Thank you both for inviting me back. I was really looking forward to an end-of-term discussion without the distractions of the World Cup and a confirmation hearing. The only thing that seems to be missing is an end-of-term blockbuster or two, as we are used to seeing this time of year. Instead of anticipating war-on-terror decisions balancing liberty and security, or landmark Second Amendment cases, we are waiting for violent video games. An important decision, to be sure—especially for 16-year-old gamers—but not exactly Citizens United II.
There is a silver lining to all this, which is that it gives us a chance to talk about some of the cases that are much more typical of the court's day-to-day work. Dahlia wrote a great piece a few years ago arguing that the court was making a real mistake by releasing the same-day audio of only a handful of very high-profile cases. By giving the public a window only into the most divisive and controversial cases, the court risked having people fail to appreciate that in a significant number of cases, the justices are often in violent agreement all across the bench. The cases at the end of any term, including this one, tend not to be unanimous (those cases were decided weeks or months ago), but this year's crop is fairly representative of the court's docket.
Criminal cases make up a big part of that docket. And despite a widespread public perception that those cases feature the law-and-order conservatives arrayed against the let-'em-loose liberals, the reality is—as Dahlia just pointed out—much more nuanced. Indeed, most of the path-breaking pro-defendant precedents of late have come from the legalist (as opposed to pragmatist) majority you've both identified, which includes Justices Antonin Scalia and Clarence Thomas leading the charge for the rights of criminal defendants.
One important area where this split has produced a major revolution in criminal law is in sentencing. The unusual pragmatist majority found a quirky New Jersey statute unconstitutional in an end-of-term sleeper a few years back called Apprendi v. New Jersey. No one paid too much attention at first, and yet within a few years the entire federal sentencing regime was declared unconstitutional. I do not think that today's confrontation clause decision in Bullcoming will be quite that consequential, but Dahlia is right to focus on what it tells us about the newest Justices' approach to this issue and the law more generally. This is hardly the only context in which the legalist/pragmatist divide is important. And whatever else is true of either side's vetting process, I rather doubt anyone has identified the Confrontation Clause as a litmus test for potential Supreme Court nominees. For that reason, it is remarkable that all four of the newest Justices cast the same votes as we would have expected from the Justices they replaced. On the other hand, if you read this decision side-by-side with the Michigan v. Bryant case, it seems as if the newest justices—at least, Justice Sotomayor (Justice Kagan was recused in Bryant)—may not have quite the same dedication to the purely legalist view of the confrontation clause as Justices Stevens and Souter. It is too early for labels, but could we have some faint-hearted legalists on the court? If so, it is bad news for criminal defendants, because all of the sentencing cases and some of the confrontation cases have been 5-4. Losing just one justice to the charms of pragmatism could make all the difference.
Let me change gears and mention just one other case that would have gotten lost amid the blockbusters in most terms—this is the data-mining case, Sorrell v. IMS Health. By a 6-3 vote, the court struck down a Vermont statute that restricted the ability of pharmacists to sell information about which doctors are prescribing which drugs to pharmaceutical companies for the latter to use for marketing. The information at issue is generated as an inevitable byproduct of pharmacists complying with the laws governing the filling of prescriptions. A single datum is pretty uninteresting, but, as is so often this case with information in our Internet age, if you aggregate all the data, you have something with considerable commercial value.
The fatal problem with the Vermont statute in the majority's eyes was that it distinguished among speakers when it came to the use of the aggregated data. If you want to use it for health research, there are no restrictions. If you want to use it for marketing brand-name pharmaceuticals, it is a different matter. That kind of discrimination among speakers is generally a First Amendment taboo, at least if you are in the realm of a pure First Amendment case. The dissenters focused on the facts that the case involved data that only existed as a byproduct of government regulation and that the statute reached only commercial speech.
I find three aspects of this case interesting. The first is the lineup. Justice Sotomayor joined with the more conservative justices to form a six-justice majority. That makes this one of the relatively few cases in Justice Kagan's first term in which she parted company with Justice Sotomayor. The chief justice, John Roberts, and Justice Samuel Alito clearly have distinct views of the First Amendment. When the chief justice issues a major First Amendment case, chances are Justice Alito will issue a separate opinion advancing a distinct view. Sometimes Justice Alito's view is less protective of free speech, as was the case in this term's funeral-protest case, but other times he has the more protective view, as in the "bong hits 4 Jesus" case. It is way too early to tell, but it would be interesting to see significant differences emerge from the two nominees of President Obama when it comes to the First Amendment.
Second, this case confirms my sense that when it comes to First Amendment cases, the key for the party carrying the First Amendment banner is to convince the court that the case is a real or pure First Amendment case. If you can do that, it does not matter how vile the message on your banner or how many small animals you crush; your argument will prevail. On the other hand, if the government convinces the court that because the case involves government speech or public employers or school discipline it is not a pure First Amendment case, then the government is likely to carry the day.
Finally, this case is fascinating because it raised without resolving the unique impact that aggregating vast amounts of information has on traditional notions of "privacy." I put "privacy" in quotes because I am not sure our traditional conception of privacy really captures what is going on when technology allows the aggregation or mass distribution of actions that are not strictly private in the traditional sense. If I shop in a brick-and-mortar store or sign a petition on the sidewalk or have a prescription filled at the drug store, those seem like public actions. But allow someone to aggregate all those actions or post them on the Web, and the dynamic changes. The Court touched on these issues in the petition case last term and in today's opinion, but I am guessing it will have to dig deeper into these issues in the years to come. Maybe I just have my rose-colored glasses on, but some of today's cases are more interesting and perhaps more important than at first blush. Do you agree?