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

36 Pages Posted: 8 Sep 2006 Last revised: 2 Jun 2009

M. Katherine B. Darmer

Chapman University, The Dale E. Fowler School of Law

Date Written: March 17, 2009

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.

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

JEL Classification: K14, K40, K42

Suggested Citation

Darmer, M. Katherine B., Scalian Skepticism and the Sixth Amendment in the Twilight of the Rehnquist Court (March 17, 2009). University of San Francisco Law Review, Vol. 43, p. 347, 2008; Chapman University Law Research Paper No. 06-07. Available at SSRN: https://ssrn.com/abstract=928743

M. Katherine B. Darmer (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States

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