4 ms·

Scalia wrote a few pro privacy decisions, but Scalia is in no way the "defender of the 4th amendment", hagiographic obituaries notwithstanding. In his Whren v

Scalia wrote a few pro privacy decisions, but Scalia is in no way the "defender of the 4th amendment", hagiographic obituaries notwithstanding. In his Whren v US decision [0], Scalia gave police the power to stop and search any driver as long as they assert a traffic violation as the pretext for the stop. In Florida v Riley [1], he agreed that it's not unreasonable to police to use a helicopter to fly into position to see into property not visible from any adjacent building or from adjacent land, assert they can see marijuana, and use that as a pretext for a search warrant. In Lawrence v Texas [2], which focused on a case where police entered Lawrence's apartment (in response to a reported weapons disturbance) and found Lawrence engaged in consensual sexual act with another man, and Lawrence was arrested on charges of violating a Texas statute against "sodomy". The court ruled that individuals have the right to engage in sexual acts with other consenting adults when in the privacy of their homes. Scalia wrote a rancid screed of a dissent. Sometimes Scalia stood up for the 4th amendment, but he didn't value it more than his prejudices and ideological mission. And that makes it hard for me to say he thought privacy was an individual right. [0] https://www.oyez.org/cases/1995/95-5841 https://www.oyez.org/cases/1995/95-5841 [1] https://www.oyez.org/cases/1988/87-764 https://www.oyez.org/cases/1988/87-764 [2] https://www.oyez.org/cases/2002/02-102 https://www.oyez.org/cases/2002/02-102

jibe 4y ago
Whren v US decision [0], Scalia gave police the power to stop and search any driver as long as they assert a traffic violation as the pretext for the stop. 1: it was a unanimous decision 2: they can’t just assert a traffic violation, there has to be an actual violation of the law.
- tstrimple 4y ago
  > 2: they can’t just assert a traffic violation, there has to be an actual violation of the law. How's that working out in practice?
- Petersipoi 4y ago
  Seems to me like GP is using the word "assert" intentionally to make it seem like Scalia supports giving cops the power to make up charges then act accordingly. No, Scalia didn't support police flying a helicopter up to your window and pretending they see marijuana then raiding your house. And yeah GP is going to argue that "assert" doesn't mean claiming something that isn't true. But the intention is obvious to the point that it's really difficult to see good faith here.
  - modriano 4y ago
    It's really not possible to dispute that the Supreme Court just tells police what magic words they need to include in their reports to make unconstitutional searches constitutional. In Terry v Ohio [0], a plainclothes policeman saw three guys casing a store, saw the outlines of concealed items that he believed to be guns, he stopped and searched them on that basis, and two of the three guys had weapons. The Court ruled that the evidence was admissible and the officer's "reasonable suspicion" made the search lawful, as the officer's safety may be endangered if they're questioning individuals with weapons. Without a reasonable suspicion that an individual has a concealed weapon, though, the frisk is an unconstitutional 4A violation. In this NY Civil Liberties Union study of stop and frisk data [1], going through NYPD stop and frisk data, from 2003 to 2013, 2585945 frisks were performed but weapons were only found in ~2% (!!!) of frisks. If your suspicions are wrong 98% of the time, it's pretty hard to describe the suspicion as "reasonable", but the SC declared that asserting reasonable suspicion is all it takes to make those unconstitutional searches constitutional. I'm not anti police, I'm a homicide researcher in Chicago and I have immense respect for a number of the officers and detectives I've worked with. But I can't look at these facts and then pretend they don't exist. [0] https://www.oyez.org/cases/1967/67 https://www.oyez.org/cases/1967/67 [1] https://www.nyclu.org/sites/default/files/publications/stopandfrisk_briefer_2002-2013_final.pdf#page=9 https://www.nyclu.org/sites/default/files/publications/stopa...
    - tptacek 4y ago
      I'm a homicide researcher in Chicago Whoah, neat, say more?
- modriano 4y ago
