The U.S. Supreme Court has before it three cases out of New York that present important constitutional and civil rights issues. The blockbuster case is a Second Amendment challenge to New York’s licensing regime for the carrying of concealed weapons, a challenge the Second Circuit rejected. Also before the court is a Second Circuit decision applying widely-established federal appellate precedent requiring civil rights plaintiffs pursuing malicious prosecution claims for dismissed criminal charges to establish their innocence. Finally, in a case out of the New York Court of Appeals, the Supreme Court will consider the extent to which prosecutors can introduce out-of-court testimony notwithstanding the Sixth Amendment’s strict Confrontation Clause because defendants “opened the door” to the hearsay testimony through their defense.
Beyond their substantive import, these cases present intriguing politics. In the Second Amendment case, one can expect a contentious dispute between the conservative and liberal members of the court. By contrast, the Confrontation Clause has considerable conservative support, and that may be an issue around which the full court coalesces. Similarly, because the Second Circuit’s view on malicious prosecution represents the view of all but one circuit, the Supreme Court’s decision to review it may signal a willingness by the conservative and liberal justices to expand the civil rights opportunities of the wrongly prosecuted. Finally, and as an aside, these cases highlight that one should never assume that low-profile decisions won’t end up before the Supreme Court: The two Second Circuit decisions were summary orders, and the New York Court of Appeals decision barely mentions the issue the Supreme Court accepted for review.