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A Revealing Term
What difference will a "wise Latina" make? And other questions.


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Jonathan H. Adler


The Court will also hear an interesting Establishment Clause case arising from a cross erected by the Veterans of Foreign Wars on federal land. After the suit was filed and a lower court ordered the cross removed, the federal government transferred the land in question to the VFW. In Salazar v. Buono, the Court will consider whether this land transfer was itself permissible and whether a private group has standing to challenge this arrangement in federal court. Another notable First Amendment case, United States v. Stevens, involves a challenge to a federal law prohibiting depictions of animal cruelty.

The Court’s criminal-law cases are likely to reveal the most about Justice Sotomayor, as this is where her judicial philosophy is most likely to diverge from that of Justice Souter. The court will consider questions relating to police questioning of criminal suspects, jury consideration of mitigating factors in death-penalty cases, prosecutors’ liability for allowing false testimony, and the constitutionality of giving juveniles life sentences for non-lethal crimes.

A criminal case worth particular attention is Briscoe v. Virginia. Last term, in Melendez-Diaz v. Massachusetts, the Court considered the question of whether crime-lab reports are testimonial evidence subject to the requirements of the Sixth Amendment’s Confrontation Clause. (“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”) If so, such evidence cannot be admitted unless the lab technician is available to testify at trial, even if the report does nothing more than establish that a substance found in a defendant’s possession was, in fact, an illegal drug.

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Melendez-Diaz split the Court 5–4, but not along traditional ideological lines. Justice Scalia wrote the majority, joined by Justices Thomas, Stevens, Ginsburg, and — of particular importance here — Souter. The majority adopted a strict “formalist” approach to the constitution’s guarantees, ruling that since the lab technician was a witness against the defendant, the defendant had a right to confront him. The dissenting justices, led by Justice Kennedy, embraced the more “pragmatic” approach favored by criminal prosecutors.

Formalist-pragmatist splits on the Court have become rather common in some parts of criminal law, with the formalists retaining the upper hand. Will this continue? While Justice Souter typically joined the formalist camp, Justice Sotomayor’s approach in this area is not yet known. Will she follow Justice Ruth Bader Ginsburg’s strict enforcement of criminal defendants’ rights? Or will her experience as a prosecutor and trial-court judge lead her in a more pragmatic direction, where she would join Justice Breyer? In Briscoe, we should get our first clue, as it asks the Court to narrow (if not reconsider) Melendez-Diaz.

Not all of this year’s big cases involve constitutional questions. Bilski v. Doll is a major patent case; the Court will consider the permissible scope of so-called “business method” patents. Specifically, the Court will consider when, if ever, a “process” that is not tied to any specific machine or device can be patented. The outcome will have a major effect on patent law and significantly impact many industries.

And keep on the lookout for potential sleepers. Some major cases are recognized as such only in hindsight, and the Court will continue to add new cases to its docket in the coming months.

Over the last four years, the Roberts Court has shown itself to be moderately conservative. It has taken a minimalist approach to most cases, confining its decisions to the narrow question presented in each case — save when Justice Kennedy has pushed the Court in a more aggressive direction, as when he joined the liberal justices to invalidate counterterrorism policies or to invalidate the death penalty for child rape. The addition of Justice Sotomayor is unlikely to change this dynamic. Indeed, while the 2009–10 Supreme Court term will be Justice Sotomayor’s first, the term could be remembered more for the Court’s decisions than for who joined the bench.

NRO contributing editor Jonathan H. Adler is professor of law and director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.



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