On February 13, Supreme Court Justice Antonin Scalia died in his sleep at the age of 79, marking only the second time in more than 60 years that a sitting justice on the Court has died. Appointed by President Ronald Reagan and unanimously confirmed by the Senate in 1986, Scalia’s 29-year tenure was the longest of any current Supreme Court judge.
Scalia’s adherence to originalism—a belief that constitutional interpretation should be based on the original meaning of the text—not only set him apart from his contemporaries but also made him more controversial. Regardless of how history interprets Scalia’s three-decade legacy on the bench, immediately more impactful for public safety professionals is the uncertainty left in his wake.
Recent decisions could be revisited
With the Supreme Court currently deadlocked at 4-4 along partisan lines, Scalia’s successor has the potential to become the deciding vote on divisive issues. Because Scalia served as part of a 5-4 majority on several issues impacting public safety and criminal justice, the appointment and confirmation of a successor with a different constitutional interpretation could signal litigants that these areas of the law are susceptible to change.
Though the doctrine of stare decisis—Latin for “to stand by that which is decided”—generally inhibits courts from revisiting legal issues which have already been settled, the Supreme Court has a lengthy history of overruling itself. Stare decisis “is not an inexorable command”1 and “has only a limited application in the field of constitutional law”2 as opposed to “the area of statutory construction, where Congress is free to change [the] Court’s interpretation of its legislation.”3
Scalia himself recognized that opinions he authored or joined might be undermined by a successor, writing in a dissent of South Carolina v. Gathers (1989): “I agree with Justice Douglas: ‘A judge looking at a constitutional decision may have compulsions to revere past history and accept what was once written. But he remembers above all else that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put on it.’”
Accordingly, Scalia helped overrule the majority decision in Gathers two years later in Payne v. Tennessee (1991), one of the fastest about-faces in the Court’s history. In fact, there is some case law that suggests the Court is less likely to give its newly-decided opinions precedential treatment, precisely because its holdings have yet to become embedded in the fabric of society.4
With that in mind, here are the Supreme Court opinions involving constitutional questions issued since 2008 and decided by a 5-4 majority that included Scalia which, if successfully challenged, could have major implications for public safety and criminal justice professionals:
In Berghuis v. Thompkins (2010), the Supreme Court held that Fifth Amendment self-incrimination privileges must be asserted unambiguously and are waived when a statement is made knowingly and voluntarily to the police. The dissent criticized this approach, since it would require an arrestee to speak in order to preserve the right to remain silent. The justices questioned whether suspects should be legally presumed to waive their rights without a clear expression of their intent to do so—such as in writing. This could have implications for law enforcement personnel, who will need to ensure that their arrest and interrogation procedures are in line with the latest interpretation of Miranda rights.
The Supreme Court’s holding in Berguis was extended in Salinas v. Texas (2013), which found that prior to an arrest, police officers are not required to tell individuals about their right to remain silent. Moreover, a suspect must assert his or her right to remain silent, not just refrain from speaking. If the Fifth Amendment is not invoked, then a defendant’s silence can be used as evidence against him.
In Florence v. Board of Chosen Freeholders (2012), the Supreme Court held that jail officials may strip-search those who have been arrested for any crime during the intake process, even if there is no reason to suspect that the individual is carrying contraband. If this opinion is subsequently challenged, jail officials may be forced to document all suspicions of contraband in advance, or risk having new admits carry in items which undermine safety at the facility.
In District of Columbia v. Heller (2008), the Supreme Court upheld the right of individuals to possess firearms, including handguns, in their homes for self-defense. If overruled, police officers could be impacted by fluctuations in home invasions, gun crimes, or otherwise.
Closely related is the Supreme Court’s decision in McDonald v. City of Chicago (2010), which held that the right of an individual to “keep and bear arms” applies to states. If overruled, states would be free to impose more restrictive gun control laws, so departments will want to include subsequent changes in any legal update training for their officers.
The Supreme Court has upheld the constitutionality of the death sentence on several occasions, but two recent concurring and dissenting opinions suggest that the Court may soon be reconsidering this position. First, in Davis v. Ayala (2015), the Supreme Court upheld a death sentence despite the fact that minorities were excluded from the jury during trial and the defendant’s attorney was not given an opportunity to hear or challenge the prosecution’s rationale for dismissing specific jurors. Importantly, Justice Kennedy issued a concurring opinion in which he questioned the constitutionality of solitary confinement and other prison conditions.
Likewise, in Glossip v. Gross (2015), the Supreme Court rejected defendants’ claims that the use of the drug midazolam in lethal injection violated the Eight Amendment’s prohibition against cruel and unusual punishment. However, a dissent authored by Justice Breyer and joined by Justice Ginsburg opined that capital punishment, as currently practiced, almost certainly violates Eighth Amendment’s prohibition against cruel and unusual punishment.
If Justices Breyer, Ginsburg, and Kennedy join the undetermined nominee, it is highly likely that one or both of Kagan and Sotomayor could upend the capital punishment system.
It bears mentioning that this has all happened before, when in 1972 the Supreme Court ruled in Furman v. Georgia that the states’ application of the death penalty was unconstitutional. As a result, all death row inmates were then immediately commuted to life in prison, a feat not undone when the death penalty was reapproved four years later in Gregg v. Georgia under new guidelines. Corrections professionals, already faced with overcrowding, may be forced to permanently accommodate some of its residents for longer than anticipated.
How soon might these changes come? The Supreme Court can agree to hear a case—referred to as granting a writ of certiorari—if four of the Justices vote to hear it. Thus, a test case challenging any of the above decisions need not wait until after Scalia’s successor is named, appointed, or sworn. After briefs are filed, oral arguments are typically scheduled for the following term (October 2016), with opinions then issued at the end of the term (May – July 2017). Thus, public safety professionals may want to keep a close eye on the Supreme Court’s calendar of events this fall and brace for potential changes accordingly.
1 Payne v. Tennessee, 501 US 808, 828 (1991).
2 St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 94 (1936).
3 Illinois Brick. Co. v. Illinois, 431 U.S. 720, 736-737 (1977).
4 Dickerson v. U.S., 530 U.S. 428, 443-444 (2000) (“Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.”).