On Fisher’s ability to hook Justice Scalia
The ABA e-Journal has this great new piece discussing Jeff Fisher’s ability in both Crawford and Blakely to connect Justice Scalia and the Supreme Court’s liberal wing to develop new rights for criminal defendants. The piece is entitled “A Sixth Sense About Criminal Trials: A young litigator unites Justice Scalia and the court’s liberals over defendants’ rights,” and here are parts of a great article:
Fisher aimed his pitch right [in Crawford] at Scalia’s jurisprudential wheelhouse: an originalist theory of constitutional law, a duty to the Constitution’s text, and an adherence to bright-line rules. Add for good measure a reverence of 18th century colonial history. For Scalia, originalism says that the Constitution’s founders meant what they said and said what they meant. So the court must be faithful 100 percent….
“When it comes to having a jury or witness confrontation or lawyer you pick, it’s all or nothing,” says University of Pennsylvania law professor Stephanos Bibas, who writes frequently about criminal procedure issues. That meant that in Crawford the court scuttled its long-held test for admitting out-of-court statements, a balancing formula that measured a statement’s reliability….
For Scalia, few things grate more abrasively than balancing tests…. “Balancing tests are great if the judiciary shares your values,” Fisher says. “As soon as the judiciary doesn’t share your values, you need hard-and-fast rules.”
Courts, including the Supreme Court, increasingly have favored the prosecution through the 1980s and ’90s, says Fisher. “Most federal judges come from the prosecution side,” he says. The consequence has been a series of setbacks for the criminal defense bar and for those judges and justices who favor defendants’ rights…. “Liberals need not run from constitutional text. They can embrace it.”
Scalia’s originalism also speaks to his faith in juries, according to Bibas, and for that the justice relies on colonial history. “The founding generation trusted juries, and not judges, in part because King George III had pressured judges and used them to oppress the colonies,” Bibas says. For Scalia, the jury is nothing short of democracy itself — “the spinal column of American democracy,” he wrote in a 1999 case, Neder v. United States, 527 U.S. 1.