number of months via a handy two-axis chart.

By 2005, that’s how federal sentencing and most state sentencing worked.  The jury was required to say yea or nay to the core facts that constituted the elements of the offense.

Then, at a sentencing hearing months later, the judge would make the crucial factual findings that would determine whether the defendant got one year or twenty.  Since the statutory sentencing provisions for most federal crimes are written in broad ranges (e.g., 0 to 20 years), sentencing became increasingly untethered from the jury verdict.  Scalia cobbled together his Kyllo crew—Thomas, Ginsburg, and Souter, with Stevens trading places with Breyer—and wrote a paean to the democratic virtues of the jury:

 “Ultimately, our decision cannot turn on whether or to what degree trial by jury impairs the efficiency or fairness of criminal justice. One can certainly argue that both these values would be better served by leaving justice entirely in the hands of professionals; many nations of the world, particularly those following civil-law traditions, take just that course.

 “There is not one shred of doubt, however, about the Framers’ paradigm for criminal justice: not the civil-law ideal of administrative perfection, but the common-law ideal of limited state power accomplished by strict division of authority between judge and jury. Every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment. Under the dissenters’ alternative, he has no such right. That should be the end of the matter.”

To readers who are wondering what happened, and why we never actually got jury sentencing, you can blame Justice Ginsburg.

Justice Ruth Bader Ginsberg. Photo courtesy US Supreme Court via Flickr

Justice Ruth Bader Ginsberg. Photo courtesy US Supreme Court via Flickr

Despite joining Scalia in Blakely, she jumped ship in the next case, United States v. Booker, and joined Justice Breyer’s ‘remedial’ majority of the other four justices, led by Breyer, to hold that everything can stay just as it was, so long as we (the Court) rewrite the federal sentencing statute to make it “advisory” only; thus no additional facts were “legally essential to the punishment.”  So it turned into another of Scalia’s powerful-in-theory, impotent-in-practice opinions.

But on this one, I don’t care.  I agree with Scalia that the jury is one of the foundational democratic institutions (I always tell juries that, too), and that the disconnect between proving “guilt-phase” facts to a jury and proving “sentencing-phase” facts to a judge would, in an ideal system, be minimized.

There are many complexities that I’m not going to mention here, but the important point is this: Scalia had the vision and the guts to convince a majority of the Court to sign an opinion saying that all federal sentencing for the past 20 years had been unconstitutional because it marginalized the jury, and juries are important.

For that, he deserves a hat tip from democracy-lovers on the left and the right.

Exclusionary Rule: Hudson v. Michigan (2006)

Who benefits?  The government.

As noted, Scalia hated the exclusionary rule, and he looked for every possible vehicle to weaken it.  Hudson was one of these.  It’s a seemingly little case with big consequences.  Readers in the cops-and-robbers business will know that the default setting for search warrants is knock-and-announce (and not in the middle of the night).

That means if you want to, for example, smash in the front door at 3 a.m., you’re supposed to tell the judge that’s what you want to do, and get a warrant approving it.  If you don’t—if you have, say, a standard 6 a.m. to 9 p.m. warrant with no “no knock” language, and you test out your new military-surplus battering ram and your new flash-bang grenades anyway, then you’re in violation of your warrant.  Searches in violation of a warrant are “unreasonable” and thus banned by the Fourth Amendment.

Hudson v Michigan was about the consequences of that violation: Should the court suppress evidence found in the search if the cops busted down the door when they were supposed to knock?  Scalia led the charge in holding “no.”  Hey, he reasoned, it was just the entry, not the search itself, that was illegal.  So the only remedy should be paying for the door, and you can always file suit later to get your payment.

Recognize the principle?  It’s Whren all over again.  Sure, the police did something illegal (and expressly banned by the Constitution), but we’re going to let them use the evidence they obtained anyway.

The consequences of Hudson are quite real: if you tell the police that there will be no evidentiary consequences to making surprise forced entries whether or not the warrant allows it, what do you think they’re going to do?  And surprise forced entries are, no surprise, a fairly regular source of injuries and even death, usually to completely innocent people who happened to be on the premises.

Or take, for example, one well-known case in New York City, involving a  lady sitting in her own apartment, which the police confused with the one on their warrant.  They broke down the door and threw in a flash-bang grenade, and she died of a heart attack.  The suppression remedy deters illegal police conduct; elimination of the remedy encourages it.

Fourth Amendment’s Scope: Jones and Jardines (2012)

Who benefits? Defendants.

United States v. Jones, a 2012 case, is another genuinely interesting decision that was the fruition of Scalia’s decades-long pursuit of a return to the 18th century.  Scalia always hated the seminal idea of modern Fourth Amendment jurisprudence, first articulated in the 1967 wiretapping case Katz v. United States, that a “search” for Fourth Amendment purposes is a “reasonable expectation of privacy.”

