Writing at the National Law Journal’s Supreme Court Insider, the Manhattan Institute’s Marie Gryphon challenges the conventional wisdom that says criminal defendants do worse when they come before conservative judges:
The Court's decisions during this past year undermine the common claim that its Republican appointees decide criminal cases based on the identity of the parties rather than the content of the law. In the nine criminal cases the Court decided last term that raised questions of statutory rather than constitutional interpretation, Justice Antonin Scalia, Chief Justice John Roberts Jr. and Justice Anthony Kennedy were among the most "liberal" on the Court: They sided with the criminal defendants in these cases eight out of nine times. The only justice with a more pro-defendant record on these cases last term was John Paul Stevens.
The opinions in these cases demonstrate why Scalia and Roberts, both "textualist" judges, so often side with criminal defendants. Scalia and Roberts take the same literal approach to interpreting federal statutes that they take to interpreting constitutional provisions. In neither case are they inclined to expand the meaning of a provision beyond its clear terms in order to effectuate some overarching policy goal. Although Kennedy is less wedded to a textualist interpretive approach in general, he also prefers to read criminal statutes narrowly.
Read the whole thing here.