FIRST ONE @ ONE FIRST

INTERNET OBSCENITY!

Posted in Clairvoyance by Mike Sacks on February 3, 2010

Supreme Court bar, start your search engines and take off the SafeSearch: the Ninth and Eleventh Circuits have split over how prudish First Amendment law must be towards Internet obscenity.

The Court’s obscenity jurisprudence has stood largely frozen and rigid since 1973, when, in Miller v. California,  it resolved its previous fifteen years of doctrinal disarray into a three part test to determine whether material is obscene:

The basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest [citation omitted]; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The Miller test’s first prong has since been interpreted as requiring juries to apply local community standards.  Although this test was more conservative than the Court’s pre-1973 obscenity jurisprudence–see, e.g., Justice Potter Stewart’s “I know it when I see it” test–it was tailored to the times: a pornographer would send a film reel or a magazine by the mails to a particular recipient in a particular district.

Problem is, in the Internet age, speakers post their thoughts on the Web and then relinquish control over where the material is delivered.  Yet under Miller‘s extant local community standards prong, prosecutors may charge Internet pornographers in federal courts in districts where communities are more likely to rule indecent material criminally obscene.

The Bush Administration took full advantage of such forum selection when it chose to resurrect federal obscenity prosecutions after two terms of Clinton-era desuetude.  There have been four big cases to rise out of the Bush-era prosecutions.  One recently yielded a guilty plea after protracted litigation in the Third Circuit.  Another may be coming to trial in the D.C. Circuit.  The Ninth and Eleventh Circuits, however, have made their decisions, forcing a circuit split over community standards for the Internet–a topic to which the Supreme Court in 2002 signaled its receptivity.

In late October, the Ninth Circuit, in United States v. Kilbride, held that juries must apply national standards when assessing Internet obscenity, even for the sexually explicit spam emails sent by the defendants.  To reach this determination, the panel relied on the separate opinions of six justices in the Supreme Court’s 2002 Ashcroft v. ACLU decision.  In dicta, Justices O’Connor, Breyer, Kennedy (joined by Souter and Ginsburg), and Stevens all took turns expressing their doubts about the constitutionality of requiring juries to apply local community standards.  O’Connor and Breyer went so far as to endorse the use of national standards.  Here’s O’Connor:

To be sure, the Court in Miller also stated that a national standard might be “unascertainable,” 413 U.S., at 31, and “[un]realistic,” id., at 32. But where speech on the Internet is concerned, I do not share that skepticism. It is true that our Nation is diverse, but many local communities encompass a similar diversity. For instance, in Miller itself, the jury was instructed to consider the standards of the entire State of California, a large (today, it has a population of greater than 33 million people, see U.S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States 23 (120th ed. 2000) (Table 20)) and diverse State that includes both Berkeley and Bakersfield. If the Miller Court believed generalizations about the standards of the people of California were possible, and that jurors would be capable of assessing them, it is difficult to believe that similar generalizations are not also possible for the Nation as a whole. Moreover, the existence of the Internet, and its facilitation of national dialogue, has itself made jurors more aware of the views of adults in other parts of the United States. Although jurors asked to evaluate the obscenity of speech based on a national standard will inevitably base their assessments to some extent on their experience of their local communities, I agree with Justice Breyer that the lesser degree of variation that would result is inherent in the jury system and does not necessarily pose a First Amendment problem. See post, at 2. In my view, a national standard is not only constitutionally permissible, but also reasonable.

The Ninth Circuit determined that Ashcroft‘s concurring and dissenting justices’ dicta on community standards were enough guidance to blaze new constitutional ground.

Today, however, in United States v. Little, the 11th Circuit disagreed:

Appellants argue that the district court should have applied a national or Internet community standard rather than the local community standard of the Middle District of Florida. In support of this argument, Appellants rely heavily on the concurrences and dissent in Ashcroft, 535 U.S. 564, 586-612, 122 S. Ct. 1700, 1714-1728 (2002). Recently, the Ninth Circuit interpreted Ashcroft in such a way as to mandate a national community standard for Internet-based material. United States v. Kilbride, 584 F.3d 1240, 1252-54 (9th Cir. 2009). We decline to follow the reasoning of Kilbride in this Circuit. The portions of the Ashcroft opinion and concurrences that advocated a national community standard were dicta, not the ruling of the Court.

