U.S. Supreme Court Current News & Views

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December 2009

Choate

On Language

By Ben Zimmer, New York Times Magazine

12-31-09 -- If you’re a lawyer presenting an oral argument before Justice Antonin Scalia of the Supreme Court, never, ever use the word choate. No, not the name Choate (rhymes with “boat”), which graces a Connecticut prep school and the great 19th-century jurist Rufus Choate. The taboo term is choate (pronounced KOH-it or KOH-ate), an adjective defined by Webster’s New World Law Dictionary as “completed or perfected in and of itself” and formed as the opposite of inchoate (“commenced but not completed, partially done”). . . . A lawyer named Randolph Barnhouse learned this lesson the hard way in November when he appeared before the Supreme Court as counsel to a company selling tax-free cigarettes over the Internet. Barnhouse said the opportunity to recover taxes on the cigarettes was an “inchoate” interest, not yet fully formed. “Any recovery would not be property until it became choate, until there was an amount of money assigned to it,” he explained. . . . Scalia stopped Barnhouse cold. “There is no such adjective,” he declared. “I know we have used it, but there is no such adjective as choate. There is inchoate, but the opposite of inchoate is not choate.”

Sotomayor Dislikes Commercialization of ‘Wise Latina’ Quote

By Debra Cassens Weiss, ABA Journal

12-21-09 -- Justice Sonia Sotomayor says she has had to adjust to a “hurricane” of public attention since her appointment to the U.S. Supreme Court, but she has been touched by the support from so many well-wishers. . . . Speaking to reporters during a visit to Puerto Rico, Sotomayor said she is happy that others are inspired by her story—but she’s not happy with the commercialization of her “wise Latina” comment, the Associated Press reports. She used the phrase in 2001 this way: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.” . . . The phrase has found its way onto T-shirts, coffee mugs and even coats marketed for Chihuahuas, the New York Daily News reports.

Honest failure

Why a well-intentioned law to crack down on corruption should be struck down.

The Washington Post Editorial

12-11-09 -- A FEDERAL employee sits in his office reading the racing form during work hours. Is this guy lazy? Unethical? Or a criminal deserving of prosecution under federal law? . . . This hypothetical became a running gag at oral arguments before the Supreme Court on Tuesday, but it is no joke. A 28-word passage in federal law makes it a crime to "deprive another of the intangible right of honest services." This is true even if the perpetrator has not directly pocketed taxpayer dollars or financially defrauded his company. The law is so vague that most people would have no idea what behavior is prohibited. Or, as Justice Stephen G. Breyer put it, "Perhaps there are 150 million workers in the United States. I think possibly 140 [million] of them would flunk" the test. . . . The court heard two challenges Tuesday -- one brought by newspaper baron Conrad Black and another by former Alaska lawmaker Bruce Weyhrauch.

O'Connor Helps Launch New Initiative Against Judicial Elections

Jordan Weissmann, The National Law Journal

12-11-09 -- Since retiring from the high bench, former U.S. Supreme Court Justice Sandra Day O'Connor has repeatedly advocated against the use of elections to pick state judges. Now she is teaming with a center at the University of Denver to try to add some political teeth to her efforts. . . . On Thursday, the Institute for the Advancement of the American Legal System announced the creation of the O'Connor Judicial Selection Initiative, a project that will assist state level efforts to move away from judicial elections. . . . The institute, founded in 2006 by former Colorado Supreme Court Justice Rebecca Love Kourlis, will devote a full-time director to the project, backed by the institute's 10-person staff. The judicial selection initiative will also be aided by an 11-member advisory commission, which O'Connor will chair.

Was Stevens' Condo the Reason for Justice's Recusal in Fla. Property Rights Case?

Tony Mauro, The National Law Journal

12-07-09 -- Supreme Court Justice John Paul Stevens' surprise recusal on Wednesday in a Florida property rights case may have been triggered by media inquiries about Stevens' Fort Lauderdale property based on information provided by a group that filed a brief in the case. . . . The recusal came in Stop the Beach Renourishment Inc. v. Florida Department of Environmental Protection, which asked whether a state program aimed at restoring eroded beaches -- and a state court ruling interpreting it -- amounted to an unconstitutional taking. The replenished beach area belongs to the state which, property owners say, diminishes the value of their properties by turning beachfront houses into "beach view" properties.

Former Solicitor General Feels Senators' Wrath Over Supreme Court's 'Iqbal' Ruling

David Ingram, The National Law Journal

12-3-09 -- Democratic senators have for months accused the U.S. Supreme Court of stifling civil lawsuits. They've cited, most recently, the Court's 5-4 decision this year in Ashcroft v. Iqbal (pdf), which added a new plausibility requirement for lawsuits. . . . On Wednesday, in sometimes tense exchanges, those senators went head-to-head with Gregory Garre, the former solicitor general who argued and won the case almost exactly a year ago. . . . Garre, now chair of the appellate practice at Latham & Watkins, testified about the case at a hearing Wednesday before the Senate Judiciary Committee. He said there has not been enough research to conclude that the Iqbal decision -- and the related 2007 decision in Bell Atlantic Corp. v. Twombly -- are unfairly restricting plaintiffs.

Inside the High Court: Sotomayor Collides With Ginsburg During Questioning

Laurel Newby, Law.com

12-2-09 -- In the midst of a lively oral argument at the Supreme Court, the justices' questioning of the attorneys at the podium sometimes overlaps, with several justices jumping in with different queries at the same time and talking over each other. The situation usually resolves itself fairly seamlessly and subtly, with one justice trailing off or explicitly deferring to the other. But a somewhat tense moment at the Court on Tuesday indicates that Justice Sonia Sotomayor may still be getting used to the rhythm of the questioning and the etiquette of sharing argument time with her more seasoned colleagues on the high court bench. . . . During arguments in United Student Aid Funds v. Espinosa, a case involving the discharge of student loans during bankruptcy, Justice Ruth Bader Ginsburg asked Michael J. Meehan, counsel for the respondent in the case, about the petitioner's interpretation of a provision of the Bankruptcy Code at issue. . . . Meehan began his response to Ginsburg, and Sotomayor -- who has already established herself as an active and assertive questioner during her short time on the Supreme Court bench -- jumped in during the middle of Meehan's second sentence to engage him on a different topic.

November 2009

Invisible Constitution and Missing Pounds Surface at Alito Speech

By Debra Cassens Weiss, ABA Journal

11-18-09 -- Perhaps there’s something in the water at the U.S. Supreme Court. . . . That’s one explanation offered by Above the Law for Justice Samuel A. Alito’s new younger and thinner appearance. Another possibility is Alito’s rumored exercise regimen imposed by his wife. . . . Alito spoke last week at a Federalist Society dinner, where he emphasized the need to interpret “what the law is and not what it should be,” according to an account at The BLT: The Blog of Legal Times. . . . Blogger David Lat of Above the Law attended Alito’s speech and visited with him beforehand. “Being on the Supreme Court appears to agree with the justice; he seems to look younger and thinner with each new public appearance,” Lat writes.

Was Chief Justice's Comment on Special Masters Too Harsh?

Tony Mauro, The National Law Journal

11-18-09 -- Continuing to reverberate around Supreme Court circles is a comment made by Chief Justice John Roberts Jr. during oral argument last month in the case of South Carolina v. North Carolina, in which the issue was when and whether third parties may intervene in so-called "original jurisdiction" suits brought by a state against another state or against the United States. . . . The dispute between the Carolinas is over Catawba River water usage, but the oral argument on Oct. 13 was triggered by an interim recommendation that intervenors such as the city of Charlotte and Duke Energy Corp. be allowed as parties to the litigation. That recommendation was made by the special master appointed by the Court in the case: Kristin Myles, a partner in Munger, Tolles & Olson's San Francisco office and a former law clerk to Scalia. Since original-jurisdiction cases come to the justices first, not last, the Court appoints special masters to gather facts about these cases and then to recommend to the Court how the dispute should be resolved. Myles, the first woman to hold the position, was named special master in January 2008.

Sotomayor Adds Celebrity Element to High Court

Jesse J. Holland, The Associated Press, Law.com

11-18-09 -- Apparently, no one told Sonia Sotomayor that Supreme Court justices are supposed to be circumspect, emerging from their marble palace mainly to dispense legal wisdom to law schools, judges' conferences and lawyers' meetings. . . . Since becoming the first Hispanic justice, Sotomayor has mamboed with movie stars, exchanged smooches with musicians at the White House and thrown out the first pitch for her beloved New York Yankees. A famous jazz composer even wrote a song about her: "Wise Latina Woman." . . . In short, Sotomayor has become a celebrity -- all without having made a single major decision at the nation's highest court.

New Justice Sotomayor Emerges as Frequent -- and Tough -- Questioner

Tony Mauro, The National Law Journal

11-16-09 -- Bryan Stevenson, a superhero in the pantheon of the liberal public interest bar, was standing before the U.S. Supreme Court on Nov. 9, arguing against life in prison without parole for juvenile offenders. . . . New Justice Sonia Sotomayor, painted as an unrepentant liberal during her July confirmation hearing, started to question him. Would she throw him a softball? . . . Not a chance. She asked him to interpret an earlier ruling in his case, Sullivan v. Florida. When he gave an answer with which she disagreed, Sotomayor snapped, "No, that's an unfair characterization." . . . Stevenson seemed taken aback, though he said, "I accept that," and moved on. . . . Stevenson is not the only lawyer to provoke a strong comment from the newest justice. During oral argument in Perdue v. Kenny A on Oct. 14, she exclaimed to a lawyer, "That's not true!"

Alito Praises Fidelity to the Law, Defends Sotomayor

Jeff Jeffrey, The National Law Journal

11-16-09 -- In a speech to the Federalist Society Thursday as part of its annual conference, Supreme Court Justice Samuel Alito Jr. spoke of the importance of judges interpreting "what the law is and not what it should be." He said, "That should be the basic starting point for anyone discussing the role of federal courts. But this basic starting point has been and always will be under attack, sometimes subtly and sometimes overtly." . . . Alito stood up for his newest colleague, Justice Sonia Sotomayor, who Alito said had been criticized during her confirmation hearings for repeatedly saying that her tenure on the high court would be characterized by fidelity to the law.

Supreme Court Honors Justice O'Connor's Late Husband

In other action, the Court reinstated the death penalty for Fernando Belmontes Jr., convicted in the '81 murder of a California woman

The National Law Journal

11-16-09 -- In brief comments at the opening of the Supreme Court's session Monday, Chief Justice John Roberts Jr. expressed "profound sympathy" to retired Justice Sandra Day O'Connor for the death last week of her husband John O'Connor III. O'Connor died Nov. 11 at the age of 79 of complications resulting from Alzheimer's disease. . . . Roberts said he was speaking on behalf of the Court and retired Justice David Souter, and that the official record of the Court would note that its upcoming recess would be in honor of O'Connor. After Monday, the Court is in recess until Nov. 30.

‘Dueling Family Forces’ Shaped Scalia’s Ease with Confrontation, Author Says

By Debra Cassens Weiss, ABA Journal

11-13-09 -- Justice Antonin Scalia originally turned down USA Today reporter Joan Biskupic when she asked for an interview for her new book on the justice. . . . But Biskupic persisted, National Public Radio reports. Biskupic ran into Scalia at a wedding, and she described what she had learned during a trip to Trenton, N.J., his childhood home town. “He got intrigued by what I was finding," Biskupic told NPR. . . .Biskupic had learned about Scalia’s father, who immigrated to the United States at the age of 15, learned the language, and went on to earn a doctorate in romance languages. Before the end of her project, Biskupic landed 12 interviews with the justice. . . . Scalia was an only child, the only offspring from two striving immigrant families, Biskupic told the American Constitution Blog.

Lawyer Learns That Chief Justice Speaks Only for Himself

Tony Mauro, The National Law Journal

11-12-09 -- Off the bench, Chief Justice John Roberts Jr. can be disarmingly modest about the role of the chief justice. He is only one of nine justices, he'll say in public appearances, and he has no authority to tell his eight colleagues what to do -- even though he gets blamed when things go wrong. On Tuesday, that self-deprecating posture was on display on the bench during a brief, surprising exchange at oral argument. . . . It came during argument in Hertz Corp. v. Friend, an important business case on how to define a corporation's principal place of business for purposes of federal diversity jurisdiction. The debate focused on the various ways federal appeals courts have answered that question. As we reported here, the justices seemed to be leaning toward a simple test of where a company's headquarters or "nerve center" is located -- a test advocated by Sri Srinivasan of O'Melveny & Myers, the lawyer for Hertz.

Justice O'Connor's Husband Dead at 79

Tony Mauro, The National Law Journal

11-11-09 -- John O'Connor III, the husband of retired Supreme Court Justice Sandra Day O'Connor, died Wednesday in Phoenix of complications from Alzheimer's disease, according to an announcement from the Court. He was 79. . . . O'Connor, an accomplished lawyer in his own right, worked with Miller & Chevalier and Bryan Cave after his wife was appointed to the Supreme Court in 1981. He was a familiar figure at the Court, and once said that his life had become "vastly broadened and vastly enriched by her appointment." Early in her tenure, to his amusement, some who were not accustomed to a woman on the Court addressed John O'Connor as Justice O'Connor.

The Famous 'Kelo House' Property Is Now A Vacant Lot

John Carney, Business Insider  

11-10-09 -- What you are looking at to the right is a monument to government folly. . . . It is the vacant lot where the home of Susette Kelo once stood. . . . A decade ago, the town of New London, Connecticut claimed Kelo's house by right of eminent domain. The plan was to demolish the residential neighborhood so that Pfizer could built a massive research and development plant on the adjacent land. Pfizer got the land for next to nothing.  Five Supreme Court justices upheld the taking, ruling that although the primary beneficiary was a corporation, it met the constitutional requirement of "public use." . . . Now Pfizer has announced that it is shutting down the plant.

Chief Justice Takes to the Mound on Supreme Court Baseball Cards

Tony Mauro, The National Law Journal

11-9-09 -- If you're a fan of the U.S. Supreme Court bobbleheads that can be found on the desks of powerhouse lawyers and law professors nationwide, then you'll like the next brainchild of the bobbleheads' creator: Supreme Court baseball cards. . . . The first one, commemorating Chief Justice John Roberts Jr. as the Court's "pitcher," has been issued to cognoscenti who subscribe to the unconventional law review Green Bag. Editor Ross Davies, who commissioned the bobbleheads, cooked up the trading cards too. . . . Roberts is shown in the image of Mordecai "Three Fingers" Brown, the famed Chicago Cubs pitcher who, like Roberts, grew up in Indiana. In the background is legendary umpire Bill Klem -- a nod to Roberts' 2005 statement that the Court must strive to be a "fair and unbiased umpire."

Note to Supreme Court Justices: Specter Saw You on TV

David Ingram, The National Law Journal

11-6-09 -- Sen. Arlen Specter, D-Pa., has been a longtime advocate of televising sessions of the U.S. Supreme Court, a quest that has repeatedly fallen on deaf ears across First Street NE. . . . But Specter noted Thursday that the justices haven't exactly been camera shy. . . . In a speech on the Senate floor, he said that Chief Justice John Roberts Jr. and Justice John Paul Stevens have appeared in interviews on ABC's "Primetime," Justice Ruth Bader Ginsburg on CBS News, Justice Stephen Breyer on "Fox News Sunday," and Justices Antonin Scalia and Clarence Thomas on CBS's "60 Minutes." All the justices, he added, were recently interviewed on C-SPAN. . . . "We cannot accept the justices' plea for anonymity when they so regularly appear before the camera," Specter said in his prepared remarks.

Justice Scalia Delivers Lesson on Word Usage

By Debra Cassens Weiss, ABA Journal

11-4-09 -- A lawyer for a company that sells tax-free cigarettes over the Internet got a lesson on word usage from Justice Antonin Scalia on Tuesday. . . . The problems began for lawyer Randolph Barnhouse soon after he described an opportunity to collect tax money as an "inchoate" interest—an interest that is not yet fully formed, the Associated Press reports. . . . Barnhouse was arguing that a city government may not bring a RICO suit to recover uncollected taxes because a lost tax opportunity is not an injury to property covered by the statute. (SCOTUSblog has the argument preview.) . . . In response to a hypothetical, Barnhouse then spoke of a “choate” interest in property—to Scalia’s dismay. Page 5 of the transcript (PDF) has the exchange. . . . “There is no such adjective,” Scalia said. “I know we have used it, but there is no such adjective as ‘choate.’ There is ‘inchoate,’ but the opposite of ‘inchoate’ is not ‘choate.’ "

Time Gets Away From the Supreme Court

Tony Mauro, The National Law Journal

11-3-09 -- There was an Alice in Wonderland quality to the Supreme Court Monday morning, where clocks throughout the building were off-kilter -- apparently triggered by an unsuccessful effort to turn them back when daylight-saving time ended early Sunday morning. . . . When the Court convened at 10 a.m. sharp, the ancient clock hanging above the justices read 6:20, as did clocks throughout the building (they're all controlled remotely, apparently.) Before the first oral argument began, Chief Justice John Roberts Jr. took note of the glitch, though he did not explain it or apologize for it. Court spokeswoman Kathy Arberg said later that a malfunction in the Court's master clock made it impossible to reset the other clocks in the building. . . . Roberts told spectators that lawyers are sometimes admonished not to look at the clock during oral arguments. "That is particularly important today," he said.

October 2009

Supreme Court Justices Pay Tribute to Assassinated Italian Judge

By Tony Mauro | The Blog of Legal Times | New York Lawyer

10-30-09 -- A high-level gathering at the Supreme Court paid tribute on Thursday to Giovanni Falcone, an iconic Italian judge who was assassinated in 1992 as he waged legal war against the Mafia. . . . Chief Justice John Roberts Jr., along with Justices Antonin Scalia and Samuel Alito Jr., Homeland Security Secretary Janet Napolitano, Deputy Attorney General David Ogden, Deputy FBI Director John Pistole, and former FBI Director Williams Sessions, spoke at the tribute, which was co-hosted by the Italian Embassy. Judge Arthur Gajarsa of the U.S. Court of Appeals for the Federal Circuit, who was a driving force behind the event, also spoke.

'Iqbal' Fails to Find Fan Base at House Judiciary Committee Hearing

Alison Frankel, The American Lawyer   

10-29-09 -- On Wednesday, the Judiciary Committee of the U.S. House of Representatives held a hearing called "Access to Justice Denied -- Ashcroft v. Iqbal," on the outsize effect the U.S. Supreme Court's May 2009 ruling has had on civil litigation. The ruling, you'll recall, requires plaintiffs to plead specific factual allegations in their complaints. It has already been cited in almost 3,000 lower court rulings in just five months on the books. (Check here, here and here for our previous coverage of complaints dismissed on Iqbal grounds.) . . . Given the title of the Judiciary Committee's hearing, it's no shocker that only one witness, former Justice Department Civil Division Assistant AG Gregory Katsas, who will rejoin Jones Day as a partner in November, defended the ruling as "consistent with the vast bulk of prior precedent." Moreover, he warned, overturning Iqbal through the sort of legislative rollback action suggested by Senator Arlen Specter would "open the floodgates" to "intrusive and expensive discovery into implausible and insubstantial claims."

Justice's old house finds a new home

by Dianna M. Náñez - The Arizona Republic

10-22-09 -- Known for her stoicism, former U.S. Supreme Court Justice Sandra Day O'Connor said she could not mask her emotion at the sight of her 1958 adobe house restored on a desert bluff in Papago Park. . . . "I burst into tears, it was so perfect," she said. . . . This week, O'Connor celebrated the effort it took to move the house brick by brick from Paradise Valley to Tempe. The tears came earlier this month when O'Connor sat at the front of the dinner table in the house where she reared her three boys - Scott, Brian and Jay - and lived with her husband, John, from 1958 to 1981.

The Supreme Court, as Seen on Television

Justices grant rare, revealing interviews to C-SPAN

Tony Mauro, The National Law Journal

10-13-09 -- On "a quiet night" at the U.S. Supreme Court, Chief Justice John Roberts Jr. said recently that he sometimes steals into the Court's wood-paneled conference rooms to contemplate the work of his predecessors whose portraits adorn the walls. "They're probably looking down at me with either bemusement or amazement," he laughed. . . . For Justice Clarence Thomas, a walk out to the Court's front plaza will sometimes re-energize him when he is tired and asking himself "Why am I doing this?" Looking back at the Court from that vantage point, he said, "It's hard not to get goose bumps, or it's hard not to realize that this is much larger than me." . . . Justice Samuel Alito Jr. communes with the Court building when he is leaving at night and walks through the Great Hall on his way to the elevator. "I look around at the pillars and ... the building really impresses upon me the importance of the work that we're doing."

Shedding Tiers

Look out, Harvard: Seton Hall grad makes it to clerk status.

