WASHINGTON -- Justice Anthony Kennedy doesn't always cast the decisive swing vote. He too can be found in dissent, aggressively lobbying the law to turn his way even as the precedents he protests stubbornly persist.
Such was the case with the Supreme Court's campaign finance decisions until Kennedy -- after 20 years of dissenting -- finally turned the tide in Citizens United v. Federal Election Commission, the landmark 2010 ruling on corporate First Amendment rights. On Tuesday, Kennedy will face his new bete noire: the "hollow formality" of the Court's confrontation clause requirements. This time, however, he may not have to wait two decades to get his way.
The Sixth Amendment gives criminal defendants the right to confront opposing witnesses at trial. Two years ago, a bitterly divided -- and ideologically scrambled -- Court decided in Melendez-Diaz v. Massachusetts that the confrontation clause required that lab reports entered into evidence at trial be accompanied by the testimony of the technician who prepared them, regardless of how understaffed or distant the lab. Justice Antonin Scalia wrote the majority opinion, which, like his earlier confrontation clause opinions, relied heavily on his originalist view of the Constitution to reach an uncharacteristically defendant-friendly result. He was joined by conservative co-originalist Justice Clarence Thomas and generally pro-defendant liberal Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg.
Kennedy, writing for himself, Chief Justice John Roberts, and Justices Samuel Alito and Stephen Breyer, vigorously dissented, arguing that the majority's "formalistic and wooden" ruling would have the "vast potential to disrupt criminal procedures that already give ample protections against the misuse of scientific evidence."
After a big decision, the Court usually doesn't rush to reopen the discussion -- which is why observers raised a collective eyebrow when the justices, just days after deciding Melendez-Diaz, decided to hear Briscoe v. Virginia on virtually the same issue. Court Kremlinologists suggested that the Melendez-Diaz dissenters may have provided the four votes necessary to hear the case in the hopes that Justice Souter's successor would switch the fifth vote to their side and swiftly reverse the Court's course. Such hopes were not unreasonable, given that Melendez-Diaz defied the usual ideological divide. But when the Court dismissed Briscoe as improvidently granted following oral argument, it seemed safe to assume that Justice Sonia Sotomayor stood firmly in Souter's shoes.
The Court tackled virtually the same issue again in last term's Bullcoming v. New Mexico. Both Sotomayor and newly minted Justice Elena Kagan preserved their predecessors' votes, joining Scalia and Thomas in Ginsburg's opinion to further entrench the Melendez-Diaz precedent in criminal procedure. Rather than concede defeat and fall in line, however, Kennedy led the Bullcoming dissenters in a rally for a "return to solid ground." And he could be encouraged by the fact that Thomas and Sotomayor each issued concurring opinions that qualified their acceptance of the majority's rule and then defected from Scalia and Ginsburg in another confrontation clause case last term.
Refusing to stand down in the face of multiple defeats may seem like bad form, but Kennedy -- and his confrontation clause foes Scalia and Thomas -- saw in Citizens United that persistence pays off. Dissenting in 1990's Austin v. Michigan, Scalia and Kennedy planted the seeds for Citizens United that Thomas, upon joining the Court in 1991, helped tend. When Citizens United reversed Austin a decade later, Roberts and Alito wrote separately to justify their willingness to toss out precedent despite having cried hosannas to stare decisis at their confirmation hearings. In Citizens United, they revealed that consistent, "spirited" dissents can "undermine the precedent's ability to contribute to the stable and orderly development of the law."
That argument, however elegant, obscures a cruder truth: The Court's major about-faces -- on economic regulation and civil rights as well as gay rights and campaign finance -- have occurred because of changes in the Court's personnel. Kennedy knows this, which is why, with cover from the chief justice's Citizens United concurrence, he will take another shot at overturning or at least limiting Melendez-Diaz in Williams v. Illinois, to be argued on Tuesday.
Like the Melendez-Diaz and Bullcoming cases before it, Williams asks whether an expert witness can testify about a lab report conducted by someone else. But there are differences in detail between the DNA test at issue in Williams and the forensic reports in the earlier two cases that could deliver the Bullcoming majority's wobblier votes into Kennedy's camp.
Barring that, Kennedy will likely issue his third dissent in three years with the same three justices on the same legal issue. And when Ginsburg likely retires in several years, he will have enough four-member dissents to justify an overruling should Ginsburg's successor -- liberal or conservative -- give Kennedy a five-justice majority. If that happens, Scalia can fume all he wants, but he knows the game just as well as Kennedy, his campaign finance partner-in-protest.