One era’s political flashpoint is another’s muted issue. This was particularly clear this morning at the Supreme Court, which was hearing two cases that a generation or two ago would have drawn protesters and fueled political campaigns. Instead, nearly all of the committed souls who showed up this cold, mid-January morning by and large lined up “just because.” And that’s not a bad thing at all.
Alabama v. North Carolina, the first case argued this morning, featured a dispute between four southern states and North Carolina over the latter’s withdrawing from a radioactive waste disposal compact made in the mid-1990s. In the 1970s and early 1980s–the years leading up to Chernobyl and Three Mile Island–organizations such as the National Resource Defense Council challenged the construction of nuclear power plants and and represented the public fear over the plants’ plans for their radioactive waste disposal. Today, in the age of global warming and dependence on foreign oil, nuclear energy is far less politically controversial–at least domestically.
As such, only one person in line–James, an undergraduate at Grinnell College with ambitions to be an environmental lawyer–stated specific interest in watching Alabama v. North Carolina. The several others who cited Alabama v. North Carolina as the case they came to see admitted that they knew nothing of the case. Indeed, they confessed that they only mentioned the case because it was the only name they remembered of the two cases to be heard.
Meanwhile, no lawyers in line even mentioned Alabama v. North Carolina. This is likely because the Court is obligated under Article III, section 2 of the Constitution to hear disputes between the states, however dull they may be. Yet it is telling of our times that a case about nuclear waste disposal does not clear the “mind-numbingly dull” bar, but Michigan’s filing suit at the Supreme Court to force Illinois to keep Asian carp out of the Great Lakes managed to make headlines. Further, not even the prospect of watching Carter Phillips and Walter Dellinger–titans of the Supreme Court bar–square off as opposing advocates could foster interest in Alabama v. North Carolina.
Briscoe, on the other hand, attracted a handful of lawyers and law students, but no others in line expressed specific interest in the case. James Rivera of Virginia, a non-practicing lawyer, said that he was “happy how [the Supreme Court] ruled in Melendez-Diaz” and was “surprised how they granted cert. a week after Melendez-Diaz.”
Jon Grimm, a second-year law student at Georgetown, was writing a paper on the Crawford line of cases. He believed that “Sotomayor will be the swing vote,” but was unsure which way she’d swing. The case’s “civil rights aspects,” Grimm said, point to Justice Sotomayor’s voting with the Melendez-Diaz majority, but he also found that her experiences as a prosecutor support her ruling voting to overrule Melendez-Diaz.
Grimm was not alone among the interested law students: second- and third-years from Georgetown, Syracuse, Penn, and Columbia all lined up to gather more fodder for their future law review articles on the Confrontation Clause as defined by Crawford, Melendez-Diaz, and Briscoe.
Missing, though, was the politically-charged outrage that criminal law cases often trigger. For the last fifty years, the Court’s criminal law decisions have stirred this country’s passions. In the 1968 Presidential campaign, Richard Nixon ran against the Warren Court’s expansion of criminal defendants’ rights in cases such as Gideon v. Wainwright and Miranda v. Arizona. Nixon’s law-and-order vision of the Court won. His appointments of Chief Justice Burger and then-Justice Rehnquist triggered the Court’s three-decade shift to the right.
Like protests against nuclear energy, appeals to law and order may have simply lost their former political salience. Perhaps our torrid interests in abortion, national security, death penalty, and Second Amendment cases have made quaint old maids out of the jurisprudential pin-up queens who reigned several generations ago. Or maybe Justices Scalia and Thomas’s conservative bona fides are so strong that no conservative interest group bothers to foment public discontent over the two justices’ incidentally liberal Confrontation Clause decisions.
Whatever the reasons, the thrill was clearly gone this morning. But that could be the sign not of a desensitized, less engaged polity, but rather, a mature and evolving citizenry. No one looks to, say, Prohibitionism or Shays’ Rebellion and laments the obsolescence of their motivating politics. We should never take our eyes off of denials of equality or infringements upon our liberty. But we should also appreciate that a more tempered attitude towards previously polarizing issues may lead to better politics and, therefore, better laws.
Thanks to Tony Mauro at the Blog of the Legal Times:
This morning, the new word du jour was “orthogonal,” a mainly mathematical term for things that are perpendicular or at right angles to each other. University of Michigan law professor Richard Friedman, arguing for the plaintiffs in the Confrontation Clause case of Briscoe v. Virginia today, used the word in a broader sense to signify propositions that are extraneous or irrelevant to each other.
