Apropos of a lot of things, I'd like to mention one of the many reasons I was (and am) a huge fan of the late Justice Antonin Scalia: The man was a devout believer in the Confrontation Clause.
Everything is more muddled than it was before, but for a very long time, the stereotypes -- which existed for good reasons -- were that conservatives/Republicans were "tough on crime" and Democrats were "soft on crime."
As with most stereotypes, these things obscured a great deal even as they expressed relevant shorthands. But Justice Scalia -- whatever his personal temperament -- always chose the Constitution's text and meaning as his lodestar, and his Confrontation Clause work is proof.
Although he was, in later years, best-known in this for Crawford v. Washington, 541 U.S. 36 (2004), I'm going to reach back a bit to a brutally hard case to make my point.
In Maryland v. Craig, 497 U.S. 836 (1990), the Supreme Court found that allowing a child, an alleged victim of sexual abuse, to testify by one-way, closed-circuit television against the woman the girl accused of the abuse was permitted under the Constitution.
A sidebar here of some relevance: Sex crimes hurt in ways ordinary battery does not. There are mental, emotional, and even physical harms that continue for years after. Victims experience trauma in different ways and their memories' quality differs by the human.
For many victims, seeing their accusers again is -- and here I use the word seriously and not ironically -- triggering. That a child was the alleged victim of something so terrible doubtless weighed on the Court in its ruling.
Having Sandra Day O'Connor write for the Court probably didn't hurt either.
Justice Scalia was the father of a great many children and the forebear of a great many grandchildren. There is precious little evidence that he was indifferent or opposed to children and their needs, and a great deal to the contrary.
One of our basic principles of justice -- not merely of the law that is to embody justice, but justice itself -- is the right to look one's accuser in the face and say, "You take that back, you son of a b****."
Our Founders were adamant that an accused must retain this right, as Justice Scalia put it, "to assure that none of the many policy interests from time to time pursued by statutory law could overcome a defendant's right to face his or her accusers in court."
They were men who knew the abuses of the Star Chamber and of various outrages through England's -- and Europe's -- history and were determined that this, one of the most basic rights imaginable, was protected from even the kind wishes of government.
I would direct you to Division III of his dissent.
I would submit -- and this from a man who has Scalia's dissent in Planned Parenthood v. Casey memorized and has for two decades -- that this is his finest bit of legal writing: It encapsulates both an application of how the right is assaulted, and why it must be preserved.
Our Constitution is not merely our Basic Law. It is a summation and reflection of rights and approaches to governance that are at the very core of what we define as American.
This is Justice Scalia's attempt at vindicating one of those basic concepts we should -- and largely do -- take for granted, an attempt that picked up steam for a decade and a half before Crawford.
It is profoundly small-c conservative in that it does not trade away basic rights lightly; it is faithful to a text designed to change, but only on overwhelming and considered agreement; and it assumes a fundamental dignity in each American charged with a crime.
As I said, that's just apropos of a lot of things.
