Scalia v. Alito:
Today's decision with the most interesting lineup is undoubtedly United States v. Gonzales-Lopez. In this case, the court held, 5-4, that if a trial court erroneously deprives a criminal defendant of his choice of defense counsel, the defendant is entitled to a reversal of his conviction under the Sixth Amendment. Justice Scalia wrote the majority, for himself and Justices Stevens, Souter, Ginsburg, and Breyer. Justice Alito dissented, writing for himself, the Chief Justice, and Justices Kennedy and Thomas. The opinions are here.
Related Posts (on one page):
- Scalia v. Alito:
- Interesting Lineups:
Seriously, what makes this opinion even more interesting is Scalia's silent acquiescence in Washington v. Recuenco, also issued today, which holds that Blakely errors, unlike Gonzalez-Lopez errors, (both are Sixth Amendment errors) are not structural.
Side by side, these cases expose some of the serious conceptual difficulties with the application of the harmless error doctrine to constitutional violations. For example, Gonzalez-Lopez suggests that a touchstone for when harmless-error analysis applies is the difficulty of assessing the effect of the error. Since there's no way of knowing how the case would have been decided with a different defense lawyer, automatic reversal is appropriate. But why doesn't this reason apply equally to Blakely error, where a judge (rather than a jury) determines sentencing factors by a preponderance of the evidence, rather than beyond a reasonable doubt?
If it's appropriate to have appellate judges deciding what a jury would have decided had it been presented with a factual issue in the first place, why is never appropriate for appellate judges to determine what a judge or jury would have decided with a different defense lawyer on the case? In either scenario, some cases will require more speculation than others. It's not immediately clear to me why having the wrong lawyer interjects so much more uncertainty than having the wrong fact-finder that per se reversal is appropriate in the former situation but not the latter.
You raise an interesting point, and I'm hesitant to comment since I have not read either of the opinions. But, one apparent difference is that, on one hand appellate courts are permitted to decide how a jury would have found if presented with the same facts the trial judge heard, whereas, on the other hand, appellate courts are prevented from deciding in lieu of a jury because a different lawyer may have presented different facts.
A fair response, but might a lawyer not argue a case differently, and present different evidence, if s/he was arguing before a jury instead of a judge?
I'll let you in on another secret: Thomas isn't a Scalia clone either!
"But....But....I thought all conservative jurists were drones! I thought they all thought the same thing!" *eyeroll*
You quoted the setup but forgot the punchline.
I would speculate that prosecutors can affect the right to choice, so Gonzalez-Lopez encroaches on prosecutorial misconduct concerns (aside from the fact that judges can screw with right to choice, too); on the other hand, you don't want to give judges the ability to give criminals new trials at the sentencing stage. The trial is done. The guy was guilty. The question is how much punishment. He doesn't deserve a new trial. Maybe he deserves a new sentencing! What I find interesting is that Kennedy thinks there is a right to choose to engage in sodomy, but not a right to choose your own lawyer. I would think one has more foundation in the Constitution than the other.
Yeah, he is. In both Burlington and Gonzalez-Lopez, his opinions were off. But, I think it has to do with the age and partisanship of his clerks. If you recall, his clerks are very old partisan hands, and worked for Ashcroft and as general counsel for major corporations, so they have very set views.
Your point only has merit if you accept that there are no unenumerated rights in the Constitution, which is one view but not the only view, and if you take a very narrow view of equal protection.
If there are unenumerated rights-- and although I would agree that substantive due process is suspect, the Ninth Amendment certainly indicates there are unenumerated rights-- seems to me that the right of an adult to have sex with another adult of his or her choosing is about as obvious an unenumerated right as there is, because there is absolutely nothing other than bigotry animating the state's action in prohibiting it.
Similarly, if equal protection applies even rational basis review to a sodomy law, it should fall, because, again, such laws are motivated by nothing but bigotry.
I don't defend Kennedy in the counsel case, but conservative complaints about Lawrence v. Texas are vastly overblown. There simply isn't any legitimate state interest in throwing even one gay in jail for whom he or she chooses to have sex with.
