Yesterday was an Opinion Day at the Supreme Court. That is when the Court announces those opinions it has ready. Usually, Opinion Days are on Mondays. But, at the end of the term (which ends at the end of June), the Court, as necessary, will add additional days to its calendar in order to announce opinions. Since they are already scheduled to be in on Thursdays for their weekly conference, they start with Thursdays. But, they'll probably add a Tuesday or a Wednesday in there before the month is done.
Coming into yesterday, there were still 17 cases on which the Court had not rendered its decision. 17! And we're already half-way into June.
For Supreme Court nerds such as myself, Opinion Days are like a holiday from the daily routine. I log in to the SCOTUSblog live blog at 9:30 (you don't have to log in to the live blog to follow it, just if you want to comment or ask a question), and eagerly await Amy Howe's "Waiting for Lyle" line. But, if Opinion Days during the year are like a holiday, Opinion Days in June are like a recurring Christmas in June (although I've yet to see 12 days). This is when the Court empties the vault, because this is crunch time. All the most difficult cases, the ones on which they are most arguing, the ones on which they are most divided, tend to come in June. There is no set schedule for when a particular opinion comes down. When all nine Justices have signed off on whichever opinion they are signing, then -- and only then -- will an opinion issue. If the dissent wants to add points, it can hold up the majority. Until the end of the term that is.
Yesterday was a bonanza for Court watchers, with numerous decisions being handed out, some weird configurations on cases, and one really stinging opinion which was, well, curious. Join me below the squiggle for some ruminations on yesterday's curious events.
A Diversion regarding SCOTUSblog's live blog
Have you ever followed the SCOTUSblog live blog of opinions? If you haven't, have the time and are interested in the outcomes of either King v Burwell or the Marriage Equality cases, the place to be on Opinion Days is there. They get it right. Remember the ACA case? Remember how all the media were proclaiming the individual mandate dead because they didn't know how to read an opinion? While they were trumpeting this (incorrect) news, and while the right wingers were celebrating far too soon, followers of SCOTUSblog were being treated to Tom Goldstein telling us, No, the mandate survives, but as a tax. Eventually, the TradMed caught up to the truth, but those following SCOTUSblog had it 5 minutes earlier.
The liveblog opens up at 9:45 ET (on Mondays, when the Court issues orders -- the decisions on whether or not to hear a case --, the live blog starts at 9:30). Amy Howe, who, together with her husband (and former law partner), Tom Goldstein, started SCOTUSblog, is the host. There are other lawyers who may assist with the live blog, but the most important person is Lyle Denniston. Lyle is not a lawyer. He is a professional journalist who has covered the courts for his entire career. He is an institution at the Court, having covered it since 1958. He is the point person in the Press Room.
Opinions are announced from the bench beginning precisely at 10 AM ET. The Chief Justice will announce something to the effect of "Justice X has the opinion in the case of Ginger v. MaryAnn". At that moment, the Press Officer will hand out to those in the press room copies of that opinion (and only THAT opinion), while Justice X reads their opinion (or, more usually, a summary thereof). Opinions are announced by reverse seniority order, with any majority opinions by Justice Kagen (the junior most Justice) being first, and any by the Chief Justice being last.
Backing up a bit, at about 9:50 or so, the Press Office will bring the boxes of opinions for that day into the press room. It is a form of arcane Supreme Court-ology to try to divine how many opinions are contained in those boxes. 1 box could mean two opinions, or it could just mean one with lots of concurring and/or dissenting opinions.
Lyle relays the basic information from the opinion to Amy, copies are distributed to other people, and the analysis begins. Within about 5 to 10 minutes, the Court posts the opinion on its website and SCOTUSblog posts a link thereto.
It all does not last that long. By 10:30, the liveblog is usually done. But, for SCOTUS nerds like me, it is fun.
Back to Yesterday's Events
So, watching the live blog and Lyle reports that there are 4 boxes. FOUR BOXES!!! Two boxes is normal, three is like a snow day back when you were in school. But, FOUR??? Zowie. The Court is really cleaning things out!
First up to read was Sotomayor, who presented the opinion in Brumfield v. Cain, a 5-4 decision requiring that the defendant in a capital case was entitled to present his evidence of mental incapacity to a Federal Court.
Next, Samuel Alito has two cases to announce. The first is Ohio v. Clark, a unanimous decision on the Confrontation Clause. (More on this later). His second is Davis v. Ayala, in which the usual five conservatives hold, by a 5-4 vote, that excluding the defense attorney from part of a hearing on prosecutorial pre-emptory challenges (a so-called "Batson" hearing) was harmless error.