As a result, the Miller contemporary community standard remains the standard by which the Supreme Court has directed us to judge obscenity, on the Internet and elsewhere. The district court did not err when it instructed the jury to judge the materials on the basis of how “the average person of the community as a whole—the Middle District of Florida—would view the material.”

With the split now wide open, one could safely assume that at least four of the still-sitting, separately-writing Ashcroft justices would vote to grant certiorari so to align the Court’s obscenity doctrine with the times.   Still, even if the Court would grant certiorari and resolve the split in favor of the Ninth Circuit’s national community standards for Internet obscenity, it is not at all fait accompli that the Court will endorse the Ninth Circuit’s reasoning.  The panel employed what may be considered overzealous methodology in gleaning conclusive guidance out of concurring and dissenting dicta.  Further, the panel lumped email, which is sent by specific distribution analogous to that of Miller‘s time, into Ashcroft‘s concern about the Web’s indiscriminate dissemination.

Nevertheless, I predict that these cases are ripe for Supreme Court review.  Now which one of you Supreme Court advocates needs help with the cert petition?

UPDATE: Aw shucks.  The Eleventh Circuit’s opinion possesses the header that “This case was not selected for publication in the Federal Reporter.”  Boooo!  If the Eleventh Circuit was trying to dodge the cert process, there still remains hope.  The Ninth Circuit may still find itself sufficiently split with 2005′s Extreme Associates in the Third Circuit, 1996′s United States v. Thomas in the Sixth Circuit, or perhaps the pending case at the D.C. District Court if it makes its way up to the D.C. Circuit.

UPDATE II: Prof. Eugene Volokh wonders why the Eleventh Circuit chose to keep Little unpublished and whether it or Kilbride may still go up to the Court:

[I]t seems odd that the Eleventh Circuit’s opinion — which apparently considered this argument for the first time in that circuit, and which expressly rejected the reasoning of the one precedent on the subject from another circuit — was unpublished.

Unpublished opinions deliberately lack binding precedential value, and are generally intended to limit their own value as persuasive precedent as well (though the ultimate estimation of such persuasive value is of course in the eyes of a future court). It seems to me that they should be reserved for areas where more precedent is unhelpful, chiefly because there already is plenty of precedent in the jurisdiction on the subject. So it’s hard for me to see why this opinion, which is certainly quite detailed should be unpublished.

Note that there won’t be a cert petition from the government challenging the Ninth Circuit’s national-standard holding in Kilbride, since the conviction there was affirmed on harmless error grounds. The government won on the bottom line, and thus can’t petition for certiorari, even if it dislikes the court’s reasoning. (It could have petitioned for rehearing en banc, but despite two requests for extension of time to file a petition for rehearing, the government ultimately decided not to petition.)

There might well be a cert petition in the Eleventh Circuit case, though. I wonder to what extent the Court will see this case as practically involving a circuit split, even though technically there is no disagreement between the precedent in the two cases. Supreme Court Rule 10(a), for what it’s worth, notes that one important factor in favor of granting certiorari is that “a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter.”

UPDATE III: Scott Gant, partner at Boies Schiller and author of We’re All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age, passed along a 2006 Boston College Law Review article he wrote on unpublished circuit court opinions.  On page 729, he writes of Supreme Court review:

One might also expect unpublished opinions rarely, if ever, to be the subject of Supreme Court review. Yet the Court has elected to review dozens of unpublished appeals court opinions, in many cases reversing the court’s decision.  Still other cases involve circuit splits, where at least one of the court of appeals decisions addressing the disputed issue was unpublished.

In his footnotes to the above text, he lists twelve cases, many of which from the past ten years, to support his assertion.   So my offer is back on: any Supreme Court advocates want some help writing a killer cert petition?


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Meat v. Beans

Posted in Justicespotting by Mike Sacks on January 19, 2010

USA Today’s Joan Biskupic writes today on the ideological and stylistic differences of Justices Scalia and Breyer:

They appear at law schools together to discuss their competing views of the Constitution. They take ideological aim at each other in rulings. And their differences are increasingly playing out in testy fashion on the bench.

