During oral argument in Descamps v. United States (11-9540), Justice Breyer willingly chided Justice Scalia while unwittingly elevating Judge Posner to the Supreme Court.
JUSTICE BREYER: No, no, no. But I mean, what I would do — I’ve said this and nobody pays any attention. I think Justice Scalia’s said it; nobody pays any attention. I think Justice Posner said it. He said: Look, under clause 2, these are really empirical questions, is this dangerous or not. Let’s do a little sampling and what we’ll do is we’ll sample the kinds of people that this particular State statute X get convicted under and where a whole lot of them are dangerous it’s a dangerous statute; and where not, not. And so nobody’s done that sampling, but we do have some numbers here and the numbers here suggest that this is really a burglary statute.
I’m sure Judge Posner wishes that he was at 1 First Street and not Justice Scalia.
H/T Jacob Berlove