Supreme Court Report By Anna Persky Stolley, ABA Journal October 2009 Issue

In April, Justice Antonin Scalia did what he does best. To put it bluntly, he put it bluntly: If you want to be a clerk and you’re not from Har­vard or Yale, he’s just not interested in hiring you. . . . No shocker, that. But the way Scalia said it was classic Scalia. During a question-and-answer session at American University Washington College of Law, Scalia told a student she had little chance of getting a Supreme Court clerkship with a JD from a school like American. . . . “By and large, I’m going to be picking from the law schools that basically are the hardest to get into. They admit the best and the brightest, and they may not teach very well, but you can’t make a sow’s ear out of a silk purse,” Scalia told the student, as recorded by the New York Times. “If they come in the best and the brightest, they’re probably going to leave the best and the brightest, OK?” . . . Needless to say, the folks at American University were none too pleased with Scalia’s statements. Claudio Grossman, dean of the Washington College of Law, said in a statement: “We welcomed Justice Scalia to our law school, but disagree with his approach to hiring law clerks. He himself admitted that one of his best clerks went to a school from which he would not have recruited.”

O’Connor Leaves Court Then Gripes About the Result

Commentary by Ann Woolner, Bloomberg

10-9-09 -- On first read, remarks from Sandra Day O’Connor last week look like gross understatement. . . . Asked whether it concerns her when the U.S. Supreme Court rules differently than she would have, the retired justice said this: / “What would you feel? I’d be a little bit disappointed.” . . . Personally, I’m a lot more than a little disappointed at what has happened to the court since she left. And, unlike her, I have seen none of my life’s work destroyed. . . . “If you think you’ve been helpful, and then it’s dismantled, you think, ‘Oh, dear,’” O’Connor said. . . . Oh, dear? . . . Since she retired, the court abandoned her bedrock principle that to be constitutional, abortion restrictions must contain exceptions to protect the woman’s health. . . . To say it would be a “little bit disappointing” to a woman whose health depended on ending her pregnancy surely gives scant expression to the patient’s predicament.

First-Day Recusals From the Supreme Court

Tony Mauro, The National Law Journal, This article first appeared on The BLT: The Blog of Legal Times.

10-6-09 -- The Supreme Court's 91-page orders list from Monday disposed of more than 2,000 cases that accumulated over the summer. The list noted several justices recusing in some of the cases. New Justice Sonia Sotomayor recused most often, bowing out of 76 cases on the list. . . . That's to be expected, because she sat on the 2nd U.S. Circuit Court of Appeals before becoming a justice this summer. It is customary for justices to recuse in cases in which they participated at an earlier stage; most if not all of Sotomayor's recusals on Monday were in cases from that circuit.

Red Mass Draws 6 High Court Justices, Vice President

Tony Mauro, The National Law Journal

10-5-09 -- Six Supreme Court justices, two Cabinet members and Vice President Joe Biden were on hand along with dozens of other judges and public officials Sunday at the traditional Roman Catholic Red Mass at the Cathedral of St. Matthew the Apostle in Washington, D.C., the unofficial start to the Supreme Court's fall season. The cardinal giving the sermon at the Mass called on lawyers to give "radical support" to the unborn. . . . It was Sonia Sotomayor's first Red Mass as a justice, and she was joined by four of the five other Catholics on the Court: Chief Justice John Roberts Jr. and Justices Antonin Scalia, Anthony Kennedy and Samuel Alito Jr. Also attending was Justice Stephen Breyer, who is Jewish. The sixth Catholic justice, Clarence Thomas, was attending a wedding and could not attend. . . . Giving the sermon was Cardinal Daniel DiNardo, archbishop of Galveston-Houston. DiNardo is the newest American cardinal, having been named to the College of Cardinals by Pope Benedict XVI in 2007.

‘Oh Dear’: O’Connor Disappointed to See Some Decisions ‘Dismantled’

By Debra Cassens Weiss, ABA Journal

10-5-09 -- In a rare moment of candor about the current U.S. Supreme Court, retired Justice Sandra Day O’Connor said this weekend that she has been disappointed to see some of her opinions dismantled. . . . O’Connor made her comment this weekend at an “unusually candid” panel discussion sponsored by the William and Mary law school, USA Today reports. . . . O’Connor spoke in response to a question about how she feels when her rulings are undone by the current court. "What would you feel?” O’Connor said. “I'd be a little bit disappointed. If you think you've been helpful, and then it's dismantled, you think, 'Oh, dear.' But life goes on. It's not always positive."

Justice Thomas Speaks About His Silence on the Bench

Miriam Rozen, Texas Lawyer

10-2-09 -- For a U.S. Supreme Court justice who remains mum during oral arguments, Clarence Thomas shared a lot on Wednesday during a 90-minute conversation before an audience of 2,300 at Southern Methodist University in Dallas. . . . Appearing on stage with Theodore B. Olson, former U.S. solicitor general and now a Gibson, Dunn & Crutcher partner in Washington, D.C., Thomas began the evening with humor. "I was planning on not saying anything," he told Olson, noting that he has done that for years. His 19th term on the nation's highest court will begin Monday.

Red Mass: lobbying high court or simple prayer service?

By Bill Mears , CNN Supreme Court Producer              

10-1-09 -- The beautifully ornate Catholic church in the nation's capital has seen its share of history and controversy. . . . In 1963, the Cathedral of St. Matthew the Apostle was the site of John F. Kennedy's funeral. After the service, on the steps outside, the slain president's young son famously saluted his father's memory. . . . But the church is also the site of an annual Mass that has drawn criticism for what many see as an unhealthy mix of politics, the law and religion. . . . Washington's annual Red Mass, which celebrates the legal profession, will be held this year on Sunday, October 4 -- the day before the Supreme Court begins its new term. Several justices traditionally attend, along with congressional leaders, diplomats, cabinet secretaries and other dignitaries. . . . Past presidents have also attended, though there is no word yet on whether President Obama will appear.

September 2009

The Case of the Plummeting Supreme Court Docket

Sidebar By Adam Liptak

9-28-09 -- In the early 1980s, the Supreme Court decided more than 150 cases a year. These days, it decides about half that many. . . . A couple of weeks ago, the Supreme Court advocacy clinic at Yale Law School held a conference to explore the mystery of the court’s shrinking docket. Law professors presented data, theories and speculation. Expensive lawyers told rueful stories about can’t-miss cases that somehow did not make the cut. . . . Some participants blamed the newer justices, others their clerks. Some blamed Congress, saying it is not cranking out enough confusing legislation. And some blamed the Justice Department, which is filing fewer appeals. . . . But there emerged nothing like a definitive answer to why the court now selects perhaps 80 cases from more than 8,000 requests for review it receives every year. . . . The most striking possible explanation came from David R. Stras, a researcher at the University of Minnesota Law School. A crop of five new justices who joined the court starting in 1986, he found, voted to hear cases far less often than the justices they replaced. . . . “You saw the docket fall off a cliff” as these justices took their seats, Mr. Stras said in an interview. . . . It takes the votes of four justices to hear an appeal — or, in the language of the court, to grant a petition for a writ of certiorari. Mr. Stras examined all of the more than 2,500 appeals from 1986 to 1993 that attracted at least one such vote, drawing on the papers of Justice Harry A. Blackmun, which contain the most recent publicly available data.

American Original / The Life and Constitution of Supreme Court Justice Antonin Scalia / Author Joan Biskupic

The first full-scale biography of the Supreme Court’s most provocative—and influential—justice

If the U.S. Supreme Court teaches us anything, it is that almost everything is open to interpretation. Almost. But what’s inarguable is that, while the Court has witnessed a succession of larger-than-life jurists in its two-hundred-year-plus history, it has never seen the likes of Supreme Court Justice Antonin Scalia.  . . . Combative yet captivating, infuriating yet charming, the outspoken jurist remains a source of curiosity to observers across the political spectrum and on both sides of the ideological divide. And after nearly a quarter century on the bench, Scalia may be at the apex of his power. Agree with him or not, Scalia is “the justice who has had the most important impact over the years on how we think and talk about the law,” as the Harvard law dean Elena Kagan, now U.S. Solicitor General, once put it. . . . Scalia electrifies audiences: to hear him speak is to remember him; to read his writing is to find his phrases permanently affixed in one’s mind. But for all his public grandstanding, Scalia has managed to elude biographers—until now. In American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia, the veteran Washington journalist Joan Biskupic presents for the first time a detailed portrait of this complicated figure and provides a comprehensive narrative that will engage Scalia’s adherents and critics alike.

The Will of the People

How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution / Author Barry Friedman

In recent years, the justices of the Supreme Court have ruled definitively on such issues as abortion, school prayer, and military tribunals in the war on terror. They decided one of American history’s most contested presidential elections. Yet for all their power, the justices never face election and hold their offices for life. This combination of influence and apparent unaccountability has led many to complain that there is something illegitimate—even undemocratic—about judicial authority. . . . In The Will of the People, Barry Friedman challenges that claim by showing that the Court has always been subject to a higher power: the American public. Judicial positions have been abolished, the justices’ jurisdiction has been stripped, the Court has been packed, and unpopular decisions have been defied. For at least the past sixty years, the justices have made sure that their decisions do not stray too far from public opinion. . . . Friedman’s pathbreaking account of the relationship between popular opinion and the Supreme Court—from the Declaration of Independence to the end of the Rehnquist court in 2005—details how the American people came to accept their most controversial institution and shaped the meaning of the Constitution.

Justice Ginsburg Released From Hospital, Returns to Work

Tony Mauro, The National Law Journal

U.S. Supreme Court Justice Ruth Bader Ginsburg

9-25-09 -- The Supreme Court's public information office released a positive update on Justice Ruth Bader Ginsburg's condition Friday morning: "Justice Ginsburg was released from Washington Hospital Center this morning and plans to be at work at the Court this afternoon." . . . Ginsburg was hospitalized late Thursday afternoon after feeling faint in her chambers, the Court announced. The 76-year-old justice had received an iron sucrose infusion an hour earlier. She was being treated for an iron deficiency detected during an assessment of her health in July. . . . Ginsburg was diagnosed in February with pancreatic cancer. The cancer was detected at an early stage, and she was treated successfully with surgery and chemotherapy. She has appeared vigorous in recent public appearances.

Sotomayor Recounts Getting White House Call in C-SPAN Interview

Tony Mauro, The National Law Journal

9-25-09 -- In what appears to be her first press interview since becoming a Supreme Court justice, Sonia Sotomayor said she waited for 12 hours to get the Memorial Day phone call from President Obama confirming his plan to appoint her to the Supreme Court. When her cell phone finally rang at her New York City home and the White House operator said the president was on the line, "I had my left hand over my chest to calm my beating heart, literally," she said. After Obama told her he had decided to appoint her to the high court, Sotomayor said, "I caught my breath and started to cry and said, 'Thank you Mr. President.' That was what the moment was like."

Her remarkably personal comments came in an interview she gave Sept. 16 to C-SPAN as part of its "Supreme Court Week" documentary series, which begins airing on the cable channel Oct. 4. All 11 sitting and retired justices of the Court agreed to be interviewed -- a notable first-ever accomplishment, given the Court's traditional camera-shy posture toward the news media. Excerpts from the Sotomayor interview were released for use by other media Thursday night.

Poll Tests Public Attitudes About Supreme Court

David Ingram, The National Law Journal

9-25-09 -- Nine years after the U.S. Supreme Court stopped the counting of ballots in Florida, its decision in Bush v. Gore appears to have had some lasting impact on how the public views the justices. . . . A new poll from C-SPAN asked voters whether the ruling affected their view of the Court. A substantial minority, 29 percent, said that the ruling did. And not surprisingly, those who said so saw the ruling as incorrect, as a sham or as an area the justices should have avoided altogether. . . . C-SPAN released the poll results Thursday, as it prepares to air a series of interviews with the justices next month. Click here (pdf) for the poll results and here for more on the interviews.

Would the Supreme Court Strike Down Mandatory Health Insurance?

By Debra Cassens Weiss, ABA Journal

9-24-09 -- Would the U.S. Supreme Court uphold a mandatory health insurance plan? The issue is being debated on blogs and in op-eds, with some big differences of opinion emerging. . . . A proposal to require health insurance for every American is “profoundly unconstitutional,” according to a Wall Street Journal opinion column by two former Justice Department lawyers, David Rivkin Jr. and Lee Casey. . . . The authors say that mandatory health coverage could be grounded in the government’s power to regulate commerce. But the Supreme Court in United States v. Lopez struck down a federal law making it a crime to possess a gun near a school, saying it was not a regulation of economic activity permitted under the commerce clause. Rivkin and Casey argue that a health-care mandate does not regulate economic activity either.

Yankees Welcome United States Supreme Court Justice Sonia Sotomayor to Throw Out Ceremonial First Pitch as Part of Hispanic Heritage Month

New York Yankees Press Release

9-22-09 -- The New York Yankees will hold two special ceremonial first pitches during the team's final regular season homestand to commemorate Hispanic Heritage Month. United States Supreme Court Justice - and Bronx native - Sonia Sotomayor will throw out the game's first pitch on Saturday, September 26, prior to the Yankees' 4:10 p.m. game vs. the Red Sox. Panama President Ricardo Martinelli will do the honor the night before, on Friday, September 25, prior to the Yankees' 7:05 p.m. game vs. Red Sox. . . .On Monday, September 28, the Yankees will conclude their Hispanic Heritage Month celebrations with the on-field presentation of the Yankees' Annual Hispanic Heritage Month Community Achievement Awards prior to the Yankees' 7:05 p.m. game vs. the Royals. . . . "Having Justice Sotomayor, a South Bronx native, participate in our yearly Hispanic Heritage Month celebration is very exciting, as she is an inspiration to so many," said Manuel García, Yankees Director of Latino Affairs. "We are proud to welcome her and President Martinelli to our new home."

The Supreme Court Cert Pool: Sotomayor Joins It,
Lawyers Attack It

Tony Mauro, The National Law Journal

9-22-09 -- As expected, new Supreme Court Justice Sonia Sotomayor has joined the Court's so-called cert pool, at least for now. . . . Court public information officer Kathy Arberg confirmed that Sotomayor is participating in the controversial pooling arrangement, whereby the thousands of incoming certiorari petitions are divvied up among the clerks of the justices who participate. Each petition is read by one of the pool clerks, who writes a memo recommending whether to grant review. The memo is then distributed to the justices in the pool, with the memo often constituting the only morsel of information about the case that the justices read before deciding whether to grant or deny cert. . . . Because of the pivotal role the pool memo plays, the cert pool has been criticized for giving individual clerks too much power in the all-important gatekeeping function. The pool, aimed at streamlining the petition review process, was first instituted in 1972.

How Brandeis, Revered or Hated, Became a Giant of the Supreme Court

By Adam Liptak, The New York Times

9-20-09 -- When Louis D. Brandeis was nominated to the Supreme Court in 1916, he was the most prominent progressive lawyer in the nation. He was rich, outspoken and effective, and he had collected an impressive array of powerful enemies who regarded him as a dangerous radical. . . . Brandeis, 59, had transformed both the business of law and the conduct of appellate advocacy, had taken on private monopolies and public corruption, played a leading role in advancing the American Zionist movement and advised President Woodrow Wilson. He would go on to serve for more than two decades on the Supreme Court, becoming one of its greatest justices and helping create the modern law of free speech and privacy.

Justice Stevens Retirement Watch: An Update

Tony Mauro, The National Law Journal

9-17-09 -- A report on a Newsweek blog this week sent another tremor through the Supreme Court community about the possibility that Justice John Paul Stevens is planning to retire at the end of the upcoming term. The justice had sent an e-mail to all his former law clerks, the report said, inviting them to a clerk reunion next May. This was taken as an unusual move by the justice and a further sign that this term might be his last on the Court. . . . Well, the report of such an e-mail was news to several former Stevens law clerks we contacted, who had not received one. Other law clerks did receive an e-mail, but not from Stevens or his chambers. Instead, it was from another former clerk who was apprently in the early stages of spreading the word about a reunion in May.

Kennedy Memoir Shows Animosity Toward Rehnquist

David Ingram, The National Law Journal

9-17-09 -- The passage of time did not soften Sen. Edward Kennedy's hostility toward Chief Justice William Rehnquist, if Kennedy's memoir is any indication. . . . Kennedy, in a memoir published posthumously this week, argues that Rehnquist might not have been confirmed as an associate justice in 1971 if the Senate hadn't refused to confirm two of President Richard Nixon's earlier Supreme Court nominees. The Senate, he writes, had "institutional reluctance to repudiate a president a third consecutive time." . . . "The unfortunate result was, in my opinion, a justice whose record was disqualifying on its face," Kennedy writes in True Compass.

The 'Citizens United' Argument, by the Numbers

Tony Mauro, The National Law Journal

9-14-09 -- Supreme Court scholars and others -- including Chief Justice John Roberts Jr. -- have pointed to some statistical research about oral arguments that seems too simple to be accurate. Namely, if you want a good predictor of how a case will turn out, count up the questions from justices aimed at each side. Much more often than not, the party that gets the most questions loses. . . . "The hypothesis is strongly supported," said Lee Epstein, William Landes and Richard Posner in a law and economics paper recently published on SSRN and available here. It's not just a matter of more questions being needed to probe a weaker case, they concluded, but also a function of strategies by certain justices about the best way to persuade their colleagues to join their side.

The Trial of John Roberts

By Jeffrey Rosen, Op-Ed Contributor, NY Times

9-12-09 -- FOUR years ago, when John Roberts became chief justice of the United States, he said that he hoped to emulate the modesty and unanimity of his greatest predecessor, John Marshall. But if Chief Justice Roberts presides over a broad, ideologically divided ruling in a campaign finance case the court heard last week, he risks being remembered instead as a conservative Earl Warren. . . . For decades conservatives have attacked Warren, who was chief justice from 1953 to 1969, as the face of liberal judicial activism. They have criticized him for presiding over a court that imposed a contested vision of social justice on an unwilling nation — overturning decades of precedents and scores of federal and state laws in the process. . . . Moreover, conservatives view Warren as a Machiavellian former politician (he had been governor of California) who used incremental strategies to pursue radical ends — handing down a series of cautious decisions that favored the police, for example, and then tying their hands by requiring officers to read suspects their rights in the 5-to-4 Miranda decision of 1966.

SG Dumped Traditional Morning Coat, Wore Pantsuit of Unknown Design

By Debra Cassens Weiss, ABA Journal

9-11-09 -- Solicitor General Elena Kagan ended a tradition on Wednesday when she made her first Supreme Court argument without wearing a formal morning coat. . . . Kagan opted instead for “a dark suit and an open-necked sky-blue blouse,” the Washington Post reports in a column by Al Kamen. . . . Some other publications had differed on the colors of the solicitor general's attire. In response to a query by Above the Law, Kagan confirmed that the color of her blouse was light blue and her pantsuit was black, but refused to name the pantsuit designer. ("Does anyone think we can find out SG Kagan’s designer of choice via a FOIA request?" Above the Law wondered.)

A Record 50% of Americans Say Supreme Court Is ‘About Right’ Ideologically

By Debra Cassens Weiss, ABA Journal

9-9-09 -- A new Gallup poll finds half of Americans believe the court is “about right” ideologically, an all time high and an increase of 7 percentage points over last year. . . . Sixty-one percent of Americans surveyed approve of the job done by the U.S. Supreme Court, the highest level since 2001, when the court had an approval rating of 62 percent, Gallup reports. . . . The higher ratings are the result of a surge in approval from Democrats and slightly improved ratings from independents, Gallup concludes. Fifty-nine percent of Democrats say the court is “about right” ideologically, up from 34 percent in 2008. Forty-six percent of independents say the court is about right, an increase of 6 percentage points over last year, and 42 percent of Republicans view the court as about right, a decrease of 12 percentage points.

Sotomayor Takes Her Seat on Supreme Court

Tony Mauro, The National Law Journal

9-9-09 -- With President Barack Obama and Vice President Joe Biden watching, new Supreme Court Justice Sonia Sotomayor formally took her seat on the Court Tuesday afternoon as Chief Justice John Roberts Jr. wished her a "long and happy career in our common calling." A beaming Sotomayor, joined in the courtroom by family, friends and a star-studded list of legal heavyweights, said, "Thank you" and the brief but historic investiture ceremony was over. . . . Minutes later, having shed their black judicial robes, Sotomayor and Roberts walked out of the front door of the Court in business clothes and down its marble stairs to give press photographers one of their last chances to snap her picture before she takes up the work of the mainly camera-shy institution.

Supreme Court Opens Up to C-SPAN

Tony Mauro, The National Law Journal

9-8-09 -- A new justice joining the Supreme Court is something of a mixed blessing, it turns out. While Chief Justice John Roberts Jr. called it "an exciting part of life at the Court," Justice Clarence Thomas noted, "You have to start all over; the chemistry is different," and Justice Anthony Kennedy added, "It's stressful for us, because we so admire our colleagues." . . . These comments and more will be aired starting Oct. 4 on C-SPAN, part of a weeklong series of programs on the Court that resulted from unusual access to the Court and to the justices for the public affairs cable channel. All the sitting justices except Sonia Sotomayor (she had not been confirmed when the taping was taking place) plus retired Justice Sandra Day O'Connor gave interviews for the series. C-SPAN has posted video excerpts here on YouTube. The shows, produced by Mark Farkas, also will offer footage inside the Court building, including rare glimpses of the justices' robing room, their private dining room, and even some of their chambers. Court officials, historians and journalists are also interviewed.

