Antonin Scalia Sided With Flag Burners and Defendants, and That Is the Point

The man who cast a deciding vote to protect a flag burner was not a liberal. He was not the ACLU's favorite. He was Antonin Scalia, the most famous conservative on the Court, and the flag was burned on the steps of a Dallas building in protest at the 1984 Republican National Convention. Read that sentence again if you need to. A lot of conservatives do.

Think about that for a minute, because it is the key to understanding him. If you wanted a judge who would always deliver the result you liked, Scalia was the wrong man to hire. If you wanted a judge who would tell you what the Constitution said even when it stung, who would write it in plain English with a joke and a jab, and who would take the heat from his own side for doing so, then he was the man. That is a different thing altogether, and it is the thing that conservatives who care about law, as opposed to winning, should want from every judge they ever support.

So let me give you the man and the record, as plainly as I can.

From Trenton to the Chicago classroom

Antonin Gregory Scalia was born in Trenton, New Jersey, on March 11, 1936, the son of an Italian immigrant who taught Romance languages and a mother who was a schoolteacher. The family later moved to Queens, in New York City. He went to Xavier High School in Manhattan, then to Georgetown University, where he graduated first in his class, and then to Harvard Law School. After law school he practiced for several years at a firm in Cleveland, and in 1967 he joined the law faculty at the University of Virginia.

Notice the shape of the career. This is not a man who climbed up through elected politics. He was a lawyer and a teacher who loved arguments about how statutes and the Constitution ought to be read. In the Nixon and Ford years he held jobs in the executive branch, including the head of the Office of Legal Counsel at the Justice Department, which is the office that advises the executive branch on what the law allows. Then he went back to teaching, at the University of Chicago, a place with a reputation for hard-edged conservative and libertarian legal thought. In 1982 President Reagan appointed him to the U.S. Court of Appeals for the D.C. Circuit.

On September 17, 1986, the Senate confirmed him to the Supreme Court by a vote of 98 to 0. We tell the story of that vote in From 98 to 0 to Party Lines, a Timeline of Supreme Court Confirmations. The senators who voted for him did not fully appreciate what they were getting: a justice with a settled philosophy and the rhetorical power to sell it.

What he believed, in two sentences

Scalia argued that a judge's job is to apply the law as written, with the meaning the words had when they were adopted, rather than to update it to fit a judge's sense of justice. In his 1997 book, A Matter of Interpretation: Federal Courts and the Law, based on lectures at Princeton, he made the case that a judge who rewrites the law to fit modern needs is acting as a legislator without having been elected. If you want to see how that philosophy works in the wild, read Originalism Explained for People Who Skipped Law School and the pushback in The Living Constitution Sounds Reasonable Until You Ask Who Gets to Update It.

Now, here is the part people get wrong. That philosophy does not tell you who wins. It tells you where to look. The words of the document decide the case, and sometimes the words favor the side you don't like. Let's look at four cases where that happened.

Texas v. Johnson (1989): the flag burner

In 1984, Gregory Lee Johnson burned a flag outside the Republican National Convention in Dallas, as part of a protest. He was convicted under a Texas law against desecrating a venerated object. In Texas v. Johnson, decided in 1989, the Supreme Court voted five to four that the conviction violated the First Amendment. Justice William Brennan wrote the opinion. Scalia joined it. So did Anthony Kennedy, who wrote a short separate concurrence that spoke to the pain of the result.

Here is the argument, as Scalia would have seen it. The First Amendment says Congress shall make no law abridging the freedom of speech, and the Fourteenth Amendment applies that rule to the states. Burning a flag as a political protest is expressive conduct. Texas punished it because of the message it sent. A law that punishes people because of what their expression says is the thing the First Amendment forbids. It does not matter that the symbol is beloved. It does not matter that most Americans, including the justice himself, found the act repugnant. The text did not carve out an exception for beloved symbols. Whether a justice likes the act is beside the point. A legislator and a judge have different jobs.

That is a hard lesson, and I want to say it plainly: the same principle that protects the flag burner protects the street preacher, the pro-life marcher and the man handing out a tract at a bus station. If you want the first, you cannot have it without the second. We take that point further in Seven Things Americans Get Wrong About the First Amendment.

Crawford v. Washington (2004): the defendant's right to face his accuser

The Sixth Amendment says that "in all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him." For years, courts let prosecutors introduce statements from witnesses who never appeared in court, as long as a judge thought the statements were reliable. In Crawford v. Washington, Scalia wrote for the Court that this was wrong. The Confrontation Clause, he said, guarantees the right to cross-examine witnesses, not the right to have a judge decide whether the statement seems trustworthy. If a statement is "testimonial," meaning a statement made to gather evidence for prosecution, it can be admitted only if the witness is unavailable and the defendant had an earlier chance to cross-examine.

The result favored a criminal defendant, and prosecutors, who are usually the conservative side's allies, did not like it. The Court's judgment was unanimous, although two justices wrote separately to disagree with the reasoning. Scalia's answer was simple: the Framers had seen what happened when the Crown convicted people on written statements from witnesses the accused never confronted. The Sixth Amendment was written to stop that, whether or not it was convenient for modern prosecutors.

Kyllo v. United States (2001): the heat from your house

In the early 1990s, federal agents suspected that Danny Kyllo was growing marijuana in his home in Oregon. Without a warrant, they pointed a thermal imaging device at the house from the street to see whether the roof and walls were unusually hot, as they would be with grow lamps. Scalia wrote the opinion for a five-to-four Court. Using a device that is not in general public use to learn what is happening inside a home that could not be learned without physically entering is a search, and without a warrant it is unreasonable.

