As an initial matter, as a criminal defense lawyer, Rumpole should be cheering Scalia, who is by far the most friendly Justice to criminal defendants. I'm sure I'm forgetting some of his recent defense friendly opinions, but to name a few:
- Crawford v. Washington -- Justice Scalia breathed life back into the Confrontation Clause and did away with some really bad cases allowing prosecutors to get away with convictions based on hearsay.
- Blakely v. Washington (Apprendi, Booker, etc) -- criminal practitioners rejoiced when Scalia started the revolt against the mandatory federal sentencing guidelines.
- Arizona v. Gant -- Scalia rules in favor of criminal defendant on 4th amendment issue concerning a car search, overruling NY v. Belton.
- Begay v. United States -- finding in a concurring opinion that DUI was not a violent felony based on the rule of lenity.
- United States v. Gonzalez-Lopez -- Scalia finds (5-4) that a criminal defendant has a right to counsel of his choice. This was his quote at oral argument: “I don’t want a ‘competent’ lawyer. I want a lawyer to get me off. I want a lawyer to invent the Twinkie defense. I want to win.”
- United States v. Santos -- Scalia finds that the money laundering statute is ambiguous and rules for criminal defendant that it means proceeds, not profits.
- I'll end with Sorich v. United States in which Scalia dissents from denial of cert on honest services case. Here's part of his opinion:
[T]his Court has long recognized the“basic principle that a criminal statute must give fair warning of the conduct that it makes a crime.” Bouie v. City ofColumbia, 378 U. S. 347, 350 (1964). There is a serious argument that §1346 is nothing more than an invitation for federal courts to develop a common-law crime of unethical conduct. But "the notion of a common-law crime is utterly anathema today," Rogers v. Tennessee, 532 U. S. 451, 476 (2001) (SCALIA, J., dissenting), and for good reason. It is simply not fair to prosecute someone for a crime that has not been defined until the judicial decision that sends him to jail. “How can the public be expected to know what the statute means when the judges and prosecutors themselves do not know, or must make it up as they go along?” Rybicki, supra, at 160 (Jacobs, J., dissenting). . . . It may be true that petitioners here, like the defendants in other “honest services” cases, have acted improperly. But “[b]ad men, like good men, are entitled to be tried and sentenced in accordance with law.” Green v. United States, 365 U. S. 301, 309 (1961) (Black, J., dissenting). In light of the conflicts among the Circuits; the longstanding confusion over the scope of the statute; and the serious due process and federalism interests affected by the expansion of criminal liability that this case exemplifies, I would grant the petition for certiorari and squarely confront both the meaning and the constitutionality of §1346. Indeed, it seems to me quite irresponsible to let the current chaos prevail.
(A couple weeks after Scalia wrote this dissent, the Court granted cert in the Conrad Black case to figure out the reach of the honest services statute. I'd bet Rumpole that Scalia will rule for Black, but he still hasn't paid me on the last $100...)
And these are just a few off the top of my head in the last few years. I'm happy when Justice Scalia isn't a prisoner to stare decisis. If he was, we wouldn't have Crawford, Blakely, Gant, etc. I'm glad he's questioning cases that have been on the books for years because the law is more pro-government right now than it has ever been. The pendulum has started swinging back the other way, and it's due in part to Justice Scalia. Yes, criminal defendants are going to lose some too -- like Michican v. Jackson -- but I'll take the above cases with that one. (Has any lawyer ever even filed a Jackson motion to suppress?)
If I had to rank the Justices in order of defense friendly, here's my list:
Scalia, Stevens, Souter (for another couple weeks), Ginsburg, Breyer, Kennedy, Thomas, Roberts, Alito.