Next up was Justice Breyer, who presented the 5-4 decision in Walker v. Texas Sons of Confederate Veterans. The Confederates wanted a specialty license plate featuring the Stars & Bars. Texas did not wish to do so. The majority held that license plates were government speech, not individual speech entitled to viewpoint neutrality. The curious thing was the lineup: the four liberals together with Clarence Thomas!
Next up was Clarence Thomas, with two cases. The first was McFadden v. US, a unanimous decision which held that, in attempting to convict a defendant on possession of an analogue of a controlled substance, the government must establish that the defendant knew that the item possessed was, in fact, an analogue of a controlled substance.
Finally, with the sixth opinion of the morning, Thomas presents Reed v. Town of Gilbert, which unanimously (although with multiple concurrences, and only the Con5 plus Sotomayor joining as to the opinion) holds that a town sign code which enacts specific restrictions on signs directing the public to a non-profit event constitutes a content-based restriction which cannot survive strict scrutiny.
So, six opinions for the day! More than a third of the cases remaining. And, from this Court, the rulings were pretty good -- even in the 5-4 holdings. Personally, I am not happy with the Davis ruling, but the others were pretty good.
Plus, Thomas wrote the opinion in Reed. This is good, because there were two cases still remaining which were argued in January -- Reed and the Texas Fair Housing case. Two justices has not written a majority opinion from the January term -- Thomas and Kennedy. The practice is for the Court to try and even out the assignments for each month's term. This means that Kennedy, rather than Thomas, will probably be writing the Fair Housing case. While Kennedy could quite possibly rule the "wrong" way (ie, undermining fair housing law), it is approaching ontological certitude that Thomas would definitely do so. That Kennedy is writing the opinion gives us some small hope, however fleeting it may be.
And there was one other curious thing about the day.
Say What?
I have already mentioned Justice Alito's unanimous opinion in Ohio v. Clark. This case concerns the Confrontation Clause of the Sixth Amendment :
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
emphasis mine.
The defendant in this case, Clark, was convicted of child abuse based largely on the statement that a three-year old gave to his pre-school teacher. The statement was introduced at trial, but the three-year old did not testify. Clark contended that because the child did not testify, he was denied the right to confront the chief witness against him, and that, therefore, the statement should have been excluded.
The judgment of the Court was unanimous is overruling the lower court's decision to require the statement's exclusion, although only 5 other justices joined Justice Alito's majority decision (Roberts, Kennedy, Breyer, Sotomayor and Kagen). In it, the Court held that when the primary purpose for making the statements was not testimonial, the statements would not be, per se, excludable.
Thus, under our precedents, a statement cannot fall
within the Confrontation Clause unless its primary purpose
was testimonial. “Where no such primary purpose
exists, the admissibility of a statement is the concern of
state and federal rules of evidence, not the Confrontation
Clause.” Id., at 359. But that does not mean that the
Confrontation Clause bars every statement that satisfies
the “primary purpose” test. We have recognized that the
Confrontation Clause does not prohibit the introduction of
out-of-court statements that would have been admissible
in a criminal case at the time of the founding. See Giles v.
California, 554 U. S. 353, 358–359 (2008); Crawford, 541
U. S., at 56, n. 6, 62. Thus, the primary purpose test is a
necessary, but not always sufficient, condition for the
exclusion of out-of-court statements under the Confrontation
Clause.
Finally, although we decline to adopt a rule that statements
to individuals who are not law enforcement officers
are categorically outside the Sixth Amendment, the fact
that L. P. was speaking to his teachers remains highly
relevant. Courts must evaluate challenged statements in
context, and part of that context is the questioner’s identity.
See id., at 369. Statements made to someone who is
not principally charged with uncovering and prosecuting
criminal behavior are significantly less likely to be testimonial
than statements given to law enforcement officers.
See, e.g., Giles, 554 U. S., at 376. It is common sense that
the relationship between a student and his teacher is very
different from that between a citizen and the police. We
do not ignore that reality. In light of these circumstances,
the Sixth Amendment did not prohibit the State from
introducing L.P.’s statements at trial.
Justice Thomas issued an opinion concurring in the judgement, but seeking to define those statements which would be clearly testimonial. The effect of that would be to further limit the scope of the Confrontation Clause.
