[Orin Kerr, October 15, 2008 at 2:16pm] Trackbacks
Who is Justice X?:
[Oops -- I misread an oral argument transcript and based a post on it. Um, never mind; thanks to commenter Chris 24601 for pointing out the misreading.]
MPGA (mail):
Doesn't Scalia claim to be a textualist instead of an originalist?
10.15.2008 3:28pm
Chris 24601 (mail) (www):
I don't think Scalia's saying that history of judge-determined sentencing is irrelevant as such, or as a general interpretive matter; he's saying it's irrelevant, because the sentencing factors weren't binding. That's why he stresses "once you try to narrow it by law" and "when you constrain the judge."
10.15.2008 3:43pm
OrinKerr:
Chris,

Ack, I think you're right. I think I'm being biased by a conversation I once had with this particular Justice about one of his decisions in this line of cases -- you're right, he's making a different point. Let me change the post.
10.15.2008 3:47pm
vassil petrov (mail):
Justice Scalia is the darling of the criminal defense bar.
10.15.2008 3:48pm
r.friedman (mail):
I think Scalia is signalling that there is significant opposition to his bright-line rule concurring in Apprendi. See his dissent from denial of certiorari in Marlowe v. United States (07-1390). From the argument, it turns out that Apprendi was really a reversal of McMillan v. Pennsylvania, in which Stevens was in dissent against Rehnquist and O'Connor, who in turn dissented in Apprendi. Sly dog Stevens triumphs again.
10.15.2008 3:51pm
DeezRightWingNutz:
Is it the name Justice (Thurgood) Marshall took after converting to Islam?
10.15.2008 4:33pm
Hoosier:
Who is Justice X?:

Speed Racer's Brother, if I remember correctly.
10.15.2008 4:33pm
Justin (mail):
Justice X is Monsieur Madeleine?
10.15.2008 5:38pm
Felix Sulla:
I think he came after Justice IX, but before Justice XI.
10.15.2008 6:08pm
Syd Henderson (mail):
Justice X flies far beyond the orbit of the Supreme Court and his existence can only be deduced by his gravitational influence.
10.15.2008 8:27pm
David Friedman (mail) (www):
Surely Justice X has to be Stephen Field.
10.16.2008 12:41am
Jacob Berlove:
R. Friedman,

In Harris v. United States, Justice Scalia voted to reaffirm McMillan.
10.16.2008 1:01am
BlackX (mail):
My uncle.
10.16.2008 1:54am