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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Wednesday, January 16, 2013

It isn't all that clear, Mr. Scalia

Arizona v. Gant is a Fourth Amendment case from 2009 for which Scalia's brand of judicial ideology led to a more libertarian result. It happens though his concurring opinion also is a window in the problems with his philosophy.  Thomas letting himself get caught on a microphone during oral arguments has in some cases led to the usual lame knee-jerk comments about him, including as if he is simply Scalia's lapdog (was Marshall just Brennan's?).  Don't worry -- still find trouble with both of them, but in a somewhat more interesting way as some might.

Scalia in his concurrence sets forth a basic bit of philosophy that goes beyond the Alito "Scalia wants to know what Madison thinks about video games," though he does invite such carcicature at times, especially when he seems to be playing to the camera, so to speak:
we look first to the historical practices the Framers sought to preserve; if those provide inadequate guidance, we apply traditional standards of reasonableness
During oral argument, he made reference to Jefferson's carriage being stopped, but he notes in his opinion that such historical practices as to what "unreasonable" means in this context is "uncertain."  So, "tradition" follows though eight justices (including Thomas) doesn't seem so certain that it is "abundantly clear" that it doesn't go the way of Stevens opinion.  And, just what "tradition" demands is repeatedly an issue, including how following "the most specific level" [thus on a key point, the opinion there had two votes; perhaps, someone else should have wrote it!] is unnecessary. The clarity seems to lean the way that appeals to his ideology, which is not unique to him, but is harder to take given his self-assurance that his approach prevents that sort of thing.  

Scalia thus is not just concerned with what people thought c. 1787 or whatever the date of the particular provision in question, but some more nebulous "tradition" that (see, e.g., McDonald v. Chicago) is colored by precedent and other things.  The moderate (yeah) conservative approach of a Harlan, O'Connor, Kennedy or Souter (coming after but leaving sooner) is what wins out in the end -- a sort of modern day originalism that is influenced by the past but respecting the passage of time. So it realistically would be though some don't quite want to admit to it, which is where Scalia lies, even he admitting at times being somewhat of a "faint hearted originalist."  That is, when he isn't fronting as something else.

Thus, the end result here, where he is upset with the result, but deems the majority the best of imperfect options. Meanwhile, he doesn't like the exclusionary rule while being supportive of a brand of immunity that is modern in scope, excluded evidence [which experts such as Orin Kerr has shown very well might have been the rule long ago too, just done largely in the shadows of appellate review*] providing a balance while the less immunity friendly past entered modern times.  Like something observed tainted by the observation, modern law requires altering tradition to honor the spirit of the law.  Kennedy had the principle right:
They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
Kennedy has his problems too, so various views are appreciated, even a bit of Scalia, especially if we take them all with a healthy grain of salt.

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* I looked over an article of his on the subject, but a quick search doesn't bring it up right away. Let's add this instead, regarding the "history" (quotes advisable) used by the USSC.  Kerr's note that Scalia says such and such is "consistent" with original understanding reminds me of his opinion in Oregon v. Smith where one interpretation of free exercise of religion is deemed not simply wrong, just not compelled. 

A hazy concept of "hybrid rights" is used there as a workaround, like those used to ensure that the earth remained the center of the universe.  Kerr also notes how Scalia sometimes notes that the "unchanging Constitution" refers to bodies of law the do change, including property law under the 4A, a principle that should apply across the board.  See, e.g., how modern day equal protection law reflects modern day understandings even if we (with the right amount of generality) apply basic originalist sounding baseline principles.  Really, it's better simply to listen to the likes of Stevens here.  Sorry, life is messy.

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