The Volokh Conspiracy - "Scalia the Civil Libertarian":

Scott Turow has an interesting article in today's New York Times Magazine on the civil libertarian effect of Justice Scalia's formalist jurisprudence. Here's a taste:

Justice Scalia, especially in the last decade, has frequently taken an expansive view of the Bill of Rights, thus supporting defendants in criminal cases. Scalia is one of the intellectual godfathers of a strand of Supreme Court decisions, crystallized by Apprendi v. New Jersey, that revolutionized sentencing laws. Following a strict interpretation of the Fifth Amendment's guarantee of due process of law and the Sixth Amendment's right to trial by jury, Scalia has insisted that any fact used to extend punishment beyond normal statutory limits must be specified and proved to a jury beyond a reasonable doubt. Despite his fevered support for capital punishment, Scalia also joined a court majority in holding that the Constitution requires a death sentence to be decided by a jury, rather than by a judge, effectively setting aside every capital sentence still on direct appeal in five states. . . .

Justice Scalia is led to these seemingly divergent positions by his unyielding adherence to a school of constitutional interpretation called originalism. To Scalia, the Bill of Rights means exactly what it did in 1791, no more, no less. The needs of an evolving society, he says, should be addressed by legislation rather than the courts.

In all of this, Scalia is first and foremost a legal formalist — meaning that to him, the rules are the rules. He did not sign on to the Apprendi cases out of any special sympathy for criminal defendants — indeed, he once wrote an opinion refusing to uphold an acquittal on the grounds that the defendant's motion for acquittal was filed one day too late. Rather, he was motivated by the assumption that, as he put it in the capital-punishment case, "the right of trial by jury is in perilous decline." In other words, over the years the right had come to be interpreted more narrowly than in 1791.

Accoridng to Turow, the "looming question" is where this approach will lead Scalia in future war-on-terror cases.

	[Jonathan Adler, November 26, 2006 at 10:13pm] Trackbacks "Scalia the Civil Libertarian": Scott Turow has an interesting article in today's New York Times Magazine on the civil libertarian effect of Justice Scalia's formalist jurisprudence. Here's a taste: Justice Scalia, especially in the last decade, has frequently taken an expansive view of the Bill of Rights, thus supporting defendants in criminal cases. Scalia is one of the intellectual godfathers of a strand of Supreme Court decisions, crystallized by Apprendi v. New Jersey, that revolutionized sentencing laws. Following a strict interpretation of the Fifth Amendment's guarantee of due process of law and the Sixth Amendment's right to trial by jury, Scalia has insisted that any fact used to extend punishment beyond normal statutory limits must be specified and proved to a jury beyond a reasonable doubt. Despite his fevered support for capital punishment, Scalia also joined a court majority in holding that the Constitution requires a death sentence to be decided by a jury, rather than by a judge, effectively setting aside every capital sentence still on direct appeal in five states. . . . Justice Scalia is led to these seemingly divergent positions by his unyielding adherence to a school of constitutional interpretation called originalism. To Scalia, the Bill of Rights means exactly what it did in 1791, no more, no less. The needs of an evolving society, he says, should be addressed by legislation rather than the courts. In all of this, Scalia is first and foremost a legal formalist — meaning that to him, the rules are the rules. He did not sign on to the Apprendi cases out of any special sympathy for criminal defendants — indeed, he once wrote an opinion refusing to uphold an acquittal on the grounds that the defendant's motion for acquittal was filed one day too late. Rather, he was motivated by the assumption that, as he put it in the capital-punishment case, "the right of trial by jury is in perilous decline." In other words, over the years the right had come to be interpreted more narrowly than in 1791. Accoridng to Turow, the "looming question" is where this approach will lead Scalia in future war-on-terror cases.