Scalia the Civil Libertarian?

[madmusic]

By SCOTT TUROW
Published: November 26, 2006

The conservative ideological majority on the U.S. Supreme Court that determined the 2000 election in favor of President Bush should have grown stronger when Bush chose Justice Samuel Alito to replace the moderate Sandra Day O’Connor. Yet in carrying out its first priority, the war on terror, the White House has encountered unwelcome resistance from the court. Objections to Bush’s sweeping view of executive power have come not only from liberals and centrists, like Justice Anthony Kennedy but, more remarkably, from Justice Antonin Scalia, who may end up playing a pivotal role in future war-on-terror cases.

Scalia has long been regarded as an administration favorite. Bush suggested during the 2000 campaign that Scalia was his idea of a model justice. In the court’s Bush v. Gore decision, which brought that campaign to an end, Scalia ventured the opaque claim that candidate Bush would experience “irreparable harm” if the recount continued in Florida. Not long after, the justice’s son was appointed by the president to a top position in the Labor Department. In January 2004, Scalia took a free ride on Vice President Cheney’s plane to go duck hunting with him; later he refused to step aside in a major case involving Cheney.

Even beyond these affiliations, Justice Scalia’s flamethrowing rhetoric and his hostility to whole chapters of 20th-century jurisprudence have made him a conservative icon and a favorite face on liberal dart boards. The justice has declared that the Constitution not only creates no right to abortion but does not even protect private adult sexual conduct, blasting the court’s 2003 decision to strike down a Texas sodomy law as “largely sign on to the so-called homosexual agenda.” He has scaled back the exclusionary rule, which bars evidence obtained by unlawful police searches, and made it clear that he would like to do away with Miranda warnings.

Less noted, however, is the fact that Justice Scalia, especially in the last decade, has frequently taken an expansive view of the Bill of Rights, thus supporting defendants in criminal cases. Scalia is one of the intellectual godfathers of a strand of Supreme Court decisions, crystallized by Apprendi v. New Jersey, that revolutionized sentencing laws. Following a strict interpretation of the Fifth Amendment’s guarantee of due process of law and the Sixth Amendment’s right to trial by jury, Scalia has insisted that any fact used to extend punishment beyond normal statutory limits must be specified and proved to a jury beyond a reasonable doubt. Despite his fevered support for capital punishment, Scalia also joined a court majority in holding that the Constitution requires a death sentence to be decided by a jury, rather than by a judge, effectively setting aside every capital sentence still on direct appeal in five states.

more: http://select.nytimes.com/preview/2006/11/26/magazine/1154654860098.html?ei=5121&en=8533812b143679a5&ex=1164344400&pagewanted=all

[MrCoffee]

1. Read Nino's opinion in US v. Gonzales-Lopez and tell me he's pure evil

http://www.supremecourtus.gov/opinions/05pdf/05-352.pdf

then read Alito's dissent, in which he takes it upon himself to give Nino a lesson in how to look at the "intent of the framers"

i think this is gonna be an interesting Court.

[madmusic]

5. Will do, back in an hour or two.

Seriously. These are not usually fast reads, but they are fascinating. Not to mention, the SCOTUS is the foundation for everything everyone believes in here.

[MrCoffee]

8. It's a fantastic opinon protecting a criminal accused's right to counsel

it's truly quite expansive of the 6th Amendment. Scalia is vilified for his role in Bush v. Gore, which is unfair IMO.

Yes, he's a conservative justice. But he's also extremely consistent, which is about as good as you can hope for.

[madmusic]

7. Stumped in the second sentence! pro hac vice

Latin meaning "for this one particular occasion." The phrase usually refers to an out-of-state lawyer who has been granted special permission to participate in a particular case, even though the lawyer is not licensed to practice in the state where the case is being tried.

edit typo and legal dictionary: http://www.nolo.com/definition.cfm/Term/CCE07968-3D28-4411-9D7F5F37B7E51A58/alpha/P/

[Hobarticus]

9. Do you think the SCOTUS seat moderates judges?

I've read this, before, that when forced to consider the full scope of the law, they tend to broaden their ideological scope somewhat. Except in the case of Nino, naturally. But I wonder if there's hope for Alito and Roberts to swing left some.

[MrCoffee]

10. Not necessarily...Fat Tony's always going to be conservative

i think he's the best kind of conservative justice, in that he's extremely consistent in his conservatism. you pretty much know what to expect from Nino (unlike, say, Kennedy, who changes with the tides). ETA Kennedy is worthless as a Supreme (again, that's just my opinon).

Personally, i think the paisan gets a bad rap in here.

[madmusic]

11. Do you agree with the holding or the dissent?

I haven't read the majority opinion yet, but already disagree with Alito's dissent. Here is why, from p 9:

"By contrast, a defendant whose attorney was ineffective in the constitutional sense (i.e., “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment,” Strickland, 466 U. S., at 687) cannot obtain relief without showing prejudice."

Two wrongs make a right? (No pun intentionally intended.)

[MrCoffee]

12. the holding...i posted it to show Nino's "good side".

he's not the Antichrist he's portrayed to be in here sometimes.


i said sometimes.

[madmusic]

13. Do I understand this?

They "made a federal case out it" that went all the way to the SCOTUS because "Low had violated a court rule restricting the cross-examination of a witness to one counsel." Because Low passed a note to the other attorney.

So the judge barred Low because of that, and this precedent is the result. That's too funny, enforcement of the rule of law resulted in grand expansion of Constitutional rights.

On Antichrist issue, I don't think a lot of DUers care about cases like these, criminal cases, I mean. They don't see any connection to what matters to many of them: abortion and gay rights. So, "good side" or not, he's still the Antichrist. I could, and do, argue until blue in the face that there IS a strong connection - liberty is liberty, after all - but it's whistling in the wind.

[Boston Critic]

2. Thanks for posting that

Scalia is a rightwnger who pretends to favor "original intent" while pursuing his own agenda, but Turow is a lawyer and a gifted writer, and his essays makes some good points. I'd add that one of Scalia's closest friends on the court is Justice Ruth Ginsburg, one of "our" guys, so Turow may be onto something.

Remember that, in the end, Barry Goldwater turned out to be a man of principle that liberals could support on at least some issues, and not an bald opportunist like Bush/Cheney/Rove/Frist, etc. Perhaps -- *perhaps* -- there's some hope Scalia is of the same mold.

[madmusic]

6. Yes, the Bill of Rights is the Bill of Rights after all...

And it's not easy to stray too far from them without the bite of doubt, I don't think. Perhaps the SCOTUS has a sense of country and future that Fed. judges need not burden under as much. That might make a difference as well.

Hat tip to http://lawprofessors.typepad.com/crimprof_blog/">CrimProf Blog for the original link.

[Greeby]

3. I always wondered if Scalia would continue to support Shrub

Seeing as how Shrub passed him over for Chief Justice

[MrCoffee]

4. Scalia knew he wasn't getting the chair...

he's too old to go through the whole confirmation fight...they weren't going to go to the matresses for an old guy like him.