The Supreme Court Breakfast Table

Where Sotomayor Might Make a Real Difference
An email conversation about the news of the day.
June 25 2009 6:45 PM

The Supreme Court Breakfast Table


Dahlia and Linda,

I agree with what you both say about Redding. On the more difficult question of whether Redding's Fourth Amendment right was "clearly established" before today's decision, making it fair game to get damages from the school district, I'm tempted to say that any right agreed to by every justice on this court except Thomas must be pretty damn clear. I was also struck by the fact that Stevens quotes himself from nearly 25 years ago, quoting a court of appeals decision that had been written five years earlier and that said "[i]t does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude." Still, it is understandable that court's majority, having ruled in favor of students' rights for the future, isn't inclined to take money from the school system's budget for this past error.


How much guidance the opinion gives to school officials is unclear. In this respect, the decision is like the Caperton v. Massey Coal opinion's opaque guidance on when due process requires judges to recuse themselves. The constitutional rule may not be at all clear, but the court is sure that it is clearly violated in this case.

I found particularly interesting today an important decision that might have come out the other way if Judge Sonia Sotomayor were already on the court instead of Justice Souter. Indeed, today's decision in Melendez-Diaz v. Massachusetts suggests the possibility that a significant area of the law could possibly shift if Judge Sotomayor is confirmed. Melendez-Diaz is the latest in a series of decisions in which the same unusual and interesting group of five justices have ruled in favor of criminal defendants on basic issues involving the structure of criminal procedure.

In United States v. Booker, the court held that the Federal Sentencing Guidelines, if binding, would violate a criminal defendant's rights under the Sixth Amendment's jury trial clause. In Crawford v. Washington, the court held that it violated the "confrontation clause" of that same amendment to introduce a statement by a witness whom the defendant couldn't confront with cross-examination. Today, the court holds that the confrontation clause gave Melendez-Diaza right to call to the stand and cross-examine the lab technician who prepared the report in a drug case. The decision could have significant ramifications: Criminal defendants will want to rely on it in seeking to cross-examine those who prepare incriminating DNA reports, for example. The halls outside criminal courtrooms could soon be filled with techies in white lab coats.

In all three of these important victories for criminal defendants, the five-justice majority consisted of Justices Scalia and Thomas and Justices Stevens, Souter, and Ginsburg.  While the lineup is unusual, it is not surprising. It consists of what one might very, very loosely call the court's two "conservative legalists" and the court's three "liberal legalists" who team up on a result they believe is compelled by provisions added to the Constitution in 1791. Dissenting in all these cases were the court's four more "pragmatic" justices, who found the majority's rulings dysfunctional in a modern criminal justice system. In Booker and Crawford the four "pragmatic" dissenters were Justices Kennedy, Breyer, and O'Connor and Chief Justice Rehnquist. In today's lineup, Kennedy and Breyer were joined by Rehnquist and O'Connor's replacements, Roberts and Alito. The Scalia-Stevens group relies upon the deep discussion of constitutional history and original understanding previously set out in their Crawford opinion. Kennedy's pragmatists, on the other hand, are concerned that today's ruling "has vast potential to disrupt criminal procedures that already give ample protections against the misuse of scientific evidence."

Souter's departure will leave the court with four justices in a "legalist" camp and four in the "pragmatic" camp. As a former prosecutor and trial judge, Sotomayor might well share the pragmatists' concerns about the impact that adherence to the "legalisms" of Scalia, Thomas, Stevens, and Ginsburg (and, for now, Souter) would have on effective law enforcement and efficient trials. (Souter was also once a prosecutor, of course, but in a bucolic and less intense environment than Sotomayor would have experienced in the Manhattan DA's office.) Her record seems to be one of carefully examining conflicting claims and listening to both sides. So you just don't know—because before hearing the arguments in the next of these cases, she probably doesn't know.

Finally, I'm glad that Ricci didn't come down today. The delay gives everyone who is interested in that case a chance before the decision comes down to read the awesome five-part series "The Ladder" that Nicole Allan and Emily Bazelon posted on Slate this morning. It's about the Ricci case but also about much more. They review the history of the racial struggle over hiring and promotion in fire departments, and they recount what they learned from spending a lot of time in New Haven firehouses talking to firefighters about the current controversy. They seem to understand and appreciate (I avoid saying "empathize" with) the perspective of both white and black firefighters. For me, reading this series makes the right legal outcome clear. I'll post something saying why over the weekend. Other readers of the series may come to a different opinion than mine about how the Supreme Court ought to rule. But either way, their conclusion will be far better informed for having read this series.

And we haven't yet gotten to the case—Horne v. Flores—that so aroused Justice Breyer that he took the unusual step of reading his dissent from the bench.

Talk to you soon.

Walter Dellinger is a professor of law (on leave) at Duke University and a partner in the appellate practice at O’Melveny & Myers in Washington, D.C.


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