The Supreme Court on Monday released the list of cases to be argued in the sitting beginning Mon., Jan. 11. It can be found here. There will be no afternoon arguments. The first case of each day begins at 10 a.m. The day-to-day list of cases on the calendar, with a summary of the issues involved, appears after the jump.
In anticipation of Judge Sonia Sotomayor’s confirmation hearings, which begin Monday, July 13 at 10 a.m., we’ve organized by subject matter the dozens of published reports and substantive blog posts about her judicial record. (Links are below the jump; PDFs of longer, more formal reports are noted with an asterisk.) If we’ve left out other significant pieces that analyze her written decisions or provide data–rather than opine on her nomination generally–please e-mail us the link.
(NOTE: This post is an updated and modified version of a post that appeared here earlier this afternoon about the new Briscoe case.)
Analysis
A fascinating possibility emerged Monday afternoon as the Supreme Court closed its Term: Judge Sonia Sotomayor, if confirmed as a Justice, may hold the deciding vote on the future of a controversial ruling that the present Court issued just last Thursday: the ruling in Melendez-Diaz v. Massachusetts (07-591). A strongly worded dissent in that case made it clear that four Justices would not soon be reconciled to that decision — a ruling that they argued would result in “a distortion of the criminal justice system.”
The ruling, made under the Constitution’s Confrontation Clause, requires the prosecution, if it plans to present a lab report as evidence in a criminal trial, to make the analyst who prepared it available for on-demand cross-examination by defense counsel. The decision came on a 5-4 vote.
If it were possible to pick up a fifth vote, could the dissenters from that case then lead the Court to reconsider — or least narrow considerably – the decision in Melendez-Diaz? Perhaps; one of the five in the majority was Justice David H. Souter, who retired on Monday. There is, it would seem, at least a chance that his designated successor, Judge Sotomayor, would not be prepared to embrace Melendez-Diaz, at least without some restriction on its scope; she has a record on criminal law issues that appears to be somewhat more prosecution-oriented than Justice Souter’s has been.
This is speculation, of course, but there is little else to suggest why the Court announced Monday that, next Term, it will review the case of Briscoe, et al., v. Virginia (07-11191). Here is the question raised in the Briscoe petition, filed in May of last year by University of Michigan law professor Richard D. Friedman:
“If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?”
Analysis
Expressing a heavy dose of skepticism that crime lab reports are so reliable as to be beyond question, the Supreme Court on Thursday cleared the way for chemists and other scientists who prepare such reports to be summoned to the witness stand in criminal trials to defend their analyses. The 5-4 ruling in Melendez-Diaz v. Massachusetts (07-591) resulted from some unusual alliances among the Justices, and continued the deep division within the Court over how to interpret the Constitution’s guarantee that an individual on trial for a crime has a right to face and challenge the witnesses for the prosecution.
Justice Antonin Scalia, the Confrontation Clause’s most devoted defender on the Court, wrote for the majority: “There is little reason to believe that confrontation will be useless in testing analysts’ honesty, proficiency, and methodology — the features that are commonly the focus in the cross-examination of experts.”
The ruling will provide for an added layer of challenge by defense lawyers to such criminal evidence as illegal drugs, fingerprints, blood spatter patterns and blood chemistry, guns and bullets, and other forms of physical evidence subjected to lab analyses, at least when the resulting reports are prepared for use as evidence in criminal trials.
Now, if prosecutors want to offer a crime lab report as evidence, and the report was prepared with the aim that it would be used at trial, the prosecution has to bring along the author or scientist and make them available for questioining by the defense — if the defense insists on the right to confront the analyst. It is not up to defense lawyers to summon them to the stand, but they must assert the right to confront the analyst, the Court indicated.
The opinion recited a good deal of information from published reports about how defective crime labs and their results are, and said that claims that lab reports are the product of “neutral scientific testing” are open to challenge because such reports are not “as neutral or as reliable” as advertised. “Forensic evidence,” Scalia wrote, “is not uniquely immune from the risk of manipulation.”
He cited one report, for example, that said “there is wide variabiility across forensic science disciplines with regard to techniques, methodologies, reliability, types and numbers of potential errors, research, general acceptability, and published material.”
Putting the chemist or lab technician on the stand to be tested by cross-examination, the majority said, will help “weed out not only the fraudulent analyst, but the incompetent one as well.”
