FIRST ONE @ ONE FIRST

Citizens United Fallout: Briscoe’s Retreat

Posted in Anticipation, Case Reports by Mike Sacks on January 25, 2010

After such a big fuss was made about the Court’s overturning a six-year-old precedent in Citizens United, the Court decided the death of one young precedent based on changed Court composition was enough.

The Supreme Court just issued a per curiam opinion for Briscoe v. Virginia.  It reads in its entirety:

We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009).

As discussed in previous posts, it was a mystery why the Court even granted certiorari in Briscoe when its question–whether under the Confrontation Clause, lab technicians must appear at trial in person to testify about their forensic reports–had been decided in Melendez-Diaz only last term.

The most apparent answer was that the four Melendez-Diaz dissenters granted a “spite cert” on the bet that Justice Souter, who had voted in the five-justice majority, would be replaced by a justice that would come to the opposite conclusion.

If that guess was true, then perhaps Chief Justice Roberts and Justices Kennedy and Alito, who had been in the Melendez-Diaz dissent, figured that they had better conserve what remained of the Court’s institutional legitimacy after Citizens United.  The Court has been under enough fire for overturning 2003′s McConnell v. FEC, which, according to Justice Stevens’s dissent,

The only relevant thing that has changed since Austin and McConnell is the composition of this Court. Today’s ruling thus strikes at the vitals of stare decisis, “the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion” that “permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals.”

Even if Sotomayor would have voted in Briscoe as Souter had in Melendez-Diaz, then why, at least, was there no dissent in Briscoe?  I submit that Chief Justice Roberts, mindful of the Court’s political capital, looked at his Citizens United concurrence‘s discussion of stare decisis, and decided that aborting the Melendez-Diaz precedent in Briscoe was not worth the battle after all. Especially with McDonald approaching, in which the Court may very well euthanize an ancient precedent to incorporate the Second Amendment against the states.

Speaking of McDonald, the Court has granted the NRA time to argue in support of the petitioner in McDonald.  This throws a wrinkle into just how strongly the Court is considering overturning 1873′s Slaughter-House Cases to revive the Privileges or Immunities Clause as the tool to incorporate the Second Amendment.

The NRA, afraid that the PI Clause will be a pandora’s box for all sorts of newly discovered liberal rights, is urging the Court to use the Due Process Clause to incorporate the Second Amendment.  While using the Due Process Clause may follow existing Supreme Court incorporation precedent, conservative justices have loathed the Clause for nearly half a century.  Indeed, I don’t see Justice Scalia, the author of Heller and likely the author of McDonald, swallowing back the years of bile he spewed towardssubstantive due process” as the NRA will ask him to do.

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