In Revealing New Memoir, a Friend Remembers Rehnquist
Tony Mauro, The National Law Journal

9-8-09 -- A soon-to-be-published memoir by a friend of the late Chief Justice William Rehnquist offers a revealing personal glimpse of the justice's later years, including his handling of the impeachment trial of President Bill Clinton in 1999, the Bush v. Gore case of 2000 and Rehnquist's own unsuccessful battle with cancer in 2004 and 2005. . . . The author is former newspaper publisher Herman Obermayer, who lived with his wife near Rehnquist in Arlington, Va., and either played tennis, dined or watched a movie with Rehnquist nearly every weekend in the years after Rehnquist's wife died in 1991. . . . "He was quite a unique man. People didn't know him," said Obermayer in an interview last week. "He was very funny, in a sophisticated way; he would have enjoyed a dinner party with Oscar Wilde or Noel Coward, but not Jay Leno." . . . The book, published by Simon & Schuster, is called "Rehnquist: A Personal Portrait of the Distinguished Chief Justice of the United States." Obermayer is 84, born 12 days earlier than Rehnquist, who died in September 2005.

Justices Discuss A Changing Court

Interviews With C-SPAN Reveal Tight Bonds Despite Deep Divisions

By Robert Barnes, Washington Post Staff Writer

9-4-09 -- How seriously do they take change over at the Supreme Court? Very seriously. . . . It's not that the justices won't welcome Sonia Sotomayor as one of The Nine. But it sounds as if the prospect of a third new justice in four years is a bit traumatic -- even to one of the new justices. . . . "To some extent, it's unsettling," Chief Justice John G. Roberts Jr. told C-SPAN as part of a series of broadcasts the network plans about the court. "You quickly get to view the court as . . . composed of these members, and it becomes kind of hard to think of it as involving anyone else. I suspect it's like people look at their families." Roberts is approaching his fourth anniversary on the court. . . . "It's stressful for us because we so admire our colleagues," added Justice Anthony M. Kennedy. "We wonder, oh, will it ever be the same?"

After Striking Out With Ginsburg, Attorney for Catholic Diocese Tries Scalia

Tony Mauro, The National Law Journal

9-4-09 -- If at first you don't succeed, try another Supreme Court justice. That's what Mayer Brown's Philip Lacovara did on behalf of his client, the Roman Catholic Diocese of Bridgeport, Conn., in seeking to delay release of thousands of pages of documents in sexual abuse cases brought against priests over the last decade or so. . . . The New York Times and other news organizations sought and won an order from the Connecticut Supreme Court to release the discovery documents in the aftermath of a settlement in the cases -- in 2001. After years of litigation over the issue, the court ruled in June in favor of the media request, citing the state's common law right of access.

Justice Stevens Slows His Hiring at High Court, Fueling Retirement Speculation

Mark Sherman, The Associated Press, Law.com

9-2-09 -- Supreme Court Justice John Paul Stevens has hired fewer law clerks than usual, generating speculation that the leader of the court's liberals will retire next year. . . . If Stevens does step down, he would give President Barack Obama his second high court opening in two years. Obama chose Justice Sonia Sotomayor for the court when Justice David Souter announced his retirement in May. . . . Souter's failure to hire clerks was the first signal that he was contemplating leaving the court. . . . Stevens, 89, joined the court in 1975 and is the second-oldest justice in the court's history, after Oliver Wendell Holmes. He is the seventh-longest-serving justice, with more than 33 years and eight months on the court.

August 2009

Scalia Reportedly Upset at Suggestion His Judging Is Influenced by Religion

By Debra Cassens Weiss, ABA Journal

8-28-09 -- A University of Chicago law professor who has questioned whether the Supreme Court’s conservative justices are influenced by their Catholic religion says Justice Antonin Scalia is upset by the suggestion. . . . University of Chicago law professor Geoffrey Stone, the school’s former dean, writes in the Huffington Post that he raised the issue several years ago in an article about the court’s 5-4 vote in Stenberg v. Carhart. Stone questioned whether the five justices distinguished a prior ruling on grounds that weren’t persuasive because they were Catholics.

High Court Justices Among Those Paying Tribute
to Sen. Kennedy

Tony Mauro, The National Law Journal

8-27-09 -- The Supreme Court on Wednesday issued a pair of statements on the death of Sen. Ted Kennedy, D-Mass. -- one from Chief Justice John Roberts Jr., and the other from Justice Stephen Breyer, who worked for Kennedy 30 years ago as chief counsel to the Senate Judiciary Committee. Kennedy pushed for Breyer's nomination to the high court in the early 1990s, and opposed Roberts' nomination in 2005. . . . Said Roberts: "I am very saddened by Senator Kennedy's passing. He was -- all his life -- a sincere, dedicated, and tireless public servant." . . . Breyer's statement: "The country has lost a great senator. We who worked for him remember and will always cherish his practical wisdom, his sense of humor, his determination, and his love of his country and its history. He was dedicated to helping others. Our hearts go out to Vicki and to his family. Senator Kennedy was a great American."

Souter Blocks Access to His Papers for 50 Years

Tony Mauro, The National Law Journal

8-27-09 -- The New Hampshire Historical Society has announced that retired Supreme Court Justice David Souter is donating his personal and professional papers to the society. But don't book travel to New Hampshire quite yet to take a peek; Souter has placed an extraordinarily long restriction on public access to his papers, barring anyone -- researchers, historians, friends, journalists -- from viewing the material for 50 years. That's a lengthier seal than any justice has placed on papers in recent memory. . . . The unusually severe bar on access is surprising in one sense, but very Souter-esque in another. Souter is an avid historian -- in fact joining the board of trustees of the New Hampshire Historical Society as part of the announcement of his decision to donate his papers there. He knows well the "call of history," the obligation of historical figures and public officials to help flesh out the how and why of important events.

Justice O'Connor Presents the Supreme Court,
Middle School Edition

Tony Mauro, The National Law Journal

8-25-09 -- Retired Supreme Court Justice Sandra Day O'Connor's "Our Courts" Web site, aimed at middle-school students, has gone live with two interactive animated games that will, she hopes, engage young people in learning about and appreciating the role of courts in their daily lives. . . . The game that engaged us the most was Supreme Decision, in which a hypothetical female swing-vote justice -- hmm, who might that be? -- asks you, the player, to help her reach a decision in a First Amendment case, Ben v. Hamilton Middle School. The dispute involves a student barred from wearing a t-shirt bearing the name of his favorite band, called "Hall of Rejects." After brief arguments on both sides, the swing justice, named Irene Waters, comes out of the Court's conference to seek research help from her law clerk -- that would be you -- on how to decide the case. You then get to listen to mini-debates between justices on each side of the issue, answer questions about their views, and then vote which side to support. The issues imbedded in the dispute are well-explained and presented in an interesting way.

Newly Released Documents Show Rehnquist's Private Side

Tony Mauro, The National Law Journal

8-24-09 -- In the dark days after he announced that he was suffering from thyroid cancer in late October 2004, Chief Justice William Rehnquist's in-box filled up with anxious notes from his colleagues. . . . "Top priority at Court," wrote Justice Ruth Bader Ginsburg, is "to have our Chief back with us, steadily on course toward a cancer-free future." . . . Justice David Souter reported to the chief that, after an overly long discussion among the justices of a minor case in Rehnquist's absence, "I could hear Tony [Kennedy] muttering under his breath, 'Five minutes on [the case]. The chief better get back here fast.'" Souter added, "That's certainly the sense of the Court as we all pull for you in your ordeal."

A Peek Into the Second Batch of Rehnquist Papers

Tony Mauro, The National Law Journal

8-21-09 -- Last November, the first segment of the extensive collection of the late Chief Justice William Rehnquist's papers became public at the Hoover Institution Archives at Stanford University. It was a small batch, limited by Rehnquist's stipulation that no files about specific cases be released during the lifetime of any other justice serving at the time. With Justice John Paul Stevens, who joined the Court in 1975, still alive, that meant only the case files from Rehnquist's arrival at the Court in 1972 until 1975 could be released. . . . But within the last few weeks, and without fanfare, the archives allowed public access to the next batch -- no case files, but an extensive compilation of Rehnquist's correspondence with justices and with others as recently as 2005, the year he died in office. The material offers a glimpse at the inner workings of the Court and of Rehnquist's own dealings with other justices as an associate and then chief justice.

Lawyers, Journalists Ask U.S. Supreme Court to Review Voir Dire Closing

R. Robin McDonald, Fulton County Daily Report

8-20-09 -- The Georgia Association of Criminal Defense Lawyers and a national journalists' rights group are backing a convicted drug defendant who has asked the U.S. Supreme Court to review a Georgia high court decision upholding the closure of jury selection to the public. . . . Saying that courts across the nation have "chipped away" at the public's right to observe the selection of jurors in criminal trials, despite a string of U.S. Supreme Court rulings largely affirming that right, Georgia's defense lawyers have filed a friend-of-the-court brief urging the high court to hear the appeal of Eric Presley, who was convicted in DeKalb County Superior Court in 2006. . . . The Reporters Committee for Freedom of the Press has filed a separate amicus brief in support of Presley. The committee argues that the Presley case concerns an issue "critical to the media specifically and the public in general: whether a court may exclude the public from voir dire for the sake of administrative convenience, without considering any alternatives and without identifying a specific overriding interest in secrecy that overcomes the presumption of public access to the courts."

Split Supreme Court Orders Review of Death Row Inmate's Claims That Witnesses Recanted Testimony

Alyson M. Palmer, Fulton County Daily Report

8-18-09 -- The case of Troy Anthony Davis took another extraordinary turn on Monday as the U.S. Supreme Court ordered a federal district judge to hear testimony on the death row inmate's claims that he did not murder a Savannah, Ga., police officer. . . . Justice Antonin Scalia said in a dissent that the high court hadn't made a similar move in nearly 50 years. . . . The decision was welcomed by supporters of Davis, who for years have claimed that prosecution witnesses have recanted their testimony from the 1991 trial in which a jury condemned Davis to die for the 1989 killing of Officer Mark Allen MacPhail. . . . Georgia Attorney General Thurbert E. Baker, whose office has fought Davis' efforts to gain relief, issued a measured response to the ruling, saying simply that he hoped the hearing would resolve doubts about the case.

High Court Cert Petition Argues Judges Should Decide Patent Validity

Andrew Longstreth, The American Lawyer

8-18-09 -- A petition for certiorari (pdf) filed last week at the U.S. Supreme Court ought to get the IP bar buzzing. It challenges an aspect of patent litigation that's become almost automatic: trial before a lay jury. Here's how Fried, Frank, Harris, Shriver & Jacobson partner James Dabney, who represents the petitioner, puts the question to the high court: "Whether a person accused of patent infringement has a right to [an] independent judicial, as distinct from lay jury, determination of whether an asserted patent claim satisfies the 'non-obvious subject matter' condition of patentability." . . . Trial by jury, the petition notes, wasn't always the near-certainty it is now in patent infringement cases. A chart on page 26 of Dabney's filing shows that in the early 1980s, when the U.S. Court of Appeals for the Federal Circuit was created, less than 20 percent of patent cases were tried to a jury. By 2000, the share of jury trials had skyrocketed to over 70 percent.

Supreme Court Orders Hearing on Death-Row Inmate’s Innocence Claim

By Debra Cassens Weiss, ABA Journal

8-17-09 -- A death-row inmate who claims the Eighth Amendment bars his execution because he is innocent of the crime will get a hearing before a federal district judge, thanks to intervention by the U.S. Supreme Court.

In an unusual order issued today, the U.S. Supreme Court told a Georgia federal judge to hear the claim of actual innocence by Troy Anthony Davis, SCOTUSblog reports. The U.S. Supreme Court had denied cert in Davis’ case in October. Seven of nine witnesses at Davis’ trial for killing a police officer have recanted their testimony, and the case has attracted international attention. . . . Justices Antonin Scalia and John Paul Stevens issued dueling opinions on the propriety of the order, the Atlanta Journal-Constitution reports. Scalia, joined by Justice Clarence Thomas, argued in a dissent that the federal judge won’t be able to grant relief under a 1996 law restricting habeas review of state convictions.

Squabble Ensues Over Argument Time in Supreme Court 'Citizens United' Case

Tony Mauro, The National Law Journal

8-17-09 -- Another lawyer is seeking argument time in the intensely anticipated Sept. 9 Supreme Court hearing on the campaign finance case Citizens United v. Federal Election Commission. Noted First Amendment lawyer Floyd Abrams of New York's Cahill Gordon & Reindel has filed a motion seeking to share or expand former Solicitor General Theodore Olson's time in arguing against the FEC. For his part Olson, now with Gibson, Dunn & Crutcher, is having none of it; he opposes Abrams' motion. (Hat Tip to Election Law Blog, which first noted the docket entry.) . . . The motion and response are on file at the Court, and we've taken a look at both strongly worded documents. Abrams represented Sen. Mitch McConnell, R-Ky., the leading opponent of the McCain-Feingold campaign finance law, in the McConnell v. FEC case six years ago, and he is representing McConnell again. The senator, Abrams contends, is "uniquely qualified" to address one of the questions the Court wants answered in the Sept. 9 reargument of Citizens United, namely whether the part of the McConnell decision upholding the ban on corporate spending for electioneering communications should be overruled.

Justice Stevens Makes Former Clerk an Offer
She Can't Refuse

Tony Mauro, The National Law Journal

8-17-09 -- It was no surprise that Amanda Cohen Leiter missed the first few phone calls from her former boss, Justice John Paul Stevens, this summer. Leiter, a 2003-2004 Stevens clerk and now a professor at Catholic University's Columbus School of Law, is on maternity leave with her baby daughter. . . . But Stevens and Leiter finally connected, and he made her a surprising offer: a chance to make her first oral argument before the Supreme Court. Even though, as she acknowledged, "the timing is imperfect," Leiter said yes, and so now she is busy briefing and preparing for the oral argument in November in the case of Kucana v. Holder. . . . The case came to Leiter the same way that John Roberts Jr. and Maureen Mahoney got their first arguments: on assignment from the justices they had clerked for, in cases in which one side no longer wants to, or cannot, argue before the Court. (We wrote about the custom here last year.)

Souter Returns to the Granite State

Retired justice rejects D.C. office space, sets up new life in New Hampshire

Tony Mauro, The National Law Journal

8-17-09 -- Six weeks after retiring from the U.S. Supreme Court, Justice David Souter's new life is taking shape -- a New Hampshire life that will keep him away from Washington as much as humanly possible. . . . Unlike many retired justices who keep chambers at the Supreme Court or at the nearby Thurgood Marshall judicial building, Souter will not have an office in Washington, Supreme Court spokeswoman Kathy Arberg confirms. The law clerk and secretary to which he is entitled as a retired justice will operate out of the Court. But Souter himself is already using an office at the federal courthouse in Concord, N.H., where he's had summer chambers since he joined the Supreme Court in 1990. The difference now is that he won't be returning to Washington when the Court's recess is over. . . . "It's like any other summer, except longer," said James Starr, longtime clerk of the U.S. District Court for the District of New Hampshire. "It's very nice to have him here."

At O'Connor's core is an Arizona cowgirl

by Linda Valdez, The Arizona Republic

8-15-09 -- The neatly coiffed white hair, the trim figure and the purposeful demeanor are instantly recognizable. . . . As Sandra Day O'Connor pulls into the driveway of her Paradise Valley home and steps out of her car, she reflects the public image of the first woman to sit on the U.S. Supreme Court. . . . But the retired justice is more than what she seems. . . . She is both rock star and romance coach, unflappable in the television studio with Jon Stewart and creative in writing children's books. And with her strong voice, she continues to advocate for causes that she believes are important to her state and her country. . . . And last week, President Barack Obama presented her the Medal of Freedom.

'Bilski' Amicus Briefs Already Piling Up at the Supreme Court

Ross Todd, The American Lawyer

8-11-09 -Newly sworn-in U.S. Supreme Court Justice Sonia Sotomayor already has plenty of reading ahead of her: Dennis Crouch at the Patently-O blog on Monday posted 43 amicus briefs already filed in the advance of next term's oral arguments in Bilski v. Doll -- the case that will determine the standard for "business method" patents. And Crouch has provided a capsule summary of each of them. . . . In June, the Supreme Court agreed to hear Bernard Bilski's appeal of the Federal Circuit ruling that established a controversial "machine or transformation" test for business method patents. (Bilski's application for a patent on a method to hedge risk in commodities trading was rejected by the U.S. Patent and Trademark Office, which is represented at the Supreme Court by the U.S. Solicitor General.) Bilski, of course, wants the Court to adopt a more expansive test for business method patents. All of the amicus briefs at Patently-O support Bilski (or support neither side); the government's reply brief is due September 27 and briefs in support of its position are due seven days later.

Change of Venue: In Retirement, Justice O'Connor Still Rules

By Jess Bravin, The Wall Street Journal

8-11-09 -Sonia Sotomayor just became the third woman to move from the appellate bench to the U.S. Supreme Court. The first woman on the nation's highest court has gone in the opposite direction. . . . Though she retired in 2006 to look after her ailing husband, Justice Sandra Day O'Connor is still out there judging. Unbeknown even to some of her former colleagues on the Supreme Court, the 79-year-old jurist has been visiting federal appellate courts across the country, filling in as a substitute judge when vacations or vacancies leave their three-member panels understaffed. . . . "It's nice to keep your hand in a bit," she said in an interview in the chambers she still keeps at the Supreme Court. . . . As a substitute judge, Justice O'Connor has heard nearly 80 cases and written more than a dozen opinions. In her 24-year Supreme Court tenure, she often provided the pivotal vote on such issues as abortion, affirmative action and religious freedom. Nowadays, she decides such matters as whether a drug dealer could escape punishment because a search warrant listed one household trash can instead of two.

Democrats Take Aim at Supreme Court Decisions

Congressional Democrats hope to undo several high-profile Roberts Court decisions

David Ingram, The National Law Journal

8-10-09 -- The debate over Sonia Sotomayor's confirmation to the U.S. Supreme Court took place against a backdrop of tension between the Democratic Congress and Sotomayor's new colleagues. . . . Since January, Democratic lawmakers have pushed legislation that would reverse the effects of several recent high-profile decisions, many of them driven by the Court's five-member conservative majority. The Democrats want to allow state tort lawsuits over medical devices, restore a per se ban on vertical price-fixing, lower the standard for pleadings in civil suits and allow suits against aiders and abettors of securities fraud, to name only a few proposals. . . . The bills have little in common except that they would all override the Supreme Court's interpretations of law. Each bill is an expression of liberals' frustration with the direction of the Roberts Court -- and their hopes for Sotomayor.

Off the Bench, Souter Leaves Farmhouse Behind

By Katie Zezima, The New York Times

8-3-09 -- When he retired from the Supreme Court in June, it was expected that Justice David H. Souter would return to his beloved family farmhouse in Weare, N.H., a rustic abode with peeling brown paint, rotting beams and plenty of the solitude he desired. . . . But Justice Souter, an individualist on and off the bench, decided to move. . . . On July 30, he bought a 3,448-square-foot Cape Cod-style home in neighboring Hopkinton listed at $549,000. The single-floor home, for which he paid a reported $510,000, sits on 2.36 well-manicured acres. . . . While Justice Souter’s new home is only eight miles from the farmhouse, the two could be worlds apart. The farmhouse has no phone lines; the Hopkinton house has “multiple,” according to the real estate listing. The farmhouse’s lawn was spotted with brown; the Hopkinton house has a verdant lawn and neatly trimmed hedges. And for Justice Souter, 69, who is known to be a fitness buff, there is a home gym as well as a spa bath. . . . Justice Souter told a Weare neighbor, Jimmy Gilman, that the two-story farmhouse was not structurally sound enough to support the thousands of books he owns, according to The Concord Monitor, and that he wished to live on one level.

Supreme Court Asked to Take Certified Question for Only Fifth Time in Six-Plus Decades

Marcia Coyle, The National Law Journal

8-3-09 -- A federal appellate court recently focused attention on a rare method of obtaining review by the U.S. Supreme Court when it certified a question to the justices in the high-profile prosecution (pdf) of James Ford Seale for the 1964 kidnapping-murder of two black teenagers. . . . The question that troubled the 5th U.S. Circuit Court of Appeals: Although Seale committed the crime in 1964, he was not prosecuted until 2007. Did the law require the prosecution for kidnapping within five years of the crime, or is there no time limit? A three-judge panel of the 5th Circuit ruled last September that because of changes in the law in 1972, the clock ran out on the government's prosecution of Seale. . . . Voting en banc, the 5th Circuit divided evenly on the question, and then voted 12-6 to certify it to the Supreme Court. The "certificate of question" was filed Thursday. . . . Seale actually sought certification of the question versus going straight to the high court with a petition for review, noted professor Steve Vladeck of American University Washington College of Law.

