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April 18, 2007

When Justice Scalia sounds like Justice Brennan

I have long joked that if you were to read the Blakely majority opinion with your eyes closed ― which is not easy, but worth the effort ― you might think it was authored by the late Justice Brennan and not Justice Scalia.  Though some rhetoric in Blakely is classic Scalia, much of the pro-defendant sentiments are straight from a classic Brennan script.   The trend continued with Justice Scalia's work in Gonzales-Lopez last year (commentary here), where Justice Scalia joined and wrote for the "liberal wing" of the Court to affirm the reversal of a drug dealer's conviction based on a debatable interpretation of the Sixth Amendment.

Now we get Justice Scalia's work in dissent in James (basics here; commentary here), which includes this Brennanesque passage:

Imprecision and indeterminacy are particularly inappropriate in the application of a criminal statute.  Years of prison hinge on the scope of ACCA's residual provision, yet its boundaries are ill defined. If we are not going to deny effect to this statute as being impermissibly vague, see Part III, infra, we have the responsibility to derive from the text rules of application that will provide notice of what is covered and prevent arbitrary or discriminatory sentencing.  See Kolender v. Lawson, 461 U.S. 352, 357 (1983).  Offenders should be on notice that a particular course of conduct will result in a mandatory minimum prison term of 15 years.  The Court prefers to keep them guessing.

Especially because I think Justice Scalia gets the better of the debate in James, it is disappointing and telling that he does not get the votes of either of the new Justices in this case.  Once again it is clear that, at least in the arena of non-capital criminal jurisprudence, President Bush has failed to appoint Justices in the mold of Scalia and Thomas (who dissented on even broader grounds).

Of course, Justice Scalia also sound like himself in his James dissent.  I found especially amusing and telling these closing lines:

Congress has simply abdicated its responsibility when it passes a criminal statute insusceptible of an interpretation that enables principled, predictable application; and this Court has abdicated its responsibility when it allows that.  Today's opinion permits an unintelligible criminal statute to survive uncorrected, unguided, and unexplained.  I respectfully dissent.

April 18, 2007 at 01:31 PM | Permalink

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Comments

I think that Justice Scalia would argue that it is pro-Constitutional script, not pro-criminal.

Posted by: federalist | Apr 18, 2007 2:41:36 PM

federalist, of course he would, but the rest of us see through that and realize that he's exercising discretion in interpreting an ambigious text. The fact that he is interpreting that text in a pro-defendant manner says more about him than the text.

Posted by: Elson | Apr 18, 2007 3:09:48 PM

Once again it is clear that, at least in the arena of non-capital criminal jurisprudence, President Bush has failed to appoint Justices in the mold of Scalia and Thomas....

But he wasn't trying to do that. He was looking for Justices in the Scalia/Thomas mold only for abortion cases, and a few other hot-button issues that social conservatives truly care about. As today's other ruling shows, he got exactly what he wanted.

In the criminal jurisprudence arena, I think he wanted jurists in the mold of the late Chief Justice Rehnquist, and so far, he seems to have hit a home run in that department, as well.

Posted by: Marc Shepherd | Apr 18, 2007 3:21:40 PM

"Failed" can have a couple of different meanings. See Williams v. Taylor, 529 U.S. 420 (2000). President Bush appointed and got confirmed the kind of justices he intended. And, no, not just on abortion and a few other issues. His statement that Scalia and Thomas were the models was a bit off. We are seeing Roberts and Alito pretty consistently on the side of judicial restraint and deference to the elected branches of government, which I believe was the actual goal.

Posted by: Kent Scheidegger | Apr 18, 2007 4:05:07 PM

I just don't think you can call Scalia "pro-criminal" on the basis of the dissent here. It may surprise people here, but I am the author of a law review article which takes many decisions that favored prosecutors to task for not following what I thought what the application of the rules demanded. Does that make me pro-criminal? I don't think so.

In my view of the world, labeling a judge pro-criminal or pro-prosecution is a very nasty charge (not that I hesitate in flinging it when I think it appropriate), and I don't think it's fair to say that, on the basis of what outwardly seems an honest attempt to get things right on Scalia's part, that he is pro-criminal.

I agree with Marc and Kent, Bush said the "Scalia and Thomas" stuff because they are popular with the base, but I would bet a lot of money that Bush would take a Rehnquist clone any day of the week over a Scalia clone.

Posted by: federalist | Apr 18, 2007 4:19:22 PM

Scalia also decides Kyllo on grounds that sound remarkably similar to Justice Brennan.

"Reversing [our approach in Katz] would leave the homeowner at the mercy of advancing technology--including imaging technology that could discern all human activity in the home. While the technology used in the present case was relatively crude, the rule we adopt must take account of more sophisticated systems that are already in use or in development." ...
"[W]e must take the long view, from the original meaning of the Fourth Amendment forward."

