We consider whether a defendant forfeits his Sixth Amendment right to confront a witness against him when a judge determines that a wrongful act by the defendant made the witness unavailable to testify at trial.
-- GILES v. CALIFORNIA
Heller wasn't the only ruling that Scalia wrote and used to focus on original understanding and old time English precedents. The other concerned statements admitted into a murder trial involving past comments of the person killed. This was held as inadmissible hearsay as such because (uh) she could not be cross-examined. Stevens and Breyer (with Kennedy this time) dissented here too. Souter wrote a concurrence,* which I wish he did in Heller, noting original understanding is only of limited relevance and clarity, but overall, the majority was right.
[It does bear noting that the majority here followed originalist history with precedent supporting it -- more completely than in Heller, surely.]
Some discussion of the latter point is being made at some interesting discussions over at Balkinization, where I felt compelled to submit my .02 in most cases. A respectful look at history and original understanding generally warrants such a perspective, one sadly ignored too often by simplistic reasoning on both sides. And, as compared to some at Volokh Conspiracy, I'm not as enthusiastic when both sides use history badly. The fact something looks "scholarly" only takes you so far.
The majority here noted that the sad situation here aside, "abridging the constitutional rights of criminal defendants is not in the State’s arsenal." Calling Justice Brennan. The majority, as noted by Souter, also had an interesting bit that channeled Scalia's pal Justice Ginsburg:
The domestic-violence context is, however, relevant for a separate reason. Acts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions. Where such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution—rendering her prior statements admissible under the forfeiture doctrine. Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.
It's good when such perspectives show up in court rulings. It also underlines that Scalia often is not as "clean" as some conservatives think. He sets forth a clear line here, but opens up a chance to make it more complicated. In Heller, he protects the right to gun ownership, but (reading like an advisory opinion) assures us a ton of regulation is allowed (and not only the ones he listed). And, he opposes the Court's punitive damage case law, but in the Exxon case served as the key vote (along with Thomas) to strike down the award because of some maritime exception Stevens and company noted was far from compelling.
Another term ends. Looking forward to my recent tradition of reading the Cato Supreme Court review around October.
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* He noted in part:
The contrast between the Court’s and Justice Breyer’s careful examinations of the historical record tells me that the early cases on the exception were not calibrated finely enough to answer the narrow question here.
The gun case was broader in scope, but the same thing, in a fashion, could have been said there.