This is the Fourth Amendment doing what it was built to do. The house is at the center of the amendment's protection, and Scalia would not let new technology erode it. That reasoning, applied to a new set of tools, is the same logic that carried through later cases like the ones we cover in From Writs of Assistance to Your Cell Phone, the Fourth Amendment's Long Fight. He also wrote the opinion in United States v. Jones in 2012, which held that attaching a GPS tracker to a car is a search, and he wrote the Court's opinion in Blakely v. Washington in 2004, which held that facts that increase a criminal sentence beyond the statutory range must be found by a jury. In case after case, the man conservatives remember as a law-and-order justice insisted that the government prove its case the old-fashioned way.

Heller (2008): the opinion conservatives cheer

Not every Scalia opinion was a lesson in discomfort. In District of Columbia v. Heller, decided in 2008, he wrote for a five-to-four Court that the Second Amendment protects an individual right to keep and bear arms, and that the District's ban on handguns in the home and its requirement that other firearms in the home be kept disabled violated that right. He did it with the same method. He started with the text, examined the meaning the words had in the founding era, and followed the history. We take apart the opinion and what came after it in Heller, McDonald and Bruen Explain How Judges Now Read the Second Amendment.

The method matters because it is the same in both directions. The man who protected the flag burner and the defendant is the man who protected the gun owner. You can't have it both ways: if you cheer the method when it wins, you have to cheer it when it loses.

Morrison v. Olson (1988): the lone dissent

Here is a case where Scalia stood alone and was proved right. In Morrison v. Olson in 1988, the Court upheld the independent counsel law, which let a special prosecutor, appointed by a panel of judges and removable by the Attorney General only for good cause, investigate executive branch officials. The vote was seven to one. Scalia was the one.

His dissent argued that investigating and prosecuting crimes is an executive power, that Article II vests all of the executive power in the president, and that a prosecutor outside the president's control violates the separation of powers. People called his position radical. It looked like a lonely stand, especially because the independent counsel law had been a response to Watergate. But over the following decade, the independent counsel statute was used in investigations that drew criticism from both parties, and in 1999 Congress let the law expire without renewing it. Scalia's dissent is still read today by lawyers who care about the structure of the government, and it has shaped how courts think about who can fire whom, as we describe in Who Can Fire the Regulators? A Timeline From Myers to Seila Law.

Other cases where the text cut against the crowd

Because I promised you a pattern, here are a few more. In Apprendi v. New Jersey (2000) and Blakely, Scalia was in the majority on the rule that a judge may not add years to a sentence based on facts a jury had not found. In Hamdi v. Rumsfeld (2004), he dissented from a decision that allowed the government to hold an American citizen as an enemy combatant, arguing that a citizen held on American soil must be charged with a crime or released unless Congress suspends habeas corpus. In Employment Division v. Smith (1990), he wrote the opinion that held that a neutral law that happens to burden religious practice does not violate the Free Exercise Clause, a result that disappointed many religious conservatives and led Congress to pass a statute in response. Those are all cases where the outcome did not line up neatly with what the right wanted, and in some he voted against the government.

The friendship that surprised everyone

Scalia and Ruth Bader Ginsburg sat at opposite ends of the Court's philosophy, and they were close friends. They shared a love of opera. Their families spent New Year's Eve together for years. When the two appeared at public events they teased each other without mercy. A comic opera about their friendship, called Scalia/Ginsburg, was staged in 2015. Its composer, Derrick Wang, is also a lawyer and built it out of their opinions.

Why include this in a post about a conservative? Because it demolishes the idea that principled disagreement has to be personal. Scalia could sharpen a dissent until it bled, and then go out to dinner with the justice he had just skewered. He wrote with fire and lived with warmth. His death on February 13, 2016, at a ranch in Texas, set off the fight over his seat that we recount elsewhere.

The strongest objection, and the answer

The best argument against Scalia's approach goes like this. One, the text of the Constitution is often vague. Two, "original meaning" is hard to discover, and historians disagree. Three, a judge who claims to be merely following the text may be importing his own preferences while hiding behind history. Four, therefore originalism is not a constraint but a cover.

That is a serious argument and it deserves a serious answer. Point one is true: some clauses are open-ended. Point two is true: the history is messy. But point three is an empirical claim, and the cases above are the test. A judge who is hiding his preferences does not vote to free the flag burner whose act he despises, or to throw out evidence the police gathered with a thermal camera, or to give a drug defendant a right to confront witnesses. When a judge's method repeatedly produces results he dislikes, that is evidence that the method is doing some work. No method is perfect, and Scalia himself admitted the approach was not easy. But the alternative is a judge who updates the Constitution to fit the current mood, and the current mood is exactly the thing a constitution is supposed to hold back.

The bottom line

• Judge a judge by his method, not by the last result you liked. The test of a principle is whether you keep it when it costs you.
• Scalia's record shows an originalist can protect the flag burner, the defendant and the gun owner, because the text protects all three.
• Read the opinions yourself. Scalia wrote in plain English with wit, and Texas v. Johnson, Crawford, Kyllo and Heller are available free on the Supreme Court's website.
• When a politician promises a judge who will "get it right" on one issue, ask what the judge does when the text points the other way.
• Teach your kids that a free country needs people who will defend rights they find offensive.