Three Liberals + Two Conservatives on the Confrontation Clause (and the Jury Trial Clause)

Bullcoming v. New Mexico continues the coalition of three liberals — formerly Ginsburg, Stevens, and Souter, now Ginsburg, Sotomayor, and Kagan — plus two conservatives, Scalia and Thomas who take a relatively broad view of the right to jury trial and to confront witnesses. On the other side are three conservatives (formerly Kennedy, Rehnquist, and O’Connor, and now Kennedy, Roberts, and Alito) plus one liberal (Breyer), who have taken a narrower view of both. The pattern is by no means not perfect; some of the cases don’t follow this breakdown, but several have, and the others tend to involve one or two judges switching from one side to the other, but not the 5-4 conservative vs. liberal or 5-4 liberal-plus-Kennedy vs. conservatives-minus-Kennedy splits, which are the most common 5-4 patterns.

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