Bush v. Gore, probably the most controversial case in which Scalia participated, shows that the justice believed in originalism as a theory but did not practice it in real life. Scalia frequently cited Roe v. Wade, decided before he joined the court, as a case that violated the precepts of originalism. Here's what The Washington Post wrote about a 2012 Scalia speech:
“I’m not saying you shouldn’t have the right to an abortion,” said Scalia, who has previously spoken out against Roe v. Wade, the landmark 1973 Supreme Court case that established a woman’s right to an abortion. “But don’t tell me the American people demand that you have it and wrote it in the Constitution, because that’s not true.
In other words, if an issue was not addressed in the Constitution of 1788, federal courts should not deal with it now--leaving it to voters in individual states. "The Constitution does not say anything about (abortion) . . . ," Scalia told CNN's Piers Morgan in a 2012 interview. "Roe v. Wade said no state can prohibit it; that simply is not in the constitution." (See interview at the end of this post.)
Did Scalia consistently apply this principle? Not even close, and I'm not the only observer who holds that opinion.
But I do have first-hand experience with the repercussions of Scalia's phony originalism, and it involves a subject that almost all Americans are likely to experience at some point--traffic stops.
That's a sensitive subject in this space because my wife and I were victims of two unlawful traffic stops in the days leading to my unlawful arrest that led to a five-month incarceration in Shelby County, Alabama. In fact, my arrest--which really was a state-sanctioned kidnapping since no warrant ever has been presented, at the scene or in court--was the result of a bogus traffic stop.
You might say that Antonin Scalia was responsible for both incidents, the first by Shelby County Lt. Mike DeHart, the second by Officer Chris Blevins. Why? Scalia wrote the opinion in a SCOTUS case styled Whren v. United States, 517 U.S. 806 (1996), which essentially made it lawful for law-enforcement officers to conduct traffic stops under false pretenses--all in the name of the "war on drugs."
Specifically, Whren made pretext stops legal. What is a pretext stop? Here's how we describe it in a post from May 2015:
A "pretext" or "pretextual" stop is a stop in which the officer detains the citizen for a minor crime (i.e. traffic offense) because the officer actually suspects the person of involvement in another, more significant crime (i.e. drug possession).
Here was the situation in Whren:
Whren, which involved an officer who stopped a vehicle, on the surface, for a traffic violation--but the real reason for the stop was suspicion of illegal drug activity. In fact, a search subsequent to the traffic stop turned up crack cocaine, and SCOTUS found the pretext stop was legal because it's real purpose was to seek information about a suspected crime, the illegal distribution of drugs.
In other words, the officers initiated the stop under false pretenses, with ulterior motives. And Antonin Scalia ("The Originalist") said such actions, with cops acting in fraudulent and deceitful ways toward the public, was perfectly fine, Gee, can't imagine why we've had a string of cases where cops were caught lying and covering up evidence of misconduct.
The petitioners in Whren argued that they had been subjected to an unreasonable search that violated the Fourth Amendment. Many legal experts, I suspect, would agree with them. But the court--surprise, surprise--sided with the cops.
How did Scalia justify the court's finding. It's hard to tell because Whren is a poorly written mess, which doesn't even define a pretext stop. Those who call Scalia an "intellectual giant" and a "brilliant writer" likely have not read his work. Here is the gist of his opinion in Whren:
We think these cases foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved. We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.
Scalia's words even have left police officers confused. For example, in our first traffic-stop encounter, Lt. DeHart said in sheriff department's notes that he conducted a "pretext stop" in order to "serve" Carol and me with papers in Rob Riley's defamation lawsuit. DeHart, however, never said or did anything to indicate he suspected our vehicle had been involved with a "more significant crime." In fact, there was no suspicion that we had been involved with any crime. That means DeHart's actions did not constitute a pretext stop, and they were not legal--a violation of the Fourth Amendment.
Let's look at the Whren finding in the context of originalism. Are traffic stops mentioned in the U.S. Constitution of 1788? Of course not. Are drug busts and traffic stops mentioned in the Constitution? Not a word.
So according to Scalia's own words, he should have found for the petitioners and stated this was a decision for each individual state to address--just as in the issue of abortion, which also is not mentioned in the Constitution.
Whren shows, with simple clarity, that Scalia was, in the words of Salon's Paul Campos, an "intellectual phony."
Here is Scalia's real world view: If an issue (the right to an abortion) is not mentioned in the Constitution, but it might be of help to a minority group (women), Scalia was against it. If an issue (traffic stops) is not mentioned in the Constitution, but it might help an establishment group (police officers), Scalia was for it.
That pretty much sums up his "brilliance."