Formalists Prevail in Bullcoming v. New Mexico

Among the six merits opinions released by the Supreme Court this morning was Bullcoming v. New Mexico, a Confrontation Clause challenge to the admissability of a forensic report without calling the author of the report to testify. This was a significant case for Court watchers because the case raised issues that have divided the Court along non-traditional, 5-4 lines, and the replacement of Justices Stevens and Souter with Justices Kagan and Sotomayor had the potential to reverse recent precedents in this and related areas. They did not, however. Rather each voted in line with her predecessor, preserving the court’s 5-4, formalist-pragmatist split on the Confrontation Clause.

In Bullcoming, the Court reaffirmed (and arguably extended) its decision in Melendez-Diaz v. Massachusetts that a forensic report is testimonial evidence that cannot be introduced without the live testimony of a witness who can attest to the accuracy of its contents. The twist in Bullcoming was that while the forensic analyst who prepared the report at issue — in this case, a report on blood-alcohol content — was unable to testify another analyst from the same lab testified as to how such reports are traditionally made. This was not enough to overcome the Confrontation Clause objection, the Court concluded, as it held the report was inadmissible.

Justice Ginsburg wrote the majority opinion, joined in full by Justice Scalia, and in part by Justices Thomas, Kagan, and Sotomayor. These three justices did not join Part IV of Justice Ginsburg’s opinion, and Justice Thomas did not join footnote 6 either. Justice Sotomayor wrote an opinion concurring in part, and Justice Kennedy dissented, joined by the Chief Justice and Justices Breyer and Alito.

What does Bullcoming mean? It means that the Court’s two newest justices share at least some of the formalist sympathies of their predecessors on the Confrontation Clause. This means that they are more likely to apply constitutional protections for criminal defendants in a literal and unyielding fashion, and less likely to curtail such protections due to pragmatic concerns. Something to watch for is whether this split holds in other areas in which we’ve seen recent Formalist-Pragmatist splits, such as the application of the jury trial right to sentencing rules.

[Note: Post edited to repair sentence.]