"Maybe we should just suspend the Confrontation Clause in spousal abuse cases."

That's what Justice Scalia wittily said during Davis v Washington, a case about whether or not a 911 transcript can be used against a defendant even if the caller later changes her mind. This often happens when women who are being beaten are later so childish as to change their minds about their original complaint in a domestic abuse case.

Two years ago, however, the Supreme Court issued an unmistakable warning that these efforts were likely to collide with the Sixth Amendment's Confrontation Clause, which guarantees to a criminal defendant the right "to be confronted with the witnesses against him."

In Crawford v. Washington, the court laid down a new rule: a "testimonial" statement made out of court cannot be used at trial unless the person who made the statement is available for cross-examination....

[Adrian M.] Davis's lawyers argued on appeal that the admission of the 911 tape violated his right to confrontation, but the Washington Supreme Court said the call was not testimonial. It was, the court said, a request for "help to be rescued from peril."...

Mr. Fisher, a Seattle lawyer who successfully argued the Crawford case, said the purpose of the Confrontation Clause was "to bring the accuser and accused face to face and require the accuser to deliver the accusation in court."

But the 911 call was "not just a call," Justice Ruth Bader Ginsburg objected. It was also "a cry for help." Was it not a "practical reality," she asked Mr. Fisher, "that many women in this situation are scared to death?" She added, "Your neat legal categories don't conform to real lives."

Mr. Fisher responded carefully. "I don't mean to be insensitive," he said. He offered a solution: under a rule known as the "forfeiture doctrine," he observed, a defendant who intimidated a witness lost the right to object to the use of that witness's out-of-court statements.

Justice Antonin Scalia interjected: "Maybe we should just suspend the Confrontation Clause in spousal abuse cases."

The other justices undoubtedly took his point, a reminder that he was the author of the Crawford decision, and that he had persuaded six of his colleagues in that case, including Justice Ginsburg, that the Confrontation Clause should be interpreted literally.

Interpreted literally! What a textualist! Are we to be literal about the interpretation in that interesting, sensitive decision, or are we to consider the realities of spousal abuse? What a puzzler!

UPDATE: Have you noticed how indecisive Barry Manilow is when he talks to the contestants on American Idol?