{"id":196,"date":"2014-12-10T14:26:34","date_gmt":"2014-12-10T14:26:34","guid":{"rendered":"http:\/\/blogs.ubalt.edu\/cstarger\/?p=196"},"modified":"2022-06-11T20:15:16","modified_gmt":"2022-06-11T20:15:16","slug":"confrontation-lines-builders-bashers-and-the-swing-vote","status":"publish","type":"post","link":"https:\/\/blogs.ubalt.edu\/cstarger\/2014\/12\/10\/confrontation-lines-builders-bashers-and-the-swing-vote\/","title":{"rendered":"Confrontation Lines: Builders, Bashers, and the Swing Vote"},"content":{"rendered":"

This is the fifth and final installment in a series mapping Confrontation Clause doctrine since Crawford v. Washington <\/em>(2004). In previous posts, I identified the 2-degree network<\/a> connecting Williams v. Illinois<\/em> (2012) to Crawford<\/em>, calibrated the network<\/a> to correct over- and under-inclusiveness issues, analyzed the network’s degree of dissent<\/a>, and disaggregated the network<\/a> into its 23 constituent opinions. Today I’ll wrap up by charting out the primary\u00a0competing\u00a0lines in the doctrine. I identify\u00a0three major lines, which I’ll call\u00a0the Builders, the Bashers, and the Swing Vote.<\/p>\n

The story here begins in\u00a02004. Five of the justices currently sitting on the Court participated in the original\u00a0Crawford<\/em> deliberations — Scalia, Kennedy, Thomas, Ginsburg, and Breyer. Those five justices remain the prime movers in the Confrontation Clause debate today. Although all five signed on to Justice Scalia’s majority opinion in Crawford<\/em>, they have since split into three camps. Let’s examine each camp\u00a0in turn.<\/p>\n

\"13_Crawford_builders_line\"<\/a><\/p>\n

First up we have the Builders line. I call Justices Scalia and Ginsburg by this name because they have sought to build up and extend Crawford<\/em>‘s innovation. While Scalia is clearly the doctrine’s main architect, Ginsburg has proved a staunch ally. Scalia and Ginsburg have written every majority opinion where the right was vindicated and they were the only<\/em> two justices to dissent\u00a0in Bryant<\/em>. \u00a0Indeed, the Builders’ perspective has shone though in every case except Williams<\/em>. ( Of course, both Scalia and Ginsburg signed onto Kagan’s Williams<\/em> dissent.)<\/p>\n

Before turning to\u00a0the Bashers line, a brief\u00a0explanation about map legend is in order. All of today’s maps use upward-facing triangles to represent opinions advocating in favor of\u00a0the confrontation right\/criminal defendant and downward facing triangles to represent the opposite. Solid arrows connecting opinions to each other signify connection between the main justices\/authors in the line. Dotted arrows represent connections with less central justices\/authors. Thus, the arrow from Bullcoming<\/em> to Williams<\/em>\u00a0in the map above is dotted since Kagan — not main Builders Scalia or Ginsburg — wrote that dissent.<\/p>\n

\"14_Crawford_bashers_line\"<\/a><\/p>\n

Though it was not always so, Kennedy and Breyer are the Bashers of Crawford<\/em> doctrine. At first, the Bashers\u00a0joined Scalia — shown in the map by the dotted lines from Crawford<\/em> and Davis<\/em>. Then came Giles<\/em>. And then came the split. (For an excellent discussion about Giles<\/em>‘ doctrinal\u00a0impact, see Prof. Richard Friedman’s contribution to the this recent Michigan Law Review Symposium<\/a>). After Giles<\/em>, Kennedy and Breyer have bashed the confrontation right in every case the Court has heard. Thus, the Bashers are the doctrinal nemeses of the Builders.<\/p>\n

\"15_Crawford_swing_line\"<\/a>Finally, there is Thomas. He is the Swing Vote. Amazingly, Thomas is the only justice to have voted with the majority in every single case in this line. He picks the winners. And Thomas’\u00a0campaign to affect the doctrine actually started before<\/em> the Bashers split\u00a0in Giles<\/em>. Thomas first voiced his unique formal approach to understanding what makes a statement “testimonial” in Davis<\/em>. And in every case after Davis<\/em>\u00a0(except for Bullcoming<\/em>), Thomas has doggedly pushed his perspective. For his persistent efforts, Thomas\u00a0can claim\u00a0success. Though Thomas only\u00a0concurred in Williams<\/em>, at least one court reckons\u00a0his\u00a0is the controlling opinion<\/a>.<\/p>\n

\"16_Crawford_builders_bashers_swing\"<\/a><\/p>\n

The map above brings the Builders, Bashers, and Swing Vote into a single\u00a0frame. This image represents the major doctrinal currents at play in Confrontation Clause jurisprudence. These are the waters to be navigated by advocates in Ohio v. Clark<\/em><\/a>, the Court’s next major Crawford<\/em>-line case.<\/p>\n

This post is already longer than usual; it’s time to sign off. Before doing so, I want to make a final point. Though the map above distills what I see as the most important lines in the debate, I recognize that\u00a0it is incomplete. If I had time — alas, winter break is here and grades are due soon! — I might also trace the complications introduced by the \u00a0post-2004 justices. (The Kagan-Sotomayor line is interesting, for example,\u00a0since\u00a0they both voted with the Bashers in Bryant<\/em> but joined the Builders in Bullcoming <\/em>and Williams<\/em>.) Perhaps adding to this map will be a project for this Blog in\u00a02015.<\/p>\n

Until then, Happy Holidays!<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

This is the fifth and final installment in a series mapping Confrontation Clause doctrine since Crawford v. Washington (2004). In previous posts, I identified the 2-degree network connecting Williams v. Illinois (2012) to Crawford, calibrated the network to correct over- … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":400,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"_links":{"self":[{"href":"https:\/\/blogs.ubalt.edu\/cstarger\/wp-json\/wp\/v2\/posts\/196"}],"collection":[{"href":"https:\/\/blogs.ubalt.edu\/cstarger\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.ubalt.edu\/cstarger\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.ubalt.edu\/cstarger\/wp-json\/wp\/v2\/users\/400"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.ubalt.edu\/cstarger\/wp-json\/wp\/v2\/comments?post=196"}],"version-history":[{"count":23,"href":"https:\/\/blogs.ubalt.edu\/cstarger\/wp-json\/wp\/v2\/posts\/196\/revisions"}],"predecessor-version":[{"id":878,"href":"https:\/\/blogs.ubalt.edu\/cstarger\/wp-json\/wp\/v2\/posts\/196\/revisions\/878"}],"wp:attachment":[{"href":"https:\/\/blogs.ubalt.edu\/cstarger\/wp-json\/wp\/v2\/media?parent=196"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.ubalt.edu\/cstarger\/wp-json\/wp\/v2\/categories?post=196"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.ubalt.edu\/cstarger\/wp-json\/wp\/v2\/tags?post=196"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}