Governmental structure and powers Separation of powers about
separation of powers and checks and balances of the U.S. Government It was Scalia's view that clear lines of separation among the legislative, executive, and judicial branches follow directly from the Constitution, with no branch allowed to exercise powers granted to another branch. In his early days on the Court, he authored a powerful—and solitary—dissent in
Morrison v. Olson (1988), in which the Court's majority upheld the
Independent Counsel law. Scalia's thirty-page draft dissent surprised Justice
Harry Blackmun for its emotional content; Blackmun felt "it could be cut down to ten pages if Scalia omitted the screaming". Scalia indicated that the law was an unwarranted encroachment on the executive branch by the legislative. He warned, "Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing ... But this wolf comes as a wolf". Although Scalia was not referring to any particular individual, the Supreme Court was about to consider the case of
Salim Ahmed Hamdan, supposed driver to
Osama bin Laden, who was challenging the
military commissions at Guantanamo Bay. The Court held 5–3 in
Hamdan v. Rumsfeld that the federal courts had jurisdiction to consider Hamdan's claims; Scalia, in dissent, contended that any Court authority to consider Hamdan's petition had been eliminated by the
jurisdiction-stripping Detainee Treatment Act of 2005.
Federalism , 2010 In
federalism cases pitting the powers of the federal government against those of the states, Scalia often took the states' positions. In 1997, the Supreme Court considered the case of
Printz v. United States, a challenge to certain provisions of the
Brady Handgun Violence Prevention Act, which required chief law enforcement officers of localities in states to perform certain duties. In
Printz, Scalia wrote the Court's majority decision. The Supreme Court ruled unconstitutional the provision that imposed those duties as violating the
Tenth Amendment, which reserves to the states and to the people those powers not granted to the federal government. In 2005, Scalia concurred in
Gonzales v. Raich, which read the
Commerce Clause to hold that Congress could ban the use of
marijuana even when states approve its use for
medicinal purposes. Scalia opined that the Commerce Clause, together with the
Necessary and Proper Clause, permitted the regulation. In addition, Scalia felt that Congress may regulate intrastate activities if doing so is a necessary part of a more general regulation of interstate commerce. He based that decision on
Wickard v. Filburn, which he now wrote "expanded the Commerce Clause beyond all reason". Scalia rejected the existence of the
negative Commerce Clause doctrine, calling it "a judicial fraud". Scalia took a broad view of the
Eleventh Amendment, which bars certain lawsuits against states in the federal courts. In his 1989 dissent in
Pennsylvania v. Union Gas Co., Scalia stated that there was no intent on the part of the framers to have the states surrender any
sovereign immunity and that the case that provoked the Eleventh Amendment,
Chisholm v. Georgia, came as a surprise to them. Professor Ralph Rossum, who wrote a survey of Scalia's constitutional views, suggests that the justice's view of the Eleventh Amendment was actually contradictory to the language of the Amendment.
Individual rights Abortion Scalia argued that there is no constitutional right to abortion and that if the people desire legalized abortion, a law should be passed to accomplish it. This angered Scalia to such an extent that he stated he would not speak at the University of Chicago as long as Stone was there.
Race, gender, and sexual orientation Scalia generally voted to strike down laws that make distinctions by race, gender, or sexual orientation. In 1989, he concurred with the Court's judgment in
City of Richmond v. J.A. Croson Co., in which the Court applied
strict scrutiny to a city program requiring a certain percentage of contracts to go to minorities, and struck down the program. Scalia did not join the majority opinion, however. He disagreed with O'Connor's opinion for the Court, holding that states and localities could institute race-based programs if they identified past discrimination and if the programs were designed to remedy the past racism. Five years later, in
Adarand Constructors, Inc. v. Peña, he concurred in the Court's judgment and in part with the opinion that extended strict scrutiny to federal programs. Scalia noted in that matter his view that government can never have a compelling interest in making up for past discrimination by racial preferences: In the 2003 case of
Grutter v. Bollinger, involving racial preferences in the
University of Michigan's law school, Scalia mocked the Court majority's finding that the school was entitled to continue using race as a factor in admissions to promote diversity and to increase "cross-racial understanding". Scalia noted: Scalia argued that laws that make distinctions between genders should be subjected to
intermediate scrutiny, requiring that the gender classification be substantially related to important government objectives. When, in 1996, the Court upheld a suit brought by a woman who wished to enter the
Virginia Military Institute in the case of
United States v. Virginia, Scalia filed a lone, lengthy dissent. Scalia said that the Court, in requiring Virginia to show an "extremely persuasive justification" for the single-sex admission policy, had redefined intermediate scrutiny in such a way "that makes it indistinguishable from strict scrutiny". In one of the final decisions of the Burger Court, the Court ruled in 1986 in
Bowers v. Hardwick that "homosexual sodomy" was not protected by the
right of privacy and could be criminally prosecuted by the states. In 1995, however, that ruling was effectively gutted by
Romer v. Evans, which struck down a Colorado state constitutional amendment, passed by popular vote, that forbade antidiscrimination laws' being extended to sexual orientation. Scalia dissented from the opinion by Justice Kennedy, believing that
Bowers had protected the right of the states to pass such measures and that the Colorado amendment was not discriminatory but merely prevented homosexuals from gaining favored status under Colorado law. Scalia later said of
Romer, "And the Supreme Court said, 'Yes, it is unconstitutional.' On the basis of—I don't know, the Sexual Preference Clause of the Bill of Rights, presumably. And the liberals loved it, and the conservatives gnashed their teeth". In 2003,
Bowers was formally overruled by
Lawrence v. Texas, from which Scalia dissented. According to
Mark V. Tushnet in his survey of the Rehnquist Court, during the oral argument in the case, Scalia seemed so intent on making the state's argument for it that the Chief Justice intervened. According to his biographer,
Joan Biskupic, Scalia "ridiculed" the majority in his dissent for being so ready to cast aside
Bowers when many of the same justices had refused to overturn
Roe in
Planned Parenthood v. Casey. In March 2009, openly gay Congressman
Barney Frank described him as a "homophobe".
