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Scalia: Routine criminal cases clog federal courts

By Michael Kunzelman

Associated Press

Published: Saturday, Feb. 4 2012 4:40 p.m. MST

FILE - In this Oct. 6, 2011 file photo, Supreme Court Justice Antonin Scalia participates at the third annual Washington Ideas Forum at the Newseum in Washington. Scalia and Attorney General Eric Holder are scheduled to speak at an American Bar Association meeting in New Orleans this weekend. Scalia will be addressing ABA members and answering audience questions on Saturday, Feb. 4, 2012, at the Sheraton New Orleans Hotel. The discussion will be led by Boston University School of Law dean emeritus Ronald Cass.

Manuel Balce Ceneta, File, Associated Press

NEW ORLEANS — 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."

"This is probably true not just of my court, but of all the federal courts in general. A much higher percentage of what we do is criminal law, and I think that's probably regrettable," he said. "I think there's too much routine criminal stuff that has been pouring into the federal courts that should have been left to the state courts."

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.

Boston University School of Law dean emeritus Ronald Cass, who moderated the forum, asked Scalia how the court decides which cases to 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. "The cases you have to take are pretty clear: the cases in which the lower courts have disagreed on the meaning of a federal statute or on the meaning of a constitutional provision."

"On rare occasions," he added, "we'll take a case where the issue is terribly important but there is not a circuit conflict."

One woman asked Scalia if his view of the Roe vs. Wade abortion ruling was influenced by his religion. Scalia said it wasn't.

"If I was following my Catholic nose, I would agree with those who think that the states must prohibit abortion. I don't agree with that," he said. "I think the constitution says nothing about it, as it says nothing about a lot of other things, a lot of other important things, a lot of other heartfelt things. And when it says nothing about it, it means democracy governs."

Some topics were off-limits, however. When a woman asked Scalia if he sees any constitutional basis for legalizing same-sex marriage, Cass interjected and said the justice shouldn't talk about "questions that are likely to come before the court."

"This is out there somewhere, I think," Scalia said, drawing laughter from the crowd.

Attorney General Eric Holder also spoke at the bar association's "midyear meeting" Saturday, expressing the Justice Department's commitment to preserving resources for indigent defense. Other topics up for discussion during the meeting included state court funding, efforts to ensure access to justice, foreclosure prevention and disaster preparedness.

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