This week, as many Court Watchers debated what three of The Nine did (or did not) say about masking (or not masking) on the bench, we remained focused as ever on the Court’s decisions. While the Court’s lone signed opinion—an 8-1 ruling on the Confrontation Clause—was hardly a match for the masking drama, it also issued two orders that were plenty newsworthy.

First, in Trump v. Thomas (No. 21A272), the Court rejected the former president’s latest effort to block the release of records to the Select Committee to Investigate the January 6th Attack on the United States Capitol. Back in August, the Select Committee requested records from the National Archives pertaining to President Trump’s actions on and around January 6, 2021. Trump, the former president, claimed that most of the documents sought were privileged, but Biden, the sitting president, declined to assert the executive privilege on Trump’s behalf. Trump then sought an injunction to prevent the disclosure of the documents, but the DC Circuit declined, holding that it could not override the sitting president’s judgment not to assert executive privilege. The court also concluded that it would deny the injunction even if Trump were the sitting president because his claim of executive privilege failed “under any of the tests [he] advocated.” Trump then turned to the Supreme Court for relief but was again rebuffed.

In a brief order issued Wednesday, the Court declined to intervene. Though it acknowledged that “[t]he questions whether and in what circumstances a former President may obtain a court order preventing disclosure of privileged records from his tenure in office, in the face of a determination by the incumbent President to waive the privilege, are unprecedented and raise serious and substantial concerns,” the Court concluded that it had no reason to address those questions because the DC Circuit had concluded that the assertion of privilege would have failed even if Trump were the sitting president. It therefore characterized the DC Circuit’s discussion of the meaty issues as dicta and declined to weigh in itself.

Justice Thomas would have granted Trump’s requested relief, though he did not explain why. Justice Kavanaugh, meanwhile, agreed with the majority’s characterization of the DC Circuit’s opinion as dicta, but wrote separately to take issue with the lower court’s reasoning. In his view, “[a] former President must be able to successfully invoke the Presidential communications privilege for communications that occurred during this Presidency, even if the current President does not support the privilege claim. Concluding otherwise would eviscerate the executive privilege for Presidential communications.” Kavanaugh’s musings were of no current use to the former president, however. In light of the Court’s 8-1 decision not to intervene, the Archives have already begun producing documents to the January 6th Committee.

The second major order of the week, In re Whole Woman’s Health (No. 21-962), concerned abortion. You’ll recall that, earlier in the term, in Whole Woman’s Health v. Jackson (2021), the Court took up a challenge to Texas’s restrictive abortion law, S.B. 8. The law is plainly unconstitutional under Roe and Casey (at least for now), but was deliberately written to evade judicial review by making it enforceable only through private civil actions. When the law first came before the Court, a 5-4 majority concluded that it could not be challenged through suits against several categories of defendants (including the Texas Attorney General, several state judges and clerks, and a private individual who might potentially seek to enforce the law). But an 8-1 majority concluded that it could be challenged through a lawsuit against executive-branch officials involved in medical licensing. The Court thus remanded the case to proceed against the licensing officials, which would presumably lead to the law (which has already taken effect) being declared unconstitutional.

Then things took an unexpected turn. When the Fifth Circuit received the case on remand, it did not send it to the District Court for further proceedings but instead, at the request of the State, certified to the Texas Supreme Court the question whether the license officials actually had any power to enforce S.B. 8. This had the effect of further delaying the inevitable: a district-court ruling that S.B. 8 is unconstitutional under Roe and Casey. The challengers thus returned to the Supreme Court, asking it to intervene and order the Fifth Circuit to remand the case to the District Court for further proceedings.

A divided Court refused. The six-Justice majority provided no explanation for their decision to deny relief. The three dissenting Justices had much more to say. Justice Breyer (joined by Sotomayor and Kagan) insisted that the Fifth Circuit had “ignored our judgment” that the case should be remanded to the District Court to reach a ruling on the merits. Justice Sotomayor (joined by the others) piled on, criticizing the majority for declining “to protect pregnant Texans from egregious violations of their constitutional rights.” While Sotomayor (a past proponent of certification in other contexts) acknowledged that certification of state-law issues can be a valuable tool in appropriate cases, she insisted that Texas’s certification request “was a transparent effort to impede the adjudication of the merits of the petitioners’ claims.” The Fifth Circuit should not have indulged this delay tactic, she argued, and the majority should not have effectively sanctioned it. Concluding, Justice Sotomayor called the case “a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies.” Pledging not to “stand by silently as a State continues to nullify this constitutional guarantee,” she “dissent[ed]” (without the customary “respect”).

