Do Kagan and Sotomayor Bleed Blue?

The Sixth Amendment requires that "the accused … be confronted with the witnesses against him." While the confrontation clause is a relatively obscure provision of the Bill of Rights-and not as well known as, say, the equal-protection or freedom of assembly clauses-disagreements over what it means have become an important part of the Supreme Court's civil-liberties docket. Yesterday, the Court heard oral argument in another confrontation clause case, which both demonstrates the importance of this protection and reveals important divides among both conservative and liberal factions on the Supreme Court.

The case being considered yesterday, Williams v. Illinois, concerned the question of how the landmark 2007 case Melendez-Diaz v. Massachusetts should be applied. In Melendez-Diaz, the Supreme Court held that the Sixth Amendment requires forensic analysts working for the state to testify if their analysis is introduced at trial and they are called by the defense. Earlier this year, the Court reached a similar conclusion in Bullcoming v. New Mexico.

These two precedents are noteworthy for two reasons. First, they represent all-too-rare recent cases where the Supreme Court has expanded rather than contracted the protections of the Bill of Rights. Second, the vote lineups in these cases show a split among the conservatives on the Court. In each case, two conservative justices-Antonin Scalia and Clarence Thomas-have joined with three of the Court's liberals while Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy, and Stephen Breyer have dissented. Their more moderate tone notwithstanding, Alito and Roberts are more consistent Republican party-liners than Scalia and Thomas.

Yesterday's case deals with an attempted end-run around Melendez-Diaz and Bullcoming. In Williams, rather than introducing the report of the analyst who performed a DNA test, the state of Illinois called another analyst to discuss it. The problem, of course, is that there cannot be a real inquiry in open court as to whether the test was performed according to proper procedures without the person who conducted the test. Having someone who didn't actually perform the tests discuss the report is just another way of requiring the judge and jury to take the state's word that the tests were performed correctly-a dangerous assumption. As an amicus brief filed by the Innocence Project points out, a review of cases where DNA evidence led to the exoneration of a wrongly convicted individuals "reveals at least 15 exonerations where DNA evidence was tested prior to conviction," and therefore "confrontation of the analyst who performed the procedure is required to ensure that the methods were sound, procedures were followed, and the resulting data are reliable."

One might think that the two precedents make Williams v. Illinois a slam dunk, but there are a couple of reasons to think that the Court might change course. As Tom Goldtsein at SCOTUS blog observes, Sotomayor's concurrence in Bullcoming specifically argued that the issue presented in Williams was not before the Court, suggesting that she's open to switching to the other side in the new case. In addition, another Confrontation Clause case handed down earlier this year suggests that a majority of the Court may be looking to retreat. Sotomayor wrote an opinion allowing hearsay evidence given by a victim who was in the process of dying of gunshot wounds to be admitted-something that the Sixth Amendment would ordinarily forbid-because it was not "testimonial." In a scathing dissent, Scalia wrote that the majority's interpretation of the victim's remarks was "so transparently false that professing to believe it demeans this institution" and that Sotomayor's opinion was "short on the facts, and short on the law." Scalia's dissent was unkind and uncivil-but it wasn't wrong.

A shift away from the requirements of the confrontation clause would be a mistake. Kennedy's dissent in Bullcoming argued that requiring analysts to testify would be too burdensome for prosecutors, wasting scarce resources. As Justice Ruth Bader Ginsburg's majority opinion argues, such fears are likely overblown; in cases where the evidence is sound, defense attorneys have little incentive to draw additional attention to it. Besides, all constitutional constraints impose burdens and inconveniences on the criminal-justice system. It would be cheaper and more efficient for the state if we eliminated the right to a jury trial, provide counsel, or require police to establish probable cause in order to search homes. This is hardly a good reason to eliminate the Fourth and Sixth amendments from the Constitution. There is no such thing as cost-free rights enforcement. The Constitution affords the accused the right to confront witnesses against them, and forensic analysts are among the most powerful and important.

Tuesday's oral argument did not shed a great deal of light on how the Court will rule. As could have been expected, Breyer and Alito expressed substantial sympathy for the state's argument while Scalia was clearly hostile. Elena Kagan and Sotomayor-the likely swing votes-asked tough questions of both sides and did not obviously tip their hand. How these justices ultimately rule will have important consequences for preserving the Sixth Amendment rights of the accused and will also provide significant information about the commitment of President Barack Obama's appointees to civil liberties.