Still, Scalia said, the decision to compel the reports’ expert authors to testify is based ultimately on the right of confrontation, not the quality of the reports or the credibility of the chemist. “We would reach the same conclusion,” he wrote in a footnote, “if all analysts possessed the scientific acumen of Mme. Curie and the veracity of Mother Theresa.”
In case you haven’t followed our morning live blogs, here are summaries of and links to the slip opinions released this week. The Court’s final session will be next Monday, at which the three outstanding opinions will be released.
Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, et al. (07-984/07-990) : The decision below is reversed and remanded in a 6-3 opinion by Justice Kennedy. Justice Ginsburg filed a dissenting opinion joined by Justices Stevens and Souter. Justice Breyer and Justice Scalia filed concurring opinions. The Court held that the U.S. Army Corps of Engineers has the authority to issue permits for dumping dredge or fill dirt into a waterway, without satisfying all of the pollution limits that are enforced by the Environmental Protection Agency. The opinion is available here.
Forest Grove School District v. T. A. (08-305): The decision below is affirmed in a 6-3 opinion by Justice Stevens. Justice Souter filed a dissenting opinion, joined by Justices Scalia and Thomas. The Court held that parents of a disabled child, who decide on their own to transfer the child to a private school, are entitled to tuition reimbursement from the local school district even if the child had never received any special education aid previously. The opinion is available here.
Northwest Austin Municipal Utility District Number One v. Eric Holder, Jr, Attorney General, et al. (08-322): The decision below is reversed and remanded in an 8-1 opinion by Chief Justice Roberts. Justice Thomas filed a partial dissent. The Court did not strike down the Voting Rights Act, but held that all local units of government must be given the option to bail out of the requirement that they get federal approval for any changes in their election laws or methods. The opinion is available here.
Horne v. Flores; Speaker of the Arizona House of Representatives v. Flores (08-289 and 08-294): The decision below is reversed and remanded in a 5-4 opinion by Justice Alito. Justice Breyer filed a dissenting opinion joined by Justices Stevens, Souter, and Ginsburg. The federal court must reexamine whether the Arizona school district has taken “appropriate action” to overcome learning barriers for English Language Learner students. The opinion is available here.
Atlantic Sounding Co., Inc., et al. v. Townsend (08-214): The decision below is affirmed and remanded in a 5-4 opinion by Justice Thomas. Justice Alito filed a dissenting opinion, joined by Chief Justice Roberts and Justices Scalia and Kennedy. The Court held that the respondent is entitled to pursue punitive damages. The opinion is available here.
Melendez-Diaz v. Massachusetts (07-591): The decision below is reversed and remanded in a 5-4 opinion by Justice Scalia. Justice Kennedy filed a dissenting opinion joined by Chief Justice Roberts and Justices Breyer and Alito. The Court held that a lab chemist must be called to testify in order to admit the lab analysis as evidence in a trial. The opinion is available here.
Safford United School District #1 v. Redding (08-479): The decision below is affirmed in part, reversed in part, and remanded in an opinion by Justice Souter, with the Court dividing 8-1 on the Fourth Amendment question and 7-2 on the qualified immunity question. Justice Stevens filed a partial dissent joined by Justice Ginsburg. Justice Ginsburg filed an opinion concurring and dissenting in part. Justice Thomas filed an opinion concurring in part and dissenting in part. The Court held that the strip search did violate the Constitution but it wasn’t clear that the violation was established at the time of this incident. The opinion is available here.
With a little over a week left in this Term, there are 10 merits opinions left to be released. The Court will hold its next public session on Monday at 10 a.m. The last scheduled day of the Term is Monday, June 29. Below are links to SCOTUSWiki pages, where case filings, oral argument transcripts, analysis and summaries can be found.
From the November sitting:
Melendez-Diaz v. Massachusetts (07-591), on whether a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence.
From the January sitting:
Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, et al. and Alaska v. Southeast Alaska Conservation Council, et al. (07-984/07-990), on whether the U.S. Army Corps of Engineers may not issue a permit for discharge of fill material otherwise subject to effluent limitations under Sections 301 or 306 of the Clean Water Act.
From the February sitting:
Atlantic Sounding Co., Inc., et al. v. Townsend (08-214), on whether a seaman may recover punitive damages for the willful failure to pay maintenance and cure.
From the March sitting:
Citizens United v. Federal Election Commission (08-205), on whether federal campaign finance laws apply to a critical film about former presidential candidate Sec. Hillary R. Clinton intended to be shown in theaters and on-demand to cable subscribers.