  1. Yeah. Scalia wrote the opinion, and every other Justice signed onto it. Scalia is not some unique iconoclastic privacy loving Justice, he was in line with the way the court thinks about the 4A. 2a. Imagine a police officer falsely alleged a traffic violation. How much equipment would the pulled-over driver need to have to prove the allegation was false, and how much would it cost to then prove the allegation false? How much equipment would police cars need to prove every allegation was valid? Why are we going to pretend this isn't just another case where the Supreme Court is coaching police on what words they need to put in reports (eg "furtive gestures" to justify a Terry stop, or any traffic violation for this) to allow "us" to have our cake (the 4A) and eat it too (still overpolice Black neighborhoods and chase Black people out of suburbs)? 2b. Should driving 26 mph in a zone with a 25 mph speed limit eliminate protections against a stop and a search? If there are so many traffic laws that it's inevitable that following someone for 10 minutes would yield 1 violation, in what sense do we really have any 4A protection while on the road?
- 8note 4y ago
  For 2, isn't that some weird logistics? You have to bring them to court, convict them, then you can search the vehicle?
pessimizer 4y ago
Scalia was a bad person. But to diminish what he did stand up for essentially dismisses the court entirely, since everyone else was worse.
pyuser583 4y ago
What makes his dissent in Lawrence a “rancid screed?” Was it not well thought out? Filled with hateful language and stereotypes?
- deleted 4y ago
  [deleted]
- modriano 4y ago
  I don't know how to answer if it's "well thought out". It certainly consistent with his mission of enabling conservatives to use the law to enforce morality, as exemplified in section IV, """I turn now to the ground on which the Court squarely rests its holding: the contention that there is no rational basis for the law here under attack. This proposition is so out of accord with our jurisprudence--indeed, with the jurisprudence of any society we know--that it requires little discussion. The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are "immoral and unacceptable," Bowers, supra, at 196--the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, "furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," ante, at 18 (emphasis addded). The Court embraces instead JUSTICE STEVENS' declaration in his Bowers dissent, that "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice," ante, at 17. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.""" [0] I'd say it's fairly hateful to compare consensual homosexual sex to bestiality (which cannot be consensual and thus is always rape). He also spends a lot of time freaking out about the idea that if the Court forbids states from criminalizing homosexuality, it would logically follow that homosexuals are just people and would also be entitled to marriage equality. And he makes it clear how much he is afraid and repulsed by the idea of homosexuals getting the right to marriage equality. """Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts--or, for that matter, display any moral disapprobation of them--than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new "constitutional right" by a Court that is impatient of democratic change. It is indeed true that "later generations can see that laws once thought necessary and proper in fact serve only to oppress," ante, at 18; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best. One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts--and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct.App.); Cohen, Dozens in Canada Follow Gay Couple's Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion--after having laid waste the foundations of our rational-basis jurisprudence--the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and then declares that "[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Ante, at 13 (emphasis added). Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution," ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.""" [1] [0] https://supreme.justia.com/cases/federal/us/539/558/#599 https://supreme.justia.com/cases/federal/us/539/558/#599 [1] https://supreme.justia.com/cases/federal/us/539/558/#604 https://supreme.justia.com/cases/federal/us/539/558/#604
hammock 4y ago
>Scalia wrote a few pro privacy decisions, but Scalia is in no way the "defender of the 4th amendment" He never said Scalia was perfect. He implied that he was our last hope
- modriano 4y ago
  Even if that was his point, it's wrong. Breyer (interestingly, Breyer was mugged and robbed at least twice) and Ginsburg often sided with the conservatives in voting to invade our privacy, but Kagan and Sotomayor are pretty reliable defenders of privacy, and from the arguments I've listened to so far from this term, I'm confident KBJ holds even stronger pro-privacy 4A views than Kagan and Sotomayor. And even with Breyer and Ginsburg voting against privacy somewhat regularly, in the biggest 4A case of the past few years, Carpenter v US [0], Breyer, Ginsburg, Kagan, Sotomayor, and CJ Roberts voted that the 4A protects individuals against warrantless searches of cell-site records (ie the cell tower records that include frequent pings of every cell phone using that tower). So even if that was OPs point, it's wrong. [0] https://www.oyez.org/cases/2017/16-402 https://www.oyez.org/cases/2017/16-402
deleted 4y ago
[deleted]

