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January 9, 2017

"In the Mold of Scalia or Alito: Recent Criminal and Habeas Decisions of Judges Pryor and Sykes"

The title of this post is the title of this new and timely short piece authored by Scott Meisler now available via SSRN that ought to be of special interest to sentencing fans.  Here is the abstract:

Recent press reports indicate that federal appellate judges William Pryor and Diane Sykes are among the finalists for the Supreme Court vacancy created by Justice Scalia’s death. But just as Justice Scalia and fellow conservative Justice Alito often differed on questions of criminal and habeas corpus procedure, so too have Judges Pryor and Sykes.  This short essay analyzes four legal issues on which the two judges have recently reached contrary results or demonstrated different approaches — including two legal issues arising from Justice Scalia’s last major criminal procedure opinion, Johnson v. United States.  The essay concludes that, though the decisions analyzed here represent only a small sample, they suggest that Judge Sykes’s approach to criminal procedure questions would more closely resemble Justice Scalia’s, while Judge Pryor’s would be more similar to that of Justice Alito.

January 9, 2017 at 10:17 AM | Permalink


It does not matter who is appointed. They will eventually imitate the rent seeking, Babylonian culture of Washington DC. This would be true if anyone moved to another country. If an Israeli were to move to Iran, he would soon take on Iranian views and manners. Scalia eventually led the movement on the Court against the mandatory sentencing guidelines. Scalia became a good pal with Justice Ginsberg, because they had more in common than differences (not a sarcastic remark).

That is the justification to improve the performance of this awful court to Wichita, KS, close to the geographic center of the continental US. Let the Justices begin to imitate Midwestern culture and values. They are the truest, most genuine American values of all, the most beneficial, and the least deviant.

Posted by: David Behar | Jan 9, 2017 4:14:52 PM

I gather this would be a mark against Pryor given the sentiments of this blog.

Posted by: Joe | Jan 9, 2017 6:04:52 PM

@David Behar, your assertion that Kansas values are the "truest, most genuine American values of all" makes you come off as provincial and naive. We are a pluralist society and a nation of people, most of whom live in the cities. Your "Babylon," though no Eden, is as much the true America as the sparsely populated plains.

Posted by: Steven King | Jan 10, 2017 4:35:13 AM

I grew up in New York, and spent three years in Iowa. Iowa culture works well. New York culture has needless friction and conflict. Productivity is easy in Iowa, few obstructions and everyone is doing it. Productivity is hard in New York, with massive obstruction and the smallest task is impossible to get done. You could tell who had just arrived in a Midwest academic center from back East, loud, anxious, fast talking, rushing about. After 3 months, they settled in, and you could no longer tell. They were no longer acting strangely.

My bad attitude about the lawyer profession, where I want it crushed, is a New York one. If I had grown up in Iowa, my attitude would be different. I would say, the lawyer profession has marginal problems in 5% of its methods and doctrines. We should work together to slowly and carefully reform and correct them. Which attitude is more reasonable, more productive, more likely to result in change in real life?

The anger and hostility of New York comes from crowding stress.

The one feature of the United States that explains much of its ethos is land area. We are sparsely populated. That is why we value the individual. That is why we are soft on crime (because we need the individual to populate our sparse geography). That is why we would be devastated without perpetual immigration. That is why we do not execute 10,000 people a year as China might be doing.

If you want the Supreme Court to reflect real American values, not in its appointments, but in its long standing decision making over decades, you must change its location to a more typical one. The big city is an outlier. The small village is too. A mid-size, Midwestern town of your own choosing is probably the best location.

The Electoral College was a compromise solution to this problem, as well. New York City was described exactly as it is today in the letters of John Adams to his wife in the 1750's. Parisians were the same as today in histories from the 13th Centuries. It is in the nature of cities. They had student riots, requiring intervention by the King's cavalry to prevent the destruction of the city by radicals.

What culture to you want the Supreme Court to have, that of the big government, rent seeking capital of the United States, or that of the small but essential government of the Calvinist culture of the Midwest?

Posted by: David Behar | Jan 10, 2017 5:30:09 PM

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