Thursday, July 02, 2009

The Right of Confrontation and Civility at the SCOTUS

I have a column that appears today on FindLaw, discussing the Supreme Court’s recent decision in Melendez-Diaz v. Massachusetts. The Court held in Melendez-Diaz that prosecutors should not have been allowed to introduce scientific certificates into evidence to prove that a substance found on the defendant was cocaine, because the analyst who certified the finding did not testify and was thus unavailable to the defendant for cross-examination. My column discusses how the Sixth Amendment Confrontation Clause has come to give rise to such a ruling and why the Court’s relatively new approach to hearsay and the Sixth Amendment may not be long for this world.

One of the observations I make in my column is that the majority expresses great confidence in the result that it reaches, while the dissent (speaking for four Justices) expresses great disdain for the same. Though the column provides some quotations from the dissent, I will here give readers some more, from both sides of the fence:

Majority: “Respondent and the dissent advance a potpourri of analytic arguments in an effort to avoid this rather straightforward application of our holding in Crawford.”

Dissent: “Now, without guidance from any established body of law, the States can only guess what future rules this Court will distill from the sparse constitutional text.”; “It is difficult to confine at this point the damage the Court’s holding will do in other contexts.”

The tone is remarkably similar in the majority and in the dissent: it is one that combines befuddlement with contempt. To translate, it is as though each side of the dispute finds it remarkable that a group of intelligent and well-educated people who read the same prior cases that it did could reach such an idiotic result. In keeping with a theme that Neil Buchanan raised a few weeks ago on the question of civility among academic colleagues, I want to suggest here that Melendez-Diaz reflects a breakdown in civility among the Justices.

Although Justice Scalia has written a great many opinions that are perfectly civil, over the years he has also written opinions (whether for the Court, in concurrence or dissent or in his occasional dissents from denials of certiorari) that express disrespect for one or more of his fellow Justices. Anecdotal evidence suggests that this behavior extends beyond written opinions. According to published accounts, Scalia clerks have heard the Justice say on more than one occasion, “What's a smart guy like me doing in a place like this?” The comment, even if somewhat tongue-in-cheek (as one has to hope it was) bespeaks impatience with having to work with people who do not see the truth with the perspicuity that he does.

I have often credited Justice Scalia in my classroom with having almost single-handedly prevented the very conservative revolution he was installed to foment. By insulting Justices Kennedy and O’Connor (among others) he likely pushed them to moderate their views rather than join him on some issues where they would have otherwise been inclined to agree with him.

For a long time, other Justices have managed to rise above the behavior and let Justice Scalia remain the outlier. In Melendez-Diaz, however, we see evidence that this may no longer be true. There are places in Justice Kennedy’s dissenting opinion, for example, in which the style is unmistakably Scalian, even though he is disagreeing with Justice Scalia.

In one place, Justice Kennedy writes that it may not be possible for an analyst (who signed a certificate that is later offered in evidence) to come to court in time to be cross-examined by the defendant. “He or she may be ill,” Justice Kennedy explains, “may be out of the country… Or may at that very moment be waiting outside some other courtroom for another defendant to exercise the right the Court invents today.”

Such writing is unquestionably fun to read. Of all of the Justices’ opinions, I enjoy Justice Scalia’s the most. They are stylistically tight, interesting, witty, and often devastating in their facility with language and argumentation. For the Justices who must work with him, however, it is probably a good deal less fun to see one’s work disparaged and one’s good faith questioned. To use a phrase coined by Stanford Professor Bob Sutton, Justice Scalia may thus have successfully engaged in “homosocial reproduction” – bullying others until they themselves became bullies. If so, the overall snappiness of the Court's prose may pick up, even as the Justices enjoy their jobs less.

Posted by Sherry F. Colb

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