No two justices seem to drive each other so nuts during oral arguments. That was clear during the first session of the new year, as Justices Antonin Scalia and Stephen Breyer squabbled in a series of cases last week.

Scalia is conservative and Breyer liberal. Yet their differences on the bench are ones of both substance and style. As Breyer begins a long, hypothetical question, Scalia — a fast-speaking, get-to-the-point guy — often slaps his hands up to the sides of his head.

Breyer doesn’t exude irritation as much as frustration. A pragmatist, he is irked when Scalia interrupts his interest on how a ruling might affect real life.

As Biskupic illustrates her point with the justices’ behavior during last week’s American Needle argument, her article reminds me of my own brief Scalia-and-Breyer story that similarly exemplifies their differences.

Sometime during our stay here in DC, my girlfriend and I found ourselves wildly out of place at a party with many well-established Washington-types.  One glance around the room would make any mortal quake under the power on display.  We had two choices: stand in the corner with eyes averted or swallow our fears and engage.  We went with the latter and made towards the buffet table.

As we both stepped up to the plate–literally, dinner plates–we hit yet another obstacle.  For me, big slabs of beef with no knives in sight; for my girlfriend, on the opposite end of the table, giant beans she had never seen.  I didn’t know how to properly eat what I so wanted, she didn’t want to eat what she didn’t know.

I stood there staring at the forks and meat on the table, imagining to myself just how I could carnivorate without making a scene.  Should I aggressively saw the meat with the side of my fork?  Should I stuff the whole thing into my mouth?  Should I just tear it with my hands?

Then I looked to my left and found Justice Scalia making for the meat.  How appropriate!

Me: Justice Scalia, how do you eat the meat without a knife?

AS: Well, you take this bread [he takes bread from the breadbasket on the table], you fold the meat on top of it, and you eat it!

Me: You just gnaw on it?

AS: Yes, that’s how you eat it.

I was so excited to be getting meat-eating lessons, however curt, from Justice Scalia that I looked across the table to see if my girlfriend was taking it in.  But instead I found myself witnessing the very study in contrasts Biskupic writes of today: Justice Breyer was very intently introducing my girlfriend to the wonder of fava beans.

Now, whenever my girlfriend and I find ourselves at fancy parties with buffets featuring slabs of beef sans knives and giant fava beans, we take care to seek out our own overwhelmed peers–easily spottable by their uneasy eating–and impart to them the lessons we learned from those old adversaries, Justices Scalia and Breyer.

The Post-Partisan Court?

Posted in Anticipation, Weekend Reading by Mike Sacks on January 16, 2010

As F1@1F weekend reading, I am posting below a longer piece–previewed in my first post–that I wrote in early December on the Roberts Court’s seemingly “post-partisan” posture in this new Obama era.

This hypothesis is by no means proven – it is merely culled from observations about the Court’s docket this term as related to its decisions of the previous three terms.  The hypothesis’s true test will come as the Court continues to hand down its decisions.

Please keep your disagreements civil in the comments and keep coming back to F1@1F as the term goes on for follow-up analysis.

Enjoy!

—-

Every year, the Supreme Court hears several cases that inflame public passions, prompting Americans to line up on opposite sides of predictable partisan divides.  The Court from Reagan to Bush II could be counted on to divide 5-4 on most any politically salient subjects such as abortion, affirmative action, separation of church and state, right to die, gay rights, and even the outcome of a Presidential election.  Under the Roberts Court, the American public has come to expect the predictable configuration of justices on hot-button issues: Roberts, Alito, Thomas, and Scalia on the Right; Stevens, Ginsburg, Breyer, Souter (and now, presumably, Sotomayor) on the Left; and Kennedy going to whichever side his peculiar vision of individual liberties happens to fall.

