24 October 2005

Supreme Court Justices

Y'know, I've looked people who practice criminal law in the face and told them that their greatest enemy on the Supreme Court is not Scalia. Maybe now they'll believe me:
The only Justice to use the rule of lenity often and distinctively is Justice Scalia, who applied it in ten of the last eleven cases where it was made an issue. This helps explain why Scalia’s votes in statutory cases tend to favor the government less often than his votes in constitutional cases, for there is no rule of lenity in constitutional law.
Scalia disappoints us all on occasion. Whren is an abomination for defense attorneys who see the constitution violated day after day after day under its auspices. On the other hand, prosecutors scratch their heads over the Kyllo decision and its curtailing of the emanations argument. In general, you can count on Scalia calling them as he sees them and not engaging in the torturing of statutes that we usually see so that the appellate courts can keep from "construing the statute strictly against the Commonwealth."1

1 The Virginia version of the Rule of Lenity. Despite being among the oldest canons of statutory construction, it is perhaps the most debased canon in Virginia law. It is often just stated and ignored in favor of some "legislative intent" argument which is usually, ummm, creative and almost never states authority for the legislative intent which the court is assuming to exist.

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