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PORTSIDE  March 2011, Week 2

PORTSIDE March 2011, Week 2

Subject:

Justice Scalia Objects

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Date:

Sun, 13 Mar 2011 22:52:04 -0400

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Justice Scalia Objects
By LINDA GREENHOUSE
New York Times
March 9, 2011
http://opinionator.blogs.nytimes.com/2011/03/09/justice-scalia-objects/

One rough measure of how any Supreme Court term is going
is to track the decibel level of Justice Antonin
Scalia's dissenting opinions. In a case last week, the
question was whether statements made to the police by a
shooting victim as he lay bleeding to death in the
parking lot of a Detroit gas station were properly used
at trial to obtain a murder conviction of the man he
named as the gunman.

The court's answer, by a vote of 6 to 2, was yes.
Writing for the majority in the case, Michigan v.
Bryant, Justice Sonia Sotomayor explained that what was
all-important was the context in which the police-victim
interaction occurred. Rather than trying to obtain a
dying man's testimony for later use in a courtroom, she
said, the police were urgently investigating what they
believed to be an "ongoing emergency," someone with a
gun on the loose on the streets of Detroit. Under that
view of the facts, the victim's statements were not
"testimonial," meaning that their use at trial did not
violate the defendant's right under the Sixth Amendment
to "confront" an accuser who was unavailable for cross-
examination.

That conclusion enraged Justice Scalia. Of course the
police officers knew they were gathering evidence for
potential use at trial, he objected, and to maintain
otherwise was "so transparently false that professing to
believe it demeans this institution." With this
decision, the Supreme Court "makes itself the obfuscator
of last resort," he complained. A "gross distortion of
the facts," "utter nonsense," and "unprincipled" were a
few of the other zingers the dyspeptic justice aimed at
Justice Sotomayor's opinion.

Granted, Justice Scalia has long been the court's
leading champion of a categorical view of the Sixth
Amendment confrontation clause, one that admits of only
the narrowest of exceptions to a defendant's right to
face his accuser. And no less than any other member of
the court, Justice Scalia doesn't like to lose. (The
other dissenter, Justice Ruth Bader Ginsburg, notably
did not join Justice Scalia's opinion, instead filing a
bland two-paragraph one of her own. Justice Elena Kagan
did not participate.) But what strategic sense could
lead a justice to administer such a public thrashing to
a junior colleague?

Antonin Scalia, approaching his 25th anniversary as a
Supreme Court justice, has cast a long shadow but has
accomplished surprisingly little.

I was reminded of how, in a crucial abortion case years
ago, Justice Scalia lashed out at Justice Sandra Day
O'Connor for refusing to provide a fifth vote for an
outcome that would have left Roe v. Wade a hollow shell.
It was the Webster case in 1989. Justice Scalia was then
only in his third term on the court. Justice O'Connor,
the court's only female member, had written critically
of Roe v. Wade in earlier opinions. But she found this
case an inappropriate vehicle for overturning the
decision. When the right case came along, she said
pointedly, "there will be time enough to re-examine Roe.
And to do so carefully."

With the result he desired having slipped from his
grasp, a furious Justice Scalia wrote in a separate
opinion that Justice O'Connor's position was
"irrational" and "cannot be taken seriously." Would he
have aimed those particular put-downs at a male
colleague? Maybe. As the ensuing years have
demonstrated, male colleagues, including Chief Justice
John G. Roberts Jr. and Justice Samuel A. Alito Jr.,
have not escaped Justice Scalia's barbs. He recently
described a majority opinion by Justice Alito as
incoherent and as displaying such sleight of hand as to
be worthy of Alfred Hitchcock. But in the innocence of
1989, the insults he delivered to Justice O'Connor
appeared shocking.

They also proved wildly inefficacious. Just three years
later, in Planned Parenthood v. Casey, Justice O'Connor
did "carefully" consider whether to retain the
constitutional right to abortion and voted with four
other justices to do so.

In fact, I can't think of an example of one of Justice
Scalia's bomb-throwing opinions ever enticing a wavering
colleague to come over to his corner. Certainly his
angry prediction in a dissenting opinion three years ago
that granting habeas corpus rights to the Guantánamo
detainees "will almost certainly cause more Americans to
be killed" did not lead Justice Anthony M. Kennedy,
author of the majority opinion in that case, Boumediene
v. Bush, to switch sides. Publishing such an
inflammatory statement once it was clear that it would
not shake the majority loose was an exercise in self-
indulgence that could serve only to undermine the
court's own legitimacy.

