The late conservative Justice Antonin Scalia was known for dissenting opinions on social issues like abortion rights and gay marriage, remarking that he liked “to tell the majority to take a walk.”
But a dispute argued last week at the Supreme Court involving a criminal case Scalia wrote in 2015 offers a reminder of a counterintuitive part of Scalia’s legacy that favored defendants on trial.
It also points up the possibility that, depending on President-elect Donald Trump’s choice, Scalia’s successor could move the court further to the right on some criminal justice issues.
In a series of cases over his 30-year tenure, Scalia forged an unlikely coalition with liberal justices to demand more clarity in sentencing statutes and rein in the power of prosecutors and judges.
Such decisions arose from Scalia’s brand of “originalism” that looked to what the Constitution’s framers envisioned, for example, in the right to jury trial and a defendant’s opportunity to confront witnesses against him.
The 2015 Scalia decision at the center of the new case declared unconstitutional a vaguely worded provision of the Armed Career Criminal Act that boosted a repeat offender’s prison time by a minimum of 15 years.
The law’s loose definition of prior felonies that would prompt an enhanced sentence, Scalia said, denied defendants’ fair notice and invited arbitrary enforcement, leading judges to rely on “guesswork and intuition.”
The high court is considering how that ruling in Johnson v. United States applies to certain cases under a similarly worded federal sentencing provision. During oral arguments last week, a Department of Justice lawyer said the decision could affect thousands of federal prisoners.
Scalia’s regard for defendants’ rights did not extend across the board. He vigorously endorsed the death penalty and restrictions on prisoner appeals through a writ of habeas corpus.
Trump looking for justice in mold of Scalia
Trump has not revealed leading contenders for the open Scalia seat, but he told Fox News on Thursday that his list is “down to probably three or four” candidates. During the presidential campaign, Trump offered the names of 21 possible candidates.
The judges on the list are traditional conservatives with varying interest in the Scalia originalist method; while it is difficult to assess such tendencies in lower court judges, a few of Trump’s possibilities could be inclined toward Scalia’s approach on criminal cases, including Michigan Supreme Court Justice Joan Larsen, who was a law clerk to Scalia in the 1994-95 session.
Trump has said he wants a new justice in the mold of Scalia, highlighting positions that drew headlines, such as Scalia’s support for individual gun rights and opposition to abortion.
Leadership on defendants’ rights
Scalia, a 1986 appointee of Ronald Reagan, liked to tout his leadership on defendants’ rights at trial and in sentencing.
“When people ask me what opinions I’m most proud of,” Scalia once told me in an interview related to such criminal cases, “I say, well, opinions that count the most are majority opinions.” He singled out groundbreaking opinions that enhanced the ability of criminal defendants to challenge witnesses face-to-face in court.
Scalia also took the lead to require any element of a crime that increased a sentence, for example, that a weapon was used, be proved to a jury beyond a reasonable doubt and not simply determined by a judge.
As with the 2015 decision on the Armed Career Criminal Act, his rulings for the majority in those areas came only with the votes of liberal justices and after several years in dissent laying groundwork for his arguments.
The Johnson v. United States case was argued twice in the 2014-15 term, which turned out to be Scalia’s last full session. Initially, the justices focused on the individual claim of a Minnesota man who had pleaded guilty to being a felon in possession of a firearm. He said a prior conviction for possession of a short-barreled shotgun should not rank as a “violent felony” under the Armed Career Criminal Act’s sentence-enhancement mandate.
The justices then ordered a second set of oral arguments to address longstanding Scalia concerns over the “violent felony” definition tied to “conduct that presents a serious potential risk of physical injury to another.”
In the end, six of the nine justices found it unconstitutionally vague. Scalia noted in court’s opinion that the justices had repeatedly tried to interpret the phrase, with seemingly conflicting results.
“It has been said that the life of the law is experience,” he wrote. “Nine years’ experience trying to derive meaning from the … clause convinces us that we have embarked upon a failed enterprise. … Invoking so shapeless a provision to condemn someone to prison for 15 years to life does not comport with the Constitution’s guarantee of due process.”
Three of Scalia’s conservative brethren declined to sign the opinion. Justices Anthony Kennedy and Clarence Thomas concurred only in the judgment favoring Johnson, not Scalia’s rationale about the statute’s vagueness. Justice Samuel Alito fully dissented.
During arguments in the new case, Beckles v. United States, it was not clear where a majority stood on the reach of Johnson v. United States and whether it should apply retroactively certain to prisoners’ sentences.
But the new dynamic in the courtroom without Scalia was obvious. During the 2015 arguments over the constitutionality of sentencing law, he jumped into the give-and-take nearly 50 times in the hour-long session.
He had questions, to be sure, but much of the time Scalia was making his case.