In the days since Justice Antonin Scalia’s death, obituaries and retrospectives have told a standard story about his jurisprudence: Scalia was a conservative whose originalism sometimes led him to “liberal” outcomes, especially in the criminal justice domain. As Adam Liptak put it in his New York Times obit:

[O]riginalism generally led [Scalia] to outcomes that pleased political conservatives, but not always. His approach was helpful to criminal defendants in cases involving sentencing and the cross-examination of witnesses.

Jeffrey Rosen told PBS NewsHour that in a “series of cases” involving “the rights of criminal defendants,” among other issues, Scalia felt “compelled” by his originalism to reach “liberal results” that diverged from his own policy “preferences.” Jacob Sollum at Reason highlights “Scalia’s liberal tendencies” on certain criminal justice issues, and the editors of the National Review also note that “some of [Scalia’s] most notable opinions had ‘liberal’ results for criminal defendants.” 

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Scalia often voted in favor of criminal defendants, and he was out in front of even his most liberal colleagues on quite a few criminal justice questions. But the emerging conventional wisdom — that originalism led Scalia to liberal outcomes on sentencing, cross-examination, and other issues of criminal law and procedure — obscures as much as it illuminates. Scalia’s sometimes-support for the rights of criminal defendants was neither “accidental” nor especially “originalist.” The “accidental champion” story oversells originalism and underestimates Scalia.

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