June 25, 2009

Hot new Supreme Court cases.

Served up in real time, right now, right here.

UPDATE: "The Supreme Court has finished issuing rulings for the day, without releasing a decision in the Ricci cases — the New Haven firefighters job discrimination litigation. The Court will issue further rulings on Monday."

From today's decisions, there is Melendez-Diaz v. Massachusetts (PDF), a Confrontation Clause case, decided 5-4, with Justice Scalia writing the opinion joined by Stevens, Souter, Thomas, and Ginsburg. Kennedy dissents joined by Roberts, Breyer, and Alito.

Here, Scalia dispenses with pragmatic arguments against giving criminal defendants the right to cross-examine laboratory analysts who produce reports, used by the prosecution, certifying that a particular substance, seized from the defendant, was cocaine:
Defense attorneys and their clients will often stipulate to the nature of the substance in the ordinary drug case. It is unlikely that defense counsel will insist on live testimony whose effect will be merely to highlight rather than cast doubt upon the forensic analysis. Nor will defense attorneys want to antagonize the judge or jury by wasting their time with the appearance of a witness whose testimony defense counsel does not intend to rebut in any fashion.
Justice Kennedy says:
For the sake of ... negligible benefits, the Court threatens to disrupt forensic investigations across the country and to put prosecutions nationwide at risk of dismissal based on erratic, all-too-frequent instances when a particular laboratory technician, now invested by the Court’s new constitutional designation as the analyst,
simply does not or cannot appear.
AND: Here's a new Slate piece about the Ricci case, which is still pending:
As black, white, and Hispanic firefighters in New Haven brace for the Supreme Court's decision, they're keeping their heads down and doing their jobs. But they're also tired and apprehensive. Almost no matter what the court decides, the ruling will mean more hard feelings and strife. No one we talked to can really imagine a way to resolve fairly who will get the promotions—which have been frozen now for six years. In this city at this moment, it's hard to imagine what fair would possibly look like.
Also left for Monday: "the case on radio or TV broadcast of a documentary movie critical of presidential candidate Hillary Rodham Clinton (Citizens United v. Federal Election Commission, 08-205), and a test of state governments’ authority to investigate race discrimination in home mortgage lending (Cuomo v. Clearing House Association, 08-453)."

21 comments:

Salamandyr said...

I think I'm with the majority here. If the defendent wants it, he should be able to get it.

Interesting split, nowhere near the standard ideological lines.

Ann Althouse said...

"Interesting split, nowhere near the standard ideological lines."

But it's typical for the Confrontation Clause. There's a big textualist point that matters to Scalia and Thomas.

John Thacker said...

Yep, it's the same majority as in Apprendi, too.

This majority comes up a lot in criminal cases where there's literal text in the Constitution pointing to a right that may not be pragmatic. Justice Breyer is the big supporter of pragmatism and goes the other way, whereas Justices Scalia and Thomas believe that any rights in the text of the Constitution are absolute (whereas anything nothing there isn't.)

Breyer believes in balancing, Thomas really doesn't.

John Thacker said...

For an unusual majority, try today's Admiralty law case on punitive damages. Justice Thomas writes for a majority of him, Souter, Ginsburg, Stevens, Breyer.

traditionalguy said...

In the fast changing world today the right to require in court human testimony does two things: (1)It gives the Defense Attorney the chance at stalling or ending a unwinable drug case in hope that the analyst is MIA, and (2)It means that the analysts will be inside courthouses more than inside crime labs. But the Constitution is the law until we amend it. The States easy ability to railroad innocent men and women into criminal convictions IS the main reason for our Constitutional rights, starting with the Magna Carta.

John Althouse Cohen said...

Justice Breyer is the big supporter of pragmatism and goes the other way, whereas Justices Scalia and Thomas believe that any rights in the text of the Constitution are absolute....

Breyer believes in balancing, Thomas really doesn't.


Based on the block quotes in this post, both the majority and the dissent are considering the pragmatic downsides of imposing this constitutional requirement. Neither side is against balancing; they just have different opinions about how the pros and cons balance out.

John Thacker said...

Well, the first block quote brings up balancing concerns in order to dismiss them. Granted, it's an over-simplification, but there really is a tremendous difference in how Justices Breyer and Thomas approach balancing. Justice Breyer is much, much more likely to find that pragmatic concerns make it necessary to balance competing rights. All this is related to how many rights you find; the more you have, the more likely that they have to be balanced.

