Legal Commentary

Briscoe v. Virginia Ends With a Whimper

By Orin Kerr

Briscoe v. Virginia, a case on Confrontation Clause rights in criminal trials, has been one of the most closely-watched criminal law cases at the Supreme Court this Term. As detailed here, the Court?s decision to take the case suggested that it might use the case to overrule or sharply limit last Term?s major decision in Melendez-Diaz v. Massachusetts in light of the departure of Justice Souter and arrival of Justice Sotomayor. (See also my discussion of Briscoe here starting at the 5:30 mark.) Briscoe was argued just 2 weeks ago, and today the Court handed down a short one-paragraph decision that stated in its entirety:

PER CURIAM.
We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009). It is so ordered.

Having already granted the petittion in Briscoe, this was the ?VR? part of the ?GVR? that folks were originally expecting when Melendez-Diaz came down.

Its not entirely clear to me what happened. Off the top of my head, I would guess his means that Justice Sotomayor agreed with (or at least didn?t want to mess with) Melendez-Diaz, and therefore there was no point in spending the time writing a new decision to essentially reaffirm what the Court had said just last Term. But whatever happened, the result is to leave Melendez-Diaz intact.

Full post as published by The Volokh Conspiracy on January 25, 2010 (boomark / email).