Search results for "formalist pragmatist"

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 [...]

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Still No Fisher, But Some Interesting Line-Ups

The Supreme Court issued five decisions today — Salinas v. Texas, FTC v. Actavis, Inc., Alleyne v. United States, Maracich v. Spears, Arizona v. Inter Tribal Council — but we’re still waiting for Fisher (and Shelby County and the same-sex marriage cases). Today still produced some interesting rulings, and some interesting line-ups as Justices Scalia and Thomas each tried their hands as crossover sensations.

In Alleyne v. United States, concerning whether factors that increase mandatory minimum sentences are “elements” of a crime that must be submitted to a jury, Justice Thomas announced the judgment of the Court and authored an opinion that was joined in part by Justices Ginsburg, Breyer, Sotomayor and Kagan. Justice Sotomayor also concurred separately (joined by Ginsburg and Kagan), and Justice Breyer wrote an opinion concurring-in-part and concurring-in-the-judgment. The Chief Justice dissented, joined by Justices Scalia and Kennedy, and Justice Alito dissented separately. What’s particularly interesting about the line-up here is that the Court did not split along the formalist-pragmatist lines we’ve come to expect in Apprendi cases, as Justice Scalia and Justice Breyer played against type.

In Maracich v. Spears, a case concerning whether attorneys may use state motorist records to solicit clients under the Drivers Privacy Protection Act, Justices Scalia and Breyer again switched roles, as Justice Breyer joined the other conservatives in signing on to Justice Kennedy’s opinion for the Court, and Justice Scalia joined the remaining liberals in dissent.

FTC v. Actavis, a case about the antitrust implications of reverse settlement agreements, produced a more traditional split, as Justice Breyer wrote for the Court, joined by Justice Kennedy and the remaining liberals, while the conservatives (minus a recused Alito) dissented.

Salinas v. Texas, on the other hand, produced a more divided ruling on the [...]

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Today’s Interesting Lineup(s)

Today the Supreme Court decided Salazar v. Ramah Navajo Chapter.  The Court split 5-4 in a most interesting way.  Justice Sotomayor wrote for the majority, joined by Justices Scalia, Kennedy, Thomas, and Kagan.  Chief Justice Roberts dissented, joined by Justices Ginsburg, Breyer and Alito.  Also interesting and unusual, as the folks at SCOTUSBlog note, is that this is one of two decisions issued today in which Indian tribes prevailed over the federal government (the other being Match-E-Be v. Patchak, which was decided 8-1). [UPDATE: Actually, it would be more accurate to say that these are both cases in which the federal government lost, which is still unusual in Indian Law cases.]

UPDATE: There’s also an interesting split in Williams v. Illinois, the Confrontation Clause case.  Justice Alito delivered the judgment rejecting the Confrontation Clause challenge and authored a plurality joined by the Chief Justice and Justices Kennedy and Breyer.  Justice Thomas concurred in the judgment, and Justice Kagan dissented, joined by Justices Scalia, Ginsburg, and Sotomayor.  This is something of a pragmatist-formalist split, as Justice Thomas indicates he  “share[s] the dissent’s view of the plurality’s flawed analysis,” and only concurred in the judgment because he differs with the dissents conclusion that the statements in question were “testimonial” for Confrontation Clause purposes.

SECOND UPDATE: There’s a third 5-4 decision today, Christopher v. Smithkline Beecham Corp., with yet another different (albeit more traditional) lineup.  Justice Alito wrote the majority, joined by the more conservative justices.  Justice Breyer dissented, joined by his more liberal colleagues.  I’m particularly interested in this case given its discussion of Auer deference for reasons I discussed here.

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LAT on Justice Scalia and Criminal Defendants

David Savage of the LA Times reports that many criminal defendants should be thankful for Justice Scalia.  In recent years he has led the charge for more strict enforcement of the Sixth Amendment‘s confrontation clause.  This is but one example of how originalist approaches to constitutional interpretation do not always produce “conservative” results.  Justice Scalia’s commitment to his understanding of the Constitution’s original meaning is not all that’s at work here, however.  His commitment to formalism, and the imposition of bright-line rules, is even greater.  Indeed, the best way to understand the current Court’s division on many (though not all) questions of criminal procedure is as a split between formalists and pragmatists — between those inclined to enforce a bright-line constitutional rule and those inclined to account for practical considerations. [...]

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Souter, Sotomayor, & Melendez-Diaz v. Massachusetts:

The conventional wisdom holds that replacing Justice David Souter with Sonia Sotomayor will not have a significant effect on the Supreme Court’s jurisprudence. For most high-profile, hot-button issues, this may be correct. Yet for reasons I have noted before (see here and here), I think that Sotomayor’s confirmation could have significant effects, particularly in the area of criminal law. Last week’s decision in Melendez-Diaz v. Massachusetts provides a nice illustration of how the Court’s approach to some criminal law issues might change once Justice Sotomayor replaces Justice Souter on the Court.