Check out the rest of Mauro’s report for Friedman’s exchange with the justices.
Briscoe has been argued and submitted. A few quick impressions:
1) Justice Sotomayor owns this case. The general sentiment among those in the know who were standing out in the cold this morning was that this case would be decided by Justice Sotomayor. If there was any doubt, Sotomayor herself put it to rest at argument. She came out swinging as the first justice to question the advocates for the petitioners and respondent. She appeared to be carving a middle path between the majority and dissent in Melendez-Diaz. To Briscoe’s lawyer, she emphatically stated, “I trust the trial process,” signaling her former prosecutor/trial judge’s sympathy to Virginia; yet she asked Virginia’s lawyer how the Court could articulate a rule that would satisfy Briscoe and seemed bothered by Virginia’s assertion that a trial by affidavit would satisfy the Confrontation Clause.
2) Justice Scalia isn’t budging. It took until the end of the argument, but Scalia made his displeasure clear to the entire courtroom, interrupting Virginia’s counsel to ask, “Why is this case here?” That question, he noted, wasn’t directed towards the Commonwealth; it was for the Court. Melendez-Diaz made Briscoe redundant, so the only reason Briscoe was before the Court was to overturn Melendez-Diaz on a “spite cert” (my term, not Nino’s) by Melendez-Diaz’s four dissenters.
3) Breyer is budging. Justice Breyer was in the dissent in Melendez-Diaz, but seemed receptive to Sotomayor’s difference-splitting as a way to limit Melendez-Diaz without overturning it. Indeed, he tipped his hat to stare decisis, demanding Virginia justify its statute under Melendez-Diaz even after he “laid his cards out on the table” that he didn’t agree with the case.
4) The case may not be a simple 5-4. Sotomayor’s difference-splitting may be enough to get a broad majority to affirm the core of Melendez-Diaz, which held that if the prosecution seeks to introduce a forensic report, the lab technicians must be made available as live witnesses for defendants to cross-examine. Such a majority would discard Scalia’s formalistic requirement that the witness must be the prosecution’s. At argument, justices from both sides of the Melendez-Diaz divide seemed to accept that Virginia may construct an efficiency-oriented statute that allows for the defendant to call a lab technician to the stand as an adverse witness, provided that Virginia not only bear the costs of presenting the witness, but also suffer the consequences if the witness no-shows. Up to seven justices could be satisfied by such a scheme, as Scalia (and probably Thomas) will likely refuse to modify Melendez-Diaz.
5) Alito and Ginsburg agree: GVR. At the end of the argument, both Justices Alito and Ginsburg asked Richard Friedman, counsel for petitioner-defendant Briscoe, why the Court shouldn’t just Grant, Vacate, and Remand the case back to the Virginia Supreme Court to test whether its former statutory scheme adequately protected Briscoe’s right to confrontation. If these two, who were on opposite sides in Melendez-Diaz, can agree, then perhaps the rest of the Court could, too. Even Scalia would be happy to do so: the Court would avoid chipping away at Melendez-Diaz, and he would not have to waste his time firebombing his colleagues on Briscoe‘s merits.
6) Orthogotive? Richard Friedman busted out a word that none of the Court had ever heard. He repeated it several times, but I remain unclear what the word was. I will wait for the Court’s official transcript. Until then, I will relish the memory of a Supreme Court lit up with the excitement of learning a new word.
More later: I’ve been up since 3am!
I arrived at the Court at 3:40am. Four hours later, I am back home to unfreeze my toes, change out of my arctic hobo gear, shower, suit up, eat, and head back to the Court at 9am.
The first people in line after me arrived shortly before 6am. By 7:30, there were about two dozen people waiting in the cold, clear morning.
The majority were going to the Court to go to the Court – many of these folk were undergraduate students on a January term in DC to have an immersive political experience before returning to their colleges for the spring semester.
In addition to the generally-interested linegoers, there were law students from Georgetown, Syracuse, Penn, and Columbia – all writing papers on Briscoe and/or its predecessor cases, Melendez-Diaz and Crawford. More on these cases, as well as the vox populi, in my afternoon write-up.
Richard Friedman, Briscoe’s counsel of record, just ran by the line on a pre-argument jog. Clad in UM sweats.
Sun rising behind the Court. Line forming. College students and interested citizens so far. Toes freezing!