Scalia Shoots, Scalia Scores

[Stephen Maturin]

I have precious little good to say about Supreme Court Justice Antonin Scalia. In the interest of giving credit where credit's due, though, let's take a quick look at a couple of his opinions from late in the recently-concluded Supreme Court term.

First, Scalia pecker-slapped the Bush administration good and hard in his dissenting opinion in Hamdi v. Rumsfeld. Hamdi was the case involving an American citizen captured in Afghanistan, designated an "enemy combatant" and imprisoned in the U.S. for over two years without being charged or afforded a hearing.

A plurality of four Justices bought the government's ludicrous argument that Congress expressly authorized the detention of "enemy combatants" under certain circumstances, but decided that "due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker." Two other Justices couldn't swallow the authorized detention argument, but concurred in the judgment so that the Court could issue a majority ruling. The Court did not say what qualifies as a "meaningful opportunity" or a "neutral decisionmaker."

Scalia wasn't having any of it. His position is clear and, IMO, entirely accurate: Hamdi's an American citizen. Absent a constitutionally proper Congressional suspension of the writ of habeas corpus under Art. I, sec. 9, cl. 2 of the Constitution, the government has to charge him with a crime or let him go. Scalia's opinion is a masterpiece from beginning to end.[1]

Second, Scalia delivered the opinion for a 5-4 majority in Blakely v. Washington. There, a criminal defendant plead guilty to second degree kidnapping, an offense that warrants a prison sentence of 49 to 53 months under Washington law. However, the trial judge imposed a sentence of 90 months based on his finding that the defendant acted with "deliberate cruelty." That finding allowed the judge to impose additional time under the Washington's sentencing scheme.

"Bullshit," said Scalia. The Sixth Amendment, which affords a right to a jury trial in criminal cases, requires that the facts supporting an enhanced sentence must be either admitted by the defendant or found by a jury.

Federal courts all over the country are now scrambling to figure out what effect Blakely has on the Federal Sentencing Guidelines, which are a whole lot more onerous than the Washington scheme. Scalia has managed to call into question the validity of thousands upon thousands of criminal sentences at both the state and federal levels. That's a ballsy move any way you slice it.

Praising Scalia makes me feel unclean all the way to the marrow. Looks like I'll be spending the rest of the day in the shower. I only hope that the water heater is up to the job.

[1] By way of contrast, check out Thomas's dissent. Thomas basically says that the president can do whatever he goddamn jolly well pleases during times of war.

[viscousmemories]

I honestly don't remember ever hearing the name Hamdi. Is he not as white as Lindh or something? At any rate that's a nice dissent. Didn't the government hold Kevin Mitnick for a few years without charging him with a crime? Or was that just hacker hype?

[D. Scarlatti]

Originally Posted by Stephen Maturin

Thomas basically says that the president can do whatever he goddamn jolly well pleases during times of war.

I haven't read this yet, and this may be a superfluous comment without having done so, but, um ... we're not at war, constitutionally speaking. And I don't quite get how the War Powers Resolution fully confers Congress' war declaring power on the executive. If the war declaring power of the executive thus conferred is equal to that of Congress', isn't that an unconstitutional delegation of the legislature's power? I realize I'm not the first person to raise this question. Maybe you have a citation or two, Counsellor?

[livius drusus]

This isn't the first time you've praised Scalia either, if memory serves. Didn't you find him a rather disarmingly good public speaker?

[Clutch Munny]

Isn't it horrifying that we're surprised when the so-called smartest SC justice writes something that isn't utter bullshit?

This rantlet merely being an excuse to deploy the smilie heaven-sent (Archangel Livius) for a thread of this title:

[livius drusus]

Originally Posted by Clutch Munny

Isn't it horrifying that we're surprised when the so-called smartest SC justice writes something that isn't utter bullshit?

Or even more surprised when the dumbest SC justice doesn't agree with him? This is the first time I've ever seen Thomas unglued from Scalia's leg, and given what this moment of individuality produced, I really think it's best for the country that Thomas remain the lickspittle clone he has been since his appointment.

This rantlet merely being an excuse to deploy the smilie heaven-sent (Archangel Livius) for a thread of this title:

All for you, baby. Speaking of which, I think you have a bone to pick with Maturin.

[viscousmemories]

Who is this Maturin guy anyway? Notice how he posted a contentious thread topic then disappeared? Troll, maybe? Hm?

[D. Scarlatti]

I heard he's not even a lawyer, but that he runs the Scrambler with a travelling carnival.

[livius drusus]

Why would he lie about that? I mean, I don't remember anyone ever saying "The first thing we do, let's kill all the carnies."

[Stephen Maturin]

Originally Posted by D. Scarlatti

* * * um ... we're not at war, constitutionally speaking.

Absolutely correct, D., but that little detail is of no consequence whatsoever in the strange little world of Clarence "High Tech Lynching" Thomas.

Originally Posted by D. Scarlatti

And I don't quite get how the War Powers Resolution fully confers Congress' war declaring power on the executive. If the war declaring power of the executive thus conferred is equal to that of Congress', isn't that an unconstitutional delegation of the legislature's power?

Near as I can tell, the War Powers Resolution wasn't about delegating the war declaration power at all. All too often, the Supreme Court has responded to perceived national emergencies in an irresponsible, kneejerk manner by giving the president's commander-in-chief and foreign relations powers frighteningly expansive readings. Thomas' dissent is laden with citations to such cases. Passed toward the tail end of the Vietnam debacle, the WPR was Congress' attempt to limit the president's ability to send American troops into combat absent "(1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces."

