Using Its Sixth Sense: The Roberts Court Revamps the Rights of the Accused

Abstract

This paper explores the Supreme Court's recent Sixth Amendment decisions in Oregon v. Ice and Melendez-Diaz v. Massachusetts. Ice refused to extend the Apprendi rule regarding the right to a jury trial to prohibit judicial fact-finding in the context of concurrent versus consecutive sentences. Melendez-Diaz interpreted the Confrontation Clause to require live testimony from lab technicians whenever a defendant demands it. Together these decisions continued the trend of an originalist renovation of the Sixth Amendment. Notably, the bulk of majority votes for originalist conclusions in both of these cases came from the court's more liberal justices.