Dear Paul and Walter:
One of the reasons we are so fascinated by the court's so-called "confrontation clause" cases—they concern the right of the accused, as described in the Sixth Amendment, "to be confronted with the witnesses against him"—is that they scatter the usual groupings into a new pattern. Instead of breaking down along any recognizable political lines, the court clusters into what Walter helpfully described several years back as the court's legalists versus its pragmatists. Back then, we were discussing Blakely v. Washington, a sentencing case, and the court's legalists were Justices Antonin Scalia, Ruth Bader Ginsburg, John Paul Stevens, David Souter, and Clarence Thomas. In their view, the Constitution means what it says, period. The pragmatists—less worried with the constitutional purity of the holding than with the disastrous implications for the justice system—were Justices Sandra Day O'Connor, Stephen Breyer, Chief Justice William Rehnquist, and Justice Anthony Kennedy. When Melendez Diaz v. Massachusettswas decided in 2009, the legalist camp stayed the same as the new Chief Justice John Roberts and Justice Samuel Alito stood with their predecessors, Rehnquist and O'Connor. The issue in Melendez Diazwas whether the confrontation clause gave criminal defendants the right to cross examine, in person, the lab technicians and other forensic analysts who testified against them, even when that "testimony" largely consisted of somewhat mechanical reports on blood and drug evidence. The court said yes. Roberts and Alito sided with the pragmatists in dissent.
We are now starting to see that Justices Elena Kagan and Sonia Sotomayor will follow in the footsteps of their legalist predecessors as well. Today, in a new confrontation case, Bullcoming v. New Mexico, the court determines that confrontation clause requires not just that a defendant be permitted to cross examine the lab technician who prepared a blood report but that the lab analyst who testifies at a criminal trial must be the same person who performed the tests. The case involved a drunk driver in New Mexico who objected when the lab technician who testified against him at trial neither conducted the tests on his blood nor witnessed it. Writing for herself, Scalia, Thomas, Kagan, and Sotomayor, Ginsburg finds that New Mexico Supreme Court was wrong to conclude that the surrogate testimony of another lab technician satisfies the confrontation clause. The state high court had ruled the testimony permissible, because the analyst "simply transcribed the result generated by the gas chromatograph machine" and presented "no interpretation" or "independent judgment" in his testimony. Thus the machine itself was Bullcoming's "true accuser," and the testifying analyst, a "mere scrivener." Ginsburg wasn't buying it.
These confrontation clause cases not only make for strange bedfellows. They also lead the bedfellows to speak to each other in the harshest possible terms. Earlier this term, in Michigan v. Bryant, another case involving the right to confront one's accuser, six justices determined that a dying man's identification and description of the man who shot him was not "testimonial" for confrontation clause purposes because they had a "primary purpose … to enable police assistance to meet an ongoing emergency." Scalia, writing in dissent on behalf of himself and Ginsburg, pretty much accused Sotomayor and the majority of mangling the truth to suit their legal conclusions. Wrote Scalia, furiously: "Today's tale—a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose—is so transparently false that professing to believe it demeans this institution."
Kennedy, writing in dissent in Bullcoming today, accuses the majority of fashioning a "rule not amenable to sensible applications" and of using "wooden formalism in order to bar reliable testimony offered by the prosecution." He then details the practical burdens the court's confrontation clause jurisprudence has imposed upon the states. It's interesting to see how readily the pragmatists will constrain the confrontation clause as written when they deem the costs too high. I wonder whether and how you both think this formalist/pragmatist split will continue to creep into other areas of criminal law.
Walter, I am so glad to hear your thoughts on the deeply distressing process that has played out in the current war powers debate and am glad you agree that the White House has misstepped. And, Paul, are you thinking about the White House or the court today, or are you just madly playing violent video games while you still can? Looking forward.