The Supreme Court’s consolidated ruling in United States v. Davis and United States v. Hammon is a classic of the genre of consensus opinions to which the Roberts Court aspired in its first, transitional term. The opinion, authored by Justice Scalia, contains practical accommodations unusual in a decision by the Court’s fiercest proponent of first principles. The restraint that characterized the term is, of course, more about considerations of logistics (including the desire to avoid re-arguments after the mid-term replacement of Justice O’Connor) than about the alignment of logic. Because it reflects temporary institutional constraints rather than intellectual agreement, the much-talked-of consensus, already less evident in the final decisions of the term, will decline further in the term to come. But Davis was considered and decided at a cultural moment when non-unanimous decisions were closely watched, and dissent was taken as a signal that the majority opinions somehow carried less precedential weight. Because compromise was not only the aspiration but also the expectation, Justice Scalia found himself engaged in strategic and incremental decision-making, in an attempt to count to nine instead of five. That attempt narrowed the class of cases in which confrontation rights will apply. Whether, in those cases, the right will have meaningful content depends in part on the Court’s next steps with regard to the requirement of cross-examination itself.
Lisa K. Griffin,
Circling around the Confrontation Clause: Redefined Reach But Not a Robust Right,
Mich. L. Rev. First Impressions
Available at: https://repository.law.umich.edu/mlr_fi/vol105/iss1/24