Scalia takes aim at balancing

Michael Froomkin - U.Miami School of Law froomkin at
Mon Mar 8 18:27:09 PST 2004

I was very struck by this passage in today's Crawford v. Washington
decision, in which Justice Scalia, writing for seven Justices, states,

"By replacing categorical constitutional guarantees with open-ended
balancing tests, we do violence to their design. Vague standards are
manipulable, and, while that might be a small concern in run-of-the-mill
assault prosecutions like this one, the Framers had an eye toward
politically charged cases like Raleigh's--great state trials where the
impartiality of even those at the highest levels of the judiciary
might not be so clear."

If taken seriously, this anti-balancing rule would seem to be one
with far-reaching effects reaching well beyond the Confrontation Clause.

The decision itself seems fairly remarkable, and one with potential
implications for upcoming terrorism-related cases, especially those in
which the government relies on "Mobbs" declarations...

Am I reading too much into this?
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