Confrontational Scalia on the Confrontation Clause

Justice Scalia lost it Monday in Michigan v. Bryant. As the majority ruled that a gunshot victim’s dying words to police could be used at trial against the alleged shooter, Scalia erupted. “[T]oday’s decision is not only a gross distortion of the facts. It is a gross distortion of the law—a revisionist narrative … at least where emergencies and faux emergencies are concerned.”

The majority opinion, written by Justice Sonia Sotomayor, said the victim’s statements identifying defendant Richard Perry Bryant – as the victim bled in a gas station parking lot — were made in an emergency situation and not “testimonial.” So allowing them at trial did not violate the Sixth Amendment’s Confrontation Clause, which guarantees that a defendant may confront his accuser.

Scalia’s anger and frustration were palpable. That’s because this is one area where Scalia had made progress over the past decade with his originalist approach, to narrow the grounds for exceptions to the confrontation guarantee. In an important 2004 case, Crawford v. Washington, he wrote the Court’s opinion making it harder to bring into trial past statements of witnesses who could not be cross-examined (for example, because they had died or invoked a privilege) even when the statements seemed reliable.

Scalia protested any exceptions to a rule that he said reflected the Framers’ understanding: “testimonial statements of witnesses absent from trial (may be admitted) only where the defendant has had a prior opportunity to cross-examine.”

In my interviews with Scalia, he called the Crawford case “one of the ones I’m most proud of – bringing the Confrontation Clause back to what the people thought it meant when they adopted it.” Scalia, not typically a friend of criminal defendants, took pride in saying he could disregard the social policy consequences (i.e. critical testimony against the shooter is kept from trial) of his originalist view.  On Monday, he suggested the court lacked “the courage” to persist in an unpopular series of cases that conflicted with the justices’ “policy preferences.”

He wrote alone in the 6-2 case (Justice Elena Kagan recused). The only other dissenter, Justice Ruth Bader Ginsburg, said she agreed with Scalia that the majority was creating “an expansive exception to the Confrontation Clause for violent crimes.” But she aired her protest in a page and a half. Scalia took 17 pages, and as Orin Kerr observed Monday, Scalia’s dissent was “blistering even by Justice Scalia standards.”