Reason: Scalia’s Liberal Tendencies

Reason: Scalia’s Liberal Tendencies by Jacob Sullum:

The late Supreme Court justice was inaccurately described as “authoritarian.”

[He was generally good on the Fourth and strong on the Sixth, but not at all on the Fifth, Eighth, and Fourteenth Amendments. A robed contradiction. I got to argue in front of him twice.]

In October 2012, during oral argument in a case that raised the question of whether and when a canine “alert” justifies a car search, Supreme Court Justice Antonin Scalia seemed genuinely flabbergasted not only by the idea that a police dog might be inadequately trained but also by the suggestion that police might exaggerate a dog’s abilities. “Why would a police department want to use an incompetent dog?” he asked. “What incentive is there for a police department?” The lawyer representing a man who had been incriminated by a dog-triggered search patiently explained that “the incentive is to acquire probable cause to search when it wouldn’t otherwise be available.”

In light of that exchange, it was not surprising that Scalia four months later joined the rest of the Court in a unanimous decision that effectively gave any cop with a dog the power to search cars at will. Yet a month after that ruling, Scalia wrote a majority opinion—joined by the unusual left-right alliance of Clarence Thomas, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor—that said deploying a drug-sniffing dog at the doorstep of a home qualifies as a search under the Fourth Amendment, meaning it generally requires a warrant. “The officers were gathering information in an area belonging to [the defendant] and immediately surrounding his house—in the curtilage of the house, which we have held enjoys protection as part of the home itself,” Scalia wrote. “And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.”

These contrasting decisions—one highly deferential to the police, the other demanding that they get a warrant if they want to go snooping around a suspected pot grower’s house—show how Scalia, who died on Saturday, alternately delighted and disappointed libertarians. Although he was not a consistent defender of individual rights (or a consistent originalist or federalist), he was nothing like the authoritarian ogre depicted by his critics on the left.