As the speechwriter Jeff Shesolwrote in the New Yorker last year, “His approach has always been to reach for a dictionary; find, in one edition or other, a definition that drives toward his predetermined decision; and express, eyes wide with disbelief, utter amazement that anyone could even think of seeing it any other way.”
.. In The Second Amendment: A Biography, Michael Waldman notes that Scalia “has the feel of an ambitious Scrabble player trying too hard to prove that a triple word score really does exist.”
A former law-and-order conservative takes a lead on criminal-justice reform.
In February, the American Conservative Union’s Conservative Political Action Conference, which serves as an audition for right-wing Presidential aspirants, featured three panels on criminal-justice reform, including one called Prosecutors Gone Wild. Bernard Kerik, who was Rudolph Giuliani’s police commissioner and served three years in prison for tax fraud and other crimes, now promotes an agenda of reforms, including voting rights for ex-felons. The libertarian billionaires Charles and David Koch are donating money to the National Association of Criminal Defense Lawyers, to help insure that indigent defendants get competent legal representation, and they are co-sponsoring conferences on judicial reform with the American Civil Liberties Union.
.. The F.B.I. sting, he says, dispelled his unconditional faith in law enforcement. In Nolan’s telling of it, trophy-hunting agents browbeat his aides and his campaign supporters to build a case against him, leaking tidbits to the press in the hope of breaking his resolve. The prosecutor loaded the charge sheet so heavily that Nolan concluded that he couldn’t risk going before a jury. Like roughly ninety-five per cent of people convicted in America, he pleaded guilty and took a lesser sentence rather than take his chances at trial. He began to wonder how many of the people he had dismissed as bad guys had simply succumbed to prosecutorial bullying. He said, “I saw that the F.B.I. and the government prosecutors weren’t interested in the truth, and that was a shock to me.”
.. “I had assumed they did all they could to help prepare the guys to return to society and make a better life,” Nolan told me. “But they were just warehousing them.” There was a pervasive sense of defeat. “The implication is: you’re worthless, you come from nothing, you are nothing, you’ll never be anything.” He added that when prisoners were released the guards would say, “See you in a few months.”
He was surprised, too, at the number of elderly and infirm inmates. In his memoir, he wrote that “incarcerating people who aren’t a physical threat to society is expensive and counter-productive”—something that “only a nation that is rich and vindictive” would do.
.. The fact that nearly a third of black men in this country are destined to spend time in jail or prison, Alexander argued, cannot be explained as simply a society defending itself against urban predators. In her view, Nixon’s tough-on-crime agenda and Reagan’s escalation of the war on drugs were aimed, consciously or not, at halting the advances of the civil-rights movement and perpetuating the neglect of the underclass. While race has influenced the administration of justice in this country from its beginning, she says, since the nineteen-eighties mass incarceration has decimated minority neighborhoods to the extent that it has become a malign form of containment.
.. On the right, the excesses of the system are most often explained as the result of too much government coddling and a breakdown of families, resulting in a surge of crime and a corresponding rise in public alarm. The war on drugs and the ensuing explosion of the prison population, many conservatives argue, were not acts of racism but responses to legitimate fears. But Nolan says, “Our rhetoric helped grow the climate in which the government could overreach.
.. Nixon and Reagan—and the 1988 campaign of George H. W. Bush, with the infamous Willie Horton TV ad—tapped a vein of white anxiety, but liberals were co-architects of the current situation. The “war on drugs” had no more outspoken champion than the liberal Massachusetts Democrat and House Speaker Thomas P. O’Neill, Jr.
.. The year that Clinton signed that bill, thirty-seven per cent of Americans identified crime as the nation’s most important problem. By 2012, the number was two per cent.
.. The most significant question is whether conservatives are prepared to face the cost of the remedies, from in-prison education and job training to more robust probationary supervision and drug and mental-health treatment. Joan Petersilia, a criminologist who teaches at the Stanford Law School, points to the last great American exercise in decarceration, half a century ago: President Kennedy’s Community Mental Health Act, which aimed to reduce by half the number of patients in state mental hospitals. The promised alternatives—hundreds of community care facilities—were never fully funded, and thousands of deeply troubled people were liberated into homelessness.
.. Nolan has another worry: that one sensational crime, or a spike in the crime rate, or the distraction of more polarizing issues could send Republicans and Democrats back to their corners. “We’ve all said we’re one bad incident away from having this erode on us,” he said.
.. He would like to see abusive prosecutors lose their licenses. He would require the police to videotape interrogations from beginning to end, not just a confession that may have been improperly extracted.
.. “I think the Nebraska vote is a pivot point,” he e-mailed me. “You can’t get more red than Nebraska, and the cooperation of flinty conservatives and urban blacks was unstoppable. I think they really enjoyed working together and finding common ground. That is the experience that I have had as well.” In his sign-off, he turned to Scripture: “The lamb and the lion shall lie down together.”
Scalia: We are not Congress’s Editors
The law was passed in a great hurry, he explains, and refers to an old cartoon — cited in a 1947 article by Justice Felix Frankfurter on the reading of statutes — “in which a senator tells his colleagues: ‘I admit this new bill is too complicated to understand. We’ll just have to pass it to find out what it means.’ ”
.. There are also two citations that quietly hoist Scalia and his fellow dissenters, Justices Samuel A. Alito Jr. and Clarence Thomas, with their own petards. Roberts quotes a majority opinion written last year by Scalia stating that “the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” And arguing that “it is implausible” that Congress meant to create health care exchanges without subsidies, given the likelihood that they would collapse under those circumstances, he quotes a dissent that Scalia, Thomas and Alito wrote in the 2012 Obamacare challenge (joined then by Kennedy): “Without the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.” Give the man debater’s points for that one.
.. Scalia answers this way: The court is not Congress’s editor. It’s not the justices’ job to rewrite a bad draft.
Magna Carta, Still Posing a Challenge at 800
“It’s one of the many, many things in the Anglo-American legal tradition that will eventually grow and mutate and be misinterpreted as something that’s important,” Akhil Amar, a professor at Yale Law School and author, most recently, of “The Law of the Land,” said of Magna Carta, using the historical present. He added: “Stuff happens later that endows it with a certain retrospective significance.”
“It’s a mistake to think that a document’s importance can be measured solely by the immediate context in which it’s produced,” said Noah Feldman, a professor at Harvard Law School. Magna Carta’s resonance, he continued, “doesn’t rest on what King John and those particular barons were doing at that particular time, but on the length of the legacy in using and interpreting and holding up this document as a banner for the rule of law.”