JUDGING CRIMES

You usually know when Justice Scalia is being funny.  He's one of those writers with the ability to laugh at his own jokes in print.  And his jokes are sometimes actually funny, although perhaps not quite as funny as he thinks them.  At the Supreme Court seminar I attended last December (see post 204) we were solemnly instructed always to laugh at the justices' jokes and never, ever to top them. 

(Can you imagine how excruciating it must be if Justice Ginsburg attempts a joke during your oral argument?  As if you didn't have enough to be anxious about, now you have to worry she might accurately evaluate the sincerity of your laughter.)

So I'm inclined to think Scalia wasn't trying to be funny a couple weeks back when he wrote this in a dissent:

The problem with the Court’s approach to determining which crimes fit within the residual provision is that it is almost entirely ad hoc. This crime, the Court says, does “involv[e] conduct that presents a serious potential risk of physical injury to another.” That gets this case off our docket, sure enough. But it utterly fails to do what this Court is supposed to do: provide guidance concrete enough to ensure that the [statute in question] will be applied with an acceptable degree of consistency by the hundreds of district judges that impose sentences every day.

This, mind you, from the same justice who wrote Crawford, announcing that whether hearsay violated the confrontation clause depended almost entirely on whether it was "testimonial", but "[left] for another day any effort to spell out a comprehensive definition of 'testimonial.'"  He did, it's true, add that statements made in response to police interrogations are always testimonial - but two years later he retracted that.  (See post 155.)  So Scalia started us off with an inadequate definition, and then took back part of it. 

So has Crawford "provide[d] guidance concrete enough to ensure that the [confrontation clause] will be applied with an acceptable degree of consistency" around the country?  As part of a research project I'm doing for the National Center for the Prosecution of Child Abuse, I've taken on the task of reading every new opinion construing Crawford - it averages about four every workday.  

There are, as of this evening, 3,911 cases in Westlaw trying to make sense of Crawford - a three-year-old precedent.  The number will be higher tomorrow at this time.  The decisions keep pouring out because no one really knows what Justice Scalia was trying to say.   They contradict each other on almost literally every point it's possible to disagree on, including several that I would have thought were beyond the capacity even of lawyers to find opposite sides to take.

(UPDATE: If you think that's too harsh, read this post on the Confrontation Blog, maintained by one of the Founding Fathers of the sixth amendment SP 2.  Tell me if you detect any concrete guidance there.  A belief that juries exist to be manipulated rather than informed, sure.  Paradoxical faith in judges even as they continue to disappoint the writer, no doubt.  Nostalgia for the day when Papa could whip his child without busybodies interfering, probably not consciously.  But concrete guidance??)

Then there's Scalia's opinion in Blakely, which inspired The Atlantic's Benjamin Wittes to write:

In the incoherence of its principle, the awesome scope of its impact, and its sheer contempt for so many different institutions in American life, Blakely stands out as the single most irresponsible decision in the modern history of the Supreme Court.

In Blakely, Justice Scalia went overboard with the italics (really, subtlety isn't his strong suit) to tell us that a convicted criminal's sentence may not exceed "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant."  Reading this, it's easy to fall into the trap of thinking that "solely" means something along the lines of "solely." 

Just a few paragraphs later, though, Justice Scalia tried to warn us against jumping to that conclusion: "Of course indeterminate [sentencing] schemes involve judicial factfinding, in that a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion."  And that's hunky-dory.  The principle is clear, isn't it?  Factfinding by a judge is absolute verboten except when - "of course" - it's not. 

Justice Alito recently pointed out the way in which Blakely is like a personal ad: its self-description bears little resemblance to its reality.  (Although Alito didn't make that comparison explicitly, he got the point across.  Look at part III of his dissent here, beginning in the 7th paragraph.)

Westlaw counts 14,001 cases citing to Blakely.  You don't get those kind of numbers if you provide concrete guidance.  When people can figure out what you mean, 14,000 judges and 28,000 lawyers don't have any darkness to make stabs in.

Finally, look who joined that joker Scalia's dissent complaining that the Court's decision "is almost entirely ad hoc".  Why, bless my soul if it isn't Justice Ginsburg! - the author of the Cunningham opinion that struck down California's sentencing scheme based on - well, it's kind of difficult to say what her opinion is based on.  (See post 230.)   "Ad hoc" might be a little too formal to describe Justice Ginsburg's approach in Cunningham.  Ipse dixit, maybe?

There's an explanation for Scalia's and Ginsburg's hypocrisy - indeed, for why they wouldn't consider it hypocrisy at all, if someone had the inconceivable temerity to suggest as much to them.  The inspired new comic strip Retail - well, the name's not inspired - provided the explanation in a recent strip.  Company-man manager Stuart wonders how to persuade customers to buy more service plans.  Marla, our straining-to-remain-uncynical heroine, suggests that the store could start honoring the plans.  "Don't be naive, Marla," Stuart replies impatiently.  "We have to convince people with words, not actions." 

(The syndicate doesn't permit a link to the strip, since, after all, it's more important to control royalties than to develop readership.)

I'm not suggesting either Scalia or Ginsburg is capable of that much insight, much less that much candor, but their conception of words as the cheaper alternative to action is right in line with Stuart's.  Words are tools for getting what you want.  They have no other purpose, and therefore no other meaning.