Supreme Court Justice Scalia’s Impact on State and Local Government

Thursday, February 18, 2016

The death of Justice Antonin Scalia this weekend comes at a significant time, as the United States approaches a presidential election. Unsurprisingly, while some of the news coverage has focused on the substance of Scalia’s nearly 30-year career as a Supreme Court justice, much of it has focused on the challenges of replacing him.

The public knew Justice Scalia as a conservative, particularly on social issues like abortion, the death penalty, and same-sex marriage. Attorneys will remember Justice Scalia 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 Justice Scalia’s beautifully written, clear, and often colorful opinions.

But what was Justice Scalia’s impact on state and local government?

Justice 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 was generally 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 pre-compliance judicial review violate the Fourth Amendment.

Justice 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 State and Local Legal Center’s amicus brief in his dissenting opinion supporting the Los Angeles ordinance, noting that such ordinances and state statutes are common.

Just this month, the State and Local Legal Center (SLLC) filed an amicus brief asking the court to hear United Student Aid Funds v. Bible and overturn Auer deference to federal agencies. Justice 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), Justice Scalia (and two other justices) expressed skepticism about Auer.

What will happen to undecided Supreme Court cases heard or to be heard this term? Specifically of interest to GFOA, what might happen in the notable public sector unions’ case?

In Friedrichs v. California Teachers Association, the court will decide whether to overrule Abood v. Detroit Board of Education (1977), requiring public sector employees who don’t join the union to pay their “fair share” of collective bargaining costs. Justices Scalia and Kennedy joined two previous Justice Alito opinions criticizing Abood. This case is likely to be reheard.

(Written by the SLLC’s Lisa Soronen)