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November 8, 2005

Curious SCOTUS vote counting (and remembering that death and habeas are different)

Noting Marcia Coyle's great National Law Journal article on Alito (discussed here), Jeralyn over at TalkLeft here spotlights (and concurs with) an unnamed defense attorney's assertion that, if Alito is confirmed, there will be "a very strong voting block of four in criminal cases to be extremely receptive to most arguments made by the government."   Even assuming that Alito is to become the cornerstone of such a pro-government block in criminal cases, I find myself struggling to figure out who would be the other three members of this (mythical?) "very strong voting block."  Let's consider some of the leading candidates. 

I suppose one could assume that CJ Roberts will, in criminal justice cases, end up in the mold of his predecessor and old boss CJ Rehnquist, who was consistently pro-government in criminal cases (as Ward Farnsworth has recently documented).  But, the record to date seems far too sketchy to make such assumptions (especially since the very first opinion of the Roberts Court was a win for a criminal defendant in a habeas case).

Perhaps Justice Kennedy is counted in the pro-government voting block.  But his recent work in cases like Roper and Seibert (not to mention his vote in a case like Crawford) lead me to hesitate before declaring Justice Kennedy a certain vote in criminal justice cases.  (That said, with CJ Rehnquist gone, Justice Kennedy could perhaps emerge as the most solid pro-government vote in many criminal cases.)

So what of Justices Scalia and Thomas?  Their pro-government votes in most capital and habeas cases surely account for their anti-defendant reputation.  But, in the wake of Justice Scalia's recent work in Crawford and Blakely (not to mention Kyllo), it is ridiculous to view Justice Scalia as a pro-government toady in criminal cases.  The same goes for Justice Thomas, especially if we recall that Justice Thomas is now the Court's the leading voice for eliminating both the prior conviction exception and the mandatory minimum exception to the Apprendi-Blakely rule.

As I reflect upon these realities and upon the Supreme Court's decisions last term, I suspect that assessments are often skewed by votes and results in capital cases and habeas cases (which, to my chagrin, occupy so much of the Court's criminal docket).  Moreover, it seems reasonable to believe that concerns about federalism and finality, and not an inherent pro-government bias, largely account for consistent pro-government votes from Justice Scalia and Thomas in most capital and habeas cases. 

Indeed, in light of a number of recent decisions, I am coming to think we might identify, in the votes of Justices Scalia and Thomas, a distinctive commitment to safeguarding key structural values in the criminal justice system.  (And, as Crawford and Blakely highlight, Justices Scalia and Thomas are clearly willing to upset the government's apple cart when a prior precedent or developed practices seem to imperil these structural values.)   Consequently, as I have suggested before, at least some criminal defendants should hope that Chief Justice Roberts and a Justice Alito in fact end up in the Scalia and Thomas mold.

November 8, 2005 at 02:27 AM | Permalink


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Brother Breyer usually votes for the government in criminal cases (his "liberal" reputation notwithstanding).

Posted by: Anon | Nov 8, 2005 8:54:46 PM

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