Other bloggers have covered Michigan v. Bryant at length. I have no intention of discussing how the United States Supreme Court eviscerated the confrontation clause or even getting to the substance of the opinion itself. Instead, I’d rather think back to Crawford v. Washington after reading this little gem from Associate Justice Antonin Scalia, which Jeff Gamso cited here in a post after Michigan v. Bryant:
Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.
Love him or hate him, you have to admit Scalia is one hell of a writer. I think he really shines when it comes to analogies, with the above analogy definitely counting as one of his best. However, it isn’t my favorite. By far, my favorite comes from his dissent in Roper v. Simmons. Here it is:
Consulting States that bar the death penalty concerning the necessity of making an exception to the penalty for offenders under 18 is rather like including old-order Amishmen in a consumer-preference poll on the electric car. Of course they don’t like it, but that sheds no light whatever on the point at issue.
I didn’t agree with much of anything he wrote in that dissent, but it sure was well-written. That analogy may not have been as eloquent as the one above it, but I think its stretch gives it more character. The snark really jumps off the page, and I can respect that.
Anyone else have any favorite Scalia analogies?*
* – Yes, I know I am a dork.