Two Justices on What Law Is

On March 21, 2006, the U.S. Supreme Court heard arguments in the case of Davis v. Washington. At issue is the Constitution’s Confrontation Clause, from the Sixth Amendment’s explicit right "to be confronted with the witnesses against him." The trouble is that in the Davis case the defendant was convicted based on a call to 911 by Davis’s girlfriend. The tape was played, but the woman never testified in court, and hence was never subject to cross-examination. It is Davis’s argument that this violates his Sixth Amendment rights. The argument is interesting to me not so much for the legal issues involved, but for what it reveals about the (perhaps unexamined) assumptions that what are generally thought to be two of the most ideologically consistent Justices – Antonin Scalia and Ruth Bader Ginsburg – make about the nature of the law. Mr. Davis was convicted before Crawford v. Washington, which held that a woman’s 911 statement during a fight her husband was having with another man was inadmissible on precisely confrontation grounds. Six Justices, including Justice Ginsburg, agreed with that result.

So is a domestic violence case in which a woman is a participant any different from an assault case in which a woman is an (unwilling) observer? Justice Ginsburg says that despite her signing on to Crawford the answer is yes, because in domestic violence trials women may fear reprisal if they must testify in court: "The practical reality is that many women are scared to death of what will happen to them. So neat legal categories don't really fit the realities of this situation." Justice Scalia responded sarcastically that ''[m]aybe we should just suspend the Confrontation Clause in spousal abuse cases.'' (As an aside, there is apparently already a doctrine called “forfeiture,” under which a defendant loses the right to confront the witness if he has threatened him or her.) In a related case argued on the same day, Hammon v. Indiana, he argued that "it seems to me that there are better ways to solve the problem than to design our whole confrontation-clause jurisprudence based on what happens in spousal abuse cases."

There are two beliefs about the law lurking below the surface here. In Justice Scalia’s view, the law is an objective, knowable reality. If one wants to know whether there is a domestic-violence exception, read the Sixth Amendment and see if the Framers put one there. To Justice Ginsburg, the law has to take account not just of changed circumstances (an old doctrine of the “living constitution" school) but of different perspectives. That she is a woman and someone who may have experience with domestic-violence prosecution allows her to see it in a way that Justice Scalia probably cannot.

While Justice Ginsburg might object to this extension, this is fundamentally what the controversy about tribal diversity in our government and our schools (especially our universities) is all about. People have tribally defined experiences that allow them to present different truths -- thus enabling to bulldoze through the inconvenient "neat legal categories." Each truth packet is as good as any other, and all must be treated equally. And so the Supreme Court too must be demographically balanced, so that each tribe’s truth is equally represented in the manufacturing of the law. The law is to be negotiated rather than discerned.

Which view is correct? The critical legal studies scholar Mark Tushnet once said that “Law is politics, all the way down.” (“Critical Legal Studies” is a movement in the legal academy that argues that the law is the way it is so the powerful may benefit, and responsible lawyers must be insurrectionists against this empire.) And that is the tradition out of which Justice Ginsburg hails, and where her reasoning leads. If we accept it, we must also accept that the Constitution is in essence subject to the interpretation of whatever working majority prevails at the moment. Although in principle we may benefit from everyone feeling represented (at the cost of them being forced to define themselves primarily around their tribal identity), we also suffer the curse of instability unrelated to any high principles. The difference ultimately is between a ship anchored safely until the captain gives the order to leave and one where the crew is in mortal combat to gain control of the helm. If you’re a mere crewman you may wish you were steering. But so does everyone else, and in the course of the combat to decide who gets to the ship may ultimately sink to the bottom.