Making Scalia’s Job Hard

Some wags suggest that there are no epiphanies to be had in New Orleans, where the American Bar Association is dealing with the hard questions of confronting the legal system these days, like whether red is still the color for power ties.  Yet Associate Justice Antonin Scalia came to a shocking realization at the meet-up, announcing that he doesn’t enjoy hearing criminal cases nearly as much as we enjoy having him hear them.

From Doug Berman, via the AP :



The federal courts have become increasingly flooded with “nickel and dime” criminal cases that are better off resolved in state courts, U.S. Supreme Court Justice Antonin Scalia said Saturday.

Scalia told an American Bar Association meeting in New Orleans that he’s worried that the nation’s highest court is becoming a “court of criminal appeals.”


That this worries him worries me.  That this just occurred to him worries me as well, but it’s understandable that someone who sits as one of nine comprising an entire branch of government might be a little out of touch with what’s happening on the street. I mean, he’s busy and probably doesn’t even twit.

What is curious, though, is Scalia’s description of the criminal cases flooding the courts as “nickel and dime,” which is exactly what I think too.  Great minds think alike, right?  And “nickel and dime” criminal cases, the ones that clog up the court from dealing with important civil issues, put people in prison for decades. Given that they’re nickel and dime-y, what I suspect Justice Scalia is really trying to say is that a year, maybe two in some of the really bad cases, is more than enough.



Scalia said civil dockets in some federal jurisdictions are lagging behind because criminal cases take precedence. He attributed the trend to lawmakers enacting new criminal statutes and bogging down the federal courts with “nickel and dime criminal cases that didn’t used to be there.”


“This stuff is just pouring into the federal courts. That’s not what the federal courts were set up for,” he said.


Now it’s pretty darn likely that Justice Scalia knows that these cases don’t spontaneously arise out of nowhere, but are being investigated, indicted and prosecuted by somebody who brings them in federal courts.  While it’s possible that it’s civil lawyers bent on making sure the Supreme don’t screw up their sweet deal, it’s more likely that it has something to do with the Department of Justice and it’s local minions, the United States attorneys for the various districts.  Defendants do not rush though the doors of federal courthouses demanding to be prosecuted. Oh, no.

Then, of course, there’s the obvious problem, that every new elected official is required to offer a new criminal law, much like a gang initiation, to prove his mettle.  That doesn’t mean the United States Attorneys have to use every law enacted, or duplicated on every level of government possible, or keep every courtroom filled to capacity, but then they might insult their local congressperson who went and sponsored a perfectly good crime and expects the United States Attorney to use it (Maricopa County excepted).

All of this is a massive insult to the defendants who are trotted through the federal system.  Scalia is quite right, that the federal courts have no business handling the flotsam and jetsam of crime, and yet they do. As they have increasingly for the past 25 years.  And there isn’t a single defendant who asked that it be that way.

There is plenty of blame to spread around, not the least of which includes the expansive reading of the commerce clause which, with minor exceptions, has come to mirror Chaos Theory. That Congress has enacted 3000, 4000, maybe 5000 federal crimes, plus the additional 30,000+ regulatory offences that no one knows anything about, is part of the problem, but the vast majority of federal crimes are brought under a handful of laws, most notably drug conspiracies and weapons. 

These are the bread and butter of state crimes, and it was killing the feds that they couldn’t get any headlines out of these crimes.  If they were happening, someone holding federal office had to be the hero to rid society of these plagues.  Otherwise, they looked inconsequential, bad things happening and them sitting in their chamber talking about, oh, boring federal government stuff.  No front page news there.

The most insulting aspect of Scalia’s epiphany isn’t that the people who are subject to this irresponsible federal criminalization and prosecution cycle are going away for decades for “nickel and dime” crimes, but that his biggest concern is that it takes too much time and energy of the Supreme Court that could otherwise be used for cases they would rather hear. 


“Believe me, it is not hard, once you’ve got it though your head that you are not a court of errors, that it is not the job of the United States Supreme Court to correct mistakes,” he said.

Therein lies a significant separation between our aspirations for the Supreme Court and its own, limited, perspective.  Ultimately, the criminal justice system exists not as a burden to Nine Justices, but as a means of providing a safe and orderly environment while preserving the rights of the people.  The Constitution doesn’t limit the jurisdiction of the Supreme Court to concern itself only with circuit conflicts.  The Constitution doesn’t preclude the justices from correcting error. 

Having paved the way for Congress to enact laws enabling federal prosecutors to spend their days handling “nickel and dime” cases that send people to prison for decades, Scalia can’t disavow his responsibility for both the creation of this fiasco and to deal with its product, the error and failings that are below the dignity of our important federal judiciary.  You cause these prosecutions to happen in your courts? Now deal with it.

And if it’s too much of a burden, too hard to handle, then clean it up.  Admit the you screwed up, that the commerce clause wasn’t meant to allow the federal criminalization of every wrong possible.  When the feds bring cases unworthy of your oak paneled courtrooms, toss them until the United States Attorney gets the message, that “nickel and dime” cases won’t be allowed to clog up your marble hallways anymore.  You have the power to fix this mess.  Use it.

As a humorous aside, Doug Berman, no doubt tongue in cheek,  writes that this story “reveals that I am not the only one who thinks the federal criminal docket has gotten way too big.”  It’s a pretty big club.



4 comments on “Making Scalia’s Job Hard

  1. Dan

    This post made me think of something I saw on tv the other day- U.S. Senator Chuck Schumer standing next to local district attorney Kathleen Rice at a press conference talking about the need for increased penalties/means of detection for driving under the influence of drugs. Not that he was specifically calling for the federalization of DWI, but that he’s even thinking about such things explains (a little bit) how we end up with these “nickel and dime” cases in the federal system, with federal penalties attached. Now that I think about it, how many heart-wrenching accidents are we away from a federal inter-state drunk driving law?

  2. SHG

    The dynamic there goes way beyond scary. Kathleen Rice desperately wants to be a player in a larger pond, and will say or do anything to make herself relevant.  In the meantime, Chuck Schumer never saw a camera he didn’t love, no matter what the subject.  If there is any way, any way at all, they can milk a few more minutes of air time, or come up with a novel scheme, there is nothing on earth that will stop either of these two from doing it. Nothing.

  3. Ron Miller

    Absolutely Chuck Schumer likes attention. But if I’m reading an article about Charlie Sheen, I don’t blurt out that Jessie James is a bad husband.

    Justice Scalia loves attention in a “Man, I’m on the Supreme Court, I wish I had a job where I could draw even more attention to myself, why didn’t I run for Congress” kinda way.

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