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.