SUPREME COURT

Update- our favourite federal blogger has temporarily lost his marbles. Go see his blog and see what he says about Scalia. 

With the Supreme Court taking center stage in the news, we present to you a few supreme tidbits: 

Supreme Court Decision Predictor...... It turns out there is a lock solid way to determine which side won and which side lost after oral arguments before the Supreme Court: The side receiving the most questions loses. This predictor has been determined to be correct more than 84% of the time. Almost as good as our football predictions.   The title of the post links to the NY Times story. 

Sotomayor: Chosen because: 1) She's a woman; 2) She's Hispanic; 3) She can easily win confirmation (she was nominated to the district court by George Bush Sr. (The Good Bush) and to the Appeals bench by Clinton); 4) Because she's a Yankee Fan. 5) She's the best and the brightest around.

Pick one or all and let us know. 

The Supreme Court issued a major 6th Amendment decision Tuesday:

Montejo v. Louisiana: When Scalia writes for the majority in a criminal law case, you know it can't be good.  Scalia was hunting, and the scope of the 6th Amendment was squarely within his sights. But he also has bigger prey in mind, as we shall see. 

In Jackson v. Michigan, decided a scant (in Supreme Court time) 23 years ago, the court held that the police cannot initiate interrogation when a suspect has appeared at an arraignment and been assigned counsel. 

Montejo appeared at a preliminary hearing  and stood "mute". Uhho. Never a good idea when Scalia is around.  Montejo was appointed counsel. But those cops- geez they are fast. Before his lawyer could see him, the cops grabbed Montejo, took him out to the scene to locate the murder weapon, and just for good measure,  the cops encouraged Montejo to write a letter of apology to the widow of the deceased. This being Louisiana, Montejo was sentenced to death for poor spelling in the letter, and murder. 

As Scalia winds his way through the analysis of why neither the solutions of the Louisiana Supreme Court nor Montejo are "practical" we note this chilling passage and can see Scalia's lean and hungry look when it comes to .....Miranda???!!!!!:

And when a defendant is read his 

Miranda rights (which include the right to have counsel 

present during interrogation) and agrees to waive those 

rights, that typically does the trick, even though the 

Miranda rights purportedly have their source in the Fifth 

Amendment:...

Rumpole says: "purportedly"???....uhho!! 

 Scalia has Miranda on his mind, and not in a nice way. Although that is fodder for another day, can't you just see Assistant Attorney Generals around the country looking for the right case to bring to Scalia so he can sever Miranda's head and serve it on a silver platter to the right wing?  There's a federal appeals court judgeship waiting for the AG who kills Miranda. 

And here's why this decision affects Miranda. This case is a 6th amendment right to counsel case. Miranda is (purportedly) a 5th amendment case. In this case Scalia writes to strike down the "prophylactic" rule created by Jackson in 6th amendment cases when counsel is appointed. 

And why does this decision threaten Miranda? Here's what Scalia writes: 

We created such a  presumption in Jackson by analogy to a similar prophylac- 

tic rule established to protect the Fifth Amendment based Miranda right to have counsel present at any custodial  interrogation.

See what he's doing? First he strikes down the "prophylactic" protections in a 6th amendment case analogous to Miranda.  Can striking down the "prophylactic" protections in 5th amendments Miranda cases be far behind, especially since in Scalia's view, Miranda merely "purports" to have it's origins and protections in the 5th amendment?   And of course, when Scalia does go after Miranda, what case will he cite as precedent? THIS ONE. 

It's a particular ingenious way of interpreting the constitution and creating reasons to overrule other decisions. Create case law under one amendment to be used to undermine the firmest of constitutional decisions on another amendment. Hardly the acts of a man who tells anyone and everyone that constitutional jurisprudence should be limited to original intention. 

Here, in all its glory, is Scalia's view of the real world of police and defendants:

No  reason exists to assume that a defendant like Montejo, 

who has done nothing at all to express his intentions with 

respect to his Sixth Amendment rights, would not be 

perfectly amenable to speaking with the police without 

having counsel present.  And no reason exists to prohibit 

the police from inquiring. Edwards and Jackson are 

meant to prevent police from badgering defendants into 

changing their minds about their rights, but a defendant 

who never asked for counsel has not yet made up his mind 

in the first instance. 

No reason whatsoever Justice Scalia, except that Montejo is going to die because he remained mute at his preliminary hearing. I don't know about you, but we rarely encounter murder suspects who are versed in the intricacies of 6th amendment case law. 

So for today, in a court still dominated by Scalia and his cohorts when it comes to criminal law, the lesson is silence is NOT golden:

and even if it is reasonable to presume from a defendant’s 

request for counsel that any subsequent waiver of the right 

was coerced, no such presumption can seriously be enter- 

tained when a lawyer was merely “secured” on the defen- 

dant’s behalf, by the State itself, as a matter of course.

Oh. And just in case you still don't believe me when I tell you Scalia and his gang are the farthest thing imaginable from true conservatives, consider this little paragraph about society versus the individual: speculating on the result if the court found that the appointment of an attorney (versus asking for an attorney and getting one) would automatically trigger the "prophylactic" protections ala Miranda that Scalia despises so much, Scalia shows us how much of a collectivist (versus a conservative truly concerned about protecting individuals from government) he is:

That  would have constituted a “shockingly dramatic restructur- 

ing of the balance this Court has traditionally struck 

between the rights of the defendant and those of the larger society

So there you have it. Scalia the great collectivist-always worrying about the rights of "the larger society". Upholding the rights of society versus the individual- doesn't sound like a conservative to me. 

See you in court, whispering to defendants "ASK for a lawyer. Don't just accept one."