From the April sitting:
Horne v. Flores; Speaker of the Arizona House of Representatives v. Flores (08-289 and 08-294), on whether the courts below improperly declined to modify an injunction against Arizona for failing to provide sufficient funding for non-English speaking school children.
Safford United School District #1 v. Redding (08-479), on whether the Fourth Amendment prohibits public school officials from conducting a strip search of a student suspected of possessing and distributing a prescription drug on campus in violation of school policy.
Ricci, et al. v. DeStefano, et al. (07-1428 and 08-328), on whether municipalities may decline to certify results of an exam that would make disproportionately more white applicants eligible for promotion than minority applicants, due to fears that certifying the results would lead to charges of racial discrimination.
Forest Grove School District v. T. A. (08-305), on whether parents of a student who has never previously received special education services from a school district may be eligible under the Individuals with Disabilities Education Act for reimbursement of private school tuition
Cuomo v. The Clearing House Ass’n, L.L.C. (08-453), on whether 12 USC § 484 and 12 CFR § 7.4000 prohibit measures taken by the New York State Attorney General to enforce state fair lending law against national banks by subjecting those entities to “visitorial powers.”
Northwest Austin Municipal Utility District Number One v. Eric Holder, Jr, Attorney General, et al. (08-322), on whether the appellant is eligible to “bail out” from the preclearance requirement of Section 5 of the Voting Rights Act, and whether Congress provided sufficient justification of current voting discrimination when extended the requirement in 2006 for another twenty-five years.
A new StatPack analyzing the opinions released through June 8 is available for download here. This includes:
For all statistic reports from OT95 onward, please see our archives on SCOTUSWiki here.
*There are 16 merits cases outstanding. Melendez-Diaz v. Massachusetts (07-591) is the only remaining case from the November conference and Coeur Alaska (07-984/07-990) is the only remaining from the January conference.
*Justice Kennedy still has only three dissents, voting with the majority in 95% of all cases and 92% of divided cases. Of the 16 cases where the Court divided 5-4, Justice Kennedy has been in the majority in all but one: Arizona v. Gant (07-542).
*Chief Justice Roberts and Justices Stevens, Souter and Ginsburg have already exceeded their total numbers of OT07 dissenting votes. Last year, Justices Stevens and Ginsburg each dissented 17 times; they have so far 21 and 18, respectively. Justice Souter has 18 dissents this year and had 16 last year. With seven votes, Chief Justice Roberts dissented the least last term; this term, he has dissented 12 times. (As a point of comparision, in OT06, he dissented eight times and in OT05, he dissented seven.)
A new StatPack analyzing the opinions released through the April sitting is available for download here. This includes:
The chart of Questions Presented has been updated to include the most recent opinions, available here.
Some notable points:
*Only one case is outstanding from the November sitting–Melendez-Diaz v. Massachusetts (07-591). Three cases are outstanding from December–Haywood v. Drown (07-10374); Ashcroft, Former ATT’Y Gen. v. Iqbal (07-1015); and AT&T Corp. v. Hulteen (07-543). Three cases are also outstanding from January–Coeur Alaska (07-984/07-990); Montejo v. Louisiana (07-1529); and Boyle v. U.S. (07-1309).
*Justice Anthony M. Kennedy has only authored two opinions thus far–Bartlett v. Strickland (07-689) and Negusie v. Mukasey (07-499)–but has most frequently joined the opinion of the Court. He’s dissented in just three cases–Arizona v. Gant (07-542); Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran v. Elahi (07-615); and the per curiam summary ruling in Spears v. United States (08-5721).
*Justice John Paul Stevens is winning the contrarian award so far. He’s been in the majority least frequently–32 out of 48 opinions, or 66.7%–and has the highest rate of disagreement with other justices. He’s disagreed completely with Justice Antonin Scalia and Justice Clarence Thomas in 48% of cases and with Chief Justice John G. Roberts and Justice Samuel A. Alito in 46%. In comparison, at this point in OT07, Justice Stevens had disagreed with the conservative justices in 21%-36% of cases. Justice David H. Souter is close behind–he’s been in the majority in only one more case than Justice Stevens and has similarly high rates of disagreement with the conservative justices.
