Justice Scalia Reviews Precedent

[Brown]

On October 2, 2007, the U.S. Supreme Court heard oral arguments in one of the first cases of the new term, Gall v. United States. At issue is a decision by an federal judge in Iowa to give a reduced sentence to a felon who had demonstrated that he had rehabilitated himself. One of the ways (but not the only way) that the felon demonstrated his rehabilitation was to show that he had "voluntarily withdrawn from a conspiracy five years earlier." The Federal appeals court subsequently reversed the judge in Iowa, saying the judge "had placed too much weight on Mr. Gall's voluntary withdrawal from the conspiracy."

Read the oral argument here.

The members of the Supreme Court, starting with Justice Ginsburg, began to explore the difference between simply withdrawing from the conspiracy (i.e., dissociating from the conspiracy but allowing the conspiracy to continue) and blowing the whistle on the conspiracy (exposing it and therefore trying to end it):

JUSTICE GINSBURG: So could a court of appeals try to instruct district judges and say: Now, in this factor, leaving a conspiracy, we want district judges to be aware of the difference between one who leaves and blows the whistle and one who lets it continue; and, similarly, one who uses the ill-gotten gains to set himself up in business.

MR. GREEN: Justice Ginsburg, when someone leaves the conspiracy and blows the whistle, typically, that individual is not charged.

Chief Justice Roberts thought that whistle-blowers were not always given a pass:

CHIEF JUSTICE ROBERTS: Well, I'm sure that's not always true. I mean, if the leader of some vast conspiracy is the one who blows the whistle, I suspect he may well be charged anyway.

Justice Scalia then expanded upon the point, giving an example of a conspirator who might be charged even if he exposed a conspiracy:

JUSTICE SCALIA: Lex Luthor might.

Did a justice on the United States Supreme Court just illustrate a point by referring to a comic book villain? Indeed he did. What a strange precedent.

Justice Scalia was, of course, joking to make a serious point. His point (we can assume) is that if you are an exceptional villain with your hands in all sorts of evil business, exposing one of your own earth-dominating plots won't necessarily entitle you to a "get out of jail free" card.

Also curious was an exchange a few minutes later, which appeared to have sexual overtones:

JUSTICE SCALIA: You're not saying that a reasonable person couldn't have found the opposite. You're just saying that a reasonable person could have found what this district judge found.

MR. GREEN: That's exactly right, Justice Scalia.

JUSTICE SCALIA: So why don't you just swallow all these things and say, yeah, I suppose the court of appeals could say that, but --

MR. GREEN: I -- I --

JUSTICE SCALIA: -- but my point stands?

MR. GREEN: Yeah, well, I'm happy to swallow in that sense.

(Laughter.)

 

[Southwind17]

I think it's good to see that even judges can have and display a sense of humour. Too much PC these days, and no harm done, eh!