The contention that homosexual sodomy was made illegal on the basis of pure bigotry is a fairly new one (since the 1960's), and is part of the political effort to shift the public's opinion about the issue. Sort of like airbrushing history in reverse. Instead of taking something out of the picture, you put something in it (or at least, highlight it in a way that is ahistorical).
Yes, our rights derive from the natural world and the human adult needs sex more often then not. The government can regulate a right, but must have very good reason to proscribe any reasonable expression by a citizen.
And so here we are. The essence of Scalia's approach was laid out in Crawford (where his views finally won out over the ad hoc fairness approach), and here he explicitly relies on his ultimate victory in the line of cases leading up to Crawford. From this latest opinion:
"[T]he Government’s argument in effect reads the Sixth Amendment as a more detailed version of the Due Process Clause—and then proceeds to give no effect to the details. It is true enough that the purpose of the rights set forth in that Amendment is to ensure a fair trial; but it does not follow that the rights can be disregarded so long as the trial is, on the whole, fair. What the Government urges upon us here is what was urged upon us (successfully, at one time, see Ohio v. Roberts, 448 U.S. 56 (1980)) with regard to the Sixth Amendment’s right of confrontation—a line of reasoning that 'abstracts from the right to its purposes, and then eliminates the right.' Maryland v. Craig, 497 U.S. 836, 862 (1990) (Scalia, J., dissenting). Since, it was argued, the purpose of the Confrontation Clause was to ensure the reliability of evidence, so long as the testimonial hearsay bore 'indicia of reliability,' the Confrontation Clause was not violated. See Roberts, supra, at 65–66. We rejected that argument (and our prior cases that had accepted it) in Crawford v. Washington, 541 U.S. 36 (2004), saying that the Confrontation Clause 'commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.' Id. at 61.
So also with the Sixth Amendment right to counsel of choice. It commands, not that a trial be fair, but that a particular guarantee of fairness be provided—to wit, that the accused be defended by the counsel he believes to be best. 'The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment, including the Counsel Clause.' Strickland, supra, at 684–685. In sum, the right at stake here is the right to counsel of choice, not the right to a fair trial; and that right was violated because the deprivation of counsel was erroneous. No additional showing of prejudice is required to make the violation 'complete.'"
So, Scalia views it simply as a matter of whether the Constitution was violated, not whether the result was an unfair trial. And Alito's dissent is equally indicative of his general approach. He writes in dissent:
"[L]imitations on the right to counsel of choice are tolerable because the focus of the right is the quality of the representation that the defendant receives, not the identity of the attorney who provides the representation. Limiting a defendant to those attorneys who are willing, available, and eligible to represent the defendant still leaves a defendant with a pool of attorneys to choose from—and, in most jurisdictions today, a large and diverse pool. Thus, these restrictions generally have no adverse effect on a defendant’s ability to secure the best assistance that the defendant’s circumstances permit.
Because the Sixth Amendment focuses on the quality of the assistance that counsel of choice would have provided, I would hold that the erroneous disqualification of counsel does not violate the Sixth Amendment unless the ruling diminishes the quality of assistance that the defendant would have otherwise received. This would not require a defendant to show that the second-choice attorney was constitutionally ineffective within the meaning of Strickland v. Washington, 466 U.S. 668 (1984). Rather, the defendant would be entitled to a new trial if the defendant could show 'an identifiable difference in the quality of representation between the disqualified counsel and the attorney who represents the defendant at trial.' Rodriguez v. Chandler, 382 F.3d 670, 675 (CA7 2004), cert. denied, 543 U.S. 1156 (2005)."
Alito then goes on in Part III of his dissent to focus on "the anomalous and unjustifiable consequences that follow from the majority’s two-part rule of error without prejudice followed by automatic reversal." In short, this is a clearly pragmatist opinion by Alito.
