Monday's Supreme Court decision involving a defendant's Sixth Amendment right to confront witnesses against him provides another piece of evidence contradicting the popular caricature of Justice Antonin Scalia as a law-and-order conservative who reflexively sides with the government in criminal procedure cases. The issue was whether a dying victim's identification of the man who shot him could be repeated in court by police. It seems this testimony should be covered by the "dying declaration" exception to the ban on hearsay evidence, as Justice Ruth Bader Ginsburg suggested in her dissent. But for some reason, the prosecution did not make the argument, instead claiming that the victim's statement should not be considered "testimonial"—a rationale accepted by six justices. (Elena Kagan did not participate in the case because she worked on it as solicitor general.) In his own "slashing dissent" (as New York Times legal writer Adam Liptak describes it), Scalia mocked the majority's conclusion:
Today's tale—a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose—is so transparently false that professing to believe it demeans this institution. But reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; it affects, after all, only the case at hand. In its vain attempt to make the incredible plausible, however—or perhaps as an intended second goal—today's opinion distorts our Confrontation Clause jurisprudence and leaves it in a shambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort….
For all I know, Bryant [the defendant] has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all.
This does not sound like a man who is hostile to the procedural safeguards (a.k.a. "technicalities") that irk authoritarian conservatives. The point is not the Scalia is necessarily right in this case, or that he is a reliable defender of civil liberties. But in this area, as in Hamdi v. Rumsfeld and sentencing cases involving the Sixth Amendment right to trial by jury, he has not been afraid to stake out bold positions based on what he believes the Constitution requires, reaching results that are friendlier to defendants than the conclusions of his left-leaning colleagues. Scalia has a mixed Fourth Amendment record, but here too he has sometimes proven himself more skeptical of the government's position than his allegedly liberal colleagues.
In 2008 I argued that "Scalia's not half bad," which is "more than you can say for most justices."