Maureen Dowd described Scalia in a 2003 column as "
Archie Bunker in a high-backed chair". In an op-ed for
The New York Times, federal appeals judge
Richard Posner and
Georgia State University law professor
Eric Segall called Scalia's positions on homosexuality radical and characterized Scalia's "political ideal as verg[ing] on
majoritarian theocracy". Former Scalia clerk Ed Whelan called this "a smear and a distraction." Professor John O. McGinnis responded as well, leading to further exchanges. In the 2013 case of
Hollingsworth v. Perry, which involved a California ballot initiative known as
Proposition 8 that amended the California State Constitution to ban same-sex marriage, Scalia voted with the majority to uphold a lower court decision overturning the ban. The decision was based on the appellants' lack of standing to appeal and not on the substantive issue of the constitutionality of Proposition 8. Also in 2013, Scalia dissented from the majority opinion in
United States v. Windsor. In
Windsor, the Court held Section Three of the
Defense of Marriage Act (DOMA) (which—for federal government purposes—defined the terms "marriage" and "spouse" as applicable only to opposite-sex unions) unconstitutional under the
Due Process Clause of the
Fifth Amendment. Scalia's dissent, which was joined in full by Justice Thomas and in part by Chief Justice Roberts, opened: Scalia argued that the judgment effectively characterized opponents of same-sex marriage as "enemies of the human race": He argued that the Court's ruling would affect
state bans on same-sex marriage as well: Scalia concluded by saying that the Supreme Court "has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat." Addressing the claimed
Fourteenth Amendment violation, Scalia asserted that because a same-sex marriage ban would not have been considered unconstitutional at the time of the Fourteenth Amendment's adoption, such bans are not unconstitutional in 2015. He claimed there was "no basis" for the Court to strike down legislation that the Fourteenth Amendment did not expressly forbid, and directly attacked the majority opinion for "lacking even a thin veneer of law".
Criminal law on November 30, 2006 Scalia believed the
death penalty to be constitutional. He dissented in decisions that hold the death penalty unconstitutional as applied to certain groups, such as those who were under the age of 18 at the time of offense. In
Thompson v. Oklahoma (1988), he dissented from the Court's ruling that the death penalty could not be applied to those aged 15 at the time of the offense, and the following year authored the Court's opinion in
Stanford v. Kentucky, sustaining the death penalty for those who killed at age 16. However, in 2005, the Court overturned
Stanford in
Roper v. Simmons, and Scalia again dissented, mocking the majority's claims that a national consensus had emerged against the execution of those who killed while
underage, noting that less than half of the states that permitted the death penalty prohibited it for underage killers. He castigated the majority for including in their count states that had abolished the death penalty entirely, stating that doing so was "rather like including old-order Amishmen in a consumer-preference poll on the electric car. Of course they don't like it, but that sheds no light whatever on the point at issue". In 2002, in
Atkins v. Virginia, the Court ruled the death penalty unconstitutional as applied to intellectually disabled people. Scalia dissented, stating that it would not have been considered cruel or unusual to execute mildly intellectually disabled people at the time of the 1791 adoption of the Bill of Rights and that the Court had failed to show that a national consensus had formed against the practice. Scalia strongly disfavored the Court's ruling in
Miranda v. Arizona, which held that a confession by an arrested suspect who had not been
advised of their rights was inadmissible in court, and he voted to overrule
Miranda in the 2000 case of
Dickerson v. United States but was in a minority of two with Justice
Clarence Thomas. Calling the
Miranda decision a "milestone of judicial overreaching", Scalia stated that the Court should not fear to correct its mistakes. Although, in many areas, Scalia's approach was unfavorable to criminal defendants, he took the side of defendants in matters involving the
Confrontation Clause of the
Sixth Amendment, which guarantees defendants the right to confront their accusers. In multiple cases, Scalia wrote against laws that allowed alleged victims of child abuse to testify behind screens or by closed-circuit television. In a 2009 case, Scalia wrote the majority opinion in
Melendez-Diaz v. Massachusetts, holding that defendants must have the opportunity to confront lab technicians in drug cases and that a certificate of analysis is not enough to prove a substance was a drug. Scalia maintained that every
