"'Morning Joe' co-host Mika Brzezinski upset women who accused Mark Halperin of sexual harassment..."

"... when she reported on air Friday that she had tried to arrange a meeting so the now-disgraced political analyst could apologize," Fox News reports.

Brzezinski said Halperin, who was fired in October after being accused of sexual misconduct by multiple women, was "more than willing to meet with his accusers and apologize with them face-to-face." The MSNBC star said she “actually tried to offer him to them” but the women “don't want to talk to him.”

[A] letter [from] 10 of Halperin’s accusers... states that Brzezinski was “inappropriate” for suggesting such a meeting and that she has a conflict of interest because of her “personal friendship” with Halperin.... “Sexual harassment and assault is illegal in the workplace, and represents a violation of the policies and standards of NBC News," the letter said. "It is an unethical and harmful request to ask that sexual assault victims confront their accusers in person and, in particular, on live TV.”...

Brzezinski issued a statement late Friday... "In the case of Mark... I realize that it is not my place.... As a victim of sexual assault, I understand that each individual's case is different. This is up to the victims, some of whom I've been in contact with.... ”

Brzezinski was promoting what in a criminal case is a right of the accused: the right to confront the witnesses against you. It tends to be an ordeal for the accuser, and it's certainly not a ritual of healing. Victims of sexual assault have sought protection from that ordeal, such as by using one-way closed circuit television. See Maryland v. Craig, a case with a famous Scalia dissent:

The Court makes the impossible plausible by recharacterizing the Confrontation Clause, so that confrontation (redesignated "face-to-face confrontation") becomes only one of many "elements of confrontation." The reasoning is as follows: The Confrontation Clause guarantees not only what it explicitly provides for -- "face-to-face" confrontation -- but also implied and collateral rights such as cross-examination, oath, and observation of demeanor (TRUE); the purpose of this entire cluster of rights is to ensure the reliability of evidence (TRUE); the Maryland procedure preserves the implied and collateral rights (TRUE), which adequately ensure the reliability of evidence (perhaps TRUE); therefore the Confrontation Clause is not violated by denying what it explicitly provides for -- "face-to-face" confrontation (unquestionably FALSE). This reasoning abstracts from the right to its purposes, and then eliminates the right.

4 boxes of new Supreme Court opinions...

... with SCOTUSblog live-blogging here.

1. Brumfeld v. Cain (PDF). About habeas relief and the question when a person is "mentally retarded and therefore ineligible for the death penalty."

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Brumfield could secure relief only if the state court’s rejection of his claim was either “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U. S. C. §§2254(d)(1), (2)....

We do not deny that Brumfield’s crimes were terrible, causing untold pain for the victims and their families. But we are called upon today to resolve a different issue. There has already been one death that society rightly condemns. The question here is whether Brumfield cleared AEDPA’s procedural hurdles, and was thus entitled to a hearing to show that he so lacked the capacity for self-determination that it would violate the Eighth Amendment to permit the State to impose the “law’s most severe sentence,” Hall, 572 U. S., at ___ (slip op., at 7), and take his life as well.

2. Ohio v. Clark (PDF). This is a confrontation clause case with no dissenting opinions. Justice Alito writes the main opinion, and there's a concurring opinion written by Justice Scalia that is joined by Justices Thomas and Ginsburg. Everyone accepts what the trial court did: allow the hearsay evidence that was the statement a 3-year-old boy to his pre-school teacher that identified the defendent as responsible for the marks she saw on his body. From the main opinion:

The Sixth Amendment’s Confrontation Clause, which is binding on the States through the Fourteenth Amendment, provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” In Ohio v. Roberts, 448 U. S. 56, 66 (1980), we interpreted the Clause to permit the admission of out-of-court statements by an unavailable witness, so long as the statements bore “adequate ‘indicia of reliability.’” Such indicia are present, we held, if “the evidence falls within a firmly rooted hearsay exception” or bears “particularized guarantees of trustworthiness.” Ibid.

