Some Thoughts On Justice Scalia

I met Antonin Scalia on several occasions, all of them Federalist Society events.  Sometimes he had spoken; sometimes he was just attending a cocktail party.  Always he was in good spirits, laughing, joking, and engaging in energetic conversation.  I have read many dozens of his opinions, and learned a lot from them.

It seems that many on the left are glad to see Justice Scalia dead.  Here is a collection of tweets from left-leaning journalists, including one from Tomas Rios calling him a "monster," and one from Silvia Killingsworth (Managing Editor of the New Yorker) celebrating that he is in hell.  

I'm reminded of the famous exchange involving Ben Franklin recorded by James McHenry at the close of the constitutional convention in 1787.  An unidentified woman asked Franklin, "What have we got -- a Republic or a Monarchy?" and Franklin responded, "A Republic, if you can keep it."  Somehow, we have kept it, or most of it, for two centuries.  But today, the Left thinks it has an idea far better than a Republic, namely rule by enlightened elites who have the power to impose complete fairness and justice on the world by their fiat.  Scalia more than anyone else stood in the way of that vision, for which he earned unrelenting hatred from many.

Living in Manhattan, I've had plenty of occasion over the years to hear highly educated people express their scorn for Justice Scalia.  Often, I would ask them to name particular opinions of his with which they disagreed, and of course that usually caught them speechless.  All they would really know was that the New York Times hated him, or, occasionally, that he was opposed to abortion.  But of course, Scalia was not on the Court when it established the constitutional right to abortion, nor did he ever have the opportunity to overrule it.

But how about just basically standing up for civil liberties and for constitutional separation of powers?  I would think that pretty much everybody out of the government has an interest in having the Supreme Court do a good job with those things.  But somehow many on the Left see their interests as completely aligned with the government.  You mean someday they could turn on me?  Don't be ridiculous!

Today, I will take up just one of the lesser-known areas where Scalia stood up for the rights of Americans against a too-powerful government, namely the area of prosecutions under vague criminal statutes.  The explosion of federal criminal statutes in the last forty or so years (today there are over 4000 federal crimes, and no one even has an exact count) has given virtual carte blanche to the prosecutors to go after anyone they don't like, or whose conviction could advance the prosecutor's career.  Readers here know that this is a recurring topic -- see the tag for phony prosecutions.   Of course, when the prosecutors go after a large company or bank, that entity will always settle, so the case never gets to the Supreme (or any other) Court.  

Anyway, somehow Scalia got the idea that the American people are entitled, as part of "due process of law" to fair notice in statutes passed by Congress of what conduct is deemed criminal.  Back in the eighties, when Scalia was first appointed to the Court, the big thing for prosecutors was a statute from the 70s called the Racketeer Influenced Corrupt Organizations Act, or RICO.     RICO criminalized what it called the "pattern of racketeering activity."  Do you know what that means?  Not only was the term vague to the point of meaninglessness, but it also sought to reverse centuries of jurisprudence that prevented prosecutors from introducing prior bad conduct to prejudice the jury against you in the current matter, and even to make the prior bad conduct part of the current crime.  In a concurrence in a 1989 case called H.J., Inc. v. Northwestern Bell, Scalia wrote the following:

No constitutional challenge to this law has been raised in the present case, and so that issue is not before us. That the highest Court in this land has been unable to derive from this statute anything more than today's meager guidance bodes ill for the day when that challenge is presented.      

That line was rightly interpreted as an invitation to make a challenge to RICO as void for vagueness, at which point it would fall completely.  And thus that one line promptly took most of the wind out of the prosecutors' RICO spinnaker.  The RICO statute has been far less used by prosecutors since.  However, the statute is still on the books. 

Another criminal statute long in Scalia's sights has been the so-called "honest services fraud" statute ("deprivation of the intangible right to honest services" -- does anybody have the slightest idea what that means?).  This is the statute most often used to prosecute sitting politicians.  In the 2010 Skilling decision, the Supreme Court found the honest services statute too vague to support Skilling's prosecution, which was thrown out, but left the statute standing by the device of purporting to limit it to cases involving bribes or kickbacks.  Scalia wrote a concurrence saying that the statute should have been invalidated in its entirety.  As Harvey Silverqlate points out here, today that statute is a principal underpinning of convictions of many prominent politicians, including former Governor Bob McDonnell of Virginia.

More on other areas where Scalia has been important over the next several days.