This approach to construing a rule broadly to protect against future invasions of constitutional rights sounds remarkably similar to an oft-heard idea in Brennan dissents--something along the lines of "the decision by the majority today will have far-reaching consequences..."

Posted by: Travis Knobbe | Apr 18, 2007 11:22:51 PM

federalist, please provide a cite to your article. When it's published, of course.

Posted by: rothmatisseko | Apr 19, 2007 12:46:25 AM

What does it mean to "sound like Justice Brennan"?

I understand Justice Scalia to prefer clear rules to mushy standards, particularly in the criminal context. Part of the legitimacy of the criminal punishment system lies in the notion that everyone is on notice of what's illegal and what the potential consequences are of breaking the law. Standards can be an invitation to judges to decide cases on less legitimate grounds.

I read this statement as another expression of Scalia's preference for rules over standards in the criminal context.

Justice Brennan, if I recall correctly, was more concerned with releasing whatever criminal defendant was fortunate enough to get his case in front of the Supreme Court. He disliked rules when they stood in the way of sympathetic litigants, and he disliked standards when they were applied by judges with more conservative sensibilities. Justice Brennan was a brilliant judge, as is Scalia, but I don't think Scalia sounds much like Brennan here.

Posted by: | Apr 19, 2007 10:16:09 AM

Rothmat, it was published years ago. Besides, if I gave out the cite, i'd lose my anonymity. I don't want that . . . .

Posted by: federalist | Apr 19, 2007 1:26:15 PM

GPS tracking systems are only a small part of what it takes to keep our children safe from sexual predators. First of all, legislators need to ensure that these sex offenders cannot reside anywhere near children. Police need to spend less time hiding with their radar guns to give speeding tickets and more time monitoring areas where sex offenders reside. GPS tracking bracelets are a must! The people monitoring GPS trackers most be competent and knowledgeable.

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Once again it is clear that, at least in the arena of non-capital criminal jurisprudence, President Bush has failed to appoint Justices in the mold of Scalia and Thomas

Posted by: asics shoes | Jan 7, 2011 9:18:48 PM

Imprecision and indeterminacy are particularly inappropriate in the application of a criminal statute. Years of prison hinge on the scope of ACCA's residual provision, yet its boundaries are ill defined.

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Imprecision and indeterminacy are particularly inappropriate in the application of a criminal statute. Years of prison hinge on the scope of ACCA's residual provision, yet its boundaries are ill defined. If we are not going to deny effect to this statute as being impermissibly vague, see Part III, infra, we have the responsibility to derive from the text

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I was put in monopoly shop window, carefree get by. Every day there are many people use envy looked at me expectantly, because I beautiful noble, so people are eager to get me, but was my prestige away. Please, 218 yuan, 218, I want to send! So lucky number, why not buy me?

One day, a man dressed in fine style, the little boy in the shop after he ramble, jealous me. He noises.then jilt to the shopkeeper, silly, but they shook off the air max 2011 off and put my run said: "don't go." Run ChuDian, pass by a dustbin, he put those nike Shoes thrown them away.

The little boy ran to a gorgeous front of villa, opened the door, and went in. It was his home. The little boy ran to the table, holding only "mouse" tinkering with. "How strange!" I said in the shoe rack. "It's not strange." The corner a pair of red shoes, "his answer me in playing computer, that mouse. I'm his sister's nike shoe, they never do their homework, sister both only know play. Mom and dad also ignore, know to give them money." Red shoes sighed.

The house is gorgeous, but give a person a kind of frosty feeling. A few days later, the red shoes, replace it lost the is a pair of gem is green new nike james shoes. I began to realize that their position is very dangerous, as far as possible let look cute. But after a month, I also was thrown into the dustbin. Alas I -often siding with garbage, lifelong only.

This day evening, a dress plain women found me, then I have tracing stains, uzziah filthy. She was mad with joy, I scrubbed, really comfortable! Then carrying I ran home.

In a broken-down hut, the wooden partition is with a "miyoshi students," and "good habits pacesetter", "study activists"... Full of testimonials. A little boy doing homework, he was pale, feet is wearing a pair of shoes. The broken banner patch From the corner of the winds filling the hole in, the little boy can't help hold up. "The doll, mom JianPoLan when she saw air jordan shoes, quite good of, wear go!" "It is so beautiful! Thank you, mum!" The little boy kissed the mother's face, and can't wait to try on shoes.

I in this home, by special preferential treatment in holiday or the school significant activities, the little boy would put on me. P: I had been rubbed clean, comfortably in a large shoebox lying in bed. I think in this home especially warm.