Yet a funny thing happened on the way to the Obama era: the Court seems to be flirting with post-partisanship. When Chief Justice Roberts stood on the Capitol steps, his fellow justices bundled up behind him, and administered the Oath of Office to Obama, they overlooked the National Mall crammed with more than million freezing onlookers.  The two representatives of their respective branches worked in concert, but not without momentarily tripping over each other’s words.  That scene may prove to be a metaphor for the interaction between our current political and judicial branches.

In the summer of 2007, at the end of the Roberts Court’s first term with both Bush II appointees on the bench, Justice Breyer seethed that “[i]t is not often in the law that so few have so quickly changed so much.”  The Supreme Court had taken an aggressively rightward tack on abortionstudent speechschool desegregation, gender discrimination, and campaign finance, enabled by the replacement of arch-moderate Justice O’Connor with the solidly conservative Justice Alito, and given political cover by a sympathetic President and Congress.

The following year found the two wings similarly uncompromising, going tit-for-tat over the war on terror and gun rights, as if to imitate the dynamics between the newly elected Democratic Congress and the legacy-seeking Republican Executive.  In Boumediene v. Bush, Justice Kennedy swung into the liberal camp to pen its final victory over the Bush administration’s detentions and prosecutions of enemy combatants held in Guantanamo.  Justice Scalia, in a vituperative dissent, warned that the five-member majority’s decision to grant habeas corpus rights to Guantanamo detainees “will almost certainly cause more Americans to be killed.”

Two weeks later, Scalia triumphantly announced the majority opinion in District of Columbia v. Heller, in which Kennedy provided the fifth conservative vote, striking down D.C.’s handgun ban by defining the Second Amendment as securing an individual right to keep and bear arms.  Justice Stevens, writing on behalf of the four liberals, condemned the majority as the very opposite of “genuine” judicial conservatives: results-driven activists.  Indeed, some Court watchers wondered how the dissenters resisted using Scalia’s inflammatory words in Boumediene against him in their argument for the importance of the myriad gun control laws Heller now called into question.

Fast-forward to this term, which officially began on Monday, October 5.  Although the Court has yet to release any decisions, the high profile cases on its docket reflect the promises and pitfalls of the Obama era’s post-partisan rhetoric.  The Democratic Party, now controlling Congress and the Presidency, is struggling to reconcile the realities of big-tent governance with the demands of competing grassroots ideals.  Meanwhile, United States v. Stevens, which the Court heard in early October, pits liberal values against liberal values in a contest between free expression and animal rights.  And as the Republicans decide which bits of right-wing ideology to embrace or reject as they rebuild from the rubble of 2008, conservative concerns collided at the Court in early December’s Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, when the Court considered whether to abandon principles of federalism in favor of property rights.  Finally, Obama’s overtures to his opponents in pursuing his agenda have their analogue in the Court’s blockbuster of the term: McDonald v. City of Chicago may very well result in a political quid pro quo in which the conservative Heller majority can extend its interpretation of the Second Amendment to the states by breathing new life into a clause of the Fourteenth Amendment that could strengthen constitutional protection for liberal causes.

Of course, these three cases may not be so indicative of a new day rising at the Court.  Justice Kennedy’s vote remains the putative fifth vote in Graham v. Florida and Sullivan v. Florida, which questions whether the life imprisonment without parole of a juvenile for a non-homicidal crime violates the constitution’s ban on cruel and unusual punishment, and in Free Enterprise Fund and Beckstead and Watts, LLP v. Public Company Accounting Oversight Board, which could find the Sarbanes-Oxley Act’s creation of the PCAOB in violation of separation of powers principles.

However, whereas recent history augurs a Kennedy-penned liberal win in Graham and Sullivan, the Court showed only last term in Northwest Austin Municipal Utility District Number One v. Eric Holder, Jr, Attorney General, et al. (NAMUDNO) that it is willing to stop short of the type of ideologically-driven holding that Free Enterprise could bring.  When the Court agreed to hear NAMUDNO, political liberals quivered in fear.  At issue was the constitutionality of Congress’s 2002 vote to extend for another twenty-five years Section Five of the Voting Rights Act of 1965, which required districts with histories of voting rights violations to obtain “preclearance” from the Justice Department for any changes in a covered district’s election procedures.  NAMUDNO presented the conservative justices with its most sweeping opportunity yet to declare the work of the Civil Rights era complete and more fully institute colorblind law.  This was, after all, the same Roberts Court that closed its 2006 term with a 5-4 decision that cited Brown v. Board of Education, the legendary case from 1954 that struck down public school segregation, to hold unconstitutional voluntary, race-conscious public school re-integration programs.