So, my prediction is that we will see a lot more of this split in criminal procedure cases to come. Of course, Scalia might join with Alito if their textualist/originalist and pragmatist approaches respectively happen to coincide in the same result. And Scalia might find himself in the dissent if one of the "liberal" criminal procedure pragmatists (I'm thinking of Breyer in particular, but Stevens and Souter too) join with Alito. But I fully expect that this will be an ongoing issue between Scalia and Alito.
Incidentally, I suspect that this same split could end up appearing in other power-of-government v. constitutional-constraint situations, including executive power and war power situations. Again, I expect Scalia to be more of a strict textualist/originalist, as he was in Hamdi, and Alito to be more of a pragmatist (with significant deference to the government).
What you call "traditional morality" WAS bigoted. People used to hate gays. We know that. Just like they used to hate blacks, and they used to hate interracial couples, and they used to hate Jews, and they used to hate atheists, and they used to hate working women. (In each case, some still do.)
The point is, group animus-- whether based on traditional morality or not-- is not a legitimate interest for anything. Longstanding irrational hatred isn't any more of a justification for something than recently-formed irrational hatred.
"Homosexual sodomy", as you call it (i.e., gays or lesbians making love), is also not in the same category as bigamy or adultery. It is true that traditional morality condemns those activities, but it is also true that there are state interests independent of traditional morality that support banning them, and furthermore, people aren't prejudiced against adulterers or polygamists to the same degree that some people hate gays and lesbians.
Medis:
I agree with you as far as you go, but I wouldn't sell Scalia short on pragmatism. He also argues, quite correctly, that it is impossible to determine whether someone is prejudiced from being denied his or her choice of counsel. Scalia can actually be a very good judge when he wants to be. Unfortunately, too often he either is caught up in his abstract principles or too busy betraying them to care.
I largely agree with your analysis, and kudos for predicting this Scalia/Alito "split."
Perhaps you can explain for me why, in light of everything you described in your last comment, Justice Scalia joined the majority in Washington v. Recuenco?
Recall that Justice Scalia's majority opinion in Blakely was full of grandiose language about the Sixth Amendment's right to jury trial, much as his Crawford opinion extolled the right to cross-examine witnesses. Further, Scalia's majority opinion in Sullivan had signalled to many courts and commentators that Blakely errors may not subject to harmless error analysis. Yet when that issue came around, Justice Scalia signed on to a short opinion by Justice Thomas which offers only a cursory analysis of the harmless-error issue (i.e, Neder, not Sullivan controls, so Blakely errors are not structural).
My question is this: from Justice Scalia's perspective, why should a violation of the 6th Amendment right to counsel of choice result in automatic reversal, while a violation of the 6th Amendment right to trial by jury applying the reasonable doubt standard to every fact essential to punishment is subject to harmless-error review?
Personally, I find the lack of a separate concurrence or dissent from Justice Scalia in Gonzalez-Lopez puzzling. I would think that Justice Scalia, who has championed these 6th Amendment issues, would be eager to explain why his vote in Recuenco is consistent with his larger 6th Amendment jurisprudence. It may be, but I'm having trouble reconciling Blakely/Recueco with Crawford/Gonzalez-Lopez. Any thoughts?
I agree that there is a different kind of pragmatism that appears in Scalia's Sixth Amendment opinions, but it is usually just to support his claims that the Framers did in fact have a purpose in mind. The difference, as I see it, is that Scalia argues against an "ad hoc" pragmatism, where judges would consider for themselves what criminal procedure rules would be fair and suitably balanced.
Neal R.,
It is hard to guess a Justice's thinking when he or she doesn't write, but here is my best effort.
First, Recuenco isn't an unalloyed defeat for Blakely fans. As Justice Kennedy points out, by holding that Neder controls, this decision reaffirms the Apprendi/Blakely principle that a mandatory sentencing factor is the exact same thing as an element of a crime.
Second, Justice Scalia did, of course, dissent from the relevant part of Neder. His dissent there was well in line with what I understand to be his Sixth Amendment views. For example, he wrote there:
"The recipe that has produced today’s ruling consists of one part self-esteem, one part panic, and one part pragmatism. . . .
