When he feels that the Constitution guarantees it, Justice Scalia can be quite eloquent about upholding liberties, no matter how unpopular the litigants. This includes flag burners, alleged child molesters who want to confront their accusers, American citizens (as compared to alien) held as enemy combatants without redress to the courts and those whom "a state court found mentally competent to stand trial if represented by counsel but not mentally competent to conduct that trial himself" who wish all the same to go it alone.*
Seven justices allowed a state judge to disallow self-representation in such cases, but Scalia/Thomas argued otherwise. In part, this was a matter of individual dignity [citations removed]:
Rather, the dignity at issue is the supreme human dignity of being master of one’s fate rather than a ward of the State—the dignity of individual choice. The Sixth Amendment’s counsel clause should not be invoked to impair the exercise of [the defendant’s] free choice to dispense with the right for whatever else may be said of those who wrote the Bill of Rights, surely there can be no doubt that they understood the inestimable worth of free choice. Nine years later, when we wrote that the self-representation right served the dignity and autonomy of the accused, we explained in no uncertain terms that this meant according every defendant the right to his say in court. In particular, we said that individual dignity and autonomy barred standby counsel from participating in a manner that would to destroy the jury’s perception that the defendant is representing himself, and meant that the pro se defendant is entitled to preserve actual control over the case he chooses to present to the jury.
At one point, Scalia suggested that what was at issue here was a due process right. The Bill of Rights secures a right to counsel, but no express right to defend yourself. Thus, it was more of a matter of due process, fairness as understood by our traditions and experience. The Supremes, with his assent, earlier held that you do not have a right to defend yourself without a lawyer in appeals from your trial verdict. Again, there is no express mention of the point in the Constitution -- history and reason is used to determine that appeals are different. Scalia fears open-ended provisions that rely on the (arbitrary) judgement of judges, but even he sometimes must know it is a matter of degree.
Or, as Justice Harlan once noted: "having regard to what history teaches" is a core measure in determining the breadth of our constitutional rights. It is not only a matter of looking at specific liberties ("a series of isolated points"), but the overall nature of the system for which they are but that -- points of a whole. Such is necessary especially when due process, the Ninth Amendment and so forth suggest broad open-ended liberties and restraints on government. Respect for the text and history of the Constitution, his assumed guide, demands no less.
Thus, though Scalia references a certain specific liberty, his discussion has applications that go beyond this specific situation and serves as a general basis of fundamental liberties. And, his discussion of "the supreme human dignity of being master of one’s fate rather than a ward of the State" has shown up in just this fashion, though Scalia would be loathe to lend many of the cases much support. Thus, Scalia rejected recognition of an early (1923) case in which the Supremes held parents had a broad liberty to raise children as they feel proper, children not being "the mere creature of the State" akin to the authoritarian child-rearing practices counselled by ancient philosophers (and some current ones) like Plato.
Likewise, Scalia does not support a broad constitutional right to privacy and autonomy ("privacy" in this sense not being just seclusion) that recognizes, per former Reagan man Charles Fried:
What a person is, what he wants, the determination of his life plan, of his concept of the good, are the most intimate expressions of self-determination, and, by asserting a person's responsibility for the results of this self-determination, we give substance to the concept of liberty.
Scalia would respond all well and good, but the Constitution does not support an anti-democratic upholding of the broad contours of this sentiment via court action and limitations on the discretion of the legislatures. He ignores the lessons of history and over a century of precedent in the process. Scalia argues (ala Black) that the Breyer led majority here tries to get at the "spirit" of the text by ignoring its necessary implications. And, misses the right spirit in the process as well (see his debate over "dignity"). Thus, the courts attempt to seize more power than they have, while at times not adequately doing the job clearly demanded of it.
But, the majority has a good point -- the underlining waiver requires a degree of competence that very well might not exist in cases such as these. The majority is not trying -- though at times I think Breyer does do that [as shown by cites in this very opinion/dissent, he made some noises on the very issue of allowing competent individuals to refuse a lawyer] -- to supersede written limits in promotion of some felt golden mean. And, when it broadly respects dignity in ways Scalia opposes (even sneers at), ditto.
---
* The case provides a citation of an old case respecting under what terms one can legitimately waive the right to an attorney. Of particular interest, per a recent blog post calling into question that competency of a single judge presiding over certain types of cases, was the dissents. They didn't think a legitimate waiver was in place and also questioned if a defendant could waive the right to jury in federal trials. The most liberal, Justice Murphy, noted:
The Constitution provides: 'The Trial of all Crimes, ... shall be by Jury; ....' (Article III, 2), and: 'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, ...' (Amendment VI). Because of these provisions, the fundamental nature of jury trial, and its beneficial effects as a means of leavening justice with the spirit of the times, I do not concede that the right to a jury trial can be waived in criminal proceedings in the federal courts. Whatever may be the logic of the matter, there is a considerable practical difference between trial by eleven jurors, the situation in Patton v. United States, and trial to the court, and practicality is a sturdy guide to the preservation of Constitutional guaranties.
He did not carry the day, but I still think he has a point.