Yet the Court shocked observers when it handed down an 8-1 decision upholding Section Five’s constitutionality.  Chief Justice Roberts, the same man who three years earlier refused a remedy for de facto segregation by stating that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” stopped short in his NAMUDNO decision from judicially willing this country’s history of racial discrimination into obsolescence.  Indeed, faced with the magnitude of exercising judicial review—the most powerful tool the Supreme Court wields over its co-equal branches—against a landmark Act of Congress, the conservatives blinked.  Roberts corralled the conservatives and the liberals under his narrow holding while dispatching Justice Thomas to argue in dissent what ostensibly would have been the conservative majority opinion had Roberts not pulled his right-leaning brethren back from the brink of a certain political firestorm.

But why did the justices determine that NAMUDNO, which roared into the Court’s docket like a lion, should go out like a lamb?  After all, Roberts seldom before let his oft-professed ideal to guide the Court towards broad consensus and narrow holdings take precedence over his demonstrated commitment to conservative ideology.  The Court, however, is not deaf to public opinion.  The term began with a Republican President and a Democratic majority in Congress; the term ended with a Democratic President and a Democratic supermajority in Congress.  Roberts was well aware that the last Court that mounted active resistance to the dominant political will of the American people and their representatives in government now rests in historical infamy.

In order to further a conservative agenda alongside a Democratic executive and legislature, the Court must jealously protect its legitimacy.  The early Roberts Court’s halcyon days of Republican political dominance is over: the conservative bloc, when Justice Kennedy agrees with them, must pick their battles carefully.  That certainly seemed to be their strategy for last term’s potential conservative victories: by balking on NAMUDNO, the Court had enough political capital for a smaller victory in Ricci v. DeStefano, in which the five-member majority held that New Haven discriminated against white firefighters when the city threw out the results of a promotion exam in which disproportionally less black firefighters qualified.  Meanwhile, as if to tell the liberal wing not to get too optimistic over the NAMUDNO compromise, the Court ordered reargument in Citizens United v. Federal Election Commission and presented a new question to the parties that suggested that the conservatives were itching to invalidate federal election laws limiting corporate expenditures during Presidential and Congressional campaigns.

The Court’s decision to schedule a rare September hearing for Citizens United made strategic sense for the Court’s conservative wing in a manner that mirrors President Obama’s own sly “post-partisanship.”  Just as the Right does not trust Obama’s overtures as he pursues even moderately liberal policies, neither should the Left be lulled by NAMUDNO or the absence on this term’s official docket of politically resonant Left vs. Right cases that the conservatives are likely to win.  Indeed, even the potential partisan 5-4 cases are muted: juveniles sentenced to life without parole is hardly as galvanizing as challenges to the death penalty, and claims against administrative agencies do not have the same explosiveness as clashes between Congress and the President.  By placing Citizens United among this term’s cases, the Court, intentionally or not, now possesses the political capital where none existed last term for the conservative majority to open the floodgates for corporate cash in campaigns.

Nevertheless, even if our executive and judicial branches are deploying post-partisan strategy for ideological gain, the strategy significantly slows the traumatic political polarization that would—and did—occur when the branches enable or antagonize the other’s agenda without restraint.  I hope to test this hypothesis as the decisions come down this term and beyond…that is, until the Gay Marriage case hits the Supreme Court. Then it’s back to judicial politics as usual.

Post-Needling

Posted in Case Reports by Mike Sacks on January 13, 2010

Today’s argument in American Needle Inc. v. NFL offered two lessons to the packed courtroom: first, the Solicitor General’s office can rob both parties of a clear victory; second, if Justice Breyer isn’t kept on a tight leash, he will crack jokes all morning.

