Justice Antonin Scalia

  • May 15, 2012

    by Jeremy Leaming

    With an increasing number of states dispensing with or reconsidering capital punishment, the Columbia Human Rights Law Review (HRLR) has released an exhaustive issue, which should push more state lawmakers to join the discussion. The HRLR issue provides compelling and highly troubling documentation of the likely wrongful 1989 Texas execution of Carlos DeLuna.

    As Andrew Cohen writes for the Atlantic the HRLR’s issue, “an astonishing blend of narrative journalism, legal research, and gumshoe detective work,” should be read, especially by Justice Antonin Scalia, who in a 2006 concurrence staunchly defended the integrity of capital punishment cases, saying they are “given especially close scrutiny at every level ….”

    Since being reinstituted in the United States, Texas has executed more inmates than all other states, except for California and Florida, where the death row populations are higher. In the last five years, however, five states have chosen to abolish capital punishment, with Connecticut the most recent. Californians in November will consider a ballot measure to end the death penalty.

    HRLR’s issue called Los Tocayos Carlos, provides a stunning account of a criminal justice system gone terribly awry, with prosecutors, witnesses, judges all faltering in ways that tragically bungled a capital punishment case. While these officials and actors ignored evidence to the contrary, the likely perpetrator, Carlos Hernandez, continued a life of violent crime after DeLuna was convicted and sitting on death row.

    In a press release about the report, Columbia Law School Professor James Liebman, and lead author of the issue, said, “Carlos DeLuna’s execution passed with little notice. No one cared enough about the defendant or the victim [Wanda Lopez stabbed to death working at a convenience mart in Corpus Christi] to make sure they caught the right guy. Everything that could go wrong in a death penalty case did go wrong for DeLuna. Sadly, DeLuna’s story is not unique. The very same factors that sent DeLuna to his death – faulty eyewitness testimony, shoddy legal representation, prosecutorial misfeasance – continue to put innocent people at risk of execution today.”

  • April 27, 2012

    by Jeremy Leaming

    For what feels like decades, reporters, pundits, and ideologues, mostly on the right, but some on the left, have lauded Supreme Court Justice Antonin Scalia for his wit, pointed oral argument questioning and allegedly brilliant writing. But those plaudits, in light of the justice’s performances during oral argument in cases challenging health care reform and Arizona’s racial profiling law, are wobbly at best, bordering on delusional.

    In reality Scalia increasingly has difficulty, as The Washington Post’s Dana Milbank recently noted, containing his rabid partisanship. It’s unbecoming. During the Affordable Care Act oral argument it appeared, at times, that his only preparation involved reading right-wing blogs railing about the slippery slope to regulations mandating purchases of broccoli and gym memberships. At oral argument in Arizona v. U.S., regarding challenges to several portions of the state’s anti-immigrant law, Scalia “left no doubt from the start that he was a champion of the Arizona crackdown and that he would verbally lacerate anybody who felt otherwise,” Mibank wrote.

    Milbank continued, “Scalia’s tart tongue has been a fixture on the bench for years, but as the justices venture this year into highly political areas such as health-care reform and immigration, the divisive and pugilistic style of the senior associate justice is very much defining the public image of the Roberts Court.”

    And it’s not a flattering image. Not only does Scalia come off as a ringleader of right-wing hacks in robes, he increasingly comes off as clueless or heartless. During the health care oral argument, questions from Scalia and some of the other right-wing justices prompted a string of commentators to question whether the justices understood the health care insurance market.

  • March 30, 2012

    by Jeremy Leaming

    Before this week’s marathon oral arguments in the case challenging health care reform, many legal scholars, had strongly argued that the challengers’ arguments did not have a serious chance of surviving Supreme Court scrutiny.

    Primarily the reasoning was based on high court precedent in favor of a broad reading of Congress’ power to regulate commerce and to tax and spend for the general welfare.

    But those perceptions have been rocked following three lengthy days of oral argument, in which Justices Antonin Scalia and Samuel Alito appeared to have bought the challengers’ arguments against the minimum coverage provision, and, at times, revealed utter callousness toward national lawmakers’ attempt to reform a terribly inefficient and exclusive health care system that has left tens of millions uninsured.

    Moreover as The New York Times columnist Paul Krugman noted, several of the justices appeared utterly or willfully ignorant of how “insurance works.” Krugman said Scalia’s comparison of purchasing health care insurance to buying broccoli “horrified health care experts all across America because health insurance is nothing like broccoli.”

