Justice Scalia dissents from a traffic ticket

Justice Scalia was charged with being at fault for a fender-bender while driving himself to work. It was not known whether he will pay or contest the fine.

Today the DMV Traffic Adjudication Services, a court nowhere authorized by Article III of the Constitution, has seen fit to burden the confrontation rights of a motorist, based on subjective policy preferences that were wholly unknown to the American people who adopted the Constitution.

There is no constitutional right not to be rear-ended. See Matter of Sir Walter Raleigh’s Horse, 142 Eng. Rep. 90 (1602).

In the course of oral argument at the side of the road, the police cited my recent dissent in Michigan v. Bryant, 131 S.Ct. 1143, 1175 (2011), wherein I observed that “An eyewitness’s statements to the police after a fender bender . . . are both reliable and testimonial. Statements to the police from one driver attempting to blame the other would be similarly testimonial but rarely reliable.”

The police have unmoored this statement from the text and its historical roots.

The Framers could not have envisioned such a hollow constitutional guarantee as, “Fill out the back of the ticket and check ‘Deny.'” Under this enfeebled view of the right to confrontation, the motorist is obliged to pay the ticket upfront. This is akin to beheading the accused while promising emergency surgery afterwards.

I dissent.