FIRST ONE @ ONE FIRST

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.

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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