[T]he one area of law where I do think that the sort of 5-4, "Where is Justice Kennedy going to come out?" dynamic does not hold true increasingly is the criminal docket of the Court. . . . [I]n some ways on the criminal docket, the key swing vote is actually Justice Scalia.
There are a number of cases in the Apprendi line of cases, other Sixth Amendment cases, also cases involving the Confrontation Clause, where Justice Scalia has [ruled in favor of the criminal defendant].
Paul D. Clement
Former Solicitor General and Partner, King & Spalding
Sixth Circuit Judicial Conference
May 5, 2010
