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First word from Justice Gorsuch on the Confrontation Clause

By Richard D. Friedman

The Supreme Court today denied certiorari in Stuart v. Alabama, No. 17-1676.  I believe there is good news and bad news here. 

Stuart was charged with vehicular homicide, by drunk driving.  The State introduced a blood test through the testimony of a supervisor in the lab who had nothing to do with preparation of the report -- and who, in fact, was not even employed at the lab at the time of the report.  (See the decision of the Alabama Court of Appeals, taken from the appendix to the cert petition, at 8a, and the petition itself,  at 5-6, 10.)  Gee, that sounds an awful lot like Bullcoming v. New Mexico. This of course was a point emphasized by the petition, which frankly asked for summary reversal.  The Alabama appellate court did little more than wave at Bullcoming; it relieved on a prior decision that seems to have treated Bullcoming as inconsequential in light of an Alabama Supreme Court decision that spoke of what the U.S. Supreme Court "held, in a plurality opinion," in Williams v. Illinois.  (Note that even Oyez speaks of Justice Alito's opinion for four justices as the "opinion of the Court.")

The U.S. Supreme Court denied cert today, and as usual offered no explanation.  But Justice Gorsuch, joined by Justice Sotomayor, dissented from the denial.  And the dissent is very clear -- he rejects the reasoning of the plurality opinion in Williams, at least on the question of whether the lab report was offered for the truth of what it asserted, and also the basis underlying Justice Thomas's vote for the majority in that case.  And he cites Justice Kagan's dissent favorably.

So the biggest piece of good news is that Justice Gorsuch appears to be a tiger on the Confrontation Clause, and so it appears, from the first evidence, that the passing of Justice Scalia's seat to him will not do the doctrine any harm.  And another piece of good news is that Justice Sotomayor felt called upon to join the dissent; on this part of Confrontation Clause doctrine, at least, it appears that she is now in the right corner.

But it's unfortunate that no other justices thought the case warranted action.  I think petitioner's counsel was right that there should have been a summary reversal, and though those are rare they do happen.  But I suppose we shouldn't make too much of the Court declining to reverse summarily.  And what about the failure of others to join in Justice Gorsuch's dissent, and the decision of the Court not to take up the case?  I assume Justice Ginsburg and Kagan remain on the same side with Justices Gorsuch and Sotomayor.  That could have been four for certiorari.  If one but not the other was in favor of cert, she might have had various reasons for not wanting to join a dissent from a cert denial.  But I worry that neither voted for cert because they were afraid that Justice Thomas would stand in this case where he did in Williams and Justice Kavanaugh would take Justice Kennedy's place with Justices Roberts, Alito, and Breyer.

Ultimately, I choose to look at the glass half full.   Justice Gorsuch appears to be on the right side, and we didn't know that before. Perhaps Justice Kavanaugh is on the wrong side, but here's no way of knowing for sure -- and if he is, the Court would be just where it was before on these issues, no worse.

Full post as published by The Confrontation Blog on November 19, 2018 (boomark / email).