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


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.


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 Dellinger is a professor of law (on leave) at Duke University and a partner in the appellate practice at O’Melveny & Myers in Washington, D.C.



Smash and Grab

Will competitive Senate contests in Kansas and South Dakota lead to more late-breaking races in future elections?

Even When They Go to College, the Poor Sometimes Stay Poor

Here’s Just How Far a Southern Woman May Have to Drive to Get an Abortion

The Most Ingenious Teaching Device Ever Invented

Marvel’s Civil War Is a Far-Right Paranoid Fantasy

It’s also a mess. Can the movies do better?


Sprawl, Decadence, and Environmental Ruin in Nevada

Space: The Next Generation

An All-Female Mission to Mars

As a NASA guinea pig, I verified that women would be cheaper to launch than men.

Watching Netflix in Bed. Hanging Bananas. Is There Anything These Hooks Can’t Solve?

The Procedural Rule That Could Prevent Gay Marriage From Reaching SCOTUS Again

  News & Politics
Oct. 20 2014 6:49 PM God’s Oligarch One of Vladimir Putin’s favorite businessmen wants to start an Orthodox Christian Fox News and return Russia to its glorious czarist past.
Oct. 20 2014 6:48 PM Apple: Still Enormously Profitable
Oct. 20 2014 3:16 PM The Catholic Church Is Changing, and Celibate Gays Are Leading the Way
  Double X
The XX Factor
Oct. 20 2014 6:17 PM I Am 25. I Don't Work at Facebook. My Doctors Want Me to Freeze My Eggs.
  Slate Plus
Tv Club
Oct. 20 2014 7:15 AM The Slate Doctor Who Podcast: Episode 9 A spoiler-filled discussion of "Flatline."
Brow Beat
Oct. 20 2014 6:32 PM Taylor Swift’s Pro-Gay “Welcome to New York” Takes Her Further Than Ever From Nashville 
Future Tense
Oct. 20 2014 4:59 PM Canadian Town Cancels Outdoor Halloween Because Polar Bears
  Health & Science
Medical Examiner
Oct. 20 2014 11:46 AM Is Anybody Watching My Do-Gooding? The difference between being a hero and being an altruist.
Sports Nut
Oct. 20 2014 5:09 PM Keepaway, on Three. Ready—Break! On his record-breaking touchdown pass, Peyton Manning couldn’t even leave the celebration to chance.