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.

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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