At times, I’ve heard people express doubt that Justice Scalia’s judicial principles — chiefly a preference for clear rules and for interpreting the Constitution by focusing on its original meaning and on its traditional application — ever helps supposedly traditionally liberal causes, such as the rights of criminal defendants. I’ve pointed before to many cases that should help dispel such doubts, and this morning brings another case (Crawford v. Washington) where Justice Scalia’s opinion reverses a criminal conviction on Confrontation Clause grounds. Justice Scalia was joined by the four relatively liberal Justices and by Justices Kennedy and Thomas; the Chief Justice, joined by Justice O’Connor, disagreed (though they concurred in the judgment, they would have taken a generally less defendant-friendly position for cases such as this one).
One can certainly disagree with Justice Scalia’s results, his method, or his application of his own method; and the examples I give do not (because individual examples cannot) rebut the more sophisticated claim that Justice Scalia may vote for criminal defendants less often than a completely impartial application of his stated methods should suggest. But I do think that the cases do rebut any general assertion that “Scalia will always [vote / apply original meaning / craft formal rules] against criminal defendants” — an assertion that I have too often heard people make.
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