Scalian Skepticism and the Sixth Amendment in the Twilight of the Rehnquist Court

Abstract:     
While the late Chief Justice William Rehnquist left behind a rich criminal procedure legacy marked by pro-government successes in the Fourth and Fifth Amendment contexts, this paper argues that Rehnquist's vision failed with respect to the Sixth Amendment. In both the Federal Sentencing Guidelines and Confrontation Clause contexts, Justice Scalia marked out very different positions than Rehnquist on both the scope of the right to trial by jury and the right of cross-examination. Ultimately, Scalia's views prevailed, and part of the legacy of the Rehnquist Court is now the invalidation of the U.S. Sentencing Guidelines and a testimonial approach to the Confrontation Clause. Ultimately, Scalia's skepticism of the judiciary stood in marked contrast to Rehnquist's more pragmatic approach to the Sixth Amendment and resulted in pro-defendant rulings based on a more purist view of the constitutional rights of criminal defendants.

Number of Pages in PDF File: 36

Keywords: Scalia, Rehnquist, Rehnquist Court, Booker, sentencing guidelines, Crawford, Confrontation Clause, Sixth Amendment

JEL Classification: K14, K40, K42

Accepted Paper Series