Some people who sit at the defense table hate Supreme Court Justice Antonin Scalia.  I don’t, which brings no small degree of disdain of my peers.  Don’t feel bad for me.  I can take it.  But even my arch nemesis in Scaliadom, Gideon, posts something good about him. 

Gideon’s epiphany (okay, maybe epiphany is too strong a word) comes in light of the  oral argument in Virginia v. Moore.  In case you weren’t following, this case is (at least to me) highly reminiscent of the purpose of Whren, an effort use a Fourth Amendment exception to overcome the rational connection between crime, arrest and search.

In Moore, the state (with federal amicus) argued that a search incident to arrest, as one of the seven zillion permissible exceptions to the warrant requirement, is permissible if the arrest was based upon probable cause, even if the arrest was unlawful under state law.  Yes, the same state law that created the crime for which probable cause existed.  Moore (represented by Tom Goldstein of SCOTUSblog) argued that if the arrest was unlawful, then the search incident to it was unconstitutional.

Justice Scalia, for all his despised originalism, engaged in the following repartee:

JUSTICE SCALIA: So any Federal employee can go crashing around conducting searches and seizures?
MR. McCULLOUGH: So long –
JUSTICE SCALIA: So long as he has probable cause?
MR. McCULLOUGH: That’s correct.
JUSTICE SCALIA: That’s fantastic.
(Laughter.)
JUSTICE SCALIA: Do you really think that?
MR. McCULLOUGH: I think if there is State action, it doesn’t matter that you’re wearing a badge or that you’ve gone through the police academy.
JUSTICE SCALIA: Or that you are an administrative law judge at the, you know, Bureau of Customs? It doesn’t matter?
MR. McCULLOUGH: I think that’s right. That if you have — if the State –
JUSTICE SCALIA: What about a janitor? You’re a janitor, a federally employed janitor.
MR. McCULLOUGH: Your Honor –
JUSTICE SCALIA: His neighbor is growing marijuana, and he’s just as offended as a Supreme Court Justice would be. Can he conduct a search?
MR. McCULLOUGH: I think if he’s doing it on behalf of the State, the answer is yes.
JUSTICE SCALIA: Wow.

And that is why I do not think Justice Scalia is the devil.  He gets it.  While he may be no friend of the accused, his intellectual integrity compels him to recognize the absurdity of the position that disconnects the authority to act from the result.  This counts for something.

This is remarkably different from the defendant-hating judge who subscribes to the “ends justify the means” line of reasoning, willing to either ignore the lack of logic behind an argument or bend the facts to reach his goal.  

Now an argument can be made here that even a clock that’s stopped is right twice a day, but that’s just not the case.  Consider Justice Scalia’s  County of Riverside opinion, dissenting from the holding that state’s must bring a defendant before a neutral magistrate within 48 hours of arrest for a probable cause determination.  Justice Scalia opined that prompt meant prompt, not an arbitrary period of time long enough for the police to do whatever voodoo they felt like doing in advance of arraignment.  Justice Scalia would have given no more than 24 hours, and arguably less. 

While we, of the criminal defense bar, frequently find ourselves at odds with Justice Scalia’s opinions, it has long been my suspicion that as the Supreme Court moves into the future, he may well be our best chance at a rational, logic-oriented jurisprudence.  I respect intellectual integrity more than a decent outcome per se, because the former I can count on and the latter is a shot in the dark.  Give me a smart, honest judge, even if generally hostile to my side, rather than a judge whose views blow in the wind.  One I know how to address.  The other provides me with little direction, and can flip on me as easily as side with me.  In reason I trust.