Williams v. Illinois

The other day, Mr. Gillette and I had a little back-and-forth in the comments regarding Bryan Garner's opinion that Justice Scalia is the court's "most principled" justice. Garner's claim seems to be that Scalia is the most likely to reach a decision that is at odds with his policy preferences.

Today the Supreme Court handed down a decision, Williams v. Illinois, that fits into the Garner / Scalia narrative. Eugune Volokh has a nice summary of the case:

In Williams, a woman was raped and robbed, and the defendant was caught with the help of a DNA test conducted on the semen left over after the attack, though there was other evidence, too: Once the DNA test pointed at the defendant (who hadn’t earlier been under suspicion), “the police conducted a lineup at which [the victim] identified petitioner as her assailant.” But the DNA evidence was important. 

The evidence, though, was presented by an expert who was working from a DNA profile of the semen, and the private forensic lab analyst who actually produced the profile did not testify in court. The legal question in the case was whether the Confrontation Clause barred the introduction of such evidence, given that the person who had personal knowledge of how the profile was produced was not present in court to be cross-examined. This is a complicated and [con]tested question of Confrontation Clause law, on which the Court split 5-4 as to the bottom line (which was that the state wins) and 4-1-4 on the rationale.

Scalia joined Justice Kagan's dissent on the Confrontation Clause issue, creating an unusual 5-4 lineup with Kagan, Ginsberg, Sotomayor, and Scalia together in dissent. The dissent would have found a broader right to confront the expert witness, would have required that the case be retried, and would generally have made obtaining convictions in these cases more expensive and therefore more difficult. Not exactly a "law and order" conservative's dream.

As Professor Volokh points out, however, the votes of the three female justices could also be characterized as "principled," in that they are advocating for a result that

would indeed disproportionately — though not entirely — favor men: Men commit the overwhelming majority of violent crimes for which DNA evidence is relevant, and the dissent’s opinion would make it at least somewhat harder to prosecute such crimes. Moreover, while DNA evidence is useful in many cases other than rape cases, my sense is that rape cases are a substantial chunk of the cases in which DNA evidence is used, and the overwhelming majority of victims in rape prosecutions are women. Yet despite this the women Justices voted for a pro-criminal-defendant rule. 

Of course, the three women on the court also all happen to be liberals, and liberals tend to prefer for broader rights the criminally accused. So in that sense, their vote on this case is true to form.