And as for the ingredient of pragmatism (if the defendant is unquestionably guilty, why go through the trouble of trying him again?), it suffices to quote Blackstone once again:
'[H]owever convenient [intrusions on the jury right] may appear at first (as, doubtless, all arbitrary powers, well executed are the most convenient), yet, let it again be remembered, that delays and little inconveniences in the forms of justice are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern.' 4 Blackstone, Commentaries. See also Bollenbach v. United States, 326 U.S. 607, 615 (1946).
Formal requirements are often scorned when they stand in the way of expediency. This Court, however, has an obligation to take a longer view. I respectfully dissent."
Justice Scalia's Neder dissent was joined by RBG and Souter. But Stevens, while agreeing with the substance of this objection, concurred in the judgment on an implied finding theory, and also wrote: "My views on this central issue are thus close to those expressed by Justice Scalia, but I do not join his dissenting opinion because it is internally inconsistent and its passion is misdirected."
But the reason why Neder's holding on this issue is binding is that Justice Breyer (the most "pragmatic" of the "liberal" Justices when it comes to criminal procedure) voted with the majority, making it 5-4 against Scalia, RBG, Souter, and Stevens.
So, Justices Scalia and Souter (who also joined in Recuenco) may just see Neder as water under the bridge, particularly insofar as Breyer is not inclined to switch his vote. But by joining along with Thomas, they may have preserved what is otherwise a pro-Blakely decision. In contrast, a 5-4 decision (with only Thomas from the Blakely majority in the 5) might have been written differently.
Indeed, in that sense I find it quite significant that Roberts and Alito joined what is otherwise a pro-Blakely opinion. And again, the significance was not lost on Justice Kennedy, a Blakely dissenter--but notably Roberts and Alito did not join his concurrence.
So, in this case Justice Scalia may rightly think that although he has again lost the same immediate "battle" (meaning the Court didn't reverse Neder's holding), he actually gained ground for the Blakely coalition in the broader "war" over the Sixth Amendment.
Thanks. That's a very interesting analysis.
If I understand you correctly, you suspect that (1) although Justice Scalia would prefer to overrule Neder rather than apply it, he realizes he does not have the votes to do so, (2) Justice Scalia either did not think Recuenco could be distinguished from Neder or determined for decidedly pragmatic reasons that it would be better for him not to do so in a separate dissent or concurrence, and (3) Justice Scalia may be looking ahead to the next battleground -- determining whether Ring/Apprendi/Blakely require sentencing factors to be alleged in an indictment -- and therefore have made a purely strategic decision to sign on to a holding he disagrees with in order to stake out a position on this, more important, issue.
Does this capture your thinking? (You don't come right out and say number 3, but I assume that's what you mean when you say that Recuenco is "not an unalloyed defeat for Blakely fans." Please correct me if I'm wrong.)
Personally, I think Justice Scalia would have no difficulty distinguishing Neder and holding that Blakely errors are structural. I also think that such a position would be a more natural extension of his personal jurisprudence, if not the institutional jurisprudence of the Court. I also doubt that he would be quite so strategic in his maneuvering as you imply. Justice Scalia has demonstrated time and again that he has the courage (if not outright arrogance) of his convictions. If he thought Blakely errors should be reviewed for harmlessness, I would expect him to say so, one way or another.
So I am still scratching my head over this one. My best guess at this point is that even though Scalia detests Neder, he believes that, for some other reason, Blakely errors should be subject to harmless-error review, and that there is no point fighting over the rationale at this time. But that's not a very satisfying explanation.
Finally, a correction to my previous comment: I meant that the absence of a Scalia dissent or concurrence to Recuenco was puzzling.
That is close to my reasoning, but I would modify your summary just a bit. In the area of your (2), it is not so much that Justice Scalia could not distinguish Neder--it is that he doesn't WANT to distinguish Neder. In other words, by not distinguishing Neder, Thomas et al just reconfirmed a key holding in Apprendi and Blakely (and got Alito and Roberts to sign on).
