“I ought to be the darling of the criminal defense bar,” Supreme Court Justice Antonin Scalia once said. “I have defended criminal defendants’ rights—because they’re there in the original Constitution—to a greater degree than most judges have.”
Many criminal defense lawyers might gag at the thought. After all, Scalia was the most vociferous defender of the death penalty, even pushing (in losing causes) for its application to minors and the mildly mentally retarded. He wrote the majority opinion that upheld a grotesquely disproportionate drug mandatory minimum sentence from an Eighth Amendment challenge.
Yet Scalia was not delusional. He believed his opinions in those cases were well grounded in the text of the Constitution. After all, capital punishment is mentioned specifically in the Constitution and thus cannot now be considered unconstitutional As for mandatory sentences, the use of prison, even for lengthy terms, would not have struck the Framers as both “cruel” and “unusual,” as the Eighth Amendment required. Thus, Scalia’s originalist approach led to unhappy results for criminal defendants in these cases.
Yet other Scalia opinions, also rooted in “the original Constitution,” favored criminal defendants and were cheered by the defense bar. Indeed, in many cases Scalia sounded like a full-throated civil libertarian. Most famously, Scalia voted to protect American flag-burning protestors from criminal punishment, even though, he later admitted, he had no love for the “scruffy, bearded, sandal-wearing people” who did such things.
Scalia is rightly credited with single-handedly reviving the Sixth Amendment’s guarantee that "[i]n all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him."...