I've often said that Justice Scalia is the most criminal-defense friendly Justice, while Justice Alito is the least. More support for this argument from yesterday's opinion in USA v. Curtis Johnson. The Court ruled 7-2 that a “violent felony” under federal law requires the use of physical violence, thereby reversing and remanding the lower court which found that a misdemeanor battery counted. Justice Scalia wrote for the majority, while Justice Alito dissented, joined by Justice Thomas. The full opinion is here. The case came out of the Middle District of Florida, and I was lucky enough to attend the Supreme Court argument. (Here are my comments from after the argument).
It's always fun reading a Scalia opinion. Here's a taste from one footnote:
Even further afield is the dissent’s argument, post, at 2–3, that since §924(e)(2)(B)(ii) requires conduct that "presents a serious potential riskof physical injury to another," §924(e)(2)(B)(i) must not. That is rather like saying a provision which includes (i) apples and (ii) overripe oranges must exclude overripe apples. It does not follow.
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You are correct about Scalia. Unlike many conservatives and liberals, his anti-government tilt is consistent regardless of whose ox is being gored. It will be interesting to see how he votes on the three honest services cases pending before the supremes. I predict the government takes it on the chin 5-4 in all three with a very strange coalition of 5. On another case, I was surprised to see that Scalia very quickly dismissed the privileges and immunities argument that was advanced by some very left and libertarian leaning amicus briefs in the McDonald case.
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