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February 14, 2016

In (sentencing) memoriam: why I am already missing Justice Scalia

InmemoriamslateJustice Antonin Scalia was nominated to be a Justice just a few months after I graduated from high school, and I have never really known a Supreme Court without his voice and views being integral to the Court's work.  And Justice Scalia earned a unique and enduring place in my professional heart with his work for the Court in Blakely v. Washington.  In this 2004 Slate commentary stressing how consequential the ruling was for sentencing law and policy, I called Justice Scalia's opinion in Blakely "majestic and mysterious, historic and hysterical, stunning and stupefying," and "a great read [that] often seems more intent on teasing the dissenters than on clearly defining defendants' Sixth Amendment rights."

I could (and likely will in some future law review pages) wax even more potetic about the Blakely opinion and about how his work in the Apprendi and Booker lines of cases are likely to long persist as the most critical and consequential constitutional rulings in the modern history of sentencing jurisprudence.  But in this post, I am eager to take a few moments to note and link some highlights in the remarkable corpus of significant sentencing opinions authored by Justice Scalia during his three decades on the high court:

Mistretta v. United States, 488 U.S. 361 (1989) (dissenting)

Stanford v. Kentucky, 492 U.S. 361 (1989) (for the Court)

Harmelin v. Michigan, 501 U.S. 957 (1991) (for the Court and concurring)

Callins v. Collins, 510 U.S. 1141 (1994) (concurring)

Almendarez-Torres v. United States, 523 U.S. 224 (1998) (dissenting)

Apprendi v. New Jersey, 530 U.S. 466 (2000) (concurring)

Ring v. Arizona, 536 U.S. 584 (2002) (concurring)

Blakely v. Washington, 542 U.S. 296 (2004) (for the Court)

Johnson v. United States, 135 S. Ct. 2551 (2015) (for the Court)

By keeping this list focused only on sentencing cases, I have left off many of Justice Scalia's hugely consequential opinions on lots of other criminal law matters (see, e.g., Crawford and Heller). And, I suspect that some readers think fondly (or perhaps not so fondly) of other Scalia sentencing opinions not listed above. But even this abridged list highlights how profoundly significant Justice Scalia was in shaping modern sentencing jurisprudence.

Prior related post:

February 14, 2016 at 02:32 PM | Permalink


I think Justice Scalia was more pro-defendant than most people understand. Without him, there would not have been the votes to reign in the extraterritorial application of US laws -- which grew out of a civil case (Morrison v. NAB) but is often very important in the criminal sphere. The pending RJR Nabisco case will be very important nationally to determine whether RICO, mail, wire, money laundering have extraterritorial effect. I also think we lost our key vote to end acquitted/relevant conduct sentencing. His literal/textual approach cut both ways. I wish he stayed around for one more term...

Posted by: I Loved Scalia | Feb 14, 2016 2:55:44 PM

By votes, I mean the reasoning. He wasn't always the crucial vote, but he was critical in getting his colleagues to agree with his literal meaning approach

Posted by: I Loved Scalia | Feb 14, 2016 2:56:55 PM

Right....this is my whole point about Crawford. It was Scalia who kept hammering away at Ohio vs Roberts. We still might be living under that ruling ....and to be honest now that he is gone we might just go back that way again.

I don't think one can sum up Scalia's influence based upon his votes or even his written opinions. His behind the scenes advocacy was as important as those other things.

Posted by: Daniel | Feb 14, 2016 4:18:45 PM

You are very right, I Loved Scalia, that Justice Scalia was a pro-defendant vote in many settings. But, especially in Eighth Amendment cases and more than a few others, he was often a very forceful pro-government vote. I suspect that the current Chief Justice will end up being almost as pro-defendant as the now-lost Justice Scalia and that nearly any Dem appointee will be, at least in the decade, even more pro-defendant than either of them.

Posted by: Doug B. | Feb 14, 2016 5:53:43 PM

I believe Blakely is right up there with Marbury v Madison when it comes to defining our constitutional democracy. The "circuit breaker" sentence in Blakely is all anyone needs to know about Scalia's view of the role of the jury and the scope of the Sixth Amendment jury trial right.

Of course, it is very hard to beat his "Mary Jane" sentence in his concurrence in Ring. He doesn't give a hoot if the legislature calls something Mary Jane, if it increases potential punishment, a jury must decide it.


Posted by: bruce cunningham | Feb 14, 2016 7:11:34 PM

"I think Justice Scalia was more pro-defendant than most people understand."

Sure. But, the question is net how pro-defendant was he? Was Breyer less pro-defendant as a whole for not agreeing with Scalia on sentencing guidelines? Multiple defense attorneys have noted in actual cases, the difference didn't really help many defendants. Sure some were helped, but if you are defense minded, I find it a hard call NET (unless you agree with Scalia on other issues, such as the "literal meaning approach") to say someone on the left was less pro-defendant.

Posted by: Joe | Feb 15, 2016 3:56:21 PM

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