From SCOTUSblog: "Lovers of Justice Scalia and/or the confrontation clause should DEFINITELY check out Scalia's concurrence in the judgment in Ohio v. Clark. It is some sharply worded stuff -- accuses Alito of "shoveling dirt" on the grave of the key precedents, and using intentionally confusing "dicta" to try to undermine the clause's protections." I'll be getting to all of that later.

3. Davis v. Ayala (PDF). 5-4. "Holding: Any federal constitutional error that may have occurred by excluding Ayala's attorney from part of the Batson hearing was harmless."

4. Walker v. Texas Division, Sons of Confederate Veterans (PDF). "Texas's specialty license plate design constitutes government speech, and thus Texas was entitled to refuse to issue plates featuring the proposed Confederate Veterans' design." 5-4, by Justice Breyer, with Justice Thomas joining the liberals. Justice Alito has a dissent, which is joined by the rest of the conservatives (Roberts, Scalia, and Kennedy.)

5. McFadden v. United States (PDF). "When a controlled substance is an analogue, §841(a)(1) requires the Government to establish that the defendant knew he was dealing with a substance regulated under the Controlled Substances Act or Analogue Act." McFadden was selling bath salts. The case is remanded to determine if the error was harmless (which it is if no rational jury would find that McFadden didn't know).

6. Reed v. Town of Gilbert (PDF). "The Sign Code’s provisions are content-based regulations of speech that do not survive strict scrutiny." Justice Thomas writes the main opinion. There are also 2 concurring opinions.

The Supreme Court rejects an assertion of a right under the Confrontation Clause — and the 2 dissenters are Ginsburg... and Scalia.

This was a case about the "excited utterances" exception to the hearsay rule of evidence. Richard Bryant, convicted of second degree murder, was identified in a statement made to the police. Justice Scalia writes:

The Framers could not have envisioned such a hollow constitutional guarantee. No framing-era confrontation case that I know of, neither here nor in England, took such an enfeebled view of the right to confrontation....

Judicial decisions, like the Constitution itself, are nothing more than "parchment barriers," 5 Writings of James Madison 269, 272 (G. Hunt ed. 1901). Both depend on a judicial culture that understands its constitutionally assigned role, has the courage to persist in that role when it means announcing unpopular decisions, and has the modesty to persist when it produces results that go against the judges' policy preferences. Today's opinion falls far short of living up to that obligation — short on the facts, and short on the law.

Let's take a careful look at what Martha Coakley said about abortion and religious freedom.

This dialogue — with interviewer Ken Pittman — took place on the radio last Thursday:

Pittman: Would you pass a health care bill that had a conscientious objector [sic] toward certain procedures including abortion.

Coakley: I don't believe that would be included in the health care bill. I don't understand exactly what the question is. I would not pass a bill, as Scott Brown filed an amendment, to say that if people believe that they don't want to provide services that are required under the law and under Roe v. Wade that they can individually decide to not follow the law. The answer to that question is no.

She's a lawyer, and she ought to know that Roe v. Wade — along with other abortion cases — does not require services. There is a world of difference between having a right to do something and having the power to make other people do things for you as you try to exercise that right. If you don't know the difference between those two things, you don't understand how rights work. Other people have rights too. Refusing to perform an abortion is not a violation of the constitutional right to privacy.

Now, Coakley said "under the law and under Roe v. Wade." By "the law" she could have meant the law that might be passed. The new statute might require health care workers to provide abortions. But the question is whether she would vote for that law. It doesn't make sense to say I'd vote for it because after it passes it will be the law and then individuals couldn't decide they don't want to follow it. The question is whether she would vote for that law, so slipping "the law" in there with Roe v. Wade was — if not a mistake — a trick to make you think a requirement was already in place.

Yet even if a law were already in place requiring health care workers to participate in abortions, there would be an argument that the right to the free exercise of religion trumps or should trump that requirement. There would be a legitimate conflict in the law that politicians would have opinions about, and it would be wrong to portray the workers as people who merely want to say they are above the law. Just as the right of privacy trumps laws that ban or impose harsh barriers on the access to abortion, religious freedom rights might trump some laws that require abortion services. It isn't lawless to prefer religious freedom. It is a position about what the law is or should be. It is the very question under discussion as the people of Massachusetts decide who, in the future, will have the power to vote on what the law is.

