By Lisa Soronen
While much of the reaction to Justice Antonin Scalia’s death this weekend, has focused on the substance of his nearly 30 years on the U.S. Supreme Court and the challenges of replacing him amid a presidential election campaign, his effect on state and local government is a crucial aspect of his legacy.
The public knew Scalia as a conservative, particularly on social issues like abortion, the death penalty and same-sex marriage. Attorneys will remember him as an “originalist” who believed that the Constitution should be interpreted as the founders intended and a “textualist” who interpreted laws by looking only at the words on the page. Court watchers admired Scalia’s beautifully written, clear and often colorful, opinions.
From the states' perspective, Scalia will probably be most remembered for writing District of Columbia v. Heller (2008), holding that the Second Amendment protects an individual’s right to possess a gun for traditionally lawful purposes, such as self-defense, within the home.
Like most conservatives, Scalia was often sympathetic to states’ rights. For example, in his dissenting opinion in the same-sex marriage cases he criticized the court for acting as a “super” legislature. And his dissenting opinion in Arizona v. United States (2012), involving challenges to Arizona laws designed to crack down on illegal immigration, rested on state sovereignty.
Scalia, again like other conservative justices, regularly supported property owners in land use and taking cases. For example, early on the bench, he wrote the court’s opinion in Nollan v. California Coastal Communities (1987), holding that conditioning the granting of a building permit upon the applicants' dedication of property to the public without compensation could amount to an unconstitutional taking.
Scalia generally was supportive of state and local government in qualified immunity cases. Specifically, he wrote the court’s opinion in Scott v. Harris (2007), which held that an officer using deadly force to stop a speeding motorist was entitled to qualified immunity.
When it came to Fourth Amendment searches, Scalia’s jurisprudence was notably mixed. For example, he dissented from the court’s decision in Maryland v. King (2013), upholding warrantless DNA testing of arrestees. But he also dissented from the court’s decision in Los Angeles v. Patel (2014), holding that hotel registry ordinances allowing police inspections without precompliance judicial review violate the Fourth Amendment.
The State and Local Legal Center (SLLC) filed amicus brief before the Supreme Court the entire time Scalia was a member of the high court. Amicus brief writers, perhaps above all, hope that the justices will care about the implications that cases will have on their clients when rendering decisions and writing opinion.
Scalia wasn’t one to turn a blind eye on how a case would affect state and local government. In fact, just last term in Los Angeles v. Patel, he cited to the SLLC’s amicus brief in his dissenting opinion supporting the Los Angeles ordinance, noting that such ordinances and state statutes are common.
As far as the SLLC was concerned, Scalia’s work wasn’t done. Just this month the SLLC filed an amicus brief asking the court to hear United Student Aid Funds v. Bible and overturn Auer deference to federal agencies. Scalia wrote the opinion in Auer v. Robbins (1997), holding that courts must defer to an agency’s interpretation of its own regulations. In Perez v. Mortgage Bankers Association (2015), Scalia (and two other justices) expressed skepticism about Auer.
Lisa Soronen is the executive director of the State and Local Legal Center and writes frequently for the NCSL blog about the U.S. Supreme Court.