Sometimes originalism doesn't quite work out the way you'd think

WASHINGTON — Crime laboratory reports may not be used against criminal defendants at trial unless the analysts responsible for creating them give testimony and subject themselves to cross-examination, the Supreme Court ruled Thursday in a 5-to-4 decision.

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Four dissenting justices said that scientific evidence should be treated differently than, say, statements from witnesses to a crime. They warned that the decision would subject the nation’s criminal justice system to “a crushing burden” and that it means “guilty defendants will go free, on the most technical grounds.”

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Justice Antonin Scalia, writing for the majority, scoffed at those “back-of-the-envelope calculations.”

In any event, he added, the court is not entitled to ignore even an unwise constitutional command for reasons of convenience.

“The confrontation clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination,” Justice Scalia wrote.

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The two justices most closely associated with a commitment to following the original meaning of the Constitution, Justices Scalia and Clarence Thomas, were joined by three members of the court’s liberal wing, Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg.

In addition to Justice Kennedy, the dissenters included two members of the court’s conservative wing, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., and the remaining liberal, Justice Stephen G. Breyer.

Justice Kennedy said the majority had upended 90 years of settled law from six federal appeals courts and courts in 35 states.

“The court’s holding,” Justice Kennedy wrote, “is a windfall to defendants, one that is unjustified by a demonstrated deficiency in trials, any well-understood historical requirement, or any established constitutional precedent.”

Personally I think that Scalia and Thomas have it right even if it will be burdensome. Crime labs are controlled by and report to the state. That conflict should require that they face confrontation. In fact I would say that because of that relationship courts should view their results with some skepticism. Of course I am not a lawyer so what do I know.