element of an offense that helps determine the sentence must be either admitted by the defendant or found by a jury under the Sixth Amendment's jury guarantee. In the 2000 case of
Apprendi v. New Jersey, Scalia wrote a concurrence to the Court's majority opinion that struck down a state statute that allowed the trial judge to increase the sentence if the judge found the offense was a
hate crime. Scalia found the procedure impermissible because whether it was a hate crime had not been decided by the jury. In the 2001 case of
Kyllo v. United States, Scalia wrote the Court's opinion in a 5–4 decision that cut across ideological lines. That decision found thermal imaging of a home to be an unreasonable search under the
Fourth Amendment. The Court struck down a conviction for marijuana manufacture based on a search warrant issued after such scans were conducted, which showed that the garage was considerably hotter than the rest of the house because of indoor growing lights. Applying that Fourth Amendment prohibition on unreasonable search and seizure to arrest, Scalia dissented from the Court's 1991 decision in
County of Riverside v. McLaughlin, allowing a 48-hour delay before a person arrested without a warrant is taken before a magistrate, on the ground that at the time of the adoption of the Fourth Amendment, an arrested person was to be taken before a magistrate as quickly as practicable. In a 1990
First Amendment case,
R.A.V. v. St. Paul, Scalia wrote the Court's opinion striking down a
St. Paul, Minnesota,
hate speech ordinance in a prosecution for burning a cross. Scalia noted, "Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire".
Second Amendment In 2008, the Court considered a challenge to the gun laws in the
District of Columbia. Scalia wrote the majority opinion in
District of Columbia v. Heller, which found an individual right to own a firearm under the
Second Amendment. Scalia traced the word "militia", found in the Second Amendment, as it would have been understood at the time of its ratification, stating that it then meant "the body of all citizens". Seventh Circuit judge
Richard Posner disagreed with Scalia's opinion, stating that the Second Amendment "creates no right to the private possession of guns". Posner called Scalia's opinion "faux originalism" and a "historicizing glaze on personal values and policy preferences". In October 2008, Scalia stated that the court's originalists needed to show only that at the time the Second Amendment was ratified, the right to bear arms did not have an exclusively military context and that they were successful in so showing.
Litigation and standing Following the death of Scalia, Paul Barrett, writing for
Bloomberg Businessweek, reported that: "Translating into liberal argot: Scalia changed the rules for who could sue". The issue elevated the recognition of Scalia as a notable influence on establishing and determining the conditions under which cases could be brought to trial and for litigation—and by whom such litigation could take place. David Rivkin, from the conservative standpoint, said, "He (Scalia) did more to clarify and limit the bounds and scope of judicial power than any Supreme Court Justice in history, particularly in the area of standing and class actions". Scalia indicated his long-held position from the time of his 1983 law review article titled "The Doctrine of Standing as an Essential Element of the Separation of Powers". As summarized by Barrett, "He (Scalia) wrote that courts had misappropriated authority from other branches of government by allowing too many people to sue corporations and government agencies, especially in environmental cases". In a practical sense, Scalia brought to the attention of the Court the authority to restrict "standing" in class action suits in which the litigants may be defined in descriptive terms rather than as well-defined and unambiguous litigants.
Other cases Scalia concurred in the 1990 case of
Cruzan v. Director, Missouri Department of Health, in which the family of
a woman in a
vegetative state sought to have her feeding tube removed so she would die, believing that to have been her wish. The Court found for the State of Missouri, requiring
clear and convincing evidence of such a desire. Scalia stated that the Court should have remained away from the dispute and that the issues "are [not] better known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory". Scalia joined the majority
per curiam opinion in the 2000 case of
Bush v. Gore, which effectively ended recounts of ballots in Florida following the
2000 US presidential election, and also both concurred separately and joined Rehnquist's concurrence. In 2007, he said of the case, "I and my court owe no apology whatever for
Bush v. Gore. We did the right thing. So there! ... get over it. It's so old by now". During an interview on the
Charlie Rose show, he defended the Court's action: ==Legal philosophy and approach==