And so I would modify your (3) as well. Justice Scalia would not have to agree with Neder in order to agree with Thomas's opinion in Recuenco, just as Kennedy does not have to agree with Apprendi and Blakely in order to agree with the same opinion. Rather, they can both believe that the validity of the prior cases they don't like is not an issue in the case before them, and then ask simply whether Thomas correctly applied those cases.
As for whether Justice Scalia would be this strategic in his thinking--who knows? But I doubt it would be the first time for him.
And of course, it is true that he isn't shy about making his feelings known when he sees fit. But usually that comes in a context where he is in dissent across the board, or he is addressing an issue largely unrelated to the merits of the particular case (such as his frequent concurrences to object to the use of legislative history). Here, I am suggesting that he (and Souter) had something to gain by signing onto Thomas's opinion, and maybe that was worth not picking a futile battle in this case.
I actually think that my theory makes more sense than the theory that he has some other reason to think that Blakely errors should be subject to harmless error. For one thing, that alternative theory also doesn't explain why he wouldn't write a concurrence to that effect. For another, that conclusion probably would be at odds with his general approach to these issues (although we can't know without knowing these hypothetical other reasons).
In that sense, my theory has the virtue of at least explaining how he could be trading off making a futile gesture with respect to one issue in favor of getting a favorable holding on another, perhaps more important, issue. This alternative theory just has him being inexplicably inconsistent in his reasoning, and then signing onto an opinion that does not even reflect this thinking except as to the judgment.
Your explanation certainly has its advantages, but it doesn't square with my general sense of Justice Scalia's judicial temperment and seems a bit speculative. Then again, my idea is admittedly more of a shrug than an explanation, so I commend you for going out on a limb.
At least we're in agreement that there's something awfully strange about Scalia's signing onto the Recuenco majority, especially in light of his Gonzalez-Lopez opinion. See my original comment.
Thanks for the interesting exchange.
Indeed, it was interesting. And for what it is worth, as you observed there is definitely a tension here (particularly in light of Scalia's prior opinion in Neder), and I freely admit that I am just speculating about how to resolve that tension. But we may get more data points soon--Blakely/Booker issues abound, and I assume that the Court will be taking cases on the subject for quite a while.
I am sure this is an nothing more than an exercise in cyber-penmanship, but here goes:
I have no idea whether or not traditional morality is simply equivalent to bigotry, but that seems an awfully self-serving hypothesis. My only point was that "sexual freedom" was most certainly not a clear example of an unenumerated right in the Constitution. There are many examples (from day 1) of the state intruding into the private sexual habits of citizens, and the vast majority of these intrusions did not involve homosexuals. From adultery to abortion, the state traditionally sought to regulate the sexual conduct of individuals.
Now, the notion that there is something special about homosexual attraction that makes it distinct from various forms of forbidden hetrosexual attraction is simply incoherent. In fact, homosexual attraction, per say, has never been illegal. What has been forbidden is the behavior of "homosexual sodomy," hence, my use of the term. Take your complaints about that up with the legal profession. Equally true, lusting after my neighbors wife has never been illegal, just the behavior of consummating that lust, or the behavior of marrying her. My point-- "behaviors" are made illegal, not internal states; not the internal status of being a homosexual, nor that of being an adulterer in one's heart. There is zero, zip, nada difference between getting punished for "homosexual sodomy," "oral sodomy," or "bigamy." The bigamist loves his third wife just as much as the lesbian loves her partner. I defy you to prove otherwise.
As for the prejudice experienced by these various sexual adventurers... well, I know of no valid way to begin to compare them. Do you? I live in western state that has small numbers of fundamentalist Mormons living quietly out in the boondocks. Some of these Mormon sects believe in bigamy as a religious imperative. Recently, a 50ish year old man with 5 wives (ranging in age from their mid-twenties to their mid-50's) was sentenced to 27 years in prison for some innumerable counts of bigamy. 27 years! Which for a man of his age may very well be a life sentence. When was the last time a homosexual man was sentenced to 27 years for "sodomy?" Mind you, this occurred in 2005, not 1805. Strangely, none of the women involved were charged with anything. In fact, they were generally portrayed in favorable, "victim status" by the press. Were they not just as much bigamists as the man? I guess not.
