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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Monday, June 18, 2012 ::
    Kagamania: the lady's loaded for bear!

    What was that I read some weeks ago about Kagan going hunting with Scalia? And it was, you know, totally with, not for? Well, it would appear from her dissent in Williams v. Illinois (in which Scalia joins, along with Ginsburg and Sotomayor) that she's learned to go after big game:

    In the pages that follow, I call JUSTICE ALITO’s opinion “the plurality,” because that is the conventional term for it. But in all except its disposition, his opinion is a dissent: Five Justices specifically reject every aspect of its reasoning and every paragraph of its explication. See ante, at 1 (THOMAS, J., concurring in judgment) (“I share the dissent’s view of the plurality’s flawed analysis”). JUSTICE THOMAS, for his part, contends that the Cellmark report is nontestimonial on a different rationale. But no other Justice joins his opinion or subscribes to the test he offers.
    That creates five votes to approve the admission of the Cellmark report [on the defendant's DNA; the accuracy of this report was not testified to in court by any witness with knowledge thereof -ed.], but not a single good explanation. The plurality’s first rationale endorses a prosecutorial dodge; its second relies on distinguishing indistinguishable forensic reports. JUSTICE THOMAS’s concurrence, though positing an altogether different approach [i.e. a narrow view of what makes hearsay "testimonial' -ed.], suffers in the end from similar flaws. I would choose another path—to adhere to the simple rule established in our decisions, for the good reasons we have previously given. Because defendants like Williams have a constitutional right to confront the witnesses against them, I respectfully dissent from the Court’s fractured decision. 

    The decisions she refers to lead off with Crawford v. Washington; a teaser for my article on that case, with full cite, is here.

    :: David M. Wagner 3:56 PM [+] ::

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