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.