President Trump campaigned on “law and order.” Everyone knows that there is an all important looming Supreme Court nomination on the horizon. President Trump has said that he wants the next U.S. Supreme Court Justice to be in the mold of the late Justice Scalia. If this is so, he may be in for a surprise when a case regarding criminal defendant’s rights comes on the Court’s docket.
In the legal world, rights of criminal defendants have not followed the traditional left/right model. In fact, the Justice Scalia often sided with criminal defendants in recent history. He actually authored the famous Crawford v. Washington opinion, which required accusers to physically come into court and present live testimony against criminal defendants. This case overturned 24 years of precedent, which previously allowed for accusers hearsay to be used against defendants as long as it was considered to be “reliable” by the trial court. In Rodriguez v. United States, he agreed that the Government cannot conduct a dog sniff of a home without a warrant. In Riley v. California, he reasoned that the Government cannot search a cell phone without a warrant when one is arrested. Justice Scalia helped strike down a state statute that allowed a trial judge unilaterally to increase a sentence if they found by a preponderance of the evidence that the crime was motivated by the race of the victim in Apprendi v. New Jersey. His vote was critical in that 5-4 decision, as the Court held an “aggravator” like this one had to be decided by a jury, and required proof beyond all reasonable doubt.
In fact, there are multiple instances of Justice Scalia going farther than Justice Stevens, widely regarded to be one of the Court’s more “liberal” Justices of the last quarter century. In Kyllo v. United States, a 5-4 decision that Justice Scalia authored, the Court threw out a conviction of Mr. Kyllo, reasoning that it was illegal for the government to use a heat sensor to see inside someones house without a warrant. Justice Stevens voted to allow the conviction to stand. In Arizona v. Gant, Justice Scalia again went farther than Justice Stevens on the rights of criminal defendants. Justice Scalia said it was a “charade” that officers should be able to search a car after an occupants arrest due to officer safety and it left too much discretion to individual officers.
If President Trump wants to nominate someone like Justice Scalia, maybe criminal defendants do not have so much to worry about after all despite all the “law and order” rhetoric. If President Trump wants “law and order”, he should probably model his U.S. Supreme Court nominee after someone else.