Friday, June 26, 2009

Real splits on criminal justice not liberal-conservative

A common theme on this blog is that divisions on criminal justice issues - despite common stereotyping - don't typically fall along partisan or traditional ideological lines. The typical culture war debates that dominate American politics simply don't cut the same way when it comes to issues of crime and punishment.

Yesterday's US Supreme Court decision in Melendez-Diaz v. Massachussetts offers a perfect example. In that ruling, the Court narrowly upheld application of the Sixth Amendment's Confrontation Clause to testimony by forensic experts.

Look at the breakdown of the 5-4 vote: Justices Ginsburg, Stevens and Souter joined the two self-styled "originalists" on the court, Scalia and Thomas, while the opposition saw the conservative Alito and Chief Justice Roberts siding with Justice Breyer, who is normally considered a "liberal," and Justice Kennedy, who authored the dissent, normally considered the "swing vote" on the court, though not in this case.

(I have to wonder if Kennedy's usual swing vote status contributed to his over-the-top hysterical dissent in Melendez-Diaz? It almost seems like he's so used to his vote deciding cases, he was furious not to find himself in the majority and expressed his dissatisfaction through hyperbole.)

The divide on this vote was not liberal or conservative. Instead, the split would be better described as between "constitutionalists" and "pragmatists." The Confrontation Clause is clear on its face that an opportunity for cross-examination is required of witnesses against the defendant, and it's a HUGE stretch to claim that someone providing information to prove an element of a crime in court is not a "witness." (Scalia obliterated Kennedy's lame arguments on that score, IMO.) But the four justices in the minority thought it would be too burdensome to require compliance with the Constitution, while Scalia said that "The Confrontation Clause—like those other constitutional provisions—is binding, and we may not disregard it at our convenience."

Quite frankly, I fear that if President Obama's nominee, Judge Sonia Sotomayor, had already replaced David Souter, the Melendez-Diaz decision would have likely gone the other way.

This plague of "pragmatism" on the court has virtually obliterated the Fourth Amendment restrictions on warrantless searches and seizures, with SCOTUS near-constantly finding excuses to justify searches that don't comply with the clear language of the Constitution. At traffic stops, in particular, the Fourth Amendment has become nearly a dead letter.

Similarly, in their big Fourth Amendment case yesterday on strip searching in schools, the Justices were able to achieve an 8-vote majority only by issuing an opinion that's virtually worthless for its precedential value. A commenter over at Sentencing Law & Policy wondered, "Is the message that the 4th Amendment is a facts and circumstances question, rather than a clean cut set of doctrines?" IMO that's exactly the message, and it's the same one the court's been sending on the Fourth Amendment for the last 25 years or so.

Bottom line: Respect for the Constitution isn't a liberal or conservative issue. Nor is it a universal value revered by the nation's judges, too many of whom find their loyalties lie closer to the pragmatic needs of the state's law enforcement apparatus than to the principles in the nation's founding document.

BLOGVERSATION: See "Godzilla v. Mothra" from the TXCCA Blog.


Anonymous said...

Sadly, these were two defeats for state's rights and two victories for the national government.

Anonymous said...

Anon 10:22, I do not follow your thoughts. How are the decisions a federal versus state's rights issue? Simply, if the court upholds Constitutional law versus the free-wheeling methods of governmental bodies, it is a confirmation of the People's Right.

Anonymous said...

Look 10:29 the court taking away the powers of the stats to run their courts and schools. And this is supposedly in the name of the constitution.

But remember, it is not the 4th amendment or 6th amendment in question but the real issue is the 14th amendment.

Up until the 14th amendment, it was supposed that the bill of rights only applied to the federal government. The 14th amendment was passed to stomp out the black codes passed shortly after the civil war. Did it really intend for the bill of rights to be incorporated and apply to the states? It is debatable.

At any rate, I believe that state's rights are a cornerstone of our freedom. I'm sad to see these develepments.

Gritsforbreakfast said...

If you're going to play the "state's rights" card on these issues, let's apply it across the board: Drug laws, gun restrictions, etc. Even immigration regulation was a state's right before the Civil War.

But the Civil War happened, as did the 14th Amendment and its subsequent application to the states is now a fait accompli. Griping about it won't change history.

BTW, Clarence Thomas is the biggest champion of state's rights on the court and he sided with the majority.

Warren said...

"I believe that state's rights are a cornerstone of our freedom. I'm sad to see these develepments." -Anon 10:41:00 AM

Uh dude. Don't you understand that these 2 decisions give people MORE freedom by limiting government's power to mess with you?

Gritsforbreakfast said...

Whoops, should have said Thomas sided with the majority in Melendez-Diaz. Thomas was the lone dissenter in the strip search case.

Anonymous said...

I just wanted to say that that this post is something I agree with all my heart and mind. Every word of it.

I sometimes disagree with Scalia about what the Constitution actually says, but I agree that when it says something it actually means it.

IMHO it's actually the pragmatists that are really the "judicial activists" (a phrase I hate). There is nothing "pragmatic" about them, in the philosophical meaning of that word. My own term for them is "monarchists". If the people don't like the practical consequences of the Constitution in this day and age the solution is to amend the Constitution.

BTW, I don't think the dissents hyperbole came from ego. I think it was his sly way of saying to Scalia: see, I can trot out a "parade of horribles" too.

JohnT said...

Grits, your point is excellent. I found myself, to my amazement, agreeing completely with Scalia. I never thought that would happen.

Way to go, Tony! (And the others of the majority)

Anonymous said...

True pragamatism would provide more funding for the courts.

The fact that 95% of criminal cases are decided by "plea deals" alone is enough to know that the consititutional rights of are useless. Part of the "deal" is to give up your constitutional rights.

Talk about convenient for the prosecution!!!!

Anonymous said...

Uh dude. Don't you understand that these 2 decisions give people MORE freedom...

That's what they want you to believe Warren.

I trust the state governments more than I trust the federal government. There are two reasons for this:
1. There are 50 states to live in, so its real easy to leave.
2. Elected state officials tend to be more accessible and responsive.

John Thacker said...

Yeah, it's the same majority from:
Apprendi, Ring, US v. Booker, Blakely v. Washington, Arizona v. Gant, and of course the other big Confrontation Clause case, Crawford.

Pretty similar to the Kyllo v. US lineup.

Pragmatists v. legalists.

It's a big, big question whether Sotomayor is going to go with Souter on those cases. A lot of cases could flip, which could really hurt criminal defendants.

Anonymous said...

Anonymous 6:29, Are you trotting out that old bromide "if you don't like it leave it?" And can you back up your claim that state elected officials tend to be more accessible and responsive?
We are a constitutional democracy, not a pure democracy. In a pure democracy the minority(ies) would have no rights. Thank God for the constitution.
Rev. Kiker

Gritsforbreakfast said...

I actually agree that "state elected officials tend to be more accessible and responsive." I live 1.25 miles from the state capitol building and when the Lege is in session I can drive down there and physically find them (or their staff) and talk to them, if need be, just like you and the Friends of Justice, Rev. Kiker, could come to Austin a lot more often after the Tulia debacle than you could make it to Washington. So I think that's a very valid point.

My main response to that and to 9:01 is simply that the Civil War happened. (Hell, the side my family fought for lost, so don't blame me! ;) ) The Bill of Rights was thence federalized through the 14th Amdt in a way that 8 current members of the court accept as permanently enshrined in constitutional law, something I have little reason to believe will change in our lifetimes. In fact, the trend is going the other way with Heller recently applying the extension of the 2nd Amdt to the states.