With the February sitting concluded, the blog now revives its tradition of providing statistics on the Court’s docket and decisions. (All statistics compilations since OT95 can be found on SCOTUSWiki here.) This month’s mini “StatPack” includes the Opinion Authors by Sitting chart and the Circuit Scorecard and is available for download here. (Updated: The original document erroneously listed Justice Stevens as the author of Pleasant Grove v. Summum. Justice Alito authored the opinion, meaning that only Justice Scalia has not written a November opinion.)
30 cases have been decided of the 79 consolidated cases scheduled for argument. The next StatPack will compare this term’s docket to OT07, but one immediate standout from the Circuit Scorecard is the continued presence of the 9th Circuit, taking up 20.3% of the docket with 16 cases; last year, 10 of 71 cases, or 14%, came from the 9th Circuit.
Also notable is that all of the October sitting arguments have been decided except for Arizona v. Gant (07-542), on the scope of the Fourth Amendment in car searches. All of the Justices have written at least one opinion from October, with the Chief Justice and Justices Souter and Ginsburg writing two each. The only outstanding cases from the November sitting are FCC v. Fox Television Stations (07-582), on “fleeting expletives,” and Melendez-Diaz v. Massachusetts (07-591), on a defendant’s right to cross-examine forensic analysis. Justice Scalia has not yet written an opinion from the November sitting; Justices Stevens, Thomas, and Breyer have each written two from November.
The next StatPack will include a Justice Agreement chart and a cert grant trend chart. Please e-mail kmoore [at] akingump [dot] com with comments on what other analysis would be helpful.
Analysis
Justice Anthony M. Kennedy’s reputation as a “swing” vote in the Supreme Court is well known, and frequently validated. It is not often, though, that the tendency to swing is evident as early as the oral argument in a case. But on Monday, in the space of an hour, Kennedy saw the case of Melendez-Diaz v. Massachusetts (07-591) from two entirely different perspectives. In the end, though, Massachusetts seemed to be on the losing end of his switch. Seemingly somewhat exasperated with each side, Kennedy’s patience wore thinnest when the Massachusetts attorney general was at the lectern.
The case, at its core, is simple: is a crime lab report a form of testimony, so that the prosecution may not use it at trial to buttress its case unless the technician or chemist who prepared it is at the trial to defend the test results under cross-examination?
Kennedy initially saw a potential problem if the Court were to answer yes to that question. He 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. He faulted the two lawyers arguing against confrontation for lacking a rationale that would keep the prosecution’s use of unexamined lab reports in check.
He also appeared to be on both sides of the issue of whether crime lab reports were the reliable results of objective science based on standardized protocols, or were prosecutorial documents drawn up explicitly to serve as criminal evidence against the accused. In the end, though, he seemed to be suggesting that, as a constitutional matter, there had to be some limits. For example, he objected with some fervor to the suggestion, made by the federal government’s lawyer, that if it was machine-generated, it should routinely come into evidence without more. “There are all sorts of machines,” he said. “Just because a machine was involved…you can’t make a sensible exception [to confrontation] on that basis.”
The transcript of today’s argument in Chambers v. United States (06-11206) is now available here.
The transcript of today’s argument in United States v. Hayes (07-608) is now available here.
The transcript of today’s argument in Melendez-Diaz v. Massachusetts (07-591) is now available here.
At 10 a.m., the Court will release orders from the Justices’ private conference last Friday. We will provide a link to the orders list as soon as it is available. Following the release of orders, the Court will hear argument in Chambers v. United States (06-11206), on whether failure to report to prison is a “violent felony” under the Armed Career Criminals Act. Robert Hochman of Chicago will argue for the petitioner, and Matthew Roberts of the Solicitor General’s office will argue for the respondent.
At 11 a.m., the Court will hear argument in United States v. Hayes (07-608), on whether federal gun laws require a domestic relationship between an attacker and victim to qualify as a misdemeanor crime of “domestic violence.” Nicole Saharsky of the Solicitor General’s office will argue for the petitioner, and Troy Giatris of Charleston, W. Va., will argue for the respondent.
At 1 p.m., the Court will hear argument in Melendez-Diaz v. Massachusetts (07-591), on whether the Confrontation Clause gives criminal defendants a right to cross-examine forensic analysts who prepare laboratory reports for use in their prosecution. Jeffrey Fisher of Palo Alto, Calif., will argue for the petitioner, and Massachusetts Attorney General Martha Coakley and Lisa Schertler of the Solicitor General’s office will argue for the respondent.
