Originalism is sometimes criticized as merely a means to justify conservative results. And cases do indeed exist in which the Supreme Court has divided along liberal-conservative lines, and conservatives have played originalism as a purported trump card. Last Term’s decision in District of Columbia v. Heller, interpreting the Second Amendment as including an individual right to bear arms, is a recent example.
When it comes to criminal procedure, however, things are not so simple. This Essay examines two lines of cases: first, those involving the Court's reinvigoration of the Sixth Amendment right to jury trial, and second, those involving the Court's recent reconception of the Sixth Amendment right to confrontation. In both of these areas, the Court has divided sharply across ideological lines. Specifically, in both lines of cases, the Court acted primarily through a core five-member majority: Justices Scalia, Thomas, Stevens, Ginsburg, and Souter. On the other hand, the dissenters initially were Chief Justice Rehnquist and Justices O'Connor, Kennedy, and Breyer. Chief Justice Roberts and Justice Alito have stepped quite comfortably into the shoes of Chief Justice Rehnquist and Justice O'Connor.
- criminal procedure,
- Supreme Court
Available at: http://works.bepress.com/jeffrey_fisher/2/