Supreme Court Appoints Advocate to Argue Immigration Case

Tony Mauro, The National Law Journal

8-3-09 -- As we reported here last year, one of the little-known paths a lawyer can take to achieving the goal of arguing before the Supreme Court comes when a party decides it no longer wants to argue in favor of or against a lower court decision that is on appeal. When that happens, half the case falls away, so to speak. The Supreme Court, if it still wants an airing of the issue at stake, then appoints a lawyer -- almost always a former law clerk to a justice -- to advance the now-orphaned argument. . . . It happens rarely, once every year or so, and it happened again Thursday. The Court issued an order Thursday appointing Amanda Leiter, a professor at Catholic University's Columbus School of Law and former clerk to Justice John Paul Stevens, to argue in favor of the decision below in an immigration case, Kucana v. Holder. Ordinarily, since the U.S. government is the respondent, the solicitor general's office would be making that argument. But Solicitor General Elena Kagan in her brief in the case agreed with petitioner Agron Kucana, an Albanian facing deportation, that the 7th U.S. Circuit Court of Appeals was wrong. With no one supporting the 7th Circuit, the Court appointed Leiter.

July 2009

Lower Courts Have Cited Little-Noticed 9-11 Decision 500 Times

By Debra Cassens Weiss, ABA Journal

7-21-09 -- The U.S. Supreme Court’s May decision against a cable TV installer suing over his Sept. 11 detention may have gotten little notice from the public, but it has gotten the attention of the lower courts. . . . Judges have cited the decision on federal pleading standards in civil lawsuits 500 times in just the last two months, the New York Times reports. The decision, Ashcroft v. Iqbal, held that Pakistani citizen Javaid Iqbal’s conclusory assertions that his detention was motivated by bias were insufficient to sustain a lawsuit. Instead, more factual enhancement is needed, the opinion said. . . . “Something much deeper and broader was going on in the decision, something that may unsettle how civil litigation is conducted in the United States,” the Times story says. The article cites dissenting Justice Ruth Bader Ginsburg, who told federal judges last month that, in her view, the majority ruling "messed up the federal rules" governing civil litigation.

Might it happen? Slaughterhouse overruled?

Lyle Denniston | SCOTUSblog

Analysis

7-20-09 -- For generations, lawyers, judges and constitutional scholars across the spectrum have debated whether the time would come for the Supreme Court to cast aside one of history’s most controversial rulings — the 5-4 decision in 1873 in the Slaughterhouse Cases.  In that ruling, the dissenters claimed — and modern critics still complain — that the Court had made the Fourteenth Amendment’s Privileges and Immunities Clause into “a vain and idle enactment.” . . . Despite a brief revival of the Clause as a curb on state power to restrict individual rights, in the 1999 decision in Saenz v. Roe involving “the right to travel,” that part of the Fourteenth Amendment’s Section 1 has remained close to a constitutional dead letter.  (It reads: “No State shall make or enforce any law which shall abridge the privileges or immnities of citizens of the United States.”) . . . In 1873, the Court said the Clause only restricted state laws affecting rights of national citizenship, not those affecting the rights of state citizens.  Among others who have argued in recent years that the Court should rethink the Slaughterhouse Cases, Justice Clarence Thomas is the most prominent.  He did so in a dissent in Saenz v. Roe, saying that, “in an appropriate case,” he would be open to reevaluating the meaning of the Clause.

Columnist Hits Justice Ginsburg for ‘Simplistic, Pro-Choice Rant’

By Debra Cassens Weiss, ABA Journal

7-17-09 -- Justice Ruth Bader Ginsburg’s recent comments about the right to abortion and concerns about population growth have provoked an op-ed columnist, who sees suggestions of eugenics in the “simplistic, pro-choice rant.” . . . Writing in the Washington Post, columnist Michael Gerson focuses on this portion of an interview Ginsburg gave to the New York Times Magazine: . . . “Interviewer: If you were a lawyer again, what would you want to accomplish as a future feminist legal agenda? . . . “Ginsburg: Reproductive choice has to be straightened out. There will never be a woman of means without choice anymore. That just seems to me so obvious. The states that had changed their abortion laws before Roe [v. Wade] are not going to change back. So we have a policy that affects only poor women, and it can never be otherwise, and I don’t know why this hasn’t been said more often. . . . “Interviewer: Are you talking about the distances women have to travel because in parts of the country, abortion is essentially unavailable, because there are so few doctors and clinics that do the procedure? And also, the lack of Medicaid for abortions for poor women?

It's Still Kennedy's Court, Say Supreme Court Practitioners

Jordan Weissmann, The National Law Journal

7-8-09 -- For all the talk of Chief Justice John Roberts Jr. slowly guiding it rightward, the Supreme Court still belongs to Justice Anthony Kennedy. . . . That was the consensus Monday afternoon among a panel of the country's top Supreme Court advocates, hosted at the Georgetown University Law Center by Legal Times and The National Law Journal. . . . The panel, moderated by The National Law Journal's own Tony Mauro, touched on topics ranging from life at the Solicitor General's Office, where panel member Neal Katyal recently became deputy solicitor general, to the departure of Justice David Souter. . . . When it came to the topic of which justice dominated the Court this term, the group was totally in concert. . . . Roberts and his fellow conservatives are "going just as far to the right, and just as fast, as Justice Kennedy will let them," said Pamela Harris, executive director of Georgetown's Supreme Court Institute, who while of counsel at O'Melveny & Myers this year argued the First Amendment case Pleasant Grove City v. Summum (pdf).

Roberts Court Takes Narrow Road to Right

Decisions suggest chief justice may be slow-playing the Supreme Court's march to the right

Tony Mauro, The National Law Journal

7-7-09 -- Just before the U.S. Supreme Court recessed for the summer last week, Chief Justice John Roberts Jr. was asked which decision, other than Marbury v. Madison and Brown v. Board of Education, has had "monumental consequence." . . . Without hesitation, speaking at the judicial conference of the 4th U.S. Circuit Court of Appeals, Roberts picked the reviled Dred Scott decision of 1857, which upheld slavery in the territories. . . . Roberts quickly made it clear he thought Scott v. Sandford was "terribly wrong," but he cited it because it offered a crucial lesson in what the Supreme Court should not do. . . . With other branches of government failing to deal with slavery, Roberts said, Chief Justice Roger Taney decided, "I'm going to solve it" and committed a "self-inflicted wound." Instead, Roberts suggested, the Court should have decided the case on "much narrower grounds, which would have preserved the Court above the fray." . . . Roberts, who has made a project of learning about his predecessors since becoming chief justice in 2005, seems to have applied the Taney lesson to his own leadership of the Supreme Court this term -- narrow decisions, mostly above the fray.

"Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court.

Book Review From Publishers Weekly
Pulitzer-winning historian Burns gives a brisk, readable tour of the history of the appointment of Supreme Court justices since 1789. In this respect, the book is fresh and compelling. But Burns (Running Alone) has another aim. Particularly aggrieved by the Rehnquist and Roberts courts, he argues that every president since Washington has sought to fill the Court with justices who think as he does; that judicial review is unconstitutional; that the unelected Court has never been politically accountable to the American people;and that a courageous president (like Barack Obama, he suggests) should simply announce that, like Andrew Jackson, he won't abide by Supreme Court rulings that invalidate laws enacted by Congress and signed by him. Known for the liberal flags he flies, Burns runs up the radical pennant here. There's no evidence that the American people are as aggrieved over the Court as Burns is. And the term packing should be reserved, as until now it has been, for extreme manipulative efforts like FDR's. This is a terrific little book—save for its politics run amok. (June) / Copyright © Reed Business Information, a division of Reed Elsevier Inc. All rights reserved.

High Court Losses Stun Environmentalists

Environmentalists are 0-for-5 at the Supreme Court this term

Marcia Coyle, The National Law Journal

7-1-09 -- Environmentalists suffered a stunning 0-for-5 outcome in the U.S. Supreme Court this term, their "worst term ever," according to advocates and scholars. . . . The defeats left the environmental community -- and even its traditional antagonist in these cases, the business community -- wondering where the Court is heading in this increasingly important area of the law. . . . Is the Roberts Court pro-business, anti-environment, pro-government -- or something else? Their answers are as varied as the issues raised in the five cases that the justices decided. . . . What is clear is the Court's heightened interest in environmental law. The justices have decided 15 cases in just the past five terms, but in none of those terms, in fact in none of the past nine terms, have environmentalists experienced a complete shutout. . . . "This has never, I believe, happened before, and this includes some big wins," said Richard Lazarus, co-director of the Georgetown University Law Center Supreme Court Institute, who argued and lost one of the five decisions this term.

June 2009

Justices Rule in Firefighters Bias Case, Bid Farewell to Souter

Tony Mauro, The National Law Journal

6-30-09 -- In a dramatic ending before it recessed for the summer, the U.S. Supreme Court on Monday ruled, 5-4, that the city of New Haven, Conn., violated the civil rights of white and Hispanic firefighters when it tossed out the results of a promotion exam after no African-Americans had passed it. . . . The city argued it discarded the results because it feared that it would be sued by the African-American applicants for violating Title VII by relying on a test that had "disparate impact" on minorities. That justification did not meet the Court's standard announced on Monday, which requires a "strong basis in evidence" before an employer can make employment decisions based on fear of Title VII liability. The Court said instead that the city's action was based on race and amounted to a "disparate treatment" violation of the same civil rights law. . . . The ruling in Ricci v. DeStefano (pdf), written by swing Justice Anthony Kennedy, was immediately denounced by civil rights advocates as a blow to employers, public and private, who are trying to equalize job opportunities for minorities. "We still have far to go to fulfill Title VII's promise of equal employment opportunity. This is a giant leap backward," said Sarah Crawford of the Lawyers' Committee for Civil Rights Under Law. "The Supreme Court's interpretation imposes new burdens on employers and makes it more difficult to maintain a discrimination-free workplace," said John Payton, president of the NAACP Legal Defense and Educational Fund.

High Court Rules States Can Enforce Fair Lending Laws

Marcia Coyle, The National Law Journal

6-30-09 -- State attorneys general won a major turf war in the U.S. Supreme Court on Monday as the justices held that states may enforce their anti-discrimination and consumer protection laws against national banks. . . . The high court, in a 5-4 ruling, struck down a regulation issued by the chief federal regulator of national banks that pre-empted the states' power to enforce those laws. Justice Antonin Scalia, writing for the majority, said the regulation was an unreasonable interpretation of the National Bank Act. . . . "This is important because the federal government has not historically enforced these state consumer-protection and fair-lending laws. States have," said David Frederick, a partner at Washington's Kellogg, Huber, Hansen, Todd, Evans & Figel who filed an amicus brief supporting the states on behalf of the National Association of Realtors. "This decision affirms the critical role states play here." . . . The case -- Cuomo v. Clearing House Association (pdf) -- was followed closely not only by the banking industry but by major civil rights and consumer organizations, and public and private state regulatory groups.

Supreme Court takes Weyhrauch mail-fraud issue

APPEAL: Lawyer says decision deals "serious blow" to federal case.

By Erika Bolstad, Anchorage Daily News

6-29-09 -- The U.S. Supreme Court on Monday agreed to hear an appeal by former Alaska Rep. Bruce Weyhrauch that prosecutors shouldn't be allowed to say he cheated Alaska's citizens when he secretly sought work from the oil-field service company Veco during the 2006 legislative session. . . . In accepting Weyhrauch's pretrial review, the court said it will look at one specific area: whether prosecutors must prove Weyhrauch violated a state disclosure law to convict him on federal mail fraud statutes. The federal law makes it illegal for public officials to use the mails to defraud the public out of their honest services. . . . Weyhrauch, awaiting trial on federal corruption charges, asked the Supreme Court to overturn an appeals court decision that directly applied the federal mail fraud statute to his case. At issue is one count in Weyhrauch's 2007 indictment where he is accused of mail fraud for seeking post-session work from Veco at the same time Veco was pushing back on an oil-tax bill in 2006. Weyhrauch argued that because his conduct was legal under state law, it shouldn't be illegal under the federal mail fraud statute. His argument prevailed in U.S. District Court, but prosecutors appealed to the 9th U.S. Circuit Court of Appeals and won. . . . His lawyer, Doug Pope, said that he thought the Supreme Court's decision to hear the matter at issue dealt a "serious blow to the government's case."

Chief Justice Advocates for Shorter Briefs, Fewer Questions

Tony Mauro, The National Law Journal

6-30-09 -- Speaking at the conference of the 4th U.S. Circuit Court of Appeals on Saturday, Chief Justice John Roberts Jr. said briefs before the high court are running too long, while the justices themselves are asking too many questions at oral argument. Roberts made the remarks during a conversation with Judge J. Harvie Wilkinson III at the Greenbrier at White Sulphur Springs, W.Va. The remarks are transcribed here. . . . Wilkinson asked Roberts how he would change Supreme Court practice. After joking that the chief justice should be given two votes, Roberts talked about briefs filed by parties that run 50 pages or more. The word limits were set, he said, when it was not common for allies of the parties to file as many as 40 amicus briefs. But with amicus filings growing, Roberts said there's no reason why a party's brief could not shed some of the subisidary points that can be handled by amicus groups. . . . "There's no reason that a party's brief couldn't be even more effective at 35 pages, certainly at 40 pages," Roberts said. "It would force the lawyers to do a better job of hitting the main points that they have to argue." Roberts readily acknowledged that as a former practitioner who wrote lengthy briefs, "there will be some sense of hypocrisy here."

Roberts Stresses Immunity for School Officials in Latest Ruling

By Debra Cassens Weiss, ABA Journal

6-29-09 -- Chief Justice John G. Roberts Jr. doesn’t see a conflict in two recent Supreme Court rulings on the authority of high school administrators to regulate students’ conduct. . . . The decisions differed on the propriety of actions by school officials, but the most recent decision finding a constitutional violation in a student strip search still offers some solace for administrators, Roberts said Saturday at a Judicial Conference. The Associated Press had the report. . . . In the case decided Thursday, the court ruled Arizona school officials conducted an unconstitutional strip search of teen Savana Redding, but said school officials were immune from civil suit. In a 2007 case, the court sided with an Alaska high school principal, saying the official could punish a student who unfurled a banner that read "Bong Hits 4 Jesus" while attending a parade sanctioned by the school.

Scalia Discusses Conjunctions, Contractions and Pet Peeves at Texas Bar Event

Miriam Rozen, Texas Lawyer

6-29-09 -- At the State Bar of Texas annual meeting, U.S. Supreme Court Justice Antonin Scalia and Bryan A. Garner discussed how to persuade judges with the written word and in oral argument. Garner, a Texas lawyer and president of a consulting firm teaching advocacy, is co-author with Scalia of "Making Your Case: The Art of Persuading Judges," published last year. . . . Scalia, in his saucy and sarcastic manner, served up quite a few tips. For writing briefs, Scalia endorsed the use of conjunctions at the beginning of a sentence, even starting a sentence with "but." He regards as "hackneyed" the expressions "fatally flawed" and "Roe v. Wade and its progeny." . . . As far as the use of contractions, Scalia and Garner have agreed to disagree, but the justice favors leaving them out of briefs. Scalia dubbed them "Jacobin" and argued they "pull everything down to the street level." He asked rhetorically, "Is any judge going to get mad because you don't use contractions?" In addition, Scalia said that legal writing with lots of italics tends to read "like a high school girl's diary."

Justices Won't Block Remote Storage DVR Systems

The Associated Press, Law.com

6-29-09 -- Hollywood studios and television networks lost their bid Monday for the Supreme Court to block the use of a new digital video recorder system that could make it cheaper and easier for viewers to record shows and watch them when they want, without commercials. . . . The justices declined to hear arguments on whether Cablevision Systems Corp.'s remote-storage DVR violates copyright laws. . . . For consumers, the action means that Cablevision and perhaps other cable system operators soon will be able to offer DVR service without need for a box in their homes. The remote storage unit exists on computer servers maintained by a cable provider. . . . Industry experts say the new technology could put digital recording service in nearly half of all American homes, about twice the current number. That's what has movie studios, TV networks and cable channels worried. DVRs allow viewers easily to skip past commercials.

High Court Fails to Decide on Anti-Hillary Movie

Jesse J. Holland, The Associated Press, Law.com

6-29-09 -- The Supreme Court has failed to decide on whether a scathing documentary about Hillary Rodham Clinton that was shown during the presidential race should be regulated as if it were a campaign ad. . . . The case was expected to be one of the last decisions of the term for the high court, but Chief Justice John Roberts announced that the court would hear arguments again on Sept. 9. . . . A conservative not-for-profit group wanted to air ads for the movie in Democratic primary states and also make the film available to cable subscribers on demand without complying with federal campaign finance law.

Government Takes Side of Investors

Supports Right to Sue Over Excessive Fees

By Sam Mamudi, Wall Street Journal

6-26-09 -- The government has waded into a Supreme Court case that could determine the future of mutual-fund fees, arguing it believes a lower court went too far in restricting investors' ability to sue funds over what they considered excessive fees. . . . The high court is set to hear oral arguments in the fall. In the past couple of weeks, parties sympathetic to the investors' case have been filing briefs outlining their support. . . . Among those who have filed are a group of law professors; industry legend John Bogle; the AARP and Consumer Federation of America; and Solicitor General Elana Kagan, acting on behalf of the Securities and Exchange Commission. . . . In her brief, Ms. Kagan said the investors' argument that their fund overcharged because it was making them pay twice the fees of institutional investors should be heard, a position at odds with a federal-court ruling in May. . . . "Because negotiations [with institutional investors] for such fees typically occur between independent parties, each of which is subject to competitive pressures," they may provide better evidence of the fees that come from a true bargaining process, Ms. Kagan said in the brief. . . . The case, Jerry N. Jones et al. v. Harris Associates LP, was brought against Harris by investors in the Oakmark Funds family. The investors have lost at every legal stage.

Stage Set for Litigation Over Judicial Recusal

Big campaign cash can compromise litigants' due process rights -- but what about the First Amendment?

Amanda Bronstad, The National Law Journal

6-22-09 -- The U.S. Supreme Court's ruling in Caperton v. Massey has prompted the American Bar Association and several states to consider stricter rules to help elected judges decide whether to step down from cases due to conflicts of interest born of campaign contributions. The proposals, if adopted, could prompt lawsuits from campaign contributors who fear that the changes would discourage participation in judicial races in violation of the First Amendment. . . . The Supreme Court concluded on June 8 that Justice Brent Benjamin of the West Virginia Supreme Court of Appeals, the state's court of last resort, should have recused himself from a case because the petitioner's chief executive, Don Blankenship, had spent more than $3 million to support Benjamin's election to the court in 2004. Benjamin's failure to recuse himself violated the due process clause of the Fourteenth Amendment, according to the 5-4 decision. . . . Although the Supreme Court stressed that the facts of that case were unique, the ruling has emboldened reformers concerned about the appearance of bias in the courts. Lawyers on both sides of the recusal debate, however, anticipate constitutional challenges to any new rules. That's what happened following the Supreme Court's 2002 decision in Republican Party of Minnesota v. White, which found that a Minnesota judicial code section prohibiting candidates from announcing their views on legal and political issues violated the First Amendment. . . . "If anybody tries to draw a rule from this that is generally applicable, they're wrong," said James Bopp, a partner at Bopp, Coleson & Bostrom in Terre Haute, Ind., of the Supreme Court's recent decision. Bopp successfully argued the White case and at least a dozen subsequent lawsuits challenging state judicial rules prohibiting campaign speech. "They're distorting the court's decision. It would be challengeable."

Circuit Assignments May Give Most High Court Justices 'Home Court' Advantage

Tony Mauro, The National Law Journal

6-18-09 -- The last-minute challenges to the Chrysler Group LLC sale last week focused a rare spotlight on a little-known aspect of the Supreme Court's work: the justices' circuit assignments. . . . A throwback to the days when justices rode the circuits, federal law calls for individual justices to be assigned to the various federal circuits to handle emergency applications. Justice Ruth Bader Ginsburg received the Chrysler filings because the bankruptcy originated in the 2nd U.S. Circuit Court of Appeals, which is assigned to her. . . . When Justice David Souter retires this summer, new circuit assignments will be made by the Court. By a rare happenstance, the post-Souter assignments could have special significance because they may end up giving almost all of the justices "home court" circuits -- circuits where they were raised or once served as judges. . . . Souter has been the circuit justice for both the 1st and 3rd circuits. When he departs, the betting is that, at least temporarily, Justice Stephen Breyer, who now handles the Denver-based 10th Circuit, will take over the 1st, where he sat for 14 years. And the 3rd? That could go to Justice Samuel Alito Jr., who was a 3rd Circuit judge for 15 years but has been assigned to the St. Louis-based 8th since joining the Court in 2006.

