A SURPRISE FROM SCALIA:
The Justice Votes For The Sixth Amendment, And For The Death Row Prisoner, In Ring V. Arizona.

By EDWARD LAZARUS

Thursday, Jun. 27, 2002

As I discussed in a prior column, the case of Ring v. Arizona presented a litmus test for Justice Scalia's jurisprudential integrity. At the time, I expressed skepticism as to whether it was a test he would pass.

In Ring, a death row prisoner brought a challenge to Arizona's system of letting judges, rather than juries, find certain facts necessary for the imposition of a death sentence. In the past, Scalia had exhibited devotion to a system of capital punishment virtually free from judicial oversight. But he had also showed equal fealty to the Sixth Amendment's guarantee of a right to jury trial.

Which of his loyalties would win out in Ring? Until last week, observers could only place their bets and cross their fingers.

I am pleased, and admittedly surprised, to report Scalia passed the Ring test. Joining six other Justices, he voted to declare Arizona's approach to capital sentencing unconstitutional.

Scalia's Reasoning: Why the Justice Found Arizona's System Unconstitutional

Only two years ago, in Apprendi v. New Jersey, Scalia had interpreted the Sixth Amendment guarantee of a jury trial in a criminal cases to mean that "all facts essential to imposition of the level of punishment a defendant receives" must be found by a jury. In Ring, Scalia stuck to this principle.

As Scalia admitted, the Arizona system pretty clearly violated the rule he had laid down on the Court's behalf in Apprendi. In Arizona, a judge rather than a jury may find facts necessary to the imposition of the death penalty. In Ring's case, for example, it was the judge, rather than the jury, that found him to be the triggerman in a multi-defendant robbery/murder. Since that finding was necessary to qualify Ring for a death sentence, it clearly was "essential to imposition of the level of punishment" Ring was to receive. Thus, under Apprendi, it had to be made by a jury, not a judge.

Why Observers, Before the Ring Decision, Had Reason to Be Skeptical

Before Monday's ruling, Scalia gave every indication that he would abandon his principles in favor of his preferences to reach a result exactly opposite to the one he endorsed in Ring. Not only prior case law, but oral argument in Ring, gave observers - and more importantly, death row prisoners - little reason to hope.

In Apprendi, where Scalia developed his Sixth Amendment views at length, he explicitly exempted capital sentencing from the ordinary application of his approach to jury fact-finding at sentencing. That might easily have been taken to imply that judges, rather than juries, could make key findings in capital cases as occurred in Ring.

Meanwhile, in other areas of law, especially in the area of federalism, Scalia had continued to join opinions in deep conflict with the interpretive principles he ordinarily champions. Those opinions, too, seemed to foreshadowed a result-oriented approach to Ring in which the prisoner would inevitably lose.

Then, at oral argument in Ring, Scalia openly resisted the seemingly obvious proposition that the principles espoused in Apprendi required him to strike down Arizona's death penalty regime. (And, notably, Scalia is not one to hide his true feelings at oral argument).

Finally, from Scalia's perspective, the cost of consistency in Ring was very high. Only last week, Scalia once again made clear - in dissent from the Court's decision in Atkins v. Virginia - how passionately he abhors the Court's insistence on micro-managing both the substance and procedure of the death penalty. For Scalia, Ring and Atkins are a throwback to the bad old days of the 70s and 80s, when death penalty abolitionists leveraged various Court decisions into a near-moratorium on the death penalty.

Atkins, for instance, bears a striking resemblance to Coker v. Georgia, a 1977 decision outlawing the death penalty for rape based on the same type of proportionality analysis that Atkins applies. And Ring is, in practical terms, much like Lockett v. Ohio, a 1978 case requiring that juries be allowed to consider all evidence mitigating against the imposition of the death penalty.

Like those cases of old, the Court's recent decisions will require many, many resentencings, as well as the revamping of numerous state death penalty schemes - as Scalia well knows. That he nevertheless cast his vote for the prisoner - and for a rash of resentencings and legislative rewritings - in Ring is commendable.

In sum, Scalia's ultimate decision in Ring is all the more refreshing because, seen within the context of Scalia's other beliefs and opinions, the decision so clearly indicates both a conscious and painful choice to do the right thing.

Which brings me to the next aspect of Scalia's separate concurrence in Ring that deserves approbation - its candor. Scalia could have taken the easy way out and simply signed onto Justice Ginsburg's majority opinion. Or he could have glossed over the inconsistency between his votes in Walton and Apprendi.

Instead, in clear prose seemingly directed at a non-legal audience, Scalia spelled out the conflict between his death penalty and Sixth Amendment jurisprudence - and then honestly admitted that he had made a mistake in Walton when he voted to uphold Arizona's judge-based capital sentencing. Specifically, Scalia explained at some length that he had "acquired new wisdom" in the years since Walton that had led him to understand, as he had not before, that the right to jury trial must trump a state's discretion is creating a system of capital punishment.

Supreme Court Justices rarely confess error. That is a shame because it is often a noble and courageous act. Such confessions reaffirm the truth of human nature that we are all - yes, even the members of our imperial judiciary - capable of acquiring new and deeper understandings of time-honored questions.

Judges are rarely commended for admitting mistakes - and some, like Justice O'Connor seem incapable of such an act. Yet doing so is an affirmation of the fact that good judging is a never-ending process of deliberation on the interplay of new facts and new thinking with all that has come before. Ironically, Scalia, a proponent of originalist interpretation that is often faulted for being frozen in time at the Founding, proved in Ring that the Constitution is very much alive, and very much the product of individual Justices' evolving understandings of the document and the Court's precedents.

Such candor fulfills a duty to the people whose Constitution the Court interprets. The Court is not an oracle. As the late, great Professor Joe Goldstein of the Yale Law School argued, our democracy imposes upon the Court an obligation (within reason) to make its decisions and the reasoning behind them intelligible to the citizens whose conduct those decisions govern. Scalia's Ring concurrence is a triumph on this score. Not only does Scalia admit error, he does so with honesty and clarity.

The Court has far to go in mending its breach of trust with the American people - the breach that was exhibited so dramatically in Bush v. Gore, but began long before that decision. Scalia's actions in Ring are a fine if small step in the right direction. Let us hope he has started a trend for both himself and his colleagues. As to that, only time will tell.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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