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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