Originally Posted by D. Scarlatti

I realize I'm not the first person to raise this question. Maybe you have a citation or two, Counsellor?

AFAIK, ain't no case citations to be had. No president has the stones to ignore the WPR completely and no Congress has the stones to insist on strict compliance. The scholarly commentary is all over the place.

Originally Posted by livius drusus

This isn't the first time you've praised Scalia either, if memory serves. Didn't you find him a rather disarmingly good public speaker?

Your memory serves pretty damn well, liv. Scalia's downright charming in person. I've had the good fortune of meeting three members of the current Supreme Court, and Scalia is by far the most personally likeable of the three. That makes him all the more dangerous.

Originally Posted by livius drusus

This is the first time I've ever seen Thomas unglued from Scalia's leg, and given what this moment of individuality produced, I really think it's best for the country that Thomas remain the lickspittle clone he has been since his appointment.

Boy howdy. Thomas is finally starting to grow a teeny, tiny brain of his own and this is what he does with it. Jesus.

But this the-president-can-do-anything-he-wants crapola sounds downright sane compared to the utter lunacy Thomas is cooking up for Establishment Clause jurisprudence. Check out his concurring opinion in the recently decided Pledge of Allegiance case. Thomas seems to think that the Establishment Clause was written solely to protect state establishments of religion from federal interference. Thus, the EC shouldn't be viewed as binding on the states.

So far, Thomas stands alone in making such pronouncements, kinda like the crazy guy standing on the corner hollering about how green lizard people from Jupiter are trying to steal his shoes. However, the next president might get to make as many as four Supreme Court appointments. If the prospect of four more Thomases and/or Scalias on the Court isn't enough to make you vote Kerry, then there's no such thing as enough.

Originally Posted by D. Scarlatti

I heard he's not even a lawyer, but that he runs the Scrambler with a travelling carnival.

T'would that it were true! I'm still doing work for my ex-boss on a freelance basis. I've been up to my ass in alligators on one particular case since February. Got about this ---><--- close to heading back to Ohio for what promised to be a month-long trial. Fortunately enough, he settled the case last Friday. I'm getting too old for that shit.

How did 2L treat you?

[Stephen Maturin]

Originally Posted by viscousmemories

Who is this Maturin guy anyway? Notice how he posted a contentious thread topic then disappeared?

Aw, come on, Tom. If this qualifies as a contentious thread topic, then things are gonna be mighty quiet up in here.

[Cool Hand]

I posted this on another forum, but thought I might share it here anyway, if anyone cares (sorry, it's a little long):

I sat down at lunch yesterday with one of our circuit court judges and asked him if he had had any criminal jury trials since Blakely was issued. At first he looked at me funny, not realizing what Blakely was (it's so new, it hasn't quite spread throughout the legal community with the speed with which one might expect). I then told him about it and my understanding of its ramifications.

We thought about it a bit and discussed in which contexts it might apply. We agreed that it would have the greatest application in federal cases, but in state court cases any time the state seeks a sentencing enhancement, now a jury must make the factual findings to support the enhancement beyond a reasonable doubt, rather than the judge making them at sentencing by a preponderance of the evidence.

The judge asked me to give him some examples of when it might apply. I suggested in felony DUI cases, in which the jury cannot be told of the defendants' prior DUI cases during the case in chief, and in Habitual Felony Offender Act cases (our version of the "three strikes" laws many states have), and cases in which a gun is used within 3 miles of a school (which is everywhere in our city and county). He agreed, and I suggested that he would just keep the jury immediately after the verdict of guilty, and then allow the state to present evidence of its facts to support enhancement. Of course, the defense would be allowed to attack that evidence, and present its own. The jury would then have to make findings of fact with regard to those facts which might impact enhancement of the punishment beyond a reasonable doubt. He agreed that that is probably how he will handle such cases. At least I got him thinking about it, and he is the presiding judge in our circuit.

It would be a sort of bifurcated trial. Certainly, not every case would be affected. The state would have to give prior notice of its intent to seek enhancement, which in most cases it has to do anyway.

A prosecutor I spoke with later in the day (who also knew nothing about Blakely) said he thought (but I disagree with him) that the jury could be given a special verdict form for guilty or not guilty, and then with a separate set of questions for whether the state had proven relevant facts to support sentence enhancement. This would mean the jury would hear of prior convictions of a defendant during the case in chief, and would almost certainly taint their decisions on guilt or innocence in the case at bar.

The judge still sets a sentencing hearing for a later date, and still gets a presentence report conducted by the probation office. At least that's what the judge and I concluded. He would be bound by the jury's findings as to the facts which may be used for sentence enhancement. Therefore, if the jury determined that some of the facts were not proven beyond a reasonable doubt, then the judge could not use them to enhance the sentence beyond the sentence allowed by the statutory range for that particular offense (Enhancement is allowed by separated statutes, so cases in which it applies, an enhanced sentence is still allowed by law--they are not cases in which judges sentence defendants arbitrarily and capriciously. In any case in which the defendant is found guilty, he may appeal the sentence, unless he waives that right in a plea agreement, and even then, he may appeal it if the sentence imposed is beyond the maximum allowed by law).

It remains to be seen how this will truly impact cases. It's too new and untested to really know.

Cool Hand

[livius drusus]

Wow. Great opening post, Cool Hand. Welcome to memberdom.

[Cool Hand]

Thanks, liv.

Cool Hand