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.
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!
I reluctantly make this post because it is my third consecutive reliance on an NYT story and I’d like to present a bit more variety in my sourcing at this early stage in F1@1F’s life. But my will has been overborne by this irresistible piece of English-major-turned-law-student porn:
Barnhouse said the opportunity to recover taxes on the cigarettes was an “inchoate” interest, not yet fully formed. “Any recovery would not be property until it became choate, until there was an amount of money assigned to it,” he explained.
Scalia stopped Barnhouse cold. “There is no such adjective,” he declared. “I know we have used it, but there is no such adjective as choate. There is inchoate, but the opposite ofinchoate is not choate.”
Not willing to let the matter go, Scalia went on, “It’s like gruntled,” noting that some people mistakenly think that the opposite of disgruntled is gruntled. …
By ruling from the bench on what is and isn’t a word, Scalia is following in the footsteps of his former colleague William Rehnquist, who once interrupted the argument of a lawyer who dared to use the nonstandard word irregardless. “I feel bound to inform you that there is no word in the English language irregardless,” Rehnquist said. “The word is regardless.”
Speaking of reluctant, the article reminds me of a recent dinner-table-turned-email debate I had with my friend Hannah Seligson–read her work at TDB and buy her new book!–over the use of the word “reticent” as a synonym of “reluctant.” I stood firm against its definition’s aggressive expansion beyond its expression-based borders, whereas she agreed with Merriam-Webster’s appeasement of “reticent’s” imperial ambitions. For such a battle between my originalist and her evolving lexiconic attitudes, cf. back to the NYT Mag:
Despite such complaints, choate developed a momentum all its own, at least in American legal circles. By the time of the 1954 Supreme Court case that Scalia later sought to expurgate, the word had become enshrined in property law, even lending its name to the so-called choateness doctrine of liens. Choate now appears in most major U.S. law dictionaries, and Garner says it is accepted and used “even by those who deprecate its origins.” Well, except for one justice railing against a word he has decided isn’t a word after all, no matter how many dictionaries it enters.
Dictionaries be damned: side me with Scalia on this one.