155. Constitutional nostalgia

As has been pointed out many times, whenever people talk about a golden age of the recent past, they're inevitably talking about the era of their own youth.  There were giants in the earth in those days.  The world was full of possibility.  Bliss it was in that dawn to be alive, but to be young was very heaven!

(One of the advantages of reaching adulthood in the 1970s and early 1980s - quite possibly the only advantage - is that we know there was no golden age when we were young.  There was only ELO.  I saw the best minds of my generation jarred into insensibility by the constant nodding of the head to the inane beat.)

It's possible to interpret our new, 2004-model confrontation clause as reflecting a nostalgia for the world of the justices' youths, when papa was unmistakably in charge, ruling the roost in his gruff, occasionally frightening, but ultimately beneficent way.  You might not have realized it until he was dead and gone, but he always had your best interests in heart.  The nanny state, by undermining patriarchal authority, has contributed to the breakdown of the family, which is the essential structure of society itself.  By creating a new constitutional rule to discourage state intervention in the family, a person of a certain ideological bent might believe, the Court has struck a blow for the traditional family.   (See post 154.)

But a different type of nostalgia can also be detected in the "testimonial" revolution, which has so fundamentally altered society's response to child abuse and domestic violence.  This other type of nostalgia is for the ways of thinking that characterized the legal system's response to sexual crimes against women for most of the 20th century.  (See post 139.)

The post-2oo4 Constitution requires judges to decide whether a statement made outside the courtroom, and offered as evidence inside it, was "testimonial" when made.  No one knows what "testimonial" means,  not even the justices who rectified the Founders' oversight in leaving that word out of the sixth amendment.

Since 2004, judges, lawyers and law professors have spent a great deal of time - by which I mean many millions of attorney hours, and hundreds of millions of client and taxpayer dollars - trying to give some meaning to the mysterious new word that is the key to understanding something that, in theory, has been part of our fundamental law since 1791.

The Washington Court of Appeals, for instance, emphasized "[t]he dichotomy between a plea for help and testimonial statements in 911 calls".  If a battered woman calls 911 to plead for help, her tape-recorded statements are not "testimonial" and can be introduced into evidence against her batterer, even if he convinces her that it would be physically dangerous for her to obey the prosecution's subpoena to testify at his trial. 

However, if she calls 911 to explain what happened to her, then the tape-recording is "testimonial."  Because it's testimonial, the jury must never be allowed to know those words were said.   The batterer has a constitutional right to benefit from his successful act of witness intimidation.  (That is, unless the prosecution can demonstrate "forfeiture", but no one is quite sure what that means, either).

In this June's Davis decision, an 8-1 majority of the Supreme Court declared that the dichotomy recognized by the Washington Court of Appeals is actually written right into the United States Constitution, which now contains a provision distinguishing between 911 calls made to seek help, and those merely intended to impart information about past events.  The same dichotomy applies to any conversation with a police officer.

University of Maine law professor Deborah Tuerkheimer has written an article exposing many of the ways in which the supposed dichotomy between a plea for help and a narrative of past events is false.   It's not just that all motives are mixed, but, more fundamentally, how can a battered women ask for help without narrating the past events that make it so extremely likely that she remains in present danger? 

Tuerkheimer's article is based on a huge body of social science research.  The justices of the Supreme Court, however, relied on something much more certain: their own unexamined assumptions.  That's why they wrote that "the emergency appears to have ended (when [the batterer] drove away from the premises)".

A battered woman, according to the justices - excuse me, according to the United States Constitution - experiences her victimization according to a script written by a group of elderly judges.  And in that script the emergency ends as soon as the abuser starts his car and backs down the driveway to cool his bruised knuckles on the side of a beer glass.  Whether the still-bleeding victim might see the emergency as just beginning is neither here nor there.

In some ways this approach is even cruder than the script-writing of the old rape cases, which held only that the woman's departure from the script was mere evidence - not necessarily proof - that she wasn't really raped.  (See post 139.)   The new dispensation doesn't treat departure from the script as evidence of anything.  It simply denies the very possibility that women could experience reality in any other way. 

Under the new confrontation clause analysis, reality is squeezed into a priori categories devised by judges, relieving judges of the effort to understand why people act as they do.  Categorization is the first of the four crudities of legal reasoning, and the only one that can't be justified by necessity.  (See post 137.) 

When people talk about the Supreme Court turning conservative, they're usually thinking about hot political topics - topics on which the Court is frequently eager to muddy the waters, but which it is institutionally incapable of dealing with in any systematic way.  What really marks this Court as conservative is its uncritical embrace of ways of thinking many of us had hoped were put to rest around the time disco first died.