Study Shows Influence of SG in High Court Cases
Granted Cert

Marcia Coyle, The National Law Journal

6-16-09 -- So you've taken your client's case all the way to the Supreme Court and the justices have asked the solicitor general of the United States whether they should grant review. What are your chances of a nod in your favor? . . . Not bad, according to an unusual study of two of the high court's most important "information-gathering" tools -- a call for the views of the solicitor general, known as a CVSG, and a call for a response, or CFR, to a petition for certiorari. The Court granted briefing on the merits in 34 percent of cases in which it called for the views of the solicitor general, a 37-time increase above the grant rate for all petitions. And, the justices follow the recommendation of the solicitor general to grant or deny a case roughly 80 percent of the time, according to the study.

Justice Kennedy to Class of '09:
Spread freedom and the rule of law

By Adam Gorlick, Stanford University Report

6-14-09 -- Telling them that more than half the world's population lives "outside the law," U.S. Supreme Court Justice Anthony Kennedy told Stanford graduates to spread American principles of justice, especially in places that resist them. . . . "With our own freedom comes the duty to share it with others," Kennedy said Sunday during the university's 118th Commencement in Stanford Stadium. "Freedom is the birthright for all humankind." . . . Kennedy, who earned a bachelor's degree from Stanford in 1958 and has become a swing vote since being appointed as an associate justice 30 years later by President Reagan, made no mention of current cases pending before the nation's highest court or President Obama's choice of Sonia Sotomayor to replace his colleague, Justice David Souter.

Coping With 'Caperton': A Q&A With Former Texas Chief Justice

Tony Mauro, The National Law Journal

6-11-09 -- Monday's Supreme Court decision in Caperton v. Massey Coal Company has already been given a range of interpretations by commentators. By a 5-4 vote, the Court said the constitutional right to due process can sometimes require an elected judge to recuse in a case involving a campaign benefactor. . . . Some have called Caperton a sweeping command that will have federal courts superintending judicial elections and will prevent elected judges from voting in a case in which a campaign donor is a party. . . . But others -- including Justice Anthony Kennedy himself, the author of the 5-4 majority opinion -- have cast it far more narrowly, as the kind of "this trip only" constitutional ticket that will only force recusals in the kind of Grisham-like scenario that was before the high court. Namely, Caperton involved an eye-popping $3 million campaign contribution from a donor aimed at placing an individual on a court that was about to hear a case in which the donor was a party.

Justices Thomas, Scalia Report Big Book Earnings for 2008

Mark Sherman, The Associated Press, Law.com

6-8-09 -- Justice Clarence Thomas took in more than $300,000 in royalties for his autobiography last year, far more than he earned as a member of the Supreme Court. Justice Antonin Scalia received nearly $100,000 for his new book. . . . Thomas now has made roughly $1.5 million from "My Grandfather's Son," the 2007 book that traces his rise to the court from his roots in rural Georgia. . . . Scalia is the co-author of "Making Your Case," a book on legal advocacy that was published last year. . . . The justices' earnings from their books were part of annual financial disclosures released Friday. They show, in the main, a wealthy group serving on the nation's highest court.

May 2009

A Catholic Super-Majority on the Supreme Court

Tony Mauro, The National Law Journal

5-28-09 -- If Judge Sonia Sotomayor is confirmed to the Supreme Court, she will be only the 12th Roman Catholic justice in history. But what is remarkable is that six of those 12, if you include her, will be on the Court that convenes in October. . . . "There's an arc of history with seats on the Court that starts with a group that was discriminated against, then it develops and reaches a peak and assimilation, and then it no longer becomes an issue," says political scientist Barbara Perry of Sweet Briar College, a Court scholar who is working on a book on the Catholic justices. . . . What is interesting now, however, is that Catholics on the Court have become so common -- six out of nine -- that people are taking notice again, Perry says. "It's interesting that this follows by a couple of weeks the kerfuffle over President Obama speaking at Notre Dame. Maybe there isn't safety in numbers." Perry says she has already heard from Catholics who fear a backlash because of the high numbers.

Justice Ginsburg illustrates problem of liberalism

Justice Ruth Bader Ginsburg defends the use of foreign law by American judges. She seems to be distracted by immaterial issues, such as the fact that she is now the only woman on the Supreme Court.

By James Shott, Spero News Commentary

5-27-09 -- United States Supreme Court Justice Ruth Bader Ginsburg defended the use of foreign law by American judges at a symposium at the Moritz College of Law at Ohio State University not long ago. Her comments have spawned somewhat of a mild uproar, as not everyone agrees with her on this issue. . . . “I frankly don’t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law,” she said. Justice Ginsberg, now the Court’s only female member, continued, “Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?” . . . Of course, if all one is doing is reading the wisdom of a judge from Germany, it isn’t so different from reading a law review article, and there is no reason not to read the German judge’s opinion. However, when one attempts to take the wisdom of a German judge applied to a case in a German court under the control of German law, and then apply it to a case in an American court covered by our Constitution and the laws enacted under it, we have entered into an entirely different realm.

O'Connor on Judicial Elections, Civic Education and the High Court Vacancy

In interview, retired justice says a woman should be the choice

Tony Mauro, The National Law Journal

5-26-09 -- When she retired in 2006, U.S. Supreme Court Justice Sandra Day O'Connor lamented that her successor Samuel Alito Jr. did not wear a skirt. In an interview last week with The National Law Journal, O'Connor said that, with a new vacancy on the Court, most people are "expecting and indeed hoping" that the next appointee will be a woman. "There was a little backsliding when I left." . . . O'Connor, 79, also spoke about the departure of Justice David Souter, with whom she served on the Court for 16 years, and about the collapse of civic education nationwide. . . . The interview took place on the eve of the latest in a series of conferences she has coordinated at Georgetown University Law Center on threats to a "fair and independent" judiciary at the state and federal levels. The conference brought together judges, academics and lawyers from across the nation -- including Solicitor General Elena Kagan and Judge Diane Wood of the 7th U.S. Circuit Court of Appeals, both prominently mentioned as possible Souter replacements. . . . O'Connor has spotlighted the increasing cost and contentiousness of state judicial elections, and urges states to scrap elections to restore public trust in the court system. Judges, she said at a recent American Bar Association conference in Charlotte, N.C., should not be viewed by the public as "just politicians in robes."

When the Justices Ask Questions, Be Prepared to Lose the Case

Sidebar By Adam Liptak, The New York Times

5-25-09 -- A few years ago, a second-year law student at Georgetown unlocked the secret to predicting which side would win a case in the Supreme Court based on how the argument went. Her theory has been tested and endorsed by Chief Justice John G. Roberts Jr., and has been confirmed by elaborate studies from teams of professors. . . . “The bottom line, as simple as it sounds,” said the student, Sarah Levien Shullman, who is now a litigation associate at a law firm in Florida, “is that the party that gets the most questions is likely to lose.” . . . Chief Justice Roberts heard about Ms. Shullman’s study while he was a federal appeals court judge, and he decided to test its conclusion for himself. So he picked 14 cases each from the terms that started in October 1980 and October 2003, and he started counting. . . . “The most-asked-question ‘rule’ predicted the winner — or more accurately, the loser — in 24 of those 28 cases, an 86 percent prediction rate,” he told the Supreme Court Historical Society in 2004.

Will Supreme Court Keep Its Front Doors Open?

Tony Mauro, The National Law Journal

5-13-09 -- The Supreme Court's long-standing plan to permanently close its majestic bronze front doors to the public for entering the Court now appears to be "under review." That was the implication of a comment made Tuesday by Supreme Court Justice Stephen Breyer after a panel discussion at the National Gallery of Art on the role of art and architecture in public buildings. . . . One theme of the discussion, sponsored by the Foundation for Art and Preservation In Embassies was how to strike the balance between security and openness in the design of public buildings in the post-9/11 era. When he was chief judge of the 1st U.S. Circuit Court of Appeals in the 1990s, Breyer won applause (and some criticism) for pushing the plans for a new federal courthouse in Boston toward innovative design and public access. With pride, Breyer said Tuesday that the waterfront courthouse hosts more than 200 major public events a year. "It's a community building, and why shouldn't it be?" Breyer asked. "It's their building, it's not mine." . . . After the panel discussion Breyer was asked about the Supreme Court's pending plan to close the front doors at the top of the marble steps in the front of the Supreme Court. Instead of that legendary entryway, the plan has been to create a new entrance at the side of the steps, presumably to centralize screening of visitors on the Court's ground floor. Under the plan, the public would still be be allowed to exit from the bronze doors and go down the marble steps.

Commentary: Strip Search Case Reveals the Need for Another Female Justice

Cheryl D. Stein, Special to Law.com

5-13-09 -- The Fourth Amendment to the Constitution protects Americans against unreasonable searches and seizures. The Supreme Court must now decide whether it was reasonable for school officials to conduct a strip search of a 13-year-old girl who was suspected of carrying ibuprofen to school. Comments made by some of the justices hearing the case and the journalists covering it have been disquieting. . . . The nature of these reactions illustrates both that our society is still too tolerant of assaults on the dignity of women and that institutions such as the Supreme Court that lack significant input from women are not equipped to recognize or to redress that problem. . . . In 2003, Savana Redding was a 13-year-old student at Safford Middle School in Arizona. On Oct. 8 of that year, vice principal Kerry Wilson ordered her to his office, where he pointed to some pills on his desk: prescription-strength ibuprofen (the active ingredient in Advil) and Naprosyn, an over-the-counter anti-inflammatory, both commonly used to treat menstrual cramps. Redding denied knowing anything about the pills and consented to a search of her belongings. No pills were found.

Supreme Court Prospect Has Unlikely Ally

Friendship With Thomas May Complicate Chances for Left-Leaning Georgia Judge

By Krissah Thompson, Washington Post Staff Writer  

5-10-09 -- One day in the early 1990s, Supreme Court Justice Clarence Thomas telephoned Leah Ward Sears to introduce himself. She was a rising star in Georgia's legal community, a relatively liberal black woman on the state's conservative Supreme Court. Thomas had read about political attacks against Sears and called to say he didn't like it. . . . "It affected her that he would take the time to comfort her in that situation," said Bernard Taylor, an Atlanta lawyer and longtime friend of Sears, now chief justice of the Georgia Supreme Court and a potential nominee to replace retiring U.S. Supreme Court Justice David H. Souter. "They're still friends." . . . Many years after that phone call, the friendship that has endured makes for one of the more intriguing subplots of President Obama's upcoming decision. In naming Souter's replacement, Obama is likely to choose a liberal jurist. Some in the civil rights community are hoping that person will be an African American, such as Sears, to soothe the lingering bitterness over the appointment of Thomas, a conservative who is the court's only black justice.

O’Connor on Judicial Elections: ‘They’re Awful. I Hate Them’

By James Podgers, ABA Journal 

5-9-09 -- Warnings that judicial elections increasingly threaten to undermine the independence of courts were bookends for Friday's ABA summit on how to preserve fair and impartial state courts. . . . "I'm still resolute that how we select our judges is crucial to a fair and impartial judiciary," retired Associate Justice Sandra Day O'Connor told some 300 attendees during a keynote speech Friday morning at the summit in Charlotte, N.C. . . . "The public is growing increasingly skeptical of elected judges in particular," said O'Connor. She was referencing surveys showing that more than 70 percent of the public and more than a quarter of judges are considerably more distrustful of their judges than they have been in the past.

A Deep Bench

By Ann Aldrich, Alex Frondorf & Richard J. Hawkins, The New York Times Op-Ed Contributors

5-6-09 -- To succeed Justice David Souter on the Supreme Court, President Obama should select a nominee with experience that no other sitting justice has — service as a trial judge on a federal district court. . . . Only 11 of the 110 justices in our history have been federal trial court judges. Since the creation of the modern federal courts of appeals in 1891, only four federal trial court judges have been elevated to the high court. . . . The most recent was Charles E. Whittaker, who was nominated by President Dwight D. Eisenhower in 1957 after serving on the United States District Court for the Western District of Missouri. By contrast, 13 of the 19 justices appointed since 1958, including all nine members of the current court, were federal appellate court judges with no experience as district court judges. . . . Why is this an issue? Most Supreme Court cases are initiated in district courts, and many end up back there when they are remanded for proceedings that are consistent with the high court’s ruling. . . . While the court’s opinions affect the day-to-day operations and decisions of the district courts, many of the justices lack the practical experience that is necessary for providing district courts with clear and workable directives. . . . For example, in 2005, the court declared in United States v. Booker that the mandatory federal sentencing guidelines followed by district judges in criminal cases were no longer mandatory, but advisory.

Justice O'Connor's Salute to Souter

The Blog of Legal Times

5-6-09 -- The Supreme Court issued a statement this morning from retired Justice Sandra Day O'Connor offering her comments about Justice David Souter's impending retirement. . . . "Justice Souter is a superb human being," O'Connor is quoted as saying. "He is brilliant, witty, wise, and wonderful.  He will be greatly missed." . . . With common backgrounds in state government, O'Connor and Souter have been close over the years. O'Connor has recruited Souter to give a speech -- a rarity for Souter -- on May 20 at Georgetown University Law Center. The subject of the conference is "Fair and Independent Courts in a New Era."

Small, Seasoned Group Helps Obama Manage Supreme Court Selection

By Scott Wilson and Robert Barnes, Washington Post Staff Writers  

5-6-09 -- President Obama's first selection of a Supreme Court justice is being managed by a small group of senior advisers, and the process will last at least into next week before producing a candidate who the administration hopes will inject real-world experience into the nation's highest court. . . . Administration officials said this process will be careful and deliberative, even though preparations to fill a possible Supreme Court vacancy began even before Obama took office. The advisers are gathering recommendations from congressional leaders and determining what criteria will count most in narrowing the field of candidates to replace Justice David H. Souter, whose retirement creates the first of perhaps three vacancies before the end of Obama's term. . . . The selection of a small and very senior group of administration officials to help manage the nomination is designed, in part, to avoid the kinds of leaks that angered several Cabinet nominees during Obama's transition. It departs from a decision-making process that on other important issues has involved a wider range of people inside and outside the West Wing, although the circle will grow once a choice is made and the center of gravity moves to Capitol Hill.

Behind Justice's Blindfold

By Ruth Marcus, The Washington Post

5-6-09 -- Should the judge be an umpire or an empathizer? . . . Chief Justice John Roberts memorably likened the judge to a baseball umpire, dispassionately applying existing rules to call balls and strikes. . . . President Obama is more, well, touchy-feely. As he weighs a replacement for retiring Justice David Souter, the president said, he wants "someone who understands that justice isn't about some abstract legal theory or footnote in a case book; it is also about how our laws affect the daily realities of people's lives." That "quality of empathy," he said, is "an essential ingredient for arriving at just decisions and outcomes." . . . This is red-alert talk for conservatives. "Those are all code words for an activist judge who is going to . . . be partisan on the bench," Utah Republican Sen. Orrin Hatch warned on ABC's "This Week."

Amid Some Tears, Souter Bids Adieu to 3rd Circuit

Throughout his high court tenure, Souter has served as the 'circuit justice' for the 3rd Circuit, handling emergency motions from the appeals court

Shannon Duffy, The Legal Intelligencer

5-6-09 -- In a farewell speech that brought tears to a few eyes, U.S. Supreme Court Justice David Souter invoked a 19th century English poet and legendary federal appeals Judge Learned Hand as he implored the judges and lawyers of the 3rd Circuit to derive a sense of lasting fulfillment from the work they do every day. For his entire tenure on the Supreme Court, Souter has served as the "circuit justice" for the 3rd Circuit, meaning that he handles emergency motions that come from the 3rd Circuit and that he has regularly spoken at 3rd Circuit judicial conferences. . . . Souter has been such a frequent visitor that 3rd Circuit Chief Judge Anthony J. Scirica described him in introduction as "a beloved member of the 3rd Circuit family." . . . This year's visit from Souter was "especially poignant," Scirica said, as a result of the news last week that Souter will be retiring at the end of the high court's term in June. . . . "I swear to you I was not the leak," Souter said, referring to news accounts last week that said Souter's decision not to return had been revealed by his failure to hire law clerks for the next term.

Souter's Retirement Timing: Was It Age or Politics?

Tony Mauro, The National Law Journal

5-6-09 -- The Atlantic's political blog is reporting here that a day after he announced his impending retirement May 1, Justice David Souter spoke at an Oxford University alumni luncheon in Washington, D.C., along with Justice Stephen Breyer. After the talk, blogger Jeannette Lee asked Souter if he would have retired now if Republican candidate John McCain had been elected last November instead of Barack Obama. . . . "Probably," was Souter's reported answer. He added that he was nearing 70 years old, and had watched other justices wait to leave until their 80s, when "they have nothing left to retire to. I didn't want that to be me." . . . With that answer, Souter does not directly refute commentary suggesting that as a justice increasingly identified as a liberal, Souter waited to retire, for political or strategic reasons, until a president more to his liking than George W. Bush would be in a position to replace him.

Conservatives Back Spurned Judicial Candidate for Senate Judiciary Committee

Ben Evans, The Associated Press, Law.com

5-5-09 -- Conservatives are rallying behind Sen. Jeff Sessions of Alabama to become the top Republican on the Senate Judiciary Committee as the resignation of Supreme Court Justice David Souter adds new urgency to the post. . . . Sessions, a hard-line conservative whose 1986 nomination for a federal judgeship was rejected by the Senate, appears to be in line for the job after the previous ranking member, Sen. Arlen Specter of Pennsylvania, left the GOP to become a Democrat. . . . Republicans are expected to decide the matter early this week, and the result could determine the tone and ferocity of the party's opposition to Obama's judicial nominees. . . . Such committee leadership decisions usually are based on seniority. Although there are several senators above Sessions on the panel, they are either restricted under committee term limits or would have to give up top positions on other panels to take the position.

Odd Details of Souter’s Life Chronicled, Including Apple Appetite

By Debra Cassens Weiss, ABA Journal

5-4-09 -- Unusual details of Justice David H. Souter’s personal life are beginning to emerge, from the way he eats an apple, core and all, to the way he met New Hampshire’s governor—at his hometown’s town dump, something of a place for socializing. . . . The Washington Post and the New York Times both published stories focusing on Souter’s personal life after news reports last week that the 69-year-old justice would be retiring and returning to his beloved hometown of Weare, N.H. . . . The New York Times describes Souter’s farmhouse, with peeling paint and rotting wood, as looking “only slightly more seductive than a mud hut.” The Post, on the other hand, notes five daffodils blooming alongside weeds at the house, a rusty wheelbarrow in the yard and windows “sagging with age.” Souter’s “creaking, unkempt house looks so haunted that some people who passed by said they assumed it had been abandoned,” the Post says. . . . The Times describes Weare as a town where residents go to a go-kart track for entertainment and socialize at the town dump. Souter is said to have met Gov. John Lynch, who lives in a neighboring town, at the dump.

Souter's Retirement Sets Stage for Nomination Fight

Tony Mauro, The National Law Journal

5-4-09 -- The sudden, if unsurprising, announcement that Supreme Court Justice David H. Souter will retire instantly ratcheted up the scrutiny and political pressure on President Barack Obama and on the growing list of potential replacements -- some of whom are already drawing fire. . . . The earlier-than-usual prospect of a vacancy -- they are usually announced at the end of a Supreme Court term in late June -- will give potential opponents of whomever Obama names more time to gather steam before confirmation hearings are scheduled. Planning for a departure on the high court, Obama and aides have been drawing up lists of candidates for months, but were not expecting to have to finalize a choice in the glare of the public spotlight. . . . Within hours of the first press leaks about Souter's planned retirement on Thursday, forces already began lining up for the battle to come, with female nominees -- appeals Judges Sonia Sotomayor and Diane Wood, and Solicitor General Elena Kagan, among others -- topping speculative lists.

Souter Retirement Reports Stir Speculation on Obama Court Pick

Tony Mauro, The National Law Journal

5-1-09 -- At his press conference Wednesday night, President Barack Obama rattled off the crises he's had to deal with during his first 100 days in office, from wars to a potential pandemic. Now, on his 101st day, Obama has been handed a new task to top his agenda: picking a Supreme Court nominee. . . . News broke Thursday night that Justice David Souter plans to retire after this Supreme Court term ends in late June. That prospect offers Obama a chance, not to reshape the Court but to invigorate it with new blood. Obama will likely replace the mostly liberal Souter with another liberal, meaning that most votes won't change. But Souter is 69, and his replacement is almost certain to be younger and will change the dynamics of the Court in big and small ways. . . . The early betting is that Obama will choose a woman, a minority or someone who fits both categories. Hispanics and Asian-Americans are two groups that have never been represented on the nation's highest court. With Justice Ruth Bader Ginsburg the only female now sitting, pressure will be strong to replace Souter with a woman.

April 2009

Fairness Doctrine 'unconstitutional'

Clarence Thomas: Controversial policy 'deep intrusion' into broadcasters' rights

By Joe Kovacs, © 2009 WorldNetDaily

4-29-09 -- For the first time, a U.S. Supreme Court justice is offering some legal insight about the so-called Fairness Doctrine, suggesting the off-the-books policy could be declared unconstitutional if it's revived and brought before the bench. . . . In written discussion on yesterday's ruling cracking down on indecent language on television, Justice Clarence Thomas called the policy "problematic" and a "deep intrusion into the First Amendment rights of broadcasters." . . . The doctrine requiring broadcasters to air opposing viewpoints on controversial issues was brought to an end in the 1980s under the direction of President Ronald Reagan's Federal Communications Commission. . . . There has been widespread fear, though, the policy could be resurrected during the term of President Barack Obama. . . . The Pacific Justice Institute, a California-based legal group specializing in the defense of religious freedom  and other civil liberties, is calling the remarks by Thomas "very significant."

