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March 23, 2007

On Fisher's ability to hook Justice Scalia

04ssix The ABA e-Journal has this great new piece discussing Jeff Fisher's ability in both Crawford and Blakely to connect Justice Scalia and the Supreme Court's liberal wing to develop new rights for criminal defendants.  The piece is entitled "A Sixth Sense About Criminal Trials: A young litigator unites Justice Scalia and the court's liberals over defendants' rights," and here are parts of a great article:

Fisher aimed his pitch right [in Crawford] at Scalia's jurisprudential wheelhouse: an originalist theory of constitutional law, a duty to the Constitution's text, and an adherence to bright-line rules. Add for good measure a reverence of 18th century colonial history.  For Scalia, originalism says that the Constitution's founders meant what they said and said what they meant. So the court must be faithful 100 percent....

"When it comes to having a jury or witness confrontation or lawyer you pick, it's all or nothing," says Uni­versity of Pennsylvania law professor Stephanos Bibas, who writes frequently about criminal procedure issues.  That meant that in Crawford the court scuttled its long-held test for admitting out-of-court statements, a balancing formula that measured a statement's reliability....

For Scalia, few things grate more abrasively than balancing tests.... "Balancing tests are great if the judiciary shares your values," Fisher says.  "As soon as the judiciary doesn't share your values, you need hard-and-fast rules."

Courts, including the Supreme Court, increasingly have favored the prosecution through the 1980s and '90s, says Fisher.  "Most federal judges come from the prosecution side," he says. The consequence has been a series of setbacks for the criminal defense bar and for those judges and justices who favor defendants' rights....  "Liberals need not run from constitutional text. They can embrace it."

Scalia’s originalism also speaks to his faith in juries, according to Bibas, and for that the justice relies on colonial history.  "The founding generation trusted juries, and not judges, in part because King George III had pressured judges and used them to oppress the colonies," Bibas says.  For Scalia, the jury is nothing short of democracy itself — “the spinal column of American democracy,” he wrote in a 1999 case, Neder v. United States, 527 U.S. 1.

March 23, 2007 at 12:06 PM | Permalink


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If the Constitution requires X, shouldn't X be the categorical imperative. The problem is the "plus Y" that the judiciary has added along the way.

Posted by: federalist | Mar 23, 2007 12:19:59 PM

It's Friday so Scalia must be an originalist. I wonder what he'll be tomorrow before returning to his originalist roots on Sunday.

Posted by: Elson | Mar 23, 2007 12:40:06 PM

I'd call the article good, not great. For one, the author is wrong to say that Fisher "won" in Davis and that the Court "limit[ed] the use of 911 calls in place of live witness testimony." Only the defendant in the companion case, argued by Professor Richard Friedman, won. Fisher's client, unfortunately, lost and, in almost all cases, 911 calls can be used in place of live witness testimony.

Posted by: stickler | Mar 23, 2007 4:56:36 PM

Actually, the Davis court did limit the use of 911 testimony. It drew a clear line between questions designed to get out at the emergency ("is he still there?") and investigator questions ("tell me what happened"). The problem is that all the lower courts hate Crawford v. WA so much that they'll be dishonest about the purpose of any question and will contend that there's always an emergency going on. The lying will be (and is) particularly bad in domestic violence cases.

Posted by: Anon | Mar 23, 2007 7:03:58 PM

Scalia was united with the Court's liberals over the Confrontation Clause long before Fisher ever stepped before the Court. See Maryland v. Craig, 497 U.S. 836, 860-70 (1990)(Scalia, J., dissenting, joined by Brennan, Marshall, and Stevens, JJ.). The article cites Scalia's dissent in Craig but somehow overlooks that the only change between 1990 and 2005 was one vote on the Court, not a lawyer "hooking" Scalia. The Craig dissent is Crawford in every respect but head count.

Posted by: | Mar 26, 2007 10:41:39 AM

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