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.

Conspiracy!

Posted in Anticipation, Endorsements by Mike Sacks on January 18, 2010

Welcome Volokh Conspiracy readers!  While you’re here, give the below “weekend reading” a look – I know many of you will surely have strong opinions about my observations.

Thanks to Professor Randy Barnett for the VC shout.  I just finished reading the first part of his book-to-be, Fundamental Rights in the Constitution and very much enjoyed his exploration of the Ninth Amendment‘s original public meaning.

Also, over the weekend, Professor Orin Kerr, another prominent Conspirator, suggested that I supply some information on how early one must arrive in line at the Court to get a decent chance of getting inside to hear an argument.  Here are my preliminary thoughts:

  • Be Before 50th: The Court reserves at least fifty seats for the general admission line.
  • The “Dogs”: From my experience, if you get in line between 7 and 8 for the “dogs”–the technical cases without any newspaper coverage–you’ll get in.  By “experience,” I mean the first oral argument I ever attended, Danforth v. Minnnesota, for which my father and I got in line around 8am, received numbers around 50, and were among the final ones seated inside the Court.  Of course, despite no major awareness of Danforth in the news or general public, the case, like all SCOTUS cases, was still massively important for its area of law.  Indeed, Prof. Kerr noted Danforth‘s major legal importance for criminal law and procedure over at VC in November 2007.  This week’s cases, as far as I can tell, haven’t touched any public nerve, so I am taking this week off from the line.  I leave it up to the Klingensmiths to tell me otherwise.  Still, keep your eyes trained on F1@1F at the 10am hour should Wednesday see the release of Citizens United.
  • The “Mid-Majors”: Get in line by 6am.  Last week’s cases exemplify the “mid-major” cases: issues that attract the public’s attention without creating a frenzy.  Briscoe mattered not as much for its subject matter, but rather for Sotomayor’s centrality in the fate of a year-old precedent.  Comstock dealt with sex offenders (and, of course, the scope of the Necessary & Proper Clause of the Constitution), who are always interesting subject matter.  American Needle fought against the NFL, which sounds cool regardless of the more mind-numbing aspects of antitrust law that really animated the case.
  • The “Blockbusters”: Get in line before 4am…and that probably won’t be good enough.  I got in line for the rehearing of Citizens United, also Justice Sotomayor’s first oral argument, at 11pm, thinking that there would already be a line at least a dozen people long.  There wasn’t.  I was first.  The next batch of people didn’t show up until 3:45am.  That said, for the super-blockbusters, prepare to eat your previous night’s dinner on the First Street sidewalk: friends of mine got in line at 4:30pm on Heller‘s Eve…they were around 40th.  This term’s blockbusters–McDonald, Kiyemba, Christian Legal Society, Doe v. Reedwill likely draw its earliest linegoers at varying hours of which I am not yet qualified to predict.

Once again, thank you for coming by F1@1F.  Although I will not be reporting from line this week, I will endeavor to keep the content flowing!

Vox Populi – 1/11/10

Posted in Vox Populi by Mike Sacks on January 11, 2010

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.

Orthogonal!

Posted in Words by Mike Sacks on January 11, 2010

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.

Tagged with: ,

Orthogotive?

Posted in Case Reports by Mike Sacks on January 11, 2010

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!

First Morning @ One First: Initial Thoughts

Posted in Anticipation by Mike Sacks on January 11, 2010

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 Court hears two cases today: Alabama v. North Carolina at 10am and Briscoe v. Virginia at 11:30am.  I will be reporting on Briscoe, for which I gave a few initial thoughts here several days ago.

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.

Sotomayor’s Imminent Impact

Posted in Anticipation, Clairvoyance by Mike Sacks on January 4, 2010

The WSJ Law Blog calls its readers’ attention to a New Yorker feature on Justice Sotomayor:

[W]e were delighted to open our digital copies of the New Yorker this week to find a lengthy and wide-ranging article about Sotomayor. The timing, in our minds, couldn’t have been better.

The article, by reporter Lauren Collins, is worth reading for a host of reasons. But for our money, the piece is a standout largely due to the nuance with which it treats its subject. She’s eminently personable, but has already raised eyebrows with her aggressive questioning from the bench. She’s a stickler for preparation, but isn’t averse to letting down her hair as well. She’s a liberal given to quoting the likes of Carol Gilligan, but still rules for the prosecution the vast majority of the time.

To me, the timing couldn’t be better particularly because of this final point.  On Monday–F1@1F’s first, freezing day in line–the Court will hear Briscoe v. Virginia, and Sotomayor could very well be the fifth vote to reverse last year’s 5-4 decision in Melendez-Diaz v. Massachusetts.

Melendez-Diaz held that the Sixth Amendment’s Confrontation Clause requires prosecutors to put forensic analysts on the witness stand rather than simply enter their lab reports into evidence.  Justice Scalia wrote the for the majority, in which he was joined by Justices Stevens, Souter, Thomas, and Ginsburg.  Justice Kennedy dissented for himself, Justices Breyer and Alito, and Chief Justice Roberts.  As we all know, Souter has since been replaced by Sotomayor.  Importantly, she is a former prosecutor whose Second Circuit record is friendlier to the prosecution than Justice Souter’s criminal law jurisprudence.

Whereas Scalia and Thomas sometimes find that their originalism incidentally leads them to liberal results, such as in Confrontation Clause cases, Stevens, Souter, and Ginsburg had long established themselves as friendlier to criminal defendants than to their government prosecutors.   Meanwhile, in Melendez-Diaz, Roberts, Kennedy, and Alito voted for conservative law-and-order principles, but Justice Breyer’s pragmatism led him to contest that Scalia’s holding would be simply too heavy a burden on the system.

For Scalia, his Constitution wins regardless of the practical effects.  But Briscoe addresses the concerns that Scalia ran roughshod over in Melendez-Diaz, suggesting that Scalia’s Confrontation Clause ideals have their limits.  By forcing governments to expensively transport their limited numbers of lab technicians all over the place, Melendez-Diaz could consequentially require the technicians not only to spend more time on the stand than in the lab, but also lead to hairy procedural defaults when a single analyst’s work for different cases comes to trial in several courtrooms at once.

As a trial and circuit judge, Sotomayor exhibited the law-and-order streak and experience-based pragmatism that animated the Melendez-Diaz dissenters. Briscoe is Sotomayor’s first test over whether she will bring her Second Circuit preferences to the Supreme Court.  If she does, Melendez-Diaz will fall after only one year as precedent, even if her eight senior colleagues don’t budge.

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