Scalia in 1987: ‘The Constitution Sometimes Insulates the Criminality of a Few in Order to Protect the Privacy of Us All’

NYT report on a 6-3 Supreme Court decision in 1987:

Justice Scalia’s opinion was forcefully denounced as an unjustified obstacle to law enforcement in dissenting opinions by Associate Justices Sandra Day O’Connor and Lewis F. Powell Jr. Chief Justice Rehnquist joined in both of the dissents.

Justice Scalia, however, said, “There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.” […]

Justice Scalia’s majority opinion today said that although the search for weapons was lawful — a shot had just been fired through the floor of the apartment, injuring a man below — the police were not justified in moving the stereo components even slightly to check the serial numbers without “probable cause” to believe they were stolen. He thus affirmed a ruling by an Arizona appellate court that the stereo components, which turned out to have been stolen in an armed robbery, could not be used as evidence against the occupant of the apartment.

Associate Justice William J. Brennan Jr., the Court’s senior member, who is its leading liberal, apparently assigned Justice Scalia to write the majority opinion, which he joined. Under the Supreme Court’s procedures, the Chief Justice assigns opinions when he is in the majority. When the Chief Justice dissents, as in the Arizona case, the senior member of the majority has assignment power.

Conservative judges, as a general rule, tend to side with law enforcement in search and seizure cases. Scalia was certainly a conservative, but by no means was he in lockstep with them.

★ Wednesday, 24 February 2016