Wednesday, May 27, 2009


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 


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."


Anonymous said...


Now what?

Random thoughts:
Tuesdays stink.

It bothers me when a judicial candidate who we haven't seen in 5 years turns up at the REGJB on a Friday glad handling everyone. And then they show up at Bar functions- and I say: Where have you been the last five years while we were working???

Judge Newman's bark is worse than his bite. I like him. He's the county court man.

Except when it comes to Dan Lurvey- as he showed again yesterday- Lurvey is the man!

They call Vic Vedmed the "Tsar of County Court". Beware the Russian Bear- he roars!!!!!!

The comment about former PD super Intern Joey Bag o Donuts was a nice piece of history. I don't think the PDs office has ever seen someone so smart, with a photographic memory, before or since.

OK. I'm done. On with Wednesday.

Anonymous said...

Rumpole. Where was your outrage when the same justice (according to an earlier post by you, the "most interesting and perhaps the most intelligent") set his sights on, and overruled, NY v. Belton in last month's Gant decision? If you approve of that pro-defense turn of the worm don't you lose the intellectual high ground complaining now-- sort of like Kennedy and Alito say in the concurring opinion? They tried and failed to get rid of Miranda in Minnesota v. Dickerson. Why would it work now?

Rumpole said...

I am going to have a lot more to say on Scalia, Grant, Belton, and stare decisis in future posts.

Scalia is a dangerous dolt. I am shocked....shocked by his treatment of stare decisis today and his 6th amendment analysis is horrific at best.

Anonymous said...

Scalia is not a dolt; he is probably the most intelligent justice currently on the bench.

If he chose to be a true conservative jurist who advocated judicial restraint and simply called cases as he saw them, he might go down in the books as one of the finest justices in history. Instead he (along with his compadres Thomas and Alito, and close associate Roberts) has chosen to apply his intellect in a conservative judicial activist format designed to gut many of the protections of the Bill of Rights. His extreme right wing beliefs--I personally think Scalia is to the right of Dick Cheney, the USA's version of Mussolini--permeate his judicial thinking and reasoning. Precisely because he is so intelligent, and can put his thoughts into what appears to be valid reasoning, he is extremely dangerous.

David Oscar Markus said...

Here's the comment I posted on my blog in response to your comment:


Let's put aside the Gant case, which breathed some life back into the 4th amendment -- without Scalia, the confrontation clause is still dead (no Crawford) and the sentencing guidelines are still mandatory (no Blakely). Criminal defense lawyers were pretty happy that he didn't care about stare decisis in those cases, no? And I'm sorry, but they are much much more important than Michigan v. Jackson. I've never seen a suppression based on a Jackson motion. Have you? I certainly have seen the effects of Crawford and Blakely/Booker which affect our daily practices.

And don't sound the alarm on Miranda. First, there's Dickerson (authored by Rehnquist) -- which reaffirmed the constitutional underpinnings of Miranda. And second, if you read the most recent case, Scalia says that Jackson can be overruled because the protections of Miranda & Edwards still exist. Now, I disagree completely with Scalia on this case and his reasoning. I agree with you that Stevens' opinion is much better reasoned. But I disagree with you that Scalia is the most dangerous Justice on the Court.

Alito is much more results oriented -- always ruling for the prosecution -- and much more dangerous. I stick by my premise that Scalia is the most pro-defendant Justice on the Court. Find me one better.

Anonymous said...

Yes, Scalia is (at best) a "dolt" and at worst a fascist. Love it when you go off on him.

One bone to pick, though: they are Attorneys General and NOT Attorney Generals. See, e.g., "times out" and "sisters-in-law."

Anonymous said...

Ahhh, the random thought. I saw Samantha in the REGJB too.

To answer your question: While we were working she was teaching a one hour a week course in political science every other semester. Circuit Judge training? Quite a comeback job would you not say?

Anonymous said...

who cares? just torture them anyway. with or without a lawyer.

The Professor said...


Good eye. Montejo is big, and I think you rightly criticize Scalia for it. But, calling him a dolt? Seriously? He may be egotistical and occassionally intelectually dishonest, but a dolt he ain't. He's more of an evil genius (a la Belichik) than a dolt (a la Cameron). I also think Markus is right in saying Scalia is the most pro-D justice ... he authored Crawford, after all.

But, I don't think you should be concerned with Miranda. Scalia's main argument in favor of reversing Jackson is that the 6th amendment protection it purportedly (oops) ensures are already protected via Miranda. In other words, we don't need Jackson because we've got Miranda. Seems to me it would be odd then to go on to overrule Miranda. I also agree with another poster who noted that Dickerson really was the last/ best chance to kill Miranda.

Unfortunately, you need to think bigger. Scalia has his sights set on Mapp and the exclusionary rule. He's got three main goals in life: (1) overrule Roe; (2) overrule Bakke (affirmative action); and (3) overrule Mapp.

The point on which I think criticism is better aimed is that Scalia treats stare decisis like a baby treats a diaper. 23 years? Nuthin. 28 years? No love. He's setting up all of this precedent as citation for getting past stare decisis in overruling Roe.

But what's really amazing in Montejo is how Scalia abandons textualism/ original meaning. (He sort of has to, as I think the founders DID intend the 6thA to bar interrogating a suspect post counsel). The opinion reads with the same sort of mamby-pamby policy talk he himself has criticized about Mapp ... talk about balancing the effects on society; what options are "workable". At no point does he even bother to quote the text of the amendment or discuss its history/ background/ enactment.

The bottom line is that APD's should be adding "invoke right to presence of counsel" to their appointment soliloquy. Hopefully that will keep the detectives at bay. Or not.

Anonymous said...

You couldn't carry Scalia's jock strap, Rumpole.

Anonymous said...

In a one-two punch made public today on its web site, the U.S. Court of Appeals for the 5th Circuit has recommended that U.S. District Judge Samuel Kent be impeached and ordered that he not be given disability status.

If you don't know the story behind Judge Kent, read about this man they called "Judge" online. It is truly unbelievable.

old guy said...

Of course, Sotomayor will not become the first Hispanic Justice.

That honor went to Benjamin Cardozo. His family of Sephardic Jews came to the U.S. from Portugal, many years after Spain had evicted all Jews from that nation.

Anonymous said...

Spanish is not the same as hispanic. Spaniards are european, the same as italians, Germans , the (yuk), french etc. Hispanic connotes a new world mixture of euro/afro/indigenous. The melting pot is doing its thing! Jason G

Anonymous said...

Are you deranged? Since when is a Spaniard not Hispanic? What is he/she? Polish? Oriental? German? Nordic? You dolt!

Hispanic? said...

The U.S. Office of Management and Budget currently defines "Hispanic or Latino" as "a person of Mexican, Puerto Rican, Cuban, South or Central American, or other Spanish culture or origin, regardless of race".

This definition excludes people of Portuguese origins, such as Portuguese Americans or Brazilian Americans. However, they are included in some government agencies' definitions.

For example, the U.S. Department of Transportation defines Hispanic to include, "persons of Mexican, Puerto Rican, Cuban, Dominican, Central or South American, or others Spanish or Portuguese culture or origin, regardless of race." This definition has been adopted by the Small Business Administration as well as many federal, state, and municipal agencies for the purposes of awarding government contracts to minority owned businesses.

Still, other government agencies adopt definitions that exclude people from Spain. Some others include people from Brazil, but not Spain or Portugal.