Supreme Confrontation
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The Supreme Court issued its final opinions of the term
yesterday, and David Souter said his farewell to the bench. On
July 13, the Senate Judiciary committee will begin confirmation
hearings for Sonia Sotomayor, who will almost certainly replace
Souter in the fall. A look back on the term helps illustrate how
little those hearings are likely to tell us about the impact
Sotomayor will have on the court.
Sotomayor will undoubtedly, and deservedly, be grilled about
Ricci v. DeStefano, the Title VII civil rights in which
the high court yesterday reversed her. But court-watchers should
be more immediately interested in those cases where Sotomayor
could actually change things, i.e. the cases where Souter
provided a decisive vote.
Ten cases argued before the Court this term (and one case
summarily remanded without oral argument) were decided on 5-4
votes in which Souter was in the majority. Five of those broke
along the standard lines, with the liberal wing of the court –
Souter, Ruth Bader Ginsburg, John Paul Stevens, and Stephen
Breyer — joining swing-voter Anthony Kennedy in the majority.
Assuming, reasonably, that Sotomayor joins the liberal wing on
most issues, she is unlikely to make a difference in any of those
cases.
She may well make a difference, though, in cases in which liberal
and conservative justices form novel coalitions. Souter was in a
five-justice majority in several cases this term, including cases
involving the National Banking Act (Cuomo v. Clearing House
Association), the Federal Arbitration Act (Vaden v.
Discover Bank), the limits of punitive damage liability
under maritime law (Atlantic Sounding Co. v. Townsend),
and the definition of a reasonable search and seizure under the
Fourth Amendment (Arizona v. Gant).
Most immediately in peril is Melendez-Diaz v.
Massachusetts, a decision handed down last week concerning
the Confrontation Clause of the Sixth Amendment: “In all criminal
prosecutions, the accused shall enjoy the right…to be
confronted with the witnesses against him.” Arguing for the
majority, Antonin Scalia staked out the straightforward position
that this means that the defense in a criminal case has the right
to cross-examine a forensic analyst who signs an affidavit
attesting to a certain result (in this particular case, the
affidavit stated that the defendant was carrying a certain
quantity of cocaine). Scalia was joined by his fellow originalist
Clarence Thomas, along with Ginsburg, Stevens, and Souter.
Justice Kennedy’s emphatic dissent is rooted mostly in the
“pragmatic” argument that this would unduly burden prosecutors
and courts. “Many States have already adopted the constitutional
rule we announce today,” responds Scalia, “while many others
permit the defendant to assert (or forfeit by silence) his
Confrontation Clause right after receiving notice of the
prosecution’s intent to use a forensic analyst’s report…
[T]here is no evidence that the criminal justice system has
ground to a halt in the States that, one way or another, empower
a defendant to insist upon the analyst’s appearance at trial.”
Yesterday it was announced that the High Court will hear
Briscoe, et al., v. Virginia, another Confrontation
Clause case involving a certificate prepared by a forensic
analyst. There has been some speculation
that Sotomayor might prove more prosecution-friendly than Souter,
and thus might vote to narrow the scope of
Melendez-Diaz, or even overturn it.
Don’t expect to learn much about Sotomayor’s views on the Sixth
Amendment during her confirmation hearing, though. As important
as it is to determine how defendants may challenge forensic
evidence (which is
much more fallible than the average episode of CSI
suggests), it isn’t an issue that inflames the sort of partisan
passions that drive Senators’ questions (in part precisely
because it divides jurists along ideologically unpredictable
lines). Even if Sotomayor were asked about the Confrontation
Clause, she could quite reasonably respond that it would be
unethical to comment on an issue she can expect to rule on in the
future. Needless to say, Senators aren’t likely to spend much
time asking about banking regulations or maritime tort law,
either. The confirmation process may make good political theater,
but it has strikingly little to do with the immediate practical
effects of confirming a nominee.