Lem said...

If there is a Dennis Fung handling evidence w/o gloves the defence should be entitled to find out.

Robert said...

From the Ricci description, "hard to imagine what fair looks like."

How about: all the people who demonstrate merit, competency and achievement by studying and passing the test get promoted and those who don't, don't?

Oh wait, never mind. That couldn't possibly be fair. The problem must be with the test instead.

Ann Althouse said...

@John Althouse Cohen

But it still explains Scalia's vote in the case. He writes for the majority and addresses the dissent.

The fact that he's textualist doesn't mean he isn't allowed to refute the nontextualist arguments that may or may not tip the decision for others.

Patrick said...

I'll be there on Monday, I'm quite excited actually, Ricci and Citizens United is good fare for one day!

Christy said...

Think about it. The decision in the Ricci case will apply to your heart surgeon under ObamaCare.

Aaron said...

Mmm, it goes to show you how race conscious solutions have a price however fair they might be. and of course in new haven, i don't think they were fair.

There is no way they affirm what the district court said. the decision was an embarrassment. There is no question it was discrimination under the 14th A, and the only question is whether it is narrowly tailored to serve a compelling purpose. even arguing that the purpose was compelling, i don't see how NH could possibly have met that narrowly tailored burden.

Aaron said...

as for the confrontation clause case, Scalia is pretty hard core in upholding the literal requirements of the constitution, no ifs ands or buts. Thomas is a little better. for instance, Thomas led the charge to decide that every factor considered in enhancing a sentence had to be proven beyond a reasonable doubt and eventually brought scalia to his side on that.

Frankly it belies the claim that they are really activists in disguise.

Aaron said...

And i will add that the fact kennedy dissented further reduces my respect for him. After the terrible kennedy v. louisiana decision, based on laughably faulty reasoning (see Alito's scathing dissent), it became clear to me that Kennedy really fundamentally didn't give a rip what the constitution actually said on the subject, so long as the text wasn't too obviously against him. and in this confrontation clause case, not even then.

The Drill SGT said...

From the Ricci description, "hard to imagine what fair looks like."

yeah,I read all 5 parts. I was struck by the Black Firefighter argument and the City solution.

"The old method which included evaluations from supervisors was biased and produced too many white promotions, best toss that out. We'll write a completely objective test that measures technical knowledge of fighting fires, not who you know.

whoops, that produces too many wite promotions, we need to toss that out and try "assesment centers' that feature 'method intersperses a combination of interviews, group discussions, written exercises, oral presentations, role play, and emergency scenarios".

So much for a color blind process. perhaps this way they'll get the results they want.

sounds like ultimately the City will default to racial quota spoils system.

Maybe Emily will be happier when her house fire is fought by people that "passed" the test rather han those who did best.

bagoh20 said...

"No one we talked to can really imagine a way to resolve fairly who will get the promotions—which have been frozen now for six years. In this city at this moment, it's hard to imagine what fair would possibly look like."

Really? It doesn't require imagination, but clarity. I can't imagine it being any more unfair than the whole exploit has been for 6 years, but I guess that's what the law is for.

elHombre said...

Kennedy's point about the practical outcome of Melendez-Diaz is likely correct.

Scalia doesn't "dispense" with the pragmatic arguments, he just demonstrates lack of familiarity with defense tactics.

Lab techs produce hundreds, if not thousands, of reports each year. The defense attorneys will simply subpoena the techs in every case, seeking to disrupt the labs and the courts. If the tech shows up, they will stipulate to the report. If not, they will move for dismissal or some other sanction.

And, of course, if the techs are answering subpoenas, they can't be doing forensic analyses.

John Thacker said...

It's the Apprendi, US. v Booker, Ring, Blakely v. Washington, and mostly the Kyllo v. US majority.

Hugely important line of cases. Sotomayor's opinion on this is really important, since she's replacing Justice Souter.

mccullough said...

Where does Sotomayor fall in this? Breyer's licking his chops so he can get her to flip Apprendi and Crawford back to his idiosyncratic views with Souter retiring.

This decision gives defendants better leverage in plea negotiations in drug cases.

Bruce said...

On Ricci: It's hard not agree with Robert's sensible comment above.

Here's another slant, though: Perhaps if those promotions have been frozen for 6 years, then those higher, promoted positions are really not required at all.

If a position is unfilled for 6 years, that position is clearly not needed.