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Compared with America, Europe, China's wedding gowns industry startting evening. By the early 20th century, the traditional Chinese HunLiFu or robes XiaPei hanged and FengGuan horse, since the ancient times, the Chinese camel coat is mainly with red, because traditional think red is auspicious festive colors, so ancient new marry niang is often dressed in Karen Millen outlet, wearing FengGuan. In Chinese tradition, wedding is the most important thing in his life girls dress, it is mostly by the girl from their begin to do, always do before marriage didn't finish, this outfit so hopes the girls all dream girlhood. Now of the girl although will no longer sewing your own wedding, but must be tailored outfit, handmade and the precious and can be seen it only.
The custom of bridal costume can be traced back to Victorian Times (Victorian marriage to send), when the bride wear dress and "something old, something new, something borrowed and white related. Because the old stuff with the bride's family and her old life are related. New things that represent the bride future happiness new life can have good luck and success (fortune and success of Christmas. When she married to wear something borrowed the marriage luck, this can is a HunLiFu, a handkerchief, a piece of jewelry. White stuff is considered to be the symbol of purity and loyalty.
About the bride phi the custom of the wedding veil has two explanations. One is in the era of arranged marriages, the bridegroom bride at the wedding, the bride before formally marry the face all to cover up, so that the groom see the bride, even if don't like her appearance, also it is too late. Another explanation is that the bride wear camel coat is to be in the wedding day was not the evil spirits floating around on damage.
The groom had the custom of holding the bride threshold is originated from Roman times. Then it is thought that if the bride first day when new words of stumbling into the threshold, will bring bad luck, the bride hugged threshold can avoid such things happen.

The custom of the wedding ring, it is generally thought that began in the 17th century. At the time of wedding in sequence, the pastor from hand index finger touched on, boundary touched side to say: "to the Father, Son and Holy Spirit name... (in the name of the companies it, the press and the survival)", just touch the ring finger.
The bride carrying with flower (6) habit originated in ancient. People think of flavour flowers and plants or spices can banish evil spirits, luck and disease. To the Victorian era, when the lovers by mutual send a flower to convey different cordiality, spend had more meaning. If apple blossom) represent born (the arrival of "the good thing that I come) to ("; The red rose means "I love you"; White rose means "pure"; Forget - me - forget-me-not (not) is "sincere love and memory (true love and remembrance)".
As for the bride stood groom left is very interesting story. In ancient times, the bridegroom sweltering with his left hand reveal protect future bride at the same time, still must vacate the right hand, and with a sword beat and away other want to rob her for his wife.
Though accustomed to these customs today people, understanding these ancient cultural tradition is very interesting.


Posted by: air max 2011 | May 24, 2011 4:05:32 AM

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I was put in monopoly shop window, carefree get by. Every day there are many people use envy looked at me expectantly, because I beautiful noble, so people are eager to get me, but was my prestige away. Please, 218 yuan, 218, I want to send! So lucky number, why not buy me?

One day, a man dressed in fine style, the little boy in the shop after he ramble, jealous me. He noises.then jilt to the shopkeeper, silly, but they shook off the air max 2011 off and put my run said: "don't go." Run ChuDian, pass by a dustbin, he put those nike Shoes thrown them away.

The little boy ran to a gorgeous front of villa, opened the door, and went in. It was his home. The little boy ran to the table, holding only "mouse" tinkering with. "How strange!" I said in the shoe rack. "It's not strange." The corner a pair of red shoes, "his answer me in playing computer, that mouse. I'm his sister's nike shoe, they never do their homework, sister both only know play. Mom and dad also ignore, know to give them money." Red shoes sighed.

The house is gorgeous, but give a person a kind of frosty feeling. A few days later, the red shoes, replace it lost the is a pair of gem is green new nike james shoes. I began to realize that their position is very dangerous, as far as possible let look cute. But after a month, I also was thrown into the dustbin. Alas I -often siding with garbage, lifelong only.

This day evening, a dress plain women found me, then I have tracing stains, uzziah filthy. She was mad with joy, I scrubbed, really comfortable! Then carrying I ran home.

In a broken-down hut, the wooden partition is with a "miyoshi students," and "good habits pacesetter", "study activists"... Full of testimonials. A little boy doing homework, he was pale, feet is wearing a pair of shoes. The broken banner patch From the corner of the winds filling the hole in, the little boy can't help hold up. "The doll, mom JianPoLan when she saw air jordan shoes, quite good of, wear go!" "It is so beautiful! Thank you, mum!" The little boy kissed the mother's face, and can't wait to try on shoes.

I in this home, by special preferential treatment in holiday or the school significant activities, the little boy would put on me. P: I had been rubbed clean, comfortably in a large shoebox lying in bed. I think in this home especially warm.

From now on, I will stay down.

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I am a pair of dg shoes, AD called "help," meaning that can help you boarded the towering perilous peaks. The mountains, I can go on without any difficulty, go flat road as light as yan, light body with ling2 Po wei2 a step drives, many handsome!

