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Quiet day for orders

The Supreme Court issued more orders this morning from the justices’ private conference last Friday. The justices had added two new cases to their merits docket for the term last week and were not expected to grant any more today – and they did not. Instead, the overwhelming majority of today’s orders denied review of petitions asking the justices to weigh in. The justices once again did not act on several high-profile petitions, including a challenge to mandatory bar dues and a pair of cases involving whether individuals can bring a lawsuit to challenge the state’s disqualification of a Medicaid provider such as Planned Parenthood. But one criminal case on which they did act today, involving the Sixth Amendment right to confront the prosecution’s witnesses in a criminal trial, drew a dissent from the unlikely pairing of Justices Neil Gorsuch and Sonia Sotomayor.

Sotomayor joined Gorsuch’s dissent from the denial of review in Stuart v. Alabama. The defendant in the case, Vanessa Stuart (who has since changed her name to Vanessa American Horse), was charged with driving under the influence and criminally negligent homicide after she rear-ended Tiffany Howell’s car, causing Howell to strike a tree and die.

At Stuart’s trial, prosecutors introduced lab reports as evidence of Stuart’s blood alcohol level. But they did not ask the scientist who signed the lab report to testify. And that omission, Stuart contended, was inconsistent with Bullcoming v. New Mexico, in which the Supreme Court held that introducing a lab report at trial without testimony from the person who prepared the report violates the Sixth Amendment’s confrontation clause, which gives a defendant the right “to be confronted with the witnesses against him.”

The justices turned down Stuart today, over a four-page dissent from Gorsuch, who began by noting that because “cross-examination may be the greatest legal engine ever invented for the discovery of truth, the Constitution promises every person accused of a crime the right to confront his accusers.” “That promise,” Gorsuch continued, “was broken here.”

Gorsuch went on to explain that, although the state court’s errors in Stuart’s case were in his view obvious, they were also understandable, because the Supreme Court’s opinions on the confrontation clause – and in particular a 2012 case in which no rule was able to garner a majority of the votes – “have sown confusion.” He (and Sotomayor) would have granted review to clarify some of the issues surrounding cases like Stuart’s.

Although the Gorsuch-Sotomayor pairing may seem unusual at first blush, it is not necessarily surprising. Confrontation clause cases in particular have not always broken down on traditional conservative/liberal lines: As this blog’s Lyle Denniston once wrote, the late Justice Antonin Scalia was – thanks to his penchant for hewing closely to the words and original meaning of the Constitution – the Supreme Court’s “most devoted defender” of the confrontation clause, and Gorsuch appears to be following in the footsteps of Scalia, whom he replaced. Scalia and Justice Clarence Thomas (along with Sotomayor and Justice Elena Kagan) joined Justice Ruth Bader Ginsburg’s opinion for the court in favor of the defendant in Bullcoming, while Justice Stephen Breyer – whom we normally think of as part of the court’s more liberal bloc – joined Justice Anthony Kennedy’s dissenting opinion.

The justices’ next conference is scheduled for Friday, November 30.

[Disclosure: I was among the lawyers for the petitioner in Bullcoming, but I have no connection with any of the attorneys in this case.]

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Quiet day for orders, SCOTUSblog (Nov. 19, 2018, 11:03 AM),