As with the exclusionary rule and Miranda, Scalia didn’t see “reasonable expectation of privacy” in the text of the Fourth Amendment.  But he never had the votes (thank goodness) to throw it out and replace it with his preferred alternative, 18th-century trespass law.  So he did the next best thing: he persuaded four other justices to endorse his “trespass” theory as an additional definition of a “search.”

Jones involved GPS trackers stuck to the bottom of suspect vehicles.  To the 18th-century eye, Scalia said, that would have been a physical appropriation of the property of the vehicle owner—and thus a “search” requiring a warrant.  Jones was an important case, because, as I’ve written in a previous TCR column, the warrantless GPS tracker was a go-to investigative tool.  DOJ estimated that there were around 20,000 of them in place on the day Jones was decided.

Then, in Florida v. Jardines (2013), Scalia brought along Thomas and the three most liberal justices (Ginsburg, Sotomayor and Kagan) to apply his new trespass theory to the “knock-and-talk,” that time-honored technique in which cops walk up to your front door and knock—and also peer around while they’re doing it, in hopes of spotting some evidence.  The cops in Jardines had tried to stretch it to a “knock-and-sniff,” by bringing a drug dog with them to sniff the air wafting out from under the front door.

Justice Clarence Thomas by Cknight70 via Flickr

Justice Clarence Thomas by Cknight70 via Flickr

Scalia persuaded his colleagues to hold that that this was a “search,” because under 18th-century trespass law, the public has an implied license to come to your door for the purpose of talking—but not for the purpose of sniffing the air for drugs.  It’s a solid, pro-civil liberties result, it’s a sound, usable analysis, and it has had real results.

As with the other examples here, it shows that Scalia was at his most doctrinally effective when he teamed up with the liberals.

Limitations on Miranda.

Who benefits?  The government.

Scalia hated Miranda v Arizona (1966) the way he hated the exclusionary rule.  His reason was the same ivory-tower 18th-century fetishist reason: “I don’t see it in the text of the Constitution.”  He bitterly rejected the rationale for the Court’s imposition of the mandatory-warning rule, which was that police coercion of involuntary confessions was real and widespread by the 1960s, that it happened out of sight of the courtroom, that juries believed cops over defendants, and so one of the core protections of the Bill of Rights—the guarantee against compelled self-incrimination—was in real danger of extinction.  The whole point of Miranda is that an unenforceable Constitution is a meaningless Constitution.

Miranda and Brown v. Board are the alpha and omega of the Warren Court: decisions recognizing that the Constitution lives and dies in the day-to-day conduct of government officials, and that theoretical principles require concrete enforcement orders.  Perhaps Miranda’s success was the reason Scalia hated it so much: It proved that the jurisprudential approach he so disdained actually worked.

In 2000, dissenting (joined only by Thomas) in Dickerson v. United States, a case rejecting a Congressional attempt to weaken Miranda by statute, Scalia called Miranda “a milestone of judicial overreaching” and “the very Cheops’ Pyramid of judicial arrogance.”

Scalia hated the idea of the Court creating a “rule of police procedure,” and so he and his acolyte Clarence Thomas took to endlessly insisting (in what I guess we would now call a Trumpian way) that the Miranda decision hadn’t actually done that.  Scalia and Thomas waged a decades-long campaign to limit, gut, and neuter Miranda, culminating in the truly awful United States v. Patane (2004) plurality, authored by Thomas, which held that evidentiary fruits on non-Mirandized suspect statements are admissible in court.

Patane is like Whren: If you tell police that they can engage in “technically” illegal conduct that will yield evidentiary benefits with no evidentiary costs, well, what do you think is going to happen?

Scalia’s anti-Miranda campaign has had a cultural effect, too: Every defense lawyer, myself included, can tell you about cases in which a cop—on tape, with no apparent hesitation—simply ignores a suspect’s repeated invocations of his rights and keeps right on asking questions.

ACCA Enhancements and Vagueness: Johnson v. United States (2015)

Who benefits?  Defendants.

Here I’m going to give Scalia some unqualified praise.  For 20  years, he argued consistently, and largely alone, that criminal statutes providing for enhanced sentences for defendants who had previously committed a crime “involving conduct likely to result in serious injury or death” were  unconstitutionally vague.

Finally, in 2015, he succeeded in persuading a majority that that the “likely to result” standard was unconstitutionally vague because it failed to provide the public with fair notice of what conduct would lead to sentence enhancements.

Under Johnson, statutes can enhance sentences based on prior convictions, sure, but they have to give the public fair notice of what prior convictions will trigger the enhancement.  Many defendants will benefit, even many already sentenced.

(Another big group of beneficiaries are all the lawyers and judges who no longer have to squander their time, energy and creativity pondering which crimes are “likely to result in serious injury.”  Believe me, I’ve spent plenty of time doing that.  It gets old, and it’s intellectually unsatisfying the way all angels-on-the-head-of-a-pin problems are.)

