The following words, written by Justice Scalia for seven members of the Supreme Court in today's Crawford v. Washington decision, will — if taken seriously — lob a hand grenade into many regions of Constitutional interpretation. As one who believes that balancing tests are indeed swallowing the Constitution (this is deep into the territory where left libertarian-leaning people meet right-libertarian leading people — a zone I only frequent rather than residing in) I think this has the potential to be a wonderful and transformative tonic for much of what ails constitutional doctrine:
By replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design. Vague standards are manipulable, and, while that might be a small concern in run-of-the-mill assault prosecutions like this one, the Framers had an eye toward politically charged cases like Raleigh’s—great state trials where the impartiality of even those at the highest levels of the judiciary might not be so clear.
Of course, it could also lead to disaster if the bright lines get drawn in the wrong places…
It will be absolutely fascinating to see whether and how this principle is applied in all the upcomong cases in which the government claims various exceptions to ordinary rules of criminal and constitutional procedure in order to fight the War on Terror. (I can already imagine an out for the monarchist tendency on the Court, however: treat something as an 'exception' or a 'special case' and it's not a 'balancing' issue.)
Incidentally, the underlying decision in Crawford — that the Confrontation Clause should be interpreted strictly and thus should exclude most types of hearsay — is pretty incendiary too, as it overrules almost 25 years of contrary Supreme Court precedent, if not more.
“great state trials where the impartiality of even those at the highest levels of the judiciary might not be so clear.”
Scalia wrote that with a straight face? So this means he’s recusing himself, right?
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As a litigant residing in Washington state, I have long experience with the regal corruption existing within the Washington state judiciary, and its obsequious, mal-educated, and incompetent, legal profession.
Crawford actually removed the most destructive, fictional, and merely assumed power from the judges which had allowed them to violate the constitution in the first place: “Broad Discretion.” Washington state judges have always said those words when actually meaning “prerogative” of the ‘royal’ variety.
Scalia seems to agree that the judges, of the inferior courts, have been operating as modern versions of the Medieval ecclesiastical/prerogative courts with their spooky fictions of ‘inherent powers,’ special esoteric knowledge; religious canons; doctrines, etc. and may have finally come to the conclusion that judges claiming these non-existent powers are, clinically speacking, “NUTS” and must be brought into compliance with the other branches of American government who must operate only according to our enumerated law and who do not claim such powers. When members of congress, or the executive branch, violate the law and do really stupid things, they hire lawyers, or run. Judges claim “inherent powers;” broad discretion,” and, finally when none of that works, “absolute immunity.”
The Crawford decision is the first decision I’ve ever read where the Supreme Court judges were absolutely correct in fact, history, and law. They should go back and “fix” Pullian v. Allen (1984). It’s a factual and historical mess, and, not law at all.