Justices not only decide cases. They often signal other actors to bring cases, pass legislation or take other action (as I explore in Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law).
Today Justice Kennedy seemed to invite an Eighth Amendment challenge to solitary confinement practices, an issue not really before the Court. As Samantha Lachman explains:
Justice Anthony Kennedy agreed with the majority in a capital punishment case Thursday. But in an unusual move, he dedicated almost all of hisconcurring opinion to condemning the practice of solitary confinement in the nation’s prisons, even though the issue, of his own admission, had “no direct bearing” on the case….
Kennedy’s opinion emphasized growing evidence that solitary confinement irreparably harms prisoners, quoting authors Charles Dickens and Fyodor Dostoyevsky along the way. Crucially, he invites litigation — which is already winding its way through the federal court system — over the issue. Kennedy frequently serves as the court’s swing vote, so this invitation may hearten criminal justice reform advocates.
“In a case that presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them,” he wrote.
And then in a case involving the confrontation clause, Justice Scalia in a caustic concurrence accused Justice Alito of a stealth overruling of the Crawford case Justice Scalia authored in this area. Josh Blackman:
Justice Scalia’s concurring opinion in Ohio v. Clark, joined by Justice Ginsburg, absolutely excoriates Justice Alito (by name!) for his attempt to stealthily overrule Crawford v. Washington. In Crawford, Justice Scalia garnered a majority to adopt an originalist understanding of the Confrontation Clause. In 2007 (before Heller), I recall Scalia saying that Crawford is the opinion he is most proud of. Since Crawford, the Court has chipped away at the holding, and brought the law back closer to Ohio v. Roberts, the so called “indicia of reliability” standard that existed for two decades before. Ohio v. Clark is another step on that process. In response, Scalia opens up with both barrels at Justice Alito.
I write separately, however, to protest the Court’s shoveling of fresh dirt upon the Sixth Amendment right of confrontation so recently rescued from the grave in Craw- ford v. Washington, 541 U. S. 36 (2004). For several dec ades before that case, we had been allowing hearsay statements to be admitted against a criminal defendant if they bore “‘indicia of reliability.’” Ohio v. Roberts, 448 U. S. 56, 66 (1980). Prosecutors, past and present, love that flabby test. Crawford sought to bring our application of the Confrontation Clause back to its original meaning, which was to exclude unconfronted statements made by witnesses—i.e., statements that were testimonial. 541 U. S., at 51. We defined testimony as a “ ‘solemn declara tion or affirmation made for the purpose of establishing or proving some fact,’” ibid.—in the context of the Confronta tion Clause, a fact “potentially relevant to later criminal prosecution,” Davis v. Washington, 547 U. S. 813, 822 (2006).
Scalia, referring to Alito as “the author” faults the Justice for being unable to overturn Crawford, so he pretends like it doesn’t exist.
Crawford remains the law. But when else has the categorical overruling, the thorough repudiation, of an earlier line of cases been described as nothing more than “adopt[ing] a different approach,” ante, at 4—as though Crawford is only a matter of twiddle-dum twiddle-deepreference, and the old, pre-Crawford “approach” remains available? The author unabashedly displays his hostility to Crawford and its progeny, perhaps aggravated by in- ability to muster the votes to overrule them. Crawford “does not rank on the (author of the opinion’s) top-ten list of favorite precedents—and … the (author) could not restrain [himself] from saying (and saying and saying) so.” Harris v. Quinn, 573 U. S. ___, ___ (2014) (KAGAN, J., dissenting) (slip op., at 15).
And MORE from Richard Re on Justice Ginsburg’s signalling to the Eleventh Circuit last week to “correct its error.”