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 As we all know, Souter has since been replaced by Sotomayor.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.