    “Why? When people choose not to buy broccoli, they don’t make broccoli unavailable to those who want it. But when people don’t buy health insurance until they get sick – which what happens in the absence of a mandate – the resulting worsening of the risk pool makes insurance more expensive, and often unaffordable, for those  who remain. As a result, unregulated health insurance basically doesn’t work, and never has,” Krugman wrote.

    Walter Dellinger, former Solicitor General, at an ACS briefing on the oral arguments in HHS v. Florida, said it appeared, based mostly on their questions that three justices look ready to strike the minimum coverage provisions. Justice Samuel Alito’s questions were almost as hostile as Scalia’s and most, including Dellinger, believe Justice Clarence Thomas will vote to invalidate the law’s integral provision.

    But Dellinger (pictured) is still holding out hope that two more justices will not join those three in killing health care reform.

    “If there were five,” he said, “I would be shocked, because I think it would take us back to the jurisprudence of the 1920s. I think it would be the most stunning and indefensible judicial decision in half a century. It would be paired with Bush v. Gore in the law books forever.”

  • March 27, 2012
    Guest Post

    By Adam Winkler, professor of law, UCLA School of Law. This post is part of an ACSblog online symposium on oral argument in HHS v. Florida.


    The two days of oral argument into President Obama's health care reform law have been notable for their lack of surprises.

    On the first day, the Court considered whether the Anti-Injunction Act barred the lawsuits challenging the individual mandate. Although this was always considered the sleeper issue of the case, there are few stronger trends in the Supreme Court these days than judicial assertiveness. A Court that could decide a disputed presidential election in Bush v. Gore; unleash Citizens United; and repeatedly wade into presidential war powers should have little hesitancy reaching out to decide the fate of the Affordable Care Act. So when the Justices breezily ignored the plain language of the AIA, it was predictable. The Court wants to decide all of the major issues in American politics, including this.

    On day two, the Court looked at the individual mandate. One thing that always seemed beyond the pale to me was the idea that, when it came to the mandate, the votes of Justice Scalia and Chief Justice Roberts were in play. Just because Scalia voted to uphold the federal drug laws in Gonzalez v. Raich should never have fooled anyone into thinking he'd vote to uphold the mandate, and his aggressive questioning of the government on the mandate indicated he's likely to vote to strike it down. The same can be said for Roberts, who for seven years now has been confounding the expectations of those who believed he'd really push for unanimous, narrow rulings that avoided constitutional questions, as he promised in his confirmation hearings. His voting record is strongly conservative and his desire to protect the institutional legitimacy of the Court is remarkable mainly for its lack of manifestation.

  • February 7, 2012

    by Jeremy Leaming

    A forthcoming study says the U.S. Constitution may not be the model charter it once was, and suggests other governing documents, such as the Canadian Charter of Rights and Freedoms, may be more inspirational to people seeking to secure liberty and equality.

    As The New York Times’ Adam Liptak puts it, the U.S. Constitution “has seen better days,” and “its influence is waning.” Liptak bases his observations on a forthcoming study by Washington University Law School Professor David Stephen Law and University of Virginia Law School Professor Mila Versteeg. Liptak describes the study as bristling with data and says the professors conclude, “Among the world’s democracies, constitutional similarity to the United States has clearly gone into free fall.”

    The reporter says there are numerous reasons for the Constitution’s waning influence, including its “terse and old” language, and the fact that it “guarantees relatively few rights.”

    He also notes that at least one of this country’s Supreme Court justices has recognized the Constitution’s faltering influence. Justice Ruth Bader Ginsburg said recently during a visit to Egypt that she “would not look to the United States Constitution if I were drafting a constitution in the year 2012.”

    Liptak also cites a 2002 Harvard Law Review article by former Israeli Supreme Court president Aharon Barak, who wrote that the Constitution’s declining “global stature” has coincided with a diminished view of the U.S. Supreme Court “among courts in modern democracies.” Barak also wrote that Canadian law “serves as a source of the inspiration for many countries around the world.”

    The study by Law and Versteeg also notes the rising influence of the Canadian Charter of Rights and Freedoms, which as Liptak points out “is both more expansive and less absolute” than the U.S. Constitution.

    Indeed the Canadian charter’s language on equality is broader than America’s Constitution, stating that “Ever individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” Additionally the charter notes that the equality provision does not prevent the government from taking action to improve the “conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”