In Melendez-Diaz the Court split 5-4 over whether the Confrontation Clause requires treating crime lab reports as testimonial evidence. The justices did not split along traditional ideological lines, however. Rather the division could be described as one between formalists and pragmatists. The former group — Justices Scalia, Thomas, Stevens, Ginsburg and Souter — sought to apply the Confrontation Clause in a formalistic manner, concluding that affidavits completed by forensic analysts are testimonial evidence that may only be admitted if the authoring analysts testify (or are unavailable), so as to allow a criminal defendant the opportunity to confront them. The latter group — Justices Kennedy, Alito, Breyer, and the Chief Justice — take a more pragmatic approach, concluding that the Confrontation Clause’s requirements need not be applied so rigidly to scientific evidence. This is a split we’ve seen before, both in other Confrontation Clause cases, as well as in cases challenging the constitutionality of sentencing schemes that allow or require judges to make sentencing decisions based upon facts not found by a jury, so it is not isolated to this one issue.

Which camp will Justice Sotomayor join assuming she is confirmed to the Court? It is impossible to know for sure, but there are reasons to suspect that [...]

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Sotomayor, Santa and Souter:

A story in yesterday’s WSJ headlined “Nominee’s Criminal Rulings Tilt to Right of Souter” suggested that Judge Sonia Sotomayor could be more “conservative” than Justice Souter on criminal justice issues. While this is certainly possible, and I would not be surprised to see some differences between Sotomayor and Souter on criminal law issues, I am not sure that the primary case relied upon in the WSJ story supports its conclusion.

According to the story,

While Judge Sonia Sotomayor stands in the liberal mainstream on many issues, her record suggests that the Supreme Court nominee could sometimes rule with the top court’s conservatives on questions of criminal justice.

The Supreme Court’s five conservatives in January held that it was acceptable for prosecutors to use evidence seized by police who mistakenly thought they had a warrant to arrest a suspect.

Justice David Souter dissented, as did the other liberals on the court. But Judge Sotomayor, nominated to succeed Justice Souter, ruled in favor of the police in a similar case 10 years ago. In that case, the judge upheld an arrest and search that never would have happened if police and court officials had kept accurate records. . . .

In the Fourth Amendment case in 1999, Judge Sotomayor ruled against Anthony Santa, who was sentenced to 30 months after officers in Spring Valley, N.Y., arrested him and found 2.95 grams of crack cocaine.

Mr. Santa’s lawyer said the arrest and search were improper, because officers were acting on a warrant from a neighboring town that had been canceled two years earlier. The Supreme Court had earlier ruled that such mistakes didn’t invalidate evidence if court officials were responsible. The issue of responsibility was in dispute in this case, but Judge Sotomayor’s ruling assumed the police had acted appropriately and upheld the

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Kimbrough and Gall Line-Ups:

Of potential note in Kimbrough and Gall is the breakdown of the justices in each case. Each decision was 7-2 with Justices Alito and Thomas dissenting. That’s not the sort of 7-2 split that one would have expected, either on either traditional right-left or formalist-pragmatist grounds. [...]

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Breyer v. Scalia, Pragmatism v. Formalism:

Eugene makes a good point (below) about the way that Breyer’s and Scalia’s positions gives room to both liberal and conservatives to take a position seemingly at odds with their ideologies.

I would add that there is a way in which Breyer’s and Scalia’s votes are completely unsurprising: Scalia’s position is in line with his longtime formalism, and Breyer’s is consistent with his longtime pragmatism. The plurality opinion that Breyer joins is suffused with pragmatism. The plurality finds that the mushy Mathews v. Eldridge test applies (despite the fact that, according to Thomas’ dissent, none of the parties cited Mathews even once), and then engages in an ad hoc balancing process designed to make sure that Hamdi gets to challenge his detention but that the government is not unduly burdened.

Scalia, meanwhile, finds that the Constitution does not allow the government to hold a citizen without detaining him, unless it suspends the writ of habeas corpus. He finds that the Constitution and the common law defeat the government’s claims, so there is no role for a balancing test. His view is that this may not be the most efficient or pragmatic approach, but it is the one that the law provides. If people don’t like that, their representatives can change the law.

What’s interesting here is that this split is not as unusual as some might imagine. Yes, this court is split 5-4, along conservative/liberal lines, in many cases (think Bush v. Gore). But in some notable cases it has been split 5-4 along formalist/pragmatist lines. One of the biggest cases of the last few years is Apprendi v. New Jersey, in which the Supreme Court held that juries, not judges, must impose increases in penalties for a crime beyond the prescribed statutory maximum. That case was 5-4, with [...]

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