Justice Scalia’s Impact on State and Local Government

By Lisa Soronen, executive director of the State and Local Legal Center
U.S. Supreme Court Justice Antonin Scalia’s death on Feb. 13 came at an uncertain time in our nation’s history, as we are quickly approaching a presidential election. Unsurprisingly, while some of the news coverage has focused on the substance of his 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 U.S. 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 governments?
Justice Scalia will probably be most remembered for writing District of Columbia v. Heller in 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, Justice 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 2012 dissenting opinion in Arizona v. United States, involving challenges to Arizona laws designed to crack down on illegal immigration, rested on state sovereignty. 
Justice 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 Supreme Court’s 1987 opinion in Nollan v. California Coastal Communities, 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.
Justice Scalia generally was supportive of state and local governments in qualified immunity cases. Specifically, he wrote the court’s opinion in Scott v. Harris in 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, Justice Scalia’s jurisprudence was notably mixed. For example, he dissented from the Supreme Court’s decision in Maryland v. King in 2013, upholding warrantless DNA testing of arrestees. But he also dissented from the court’s 2014 decision in Los Angeles v. Patel, holding that hotel registry ordinances allowing police inspections without pre-compliance judicial review violate the Fourth Amendment.
The State and Local Legal Center, or SLLC, filed amicus briefs before the Supreme Court the entire time Justice 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. 
Justice Scalia wasn’t one to turn a blind eye on how a case would affect state and local governments. 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 Angelesordinance, noting that such ordinances and state statutes are common.
As far as the SLLC was concerned, Justice Scalia’s work wasn’t done. Just this month the SLLC filed an amicus brief asking the Supreme 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 in 1997, holding that courts must defer to an agency’s interpretation of its own regulations. Last year in Perez v. Mortgage Bankers Association, Justice Scalia and two other justices expressed skepticism about Auer.  




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