I was so struck by the number of important decisions Justice Scalia wrote this term that I asked Justice Ginsburg about his record when I interviewed her this week. (Here’s the news story covering other topics.)

First, consider this: Scalia authored the decision striking down California’s ban on the sale of violent video games to minors and giving video games the kind of First Amendment protection granted books (Brown v. Entertainment Merchants Association). He wrote the decision throwing out the class-action sex discrimination lawsuit against Wal-Mart and setting a new standard for workers nationwide to bring such bias claims (Wal-Mart Stores v. Dukes). He wrote the ruling saying consumers can be bound by an arbitration clause in a cell-phone contract even when state law would permit a class-action claim (AT&T Mobility v. Concepcion). He also authored the decision that former Attorney General John Ashcroft could not be held liable for a post-Sept. 11 policy that led to the arrest of a Muslim U.S. citizen (Ashcroft v. al-Kidd) and the one upholding a Nevada ethics law that also declared voting by legislators not protected speech under the First Amendment (Nevada Commission on Ethics v. Carrigan).

So, I asked Justice Ginsburg whether she was surprised that he had prevailed so much.

She responded, “Is he prevailing more than the chief?” Her tone was sharp and it suggested she didn’t think Scalia was as influential as my question implied. And she was right: Scalia was not in the majority as much as Chief Justice John Roberts, or swing-vote Justice Anthony Kennedy. But Scalia did write opinions for the Court in the most closely watched cases. And the crux of my question had more to do with his history on the bench, which she – as a longtime colleague at odds with him on the law – knows well.

Scalia’s public profile arises from a conservatism that is not usually embraced by a majority (and that Ginsburg has told me she believes will never become the norm), along with a series of hyperbolic dissenting opinions. Think Romer v. Evans. Think Boumediene v. Bush. I also know that he was regarded as someone who could, more than other justices, lose a majority once he started drafting the opinion and expressing his legal rationale. But that has changed in recent years and clearly in the term that just finished up, Chief Justice Roberts had the confidence to assign Scalia several momentous opinions and Scalia held, at least, the requisite five.

When I laid all that out, Ginsburg said, “We’ll see how it is next term.”

A few weeks earlier when I was in Justice Scalia’s chambers, he didn’t want to talk about winning more and, in fact, was focused on the major California prison case, Brown v. Plata, that a few days earlier had not gone his way. The Court, in an opinion by Kennedy joined by Ginsburg and the other liberals, had found the overcrowded prison system unconstitutional and required reduction of about 30,000 inmates. In a dissent from the bench, Scalia declared that the Court was affirming “perhaps the most radical injunction issued by a court in our nation’s history.”

Now that I see that Brown v. Plata was an exception for Scalia this term, I cannot help but recall a conversation I had with him in summer 2009, right after District of Columbia v. Heller, when he wrote the opinion establishing individual gun rights under the Second Amendment. I observed then that he seemed to be in the majority more and getting to write more significant opinions for the Court. He brushed me off. “The wins,” he sighed. “The wins: Damn few.”

At the time, I wrote that Scalia might be at the apex of his influence. Now I’m wondering if he might be in a longer chapter and about to have more impact on the law than I ever would have imagined or that Justice Ginsburg ever would have wanted. Like her, I’ll wait for next term.

Add another critic to the Supreme Court’s recent decision in Connick v. Thompson: Retired Justice Stevens on Monday night denounced his old colleagues for ruling that a former Louisiana Death Row inmate could not sue prosecutors who had concealed blood evidence that might have shown his innocence.

In that 5-4 case in late March, Justice Clarence Thomas wrote for the conservative majority and Justice Ruth Bader Ginsburg wrote for liberal dissenters. (I referred in an earlier post to Ginsburg’s passionate dissent from the bench in the case focused on prosecutors’ duty to turn over exculpatory evidence.)

On Monday night, at a New York dinner sponsored by the Equal Justice Initiative, Stevens said he thought Ginsburg had the better argument and called the facts of the Thompson case “shocking.” Stevens then criticized a separate opinion Justice Antonin Scalia had filed in Connick v. Thompson. Stevens, who stepped down last summer, said Scalia had “either overlooked or chosen to ignore the fact that bad faith, knowing violations [of the rule for turning over evidence] may be caused by improper supervision” in a prosecutor’s office, this one in New Orleans.

