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February 5, 2012

Justice Scalia bemoans "nickel and dime" criminal cases in federal courts

This AP article reporting on a speech at an ABA event reveals that I am not the only one who thinks the federal criminal docket has gotten way too big.  The piece is headlined "Scalia: Routine criminal cases clog federal courts," and here is how it begins:

The federal courts have become increasingly flooded with "nickel and dime" criminal cases that are better off resolved in state courts, U.S. Supreme Court Justice Antonin Scalia said Saturday. Scalia told an American Bar Association meeting in New Orleans that he's worried that the nation's highest court is becoming a "court of criminal appeals."

"This is probably true not just of my court, but of all the federal courts in general. A much higher percentage of what we do is criminal law, and I think that's probably regrettable," he said. "I think there's too much routine criminal stuff that has been pouring into the federal courts that should have been left to the state courts."

Scalia said civil dockets in some federal jurisdictions are lagging behind because criminal cases take precedence. He attributed the trend to lawmakers enacting new criminal statutes and bogging down the federal courts with "nickel and dime criminal cases that didn't used to be there."

"This stuff is just pouring into the federal courts. That's not what the federal courts were set up for," he said.

Given that the Justices take up less than a few dozen federal criminal appeals each Term, whereas some federal circuit courts have to resolve hundreds of federal criminal appeals each month, I do not think we should feel too sorry for the Justices or worry too much about the Supreme Court becoming a "court of criminal appeals."  Indeed, a few decades ago when the Court regularly resolved around 150 cases on the merits each Term instead of the modern norm of about half that many, the Court regularly decided on the merits many more criminal appeals each year that it does now.  But there surely now are many, many more petitions for cert in criminal cases these days.

Even though I suspect that Justice Scalia's complaints are mostly a function of his disinterest in most federal criminal matters — especially all the technical statutory drug cases and Armed Career Criminal Act cases the Court has taken up in recent Terms — I still think he is spot-on when lamenting that "too much routine criminal stuff ... has been pouring into the federal courts that should have been left to the state courts."

February 5, 2012 at 03:12 PM | Permalink


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Well, now that virtually every aspect of human activity is subject to federal jurisdiction, what else does he expect? Federal prosecutors aren't going to just sit around and twiddle their thumbs. They're going to use the power they've been given. And if Justice Scalia doesn't like adjudicating the laws of the nation, I'm sure he's entitled to a nice little retirement package. Maybe then we can get someone who thinks that the freedom of individuals--especially innocent ones--matters.

Posted by: C.E. | Feb 5, 2012 8:27:41 PM

i have to agree. the words "NO shit shirlock!" come to mind. the fed's are making everything but BREATHING a federal crime and i think that one is up for discussion this term?

so what the hell does he expect!

Posted by: rodsmith | Feb 6, 2012 1:07:45 AM

Scalia nailed this one.

Posted by: AFPD | Feb 6, 2012 7:31:07 AM

Hey, he might be right enough, but in the early days, the Supreme Court dealt with lots of nickel and dime stuff, if largely property related. The Constitution spends a lot of time on criminal justice matters. The problem is that the feds criminalize too many things though in the modern state, a lot of stuff would be covered, just somewhat less in scale.

Posted by: Joe | Feb 6, 2012 12:22:36 PM

Too many AUSAs, too many drug warriors, and too much Commerce Clause expansion.

Posted by: Calif. Capital Defense Counsel | Feb 6, 2012 5:55:07 PM

Sounds like the justice is no longer satisfied with his job, maybe his work doesn't have the meaning that it once did. If so, I'm sure that we'd be able to find at least one or two qualified applicants willing to make some sacrifices and take over his position.

Posted by: Anon | Feb 6, 2012 6:06:33 PM

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