As I’ve mentioned before, Dahlia Lithwick’s “Supreme Court Dispatches” are generally a delight to read, and are often quite insightful. She’s a very good writer, and a colorful one; and I realize that part of that color is the injection of her own viewpoints. Her piece yesterday on the latest Supreme Court advising-defendants-of-the-right-to-counsel case was particularly fun and informative.
But then along comes this:
Scalia asks if it really serves the greater good to warn criminals that “if you got an attorney, he’d find some gimmick. . . . You have a right to know that you have the right to get off, even if you’re guilty,” adding, “We want people to admit they’re guilty.”
But Justice Scalia may want even the innocent to do that.
Huh? Why would Scalia possibly want the innocent to admit they’re guilty?
I assume the author must be joking, though that’s largely because the line can’t possibly be serious, not because it’s particularly funny. Presumably the joke is of the “He’s so pro-prosecution, damn-the-rules-just-lock-them-up that he’d even like the innocent to plead guilty” variety.
Except the trouble is that such a joke can only be funny if it’s in some sense apt — if you’re saying it about someone who really is in the pro-prosecution, damn-the-rules-just-lock-them-up camp, or close to it. But Scalia is most certainly not in that camp. Time and again, Scalia has actually shown himself to be a stickler for the rules, even when they help the defendant. See, e.g., Carella v. California (1990) (Scalia flanking Stevens on the left, as to the Sixth Amendment jury trial rights of criminal defendants); Maryland v. Craig (1990) (Scalia flanking Blackmun on the left, as to the Confrontation Clause rights of accused child molesters, partly because of a concern about wrongful convictions of the innocent); County of Riverside v. McLaughlin (1991) (Scalia flanking Souter on the left, as to the Fourth Amendment rights to prompt probable cause hearing, partly because of a concern about wrongful detention of the innocent); Almendarez-Torres v. United States (1996) (Scalia flanking Breyer on the left in joining Stevens opinion as to the Sixth Amendment right to have certain sentencing factors determined by the jury); Neder v. United States (1999) (Scalia flanking Breyer and in some measure Stevens on the left, as to the Sixth Amendment jury trial rights of criminal defendants); Apprendi v. New Jersey (2000) (Scalia flanking Breyer on the left in joining Stevens opinion as to the Sixth Amendment right to have certain sentencing factors determined by the jury). All but Apprendi were actually separate opinions (dissents or concurrences in the judgment) written by Scalia.
Now of course Scalia also often votes against criminal defendants, and one can fault some or all of those votes. One can also argue that Scalia is sometimes too focused on the formal rules, and too tolerant of procedures that may comply with the formal rules and yet lead innocent people to be convicted. But it seems quite clear that Scalia is a big believer in following the rules, even when criminal defendants are benefited by this; and a pretty big believer in preventing innocents from being wrongly treated as guilty, at least when the rules are on the innocents’ side.
So I don’t see anything particular apt about the “But Justice Scalia may want even the innocent to do that” line. Even if it’s intended to be a joke, it doesn’t seem to be a particularly fair one. And it doesn’t seem to be particularly funny, unless one thinks that any slam of Scalia is per se funny.
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