Fordham Law Class Collects Personal Info About Scalia; Justice is Steamed

By Martha Neil, ABA Journal

4-29-09 -- Last year, when law professor Joel Reidenberg wanted to show his Fordham University class how readily private information is available on the Internet, he assigned a group project. It was collecting personal information from the Web about himself. . . . This year, after U.S. Supreme Court Justice Antonin Scalia made public comments that seemingly may have questioned the need for more protection of private information, Reidenberg assigned the same project, except with Scalia as the subject, the prof explains to the ABA Journal in a telephone interview. . . . They turned in a 15-page dossier that included not only Scalia's home address, home phone number and home value, but his food and movie preferences, his wife's personal e-mail address and photos of his grandchildren, reports Above the Law.

Thomas and Breyer Discuss Supreme Court Clerk Diversity at Budget Hearing

Tony Mauro, Legal Times

4-28-09 -- A perennial topic at the Supreme Court's budget hearings -- at least since Jose Serrano, D-N.Y., chair of the House subcommittee that has jurisdiction over the Court's budget, has been on the panel -- is the need to increase the number of minority law clerks serving the justices. Since the dearth of minority clerks was first quantified in 1998, several members of Congress have asked the justices about it, but none more persistently than Serrano. . . . "What progress is being made?" Serrano asked Justices Stephen Breyer and Clarence Thomas at the hearing last week. "The more diversity, the better." It was notable that his inquiry this time came during the same week that the Court heard arguments in Ricci v. DeStefano, which examines an effort by another government entity, the New Haven, Conn., fire department, to hire more minorities.

Justice John Paul Stevens sees the fruit of his labors

Over 34 years on the Supreme Court, many of the liberal justice's lone dissents have become majority opinions. The most recent example was last week.

By David G. Savage, LA Times

4-27-09 -- Reporting from Washington -- Justice John Paul Stevens quietly marked his 89th birthday last week by showing once again his powerful influence on the law. . . . Over the last decade, he has led a series of liberal victories on issues such as the death penalty, gay rights and Guantanamo Bay -- and he has done it on a court that often leans to the right. Many times his views have prevailed, even decades after he staked out his position. . . . In 1981, he had warned in dissent that the Supreme Court was taking a "dangerous detour" when it said police could search a car whenever they arrested the driver or an occupant. This "massive broadening" of police power would turn ordinary traffic stops into car searches, he predicted.

Why the Law is Foreign to Ginsberg

By Selwyn Duke, American Thinker 

4-26-09 -- There is an old saying, "A man who is capable of deceiving only others is not nearly as dangerous as a man who is capable of deceiving himself."  Truer words were never spoken.  When a person lies, he is deceiving others about reality, but at least knows he is engaging in deception.  But when someone rationalizes -- which is when you lie to yourself -- he is truly lost.  He then not only bends reality for others as a by-product of bending it for himself, but he can render untruths without having to lie.  This is because a lie is when he tells an untruth knowing it's untrue.  It's much like when the ever-prevaricating George Costanza character on Seinfeld gave his advice for beating a polygraph machine, "just remember . . . it's not a lie if you believe it." . . . I think of this when I hear Supreme Court Justice Ruth Bader-Ginsberg tout the use of foreign law by American judges sworn to uphold the Constitution -- that would be our constitution. Speaking about this recently at Ohio State University's Moritz College of Law, she said,

"I frankly don't understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law [when handing down court rulings] . . . ."

Well, you know what?  I believe her.  She and her fellow travelers really don't understand.  That is, they don't grasp the correct legal philosophy well enough to understand what they're rejecting.

House Members Push Supreme Court Toward Transparency

Tony Mauro, Legal Times

4-24-09 -- The annual House hearing called to consider the Supreme Court's budget request began with its usual rituals Thursday morning. Members of Congress and members of the Court -- Clarence Thomas and Stephen Breyer this time around -- praised the occasion as a historic meeting of two branches of government. "A rare opportunity" for the legislature and the judiciary to interact and exchange views, said appropriations subcommittee chair Rep. Jose Serrano, D-N.Y. "We are honored," replied Thomas. . . . The hearing proceeded in the same vein for a while, full of blandishments and collegiality. But then a Texas congressman decided to test just how well the justices were listening and whether they would take his heartfelt message to heart -- a strong plea to the Court to ramp up its transparency and public face. Other committee members proceeded to pile on, telling the Court that the momentum toward openness that the Internet has created is so strong that the Court would be wise not to resist it. By the end of it Breyer and Thomas could have been forgiven if they started to think they'd been hit by a coordinated attack from wild-eyed techies.

All Eyes on Kennedy in Firefighters Discrimination Case at High Court

Tony Mauro, Legal Times

4-23-09 -- When the city of New Haven, Conn., in 2003 tossed out a promotion test for firefighters after learning that no African-Americans had passed, was it striking a blow for or against civil rights?

The Supreme Court heard vigorous debate on that question Tuesday in the case of Ricci v. DeStefano, with Justice Anthony Kennedy likely holding the key vote in deciding the answer. . . . Kennedy's central role was so evident at one point that Justice Stephen Breyer, apparently hoping to win him over, posed a hypothetical based on Kennedy's concurrence in a related 2007 civil rights case. "I think you're giving examples from Justice Kennedy's" opinion, replied Gregory Coleman, lawyer for the white (and one Hispanic) firefighters who did not get promoted because of New Haven's actions. . . . "That's just what I'm doing exactly," Breyer said unabashedly. For his part Breyer seemed to favor New Haven's position in the case. . . . Kennedy, the object of all the attention, did not explicitly tip his hand, but overall seemed sympathetic to the white firefighters who claim they were discriminated against on the basis of race, in violation of Title VII of the Civil Rights Act, when the city did not give them the promotions.

When to Retire a Justice

By Paul D. Carrington Op-Ed Contributor, NY Times

4-12-09 -- HAVING long observed as well as experienced aging, I question the wisdom and virtue of people in their 70s who continue to exercise great power over others. I have been teaching law only part time for eight years, since I turned 70. But Supreme Court justices, who have more influence on our society than almost anybody, often cling to their offices until they die, even though, as veteran federal judges, they are entitled to retire at full pay. . . . You may have heard that justices and other federal judges enjoy “life tenure” — something that is easy to believe when the average age of the Supreme Court justices is 69. However, Article III of the Constitution says only that federal judges, both of the Supreme Court and of lower courts, can retain their offices as long as they maintain “good behavior.” . . . This seems to imply that the justices have a duty to retire when they are no longer fit to work full time. That duty is a rule in some countries: Britain, for instance, forces judges to retire at 70.

Ginsburg wants court to add second woman

By Joe Hallett, The Columbus Dispatch

4-11-09 -- Having reached the pinnacle of the legal profession after spending much of her career fighting for gender equality, Justice Ruth Bader Ginsburg says the nine-member U.S. Supreme Court is missing something. . . . Another woman. . . . "It's lonely for me," she told students and faculty members yesterday at the Ohio State University Moritz College of Law. . . . "Not that I don't love all my (male) colleagues -- I do. Even though a wise old man and a wise old woman will reach the same decision, there are life experiences a woman has that come from growing up in a woman's body that men don't have." . . . After a daylong symposium in which legal experts analyzed the impact of her 15-year Supreme Court tenure on the law and society, Ginsburg took the stage for 90 minutes to converse about her life and times with her official biographer, Georgetown University law professor Wendy Webster Williams, and one of her former law clerks, OSU law professor Deborah Jones Merritt.

Ginsburg Shares Views on Influence of Foreign Law on Her Court, and Vice Versa

By Adam Liptak

4-11-09 -- In wide-ranging remarks here, Justice Ruth Bader Ginsburg defended the use of foreign law by American judges, suggested that torture should not be used even when it might yield important information and reflected on her role as the Supreme Court’s only female justice. The occasion was a symposium at the Moritz College of Law at Ohio State University honoring her 15 years on the court. . . . “I frankly don’t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law,” Justice Ginsburg said in her comments on Friday. . . . The court’s more conservative members — Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas — oppose the citation of foreign law in constitutional cases. . . . “If we’re relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge,” Chief Justice Roberts said at his confirmation hearing. “And yet he’s playing a role in shaping the law that binds the people in this country.”

Malvolio Loses in 'Twelfth Night' Mock Trial Before Supreme Court Justices, Federal Judges

Tony Mauro, Legal Times

4-8-09 -- It was an evening of high farce before the high court at the Shakespeare Theatre Company's Sidney Harman Hall in Washington, D.C., on Monday night. Three Supreme Court justices and five other federal judges, comprising the "Supreme Court of Illyria," wrestled with the hypothetical case of Malvolio's Revenge, stemming from Shakespeare's "Twelfth Night." . . . In the end, the steward Malvolio lost his bid to preserve an imaginary $10 million punitive damage award he had won against his boss Lady Olivia for false imprisonment and emotional distress. If you remember the play, Olivia's staff had tricked Malvolio into doing insane things to win Olivia's favor, leading to a compelled visit to the dungeon for Malvolio.

Justice Souter's Concise Concurrence

Jeff Jeffrey, Legal Times

4-7-09 -- The Supreme Court handed down two opinions Monday morning, one authored by Justice David Souter and the other by Justice Antonin Scalia. But as often happens on the final Monday of an argument cycle, several justices had already left town -- including both Souter and Scalia -- so both decisions were announced by other justices in the majority who were in attendance. . . . Justice Anthony Kennedy announced Souter's 5-4 decision in Corley v. United States. It was a win for criminal defendants, finding that even voluntary confessions can be excluded at trial in federal cases, if a defendant is not brought before a magistrate within six hours of arrest. There was no word on where Souter was today.

The Supreme Court shouldn't be judging judges

A West Virginia case could put state jurists' ethics under federal oversight.

By David B. Rivkin Jr. , LA Times

4-7-09 -- When Brent Benjamin ran for chief justice of the West Virginia Supreme Court in 2004, the nation's fourth-largest coal company donated $3 million to his successful campaign -- more than all his other contributors combined. Two years later, the company, Massey Energy, came before Benjamin's court to appeal a $50-million judgment it had been ordered to pay. Benjamin cast the deciding vote in a 3-2 decision to overturn the award. . . . Now the U.S. Supreme Court has agreed to examine Benjamin's decision not to recuse himself from the case, and the facts in Caperton vs. Massey Energy appear damning. But even damning facts can make bad law. The court should resist the temptation this case poses to make federal judges the arbiters of state court ethics. To do so would gravely undermine the sovereignty of states, weaken judicial reforms and even threaten federal judges' own freedom from political interference.

In Annual Shakespeare Mock Trial,
Supreme Court Justices Play On

Tony Mauro, Legal Times

4-6-09 -- This morning, the Supreme Court will be handing down opinions. This evening, three justices -- Ruth Bader Ginsburg, Samuel Alito Jr. and Stephen Breyer -- and five lower court judges will dispense hypothetical justice, in the Shakespeare Theatre Company's annual mock trial. . . . The case is called Malvolio's Revenge, based on "Twelfth Night." It imagines what happens to Malvolio, the steward to Countess Olivia, after he is imprisoned for the insane things he is tricked into doing to win Olivia's favor. . . . Malvolio has won a $10 million punitive damages verdict for false imprisonment, and the judges must decide if the award is constitutional.

Justice Thomas on Rights, Law School and Tough Cases

Supreme Court justice touched on familiar themes of responsibility and self-reliance in speech to students

Tony Mauro, Legal Times

4-3-09 -- If you've ever seen Supreme Court Justice Clarence Thomas speak to a group of students, you know how energized and enthusiastic he becomes. . . . That was the case Tuesday night when Thomas served as the keynote speaker for an event celebrating the 27 winners of a nationwide high school essay contest. The contest is sponsored by the Arlington, Va.-based Bill of Rights Institute, a 10-year-old organization that develops programs and curricula for high schools on the nation's founding documents. . . . The contest has become the largest in the country, says institute founder Victoria Hughes. This year it drew 31,000 entries. . . . "This is the good part of the job," said Thomas to the friendly crowd at a downtown hotel. Fox News and NPR commentator Juan Williams -- who wrote one of the first stories about Thomas when he came to Washington, D.C., nearly 30 years ago -- was the master of ceremonies, and Fox legal commentator Andrew Napolitano read students' questions to Thomas, along with Brian Jones, former general counsel of the U.S. Department of Education.

Mixed-Up Names and Mixed Motives at the Supreme Court

Tony Mauro, Legal Times

4-1-09 -- The case of Gross v. FBL Financial Services, argued Tuesday morning at the Supreme Court, is complex enough to make anyone's head spin -- including the head of Carter Phillips, Sidley Austin's Supreme Court veteran, one of the best in that small universe of skilled advocates. During an intense half-hour at the lectern, Phillips managed to address Justice Stephen Breyer as "Justice Ginsburg," not long after he had attributed an opinion of retired Justice Sandra Day O'Connor to ... Justice Ginsburg. . . . That mix-up between the female justices was especially awkward since Phillips was addressing Ginsburg at the time. When Ginsburg politely pointed out the error, Phillips said, "Did I say 'Ginsburg'? I'm gonna hear about this one. I apologize." So, even though O'Connor has been off the Court for more than three years, the odd propensity of lawyers -- veterans and novices alike -- to mix her up with Ginsburg continues.

March 2009

We must guard our free speech fortress

Two Supreme Court cases — one just settled, one upcoming — involve the government's role in religious expression. Our system's dirty little secret: Government is already inside, and active, in the free speech arena.

By Richard W. Garnett, Op-Ed, USA Today

3-30-09 -- The First Amendment's free-speech clause is sometimes compared to a castle, or fortress. There is a lot of truth to this image, and the freedom of speech is indeed well served by the First Amendment's walls. It is not the whole picture, though, as two Supreme Court decisions — one just decided and another on tap for next year — remind us. . . . Last month, in Pleasant Grove City v. Summum, the justices ruled unanimously (and correctly) that the free-speech clause allows a city to adopt and display one privately donated monument while refusing another. When the government speaks, in other words, it gets (for the most part) to pick its own message. Next year, in Salazar v. Buono, the court will likely consider whether the First Amendment requires the government to remove a war-memorial cross from a hill in the Mojave National Preserve.

Does Antonin Scalia hate gays?

Rep. Barney Frank may have gone too far in calling the Supreme Court justice a 'homophobe,' but the jurist's opinions on homosexuals should raise some concerns.

Los Angeles Times Editorial

3-28-09 -- Rep. Barney Frank (D-Mass.) has been widely criticized for referring in a recent interview to "that homophobe Antonin Scalia," an injudicious exercise in name-calling that obscures Frank's larger and more valid point: that the opinions of the tart-tongued Supreme Court justice leave little doubt of his utter lack of sympathy for gays and lesbians. . . . "Homophobia" used to mean "fear of homosexuality," but it's now used to describe any overt hostility toward gays. Scalia's defenders argue that he has never actually denounced homosexuality or expressed such hostility. In fact, in his dissent in a 1996 decision striking down an anti-gay referendum in Colorado, Scalia wrote: "Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means." Scalia says he objects to pro-gay-rights decisions for the reasons he rejects Roe vs. Wade: His colleagues are legislating from the bench.

Justice Ginsburg on the 'Lighter Side' of Supreme Court Life

Tony Mauro, Legal Times

3-26-09 -- When Supreme Court Justice Ruth Bader Ginsburg spoke before the New England School of Law in Boston on March 13, media coverage of her remarks focused on her cryptic comment in answer to a question that a vacancy on the Court was likely "soon." But the Court has since posted the text of Ginsburg's more formal talk, in which she offered a glimpse into life at the Court. . . . Ginsburg confirmed that the justices' collegial tradition of shaking hands with every other justice before taking the bench or beginning their conferences lives on. That's a combined total of 36 handshakes for each occasion, she said. (We'll leave it to math whizzes to confirm whether that's the right number.) The justices lunch with each other "by choice, not by rule," and the attendance is usually very good. The food, however, is not that good. It comes from the Court cafeteria and is "not haute cuisine," Ginsburg said.

Rep. Frank Calls Justice Scalia a 'Homophobe' in Interview

The Associated Press, Law.com

3-25-09 -- Massachusetts Rep. Barney Frank called Supreme Court Justice Antonin Scalia a "homophobe" in a recent interview with the gay news Web site 365gay.com. . . . The Democratic lawmaker, who is gay, was discussing gay marriage and his expectation that the high court would some day be called upon to decide whether the Constitution allows the federal government to deny recognition to same-sex marriages. . . . "I wouldn't want it to go to the United States Supreme Court now because that homophobe Antonin Scalia has too many votes on this current Court," said Frank. The video of the interview is available online.

Panel tackles all things Supreme Court

By Aaron Lee

3-22-09 -- A panel discussion about the U.S. Supreme Court on Saturday afternoon was dominated by talk of term limits, caseload volume and speculation of whom President Barack Obama might nominate when the next seat on the court opens up. . . . The panel, tied to this year’s Festival of the Book events, packed roughly 150 people into the Charlottesville City Council’s chambers and featured local legal experts and court watchers from the New York Times and Slate. . . . Among the panelists, John W. Whitehead, founder of the Charlottesville-based Rutherford Institute, seemed to be the least impressed with the effectiveness of the current court, overseen by Chief Justice John Roberts. . . . “It’s almost impossible to get to hear a case these days,” Whitehead said. “That I’m greatly dismayed at.” . . . In the 2007 term, the court decided 68 cases out the thousands that came before it for review. . . . Whitehead, in agreement with the rest of the panel, also charged that the court was allowing its law clerks to select cases that lacked teeth for review. . . . “They’re very risk averse, it’s much easier to recommend a ‘no’ than a ‘yes,’” New York Times reporter Adam Liptak said of the clerks who select many of the cases the court reviews. . . . Although Dahlia Lithwick, senior editor for the online news magazine Slate, said Justices John Paul Stevens and Samuel Alito select their own cases.

Justice Ginsburg Upbeat About Her Health

Tony Mauro, Legal Times 

3-18-09 -- The Supreme Court issued a statement Tuesday morning by Justice Ruth Bader Ginsburg affirming that the course of treatment for her pancreatic cancer is under way, with the expectation that once it is done, "I will require only routine examinations to assure my continuing good health." . . . Ginsburg's upbeat statement revealed she will undergo a "precautionary, post-surgery course of chemotherapy" beginning later this month. She said the chemotherapy is "not expected to affect my schedule at the Court." The Court is sitting for arguments and possible opinions on March 23, 24, 25, 30, and 31, and on April 1, then on April 6 to announce orders and opinions before another recess. . . . During a recent speech, Ginsburg said retired justice Sandra Day O'Connor, herself a cancer survivor, had advised her to schedule chemotherapy treatments on Friday afternoons so she could have the weekend to recover before returning to work on Mondays. In that same talk in Boston, Ginsburg also said she expected a vacancy on the Court "soon," triggering another round of speculation on possible departures.

Judge Thomas Slams Socialism

By Bob Ellis, Dakota Voice

3-18-09 -- Supreme Court Justice Clarence Thomas spoke recently at Washington and Lee University in Lexington, Virginia. . . . Thomas again demonstrates a quality rare in the judiciary today: common sense.  And another: respect for the Constitution. . . . To those who claim the Constitution is some mysterious document which is hard to understand, he said it was no more difficult to understand than a cell phone contract (I think it is incredibly easier to understand than a cell phone contract). . . . He also called out the self-centered socialist attitude prevalent among so many today: . . . The message today seems more like: Ask not what you can do for yourselves or your country, but what your country must do for you. . . . Knowing Judge Thomas is in the nation’s highest court gives me some measure of hope for our country.

New Book on Justice Kennedy Defends His Jurisprudence

Tony Mauro, Legal Times 

3-17-09 -- Political scientist Helen Knowles thinks Supreme Court Justice Anthony Kennedy has gotten a bad rap as a "flip-flopper" and as a somewhat unpredictable swing vote. "He is much more consistent than people give him credit for," says Knowles, who teaches at the State University of New York-Oswego. . . . Knowles has turned that thought into a new book on Kennedy's jurisprudence titled "The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty." (The title, by the way, is a slight variation on a quote from Kennedy's 2000 opinion in United States v. Playboy Entertainment, in which Kennedy said that when there are competing and relatively weak government justifications for restricting speech, "the tie goes to free expression.") The book is touted as the first full-length treatment of Kennedy's jurisprudence.

