Constitutional Law, SCOTUS, Supreme Court

The Supreme Court Is Not Kind To Pharmaceutical Sales Reps Or the Confrontation Clause

Justice Kagan announced the first opinion of the Court today. She is a funny woman:

“This case presents questions of sovereign immunity and prudential standing, not exactly what you came here today to hear.”

With 113 people being sworn into the bar of the Court, I suspect that most of the people in the audience did not, in fact, come to hear a decision in the health care case. The place is packed with admittees and their families — it’s so full members of the Supreme Court bar are squeezed back into the public section of the courtroom. With this many bar admissions, most of the bodies in the room are here to watch someone they know stand and recite an oath.

This is less true of the scrum of cameras outside the Court. While a few weeks ago there were four for five, now there’s a forest. Though perhaps they only appear to be more of a presence today in the light rain, as umbrellas protect the equipment and the spot where the talent will stand — illuminated by massive lights that are both soft and bright — if only the Court would hurry up and issue the health care opinion already.

Alas, no health care opinion was issued.

But, aside from the case about sovereign immunity and prudential standing, for a certain kind of lawyer, a very important opinion was issued today….

Today’s opinion in Williams v. Illinois appears to be a high water mark for a recent line of Confrontation Clause cases.

The Confrontation Clause has been gaining power in recent years, under Jeffery Fisher’s advocacy. First, there was Crawford v. Washington. There, the Court threw out the old Ohio v. Roberts standard for when the statement of a person who isn’t present to testify can be admitted into evidence against a defendant in a criminal trial.

Under Ohio v. Roberts, as long as the out of court statement is reliable, it comes into evidence. Under Crawford, if the statement was prepared for litigation, then it only comes into evidence if the person who said it is available to be cross-examined.

Melendez-Diaz v. Massachusetts gave Crawford muscle — expanding the new Confrontation Clause rule to law enforcement experts (or clarifying that it applied to law enforcement experts all along, depending). After Melendez-Diaz, the Confrontation Clause required that the government introduce an expert to testify if her out-of-court statements were going to come into evidence.

Drunk driving lawyers rejoiced.

Then, in Bullcoming v. New Mexico, the Court reaffirmed that the Confrontation Clause applies to experts. The momentum slowed a little, as Justice Sotomayor wrote a concurrence listing all the factual permutations the case didn’t address — like those in today’s opinion in Williams v. Illinois. Bullcoming also did not address the constitutionality of an individual mandate for health care insurance.

Today, in Williams, a highly divided Court affirmed the Illinois Supreme Court’s decision that the Confrontation Clause did not bar the introduction of DNA evidence in a rape trial where a witness for the company that who did the DNA testing did not testify.

These new Confrontation Clause cases produce odd ideological lines — in Confrontation Clause cases Justice Ginsburg is more likely to be on an opinion with Justice Scalia than with Justice Breyer. Today’s opinion is no different. Justice Alito announced the judgment of the Court and wrote for four — himself, Roberts, Kennedy, and Breyer. Justice Thomas concurred in the judgment, but wrote separately. Justice Kagan dissented, joined by Scalia, Ginsburg, and Sotomayor.

Some folks looking to hire a criminal defense lawyer will say, I’ve heard, that they need a lawyer who can get them a technicality. They’re looking for one of those “technicality lawyers.” The Court’s opinion today is bad news for technicality lawyering.

Of course, the Court issued other opinions today. The barn-burner that Justice Kagan opened with — Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak — addressed whether a man in Michigan can sue to challenge how the Department of Interior handled certain land or whether such a suit is barred by sovereign immunity. There’s also a discussion of the Quiet Title Act.

One can be sure that the excitement around this case has created lots of urine-moistened Dockers on our country’s Quiet Title Act scholars.

Native Americans did well in Salazar v. Ramah Navajo Chapter. The Department of Interior promised to spend more money on services for Native Americans than Congress authorized. Interior then wanted to get out of its promises, because they exceeded what Congress had authorized. A group of Native Americans, shocked that the United States government wouldn’t keep its promises, sued. The Court, in an opinion by Justice Sotomayor, held that the government has to pay for what it promised to do.

In the one case that came closest to health care reform, pharmaceutical sales representatives did poorly today. The Court held that they’re excluded from the Fair Labor Standards Act’s requirement that they be paid overtime in Christopher v. SmithKline Beecham Corp.

Also perhaps foreshadowing the Affordable Care Act resolution, the majority in Christoper was made of Justices Alito, Roberts, Scalia, Kennedy and Thomas.

The Court is back on Thursday.

Matt Kaiser is a lawyer at The Kaiser Law Firm PLLC, which handles complex civil litigation, white collar investigations, and federal criminal cases. On his blog, The Federal Criminal Appeals Blog, he writes about published opinions in criminal cases in the federal circuits where the defendant wins. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.

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