For the purposes of this case, the generally feminist-friendly press was willing to assign these women the status of helpless children. For the purposes of this case, the generally "free love" friendly gay community was willing to let this guy rot in his cell. Afterall, he was Mormon, no? Who really cares about them?
The behavior of gay men or lesbians making love to someone of the same sex was criminalized. The term "homosexual sodomy" is used by people who can't bring themselves to write that first sentence because it treats gays and lesbians like human beings.
With respect to the fact that sodomy laws existed for so long, that doesn't answer my point, which is lots of bigoted laws existed a long time. That doesn't mean they have pass the rational basis test. And these laws are not similar to laws outlawing Mormon polygamy-- as I stated before, there are legitimate state interests in preventing people from marrying multiple people, including reducing the spread of STD's, preventing fraud against spouses and also against the government, making marital estates easy to handle, etc. Polygamy laws prevent you from marrying two people; sodomy laws throw gays in jail for having relations with ANYONE they are attracted to. (And your statement that there is no difference between a bigamist being prohibited from "loving" multiple people and a gay or lesbian loving a single person is completely offensive.)
(And saying the laws were not enforced cuts IN FAVOR of Lawrenece v. Texas. If you aren't going to enforce the law, that's almost a concession that the law doesn't have a legitimate purpose. The only reason such laws remained on the books was to stigmatize gays and lesbians.)
As for the rest of your post, I realize that a lot of conservatives tell themselves a bunch of comforting falsehoods about how anti-gay prejudice really isn't that widespread or virulent, or how other groups of people suffer much more, but in the real world, a substantial number of Americans still HATE gays. They call them deviants, they use the three letter epithet that begins with the letter "f", they beat up and encourage their children to beat up suspected "sissies" and "queers", they rail against how gays are going to supposedly convert our children to their lifestyle on the radio (I have personally heard this), and occasionally, they kill them (e.g., Matthew Shepherd).
In that real world, Justice Kennedy properly recognized that there was no good reason at all to even threaten gays and lesbians with jail time for the horrible crime of making love to someone they are attracted to.
I can see that we are going to have to agree to disagree about this one. I just happen to disagree completely with you about the notion that homosexual attraction is somehow different (and therefore should be uniquely privileged) when compared to various forms of forbidden hetrosexual attraction. I am married. Therefore, I am forbidden by adultery laws from consumating my love for any other woman in the universe who is not my wife. All of them!; everywhere!, at everytime!; no matter how deep and spiritual my love may be. And if my wife decides not to have sex with me? I 'm pretty much stuck being celibate for the remainder of my life. How in heaven's name can anyone claim that the state has a legitimate interest in such an intimate area of my life? Or that my deprivations under such a system are automatically of a lesser sort than those imposed upon homosexuals? It seems altogether pointless and un-necessary to insist upon such a claim.
Historically, the good people of the US believed that it was a legitimate interest of the State to maintain the "moral fiber" of our society. Prostitution laws, adultery laws, bigamy laws, and sodomy laws (like "oral sodomy" laws that forbade me from going down on my wife) were all meant to enforce a kind of moral orthodoxy vis-a-vis sex. I disagree with the legitimacy of this entire enterprise. I don't see it as "bigotry," so much as the age old desire of the self-righteous to enforce their notions of right and wrong on all of us. Sadly, our founding fathers were emphatically NOT in agreement with me, which is why we had "moral fiber" laws on the books in all 50 states for the first 200 years of our history.
Along those same lines, I can't for the life of me imagine why you would consider it "offensive" to assert that a bigamist could very well love his third wife more than a lesbian loves her one and only lover. Honestly, why would that be "offensive"? I freely admit that it is possible that the incarcerated, five-wives bigamist loved ALL of his wives more than I love my one and only. See? I'm not offended. I think you're being a bit of a moral prude, dude.