Scalia is the Man
The story is told of the elderly judge who,looking back over a long career, observers with satisfaction that "when I was young, I probably let stand some convictions that should have been overturned, and when I was old, I probably set aside some that should have stood; so overall, justice was done." I sometimes think that this is an appropriate analog to this Court's constitutional jurisprudence, which alternately creates rights that the Constitution does not contain and denies rights that it does. Compare Roe v. Wade, 410 U.S. 113 (1973) (right to abortion does exist), with Maryland v. Craig, 497 U.S. 836 (1990) (right to be confronted with witnesses, U.S. Const. Amdt. 6, does not). Thinking that neither the one course nor the other is correct, nor the two combined, I dissent from today's decision, which eliminates a very old right indeed.
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While in recent years we have invented novel applications of the Fourth Amendment to release the unquestionably guilty , we today repudiate one of its core applications so that the presumptively innocent may be left in jail. Hereafter a law-abiding citizen wrongfully arrested may be compelled to await the grace of a Dickensian bureaucratic machine, as it churns its cycle for up to two days--never once given the opportunity to show a judge that there is absolutely no reason to hold him, that a mistake has been made. In my view, this is the image of a system of justice that has lost its ancient sense of priority, a system that few Americans would recognize as their own.
I respectfully dissent.
Justice Antonin Scalia
dissenting in County of Riverside v. McLaughlin, 500 U.S. at 59 and 71 (1991).
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While in recent years we have invented novel applications of the Fourth Amendment to release the unquestionably guilty , we today repudiate one of its core applications so that the presumptively innocent may be left in jail. Hereafter a law-abiding citizen wrongfully arrested may be compelled to await the grace of a Dickensian bureaucratic machine, as it churns its cycle for up to two days--never once given the opportunity to show a judge that there is absolutely no reason to hold him, that a mistake has been made. In my view, this is the image of a system of justice that has lost its ancient sense of priority, a system that few Americans would recognize as their own.
I respectfully dissent.
Justice Antonin Scalia
dissenting in County of Riverside v. McLaughlin, 500 U.S. at 59 and 71 (1991).