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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Tuesday, February 16, 2016

Justice Scalia's Constitutional Legacy

The stunning news swept the country over the weekend; the longest-serving SCOTUS justice on the current bench, Antonin Scalia, died suddenly in Texas at age 79. His death leaves a vacancy on the bench of the High Court that is sure to create political tensions in this, a highly contentious election year.

Justice Scalia was appointed to the Supreme Court by President Ronald Reagan in 1986 and was unanimously confirmed by a U.S. Senate vote of 98-0. Whoever is nominated by President Obama will not have it so easy with Republican members of the Senate vowing to block any appointment until after the election.

A conservative justice, Scalia disdained consideration of legislative commentary about the meaning and purpose of a particular law. He focused instead on the original intent and meaning of the U.S. Constitution, as ratified by its drafters; the so-called Founding Fathers.

An unusual paradox of Scalia's constitutional originalist philosophy was its effect on matters involving criminal defendants. Justice Scalia was consistent in his judicial philosophy, studying each case before the SCOTUS, with great regard for the text of the specific clause or amendment at issue.

In the cases of the Sixth Amendment confrontation clause and the Fifth Amendment right to a fair trial at the sentencing phase, citizens accused of serious crimes benefited from Scalia's originalist approach.

We here at the Law Blogger took advantage, for example, of Scalia's majority opinion in Crawford v Washington, a Sixth Amendment confrontation clause case, when the Washtenaw County Prosecutor convicted one of our clients based, in part, on a DNA analysis that featured testimony from only one of the 3 lab technicians that prepared the report. Scalia's majority opinion was very useful in the ultimate habeas corpus petition filed in the United States District Court for the Eastern District of Michigan.

Another example of Scalia's handiwork in the realm of the constitutional rights of the accused is his dissent in the 2000 case of Apprendi v New Jersey, which ripened into a majority opinion 4-years later in Blakely v Washington, holding that a judge cannot fashion a sentence based on facts that were not proved beyond a reasonable doubt by evidence submitted at a trial. This decision played a part in scraping the federal sentencing guidelines and, more recently, the Michigan sentencing guidelines. Now, facts that give rise to a punishment are either assented to by the convicted defendant, or determined by a jury beyond a reasonable doubt; they can no-longer spring from the pages of a probation intake officer's report.

Neither Scalia's Sixth Amendment confrontation clause opinions, nor his Fifth Amendment sentencing decisions are pro-conservative. Yet, they are consistent with his originalist theory of constitutional law; and they are necessary for a truly free society.

So now what? President Obama has vowed to do his duty as President and make an appointment to fill the vacancy under Article II, section 2 of the U.S. Constitution. The Constitution also provides, however, for such an appointment to receive confirmation by the Senate.

This is an election year and at least one of Justice Scalia's former law clerks, Ted Cruz, is running for the Republican nomination for President. Senator Cruz has remarked about an informal unwritten convention in American politics that a sitting but "lame duck" President does not get to have his SCOTUS nomination confirmed.

In the 20th Century alone, there were six justices appointed and confirmed during a sitting president's last year in office before an election: Justice Anthony Kennedy in 1986; Michigan's Justice Frank Murphy in 1940; Justice Benjamin Cardozo in 1932; Justices Louis Brandeis and John Clarke both in 1916; and Justice Mahlon Pitney in 1911. Therefore, we here at the Law Blogger have to wonder what Senator Cruz is talking about.

Post #524

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