So the question raised by Justice Scalia's most recent
intemperate display remains: what does this smart,
rhetorically gifted man think his bullying accomplishes?

It's a puzzle. But having raised the question, I will
venture an answer. Antonin Scalia, approaching his 25th
anniversary as a Supreme Court justice, has cast a long
shadow but has accomplished surprisingly little. Nearly
every time he has come close to achieving one of his
jurisprudential goals, his colleagues have either hung
back at the last minute or, feeling buyer's remorse,
retreated at the next opportunity.

The area of property rights is a prime example. A 1992
Scalia opinion, Lucas v. South Carolina Coastal Council,
had raised the prospect that even temporary restrictions
on a land owner's right to develop property can amount
to a "taking" for which the owner is entitled to
compensation, as if the government had physically seized
possession of the property. But within a decade, the
court was backing away from this unsettling position,
treating the Lucas decision as an exception rather than
a rule.

Justice Scalia did have a moment of triumph with his
majority opinion three years ago in District of Columbia
v. Heller, interpreting the Second Amendment to convey
an individual right to own a gun, at least for a law-
abiding person, in the home, for self-defense. Because
so few jurisdictions have stringent gun-control laws of
the sort that the ruling invalidated, it remains to be
seen whether the Heller decision will have much
practical impact. Just last week, the federal appeals
court in Philadelphia rejected a Heller-based
constitutional challenge to the federal prohibition on
gun use by convicted felons.

Justice Scalia's real shining moment had come four years
earlier, on the subject of the Sixth Amendment's
confrontation clause. His opinion in Crawford v.
Washington ushered in a revolution in criminal
procedure. While under the Supreme Court's prior
approach, statements by unavailable witnesses could be
admitted at trial if a judge deemed the statements
sufficiently "reliable," the Crawford decision
established a contrary bright-line rule: confrontation
means confrontation. If a statement was "testimonial" in
character and the witness could not appear in court, the
statement stayed out unless the defendant had an earlier
opportunity for cross-examination. Speaking for seven
justices, Justice Scalia said that this was the only
interpretation of the confrontation clause that was true
to the original understanding of the Constitution's
framers.

The Crawford opinion left open the crucial question of
what kinds of statements were "testimonial." A series of
decisions drawing various distinctions followed. Two
years ago, to the consternation of prosecutors around
the country, another Scalia opinion held that the
affidavits of crime laboratory technicians, attesting to
a substance's identity as an illegal drug, were
testimonial, inadmissible unless the individual analyst
appeared at trial or had previously been available for
cross-examination. "This case involves little more than
the application of our holding in Crawford v.
Washington," Justice Scalia wrote in this case,
Melendez-Diaz v. Massachusetts. Not all his colleagues
were persuaded. His margin shrank to 5 to 4, with Chief
Justice Roberts and Justices Alito, Kennedy and Stephen
G. Breyer in dissent.

Like Justice Alito, Justice Sotomayor is a former
prosecutor. She replaced Justice David H. Souter, a
reliable member of the Scalia majority in these cases. A
new case, argued last week, gives the court an
opportunity to revisit the Melendez-Diaz precedent if a
new majority is so inclined. The question in the new
case, Bullcoming v. New Mexico, is whether for
confrontation clause purposes a laboratory supervisor
who did not actually perform the analysis is an
acceptable substitute for the individual technician.

Which brings us to last week's decision and dissent in
Michigan v. Bryant. While Justice Sotomayor's majority
opinion purported to accept Crawford as binding
precedent, the opinion is suffused with an attitude of
pragmatism. In the originalist cosmos of Antonin Scalia,
pragmatism has no place. With the highest achievement of
his originalist jurisprudence now in peril, fear as well
as anger was palpable in his dissenting opinion as he
suggested that the majority was not only wrong but was
composed of hypocrites.

"Honestly overruling Crawford would destroy the illusion
of judicial minimalism and restraint," he said,
wondering aloud whether the court instead was now
embarked on a course that would, through "a thousand
unprincipled distinctions," resurrect the old
"reliability" test "without ever explicitly overruling
Crawford."

This Friday, March 11, is Justice Scalia's 75th
birthday. It doesn't promise to be a happy one.

___________________________________________

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