Supreme Court Action Today - Sixth Amendment, Free Speech and More

The Supreme Court issued six opinions this morning.  Let’s start with Bullcoming v. New Mexico (09-10876).  Bulcoming was prosecuted in New Mexico for DWI.  The state called a forensic technician named Razatosr to testify about the forensic laboratory report that certified Bullcoming’s blood alcohol levels were above the threshold for aggravated DWI.  The test and report, however, was prepared by a different analyst name Caylor.  The State did not call Caylor to the stand, nor said he was unavailable.  The record showed that Caylor was on unpaid leave without specifying a reason.  Razatos was familiar with the testing equipment and analysis techniques.  He did not, however, have any involvement with testing Bullcoming’s blood sample.  Bullcoming objected that this violated his Sixth Amendment rights under the Confrontation Clause.  Bullcoming was found guilty and the New Mexico Supreme Court upheld the conviction, holding that Caylor was merely a transcriber of machine results and that Razatos qualified as an expert witness.

The Supreme Court reversed and remanded the case.  Justice Ginsburg, writing for the Court, held that Caylor’s certification was more than transcription of a number.  It represented that he received the blood sample intact; that the report number and sample number corresponded; that he performed the test according to a precise protocol; and by leaving the report remarks section blank, that there were no circumstances that affected the test or the analysis.  Allowing another analyst to testify opens the door to other circumstances where anyone with comparative knowledge of equipment operations (think police and radar guns) can testify in a criminal trial.  Surrogate testimony violates the Confrontation Clause of the Sixth Amendment.  The reports are testimonial as they were created to be put into evidence.

Justice Ginsburg delivered the opinion of the Court, joined by Justice Scalia in full.  Justices Sotomayor and Kagan joined to all except Part IV.  Justice Thomas joined to all except Part IV and footnote 6.  Justice Sotomayor filed and opinion concurring in part.  Justice Kennedy filed a dissenting opinion joined by Chief Justice Roberts and Justices Breyer and Alito.

Another of the anticipated end of term cases is Sorrell, Attorney General of Vermont et al. v. IMS Health Inc. et al. (10-779).  Vermont passed a law that prevents pharmacies and similar entities from selling prescriber identifying information to data miners who then prepare reports or otherwise use the information to help pharmaceutical companies market their products to doctors.  The law specifically prohibits the disclosure of this information for marketing purposes or marketing by pharmaceutical manufacturers but has exceptions such as health care research.  Data miners and manufacturers sought relief contending the law violated their First Amendment rights.  The District Court denied relief but the Second Circuit reversed holding that the law does burden speech of data miners and marketers.

The Supreme Court affirmed the decision of the Second Circuit.  It held that the statute is subject to heightened scrutiny as it enacts content- and speaker-based restrictions on sales disclosures and other information, and prohibits marketing.  At the same time, it provides for other uses of the same information.  Vermont argues that the law is necessary to protect medical privacy, physician confidentiality, and the doctor patient relationship.  The Court responds by saying the law is not drawn that narrowly.  The only choice doctors have is to consent or withhold consent which limits the use of the information to State supported messages.  In any event, some doctors may want to hear the marketing messages.  They can make up their own minds as to whether they are persuaded by them.  Doctors are an experienced and sophisticated audience.  Vermont can’t pass as law such as this because it doesn’t like the fact that the message is effective.

Justice Kennedy wrote the opinion, joined by Chief Justice Roberts, and Justices Scalia, Thomas, Alito, and Sotomayor.  Justice Breyer dissented, joined by Justices Ginsburg and Kagan.  I wonder how this ruling will affect the number of Internet privacy bills circulating in the Senate and the policy initiatives of the Federal Trade Commission.  The Court was clear that the creation and dissemination of information qualifies as speech within the meaning of the First Amendment.

The next case concerns the saga of the late Anna Nicole Smith’s attempts to receive hundreds of millions of dollars from the estate of her late husband, J. Howard Marshall as challenged by Marshall’s son, E. Pierce Marshall.  Both estates now are parties since he had passed away before this case was decided.  Welcome to Stern v. Marshall (10-179).

The case has a complicated procedural history, of which the Court spends page after page recounting.  Chief Justice Roberts starts the opinion with a quote from Charles Dickens’ Bleak House about generations passing and the litigation pressing on despite the human events.  Not a good sign.  We’ll dispense with the lengthy history here and head straight to the question before the Court.  That is whether a bankruptcy judge, who does not meet the requirements of Article III for tenure and salary protection, has the authority to enter final judgment on a counterclaim by Smith’s estate against Pierce Marshall.  The Court refers to Smith by her real name, Vickie Lynn Marshall.

The relevant facts from the case that give rise to this question come from a proceeding in bankruptcy court where Pierce Marshall accused Smith of defamation.  She filed a counterclaim for tortuous interference with the gift she expected from J. Howard Marshall.  The bankruptcy court has the authority under the Bankruptcy Code to hear “core” matters.  The bankruptcy court entered judgment on the tort.  The Supreme Court concluded that the bankruptcy court did have the ability to render judgment under the statute, but not the Constitution.  

The opinion by Chief Justice Roberts was joined by Justices Scalia, Kennedy, Thomas, and Alito.  Justice Scalia filed a concurring opinion.  Justice Breyer filed a dissenting opinion joined by Justices Ginsburg, Sotomayor, and Kagan.

The next case, Pliva, Inc. v. Mensing (09-993) concerns the conflict of state tort law against federal regulations.  Mensing and other plaintiffs contracted a severe neurological disorder called tardive diskinesia after long term use of a generic version of Reglan, a drug used for digestive problems.  They sued the generic manufacturers for failure to provide adequate warning labels.  The manufacturers defended on the basis that statutes and FDA regulations pre-empted the state tort claims as they mandated the generic drug to be labeled the same as Reglan.  The Courts of Appeals in the Fifth and Eight Circuits rejected those defenses.

The Court, with Justice Thomas writing, reversed the Courts of Appeals.  His analysis starts by noting that state law requires drugs to be labeled in a way that renders it legally safe, thus requiring stronger labels than what were on the packages.  Federal law requires the generic manufacturers to label their products with the same warnings as the original drug, and these warnings cannot be independently changed.  The plaintiffs argued that the FDA has a process for manufacturers to strengthen their warnings unilaterally and they also could have sent warning letters to doctors.  The FDA contended that these methods were not available to these manufacturers.  The Court, as Justice Thomas puts it, defers to the FDA’s views because they are not plainly erroneous and reflect the FDA’s fair and considered judgment that the only avenue to the generic manufacturers was to ask the brand name manufacturers for stronger labels.  The Court holds that it was impossible for the manufacturers to comply with both the state and federal laws in conflict with each other.  The Supremacy clause tips in favor of federal law controlling the issue.

Chief Justice Roberts joined Justice Thomas, along with Justices Scalia and Alito.  Justice Kennedy joined in all but Part II-B-2.  Justice Sotomayor wrote a blistering dissent, joined by Justices Ginsburg, Breyer, and Kagan.  I’ll leave it to other, more qualified commentators out there to discuss how Justice Thomas seems to have his own parallel universe of constitutional law that he smilingly inflicts on litigants.

I’ll offer summaries of the last two cases on Friday.  [MG]