Wiley Rutledge, for whom I served as a law clerk during the October 1947 Term of the Supreme Court, would sometimes reminisce about his experiences teaching at the Washington University School of Law. One of his students had been Clark Clifford, who was an influential member of the District of Columbia Bar while I was a law clerk, and who later served as Secretary of Defense in the Johnson Administration. The Justice recalled teaching a class in which he eventually realized that Clifford had been the leader of a group of students who occasionally engaged in group moaning during class. I do not remember either the purpose of the moans, how Justice Rutledge identified the moaners, or his reaction to them, but I do recall how much the Justice relished his memory of the moanings when he later recounted the prank with his law clerks. I have a similar favorable memory of countless conversations with the Justice Rutledge that represented one source of the admiration and affection that he generated during that year. It is a pleasure to be here at the law school where he taught and of which he had such happy memories.
Today I plan to say a few words about my former colleague, Nino Scalia, and a few of the cases we decided during the twenty-eight years that we served together on the Court. Nino was well liked by his colleagues across the judicial spectrum. I first learned this in 1982, during a long telephone conversation with my friend Luther Swygert, a liberal judge and thinker on the Court of Appeals for the Seventh Circuit. Judge Swygert had just returned from a week as a visiting judge on the Court of Appeals for the District of Columbia Circuit, and I remember him telling me how much he had enjoyed that sitting, particularly because he had become a good friend of then-Judge Scalia. Nino's friendship with his colleagues, including both those who frequently disagreed with his views and those who more regularly shared his views, is legendary.
I was particularly fortunate to be Nino's neighbor on the bench at the Supreme Court. There was one day on which we heard consecutive arguments about the admissibility of confessions. In one of the cases the defendant had freely admitted facts establishing his guilt while adamantly refusing to sign a written statement accurately quoting those facts, and in the second case the defendant had refused to acknowledge his guilt of one crime while volunteering a detailed description of a more serious offense. Nino's whispered reaction to those bizarre cases was, "This is our dumb defendants day." While I had the good fortune to sit next to him during arguments, all of our colleagues shared the opportunity to enjoy his incomparably spontaneous sense of humor.
I shall begin by commenting on one of the many issues about which Justice Scalia and I both wrote significant opinions: the constitutional limits on a trial judge's power to select the appropriate sentence for a defendant convicted of a crime. Nino's primary concern was protecting the defendant's right to a jury trial, whereas I was more focused on the requirement that the facts supporting a prescribed sentence be established by proof beyond a reasonable doubt. Generally, but not always, both approaches led to the same result. I had a chance to develop my thoughts on this topic in a dissent written in 1986, a few months before Nino joined our Court.
In 1982, Pennsylvania enacted a mandatory minimum sentencing law providing that anyone convicted of certain felonies was subject to a sentence of at least five years if the sentencing judge found by a preponderance of the evidence that the defendant "visibly possessed a firearm" during the commission of the offense. (1) A Pennsylvania sentencing judge found the statute unconstitutional. (2) The Pennsylvania Supreme Court reversed, (3) and our Court granted certiorari. (4)
In his opinion for a majority of the Court, Justice Rehnquist upheld the statute over the dissents of four justices. (5) The majority reasoned that the requirement of proof beyond a reasonable doubt applied only to facts defining the crime charged in the indictment and did not apply to a sentencing factor that only came into play after the jury had found the defendant guilty. (6) In reaching its conclusion, the majority relied on the fact that the sentencing factor did not raise the maximum penalty for any crime but rather required the sentencing judge to impose a particular minimum penalty within the range already prescribed by statute. (7)
But, as I argued in my dissent, there is a vast difference between sentencing factors that bear on a discretionary decision to select a punishment within the range authorized by statute and elements of a crime mandating a higher minimum sentence. (8) The McMillan majority's broad conception of sentencing factors allowed the States to evade the fundamental rule that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." (9)
The importance of the distinction between elements and sentencing factors was magnified by the adoption of mandatory sentencing guidelines pursuant to the Sentencing Reform Act of 1984. (10) Under the mandatory guidelines, judges retained discretion to select a sentence within a given range that was determined by...