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September 8, 2010

"When freeing criminal defendants is conservative"

The title of this post is the headline of this terrific commentary by Marie Gryphon in the "Supreme Court Insider" section of The National Law Journal. here is how it starts:

Criminal defendants can't get a break from conservative judges, according to conventional wisdom.  Former Chief Justice William Rehnquist reinforced the stereotype with his famously inartful remark that a "judge who is a 'strict constructionist' in constitutional matters will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs — the latter two groups having been the principal beneficiaries of the Supreme Court's 'broad constructionist' reading of the Constitution."  But Rehnquist was speaking specifically of constitutional claims at a time when expansive, policy-driven readings of the Fourth, Fifth and Sixth amendments were, for better or worse, revolutionizing police and courtroom procedures.

Not all criminal cases involve constitutional issues.  When a case involves a disagreement about how to interpret a criminal law, a judge who takes a "strict constructionist" or textualist approach to interpreting the law is very likely to side with a criminal defendant.  There is nothing inherently unconservative about reversing the conviction of a defendant who has not clearly violated the law.  On the contrary, one of the oldest mandates of the common law is to protect the public from arbitrary prosecutions under vague statutes.

The Court's decisions during this past year undermine the common claim that its Republican appointees decide criminal cases based on the identity of the parties rather than the content of the law. In the nine criminal cases the Court decided last term that raised questions of statutory rather than constitutional interpretation, Justice Antonin Scalia, Chief Justice John Roberts Jr. and Justice Anthony Kennedy were among the most "liberal" on the Court: They sided with the criminal defendants in these cases eight out of nine times.  The only justice with a more pro-defendant record on these cases last term was John Paul Stevens.

The opinions in these cases demonstrate why Scalia and Roberts, both "textualist" judges, so often side with criminal defendants.  Scalia and Roberts take the same literal approach to interpreting federal statutes that they take to interpreting constitutional provisions.  In neither case are they inclined to expand the meaning of a provision beyond its clear terms in order to effectuate some overarching policy goal.  Although Kennedy is less wedded to a textualist interpretive approach in general, he also prefers to read criminal statutes narrowly.

September 8, 2010 at 04:12 PM | Permalink


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Thanks for the link. Exactly right - the conservative judge is not the natural foe of the criminal defendant. Sometimes there is a bit of deviation by Scalia, but my guess is Roberts may bring textural interpretation to a new level.

Posted by: beth | Sep 8, 2010 5:50:42 PM

Not on the side of the criminal defendant. This is masking ideology, lawyer lying propaganda.

On the side of more lawyer procedure and make work for lazy, worthless, government workers.

The lawyer traitor does not care if he is protecting terrorists, who will return to attack our brave warriors, as long the terrorist had a lengthy, prolonged, meaningless lawyer procedure before release to fight again.

Posted by: Supremacy Claus | Sep 9, 2010 12:27:45 AM

I agree that not all the conservative justices decide criminal cases based on the identity of the parites rather than the content of the law. One clearly does though - Alito.

Posted by: lawyer | Sep 9, 2010 10:00:21 AM

Posted by: lawyer | Sep 9, 2010 10:00:21 AM

And I would argue that plenty of time the liberal wing decides cases based on what they think would be a good idea rather than what the law says. I find both behaviors odious.

Posted by: Soronel HaetirH | Sep 9, 2010 11:32:54 AM

Soronel: And it is particularly odious because the Court is not balanced. The conservatives outnumber the liberals 5-4, have for some time, and will for the foreseeable future. They also outnumber the liberals in the lower federal courts. There is simply no way around the fact that many judges are result-oriented, particularly in criminal cases. That is why it is so important to balance the judiciary, with former defense lawyers as well as former prosecutors, for example. Alas, the judiciary, including the Supreme Court, is slanted in favor of former prosecutors.

Posted by: lawyer | Sep 9, 2010 11:45:09 AM

"deciding criminal cases based on the identity of the parties rather than the content of the law"?

Why, the first name that comes to mind is....Alito!

Posted by: agreed | Sep 9, 2010 11:50:14 AM

There are no liberals on the court, only conservatives and moderates.

Posted by: John K | Sep 10, 2010 9:56:45 AM

I don't know if I'd say Scalia and Roberts are friends of the criminal defendant. On the issues that are heard on the merits in the USSC, they may be more balanced than conventional wisdom implies. But that is in part because Scalia and Roberts play a significant part in granting review on the type of issues (textualist interpretation of federal criminal statutes) that interest them.

I don't know if I'd want either one as my trial judge, as I wouldn't expect to find them especially receptive to my run-of-the-mill challenges (suppression arguments, etc.). But maybe I'm wrong about that. Nonetheless, I do think there is a logical problem with basing conclusion on judges' votes in a set of cases that is not a representative cross-section, but rather a set largely comprised of cases dealing with specific issues that are of interest to those judges.

Posted by: Anon | Sep 13, 2010 12:33:17 PM

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