Constitutional Opinions

Supreme Confrontation

Alas, Sonia Sotomayor is not likely to be asked whether she will be more prosecution-friendly than David Souter proved to be in his final term.

By 6.30.09

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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.

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John Tabin is a frequent contributor to The American Spectator online.