READING BETWEEN THE LINES

Posted in Rants on March 28th, 2012 by Ed

There are few things in law, government, or politics more ridiculous than the notion of constitutional "originalism", the idea that the law is to be interpreted only in light of the intent of its authors. Anton Scalia, Clarence Thomas, and many others of those stripes wear this label as though it is the mark of a True Defender of the Faith. Originalists, textualists, and strict constructionists are the real lovers of the Constitution, whereas interpretivists are a bunch of liberal defilers who make up whatever it is they want to see in the document. Conservatives respect the law, you see, and liberals do not.

If it is not immediately apparent why this is a complete daily ration of happy horseshit, please consider how originalist logic works. Take DC v. Heller (2010), for example, the case in which the conservative majority decided for the first time in 230 years that the 2nd Amendment protects an individual right to bear arms. In Scalia's majority opinion he cites copious historical evidence that he thinks is proof that the 2nd Amendment was intended to define an individual right. So you see, Anton Scalia isn't making something up or interpreting a new right out of thin air based on his opinion like a liberal would. Instead, Scalia is asserting this new right based on his opinion of what the authors of the Constitution thought! Isn't that so much better? Because really, how much room for personal bias, judgment, and ideology could there be in the selective interpretation of fragmentary historical evidence?

In short, it's simply another form of judicial activism and interpretivism. They merely add an extra step to the process, and you can be certain that they'd be howling like stuck pigs if liberal judges decided that they could read the minds of the attendees at the Philadelphia Convention.

The idea of Scalia as some sort of staunch defender of the Charter is particularly galling, because in his old age he isn't even bothering to cook up dubious assertions about James Madison's thought process as a cover for his personal preferences. He's lapsing into strict constructionism (which he has ridiculed publicly in the past) or the kind of anecdotal, let's-just-be-practical reasoning that he claims to detest. In the recent companion cases about plea bargaining and the effectiveness of counsel (Missouri v. Frye and Lafler v. Cooper) Scalia uses quite a bit of magical reasoning in his dissents.

In Lafler, a defendant's attorney failed to tell him that the state offered him 3 years in a plea bargain, and he went to trial and got 6. Scalia wrote the dissent, arguing:

With those words from this and the companion case, the Court today opens a whole new field of constitutionalized criminal procedure: plea-bargaining law. The ordinary criminal process has become too long, too expensive, and unpredictable, in no small part as a consequence of an intricate federal Code of Criminal Procedure imposed on the States by this Court in pursuit of perfect justice. See Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Cal. L. Rev. 929 (1965). The Court now moves to bring perfection to the alternative in which prosecutors and defendants have sought relief. Today’s opinions deal with only two aspects of counsel’s plea-bargaining inadequacy, and leave other aspects (who knows what they might be?) to be worked out in further constitutional litigation that will burden the criminal process.

God, the courts are so busy. You people and your rights inconvenience us. You should be subject to what all parties agree in this case and Frye is ineffective counsel because the Court is too busy and there might be future cases the Court would have to hear on this matter. Additionally, did you know that because plea bargains are not binding until accepted in court they don't actually count as part of "the criminal justice system"? It's true!

And it would be foolish to think that “constitutional” rules governing counsel’s behavior will not be followed by rules governing the prosecution’s behavior in the plea bargaining process that the Court today announces “‘is the criminal justice system,’” Frye, ante, at 7 (quoting approvingly from Scott & Stuntz, Plea Bargaining as Contract,101 Yale L. J. 1909, 1912 (1992) (hereinafter Scott)). Is it constitutional, for example, for the prosecution to withdraw a plea offer that has already been accepted? Or to withdraw an offer before the defense has had adequate time to consider and accept it? Or to make no plea offer at all, even though its case is weak—thereby excluding the defendant from “the criminal justice system”? Anthony Cooper received a full and fair trial, was found guilty of all charges by a unanimous jury, and was given the sentence that the law prescribed. The Court nonetheless concludes that Cooper is entitled to some sort of habeas corpus relief (perhaps) because his attorney’s allegedly incompetent advice regarding a plea offer caused him to receive a full and fair trial.

So, you know, it doesn't matter if your ineffective counsel fails to tell you about an offer as long as you get a fair trial afterward! In Frye, a defendant rejected a plea offer after his counsel (bafflingly) told him that a jury could not find him guilty of attempted murder because the victim was shot below the waist. Here again Scalia shows his strict adherence to the Constitution:

This is a companion case to Lafler v. Cooper, post, p. ___. The principal difference between the cases is that the fairness of the defendant’s conviction in Lafler was established by a full trial and jury verdict, whereas Frye’s conviction here was established by his own admission of guilt, received by the court after the usual colloquy that assured it was voluntary and truthful. In Lafler all that could be said (and as I discuss there it was quite enough) is that the fairness of the conviction was clear, though a unanimous jury finding beyond a reasonable doubt can sometimes be wrong. Here it can be said not only that the process was fair, but that the defendant acknowledged the correctness of his conviction. Galin Frye’s attorney failed to inform him about a plea offer, and Frye ultimately pleaded guilty without the benefit of a deal. Counsel’s mistake did not deprive Frye of any substantive or procedural right; only of the opportunity to accept a plea bargain to which he had no entitlement in the first place. So little entitlement that, had he known of and accepted the bargain, the prosecution would have been able to withdraw it right up to the point that his guilty plea pursuant to the bargain was accepted.See 311 S. W. 3d 350, 359, and n. 4 (Mo. App. 2010).

Even though more than 90% of cases in our legal system our disposed of with plea bargains, Scalia continues to beat this idea that because they are not immediately binding when offered, it really doesn't matter whether or not your counsel botches it. No big deal. You'll just do a lot more time in prison. Which was the Founders' intent – that individuals' rights in the justice system be kept to a minimum. Right? I have to check my notes but I'm pretty sure that's what they wanted.

These cases, although not greatly publicized, should serve a dual purpose as Anton Scalia's epitaph and proof that he is an irredeemable asshole adhering to an ideology that takes "judicial activism" to heights that would make Earl Warren blush.