It Keeps Coming Down To the Man in the Middle

As Justice Kennedy Goes, So Go Many Major Decisions

By Robert Barnes, Washington Post Staff Writer  

3-16-09 -- Justice Anthony M. Kennedy has taken over the Supreme Court. Again. . . . You thought you already knew that? It was easy to get the impression from the flurry of landmark decisions that flowed from the court at the end of the term last summer. . . . Kennedy was the only justice in each majority as the divided court ruled out the death penalty for child-rapists, found in the Second Amendment the individual right to a firearm and provided constitutional protections to the detainees held at Guantanamo Bay, Cuba. . . . But last year was something of a slump for Kennedy. According to the folks at Scotusblog.com, which keeps meticulous records of such things, Kennedy prevailed in "only" 86 percent of the cases.

Justice Ginsburg Hints at Possible Supreme Court Opening Soon

Melissa Trujillo, The Associated Press, Law.com

3-16-09 -- Justice Ruth Bader Ginsburg told law students Friday there could be an opening on the Supreme Court soon but didn't hint at who might be leaving. . . . Ginsburg, who spoke at New England Law's annual "Law Day," said the nine justices only take pictures together when a new member is added. "We haven't had any of those for some time, but surely we will soon," she said. . . . She did not elaborate and did not take questions from reporters at the event. . . . Court watchers suggest Ginsburg, 88-year-old John Paul Stevens and 69-year-old David Souter are the most likely to retire. . . . Stevens has repeatedly said he still enjoys his work and has hired law clerks for the term that begins in October. . . . Souter has said nothing about his plans and has not picked his law clerks, though he usually is one of the last justices to do so. . . . Ginsburg, who turns 76 on Sunday, had surgery last month for pancreatic cancer but returned to the bench without missing a day of work. She was treated for colon cancer in 1999 but has said she wants to match the tenure of Justice Louis Brandeis, who served for more than two decades until age 82.

Justice Thomas Receives Warm Welcome at Howard Law

Eric Barendsen, Legal Times 

3-13-09 – Speaking Wednesday at Howard University School of Law for the first time since 1994, Supreme Court Justice Clarence Thomas received a warm reception from students and faculty, including two standing ovations. Sponsor K&L Gates and Howard University invited Thomas to headline the James M. Nabrit Jr. Lecture Series, an annual talk at Howard that has featured Justices Anthony Kennedy, Ruth Bader Ginsburg and Stephen Breyer in the past. Thomas' talk focused primarily on his 2007 book, "My Grandfather's Son," which details events from Thomas' hardscrabble childhood through his confirmation to the high court. . . . Writing the book was painful, Thomas said, because in contrast to deciding a case that "has nothing to do with you, you have to actually relive the experience, and in reliving the experience you re-feel the experience. And that is not so easy." Writing his memoirs took more than five years, he said. . . . The book starts with a simple sentence that, Thomas said, sets the tone and marks a beginning: "I was nine years old when I met my father." But the rest of the story, he said, is about how he kept that fact from being the end of his life story.

Justice Souter Describes 'Annual Intellectual Lobotomy' During Court Term

Tony Mauro, Legal Times

3-11-09 -- Robert Bork once said serving on the Supreme Court would be "an intellectual feast." On Monday night, by contrast, Justice David Souter said he undergoes a "sort of annual intellectual lobotomy" when the Supreme Court term begins in October, a condition that he said lasts until the end of the term the following summer. . . . It was an offhand remark by Souter, made in service of a larger point before an audience of the American Academy of Arts & Sciences in Washington, D.C.: that Americans need to develop a "habit of mind" that includes reading books -- which, he implied, becomes very hard for him to do during the bustle of a Supreme Court term. "I cram what I can into the summertime," Souter said.

Justice Stevens Holds On to Key Role at High Court

Tony Mauro, Legal Times

3-11-09 -- Six weeks shy of his 89th birthday, Supreme Court Justice John Paul Stevens is not, repeat not, winding down. After the last two weeks, gearing up might be the better term. . . . On March 4, Stevens announced the top business decision of the term, a testament to his still-sharp persuasive skills. . . . The day before, he dominated an oral argument on judicial ethics. And the week before that, he made news when he told a public forum the next justice should be sworn in at the Court, not the White House, to symbolize judicial independence. President Barack Obama, take note. . . . It all contributed to the sense that in spite of his age, Stevens is far from done with his 33-plus-year tenure and still draws fresh strength from winning cases and making his mark on a divided Court.

"He is in another ascendancy, like after Bush v. Gore" in 2000, says Bill Barnhart, a former Chicago Tribune columnist whose biography of Stevens is due out later this year. "I see no diminution in his abilities."

Scalia: You need 4 votes for Obama eligibility case
Lawyer confronts justice about prez's qualifications

By Bob Unruh, © 2009 WorldNetDaily

3-10-09 -- A lawyer lobbying the U.S. Justice Department and the U.S. Supreme Court for a review of Barack Obama's qualifications to be president says a key conservative justice has hinted that another conservative justice has been voting against hearing the dispute. . . . According to Orly Taitz, a California attorney working through her Defend Our Freedoms Foundation on several cases challenging Obama, said she was presented with an opportunity to ask a question of Supreme Court Justice Antonin Scalia yesterday. . . . The issue of Obama's eligibility has been raised before the Supreme Court at least four times already but has yet to be given a single hearing. Cases have been brought by Taitz, Philip Berg, Cort Wrotnowski and Leo Donofrio. . . . While the requests have been heard "in conference" by the justices, no hearings have resulted on the evidence. WND previously has reported that cases brought to individual justices on an emergency basis can be discussed in such conferences, but they need the affirmative vote from four justices before a hearing on the merits can be scheduled. . . . The Supreme Court today is considered to have mainly a 4-4 conservative-liberal split, with one swing vote on most issues. On the conservative side generally are Chief Justice John Roberts, Justice Samuel Alito, Scalia and Justice Clarence Thomas. Justice Anthony Kennedy often is the swing vote.  The liberal side frequently includes Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens. . . . No explanations on the court's response to the Obama citizenship issue have been offered until now.

A judicial experience myth

Scott D. Gerber / Special To The National Law Journal

3-4-09 -- To paraphrase the classic E.F. Hutton commercial, "When the chief justice talks, people listen." It doesn't even matter if what he says is a 90-second sound bite in the middle of a sentimental speech about his predecessor in the center chair. . . . Such is the case with Chief Justice John G. Roberts Jr.'s comment during his recent Rehnquist Center Lecture that, because every member of his court is a former federal appeals court judge, the court now takes "a more legal perspective and less of a policy perspective" to the questions it decides. Previously, he said, "the practice of constitutional law — how constitutional law was made — was more fluid and wide ranging than it is today, more in the realm of political science." . . . Roberts' praise for Supreme Court justices with prior judicial experience marks at least the third time since the heyday of the Rehnquist Court that someone with the power to influence who gets appointed to the nation's highest court has extolled the virtues of such experience. The most vicious occasion occurred during the imbroglio over the nomination of Harriet Miers. As readers may recall, Miers withdrew her name from consideration after being savaged by the legalerati for, among other reasons, a lack of judicial experience.

Why Does Justice Stevens Recuse in Agent Orange Cases?

Tony Mauro, Legal Times

3-3-09 -- The Supreme Court on Monday declined to grant certiorari or review of three petitions placed before it involving claims made by American Vietnam War veterans, as well as residents of Vietnam, against Dow Chemical, Monsanto, and other manufacturers of Agent Orange. . . . The U.S. military used the herbicide ostensibly to defoliate Viet Cong hiding places during the war, and it has been linked to cancers and other illnesses in those who were exposed to it. . . . The cases denied Monday were Stephenson v. Dow Chemical, Isaacson v. Dow Chemical and Vietnam Association for Victims of Agent Orange v. Dow Chemical. . . . . Justice John Paul Stevens recused in all three cases, as he did in another Agent Orange case (Haas v. Peake) in January, and in a precursor to the Stephenson case in 2003. In the 2003 case, Stevens' recusal resulted in a 4-4 tie that allowed veterans with more recent illnesses to continue to seek part of a 1985 settlement fund created to compensate Agent Orange victims. The Court's denials of review Monday appear to end those claims.

Justice Stevens on Oath-Taking and Dolley Madison

Tony Mauro, Legal Times

3-2-09 -- Supreme Court Justice John Paul Stevens rarely makes public appearances in Washington, D.C., outside the Court, but he made an exception Thursday, speaking before a large crowd at the Newseum's Knight Center. He even made a bit of news, revealing that if he had his druthers, new Supreme Court justices from now on would be sworn in at the Court, not at the White House, to symbolize the Court's independence. . . . Stevens, 88, was at the Newseum to moderate a discussion on the 1803 landmark decision Marbury v. Madison with panelists Clifford Sloan, his former law clerk and currently a partner at Skadden, Arps, Slate, Meagher & Flom, and David McKean, staff director of the Senate Foreign Relations Committee. Sloan and McKean are authors of a new book on the ruling, called "The Great Decision: Jefferson, Adams, Marshall and the Battle for the Supreme Court."

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February 2009

Does the Supreme Court Tweet? Not Yet

Tony Mauro, Legal Times

2-27-09 -- The U.S. Supreme Court Twitter site looks official enough. . . . The home Web site it lists is the same as the Court's, and it seems to send out tweets only when the justices hand down opinions. So is it an official Court site, yet another sign of the Court venturing into the modern era? . . . Bob Ambrogi spotted it and reported on it on his LawSites blog last month, and he was doubtful. The links to Court opinions that it tweets about out send you to a non-Court site, and it just doesn't look right. And as we noted here last week, a Twitter site that appeared to belong to Attorney General Eric Holder Jr. turned out to be a fake. So is the Court Twitter account also an impostor? . . . In response to an inquiry, Supreme Court spokeswoman Kathy Arberg confirmed that the Twitter site is not connected to the Court in any way. So any thoughts you might have had of Justice David Souter fast-forwarding himself into the BlackBerry Age will have to wait.

Justice Alito 'Imagines' John Lennon

Tony Mauro, Legal Times

2-26-09 -- Last year Chief Justice John Roberts Jr. won praise for quoting Bob Dylan in an opinion (a dissent, actually, in Spring Communications Co. v. APCC Services.) Not to be outdone, apparently, Justice Samuel Alito Jr. Wednesday quoted at length from John Lennon. . . . It came in Alito's major ruling in Pleasant Grove City, Utah v. Summum, which redefined monuments placed on public land -- such as a Ten Commandments monument -- as a form of government speech, rather than private speech that can run afoul of the First Amendment's Establishment Clause. Some briefs had argued that if a memorial was to be regarded as a message conveyed by government, the government ought to be forced to embrace the message through a formal resolution. . . . In knocking down that argument, Alito, 58, makes the point that public monuments can convey multiple messages, or messages that change over time. The Statue of Liberty, for example, came to New York as a symbol of friendship between France and the United States, Alito said, and only later became viewed as a beacon welcoming immigrants.

Justice Stevens to Moderate Discussion on 'Marbury'

Tony Mauro, Legal Times

2-25-09 --Supreme Court Justice John Paul Stevens will make a rare public appearance Thursday at the Newseum, marking the publication of a new book on the landmark 1803 decision Marbury v. Madison. . . . Stevens will moderate a discussion with the book's authors, Clifford Sloan and David McKean. Sloan, partner in the Washington, D.C., office of Skadden, Arps, Slate, Meagher & Flom, is a former Stevens clerk. McKean is a Capitol Hill veteran and former chief of staff to Sen. John Kerry, D-Mass. . . . The book, "The Great Decision: Jefferson, Adams, Marshall and the Battle for the Supreme Court," accomplishes what many former law students might not have thought possible: It makes the story of Marbury exciting, not just important. . . . It turns out that Stevens has always found Marbury exciting. The authors describe an interview with Stevens in his chambers last June, in which the justice confided that he tries to cite Marbury in his opinions every chance he can get, explaining that it is "the whole basis for constitutional law" in the United States.

Justice Ginsburg on the Bench as Supreme Court Reconvenes

Tony Mauro, Legal Times

2-24-09 --Looking strong and cheerful, Supreme Court Justice Ruth Bader Ginsburg returned to the bench Monday morning, just 18 days after major surgery related to her diagnosis of pancreatic cancer. Ginsburg, 75, took her place on the bench with a smile. As is the Court's custom, no note was made of her return or her illness. Almost immediately after arguments began, she started asking questions of the advocates before her. . . . During the first argument in United States v. Navajo Nation, an important but dry and technical Indian mining law case, Ginsburg asked seven questions -- roughly on par with her usual inquisitiveness -- and she leaned forward in her chair, fully engaged. She occasionally rocked her chair back and forth, as if impatient to proceed.

Liberals Use Supreme Court Gun Case to Bolster Other Rights

Tony Mauro, Legal Times

2-24-09 --The Supreme Court's 2008 ruling in D.C. v. Heller was a constitutional earthquake, breathing life into the Second Amendment as a guarantee of an individual right to bear arms. . . . But the aftershock of that decision is beginning to transform the constitutional landscape well beyond gun rights, in ways that have liberals cheering and even joining hands with one-time adversaries like the National Rifle Association. . . . In a follow-on case pending before the 7th U.S. Circuit Court of Appeals, a progressive legal group and liberal law professors including Yale Law School's Jack Balkin earlier this month joined gun-rights advocates in urging that the right established in Heller, which involved only the District of Columbia, be extended to apply against gun restrictions in the 50 states. The case is McDonald v. Chicago, a challenge to that city's strict gun control law and, no matter what, the outcome is likely to be appealed to the Supreme Court.

Justice Roberts's Portfolio

Why stock investments and Supreme Court service don't mix

Washington Post Editorial

2-23-09 -- THE PLANNED merger of pharmaceutical firms Pfizer Inc. and Wyeth has created a complication in one of the most important business cases before the Supreme Court this term. . . . The case of Wyeth v. Levine was heard by the justices in November; no decision has yet been rendered. The case, which involves the obscure but important concept of federal preemption, has potential ramifications not just for Wyeth and the pharmaceutical industry, but for a host of other regulated entities looking to shield themselves from state court lawsuits. . . . According to his financial disclosure form, Chief Justice John G. Roberts Jr. owns stock in Pfizer. Now that Pfizer plans to merge with Wyeth, the chief justice's investment will be directly affected by the court's decision. . . . Even though the deal has not closed, probably will not be finalized before the end of the term and could fall apart, Chief Justice Roberts should divest himself of the Pfizer stock.

Legal Experts Propose Limiting Justices' Powers, Terms

By Robert Barnes, Washington Post Staff Writer 

2-23-09 -- If we had it to do all over again, would we appoint Supreme Court justices for life? Allow the chief justice to keep the job forever? Let the court have the final word on which cases it hears and those it declines? . . . A group of prominent law professors and jurists thinks not, and the group says in a letter to congressional leaders that there is no reason Congress should consider the operation of the high court sacrosanct. . . . "We do not suggest, and would oppose, any interference with the substance of the court's work," says the letter, which was organized by Duke University law professor Paul D. Carrington and signed by 33 others from different stations on the political spectrum. . . . But the group said Congress has every right to address how the court operates, "a subject it appears not to have seriously considered for at least seventy years."

Ginsburg Is Back on the Bench, Despite Senator’s Gloomy Prediction

By Debra Cassens, Weiss ABA Journal

2-23-09 -- U.S. Supreme Court Justice Ruth Bader Ginsburg is back on the bench and is in her usual inquisitive form, less than three weeks after undergoing surgery for pancreatic cancer. . . . MSNBC described Ginsburg as “beaming” as she entered the courtroom. During oral arguments, she was a “frequent and energetic questioner,” the story reports. CBS News and Bloomberg also had stories. . . . Ginsburg’s mood may surprise Sen. Jim Bunning, R-Ky., who predicted on Saturday that Ginsburg could likely die within nine months, according to an account in the Louisville Courier-Journal. Ginsburg has "bad cancer. The kind that you don't get better from," Bunning said. . . . "Even though she was operated on, usually, nine months is the longest that anybody would live after [being diagnosed] with pancreatic cancer,” Bunning reportedly said.

Why Marbury V. Madison Still Matters

More than 200 years after the high court ruled, the decision in that landmark case continues to resonate.

By Cliff Sloan and David McKean | Newsweek

Published Feb 21, 2009, From the magazine issue dated Mar 2, 2009

Tuesday, Feb. 24, is the 206th anniversary of Marbury v. Madison, the most important decision the Supreme Court—and perhaps any court—has ever issued. The late chief justice William Rehnquist hailed it as "the most significant single contribution the United States has made to the art of government"; nations around the world look to Marbury as they work to create institutions that will protect the rule of law. As the United States thinks anew about its commitment to these rules, it would serve us well to draw on the wisdom of this landmark decision. . . . Marbury v. Madison emerged from a fight about "midnight judges" in 1801. In the final days of his presidency, John Adams worked with Federalists in Congress to pack the federal courts and the new capital with Federalist appointees. Days after his inauguration, the new president, Thomas Jefferson (of the rival Democratic-Republican party) noticed a pile of letters sitting on a table at the State Department. Realizing that they were commissions for Federalists that mistakenly had not been sent, Jefferson forbade their delivery. One of the commissions was for an ambitious man named William Marbury. . . . Marbury sued James Madison, Jefferson's secretary of state, in the Supreme Court, claiming that he had a right to the commission. The court, headed by John Marshall (Jefferson's hated cousin), issued a preliminary order requiring the Jefferson administration to explain its position. Jefferson's Republicans exploded: they shut down the high court for more than a year. Finally, in February 1803, the court issued a unanimous opinion. It blasted Jefferson and Madison for not following the law by blocking delivery of the commissions. But then the court said that the law giving individuals the right to file a lawsuit directly to the Supreme Court was unconstitutional because, under the Constitution, the Supreme Court hears appeals only from other courts. It was the first time it had struck down an act of Congress. Marshall wrote, "It is emphatically the province and duty" of the courts "to say what the law is."

Chief Justice Roberts on Rehnquist and on Achieving Consensus

Tony Mauro, Legal Times

2-18-09 -- Chief Justice John Roberts Jr. was in an expansive and reminiscing mood earlier this month in his talk at the Rehnquist Center at the University of Arizona Rogers College of Law. In the Feb. 4 talk (video available here), Roberts also revealed one of his key strategies for achieving consensus on the Court through the assignment of opinion-writing. . . . Roberts recalled Rehnquist, for whom he clerked, as one of the "two or three most significant successors" to the great Chief Justice John Marshall. Rehnquist personified the saying, "Clothes do not make the man," Roberts said, recalling his "Buddy Holly" glasses, his Hush Puppies shoes and his ties that were "never fashionable." . . . Rehnquist's legacy, Roberts said, was embodied in two of the questions he would ask most often of oral advocates before him, namely, "What does the statute say?" and "Which of our cases support that proposition?" That kind of discipline brought a "seismic shift" from the "more fluid and wide-ranging" approach to constitutional law in prior courts that was "more in the realm of political science," to one based more on legal text and legal precedent. As Adam Liptak in The New York Times noted Tuesday, Roberts linked that shift as well to the fact that every member of the current court is a former appeals court judge.

Law Profs, Former Judges, Attorneys Urge Major Reforms for Supreme Court

Marcia Coyle, The National Law Journal

2-12-09 -- A group of 33 law professors, former state supreme court justices and practitioners are urging the attorney general and the heads of the Senate and House judiciary committees to consider four changes in the operation of the U.S. Supreme Court, including regular appointment of justices and the involvement of appellate judges in the selection of cases to be decided on the merits. . . . The group sent the proposals in draft legislative form and noted that all of its members do not support all of the proposals, but are "unanimous" that it is time for Congress to reconsider the law applicable to the Supreme Court, "a subject it appears not to have seriously considered for at least 70 years." . . . The proposals grew out conversations among the group's members over a period of years, said professor Paul Carrington of Duke Law School. . . . Although the members are not unanimous on all four proposals, Carrington added, "All of them have one background thought -- the Supreme Court has gotten a little too big for its britches and it would be good for Congress to enact a law or two that says, 'You're part of an enterprise that we have some power over.' "

Law profs, former judges, attorneys urge major reforms for high court

Marcia Coyle / Staff reporter

2-10-09 -- A group of 33 law professors, former state supreme court justices and practitioners are urging the attorney general and the heads of the Senate and House judiciary committees to consider four changes in the operation of the U.S. Supreme Court, including regular appointment of justices and the involvement of appellate judges in the selection of cases to be decided on the merits. . . . The group sent the proposals in draft legislative form and noted that all of its members do not support all of the proposals, but are "unanimous" that it is time for Congress to reconsider the law applicable to the Supreme Court, "a subject it appears not to have seriously considered for at least 70 years." . . . The proposals grew out conversations among the group's members over a period of years, said professor Paul Carrington of Duke Law School. . . . Although the members are not unanimous on all four proposals, Carrington added, "All of them have one background thought — the Supreme Court has gotten a little too big for its britches and it would be good for Congress to enact a law or two that says, `You're part of an enterprise that we have some power over.' "  . . . In its letter to the public officials, the group notes that Congress has given "scant attention" to the role and structure of the third branch since the "Court-packing" proposal of 1937.

Should Chief Justice Recuse in Landmark 'Wyeth' Case?

