Supreme Court Year in Review

What Do Criminal Defendants Really "Enjoy"?
An email conversation about the news of the day.
June 24 2011 4:29 PM

Supreme Court Year in Review

VIEW ALL ENTRIES

Illustration by Rob Donnelly. Click image to expand.

Dahlia and Paul—

I'm not feeling particularly Confrontational, so I won't criticize anything either of you has said about Bullcoming. I agree that the case may have taught us something about Justice Sonia Sotomayor. When her nomination was pending before the Senate, a common observation was that having her replace Justice David Souter might move the court a bit to the right on criminal justice issues. The thinking was that her prior experience as a prosecutor and trial court judge would make her more sympathetic to the practical necessities of law enforcement than was the case with her more bookish predecessor. Well, so far that doesn't seem to be the case.

Advertisement

In Bullcoming, Sotomayor spurned the "pragmatic" justices who argued that it wasn't practical or realistic in thousands of cases to have the particular technician who peered at the blood smear and ran the numbers actually show up in court. Instead she cast her lot with the "legalist" justices (Scalia, Thomas, Ginsburg, and now Kagan) who argued that the Confrontation Clause means what it says when it says "the accused shall enjoy the right … to be confronted with the witnesses against him."  It doesn't say, "… or with the witness' supervisor or co-worker." 

Sotomayor was, as Paul noted, "on the other side" earlier this term in Michigan v. Bryant, where she wrote the decision defending a prosecutor's use of a dead man's tale against a defendant who obviously couldn't confront him, at least not in this lifetime. I was surprised that she didn't follow Bryant by accommodating the burden on law enforcement in Bullcoming. I guess we will have to wait until next term to see if she is really more pragmatic than Souter was.

A curious side question about constitutional word choice: Does it seem odd to you that the Sixth Amendment says that a criminal accused shall "enjoy" the right to confront witnesses? I can understand being grateful for the opportunity to cross-examine. But I'm not sure I'd really "enjoy" anything about being a criminal defendant. They must have been hard-pressed for things to "enjoy" in 1791.  Otherwise, what was Madison thinking?

I want to address soon one recurring theme of this term: the number of opinions that are really about the role of courts. Maybe I'll try to write something about that over the weekend before we get caught up in next week's cases.

Walter

TODAY IN SLATE

Foreigners

More Than Scottish Pride

Scotland’s referendum isn’t about nationalism. It’s about a system that failed, and a new generation looking to take a chance on itself. 

What Charles Barkley Gets Wrong About Corporal Punishment and Black Culture

Why Greenland’s “Dark Snow” Should Worry You

Three Talented Actresses in Three Terrible New Shows

Why Do Some People See the Virgin Mary in Grilled Cheese?

The science that explains the human need to find meaning in coincidences.

Jurisprudence

Happy Constitution Day!

Too bad it’s almost certainly unconstitutional.

Is It Worth Paying Full Price for the iPhone 6 to Keep Your Unlimited Data Plan? We Crunch the Numbers.

What to Do if You Literally Get a Bug in Your Ear

  News & Politics
Weigel
Sept. 16 2014 7:03 PM Kansas Secretary of State Loses Battle to Protect Senator From Tough Race
  Business
Moneybox
Sept. 16 2014 4:16 PM The iPhone 6 Marks a Fresh Chance for Wireless Carriers to Kill Your Unlimited Data
  Life
The Eye
Sept. 16 2014 12:20 PM These Outdoor Cat Shelters Have More Style Than the Average Home
  Double X
The XX Factor
Sept. 15 2014 3:31 PM My Year As an Abortion Doula
  Slate Plus
Slate Plus Video
Sept. 16 2014 2:06 PM A Farewell From Emily Bazelon The former senior editor talks about her very first Slate pitch and says goodbye to the magazine.
  Arts
Brow Beat
Sept. 16 2014 8:43 PM This 17-Minute Tribute to David Fincher Is the Perfect Preparation for Gone Girl
  Technology
Future Tense
Sept. 16 2014 6:40 PM This iPhone 6 Feature Will Change Weather Forecasting
  Health & Science
Medical Examiner
Sept. 16 2014 11:46 PM The Scariest Campfire Story More horrifying than bears, snakes, or hook-handed killers.
  Sports
Sports Nut
Sept. 15 2014 9:05 PM Giving Up on Goodell How the NFL lost the trust of its most loyal reporters.