Justice Sotomayor was also the author the week’s sole opinion in an argued case, Hemphill v. New York (No. 20-637), where the Justices found much more to agree on. In an 8-1 decision (with Justice Thomas dissenting on procedural grounds), the Court held that a New York rule permitting prosecutors to introduce un-crossed out-of-court testimony when a defendant “opens the door” violates the Confrontation Clause.

The case arose out of the tragic killing of a 2-year-old child by a stray bullet during a Bronx street fight. Police initially charged Nicholas Morris with the murder based on his possession of the 9-millimeter handgun used in the shooting. Morris ultimately reached a plea deal whereby the State agreed to dismiss the murder charges if he pled guilty to illegal possession of a different handgun, not the murder weapon. Years later, the State indicted Darrell Hemphill for the murder based on DNA evidence connecting him to the blue sweater that eyewitnesses said the shooter wore. At trial, Hemphill’s defense was to blame Morris. He elicited testimony that the police had recovered 9-millimeter ammunition in Morris’s apartment, suggesting that it was Morris who’d fired the 9-mm bullet that killed the victim. At the time, Morris was out of the country and unavailable to testify, so the State sought to introduce a transcript of his plea allocution to suggest that he had possessed only a .357 revolver, and not the murder weapon.  Over Hemphill’s objection, the trial court allowed the allocution to be admitted into evidence. It relied on a New York Court of Appeals case, People v. Reid, which held that a criminal defendant could “open the door” to evidence that would otherwise be inadmissible under the Confrontation Clause if that evidence was introduced to correct a “misleading impression” the defendant had created. The trial court reasoned that Hemphill had “opened the door” by arguing that Morris was the shooter. Hemphill was convicted, and the New York appellate courts affirmed.

The Supreme Court reversed, holding that the Reid door-opening rule violates the Confrontation Clause. The primary issue before the Court was not so much whether the introduction of Morris’s testimony violated the Confrontation Clause, but whether Reid’s door-opening rule was an impermissible “exception” to the Confrontation Clause or instead a permissible “procedural rule” bearing on a defendant’s exercise of his rights under the Confrontation Clause. Justice Sotomayor acknowledged that states were permitted some flexibility to adopt reasonable procedural rules (including, for example, a requirement that defendants contemporaneously object to the introduction of out-of-court testimony), she insisted that Reid’s door-opening principle is instead a substantive rule of evidence in New York courts. Seen this way, the rule plainly undermined the Confrontation Clause’s central purpose, as set forth in Supreme Court’s decision in Crawford v. Washington (2004). Crawford rejected the idea that un-crossed out-of-court statements could be admitted provided that they were sufficiently reliable. But the Reid exception was basically a rule of reliability: If a defendant “opened the door” by creating, in the trial judge’s view, a mistaken impression, the prosecution was permitted to correct the record with out-of-court statements. In this case, for example, “it was not for the judge to determine whether Hemphill’s theory that Morris was unreliable, incredible, or otherwise misleading in light of the State’s proffered, unconfronted plea evidence. Nor, under the Clause, was it the judge’s role to decide that this evidence was reasonably necessary to correct that misleading impression

Justice Alito issued a narrow concurrence, joined by Justice Kavanaugh. Although Justice Alito did not believe Hemphill had waived his Confrontation Clause rights by presenting the evidence against Morris, he felt that this type of waiver was conceivable. He envisioned a scenario where a defendant introduced a portion of a statement from an unavailable witness, but then objected on Confrontation Clause grounds when the government sought to introduce the rest of the statement.  This type of inconsistency, he wrote, could lead to an implied waiver.

Justice Thomas dissented.  He believed that Hemphill had waived his Confrontation Clause claim. While Hemphill had timely objected and appealed at every turn, and had consistently claimed a violation of his rights to cross-examination, Justice Thomas argued that Hemphill had not raised the issue now before the Court.  Rather, Hemphill’s challenges were limited to whether he had, in fact, created a “misleading impression” at trial. In other words, Hemphill had only challenged how Reid had been applied as a matter of state law; he had argued not that Reid itself was unconstitutional. (The majority disagreed with this characterization, noting that “[o]nce a federal claim is properly presented, a party can make any argument in support of that claim.”).

That’s all for this week. There’s a possibility of more opinions Monday, so stay tuned…

Tadhg and Dave