Are the Court’s Unexpected Sixth Amendment Revolutions Coming to an End?

bastilleThis is the sixth and final in a series of posts reviewing last term’s criminal cases in the United States Supreme Court and previewing the new term.

When it comes to the constitutional rights of criminal defendants at the Supreme Court, the conventional story of the past half-century goes something like this: Responding to the embarrassing state of criminal justice in the American South in the civil rights era, the activist Warren Court led a revolution in defendants’ rights.  The Court held that most of the basic Bill of Rights protections applied to the states, liberally construed the scope of those rights, and adopted new exclusionary rules to enforce the rights.  The activism of the Warren Court provoked a popular backlash, however, and a series of Republican presidents succeeded in moving the Court to the right.  The Court’s hard-core conservatives  have pushed aggressively to overturn landmark Warren Court precedents, while the more moderate conservatives have charted an unpredictable path, caught between their skepticism of the Warren Court agenda and their reluctance to overturn established precedent.  Meanwhile, the liberals have been on the defensive for a generation, able to do little more than occasionally preserve the gains of an earlier era.

What is one to make, then, of the twin Sixth Amendment revolutions of the past decade? 

Against all expectations, two of the Court’s hard-core conservatives (Scalia and Thomas) joined with a subset of its liberals to expand the Sixth Amendment rights to a jury trial and to confront accusers.  Both revolutions overturned settled law and opened many new avenues for defendants to challenge their convictions and sentences. 

But now there are good reasons to wonder whether the revolutions are over. 

One important question is what the effects will be of the switch from Justice Souter to Justice Sotomayor.  Consider the Confrontation Clause revolution first.  Although the case that started the revolution, Crawford v. Washington, 541 U.S. 36 (2004), drew no dissents, the Court has become more divided as it has clarified and expanded the Crawford right to cross-examine.  Thus, Giles v. California, 128 S. Ct. 2678 (2008), drew three dissents when it was decided two terms ago, while Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) — last term’s Confrontation Clause blockbuster — drew four.  Souter was part of the tenuous 5-4 majority in Melendez-Diaz (as well as the 6-3 majority in Giles), and no one knows what Sotomayor would have done in his place. 

Even assuming that Sotomayor will prove to be a liberal Justice, the Confrontation Clause is one area in which the stereotypical liberal-conservative alliances break down.  For instance, in both Giles and Melendez-Diaz, liberal Justice Breyer was among the dissenters.  So, the question is whether Sotomayor will be more of a Souter or a Breyer liberal.  If the latter, the Crawford revolution may enter a period of retrenchment.

One way or another, it may not take long to discover Sotomayor’s position on Crawford: the new term features yet another Confrontation Clause case, Briscoe v. Virginia.  The lower court in Briscoe held that the state was not required to call a crime-lab analyst as a witness in order to have the analyst’s official report admitted into evidence because the defendant failed to exercise a statutory right to call the analyst himself.  As I read Melendez-Diaz, the Court rejected an argument almost identical to the state’s theory in Briscoe, so a win by the state in Briscoe might signal a major shift in the Supreme Court’s stance on the Confrontation Clause. 

The Souter-Sotomayor switch may prove even more consequential in the jury-trial cases.  These cases have frequently presented 5-4 splits, going back to the seminal case in the revolution, Apprendi v. New Jersey, 530 U.S. 466 (2000).  Although Scalia and Stevens have written most of the key opinions in the revolution, Souter has arguably been the Court’s most reliable pro-Apprendi vote.  (Scalia, for instance, broke with the other pro-Apprendi Justices in Harris v. United States, 536 U.S. 545 (2002), the case that might have extended jury-trial rights to the determination of mandatory minimums.) 

Once again, there is no reason to assume that a liberal Sotomayor will support the revolution.  The liberal Breyer has been the most articulate and effective opponent of the Apprendi revolution, even convincing the liberal Justice Ginsburg to join him in the anti-Apprendi remedy opinion in United States v. Booker, 543 U.S. 220 (2005).  Will Breyer be equally successful with his newest colleague?

But the Apprendi revolution may be in big trouble even without the Souter-Sotomayor switch: a sleeper case from last term, Oregon v. Ice, 129 S. Ct. 711, makes clear how tenuously Ginsburg now supports the revolution — even though she had been the crucial fifth vote in several of the pro-Apprendi decisions leading up to Booker.  Indeed, Ice reveals even Stevens to be less a stalwart of the revolution than might have previously have been assumed.

The holding of Ice — in which the Court affirmed the constitutionality of an unusual state law dealing with the procedures for determining whether sentences are to be served concurrently or consecutively — is less important than the reasoning.  The majority opinion in Ice (authored by Ginsburg and joined by Stevens) seems to reinterpret the Apprendi rule such that it requires jury fact-finding only with respect to facts that increase the length of incarceration, thus removing a host of other sorts of sentencing decisions from the jury-trial right:

States currently permit judges to make a variety of sentencing determinations other than the length of incarceration.  Trial judges often find facts about the nature of the offense or the character of the defendant in determining, for example, the length of supervised release following service of a prison sentence; required attendance at drug rehabilitation programs or terms of community service; and the imposition of statutorily prescribed fines and orders of restitution.  Intruding Apprendi’s rule into these decisions on sentencing choices or accountrements surely would cut the rule loose from its moorings.

129 S. Ct. at 719.

Not only did Ice thus reach out to affirm the constitutionality of many sentencing practices not before the Court, in so doing it emphasized state sovereignty and administrative concerns.  As Justice Scalia observed in his Ice dissent, the majority’s arguments were “a virtual copy” of the dissents in Apprendi and its progeny.  129 S. Ct. at 720 (Scalia, J., dissenting).

If there were any doubt that Ice was intended to mark the end of the Apprendi revolution, consider the majority’s parting shot at the end of the opinion:

Members of this Court have warned against ‘wooden, unyielding insistence on expanding the Apprendi doctrine far beyond its necessary boundaries.’  The jury-trial right is best honored through a ‘principled rationale’ that applies the rule of the Apprendi cases ‘within the central sphere of their concern.’

129 S. Ct. at 719.  Who was the quoted “member of this Court” whose views were endorsed by Ice?  None other than Justice Kennedy — as consistent an anti-Apprendi vote as anyone on the Court — writing in dissent in an earlier case.  What was the dissenting view in the Apprendi line of cases has now become the majority.

None of this bodes well for the considerable amount of unfinished business in the Apprendi revolution, including extending the jury-trial right to fact-finding regarding prior convictions and mandatory minimums, as well as developing meaningful standards for as-applied Sixth Amendment challenges to discretionary sentences.

Earlier posts in this series:

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