When Breyer came back with another example tied to federal authority for health and hospitals, a frustrated Scalia exclaimed: "No, no. The government can spend money on whatever it wants. That's the spending power. They can set up hospitals. The issue is whether they can force somebody into a hospital, not whether they can set up hospitals."
Breyer and Scalia have been on opposite sides of cases testing defendants' right to confront the witnesses against them. In recent years, Scalia has prevailed, including when he wrote an opinion last term that extended the right of confrontation to routine drug and other forensic reports. The court said the Sixth Amendment requires the analyst who prepared the report to testify.
Many states say their labs have been bogged down since the decision in a Massachusetts case. A case last week, from Virginia, tested whether the confrontation right could be satisfied as long as a defendant can call the analyst for cross-examination.
During the oral arguments, Breyer and other dissenting justices from last term referred to complaints that requiring an analyst to testify for the prosecution has complicated trials.
When Breyer mentioned the possible "inordinate expense," Scalia asked the lawyer seeking to reinforce the ruling from last term, "Aren't there states that have been proceeding this way, even before we came down with our opinion? ... And they are not under water, are they?"
"Absolutely," lawyer Richard Friedman said.
"I don't know except anecdotally," Breyer said, "but Massachusetts seems to be having huge problems."
Breyer would not let the answer to Scalia be the end of it. Minutes later, after other justices had asked some questions, Scalia and Breyer were at it again, undercutting each other's points and getting under each other's skin.