Wednesday, October 12, 2011

Simplicity (it is said) Is Not Always Better Than Complexity

"The dissent, ... (opinion of SCALIA, J.), criticizes the complexity of our approach, but we, at least, are unwilling to sacrifice accuracy for simplicity. Simpler is not always better...." Michigan v. Bryant, 131 S.Ct. 1143, 1162 (2011) (Sotomayor, J., for the Court).
Of course, Scalia's real point was that the majoity's approach in Bryant is unnecessarily complex -- and disordered. But never mind about that: Justice Sotomayor succeeded in making her point in a catchy way.
The issue in Bryant was whether certain pretrial statements were "testimonial" or "non-testimonial" under the Court's current theory of the reach of the Sixth Amendment's guarantee of a right of confrontation in criminal cases. See Crawford v. Washington, 541 U.S. 36 (2004).
The truly troubling thing about the complex methodology in Bryant is its incoherence: The multiplicity of factors considered by Sotomayor (for the Court) serves as camouflage for the failure of the Court to give any grounds for the factors that Sotomayor and the Court chose to consider. (But this is a pickle that Scalia's opinion in Crawford created: In Crawford Scalia went to great lengths to try to make the reach of the Confrontation Clause independent of its purposes. Scalia effectively thinks that judges who confont confrontation problems should reason that the only purpose of confrontation is confrontation. However, even though some starting premises have to be granted or assumed, Scalia's preference for circular reasoning in this context is not viable: The purposes attributed to or discerned in Constitutional guarantees such as the Right of Confrontation will creep into  judicial discourse willy-nilly More about this point later, dear Reader.)



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