Now, looking at the list above, you might say that he was a pretty good justice if your main concern is the protection of constitutional rights for criminal suspects and defendants.  And many of his dissents and concurrences are powerful articulations of principles dear to criminal defense.  (If you’re curious, look at his separate opinions in Maryland v. King; Ontario v. Quon; and Arizona v. Gant)

But here’s the thing: His pro-government rulings have had far more practical impact that his pro-defense rulings.  The Confrontation Clause doctrine is powerful when it applies, but it doesn’t apply much: 99% of criminal cases don’t result in a trial.

There are thousands of police contacts for every criminal trial, so rules governing  those contacts have far greater impact.  And the most important Scalia case (Scalia majority opinion, Scalia reasoning) on those contacts is Whren—the case that, as explained above, gave the constitutional green light to racial profiling.

Whren is arguably the single worst decision ever from the perspective of constitutional policing.  The Black Lives Matter movement arose largely in response to the experience shared by black people across the country of being singled out for aggressive, pretextual policing of minor infractions—Sandra Bland forgetting her turn signal, Eric Garner selling a 10-cent loose cigarette, or Michael Slager telling Walter Scott “Your third brake light’s out”—precisely the tactic the Supreme Court blessed in Whren.

 Whren’s holding—that no suppression remedy exists even for blatant racial profiling, so long as there was probable cause for any technical legal violation, however minor—is just one example of Scalia’s career-long hatred of the exclusionary rule, which is the only way to enforce the Fourth Amendment.

For 30 years on the court, he attacked the exclusionary rule in every case; he chipped away at its edges, and he argued for abolishing it entirely.   Without the exclusionary rule, there is—for practical purposes, which are the only purposes that matter—no Fourth Amendment.

So if you ask me, those occasional “Scalia, Fourth Amendment Defender!” paeans are unearned.  For Scalia, the Fourth Amendment was a cute theoretical playground for his weird 18th-century-meaning fetishes.  But if he really cared about it, he would have stood up for its enforcement through the exclusionary rule.

Instead, time and time again, he voted to expand exceptions to the exclusionary rule and allow the government to convict defendants with illegally obtained evidence because, he said, the cost of enforcing the Constitution (letting a guilty person go free) was too high.

I think that was a failure of guts.  He always said he was “faint-hearted” about his originalism, and nowhere was that clearer than with the Fourth Amendment; he can’t seriously have believed that the Founders intended to make the Fourth Amendment unenforceable.

You could say that Scalia’s Fourth Amendment jurisprudence was like a legal academic’s triumphant law review article: interesting in theory, useless in improving people’s lives.  Perhaps that makes sense, given that Scalia never did have a career as a practicing lawyer.  We need real lawyers on the court, not academic theorists, because real lawyers understand that the meaning, power and life of the Constitution is in the mechanics of its enforcement.

Nowhere is this more true than the Fourth Amendment. The Fourth Amendment, as I’ve written many times, is the Constitutional rubber that directly hits the road of our lives every single day.  And nothing, in my opinion, degrades public respect for the law more than a legal regime in which the government is permitted to routinely violate the Constitution with no consequences—precisely what we are getting with the hollowing out of the Fourth Amendment’s exclusionary rule.  We all—citizens, suspects, and police— need clear Fourth Amendment rules that are enforced.


Caleb Mason

In sum, Scalia was unique in his criminal-law jurisprudence. The weird mix of judicial impulses that led to the dramatic shifts in the law listed above is his and his alone.  His criminal-law views didn’t predictably track right or left—though his hostility to court-created enforcement mechanisms was terrible for criminal defendants.

So now the question on everybody’s lips is whether Gorsuch is going to be Scalia-esque.

When it comes to criminal procedure and criminal law, I don’t think anyone is.  If Judge Gorsuch  is confirmed, he’ll have 30 years to forge his own judicial identity.  And whoever he becomes on the Court, he won’t be another Scalia.

Caleb Mason is a partner at Brown, White and Osborn in Los Angeles, a former federal prosecutor, and a regular contributor to TCR. He welcomes readers’ comments.



One thought on “Will Gorsuch Be Another Scalia on Criminal Justice Issues? Not Likely

  1. Don’t see how gun rights have anything to do with originalism. Read
    Heller’s Catch 22 by Adam Winkler University of California, Los Angeles (UCLA) – School of Law UCLA Law Review, Vol. 56, June 2009 UCLA School of Law Research Paper No. 09-10 to understand where I’m coming from here. Also, seems like he will be anti-environmental. Another judge who will rule against agencies (and bureaucratic rule by expert), but then overlook the fact that police and military are agencies, too. A key piece in all of this is the belief in “regular courts”, but regular courts are meaningless given the large scale inaccessibility they pose to average citizens. The economy of scale of the U.S. legal system requires the further enabling and reduction in “capture” of bureaucracies and agencies that will protect them.

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