Complete Practical Directions for the Cultivation of Scalia

It was — yup, I’m a geek — marvelous fun reading all the trial court orders that accumulated in the run-up to the Brooks decision.  Credit attorney Barry Edwards for creating the catalog of these cases; in Brooks’s aftermath, I hope that somebody is putting together an anthology of the trial court consent cases.  The most entertaining of the pre-Brooks orders was the one authored by Stearns County Judge Frederick Grunke:

Suddenly, shots rang out from the canyon rim.  “It’s the McNeely gang!”



Now the gang is aiming its sights on the well-defended United States Supreme Court.  If I were advising it, I would tell the gang to clear a space between the whiteboards and easel paper on its war room walls for this –>

because Justice Scalia is in play.

This past June, Scalia dissented, thrillingly, in Maryland v. King, the 5-4 decision that allows the police to take a person’s DNA without a warrant at the time of arrest.  Jeffrey Rosen of The New Republic called Scalia’s opinion “one of the best Fourth Amendments dissents, ever.”  The King dissent quickly became the catalyst for a swell of Scalia Reassessments.  “The arch-conservative is suddenly siding with left-wing justices in a raft of Fourth Amendment cases” read the headline in Salon.

No so suddenly, actually.  Scalia has long been the champion of a certain kind of Fourth Amendment orthodoxy.  That is not to say that last term was not noteworthy.  As Professor Kerr observed, Scalia was “on the defense side of every non-unanimous Fourth Amendment case” last term.  These included, in addition to King, Bailey v. United States, in which Scalia joined the majority in holding that Michigan v. Summers does not allow the police to detain people outside the immediate vicinity of the premises where a search warrant is being executed; Florida v. Jardines, in which he wrote the majority opinion holding that a dog sniff at the front door of a house constitutes a search; and, of course, McNeely itself.

But partnering with the more liberal justices on Fourth Amendment issues does not represent an aberration for Scalia.  Two terms ago, he wrote the majority opinion in the much-anticipated United States v. Jones, the GPS case.  He voted with the majority in Arizona v. Gant.  In 2011, Scalia authored the majority opinion in Kyllo v. United States, which remains a law student favorite with its Doctor Whovian Agema Thermovision 210, able to detect “at what hour each night the lady of the house takes her daily sauna and bath.”  Finally, Scalia wrote the majority opinion in that most intractable of cases, Arizona v. Hicks, its signature line an ode to Fourth Amendment absolutism:  “A search is a search, even if it happens to disclose nothing but the bottom of a turntable.” 

Image source: The Founding Drunkards, R. English,

Image source: The Founding Drunkards, R. English,

Per Kerr, “defense counsel have realized that Justice Scalia is in play in Fourth Amendment cases if you can find him the kind of argument that he finds appealing.”  What kind of argument is that?  One that can claim, persuasively, to be “faithful to the text and tradition of the Fourth Amendment.”  The lodestar, of course, would be a search involving a specific practice that the Framers abhorred, but short of that, is there something in the common law that says your search requires a warrant?  In Jones and Jardines, Scalia turned to old property law precepts for his Fourth Amendment construction.  Bear in mind that Scalia is almost congenitally averse to the pragmatic Katz approach. He is a legal formalist, after all.  He’ll take reasonableness rules over reasonableness balancing any time.  But, you live by the sword, you die by it. One day, Scalia draws a bright Fourth Amendment line, and we get the sizzling King dissent.  On a different day, his bright line brings us Whren.

But enough of the legal spiel.  I promised some practical advice.

1.  Include some citations that look like this:

Dumbledore’s Case, 3 How. St. Tr. 1315, 1318 (Star Chamber 1637); Gryffindor’s Case, 168 Eng. Rep. 383 – 401 (1554); Snape’s Case, 1 Leach 199 – 277 (1611).

And if you can find any reason at all to do so, by all means cite Raleigh’s Case, 2 How. St. Tr. 1 (1603). That one slays Scalia.

2.  Read The Screwtape Letters

It may or may not turn out to be important to your quest to capture Scalia’s imagination, but the man seems very focused on the devil lately.  If you haven’t yet read the lengthy interview with Justice Scalia that appeared in New York Magazine last month, click away and come back when you’re done.  It’s a lot more entertaining than this blog post.

Can we talk about your drafting process—

[Leans in, stage-whispers.] I even believe in the Devil.

A surprisingly extended devil discussion ensues, with Justice Scalia and his interviewer appearing to disagree about the existence of that being.  It ends with Justice Scalia asking, “Have you read The Screwtape Letters?”

Yes, I have.

So, there you are. That’s a great book. It really is, just as a study of human nature.

Justice Scalia brought up the devil again at the public prayer case oral arguments last week:

Later in the argument, Alito asked the attorney for the two women challenging the practice, Douglas Laycock, to give an example of “a prayer that would be acceptable to Christians, Jews, Muslims, Buddhists [and] Hindus….Wiccans, Baha’i.”
“And atheists,” Roberts chimed in.
“Throw in atheists, too,” Scalia insisted, later urging the lawyer to also come up with something that “devil worshipers” could accept.
Laycock said atheists were out of luck as a result of the court’s past decision upholding ceremonial prayers, but satanists might be satisfied with a prayer referencing “the almighty.”

Look, this business of cultivating isn’t strictly linear.  You must open to the Scalia gestalt. Go read The Screwtape Letters.

3. Feel the Marines

It is the most timeless of advertising phrases.

And it is clear that a similar strain swells in Scalia’s chest.

Consider what he had to say about Terry frisks in Minnesota v. Dickerson:

I frankly doubt, moreover, whether the fiercely proud men who adopted our Fourth Amendment would have allowed themselves to be subjected, on mere suspicion of being armed and dangerous, to such indignity[.]

Here’s what he had to say about DNA swabs in Maryland v. King:

But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.

You need to come up with a trenchant and manly romantic line about the founding fathers.  I am trying to help.  I am channeling the Marine Corps . . . channeling . . .

That’s what your whiteboards are for.

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