American Needle was a hotly anticipated case that asked whether the thirty-two teams in the NFL served as a single entity when they granted Reebok an exclusive license to market NFL apparel.  American Needle, Inc., a sportswear company that once did business with the NFL, argued that the NFL violated the Sherman Antitrust Act because the league’s thirty-two teams, all independent companies, acted together to limit the market in their agreement with Reebok.

Whereas American Needle petitioned for certiorari seeking a reversal of the Seventh Circuit’s holding that the NFL constituted a single entity for intellectual property and trademark purposes, the NFL, rather than oppose American Needle’s petition, decided to run up the score.  It urged the Court to grant certiorari and expand the Seventh Circuit’s holding beyond trademark and intellection property.  NFL wanted the Supreme Court to find that the league is a single entity in general, which could potentially shield the NFL from anti-trust scrutiny.

Faced with these two extremes, the Court called for the views of the Solicitor General’s office, which responded in amicus by adopting the Seventh Circuit’s more modest approach.  This morning, the Court made clear its ambivalence towards both parties’ arguments, suggesting its ultimate allegiance to the Solicitor General’s approach.

Indeed, at no point did any justice clearly come down for or against either party.  Rather, they all seemed interested, though non-committal, in testing the limits of the rule of reason–antitrust law’s case-by-case balancing test to determine what is and isn’t an unreasonable restraint on the market–in NFL teams’ relationship with the league itself.

For instance, during American Needle’s argument, Justice Alito wondered whether certain teams, under NFL’s rules, are allowed to schedule more games for themselves to get more money.  Chief Justice Roberts inquired whether the NFL’s rules and regulations are horizontal rules among the teams or issued by a single, central entity.  Justice Stevens followed up by exploring–and subsequently repeating throughout the argument–the idea that NFL’s licensing agreement with Reebok could actually have an overall “pro-competitive” effect on the market by giving more public attention, and therefore more sales, to less popular or successful teams.

Glen Nager, American Needle’s lawyer, responded by stating that the anti-competitive aspects of the NFL’s control over each team’s merchandizing outweigh the possible pro-competitive situations.  Teams, Nager argued, should get together to forge an agreement in which each team will individually market its own logos.

And this is when Crazy Legs Stevie Breyer grabbed the ball and ran.  After fumbling to think of the Patriots’ arch-rival, first settling on the Saints, and then inventing inter-sport play by replacing the Saints with the Red Sox, Breyer threw up his hands and proclaimed, “I know baseball better.”  Laughter filled the Courtroom.  And for the rafter-swinging Breyer, who scans the audience with satisfaction after almost every one of his questions, laughter proves a potent drug:

Breyer: I don’t know a Yankees fan who will take a Red Sox sweater if you gave it to them!

Nager: A three-year-old could be persuaded.

Breyer: They have very small allowances, those three-year-olds.

Irked by his roadshow adversary‘s getting all the guffaws, Justice Scalia grumbled, “Why am I worried about this other stuff?”  Nager dead-panned: “because Counsel has an obligation to engage justices’ questions.”  After making the case for the relevance of his comical questions, Crazy Legs Breyer took himself out of the game, giving Nager permission to “blow off” his questions.

By the time Gregg Levy, the NFL’s lawyer, took to the lectern, the courtroom had returned to its silent decorum.  Levy argued that, among other reasons, the NFL deserved single entity status because its primary purpose is to centrally and cohesively promote the game of football as authorized by all thirty-two teams.  Justice Scalia did not buy that line and pithily stated that the NFL’s purpose–particularly through its licensing deal with Reebok–”is to make money.”  Sotomayor piled on: “you are seeking through this hearing what you haven’t got through Congress: an absolute bar to anti-trust claims.”  Yet the old ambivalence soon overtook the momentary shot of antagonism.  The justices went back to their exploration of the rule of reason and Scalia admitted that the individual teams constituting the NFL would be “worthless if the NFL disappears.”

American Needle came into the Court as potentially transformative of sports law, if not anti-trust law in general, but by the time Chief Justice Roberts banged his gavel and submitted the case, it was clear that the case, to switch to Justice Breyer’s sport of choice, would be sent back down to the minors for further development.

UPDATE: The official transcript is available here.  Excoriate my own transcription prowess in the comments.

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!

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