During oral arguments Jan. 11 in Briscoe v. Virginia, Supreme Court Justice Antonin Scalia spent considerable time defending the precedent at issue, Melendez-Diaz v. Massachusetts, in which he wrote the majority opinion. That was the Confrontation Clause decision finding that forensic evidence needed to be presented in person, not by affidavit, so it could be tested in cross-examination.
Melendez-Diaz was decided just last June, so some wondered why the Court would review such a similar case. All eyes were on new Justice Sonia Sotomayor to see if she would have a different take on the issue.
This morning, the Court decided to leave well enough alone and leave the precedent untouched, suggesting that Sotomayor may not have had anything different to say about the issue than her predecessor David Souter, who was in the 5-4 majority in Melendez-Diaz. The Court sent the Briscoe case back to Virginia courts for reassessment under the Melendez-Diaz case, which it could have done without hearing arguments in the first place.
University of Michigan law professor Richard Friedman, who argued for the plaintiff in the Virginia case, was pleased that the precedent remains intact. "This is good news," he said. "The mystery is more why they took the case. If, as some have suggested, they took it to reconsider Melendez-Diaz in light of the change of membership of the Court, that clearly didn't happen."
For Supreme Court word buffs, the ruling was something of a disappointment for another reason. During the argument, Friedman used the professorial word "orthogonal" to describe an argument that had been raised, but was in his view irrelevant or extraneous. As we reported here, the word was a new one for several justices, and they had fun with it. "We should use that in the opinion," Scalia joked.
But it turned out to be a one-sentence per curiam decision, and even the able wordsmith Scalia apparently found it impossible to insert the word. Maybe next time.