WASHINGTON -- On Tuesday morning, Justice Anthony Kennedy turned a constitutional inquiry he once derided as "formalistic and wooden" into one of his beloved Shakespearean dramas, suggesting that he has learned to stop worrying and love Justice Antonin Scalia's take on the Sixth Amendment.
"The key actor in the play -- the Hamlet in the play -- is the person who did the [DNA] test," Justice Kennedy said, "and she or he is not here."
And with that, Kennedy seemed to abandon his concerns about the Supreme Court's current interpretation of the Sixth Amendment, upending some Court-watchers' expectations.
In 2009 and again last term, an ideologically scrambled Court, voting 5-4, interpreted a criminal defendant's Sixth Amendment right to confront witnesses to require that any forensic report entered into evidence by prosecutors be accompanied by the lab tech who created the report. Kennedy wrote dissents in both cases, joined each time by Chief Justice John Roberts and Justices Stephen Breyer and Samuel Alito, to argue that the majority's new rule would place an impractical burden on understaffed and underfunded crime labs.
In Tuesday's case, Sandy Williams is challenging his rape conviction by pointing to those earlier decisions. He contends that Illinois prosecutors violated his confrontation clause right by calling an outside expert to testify that a DNA test taken from a rape kit matched DNA taken from Williams. Lawyer Brian Carroll told the justices that there was no difference between his client's case and the previous two in the line of lab-tech confrontation disputes. And the justices, eager to return to the barricades, made Carroll a mere bystander to their banter for the first 20 minutes of the argument.
Justice Antonin Scalia, the author of the 2009 decision and architect of the Court's current confrontation clause jurisprudence, butted heads early with Justice Breyer. Breyer, who often pokes at Scalia's preference for bright-line rules, spun out a lengthy question to suggest there could be some way to allow the expert's opinion into evidence without violating the Sixth Amendment. That kind of exception, Breyer said, "would have the virtue of not requiring 10 people to come in and testify," as well as "removing the temptation" for prosecutors to ditch DNA evidence in favor of less-reliable eyewitness testimony.
"Well, your Honor," answered Carroll, "I think that this Court's decisions ... largely foreclose on making such an exception."
"Justice Breyer dissented from those opinions," interjected Scalia.
Justice Ruth Bader Ginsburg, who joined Scalia's 2009 opinion and wrote its sequel last term, pushed back against Breyer, too. "Mr. Carroll, are we talking about 10 witnesses," she asked, or "just one witness" from the DNA testing lab?
But Breyer had backup in this fight. "Ten is not a far-fetched hypothetical," said Justice Alito, whose more pragmatic conservatism -- and general sympathy toward prosecutors -- sometimes puts him at odds with Scalia. Alito pointed to a brief by the Manhattan District Attorney's office, which said that if every person involved in every step of DNA testing must come to court to testify, "we will have to rely on less reliable evidence."
"Do you think that's just a practical consequence that we have to accept?" asked Alito.
Scalia hopped in to say that "it's up to the prosecutor which of those 12 he wants to bring in," to which Alito shot back, "If two people perform steps in the analysis and one person testifies about what 11 other people did, don't you have the same confrontation clause problem?"
Justice Sonia Sotomayor, who provided a somewhat wobbly vote for the majority in the last case on this issue, solidified her allegiance when State's Attorney Anita Alvarez began her presentation for the state of Illinois. According to Alvarez, this case could be distinguished from the earlier decisions because here the lab report was not actually entered into evidence, which meant that under the Court's precedents it was not "testimony" that required the speaker -- that is, the lab tech - to be available for cross-examination by the defense.
Sotomayor found this to be a distinction without a difference. The expert "testified that she reviewed the lab samples that matched the defendant, so what's the difference between that and saying, 'I have the report in my hand, and I match that report with the Williams report, and this is my conclusion'?" asked Sotomayor.
With Justice Elena Kagan signaling that she would side with Scalia, Ginsburg and Sotomayor and Chief Justice Roberts asking questions sympathetic to Alito and Breyer's views, only Kennedy remained of the talking justices to put his cards on the table. (Justice Clarence Thomas, as is his habit, kept quiet during oral argument.)
And from Kennedy's Hamlet comment flowed a whole series of questions in which the justice seemed to become a happy warrior for his past foes, slashing through distinctions that his co-dissenters, by contrast, appeared eager to preserve.
By the time Deputy U.S. Solicitor General Michael Dreeben rose to argue in support of Illinois, all that remained was the coup de grace. Scalia, seemingly victorious once again, said, "You're telling me that this confrontation clause allows you to simply say, 'Well, we're not going to bring in the person who did the test. We are simply going to say this is a reliable lab.'"
"I don't know how that complies with the confrontation clause," Scalia concluded, backed by the force of Kennedy's apparent change of heart.