Justice Scalia Objects

By LINDA GREENHOUSE
NYT

One rough measure of how any Supreme Court term is going is to track the decibel level of Justice Antonin Scalia’s dissenting opinions. In a case last week, the question was whether statements made to the police by a shooting victim as he lay bleeding to death in the parking lot of a Detroit gas station were properly used at trial to obtain a murder conviction of the man he named as the gunman.

The court’s answer, by a vote of 6 to 2, was yes. Writing for the majority in the case, Michigan v. Bryant, Justice Sonia Sotomayor explained that what was all-important was the context in which the police-victim interaction occurred. Rather than trying to obtain a dying man’s testimony for later use in a courtroom, she said, the police were urgently investigating what they believed to be an “ongoing emergency,” someone with a gun on the loose on the streets of Detroit. Under that view of the facts, the victim’s statements were not “testimonial,” meaning that their use at trial did not violate the defendant’s right under the Sixth Amendment to “confront” an accuser who was unavailable for cross-examination.

That conclusion enraged Justice Scalia. Of course the police officers knew they were gathering evidence for potential use at trial, he objected, and to maintain otherwise was “so transparently false that professing to believe it demeans this institution.” With this decision, the Supreme Court “makes itself the obfuscator of last resort,” he complained. A “gross distortion of the facts,” “utter nonsense,” and “unprincipled” were a few of the other zingers the dyspeptic justice aimed at Justice Sotomayor’s opinion.

(More here.)