Stevens said “an overzealous prosecutor might … [make] it clear [to underlings] that violations of the rule — if undetected by courts — will never give rise to discipline and may even be rewarded. Prosecutors’ electoral incentives and the facts of this case demonstrate that such prosecutorial malfeasance is of more than hypothetical concern.” Stevens said judges should consider a new standard that would hold elected District Attorneys liable for flagrant violations of constitutional rights committed by their assistants.

A Defining 48 Hours at the Supreme Court

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Sitting in the courtroom the last two days, I was reminded of how profoundly the Court is split 5-4, conservatives-liberals, on cases that really matter. The divide was evident during oral arguments in the Arizona campaign finance dispute Monday and in the gigantic Wal-Mart job-discrimination class action fight Tuesday. And one of most compelling moments along these lines came Tuesday morning when Justice Ruth Bader Ginsburg read aloud her dissenting opinion from a decision in which the five-justice conservative majority ruled that a former Louisiana Death Row could not sue prosecutors who had failed to turn over blood evidence that could have shown his innocence.

Justices rarely read dissents from the mahogany bench, and when it happens, it’s usually in June, the final, tense month of the term.

But Ginsburg, the most senior liberal, could not hold back from a very public protest of the majority decision in Connick v. Thompson, written by Justice Clarence Thomas and overturning the $14 million verdict John Thompson won in a civil rights trial after he was freed from prison.

With her outrage barely betrayed by a steady, flat voice, Ginsburg emphasized the injustice Thompson faced and responsibility former District Attorney Harry F. Connick bore. She noted that prosecutors have a constitutional obligation to reveal evidence that might exonerate a person:  “That obligation was dishonored in this case. Consequently, John Thompson spent 14 years isolated on death row before the truth came to light.”

Liberals were on the defensive in the two major cases argued this week, too. The five justices who have voted against campaign finance regulations in recent years, including Chief Justice John Roberts and key swing-vote Justice Anthony Kennedy, looked ready to strike down a newly disputed Arizona public-financing law that gives extra matching funds to candidates who run against well-off opponents. That case is the first campaign controversy to be taken up since the Court’s January 2010 decision in Citizens United v. Federal Election Commission, lifting federal limits on corporation and labor union spending in elections.

On Tuesday, in the high-stakes Wal-Mart Stores v. Dukes case, conservatives appeared inclined to block a decades-old lawsuit on behalf of Wal-Mart female employees nationwide. (See story.) The women contend their pay and promotions trailed those of men in comparable jobs across the nation. Wal-Mart disputes that assertion and argues the class action should be thrown out because the women lack sufficient common grounds to connect workers in thousands of stores, with hundreds of managers, in a single claim.

It was just two days of the term, but they may stand for the whole.

Justice Scalia lost it Monday in Michigan v. Bryant. As the majority ruled that a gunshot victim’s dying words to police could be used at trial against the alleged shooter, Scalia erupted. “[T]oday’s decision is not only a gross distortion of the facts. It is a gross distortion of the law—a revisionist narrative … at least where emergencies and faux emergencies are concerned.”

The majority opinion, written by Justice Sonia Sotomayor, said the victim’s statements identifying defendant Richard Perry Bryant – as the victim bled in a gas station parking lot — were made in an emergency situation and not “testimonial.” So allowing them at trial did not violate the Sixth Amendment’s Confrontation Clause, which guarantees that a defendant may confront his accuser.

Scalia’s anger and frustration were palpable. That’s because this is one area where Scalia had made progress over the past decade with his originalist approach, to narrow the grounds for exceptions to the confrontation guarantee. In an important 2004 case, Crawford v. Washington, he wrote the Court’s opinion making it harder to bring into trial past statements of witnesses who could not be cross-examined (for example, because they had died or invoked a privilege) even when the statements seemed reliable.

Scalia protested any exceptions to a rule that he said reflected the Framers’ understanding: “testimonial statements of witnesses absent from trial (may be admitted) only where the defendant has had a prior opportunity to cross-examine.”

In my interviews with Scalia, he called the Crawford case “one of the ones I’m most proud of – bringing the Confrontation Clause back to what the people thought it meant when they adopted it.” Scalia, not typically a friend of criminal defendants, took pride in saying he could disregard the social policy consequences (i.e. critical testimony against the shooter is kept from trial) of his originalist view.  On Monday, he suggested the court lacked “the courage” to persist in an unpopular series of cases that conflicted with the justices’ “policy preferences.”

