Why some defendants hope Alito is like Scalia

In this piece at Slate, Robert Gordon explains what readers of this blog (and students of Blakely) already know: from the perspective of a criminal defendant, a Supreme Court filled with justices like Antonin Scalia would not always be so bad.  As Gordon’s piece highlights, Justice Scalia’s constitutional vision sometimes leads him to liberal results: consider Justice Scalia’s work in Blakely, where he boldly asserts that “every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment,” and Justice Scalia’s work in Sullivan, where he argues that judges in some cases should not be permitted to affirm convictions by declaring certain constitutional violations harmless.

Of course, as to the application of the Eighth Amendment, defendants almost never get a sympathetic ear from Justice Scalia.  But the same was true not only for Chief Justice Rehnquist, but also for Justice O’Connor (except in the occassional death penalty case).  Moreover, as detailed in this fascinating paper by Ward Farnsworth, Justice Scalia’s principles have led him to apply the rule of lenity more often than any of his current colleagues.

For these reasons, I have previously explained why criminal defendants should hope that Chief Justice Roberts is in the mold of Scalia rather than in the mold of Rehnquist.   These same defendants should have the same hopes for a Justice Alito (although I fear that both Alito and Roberts could end up quite Rehnquistian on criminal justice matters).  Indeed, given the current SCOTUS sentencing head-count on Apprendi–Blakely-Booker issues, if Justices Alito and Roberts were to embrace Justice Scalia’s perspectives on jury trial rights, Blakely‘s reach and impact might ultimately be even broader than anyone has predicted.