Tung Yin


At first glance, Justice Scalia may appear to have been something of a “friend” to criminal defendants, as he authored a number of opinions ruling against law enforcement. However, his opinions reflect his fidelity to his constitutional vision of originalism rather than an intent to favor criminal defendants. Nevertheless, these cases are often offered as legitimate examples of how he did not have a purely results-oriented approach to deciding criminal procedure issues. Yet, a closer examination of Justice Scalia’s “defendant-favorable” opinions suggests that the results often have an air of unreality to them. In practice, there is no way for the police to change their behavior to address the identified unconstitutional action, or if there is a way for the police to respond, it would be expanding the scope of criminal liability in ways that worsen the predicament for future criminal defendants.

In Hamdi v. Rumsfeld, the Court held that an American citizen captured on the battlefield in Afghanistan could be detained as an enemy combatant pursuant to the congressional Authorization for Use of Military Force (AUMF), but was entitled to legal representation and some kind of hearing to contest his combatant status. Justice Scalia, in his dissent, argued that an American citizen should either face trial on criminal charges, with all of the due process that criminal defendants receive, or that the President should persuade Congress to suspend the writ of habeas corpus to allow military detention. But in practice, these are staggeringly bad options, even from a civil libertarian standpoint, at least given the actual facts of Hamdi’s capture and detention. Though Justice Scalia’s fidelity to his constitutional vision was admirable in its consistency, it sometimes led to, or would have led to, results that simply could not be squared with the real world.