Policy —

Through the Ars lens: Looking at Justice Scalia’s opinions, dissents

Scalia weighed in on Aereo, GPS tracking, thermal imaging, drug dogs, gun rights, and DNA.

Through the Ars lens: Looking at Justice Scalia’s opinions, dissents

Supreme Court Justice Antonin Scalia, who died Saturday, will go down in history as the backbone of the court's modern conservative wing. The Reagan-appointee's long tenure touched upon so many facets of life that intersection with the Ars worldview was inevitable.

When viewed through this lens, the 79-year-old justice's writings concerned cases involving Aereo, video gaming, GPS tracking, thermal imaging, drug dogs, Second Amendment rights, Obamacare, and DNA among a host of other topics. So as the remembrances and reflections continue to trickle out, here's a reminder of how Justice Scalia's opinions and dissents impacted the technologies and policies we keep an eye on at the Orbital HQ.

American Broadcasting v. Aereo: The Supreme Court ruled 6-3 in a 2014 decision that resulted in the shuttering of the over-the-air broadcast TV company Aereo. New York-based Aereo needed the broadcasters' permission to sell monthly subscriptions, the court ruled. The court sided with broadcasters who said that Aereo offering customers tiny antennas to transmit the signal was akin to a cable company. In dissent, Scalia wrote, "The Court manages to reach the opposite conclusion only by disregarding widely accepted rules for service-provider liability and adopting in their place an improvised standard ("looks-like-cable-TV") that will sow confusion for years to come."

Maryland v. King: The Supreme Court ruled 5-4 in 2013 that states may take DNA samples from arrestees. In dissent, Scalia wrote that cheek swabbing was unconstitutional, saying, "Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the ‘identity’ of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection."

Brown v. Entertainment Merchants Association: The Supreme Court ruled 7-2, in a 2011 decision where Scalia wrote the majority opinion, that a California law restricting the sale of violent video games violated the First Amendment rights of minors. "Psychological studies purporting to show a connection between exposure to violent video games and harmful effects on children do not prove that such exposure causes minors to act aggressively," he wrote. "Any demonstrated effects are both small and indistinguishable from effects produced by other media. Since California has declined to restrict those other media, e.g., Saturday morning cartoons, its video-game regulation is wildly underinclusive, raising serious doubts about whether the State is pursuing the interest it invokes or is instead disfavoring a particular speaker or viewpoint."

Jones v. United States: The court decided 5-4 in 2012 that law enforcement officials generally need probable-cause warrants to place a GPS tracker on a suspect's vehicle and monitor their every move. Writing for the majority, Scalia said that affixing the device to the car was a search, requiring Fourth Amendment scrutiny. “We hold that the government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search,'” he wrote.

Kyllo v. United States: The high court declared 5-4 in 2001 that scanning a house with a thermal-imaging device without a warrant was unconstitutional because Americans had an expectation of privacy while in their residences. "To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment," Scalia wrote for the majority.

Florida v. Jardines: The top court ruled 5-4 in 2013 that the authorities usually need a warrant to use a drug-sniffing dog outside a residence to determine if there are drugs on the inside. Scalia wrote the majority opinion.

"But when it comes to the Fourth Amendment, the home is first among equals. At the Amendment's ‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion,'" the justice wrote, quoting a 1961 high court decision. "This right would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity; the right to retreat would be significantly diminished if the police could enter a man’s property to observe his repose from just outside the front window."

National Cable & Telecommunications Association v. Brand X Internet Services: The Supreme Court ruled 6-3 in 2005, siding with the Federal Communications Commission and stating that cable broadband Internet access is an "information service" not subject to stricter regulations as those deemed a "telecommunications service." In dissent, Scalia derided the FCC's "self-congratulatory paean to its deregulatory largesse."

"Actually, in these cases, it might be more accurate to say the Commission has attempted to establish a whole new regime of nonregulation, which will make for more or less free-market competition, depending upon whose experts are believed," he added. "The important fact, however, is that the Commission has chosen to achieve this through an implausible reading of the statute and has thus exceeded the authority given it by Congress."

District of Columbia v. Heller: The justices ruled 5-4 in 2008 that the Second Amendment right to bear arms extends beyond the militia and to people. For the majority, Scalia wrote, "Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right."

King v. Burwell: In a 6-3 2015 decision, the court ruled to uphold Obamacare, aka the Affordable Care Act (President Barack Obama's universal healthcare initiative). "We should start calling this law SCOTUScare," Scalia wrote in his dissent.


Lawrence v. Texas: The court decided 6-3 in 2003 to outlaw criminal sanctions for acts of homosexuality. Scalia issued a blistering dissent: "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding."

You must to comment.

Channel Ars Technica