We will post links to transcripts of the arguments as soon as they are available.
On Monday, the Court will release orders from the Justices’ private conference last Friday. We will provide a link to the orders list as soon as it is available. Following the release of orders, the Court will hear argument in:
On Tuesday, the Court will be closed in observance of Veterans’ Day.
On Wednesday, the Court will hear argument in:
On Friday, the Justices will hold a private conference, orders from which are expected to be released the following Monday. To view our list of petitions to watch at Friday’s conference, click here.
On Monday, both sides in Kennedy v. DuPont Savings Plan Administrator (07-636) are to file supplemental briefs on the role of plan documents in interpreting the scope of ERISA benefits. A post discussing the Court’s call for added briefs can be read here. The case was argued on Oct. 7.
No petitioners’ merits briefs are due this week. The respondent’s brief is due Wednesday in Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran v. Elahi (07-615).
At 1 p.m. Monday, the Supreme Court will hear one hour of argument in Melendez-Diaz v. Massachusetts (07-591). Lyle has prepared the following preview. All briefs and documents filed in the case are available on ScotusWiki, available here. Stanford law professor Jeffrey L. Fisher will ague for Luis E. Melendez-Diaz. Massachusetts Attorney General Martha Coakley will argue for the commonwealth, and Lisa H. Schertler, assistant to the U.S. Solicitor General, will argue for the United States as amicus.
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Crime laboratory reports are key pieces of evidence in a large number of criminal trials. When they can be brought into a case, without live testimony from the forensic experts who prepared them, is before the Supreme Court in Melendez-Diaz v. Massachusetts (07-591). A basic issue in the case is whether a crime lab report is, itself, a form of testimony.
Background
After the Supreme Court revolutionized the Confrontation Clause of the Sixth Amendment, the 2004 case of Crawford v. Washington, a flurry of sequel cases began arriving at the Supreme Court. Crawford had laid down the sweeping new doctrine that the Clause would not allow the use, at trial, of earlier statements of a prosecution witness who could not take the stand unless those statements had previously been subject to cross-examination. The Court said the only measure of the reliability of what it called “testimonial statements” was confrontation of the witness. This cast aside the long-standing rule that, if such a prior statement was reliable, it could be admitted as evidence even if the witness would not be available to testify at the trial. What the Court declined to do in Crawford – spell out what “testimonial” meant in this context – has been at the center of the follow-up cases.
While the Court has provided some further guidance since 2004, one open issue that defense lawyers identified early was whether evidence in the form of crime laboratory reports was “testimonial” evidence. Crime labs, of course, analyze a wide array of materials that bear upon criminal guilt: the identification of drugs, the properties of biological evidence like hair, blood, urine and semen, the results of field tests of drunken drivers, ballistics tests, fingerprint identification, autopsy reports – the list is as long as a catalog of physical evidence would be. If a crime lab report is “testimonial,” it would come under Crawford, and a live witness would have to appear to be examined about it, or else it would be excluded. If it is not “testimonial,” it could be admitted by itself, however accusatory it might be.
Forty-four states and the District of Columbia permit courts to admit forensic examiners’ certificates to identify illegal drugs. Other states allow the use of certificates describing the results of biological evidence, autopsies, bullet and gun tests, and so on. The experts who prepared such reports or certificates are not called to testify, or to be cross-examined.
The Supreme Court did not show an immediate interest in crime lab reports after Crawford. It denied review, in fact, in sequel cases directly testing whether such reports were “testimonial” – one in 2006, and one in 2007 – even though it was told that “the most widespread subject of controversy” about Crawford’s reach involved such evidence (professors’ amicus brief in Campbell v. North Dakota, 05-564, denied Jan. 22, 2007). A second appeal in 2007 (Missouri v. Marsh, 06-1699) ended in a plea bargain before the Court could act on it. Three weeks after that case was dismissed, the case of Melendez-Diaz v. Massachusetts was filed; it appeared on the docket Oct. 26, 2007.
The Court is in recess for the summer. The opening conference for next term will take place September 29. Oral arguments will resume October 6.
On Friday, the Court is scheduled to release another round of summer orders.
The petitioner’s brief on the merits is due Monday in Knowles v. Mirzayance (07-1315) and Friday in Cone v. Bell (07-1114). The respondent’s brief on the merits is due Tuesday in Melendez-Diaz v. Massachusetts (07-591) and Friday in Jimenez v. Quarterman (07-6984).
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