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.