Justice Scalia – The Good, the Bad, and the EPIC Effect on Supreme Court Precedent.

To begin, I have been offline. Which meant that I genuinely learned about Justice Scalia’s passing from a hard copy newspaper:


Considering that I have had several encounters with Justice Scalia’s many decisions, and considering that David Kravets at Ars Technica laid most of them out as a quick memory-jog for us all in his article Through the Ars lens: Looking at Justice Scalia’s opinions, dissents, I figured why not share my memories of his cases with you all.


Ok, it’s only fair that I start with the good. Because there’s a lot of good!! I have fond memories of learning about all of the Cyberlaw-y cases, because I learned all about them in my Cyberlaw-y classes in Law School (Cyberlaw, Information Privacy, Cyberlaw Seminar, etc).

Maryland v. King: The Supreme Court ruled 5-4 in 2013 that states may take DNA samples from arrestees.”
To be fair, I still cannot believe that the Supreme Court decided that taking DNA samples of arrestees was okay. I don’t care what the reasoning was. Justice Scalia’s dissent essentially said that public safety shouldn’t trump all other interests. So true. So, so true.

Jones v. United States: The court decided 5-4 in 2012 that law enforcement officials generally need probable-cause warrants to place a GPS tracker on a suspect’s vehicle and monitor their every move”
What was really funny in this case was that the majority opinion was based on the fact that the police would have had to trespass in order to install the GPS tracker on the suspect’s vehicle to begin with.
I imagine that, over lunch, the justices said: “So…. can we avoid basing the majority opinion on the whole 28 days bit? I mean, the concurrence can mention it, but let’s avoid making it precedent, shall we? I really don’t want anyone to cite “28 days” when the search was 27.”
FYI: The concurrence is a group of people who agree with the majority’s conclusion, but not how they got there – Sort of like taking two different routes to the airport.

Kyllo v. United States: The high court declared 5-4 in 2001 that scanning a house with a thermal-imaging device without a warrant was unconstitutional because Americans had an expectation of privacy while in their residences.”
We’ll see how long the reasoning behind Kyllo lasts, but it was awfully nice of Justice Scalia to decide that we didn’t all need to turn into Lizards to protect our privacy.

Florida v. Jardines: The top court ruled 5-4 in 2013 that the authorities usually need a warrant to use a drug-sniffing dog outside a residence to determine if there are drugs on the inside.”
Can  you even imagine if that case had gone the other way?! Maybe you get all in a huff over “but there shouldn’t be a right to privacy in where your drugs are!” Well, maybe not. Except the way that legal arguments work is telling the court why something is or isn’t like something else the court’s heard before. So, the fact that it’s drugs at issue in Florida and some other thing you want to keep private might not make any difference to the court.


My first reflection, I suppose, because we tend to forget the good and focus on the bad, was to my Moot Court project my second year of law school. We got to argue (essentially) the Myriad case. Which meant that we quoted this line regularly (because we were amused – as, apparently, was Mark Joseph Stern at Slate):
Myriad DNA-patenting Supreme Court case: Scalia says he doesn’t get the science. [Slate, Mark Joseph Stern, June 13, 2013]
“‘I join the judgment of the Court,’ [Justice Scalia] wrote, ‘except [the portions] going into fine details of molecular biology. I am unable to affirm those details on my own knowledge or even my own belief.’ Scalia, in other words, doesn’t really understand the scientific basis of the case. And—unlike, implicitly, some of the other justices—he’s not going to pretend to.”
My take? To all Supreme Court Justices who hold in their power the ability to decide the rest of our fates in a very serious way: please obtain relevant details so that you can “affirm those details on your knowledge or even your own belief”. Please and thanks.

And then there’s this: He dissented against Obergefell v. Hodges, the case which legalized gay marriage. Yeah, yeah, his reasoning was a bit compelling, but there is a time for the court to step in. Perhaps Justice Scalia didn’t like that the court had so much liberty because he was afraid (see above for his potential lack of credentials to decide our fates).

“Lawrence v. Texas: The court decided 6-3 in 2003 to outlaw criminal sanctions for acts of homosexuality.” Scalia wrote the dissent.
So, um, his reasoning here was that a whole slew of “moral laws” (including fornication) were by nature put into question after the court “legalized” homosexuality. Well, yes Justice Scalia, that was sort of the point. And when society as a “majority” is ready to embrace fornication, we’ll go ahead and have that talk.
Fornication: For those of you who haven’t reviewed your fancy terms lately, “fornication” literally just means sexual intercourse between two people who are not married to each other. And there are still places where, on the books anyway, it’s still against the law:

8 Laws To Keep Women In Line That Are Somehow Still On The Books [Huffington Post, Sarah Boboltz, March 17, 2014] “In Massachusetts, Virginia, Georgia, Idaho, Mississippi, North Carolina, Utah and South Carolina, it’s still against the written law for unmarried men and women to engage in sexual intercourse.”

 #TheEPIC Effect on Supreme Court Precedent

So, to the late Justice Scalia, many of your decisions leave us forever changed for the better. I am forever grateful that you prevented the REP (Reasonable Expectation of Privacy) from R.I.P.-ing just yet. But some of your decisions just remind us that we 1) need to ask the next Supreme Court Justice nominee if he has any teenage daughters that he’s super over-protective of, and 2) how comfortable he feels doing what needs to be done in order to make an educated vote.


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