But, here is where it gets interesting. Justice Scalia issued his own concurring opinion , joined by Ruth Bader Ginsburg, and showed that he does not spare his poison pen only for the liberals on the Court. For once, I'll let him speak for himself:
I write separately, however, to protest the Court’s shoveling
of fresh dirt upon the Sixth Amendment right of
confrontation so recently rescued from the grave in Crawford
v. Washington, 541 U. S. 36 (2004). For several decades
before that case, we had been allowing hearsay
statements to be admitted against a criminal defendant if
they bore “‘indicia of reliability.’” Ohio v. Roberts, 448
U. S. 56, 66 (1980). Prosecutors, past and present, love
that flabby test. Crawford sought to bring our application
of the Confrontation Clause back to its original meaning,
which was to exclude unconfronted statements made by
witnesses—i.e., statements that were testimonial. 541
U. S., at 51. We defined testimony as a “‘solemn declaration
or affirmation made for the purpose of establishing or
proving some fact,’” ibid.—in the context of the Confrontation
Clause, a fact “potentially relevant to later criminal
prosecution,” Davis v. Washington, 547 U. S. 813, 822
(2006).
Crawford remains the law. But when else has the
categorical overruling, the thorough repudiation, of an
earlier line of cases been described as nothing more than
“adopt[ing] a different approach,” ante, at 4—as though
Crawford is only a matter of twiddle-dum twiddle-dee
preference, and the old, pre-Crawford “approach” remains
available? The author unabashedly displays his hostility
to Crawford and its progeny, perhaps aggravated by inability
to muster the votes to overrule them. Crawford
“does not rank on the [author of the opinion’s] top-ten list
of favorite precedents—and . . . the [author] could not
restrain [himself] from saying (and saying and saying) so.”
Harris v. Quinn, 573 U. S. _, _ (2014) (KAGAN, J.,
dissenting) (slip op., at 15).
But snide detractions do no harm; they are just indications
of motive. Dicta on legal points, however, can do
harm, because though they are not binding they can mislead.
Take, for example, the opinion’s statement that the
primary-purpose test is merely one of several heretofore
unmentioned conditions (“necessary, but not always sufficient”)
that must be satisfied before the Clause’s protections
apply. Ante, at 7. That is absolutely false, and has
no support in our opinions. The Confrontation Clause
categorically entitles a defendant to be confronted with the
witnesses against him; and the primary-purpose test sorts
out, among the many people who interact with the police
informally, who is acting as a witness and who is not.
Those who fall into the former category bear testimony,
and are therefore acting as “witnesses,” subject to the
right of confrontation. There are no other mysterious
requirements that the Court declines to name.
The opinion asserts that future defendants, and future
Confrontation Clause majorities, must provide “evidence
that the adoption of the Confrontation Clause was understood
to require the exclusion of evidence that was regularly
admitted in criminal cases at the time of the founding.”
Ante, at 10. This dictum gets the burden precisely
backwards—which is of course precisely the idea. Defendants
may invoke their Confrontation Clause rights once
they have established that the state seeks to introduce
testimonial evidence against them in a criminal case
without unavailability of the witness and a previous opportunity
to cross-examine. The burden is upon the prosecutor
who seeks to introduce evidence over this bar to
prove a long-established practice of introducing specific
kinds of evidence, such as dying declarations, see Crawford,
supra, at 56, n. 6, for which cross-examination was
not typically necessary. A suspicious mind (or even one
that is merely not naïve) might regard this distortion as
the first step in an attempt to smuggle longstanding hearsay
exceptions back into the Confrontation Clause—in
other words, an attempt to return to Ohio v. Roberts.
But the good news is that there are evidently not the
votes to return to that halcyon era for prosecutors; and
that dicta, even calculated dicta, are nothing but dicta.
They are enough, however, combined with the peculiar
phenomenon of a Supreme Court opinion’s aggressive
hostility to precedent that it purports to be applying, to
prevent my joining the writing for the Court.
This is about as acid as a SCOTUS opinion gets -- accusing another justice of misleading and of turning dicta (short for obiter dicta, a Latin phrase used to refer to what are simply judicial asides in an opinion, references which have no precedential value) into precedent. And, to see Scalia doing it to one of his conservative brethren was, well, refreshing. Finally, he is joined in this Jeremiad by none other than Notorious RBG herself, the liberal lioness, defending the Confrontation Clause from those who would enhance the powers of prosecutors at the expense of defendants. Wow! This was something completely different.
The Court's next Opinion Day is this coming Monday. Eleven cases remain to be announced. James Obergefell, the name appellant in the Marriage Equality cases, has been attending each Opinion Day awaiting the result. I, personally, am betting that King v. Burwell will come down on June 29th and the Marriage Equality cases on June 30. But, you never know when the Court will surprise you. See you at SCOTUSblog!