Coakley: And let's be clear, because Scott Brown filed an amendment to a bill in Massachusetts that would say that hospital and emergency room personnel could deny emergency contraception to a woman who came in and had been raped.

Coakley is choosing to press forward on the importance of abortion and contraception rights. It can be effective political argument to focus on rape victims. (Remember "Rape Gurney Joe"?) I imagine Coakley believed at this point that she was making a powerful argument that would win political support and make Scott Brown look like an unsympathetic lout and/or a right-wing extremist. But that was to be blind to the appeal of religious freedom.

Pittman: Right, if you are a Catholic, and believe what the Pope teaches that any form of birth control is a sin. You don't want to do that.

Coakley: No, but we have a separation of church and state here, Ken, let's be clear.

In American constitutional law, we have a proscription of federal laws "respecting an establishment of religion, or prohibiting the free exercise thereof." It is difficult to coordinate the Establishment Clause and the Free Exercise Clause, and anyone who serves in the United States Senate will need to have some idea of the meaning of both clauses. Coakley invokes the "separation of church and state" as if it has obvious meaning and a simple reminder should end the debate. But the meaning of religious freedom in America has been the subject of endless debate, a Senator will be an important participant in that debate, and the issue right now is whether Coakley should be a Senator.

Pittman: In the emergency room you still have your religious freedom.

Coakley: Uh, well, uck, u, uk, the, the law says that people are allowed to have that. And so then you.. you can have religious freedom. You probably shouldn't work in an emergency room.

Pittman: Wow.

Why the horrible stammering? The followup is utterly obvious. The answer should have been carefully prepared and couched in real sympathy for the workers who would be caught in the terrible dilemma between giving up their jobs and following their religion.

It is, in fact, permissible under the current interpretation of the Free Exercise Clause to make a general rule like this and impose it on people who will have to violate their religion or quit their jobs. There are also federal statutes — like the Religious Freedom Restoration Act — that give people a higher level of protection for their religious freedom, so that they do get special exemptions from generally applicable laws. So it's up to a Senator to have a position on what that law should be. A Senator will also have a vote on the confirmation of Supreme Court Justices, and that will have an impact on what the constitutional religion clauses mean in the future. Coakley has revealed how she balances free exercise and establishment clause values, and voters should take note.

It is especially important to think about these values in the context of an expanding government role in areas that were traditionally left to the private sphere — medical care, for example. It's the separation of church and state, so the dimension of the state is very important. A legislator who wants the state to run more of the economy and wants a strong separation of church is threatening to have a much greater effect on religious freedom than a legislator who believes in the strong separation of church and state but also believes in small government. Now, I want to give Coakley credit for bluntly stating the import of her position: You can have your religious freedom, but you'll have to give up your job. That elicits a "wow." That is, the truth is a slap in the face.

Tomorrow, the (purportedly) honey-tongued Barack Obama comes to Massachusetts to promote Coakley. I hope he submits to questioning and is asked what Pittman asked Coakley. Presumably, his position is the same, and presumably, he can say it in a less "wow"-eliciting way. But the truth is out, and his words — however elegant — can be distilled into the straight, stinging You can have religious freedom. You probably shouldn't work in an emergency room.

Does a criminal defendant have a right to confront lab chemists?

Lyle Denniston reports on the oral argument in Melendez-Diaz v. Massachusetts:

[Justice Kennedy] foresaw ”a very substantial burden” on the prosecution and on the courts, and told counsel advocating for confrontation that he was significantly underestimating the impact. But, as the hearing moved along, Kennedy saw as “a very important point” that California has not experienced such a burden and “gets along all right” with summoning lab analysts to the stand with some frequency...

I like the implicit federalism point here. Just as state legislatures can be "laboratories of democracy," state courts can be laboratories of rights, and here we see the California courts serving as an experiment in working with an expansive version of the right to confront witnesses in a criminal trial. Instead of needing to wonder about the burdens of dealing with a new requirement, the Supreme Court can look at the results in California.