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The Confrontation Clause and the Obama Appointees

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I have a piece up at the Prospect about the 6th Amendment case that was argued yesterday. Since Scalia and Thomas have taken pretty consistent civil libertarian positions on the Confrontation Clause, the swing votes in the case are actually Kagan and Sotomayor. I have some concerns based on Sotomayor’s 6th Amendment opinion from earlier this year:

One might think that the two precedents make Williams v. Illinois a slam-dunk, but there a couple of reasons to think that the Court might change course. As Tom Goldtsein at SCOTUS blog observes, Sotomayor’s concurrence in Bullcoming specifically argued that the issue presented in Williams was not before the Court, suggesting that she’s open to switching to the other side in the new case. In addition, another Confrontation Clause case handed down earlier this year suggests that a majority of the Court may be looking to retreat. Sotomayor wrote an opinion allowing hearsay evidence given by a victim who was in the process of dying of gunshot wounds to be admitted—something that the 6th Amendment would ordinarily forbid—because it was it was not “testimonial.” In a scathing dissent, Scalia wrote that the majority’s interpretation of the victim’s remarks was “so transparently false that professing to believe it demeans this institution” and that Sotomayor’s opinion was “short on the facts, and short on the law.” Scalia’s dissent was unkind and uncivil—but it wasn’t wrong.

It will be interesting to see how this one comes out.

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  • Walt

    First link wrong.

    • Scott Lemieux

      Fixed.

  • Incontinentia Buttocks

    SIde issue: does it make sense–either descriptive or politically–to label the two major factions of the court as “conservative” and “liberal”?

    Both terms seem fairly problematic to me, though I’m more worried about the continuing Overton-Window-moving capacity of describing Breyer, Sotomayor, and Kagan as “liberal” (I’m fairly comfortable using that word to describe Ginsburg). “Conservative” doesn’t particularly captures the often radical (though, as you point out subtly different) agendas of both Scalia-Thomas and Alito-Roberts.

    While I understand the value in coming up with adjectives to describe the major wings of the court, “right” and “centrist” seem to me to be significantly more accurate than “conservative” and “liberal.”

    • David M. Nieporent

      SIde issue: does it make sense–either descriptive or politically–to label the two major factions of the court as “conservative” and “liberal”?

      Not on these cases, though not for the silly reason you cite. These are formalist-realist splits, not liberal-conservative ones.

  • rea

    I think this kind of confrontation clause issue doesn’t neatly divide the Court into liberal and conservative wings. I frankly was astonished at the suggestion that evidence meeting the requirements of long-established exceptions to the rule against hearsay posed a confrontation problem.

    • rea

      I might add that this was a non-issue until 2004, and that the recent expansion of the Confrontatiion Clause has been led by Scalia, based on his understanding of the rules of evidence applicable in colonial courts.

      • Incontinentia Buttocks

        Does that mean that we’ll soon be able to press to death uncooperative witnesses?

        • rea

          See, the problem is, it’s hard to buy into Scalia’s expansion of the confrontation clause without accepting his notions of constitutional interpretation.

  • Mrs Tilton

    In a scathing dissent, Scalia wrote that the majority’s interpretation … was “so transparently false that professing to believe it demeans this institution”

    Wow, Scalia really wrote that? Obviously I need to re-read Bush v. Gore. Oh, wait…

    • rea

      Particularly as it refers to the common-sense claim that a dying declaration isn’t “testimonial.” Well, of course it’s not “testimonial,” unless Scalia means something weird by that word.

      • David M. Nieporent

        First, Scalia’s quote was not referring to the claim that a dying declaration isn’t testimonial; it was referring to the claim that police repeatedly interrogating a shooting victim about the identity of a shooter wasn’t for the purpose of securing his testimony for trial.

        Second, it was never held to be a dying declaration; thus that issue wasn’t before the court.

        And third, it really wasn’t a dying declaration, so much as a response to interrogation for the purpose of catching the shooter. It was testimonial; the victim was providing evidence for the purpose of prosecution.

        • Scott Lemieux

          First, Scalia’s quote was not referring to the claim that a dying declaration isn’t testimonial; it was referring to the claim that police repeatedly interrogating a shooting victim about the identity of a shooter wasn’t for the purpose of securing his testimony for trial.

          Exactly.

          • Is there a legal distinction between “for the purpose of catching the shooter” and “for the purpose of prosecution?”

  • jim48043

    Scalia was right, of course, in that dying declarations are “testimonial.” Justice Ginsburg took a higher road by opining the Court ought have straightforwardly addressed the issue of whether a dying declaration could validly be regarded an exception to the confrontation clause.

    Scalia didn’t “expand” the clause; he insisted on a return to it from the chipping away that had been done in the cases which substituted “trustworthiness” for the express words of the Constitution.

    The Sotomayor route is scary, though, because it is a broader path than the ancient dying declaration exception. Sotomayor, like Breyer, is a long time government functionary, and may, like Breyer and Kennedy, embrace the “too expensive” and “scientific analysts are always right” exceptions to the confrontation clause. Kagan, a consummate political animal, may too.

    • Has anyone ever seen an decent argument asserting that a passage in the Constitution which is the subject of debate is “clear” or “inarguable?”

      “It’s all so clear, nobody could really think it means something different than what I think, everyone who says it does is stupid/dishonest/political.”

      Sure it is. The subject passage has, inevitably, been the subject of much dispute and extensive definition by the courts going back decades or centuries, but there’s always somebody who comes along and says that generations of the best legal minds in the country were only in disagreement because they’re stupid or dishonest or corrupt.

      There’s always only one possible reading, and it’s always one that is a distinct minority among legal scholars, and it’s always at odds with the vast majority of the decisions and commentary that people who’ve looked at the issue have produced. But there can’t really be any legitimate disagreement.

      • Oh, and the One Honest Reading always just happens to line up with the policy preferences and/or specific outcome desired by the person making the argument.

        You never see anyone say, “There’s really only one possible meaning that an intelligent jurist working in good faith could endorse, and it completely screws my political agenda. That’s so sad, but the language is clear.”

    • fledermaus

      Let’s not forget the “on going emergency” exception as another loophole big enough to drive a truck though. When I was doing public defense work the judges would routinely let all manner of statements in without the prosecution calling the alleged victim. They’d just put on the cop and he would say “Ms. Smith told me x, y and z”

    • rea

      It’s just strange to argue that an idea nobody thought of before maybe a decade ago represents a return to the original intent of the drafters.

      • Manju

        Original meaning.

        In this paradigm you care less about the intent of the drafters than you do about their logic.

        In other words, if the free speech clause is more all-encompassing than they originally intended, so be it…their own words lead us in that direction.

    • David M. Nieporent

      Kennedy is often on the pragmatist side rather than the formalist side, dissenting in both Bullcoming and Melendez-Diaz, but from the oral argument transcript, he seemed to be skeptical of the government’s position.

      (Which was entirely ridiculous. It’s certainly possible to argue that admitting this testimony comports with the sixth amendment; it’s not even remotely coherent, however, to argue that admitting this testimony comports with Bullcoming and Melendez-Diaz.)

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