This week at the Court in Plain English

By Lisa Tucker
on Jun 24, 2011 at 5:52 pm

We at the blog knew that the end of the Term was approaching quickly; even though we don’t always know in advance what the Court’s last day will be, it pretty much always wraps things up by the end of June.  With that in mind, we expected Thursday to be jam-packed with opinions, and it was:  the Court issued six of its ten remaining opinions, leading us to believe that on Monday the Chief Justice will announce that the Court will be in recess until October.

Because we had so many opinions on Thursday and wanted to get our Plain English analysis out as quickly as possible, Steve Wermiel of American University’s Washington College of Law is joining me today on the Plain English beat.  I’ll discuss three opinions in this post, and he’ll have a separate post covering the other three.  Welcome, Steve, and thanks!

Over the last few years, the Court has had a series of cases involving the Confrontation Clause, the part of the Sixth Amendment which says that criminal defendants have the right to confront witnesses against them.  In these cases, the Court has emphasized that the Clause means what it says:  if prosecutors want someone to testify in a criminal case, that person has to appear in court, take the oath, and – if necessary – be cross-examined by the lawyers for the defendant.  In Bullcoming v. New Mexico, a divided Court stuck to that interpretation.  [Disclosure:  Goldstein, Howe & Russell, the sponsor of the blog, represented the petitioner in the case.]

Donald Bullcoming was accused of drunk driving, and tests revealed that his blood-alcohol level was three times above the legal limit. However, by the time Bullcoming’s trial started, the lab analyst who had performed the tests and signed the lab reports had been placed on unpaid leave. Therefore, the prosecutors instead put another lab analyst on the stand to testify about the report.

The issue of requiring a lab analyst to testify was not a new one.  In 2009, in a case called Melendez-Diaz v. Massachusetts, the Court that a lab report was a form of “testimony”; therefore, the Confrontation Clause required the authors of the report to take the stand to be cross-examined. In Bullcoming, the Court was considering a question that logically followed from its decision in Melendez-Diaz:  could another lab analyst testify in place of the lab analyst who actually performed the tests?  Perhaps unsurprisingly, the Supreme Court (in an opinion by Justice Ginsburg) said no.   Testimony by a substitute analyst does not satisfy the Confrontation Clause, because the lab analyst who performed the test must testify and be cross-examined in court.

The Court is strongly divided on what the Confrontation Clause requires – in this case, as in Melendez-Diaz, the vote was five to four –but it isn’t the traditional “conservative”/“liberal” divide that we often see in five-four cases.  For example, Justices Scalia and Thomas are both strong Confrontation Clause supporters, often parting with their conservative counterparts on the issue; they believe that the authors of the Constitution (the “Framers”) included the Clause as an important protection against unfair trial practices by the English. Because, in their view, the understanding of the Framers should be extremely important in interpreting the Constitution (a concept, “originalism,” we’ve discussed before in Plain English), they will vote , as in this case, to uphold protections for defendants under the Confrontation Clause.

Another long-anticipated case decided on Thursday was CSX Transportation v. McBride.  It involves a federal law, the Federal Employers’ Liability Act (FELA), that Congress enacted to protect and compensate railroad workers who are hurt on the job. After Robert McBride was injured at work, he sued his employer, CSX, arguing that the railroad had been negligent, or careless.    The question before the Court was what McBride had to prove to win:  was it enough to show that CSX’s negligence was at least part of the reason for his injury, even if it wasn’t the main reason, or did he instead have to show that the company’s negligence was the main (or “proximate”) cause of the injury?

McBride illustrates the difference between “common” (or judge-made) and statutory law (or laws passed by legislatures). If McBride hadn’t been injured at work, and this was just a regular personal-injury case alleging that the defendant was negligent, he would have had to show that the defendant’s negligence was the main cause of his injury.  But nothing in the text of FELA requires proof of proximate cause.  However, the company argued that the common-law proximate cause requirement is so well-established that courts have automatically adopted it when interpreting FELA.

In an opinion by Justice Ginsburg (who also wrote the opinion in Bullcoming), a divided Court held that FELA does not require proximate cause.  Instead, the railroad can be held liable “if [the railroad’s] negligence played a part—no matter how small—in bringing about the injury.” In short, the decision was good news for railroad workers, as it will be easier for them to win against railroads under that standard.   Contrast that with the much-discussed holding in Wal-Mart earlier in the week, and you can see that big corporations do not always win at the Court.

Just as it has heard a number of Confrontation Clause cases recently, the Court has also been dealing with criminal sentencing issues for some time.  On Thursday, the Court issued its opinion in Freeman v. United States. The petitioner in that case, William Freeman, was charged with distributing cocaine.  In return for an agreement that the prosecutor would recommend a sentence of 106 months in prison (a number that came from the U.S. Sentencing Guidelines, a system put in place to make sure that sentences are consistent across the country), Freeman pleaded guilty.  Three years later, however, the Sentencing Guidelines were changed to reduce the potential sentence for Freeman’s crime; Freeman then went back to court, seeking to have his sentence lowered in light of the change.  The district court denied his request, and the Sixth Circuit affirmed.

But on Thursday, the Court reversed, holding that Freeman was eligible for a sentence reduction. Justice Kennedy wrote an opinion for four members of the Court, which is known as a plurality.  Justice Kennedy, along with Justices Ginsburg, Breyer, and Kagan, would have held that when a defendant agrees to plead guilty in exchange for a particular sentence, he may be eligible for a sentence reduction if the U.S. Sentencing Commission later lowers the sentencing range.  But that view will not become the law.  Instead, the deciding vote – and the opportunity to shape the Court’s holding – belonged to Justice Sotomayor.  She agreed with Justice Kennedy and the others that Freeman should be eligible for a sentence reduction, but she took a much narrower view of what the law should be:  under her opinion, a defendant like Freeman is eligible for a sentence reduction only if his agreement with the prosecutors specifically states that the sentence was based on the Sentencing Guidelines.  Because there were five votes for the result in this case – Freeman is eligible for a sentence reduction – Freeman wins.  And under a legal rule that the narrowest point of agreement among at least five Justices should prevail, Justice Sotomayor’s opinion is the controlling one.

We’re so excited for Monday, which is likely to be the last day of the Term.  Although we are not expecting any retirements, we are expecting the opinions in the violent video games and campaign finance cases.  Follow the LiveBlog and read Plain English to learn all about them!