Home -> Law Blog Directory -> Constitutional Law Blogs -> Ninomania

Constitutional Law

: Ninomania

By David M. Wagner

Scalia Criticizes News Media, the news media are reporting (guess who's going to win this round).

At a conference of attorneys in Washington, Scalia said news organizations often fail to focus on the text of the laws the court interprets, citing accounts of last month's 8-1 decision that made it harder for consumers to sue makers of federally approved medical devices.

He singled out for criticism a New York Times editorial on the case headlined "No Recourse for the Injured."

Well yeah, and it's an old, old problem. Even at the supposedly highest levels of journalism, no one cares about the law in reporting legal cases: the human drama, which of course is part of the story, becomes the entire story. As if there were no written or unwritten law to go on, and an injured plaintiff were simply kneeling before the Court and asking "Do Your Honors think it would be a good thing or a bad thing if I were compensated for my injuries?"

And if the ruling is that Congress didn't intend to protect plaintiffs in this category (leaving them, perhaps, to state remedies), or that the Due Process Clause doesn't oblige state government to come to their aid, or that a particular plaintiff is not among those who have an excuse for missing a well-known filing deadline, or whatever other grounds might exist under a rule-of-law system for denying relief in a particular case, all that the New York Times-reading caste -- the people who rule us -- ever learn about the matter, over their coffee or in their taxicab, is that the "conservative" Court just tossed another widow into the snow.

Meanwhile, apparently beneath the NYT's radar screen, Justice Scalia has lambasted Attorney General Mukasey for trying to add ten years to a "lying to a federal official" offense because it was committed while possessing a firearm:

The case involved the so-called "Millennium Bomber," Ahmed Ressam, who tried to smuggle explosives into the United States from Canada. A jury convicted Ressam on nine counts, including carrying explosives during a felony (lying to an immigration agent). Ressam's lawyers argued that the lie was not related to the explosives, so count nine should be thrown out for sentencing purposes.

Justice Ruth Bader Ginsberg asked Mukasey, who was a federal judge for almost 20 years, why prosecutors tied the explosives charge to the false statements in the first place, "instead of some charges with which it would have been more logically linked," like conspiracy to commit an act of terrorism.

Mukasey said the evidence supporting the false statements charge "was, to use a colloquialism, a lead pipe cinch. He had clearly made a false statement. He had clearly carried an explosive while doing it." Prosecutors wanted a charge on which jurors were sure to convict him.

Justice Antonin Scalia asked, "If the felony is the filing of a dishonest tax return, and you have a can of gasoline with you when you mail the letter," can you get another 10 years added to your sentence just because technically you were carrying explosives?

Chief Justice John Roberts asked whether there's a Justice Department policy not to bring those kinds of absurd prosecutions.

"Not that I'm aware of," Mukasey responded.

Full post as published by Ninomania on March 27, 2008 (boomark / email).