The great Antonin Scalia, who passed away this weekend, may prove to be the greatest ally the little guy in America ever had, because he was arguably the most adept defender the rule of law in America has ever had.
There are many cases where Scalia sided with the little guy against the majority or against previous courts.
Scalia expanded a defendant's right to confront his accuser. "In all criminal prosecutions," the Sixth Amendment reads, "the accused shall enjoy the right … to be confronted with the witnesses against him."
Before Scalia, courts had been finding all sorts of exceptions to this rule. As a result, people were often convicted never having the right to cross-examine the witnesses the prosecution was using to jail them. Over more than a decade, through dissents and opinions, Scalia pushed to ensure that the accused get the right the Constitution said they "shall enjoy."
Scalia also led the way on expanding the right of trial by jury.
"Justice Scalia," wrote legal scholar Rachel Barkow, a former clerk of his, "has also protected the individual rights of defendants through his textualist interpretation of criminal statutes and his adherence to the rule of lenity, the venerable canon of interpretation that ambiguous statutes should be interpreted in favor of one accused of a crime."
Scalia stood up for the little gal and her little pink house in Kelo v. New London, the 2005 case in which the liberal majority that a quasi-governmental quasi-corporate agency could seize working-class homes and turn it into a private development — because Pfizer wanted them to. Scalia joined the dissent against the majority's Trumpian ruling that private property rights go out the window when developers and their friends in government find more profitable uses for the land.
And when the littlest gals and guys of all — innocent defenseless babies in the womb — found the Supreme Court dedicated to leaving them unprotected by law, Scalia excoriated the majority of the court for its obviously motivated reasoning.
Scalia, of course, did not always rule on behalf of the little guy. He refused to block the death penalty for a mentally retarded criminal. The bulk of his rulings are labeled "pro-business." He upheld some horribly punitive jail sentences.
But Scalia never claimed that his job was to defend the little guy. His job was to defend the Constitution and the rule of law. Sometimes, that meant ruling for the big guy over the little guy. Sometimes, in fact, Scalia ruled or argued in favor of people who may have been monsters.
An accused abuser was the defendant in Maryland v. Craig, the 1990 case in which Scalia dissented, and argued for the right of the accused to face his accuser. The majority set that right aside in this case. Scalia wrote, "Seldom has this court failed so conspicuously to sustain a categorical guarantee of the Constitution against the tide of prevailing current opinion."
Scalia dissented from a 2014 ruling in which the court allowed warrantless traffic stops based on "an uncorroborated, vague, and nameless tip." "Drunken driving is a serious matter," he wrote, "but so is the loss of our freedom to come and go as we please without police interference."
Think about his arguments for a moment. Why does our Constitution place limits on police searching people to find out if they're criminals? Is it just because the searches disrupt our day? No. We limit the powers of law enforcement, and Scalia upheld those limits, because we know that people given great power tend to abuse that power. Specifically, they abuse it to the detriment of the powerless — people like Freddie Gray and Eric Garner.
The rule of law and constitutional limits on government aren't there for the powerful. They usually don't need the protection. They are there to constrain the powerful and protect the powerless. Those politicians — and judges who rule like politicians — often bend and break the law for their perception of the common good, or the good of the little guy often live to see it backfire.
At President Obama's second inauguration, Scalia wore a unique hat. It was a replica of the hat in which St. Thomas More is famously pictured — custom-made for him by the Thomas More Society.
In A Man for All Seasons, the play about More's life, his son-in-law William Roper asks More at one point, "so, now you give the Devil the benefit of law!"
"Yes!" More responds. "What would you do? Cut a great road through the law to get after the Devil?"
"Yes," the eager Roper responds. "I'd cut down every law in England to do that!"
"Oh?" the saint responds. "And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat?"
President Obama, Donald Trump, Hillary Clinton and others want to lay the laws flat. But the laws have a fighting chance today, thanks to the decades of work by Justice Scalia.
Timothy P. Carney, The Washington Examiner's senior political columnist, can be contacted at firstname.lastname@example.org. His column appears Tuesday and Thursday nights on washingtonexaminer.com.