THE MYTH OF JUSTICE SCALIA?:
How A Recently-argued Death Penalty Case Will Test The Claim That He Is A Jurist Of Principle

By EDWARD LAZARUS
Thursday, May. 02, 2002

As regular readers of this column know, I am frequently inclined to criticize our current Supreme Court justices (both liberal and conservative) as too often lacking in intellectual integrity. In response, colleagues have pointed to Justice Antonin Scalia as a counterexample - the model, they claim, of a rigorous and thoroughly principled jurist.

Yet this characterization of Justice Scalia has always struck me as largely a myth. After all, if Justice Scalia is so principled, why does he abandon his ordinarily favored modes of legal analysis when they lead him to a result he doesn't like?

Let it not be said, however, that I'm closed-minded. A death penalty case argued last week, Ring v. Arizona, presents an ideal opportunity for Justice Scalia to prove that, contrary to my beliefs, principles do matter more to him than results.

Scalia Is An Originalist and Textualist - When It Suits Him

Unfortunately, Justice Scalia tends to abandon his "originalist" approach when deciding affirmative action cases. There is considerable historical evidence that the framers of the equal protection clause were perfectly comfortable with racial preferences to remedy past discrimination - but Scalia, despite his originalism, does not find preferences constitutional. Could it be that Scalia, an ardent foe of affirmative action, would rather throw his usual interpretive principles out the window, rather than accept the result of consistently applying them?

Justice Scalia's textualism turns out to be just as flexible. Consider his federalism jurisprudence. Scalia has repeatedly opined that states have broad sovereign immunity against suits by their own citizens, in both state and federal court. Yet there is no warrant at all for such immunity in the text of the Constitution. Could it be that Scalia prefers government power to the plaintiffs' bar, and that this is exactly the kind of result-oriented judging for which Scalia repeatedly (and sometimes accurately) excoriates his more liberal colleagues?

Ring v. Arizona: A Chance For Scalia to Prove He Can Be Principled

Another linchpin of Justice Scalia's constitutional jurisprudence is his firmly held view that the Sixth Amendment right to trial by jury in criminal cases requires a jury (rather than a judge) to find "all the facts which must exist in order to subject the defendant to a legally prescribed punishment."

If that is indeed the meaning of the Sixth Amendment, then the death row prisoner should win in the recently-argued Ring case. The question, though, is, once again, whether Scalia can live with the result that his constitutional principle clearly implies - or whether his oft-stated support for the death penalty will win out instead. (Scalia's support is so strong that he even recently suggested that Catholic judges who could not apply the penalty due to religious convictions should resign from the bench.)

An Important Sixth Amendment Precedent: Walton v. Arizona

To understand the legal issue in Ring, it is necessary first to understand a number of preceding cases, beginning with the Court's 1990 decision in Walton v. Arizona. There, a 5-4 majority of the Court, including Justice Scalia, upheld Arizona's death penalty scheme against a Sixth Amendment challenge.

In Arizona, after a jury convicts a defendant of first-degree murder, the trial court (meaning the judge) conducts a separate sentencing hearing to decide whether to impose the death penalty. At that hearing, the judge determines the existence of certain statutory "aggravating factors" that would qualify the defendant for the death penalty. (For example, was this a murder for hire? Was the victim a police officer?).

If the judge finds no such aggravating factor, the defendant cannot be sentenced to death. On the other hand, if the judge does find an aggravating factor, the judge must impose a death sentence unless he or she finds sufficient mitigating circumstances to call for leniency.

The Court rejected Walton's claim, holding that "any argument that the Constitution requires that a jury impose the sentence of death or make the findings prerequisite to imposition of such a sentence has been soundly rejected by prior decisions of this Court."

In the twelve years since Walton, however, the Court's approach to the Sixth Amendment has changed dramatically - so that it now seems clear that, to the contrary, a jury must make some, or perhaps all, fact findings upon which a death sentence is predicated.

How Post-Walton Cases Have Entrenched a Different Sixth Amendment Principle

In the intervening years, in a series of cases the Court has shifted to the view that (with an exception not relevant here) a factual determination that increases the otherwise applicable maximum sentence must be made by a jury, not a judge. Of course, the most dramatic increase in a sentence is the shift from life (or a shorter term of years) to death - so this line of cases seems inexorably to imply that juries must make factual determinations that lead to a death sentence.

This line of cases culminated with Apprendi v. New Jersey. In Apprendi, following the general principle that only a jury can find facts that increase a sentence, the Court held that a judge's determination (that an offense qualified as a hate crime under New Jersey law) could not enhance a defendant's maximum sentence for unlawful possession of a firearm from 10 years to 20 years. Rather, only a jury could make such a finding and thus trigger the sentence increase.

Justice Scalia has been in the forefront of this shift. In his view, the historical understanding of the right to jury trial requires absolutely that "a jury determine those facts that determine the maximum sentence the law allows."

The Conflict Between Walton and Apprendi, And Why Ring May Force Its Resolution

There is an obvious conflict between Walton, which says that a judge can resolve facts resulting in a death sentence, and the more recent cases such as Apprendi, which say that a jury must make the fact findings that constitute the grounds for a sentence increase.

Which cases are good law? Or, put another way, does the Apprendi line of cases render Walton obsolete? That is what Ring will likely decide.

Under Walton, vesting a judge with a factual determination in a death penalty case might have been sometimes acceptable. But under Apprendi's subsequent, clear rule that a jury must find the facts triggering an increase in the maximum penalty for a crime, it would seem that only a jury can make a determination that moves a crime into a category of crimes which death can be imposed.

As Justice O'Connor Has Noted, Justice Scalia's View So Far Is "Demonstrably Untrue"

The question for Justice Scalia, then, is whether he will have the courage of his Apprendi convictions even though it will mean reaching what is for him an abhorrent result - striking down Arizona's death penalty law.

The signs are not promising. Scalia sharply anticipated the Walton problem in a predecessor case to Apprendi -United States v. Almendarez-Torres. (This indicates that claims Scalia's exceptional intelligence are far more accurate than claims about his exceptional integrity). And in Almendarez-Torrez, he is already on record claiming that, in fact, under the Arizona death penalty statute the jury's finding of guilt encompasses all the elements of the offense qualifying a defendant for the death penalty.

This assertion seems to make little sense, since in an Arizona first-degree murder case, as mentioned above, it is the judge, not the jury, who conducts the fact finding necessary to move the crime into the death-eligible category. Nevertheless, Scalia has somehow taken this position that under Arizona law, the jury finds all the facts that lead to the imposition of death.

One needn't take my word for the fact that Scalia is wrong. Justice Sandra Day O'Connor, a former Arizona judge and a fellow member of the Walton majority, pointed out in her Apprendi dissent that Scalia's description of the Arizona murder statute "is demonstrably untrue. A defendant convicted of first-degree murder in Arizona cannot receive a death sentence unless a judge makes the factual determination that a statutory aggravating factor exists."" Indeed, even Justice Clarence Thomas, Scalia's stalwart ally, tacitly conceded the point in his own Apprendi concurrence.

When Ring is decided, Scalia will have to make his choice as to whether to follow his principles and strike down Arizona's law or, instead, whether to bend the truth and uphold it. When he does so, we will have important new evidence as to the depths of his integrity. Personally, I know which way I'm betting.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books, most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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