Supreme Court Justice Antonin Scalia’s tenure included controversial, conservative and Catholic-inspired rulings. Though he ruled against the right to choose, affirmative action and gay marriage, his opinions and dissents eternalized legal formalism and originalism jurisprudence. However, Justice Scalia is less known for his safeguarding of individual civil liberties.

He affirmed and strengthened due process, emphasized the right to a jury trial and fought back against ever-expanding and broadening criminal statutes. In 2013, Scalia argued that the Fourth Amendment prohibited law enforcement from taking a DNA swab of any arrestee without a cause and a warrant.

Though inconsistent, Scalia’s civil libertarian rulings and his protection of citizens will have a lasting impact. In his defense of criminal defendants, he stated, “I have defended criminal defendants’ rights — because they’re there in the original Constitution — to a greater degree than most judges have.”

He re-ensured the right of a defendant to cross-examine all witnesses as required by the Sixth Amendment. He voted to outlaw suspicionless searches, traffic stop searches and the placement of GPS devices on cars driving on public roads without a warrant. In Sykes v. U.S. in a famous dissent he argued against vague criminal legislation. In Texas v. Johnson, Scalia defended the right of a citizen to burn the American flag as freedom of expression under the First Amendment. In Hamdi v. Rumsfeld, Scalia ruled with the majority, finding that the U.S. could not hold someone who the executive branch declared an “enemy combatant” without due process and trial by a neutral arbiter.

Despite these advances, and to the dismay of many, he was a firm believer in the death penalty and lengthy sentences for nonviolent and drug related crimes. He also ultimately failed to protect many classes of people from discrimination. This inconsistency may represent the inability of originalism to solve complex present day cases with consistent logic. Or the inconsistency could represent his effort to place Constitutional law over his personal convictions. It’s inherently impossible to escape one’s personal opinions when ruling, and Scalia ultimately produced paradoxical rulings in his unsuccessful attempt to transcend partisanship.

As long as the appointment process remains in a quagmire of politics, the decisions of the Supreme Court will remain politically divided along liberal and conservative lines. Scalia’s death and the rancor it has surfaced should be a reminder that justice should trump politics. Even though divided and gridlocked government is now the norm, ideally the Supreme Court should be impervious to politics, and its efficacy should not be constrained by government impasses.  Scalia’s significant impact on the nation from his originalist interpretations, to his desire to clarify and pull back overarching federal statutes will endure as long as this nation.  

Whoever does replace him will hopefully not only pick up where Scalia left off in protecting defendants but also improve where Scalia fell short: ruling in favor of liberty for all.

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Email Aaron Reuben at [email protected].