55. Scalia as a part-time liberal
All in all, you have to admire the sheer animal vitality of the liberal death-wish. How else to explain the eagerness to embrace Justice Scalia as a part-time liberal every time he rules in favor of a criminal defendant? The admirable Professor Berman over at Sentencing Law and Policy writes: "from the perspective of a criminal defendant, a Supreme Court filled with justices like Antonin Scalia would not always be so bad because Justice Scalia's constitutional vision sometimes leads him to liberal results".
People tend not to believe me when I say that Justices Scalia and Thomas consistently vote against the prosecution. They don't believe me because they know Scalia's and Thomas's votes in death penalty cases are as predictable as Brennan's and Marshall's once were. But death is, in fact, different. It's a hot-button issue and Scalia and Thomas seem content to let conservative politics, or their outrage at liberal judicial politics, decide the cases for them. Set aside the capital cases and a different story emerges.
To take just a few from many examples, Scalia wrote and Thomas joined the opinions banning the introduction into evidence of co-defendants' statements in Crawford and classifying thermo-imaging as a fourth amendment search in Kyllo (the logic of which causes some head-scratching here); Thomas invited a future constitutional challenge to sobriety checkpoints, expressing his view that they violate the fourth amendment in Indianapolis v. Edmond; Thomas and Scalia voted together to overturn murder and rape convictions as violating the ex post facto clause in Rogers v. Tennessee and Carmell v. Texas; they both voted to extend the fifth amendment privilege to documents as well as testimony in United States v. Hubbell, seeking to revive a 19th-century view that would forever eliminate the entire category of white collar crime. These are not the decisions of gung-ho, lock-'em-up types.
Now it's possible, I suppose, that both Thomas and Scalia are part-time liberals. Or maybe they're just politically unformed, drifting from position to position with no fixed landmarks to guide them. Perhaps Justice Thomas has forgotten all about his confirmation hearing and bears no grudge against his tormentors.
But I think it's far more likely that their positions are consistently conservative. That is, "anti-prosecution" and "conservative" aren't antonyms. "Pro-defendant" and "liberal" aren't synonyms.
"Liberal" is the word some liberals use to describe these decisions by Thomas and Scalia. The words I would use are "libertarian" or "formalistic" or "weirdly devoted to the project of returning American criminal procedure to its condition in the early 19th century." (And if you don't believe I'm serious about that last, check out the first two footnotes of the Thomas concurrence in this case.)
Monday, January 23, 2006 at 11:40PM in Liberal/Conservative
Reader Comments (2)
Ultimately, it is not the label that interests me, but the result. Call their jurisprudence whatever you want, I think it is important for everyone to recognize that, as your list highlights, Scalia and Thomas are often far more willing to limit state power in the criminal justice area than other justices. Thus, if Roberts and Alito follow in their path in this area (which I actually doubt) we could get some important turns in criminal justice jurisprudence.
I've long thought the big split among conservatives, the opening for the thin edge of a wedge issue, is between libertarians and authoritarians. Scalia generally hangs out in the former category (death penalty cases are a big exception), but I agree with you that we're more likely to find Justice Alito in the latter. I guess we'll see.
But to return to the main point, judicial rulings like the ones I list aren't limitations on state power - they're exercises in state power. It's just that the power is being exercised by the judiciary rather than the executive or legislature.