Antonin Scalia: Good for Defendants?


Sclia SixthAmendmentAntonin Scalia was either loved or reviled as an associate justice. Liberals loathed his seemingly callous disregard for minority rights and social progress. Conservatives loved his embrace of tradition.

I’m here to say, he wasn’t so bad, and in some very specific areas that matter to me (and matter to criminal defendants), Antonin Scalia was actually a force for good.

No, I don’t mean Scalia’s awful position that executing the innocent doesn’t violate the Constitution..

I mean the Sixth and, to a lesser extent, the Fourth Amendments.

By 2009, the Confrontation Clause of the Sixth Amendment had become almost a dead letter with respect to the submission at trial of the results of drug tests, chemical analysis, and many forensic reports.

Antonin Scalia singlehandedly revived the Confrontation Clause in Melendez-Diaz v. Massachusetts, and subsequently in Washington v. Crawford and Bullcoming v. New Mexico (authored by Ginsburg).

The revived Confrontation Clause meant that no longer could a chemical analyst’s report in a DWI offense be offered without a testifying analyst to introduce the exhibit. But, more than that, it mean that previously admissible statements that would otherwise be admitted against the defendant under an exception to the hearsay rule were no longer admissible because they ran afoul of the defendant’s Confrontation Clause rights.

In addition, Scalia, haltingly, helped reign in some of the Supreme Court’s excesses on the Fourth Amendment. Even the reliably progessive website Talking Points Memo was forced to admit that “Antonin Scalia Emerges as a Fighter for Fourth Amendment Rights”

Scalia also did a great turn for defendants, most recently in United States v. Johnson which held that the residual clause to the Armed Career Criminal Act is unconstitutionally vague. This opinion is now being applied to residual clauses throughout federal law and the federal sentencing guidelines.

It will most likely create more reasonable sentences for more felons than any other recent governmental act, including President Obama’s administrative decision to release thousands of prisoners in 2015.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.