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!