When Justice Scalia sounds like Justice Brennan

I have long joked that if you were to read the Blakely majority opinion with your eyes closed ― which is not easy, but worth the effort ― you might think it was authored by the late Justice Brennan and not Justice Scalia.  Though some rhetoric in Blakely is classic Scalia, much of the pro-defendant sentiments are straight from a classic Brennan script.   The trend continued with Justice Scalia’s work in Gonzales-Lopez last year (commentary here), where Justice Scalia joined and wrote for the “liberal wing” of the Court to affirm the reversal of a drug dealer’s conviction based on a debatable interpretation of the Sixth Amendment.

Now we get Justice Scalia’s work in dissent in James (basics herehere), which includes this Brennanesque passage:

Imprecision and indeterminacy are particularly inappropriate in the application of a criminal statute.  Years of prison hinge on the scope of ACCA’s residual provision, yet its boundaries are ill defined. If we are not going to deny effect to this statute as being impermissibly vague, see Part III, infra, we have the responsibility to derive from the text rules of application that will provide notice of what is covered and prevent arbitrary or discriminatory sentencing.  See Kolender v. Lawson, 461 U.S. 352, 357 (1983).  Offenders should be on notice that a particular course of conduct will result in a mandatory minimum prison term of 15 years.  The Court prefers to keep them guessing.

Especially because I think Justice Scalia gets the better of the debate in James, it is disappointing and telling that he does not get the votes of either of the new Justices in this case.  Once again it is clear that, at least in the arena of non-capital criminal jurisprudence, President Bush has failed to appoint Justices in the mold of Scalia and Thomas (who dissented on even broader grounds).

Of course, Justice Scalia also sound like himself in his James dissent.  I found especially amusing and telling these closing lines:

Congress has simply abdicated its responsibility when it passes a criminal statute insusceptible of an interpretation that enables principled, predictable application; and this Court has abdicated its responsibility when it allows that.  Today’s opinion permits an unintelligible criminal statute to survive uncorrected, unguided, and unexplained.  I respectfully dissent.