Scalia takes aim at balancing
Michael Froomkin - U.Miami School of Law
froomkin at law.miami.edu
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?
http://www.icannwatch.org Personal Blog: http://www.discourse.net
A. Michael Froomkin | Professor of Law | froomkin at law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285 | +1 (305) 284-6506 (fax) | http://www.law.tm
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