He wrote alone in the 6-2 case (Justice Elena Kagan recused). The only other dissenter, Justice Ruth Bader Ginsburg, said she agreed with Scalia that the majority was creating “an expansive exception to the Confrontation Clause for violent crimes.” But she aired her protest in a page and a half. Scalia took 17 pages, and as Orin Kerr observed Monday, Scalia’s dissent was “blistering even by Justice Scalia standards.”

Antonin Scalia, past and present, had a starring role at today’s Supreme Court arguments in Federal Communications Commission v. AT&T. And I couldn’t help but be reminded of Scalia’s past views on the Freedom of Information Act, views definitely off-stage.

As I explain in this article, the FCC was appealing a lower court decision that would allow corporations to claim a “personal privacy” exemption under the FOIA law intended to make government more transparent. That exemption traditionally has been given only to individuals for potentially embarrassing situations.

In the government’s brief and at a couple of points Wednesday, the attorney for the FCC invoked a 1975 memo by former Attorney General Edward Levi (for whom Scalia worked in the mid-1970s) supporting the view that the disputed provision did not cover corporations. Scalia declared Wednesday that that view had stuck.

The FCC also in its brief had quoted then-Professor Scalia from 1981, testifying that FOIA’s exemption for unwarranted invasions of  “personal privacy” protects only individuals.

But what went unsaid — and wasn’t relevant to the case — was Scalia’s long-held opposition to FOIA before he became a judge. In the 1970s, he derided the law as costly and a distraction for government workers asked to fulfill public requests for information. He said the act’s flaws “cannot be cured as long as we are dominated by the obsession that gave them birth — that the first line of defense against an arbitrary executive is do-it-yourself oversight by the public and its surrogate, the press.” Scalia was among a small band of Ford administration officials, including Dick Cheney, who fought the FOIA amendments Congress adopted in 1974.

Years later at a congressional hearing, Scalia, as professor, explained his continuing opposition to FOIA by referring to a Peanuts cartoon that “one of the more philosophical” of his children had brought to his attention:

“A worldly wise and somewhat overbearing Lucy asks the good-hearted and somewhat naïve Charlie Brown, ‘Charlie, what would you rather do, be captain of the baseball team or marry the cute redheaded girl?’ And Charlie replies innocently, ‘Why can’t I do both?’ to which Lucy responds, ‘It’s the real world, Charlie Brown.’”

That was Scalia, aligning himself with cynical Lucy and telling lawmakers they were in the real world, which, he argued, “imposes choices, even ultimately upon a good-hearted and well-intentioned government.”

Scalia Rebukes Judges on Death Penalty

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As criticism of capital punishment is up in some quarters and use of the death penalty continues to decline nationally, Justice Scalia remains a vigorous voice for carrying out state executions.

This week he dissented from a high-court order favoring an Alabama murderer whose death sentence had been set aside by lower federal courts. The justices by 6-to-3 rejected a petition from Alabama officials protesting a new sentencing hearing for James Charles Lawhorn, who with his brother had killed their aunt’s boyfriend in 1988, in exchange for $100 from the aunt.

Lawhorn had won the new sentencing — after many years of appeals – because his lawyer had waived his right to closing argument during the penalty phase. The Supreme Court on Monday let stand an appeals court decision that the move constituted ineffective assistance of counsel.

Dissenting from the order, Scalia, joined by Justices Clarence Thomas and Samuel Alito, observed first that Lawhorn was sentenced to death more than 21 years. Scalia spurned the various scenarios lower court judges had offered regarding closing statements Lawhorn’s lawyer might have made and how jurors might have been persuaded against the death sentence. “Alabama should not be barred from carrying out its judgment based on a federal court’s lawless speculation,” Scalia said.

Scalia then proceeded to a larger complaint about a system that he says too often blocks executions. Scalia’s remarks contrasted starkly with those from other justices troubled by the death penalty’s inconsistent imposition and lack of safeguards – most recently from retired Justice John Paul Stevens in this New York Review of Books essay. Two years ago, Stevens said he had come to realize that the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.”

Adopting an altogether different tone, Scalia wrote in Allen v. Lawhorn, “With distressing frequency, especially in capital cases such as this, federal judges refuse to be governed by Congress’s command that state criminal judgments must not be revised by federal courts unless they are contrary to … clearly established federal law, as determined by the Supreme Court of the United States. We invite continued lawlessness when we permit a patently improper inference with state justice such as that which occurred in this case to stand.”

Lawhorn’s situation notwithstanding, new end-of-the-year statistics will show that Alabama is one of the few states that have not seen a significant drop in executions in recent years to match the national downward trend.