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February 3, 2017

"Will Gorsuch Be Another Scalia on Criminal Justice Issues? Not Likely"

The title of this post is the headline of this terrific extended commentary at The Crime Report authored by Caleb Mason.  The piece does a wonderful job of reviewing many of the criminal jurisprudence highlights of Justice Scalia's three decades on the Supreme Court.  And the start and end of the commentary explains why the author does not expect a Justice Gorsuch to be able to fully fill the shoes of Justice Scalia:

What’s the outlook for criminal-justice jurisprudence from the new Supreme Court, if Neil Gorsuch fills the late Justice Antonin Scalia’s seat?

It’s an interesting question, because, as I’ve written here before, Justice Scalia was genuinely idiosyncratic when it came to criminal cases.  And the short answer is that Gorsuch won’t be another Scalia on criminal law, because no one can be.  Scalia’s influence on criminal jurisprudence was powerful and multifaceted, and cut across the usual left-right voting divide on the Court.

Whether your perspective is defense or prosecution, you can say with conviction that Scalia was the driving force behind some of the best case law and some of the worst case law.

Here are some areas in which Scalia moved the law dramatically. On each of these issues, he argued vehemently for years before lining up the votes to shift doctrine....

In sum, Scalia was unique in his criminal-law jurisprudence.  The weird mix of judicial impulses that led to the dramatic shifts in the law listed above is his and his alone.  His criminal-law views didn’t predictably track right or left — though his hostility to court-created enforcement mechanisms was terrible for criminal defendants.

So now the question on everybody’s lips is whether Gorsuch is going to be Scalia-esque.

When it comes to criminal procedure and criminal law, I don’t think anyone is. If Judge Gorsuch is confirmed, he’ll have 30 years to forge his own judicial identity.  And whoever he becomes on the Court, he won’t be another Scalia.

Some prior related posts:

February 3, 2017 at 12:26 AM | Permalink


For all of Justice Scalia's decisions favoring defendants who raised claims on direct appeal, let's not forget that he voted against virtually EVERY prisoner whose case came before the court on collateral attack -- even in cases where every other Justice (save Thomas) voted to grant a remedy. Hopefully Gorsuch will understand that state criminal justice system malfunctions from time to time and not simply rely on the horrific facts developed at an otherwise procedurally defective trial to deny a remedy.

Posted by: John Deere | Feb 3, 2017 9:33:08 AM

I've had a chance to look at a few of his opinion more closely and my initial enthusiasm has cooled somewhat. He's highly intellectual and he has a refined mind, penetrating and draws very close distinctions. Lawyers who play words games or attempt to baffle with BS will find themselves treated coldly. That's all good. But I also felt that he lacked any decisive vision of the law or legal interpretation. I don't see the "orginalism" that other people claim he has; to the extent that orginalism appears in his work it is used to buttress rather than justify his judicial conclusions. From a legal theory point of view the person he is most likely to find himself disagreeing with is not Kagan or Sotomayor but Breyer.

Posted by: Daniel | Feb 3, 2017 1:16:20 PM

That article has a very strong title given its complete lack of substantiation to the question it asks. It would have been better off excising Gorsuch from it entirely for all that was written.

Posted by: Erik M | Feb 3, 2017 3:11:10 PM

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