(NOTE TO READERS: This post has been updated as of 1:05 p.m. to clarify the facts in the Illinois confrontation case.)
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The Supreme Court, in its final orders on Tuesday, showed its continued interest in the Sixth Amendment’s Confrontation Clause, taking on a new case on whether an expert witness can be called as a stand-in for a lab analyst who actually did a test on criminal evidence, but did not appear at the trial. That question was close to one that had been raised last week by Justice Sonia Sotomayor as the Court ruled in the case of Bullcoming v. New Mexico (09-10876). The other newly granted case tests whether land owners have a right to go to court to challenge a Clean Water Act wetlands-restoration order of the U.S. Environmental Protection Agency.
The Court also ordered the Circuit Court for the Federal Circuit to take a new look at a case on federal judges’ right to a cost-of-living pay raise. In the case of Beer, et al., v. U.S. (09-1395), the Court set aside the Circuit Court’s ruling, over the dissent of Justice Antonin Scalia. Justice Stephen G. Breyer noted that he would have granted the judges’ petition and set the case for argument. (The Court’s order in the case is here.)
The new Confrontation Clause case is Williams v. Illinois (10-8505). In that case, the Illinois Supreme Court ruled that prosecutors could introduce the substance of a forensic analyst’s report on a DNA test of evidence by putting an expert witness on the stand and having her analyze the results, which showed a DNA match in a rape and kidnapping case. The lab analyst was called to testify, and the actual lab report itself was not admitted. The expert witness had had no part in making the analysis, and no personal knowledge of how the test was done. The state Supreme Court nevertheless concluded that there was no violation of the suspect’s confrontation right, because the findings of the lab report were being admitted not for their truth, but only to explain the expert’s opinion about the results.
That was similar to a scenario mentioned by Justice Sotomayor on June 23, in her concurrence in the Bullcoming case. In that case, the Court had ruled that a lab supervisor could not be a surrogate witness in place of a lab technician who prepared a report but did not appear, so the lab test was not admissible. Sotomayor sought to show that the decision was a narrow one, and she listed several factual scenarios that she said were not covered. One of them was a situation in which “an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence.”
In the Sotomayor suggestion, the lab report would not have been admitted, but she intimated that the expert might be allowed to take the stand anyway and give an independent opinion about it. That appeared to be what had occurred in the Williams case. The Court apparently granted the case to determine whether this scenario would satisfy the line of cases beginning with Crawford v. Washington (2004).
In the environmental case added to the decision docket, Sackett, et al., v. EPA, et al. (10-1062), a couple had been found to have filled in a wetland without a federal permit, when they graded a small lot on which they planned to build a house in a residential subdivision near Priest Lake, Idaho. The couple was ordered by EPA to fill in the lot, replace lost vegetation, and monitor the fenced-off site for three years. In their petition to the Courts, the Sacketts contended that they had no chance to contest the compliance order, and asked the Court to rule that they had a right to test the order in federal court.  The Justice Department opposed review of their case, noting that every federal Circuit Court to face the issue had ruled against allowing pre-enforcement lawsuits, limiting enforcement to cases in which EPA chose to sue. The Court granted review nevertheless.
In granting review, the Court said it would resolve two questions: whether the couple could seek pre-enforcement review in court of the EPA order under the Administrative Procedures Act, and, if they could not, whether that would violate their right to constitutional due process.
In the federal judges’ salary case, a group of seven current and former federal judges have been attempted to reopen the issue of the constitutionality of a federal law that bars a cost-of-living raise for members of the federal judiciary, after a prior law had promised one. That very same argument was rejected earlier by the Federal Circuit, so the new case was a frank attempt either to get the Circuit Court to reconsider, or to get the issue before the Supreme Court, which has never ruled on it.
When the new case was before the Circuit Court, it said the claim had been rejected earlier, so that precedent controlled the outcome. The Justice Department had offered an alternative argument for throwing out the case — that is, that these same judges were in the same group that had tried to make the earlier challenge, so they barred (“precluded”) from raising it again.  The Circuit Court made no ruling on that alternative basis.
When the judges then took the case on to the Supreme Court, the Justice Department urged the Court to deny review. Among other points the Department made, it raised anew the “preclusion” issue. In Tuesday’s order, unsigned, the Justices — over Scalia’s dissent and without commenting on Breyer’s desire to hear the case and rule on it — told the Federal Circuit to consider the Justice Department argument.
“The Court,” the new order said, “considers it important that there be a decision on the question, rather than that an answer be deemed unnecessary in light of prior precedent on the merits.”  Once the Federal Circuit rules on preclusion, the order said, it is up to the Federal Circuit to decide in the first instance what next step to take.
Scalia dissented because of his “consistent view” that the Court has no authority to set aside a lower court ruling unless the Court found it to be in error, or unless such rulings were cast into doubt by a new development that came after the lower court had decided. So he, like Breyer, would have granted the judges’ petition and set the case for argument.
Presumably, the case could return to the Justices after the Circuit Court has ruled anew.
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