jibe 4y ago

Whren v US decision [0], Scalia gave police the power to stop and search any driver as long as they assert a traffic violation as the pretext for the stop. 1: it was a unanimous decision 2: they can’t just assert a traffic violation, there has to be an actual violation of the law.

tstrimple 4y ago
> 2: they can’t just assert a traffic violation, there has to be an actual violation of the law. How's that working out in practice?
Petersipoi 4y ago
Seems to me like GP is using the word "assert" intentionally to make it seem like Scalia supports giving cops the power to make up charges then act accordingly. No, Scalia didn't support police flying a helicopter up to your window and pretending they see marijuana then raiding your house. And yeah GP is going to argue that "assert" doesn't mean claiming something that isn't true. But the intention is obvious to the point that it's really difficult to see good faith here.
- modriano 4y ago
  It's really not possible to dispute that the Supreme Court just tells police what magic words they need to include in their reports to make unconstitutional searches constitutional. In Terry v Ohio [0], a plainclothes policeman saw three guys casing a store, saw the outlines of concealed items that he believed to be guns, he stopped and searched them on that basis, and two of the three guys had weapons. The Court ruled that the evidence was admissible and the officer's "reasonable suspicion" made the search lawful, as the officer's safety may be endangered if they're questioning individuals with weapons. Without a reasonable suspicion that an individual has a concealed weapon, though, the frisk is an unconstitutional 4A violation. In this NY Civil Liberties Union study of stop and frisk data [1], going through NYPD stop and frisk data, from 2003 to 2013, 2585945 frisks were performed but weapons were only found in ~2% (!!!) of frisks. If your suspicions are wrong 98% of the time, it's pretty hard to describe the suspicion as "reasonable", but the SC declared that asserting reasonable suspicion is all it takes to make those unconstitutional searches constitutional. I'm not anti police, I'm a homicide researcher in Chicago and I have immense respect for a number of the officers and detectives I've worked with. But I can't look at these facts and then pretend they don't exist. [0] https://www.oyez.org/cases/1967/67 https://www.oyez.org/cases/1967/67 [1] https://www.nyclu.org/sites/default/files/publications/stopandfrisk_briefer_2002-2013_final.pdf#page=9 https://www.nyclu.org/sites/default/files/publications/stopa...
  - tptacek 4y ago
    I'm a homicide researcher in Chicago Whoah, neat, say more?
modriano 4y ago
1. Yeah. Scalia wrote the opinion, and every other Justice signed onto it. Scalia is not some unique iconoclastic privacy loving Justice, he was in line with the way the court thinks about the 4A. 2a. Imagine a police officer falsely alleged a traffic violation. How much equipment would the pulled-over driver need to have to prove the allegation was false, and how much would it cost to then prove the allegation false? How much equipment would police cars need to prove every allegation was valid? Why are we going to pretend this isn't just another case where the Supreme Court is coaching police on what words they need to put in reports (eg "furtive gestures" to justify a Terry stop, or any traffic violation for this) to allow "us" to have our cake (the 4A) and eat it too (still overpolice Black neighborhoods and chase Black people out of suburbs)? 2b. Should driving 26 mph in a zone with a 25 mph speed limit eliminate protections against a stop and a search? If there are so many traffic laws that it's inevitable that following someone for 10 minutes would yield 1 violation, in what sense do we really have any 4A protection while on the road?
8note 4y ago
For 2, isn't that some weird logistics? You have to bring them to court, convict them, then you can search the vehicle?

pessimizer 4y ago

Scalia was a bad person. But to diminish what he did stand up for essentially dismisses the court entirely, since everyone else was worse.

pyuser583 4y ago

What makes his dissent in Lawrence a “rancid screed?” Was it not well thought out? Filled with hateful language and stereotypes?

deleted 4y ago
[deleted]
modriano 4y ago
I don't know how to answer if it's "well thought out". It certainly consistent with his mission of enabling conservatives to use the law to enforce morality, as exemplified in section IV, """I turn now to the ground on which the Court squarely rests its holding: the contention that there is no rational basis for the law here under attack. This proposition is so out of accord with our jurisprudence--indeed, with the jurisprudence of any society we know--that it requires little discussion. The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are "immoral and unacceptable," Bowers, supra, at 196--the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, "furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," ante, at 18 (emphasis addded). The Court embraces instead JUSTICE STEVENS' declaration in his Bowers dissent, that "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice," ante, at 17. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.""" [0] I'd say it's fairly hateful to compare consensual homosexual sex to bestiality (which cannot be consensual and thus is always rape). He also spends a lot of time freaking out about the idea that if the Court forbids states from criminalizing homosexuality, it would logically follow that homosexuals are just people and would also be entitled to marriage equality. And he makes it clear how much he is afraid and repulsed by the idea of homosexuals getting the right to marriage equality. """Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts--or, for that matter, display any moral disapprobation of them--than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new "constitutional right" by a Court that is impatient of democratic change. It is indeed true that "later generations can see that laws once thought necessary and proper in fact serve only to oppress," ante, at 18; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best. One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts--and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct.App.); Cohen, Dozens in Canada Follow Gay Couple's Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion--after having laid waste the foundations of our rational-basis jurisprudence--the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and then declares that "[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Ante, at 13 (emphasis added). Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution," ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.""" [1] [0] https://supreme.justia.com/cases/federal/us/539/558/#599 https://supreme.justia.com/cases/federal/us/539/558/#599 [1] https://supreme.justia.com/cases/federal/us/539/558/#604 https://supreme.justia.com/cases/federal/us/539/558/#604

hammock 4y ago

>Scalia wrote a few pro privacy decisions, but Scalia is in no way the "defender of the 4th amendment" He never said Scalia was perfect. He implied that he was our last hope

modriano 4y ago
Even if that was his point, it's wrong. Breyer (interestingly, Breyer was mugged and robbed at least twice) and Ginsburg often sided with the conservatives in voting to invade our privacy, but Kagan and Sotomayor are pretty reliable defenders of privacy, and from the arguments I've listened to so far from this term, I'm confident KBJ holds even stronger pro-privacy 4A views than Kagan and Sotomayor. And even with Breyer and Ginsburg voting against privacy somewhat regularly, in the biggest 4A case of the past few years, Carpenter v US [0], Breyer, Ginsburg, Kagan, Sotomayor, and CJ Roberts voted that the 4A protects individuals against warrantless searches of cell-site records (ie the cell tower records that include frequent pings of every cell phone using that tower). So even if that was OPs point, it's wrong. [0] https://www.oyez.org/cases/2017/16-402 https://www.oyez.org/cases/2017/16-402

deleted 4y ago

[deleted]