I was put in monopoly shop window, carefree get by. Every day there are many people use envy looked at me expectantly, because I beautiful noble, so people are eager to get me, but was my prestige away. Please, 218 yuan, 218, I want to send! So lucky number, why not buy me?

One day, a man dressed in fine style, the little boy in the shop after he ramble, jealous me. He noises.then jilt to the shopkeeper, silly, but they shook off the air max 2011 off and put my run said: "don't go." Run ChuDian, pass by a dustbin, he put those nike Shoes thrown them away.

The little boy ran to a gorgeous front of villa, opened the door, and went in. It was his home. The little boy ran to the table, holding only "mouse" tinkering with. "How strange!" I said in the shoe rack. "It's not strange." The corner a pair of red shoes, "his answer me in playing computer, that mouse. I'm his sister's nike shoe, they never do their homework, sister both only know play. Mom and dad also ignore, know to give them money." Red shoes sighed.

The house is gorgeous, but give a person a kind of frosty feeling. A few days later, the red shoes, replace it lost the is a pair of gem is green new nike james shoes. I began to realize that their position is very dangerous, as far as possible let look cute. But after a month, I also was thrown into the dustbin. Alas I -often siding with garbage, lifelong only.

This day evening, a dress plain women found me, then I have tracing stains, uzziah filthy. She was mad with joy, I scrubbed, really comfortable! Then carrying I ran home.

In a broken-down hut, the wooden partition is with a "miyoshi students," and "good habits pacesetter", "study activists"... Full of testimonials. A little boy doing homework, he was pale, feet is wearing a pair of shoes. The broken banner patch From the corner of the winds filling the hole in, the little boy can't help hold up. "The doll, mom JianPoLan when she saw air jordan shoes, quite good of, wear go!" "It is so beautiful! Thank you, mum!" The little boy kissed the mother's face, and can't wait to try on shoes.

I in this home, by special preferential treatment in holiday or the school significant activities, the little boy would put on me. P: I had been rubbed clean, comfortably in a large shoebox lying in bed. I think in this home especially warm.

From now on, I will stay down.

Posted by: air max 2011 | May 24, 2011 4:16:10 AM

I am a pair of dg shoes, AD called "help," meaning that can help you boarded the towering perilous peaks. The mountains, I can go on without any difficulty, go flat road as light as yan, light body with ling2 Po wei2 a step drives, many handsome!

I was put in monopoly shop window, carefree get by. Every day there are many people use envy looked at me expectantly, because I beautiful noble, so people are eager to get me, but was my prestige away. Please, 218 yuan, 218, I want to send! So lucky number, why not buy me?

One day, a man dressed in fine style, the little boy in the shop after he ramble, jealous me. He noises.then jilt to the shopkeeper, silly, but they shook off the air max 2011 off and put my run said: "don't go." Run ChuDian, pass by a dustbin, he put those nike Shoes thrown them away.

The little boy ran to a gorgeous front of villa, opened the door, and went in. It was his home. The little boy ran to the table, holding only "mouse" tinkering with. "How strange!" I said in the shoe rack. "It's not strange." The corner a pair of red shoes, "his answer me in playing computer, that mouse. I'm his sister's nike shoe, they never do their homework, sister both only know play. Mom and dad also ignore, know to give them money." Red shoes sighed.

The house is gorgeous, but give a person a kind of frosty feeling. A few days later, the red shoes, replace it lost the is a pair of gem is green new nike james shoes. I began to realize that their position is very dangerous, as far as possible let look cute. But after a month, I also was thrown into the dustbin. Alas I -often siding with garbage, lifelong only.

This day evening, a dress plain women found me, then I have tracing stains, uzziah filthy. She was mad with joy, I scrubbed, really comfortable! Then carrying I ran home.

In a broken-down hut, the wooden partition is with a "miyoshi students," and "good habits pacesetter", "study activists"... Full of testimonials. A little boy doing homework, he was pale, feet is wearing a pair of shoes. The broken banner patch From the corner of the winds filling the hole in, the little boy can't help hold up. "The doll, mom JianPoLan when she saw air jordan shoes, quite good of, wear go!" "It is so beautiful! Thank you, mum!" The little boy kissed the mother's face, and can't wait to try on shoes.

I in this home, by special preferential treatment in holiday or the school significant activities, the little boy would put on me. P: I had been rubbed clean, comfortably in a large shoebox lying in bed. I think in this home especially warm.

From now on, I will stay down.

Posted by: air max 2011 | May 24, 2011 4:17:26 AM

Congress has simply abdicated its responsibility when it passes a criminal statute insusceptible of an interpretation that enables principled, predictable application; and this Court has abdicated its responsibility when it allows that. Today's opinion permits an unintelligible criminal statute to survive uncorrected, unguided, and unexplained. I respectfully dissent.

Posted by: moving to london | Nov 13, 2012 7:02:56 AM

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