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November 26, 2006

Can Scalia, the criminal libertarian, sway Alito and Roberts?

Scott Turow has this nice essay in today's New York Times Magazine, entitled "Scalia the Civil Libertarian?".  The piece emphasizes Apprendi as it notes "that Justice Scalia, especially in the last decade, has frequently taken an expansive view of the Bill of Rights, thus supporting defendants in criminal cases."  Though mostly focused on "war on terror" issues, Turow indirectly spotlights that traditional left-right divides do not effectively capture the Supreme Court's modern criminal justice jurisprudence.

The piece concludes by noting that "Scalia has seldom been a consensus builder on the court, preferring to stick with his own views rather than troll for votes."  Yet, I suspect that Justice Scalia had some role in Justice Thomas's embrace of Apprendi principles, and one big issue this Term is whether he might sway the two new Justices to embrace these principles. 

Based on their oral argument questions in Cunningham (background here) and Burton (background here), I do not think the new Chief or Justice Alito is much of a fan of Apprendi and Blakely.  But perhaps a tag team of Justices Scalia, Stevens and Thomas might lead them on a trip (along with Justice Breyer?) to Apprendi-land.

November 26, 2006 at 01:43 PM | Permalink


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