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June 26, 2006

More evidence of Justice Scalia's move left

After reading Gonzalez-Lopez, the interesting right-to-counsel decision by the Supreme Court (available here), I wonder if the folks who attacked Justice Kennedy for joining the "liberal wing" in Roper will now attack Justice Scalia for doing the same.  Distilled to its essence, Justice Scalia in Gonzalez-Lopez affirms the reversal of a drug dealer's conviction based on a debatable interpretation of the Sixth Amendment.  Like his opinion in Blakely, Justice Scalia's opinion in Gonzalez-Lopez reads like it might have come from the desk of Justices Brennan, Marshall or Warren, except perhaps for some sharp comments about the dissent in the footnotes.

Speaking of the dissent, I believe Gonzalez-Lopez has the first dissenting opinion written by Justice Alito.  That fact alone is interesting, but is even more notable because he dissents (along with the new Chief and Justices Kennedy and Thomas) from an opinion authored by Justice Scalia.  And, to continue a theme, it is fun to speculate whether Justice O'Connor (or Harriet Miers) might have dissented in the same manner in Gonzalez-Lopez.  I doubt it.

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June 26, 2006 at 03:16 PM | Permalink


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One thing's for sure: Justice Scalia has it in him to declare only one constitutional error "structural" per Term. This Term, the right to counsel won out over right to jury findings on sentence-enhancing offense-elements.

Posted by: Steve | Jun 26, 2006 4:18:56 PM

As Rachel Barkow points out (see link in yesterday's post), "conservative" does not necessarily equal "pro-prosecution."

Posted by: Kent Scheidegger | Jun 26, 2006 4:24:54 PM

I disagree, Prof. Berman. One need look no futher than Scalia's concurrence in Marsh today, where he levels a blistering and IMHO rather uncalled for) attack on the Court's more "liberal" wing, European values, and opposition to the death penalty in general. A cynic might even be inclined to comment that Scalia's "split doubleheader" (to borrow his term from Grutter) favors wealthy clients who can afford the attorney of their choice and disfavors indigent inmates on death row represented by public defenders and other public-interest groups.

Hardly a shift to the left in any meaningful or lasting sense.

Posted by: LT | Jun 26, 2006 4:28:31 PM

An interesting thought!

But I would be surprised to see an attack on Justice Scalia from the right. As far as I can remember, his opinions in Kyllo and Blakely didn't draw such a response. And while it is possible that the subject matter of those cases made a difference, my suspicion is that Justice Scalia has too much conservative “street cred” to draw the criticism that we have seen of Justice Kennedy, who was, after all, labeled one of the two swing votes on the Rehnquist Court.

Posted by: C.Hessick | Jun 26, 2006 7:37:28 PM

How can a decision squarely based on the core, original meaning of the pre-Gideon Sixth Amendment right to the assistance of counsel be considered anything but conservative? (I suspect you had your tongue in one cheek or the other, Doug.) Anyway, Scalia is the staunchest of defenders of an 18th Century understanding of each and every clause of the Sixth Amendment (see Crawford, et al.). It was Jeff Fisher's brilliant strategy to play the defendant-respondent's brief to that historical line, thus garnering Scalia's vote along with the four so-called "liberals." BTW, I count Alito's concurrence in Dixon (joined by Scalia) as his first "dissent," as he clearly rejected and disagreed with the majority's (and the Court's traditional) analytical method for deciding the terms of a federal criminal law defense, taking a much more conservative view.

Posted by: Peter G | Jun 26, 2006 10:43:16 PM

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