Saturday, February 13, 2016
Justice Antonin Scalia Dead
The Bear is saddened to learn of the passing of a giant of jurisprudence, Supreme Court Justice Antonin Scalia. He was an unapologetic Roman Catholic and conservative whom the left loved to hate.
We shall never again see the likes of Scalia's written court opinions. Erudite, compelling, witty, sometimes funny, and, in dissent, often scathing. The Bear is sure we will soon be seeing "best of" lists of his most entertaining writing.
Although he will be remembered as a conservative, his principled pragmatism sometimes made him an unexpected friend of the criminal defense bar.
In a line of sentencing cases beginning with Apprendi v. New Jersey (2000) and ending with United States v. Booker (2005), Scalia was with the majority that upended the notorious Federal Sentencing Guidelines. (The Bear can attest that that was an exciting and unsettled period in federal criminal practice!) The Supreme Court held that factors (other than prior convictions) that increased a sentence beyond the normal statutory range had to be proved to a jury beyond a reasonable doubt (or admitted by the defendant). Prior to Apprendi, judges could make those decisions.
For all practical purposes, that demolished federal sentencing (much to Sandra Day O'Connor's displeasure), as well as sentencing for states that used a similar scheme. In the end, the guidelines were simply made "advisory," but still, federal judges were unshackled to more easily depart from the guidelines and fashion appropriate sentences for individual defendants.
Many of Scalia's criminal defense decisions, rooted in the protections of the Constitution, are at odds with the caricature of him as a right-wing ideologue.
On the other hand, he was in favor of the death penalty, and said that if he thought his Church prohibited it he would have to resign his position.
The Bear would always read Scalia's opinion in a case first, not only because it was going to be the most entertaining, but because it was going to get to the constitutional heart of the matter.
There were rumors that Scalia belonged to Opus Dei. Members do not advertise that fact, but in any case it seems he was not.
We will never see another justice quite like Antonin Scalia. He will be missed, and not only because President Barack Obama will be appointing his replacement.
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