Justice Scalia on Sixth Amendment errors as structural

The Court’s fascinating and important decision to grant cert in Recuenco to consider whether Blakely error can be harmless (basics here, commentary here) has led me to go back and re-read Neder v. US, 527 U.S. 1 (1999) (available here) and Sullivan v. Louisiana, 508 U.S. 275 (1993) (available here), which are two critical precedents for the ultimate resolution of Recuenco.  Both cases are fascinating reads, in part because of the sparring between Chief Justice Rehnquist and Justice Scalia and because of Justice Scalia’s obvious distain for harmless-error review in the context of Sixth Amendment jury trial violations.

Recuenco is especially fascinating because, with the loss of CJ Rehnquist’s competing voice, Justice Scalia is the only current Justice who has written opinions on these issues.  And, for that reason and others, I cannot resist quoting some especially choice passages from Justice Scalia’s dissent in Neder:   

When this Court deals with the content of [the jury trial] guarantee — the only one to appear in both the body of the Constitution and the Bill of Rights — it is operating upon the spinal column of American democracy….

Even if we allowed (as we do not) other structural errors in criminal trials to be pronounced “harmless” by judges … it is obvious that we could not allow judges to validate this one.  The constitutionally required step that was omitted here is distinctive, in that the basis for it is precisely that, absent voluntary waiver of the jury right, the Constitution does not trust judges to make determinations of criminal guilt.  Perhaps the Court is so enamoured of judges in general, and federal judges in particular, that it forgets that they (we) are officers of the Government, and hence proper objects of that healthy suspicion of the power of government which possessed the Framers and is embodied in the Constitution.  Who knows? — 20 years of appointments of federal judges by oppressive administrations might produce judges willing to enforce oppressive criminal laws, and to interpret criminal laws oppressively — at least in the view of the citizens in some vicinages where criminal prosecutions must be brought.  And so the people reserved the function of determining criminal guilt to themselves, sitting as jurors.  It is not within the power of us Justices to cancel that reservation — neither by permitting trial judges to determine the guilt of a defendant who has not waived the jury right, nor (when a trial judge has done so anyway) by reviewing the facts ourselves and pronouncing the defendant without-a-doubt guilty. The Court’s decision today is the only instance I know of (or could conceive of) in which the remedy for a constitutional violation by a trial judge (making the determination of criminal guilt reserved to the jury) is a repetition of the same constitutional violation by the appellate court (making the determination of criminal guilt reserved to the jury).

Of course, five Justices rejected these sentiments in Neder.  But, two of those five (Rehnquist and O’Connor) will not be involved in resolving Recuenco.  And another Justice in the Neder majority, Justice Thomas, seems to be a much bigger fan of jury trial rights now than he was in 1999.