Tony Mauro, Legal Times

2-10-09 -- One of the top cases of the current Supreme Court term is Wyeth v. Levine, asking whether a state law tort action challenging the labeling on a Wyeth drug is pre-empted by federal law. The Court heard the case last November, and presumably voted privately on how to decide it days later. But a decision has not yet emerged. . . . Now, the outcome of the case could be in question, because of the recent announcement by Pfizer Inc. that it would acquire Wyeth. Chief Justice John Roberts Jr. owns Pfizer stock that has prompted his recusal in previous cases. The outcome of the Levine case is likely to affect Wyeth's value, and in turn Pfizer's. . . . On Feb. 4, Wyeth's lawyer before the Court, Seth Waxman of Wilmer Cutler Pickering Hale and Dorr sent a letter to the clerk of the Supreme Court informing the Court of the pending transaction. But Waxman told the Court that because of pending stockholder approvals and other matters, the transaction will not be completed until July 31 at the earliest -- weeks after the end of the Court term, by which time its decision would have been released.

Uncertainty for High Court in Wake of Ginsburg Health News

Tony Mauro, Legal Times

2-9-09 -- The stunning news on Feb. 5 of Justice Ruth Bader Ginsburg's tough new battle with cancer instantly changed the dynamics of the Supreme Court, posing painful challenges not only for the feisty justice but for the other justices and the Obama administration. . . . With unusual transparency, the typically close-mouthed Court announced that Ginsburg was diagnosed with "early-stage" pancreatic cancer in late January and underwent surgery for removal of a one-centimeter tumor from her pancreas. . . . The 75-year-old justice is expected to stay in the Memorial Sloan-Kettering Cancer Center in New York at least through Thursday. A day after her surgery, Ginsburg let it be known through Court spokeswoman Kathy Arberg that she plans to be on the bench when the Court's current recess ends Feb. 23. . . . The immediate round of media speculation about her possible retirement -- and who might replace her -- may even bolster her determination to remain on the Court, says one Court watcher.

Ginsburg Illness Stirs Speculation About Court Departures

Tony Mauro, Legal Times

2-6-09 --Justice Ruth Bader Ginsburg underwent surgery in New York City on Thursday to treat early-stage pancreatic cancer, the Supreme Court announced. The 75-year-old justice is expected to remain at Memorial Sloan-Kettering Cancer Center for seven to 10 days. . . . A press release from the Court issued Thursday afternoon indicated a tumor in her pancreas was discovered during a routine annual checkup in late January at the National Institutes of Health in Bethesda, Md. The announcement offered no assessment of the success of the surgery or future treatments. The Court is on a long recess, not returning to the bench until Feb. 23. . . . In 2008, according to the National Cancer Institute, 37,680 people in the United States were diagnosed with pancreatic cancer, and 34,290 people died of the disease. Surgical removal of the tumor at an early stage is a good sign for treatment, but the Mayo Clinic Web site states, "Pancreatic cancer often has a poor prognosis, even when diagnosed early." Ginsburg recovered quickly from colorectal cancer in 1999. . . . See video of Legal Times Supreme Court correspondent Tony Mauro discussing Justice Ginsburg's surgery and the Court's history of grappling with justices' health issues.

Chief Justice Roberts Worries About 'Partisanship'

Arthur H. Rotstein, The Associated Press, Law.com

2-6-09 --Chief Justice of the United States John Roberts said he is troubled by the increasingly politicized nature of the Senate judicial confirmation process. . . . During a question-and-answer session Wednesday after an address at the University of Arizona, Roberts was asked whether growing partisanship in the confirmation process poses a significant threat to the independence of the judiciary. . . . "The courts as a whole are very concerned about partisanship, politicization, seeping into the judicial branch," he said. . . . Roberts said he thought he was treated fairly during his confirmation hearings, receiving "significant support from both sides of the aisle. But that's not always the case, and what do we do about it?

Rehnquist Led ‘Seismic Shift’ on Supreme Court, Chief Justice Roberts Says
By Martha Neil, ABA Journal

2-4-09 -- The late William H. Rehnquist was one of the most important leaders the U.S. Supreme Court has ever had, a former Rehnquist clerk who followed in his footsteps and is now the court's current chief justice said in a lecture at the University of Arizona's law school today. . . . After Rehnquist, who was then 47, joined the court in 1972, and particularly after he was made chief justice in 1986, he became a catalyst for a "seismic shift" in its analysis and arguments to "the more solid grounds of legal arguments--what are the tests of the statutes involved, what precedents control," said Chief Justice John G. Roberts Jr. . . . Roberts also credited the current court's record-breaking line-up--every member was formerly on the U.S. Court of Appeals bench--for its focus on "a more legal perspective and less of a policy perspective," reports the Associated Press.

Scalia Chastises Student for ‘Nasty, Impolite Question’ on Court Cameras
By Debra Cassens Weiss, ABA Journal

2-4-09 -- A 20-year-old student got an icy retort from Justice Antonin Scalia on Tuesday when she asked why cameras are 2-4-09 -- not permitted in the U.S. Supreme Court. . . . Sarah Jeck, a 20-year-old political science student at Florida Atlantic University, asked about cameras during a question-and-answer session at a luncheon in West Palm Beach, Fla., that was partly a promotion for Scalia’s recent book, the Sun-Sentinel reports. Jeck asked why cameras are banned, even though court hearings are open, transcripts are provided and justices “go out on book tours.” . . . "Read the next question," Scalia replied, according to the Sun-Sentinel account. "That's a nasty, impolite question." . . . Scalia is on tour to promote his book, Making Your Case: The Art of Persuading Judges. . . . Later, Scalia returned to Jeck’s question, according to the Palm Beach Post. Scalia said he favored courtroom cameras at the time of his appointment in 1986. But he came to believe that "most people will only see 30-second takeouts" that would not give a true impression of oral arguments, the story says.

Retired U.S. Supreme Court justice sits in on cases at Tulane Law School

by Susan Finch, The Times-Picayune

2-4-09 -- Arguments on three cases pending before the 5th U.S. Circuit Court of Appeals took place Tuesday at Tulane Law School before a panel of judges that included retired U.S. Supreme Court Justice Sandra Day O'Connor. . . . Turns out that out neither the venue nor the participation of a former Supreme Court justice in the hearings is unprecedented for the 5th Circuit, which decides appeals from lower federal courts in Texas, Louisiana and Mississippi. . . . Though the appeals court holds most hearings at its 600 Camp St. headquarters, its usual practice is to sit two to three times a year in cities outside New Orleans and at least once annually at a law school, 5th Circuit Clerk of Court Fritz Fulbruge said.

Scalia on 2000: 'Get over it'

By George Bennett, Palm Beach Post Staff Writer

2-3-09 -- Eight years after he and four of his U.S. Supreme Court colleagues effectively decided the 2000 presidential election, Justice Antonin Scalia visited this hotbed of recount passion Tuesday and was asked to reflect on the momentous Bush vs. Gore decision. . . . "My response to that is always: Get over it," Scalia told a packed Forum Club of the Palm Beaches luncheon. . . . Alternating between earthiness and erudition, Scalia laid out his "originalist" approach to the Constitution during a 40-minute speech, mixed it up with audience members in a question-and-answer session, then promoted his recent book, Making Your Case: The Art of Persuading Judges. . . . The book promotion led Florida Atlantic University student Sarah Jeck to ask Scalia if the Supreme Court's opposition to having its proceedings televised was "vitiated" by, among other things, "Supreme Court justices going out on book tours."

How do U.S. Supreme Court justices time retirement? The answer may not be what you think.

Marcia Coyle / Staff reporter

2-3-09 -- Do U.S. Supreme Court justices, as some historical evidence suggests, time their retirements with an eye to the partisan or political affiliation of the president or the Senate majority? No, when it comes to retirement decisions, justices care more about power than party and policy, according to a new empirical study.
. . . As court watchers ramp up speculation about possible retirements this term because of the election of President Barack Obama — viewed by some as a "favorable" political climate particularly for potential retirees justices John Paul Stevens, Ruth Bader Ginsburg and David H. Souter — two political scientists at Santa Clara University found that justices commonly are not "strategically" retiring in the modern era despite historical evidence that some justices have.

Commentary: Justice Scalia's Contradictions
and Euro-Bashing

Michael D. Goldhaber, The American Lawyer

2-2-09 -- Invited to compare the American and Jewish legal traditions of privacy, Justice Antonin Scalia reached out to criticize the European tradition. . . . Speaking Wednesday at a conference organized by the Institute of American and Talmudic Law, which is affiliated with the Chabad Lubavitch movement, Scalia argued that, under a proper conception of the judicial role, judges have little to say about privacy. He drew a sharp contrast with the European Court of Human Rights, which has developed an expansive jurisprudence on the right to respect for private life, based on a dynamic interpretation of the European Convention of Human Rights Article 8. . . . Scalia pointed to a 2000 ruling by the Strasbourg-based European court, holding that Britain had violated the Convention's guarantee of privacy when it prosecuted five men for gross indecency based on private group sex. The justice referred to the conduct in A.D.T. v. United Kingdom as a "five-man homosexual orgy." Scalia joked: "The Court didn't say how many people you need [for the conduct to become public]. Presumably it's somewhere between five and the number it takes to fill the Coliseum." . . . Although Scalia protested that he was unqualified to pronounce on Jewish law ("my Daf Yomi attendance has been lackluster"), he was drawn later in the afternoon into a comparison of the American and Jewish legal traditions with respect to gossip.

January 2009

Obama, Chief Justice Roberts Prepare to Face Off on Judicial Cases

The ideological differences between the president and Chief Justice Roberts are certain to throw them on opposite sides of the courtroom this year on cases covering national security and affirmative action.

By Stephen Clark, FOXNews.com

1-30-09 -- President Obama and Chief Justice John Roberts are a couple of 40-something Harvard Law School grads. And that may be all they have in common. The liberal chief executive and the conservative jurist appear to mix about as well as oil and water. . . . Their first public face-to-face got off to a bumpy start on Inauguration Day, when millions watched them fumbled their way through the presidential oath of office. . . . They got it right a day later, when Roberts went to the White House to faithfully re-administer the oath to the new president. But that won't be the last face-off between the Washington powerhouses. . . . Obama's legal team will go before the Supreme Court this year to argue cases covering numerous issues, and most observers expect the president's lawyers to throw lefts and the chief justice to counter with rights.

Will Souter Resign? Is Alito Angry? Reporter Dishes with Readers

By Debra Cassens Weiss, ABA Journal

1-28-09 -- The Washington Post’s U.S. Supreme Court reporter speculates on the possibility of a resignation by one Supreme Court justice and a grudge by another in a question-and-answer session with readers. . . . Robert Barnes, who covers the high court, doesn’t agree with talk that Justice David H. Souter will step down in June. “I think they would agree that predicting a Supreme Court vacancy is the hardest thing in politics,” he says in the Washington Post. “There is no question that Souter does not like Washington, but that doesn't mean he doesn't like being a Supreme Court justice. Again, we will all be nervously watching the end of the term, but I would not be surprised if no one left the court this year.” . . . Another reader wants to know more about Justice Samuel A. Alito Jr. and notes (as reported in the Los Angeles Times) that he did not attend a meet-and-greet session with Barack Obama and Joe Biden, both of whom voted against the justice’s confirmation. “Is [Alito] as much of a problem as he seems?” the reader wants to know. In the reader’s estimation, Chief Justice John G. Roberts Jr. “comes across to me as truly having a judicial temperament and leadership, but Alito seems like a guy with a chip on his shoulder.”

Take Two: The Presidential Oath, Done Right

Tony Mauro, Legal Times

1-23-09 -- After a day of derision and debate over the flubbed presidential oath administered to President Barack Obama on Tuesday, the two principals -- Obama and Chief Justice John Roberts Jr. -- met again at the White House Wednesday night for a do-over. This time, according to a hastily gathered press pool, Roberts and Obama said the right words in the right sequence. The constitutional cloud, if there was one, has dissipated. . . . According to an an Associated Press report, White House counsel Gregory Craig issued this statement before the second oath on Wednesday evening: "We believe the oath of office was administered effectively and that the president was sworn in appropriately yesterday. Yet the oath appears in the Constitution itself. And out of the abundance of caution, because there was one word out of sequence, Chief Justice John Roberts will administer the oath a second time."

After Flub, Experts Say, A Do-Over Couldn't Hurt

By Josh White, Washington Post Staff Writer   

1-21-09 -- The presidential oath of office is required of a new president before he can execute his powers, and the Constitution is clear that its 35 words must be spoken exactly. . . . Which is what makes the oath President Obama took yesterday so interesting. It might be that the more than 1 million spectators didn't actually witness Obama being sworn in. . . . Because of a noticeable gaffe by Chief Justice John G. Roberts Jr., Obama transposed the words. He should have said he will "faithfully execute the Office of President of the United States" but instead said he will "execute the Office of President of the United States faithfully." . . . Constitutional law experts agree that the flub is insignificant. Yet two previous presidents -- Calvin Coolidge and Chester A. Arthur -- repeated the oath privately because of similar issues.

Who flubbed the presidential oath?

Legal Times, Tony Mauro

1-20-09 -- Well, at least no one dropped the Bible. (That happened at one of Franklin Roosevelt's inaugurations.) But the swearing-in of Barack Obama did not go entirely smoothly. Chief Justice John Roberts Jr., apparently working without notes, started prompting Obama with the words, but Obama jumped in a shade too early — which then knocked Roberts off stride. They started over, but then Roberts mixed up a few words. Obama started to respond, but he paused as if waiting for Roberts to say the words correctly — or at least say them again. Then it got more or less back on track. . . . Here is the text of the oath as it is supposed to read: . . . "I (name) do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States." (The words "so help me God" are added if the president wants them — and Obama did.) . . . Here, from MSNBC, is exactly how it went:

ROBERTS: I, Barack Hussein Obama...
OBAMA: I, Barack...
ROBERTS: ... do solemnly swear...
OBAMA: I, Barack Hussein Obama, do solemnly swear...
ROBERTS: ... that I will execute the office of president to the United States faithfully...
OBAMA: ... that I will execute...
ROBERTS: ... faithfully the office of president of the United States...
OBAMA: ... the office of president of the United States faithfully...
ROBERTS: ... and will to the best of my ability...
OBAMA: ... and will to the best of my ability...
ROBERTS: ... preserve, protect and defend the Constitution of the United States.
OBAMA: ... preserve, protect and defend the Constitution of the United States.
ROBERTS: So help you God?
OBAMA: So help me God.
ROBERTS: Congratulations, Mr. President.

Inside the High Court: A Heist Movie, a Fable and a Rich Dessert

Laurel Newby, Law.com

1-15-09 -- In several colorful moments during Supreme Court arguments Wednesday, Chief Justice John Roberts Jr. confessed to a sweet tooth, Justice Antonin Scalia cited an Aesop's fable, and Justice Ruth Bader Ginsburg gave arguing counsel a lesson in 1950s cinema. . . . THE DOG IN THE MANGER . . . During argument in Puckett v. United States, the justices considered a case in which the government breached a plea agreement at a sentencing hearing and the defendant failed to object until the appeals stage. The appellant, James Benjamin Puckett, argues that the government's breach of the agreement requires automatic reversal, and the government says the breach is subject to a plain-error standard of review.

Obama and Biden Come Calling on the Supreme Court

Tony Mauro, Legal Times

1-15-09 -- President-elect Barack Obama and Vice President-elect Joseph Biden visited the Supreme Court late Wednesday afternoon for a highly private, hourlong courtesy call that included chatting around a Court fireplace with eight of the nine justices. . . . Continuing the occasional practice of pre-inaugural visits by incoming presidents and vice presidents to the high court in recent decades, Obama and Biden arrived at 3:45 p.m. and left almost exactly an hour later after their fireside discussion and a brief tour of the Court chamber and the justices' conference room. . . . According to Court officials, all the justices except Samuel Alito Jr. joined Obama and Biden in the Court's stately west conference room, where they sat in high-backed chairs arranged around the fireplace. "Light refreshments" were served. Also on hand were Jeff Minear, counselor to Chief Justice John Roberts Jr., Gregory Craig, Obama's choice for White House counsel, and Alan Hoffman, Biden's deputy chief of staff. No explanation was given for Alito's absence.

Chief Justice 'Definitely a Gentleman,' Says Process Server

Mike Scarcella , Legal Times

1-13-09 -- There was no clandestine surveillance, no hiding behind bushes or in a parked car. . . . Daniel Portnoy says he walked up the driveway and knocked on the front door. The homeowner opened the door. . . . Portnoy and the man chatted for a minute and parted ways. Mission accomplished. Chief Justice John Roberts Jr. accepted service of a U.S. District Court summons at home, Portnoy says. . . . "Obviously this guy was outstanding. He could have quoted legal scripture to me for a week and a half," Portnoy recalls of his trip to the Roberts home in Chevy Chase, Md., the night of Jan. 4 about 8 p.m. "He was very respectful in a situation where he didn't have to be."

High Court Justices to B,  Treated to Sevilla Discourse

Tony Mauro, Legal Times

1-13-09 -- San Diego lawyer Charles Sevilla may be greeted with bemused grins today when he rises to argue before the Supreme Court in Knowles v. Mirzayance. . . . A well-known criminal defense lawyer in California, Sevilla also made a name for himself as a trenchant writer of legal humor in the 1990s. Writing under his own name and pen name Winston Schoonover, Sevilla created John Wilkes, a New York defense lawyer who is no fan of "black-robed butchers," aka judges. The life span of a judge, he wrote, is like that of a lemon tree: "sweet blossoms turning to bitter fruit." . . . In an interview last week, Sevilla said he wrote legal humor as "therapy for battered-lawyer syndrome." . . . The justices should not take offense, Sevilla adds; his character loves appellate judges, especially when they save him from being jailed for contempt. "He's not an anarchist. He believes in the rule of law, especially when his hide is on the line."

For the Supreme Court, Tradition Is on Tap at Inaugural

Tony Mauro, Legal Times

1-5-09 -- When John Roberts Jr. told the Senate in 2005 that judges should be like umpires, applying the rules of others, he added a touch of judicial modesty: "Nobody ever went to a ballgame to see the umpire." . . . On Jan. 20, the same might be said of Roberts himself: None of the millions of people gathering for Barack Obama's historic inauguration will be there to see the chief justice as he administers the oath. . . . Yet there Roberts will be, continuing a long tradition -- and it is only tradition, not law -- that joins the Supreme Court and the presidency at a crucial time of transition in the nation's life. Justice John Paul Stevens will also be featured as he swears in Joe Biden as vice president moments before Roberts swears in Obama. . . . For a branch of government that does not get out much, it is also a rare moment of visibility, when the public sees the black-robed enigmas who make up the Supreme Court -- some of them wearing funny black skull caps. More about the caps later, but the inauguration opens a window on how the fates of the two branches are intertwined.

Chief Justice's Annual Report on the Judiciary:
Costs Are Down, and Pay Needs to Go Up

Tony Mauro, Legal Times

1-2-09 -- In his year-end report on the state of the federal judiciary released Wednesday evening, Chief Justice John Roberts Jr. praised the courts as frugal, dedicated and crucial to the life and economic recovery of the nation. But to keep the courts strong, Roberts said -- as he has urged in the past -- Congress needs to pass pay raises, or at least cost-of-living increases, for federal judges as soon as possible. . . . "Given the judiciary's small cost, and its absolutely critical role in protecting the Constitution and rights we enjoy, I must renew the judiciary's modest petition: Simply provide cost-of-living increases that have been unfairly denied!" Roberts wrote in his report. "We have done our part -- it is long past time for Congress to do its." . . . As his use of an exclamation point suggests, the tone of Roberts' written report betrays his frustration that his calls -- and those of his predecessor William Rehnquist -- for judicial pay increases have fallen on deaf ears in Congress. "I suspect many are tired of hearing it, and I know I am tired of saying it, but I must make this plea again -- Congress must provide judicial compensation that keeps pace with inflation," Roberts wrote.

How Did They Get It So Wrong?

Left and right differ on the decisions, but each side has its ‘worst’ list
By David G. Savage, ABA Journal

01-09 ISSUE -- What are the worst decisions of the U.S. Supreme Court? Historians and court scholars agree on a pair of 19th century opinions: Dred Scott v. Sandford, the 1857 ruling that upheld slavery even in the free states, and Plessy v. Ferguson in 1896, which condoned segregation as “separate but equal.” . . . The World War II decision Korematsu v. United States (1944) is usually cited as well. There the court upheld the detention of more than 110,000 Japanese-Americans. . . . After that, it depends on which side of the political aisle the experts occupy. Liberal court observers pick Bush v. Gore, as well as decisions viewed as setbacks to civil rights. Conservatives, meanwhile, point to the abortion rulings and those that widened the church-state separation. . . . The debate was prompted by the publication last year of the book The Dirty Dozen: How 12 Supreme Court Cases Radically Expanded Government and Eroded Freedom. It was written by two prominent libertarians, Robert A. Levy of the Cato Institute and William Mellor of the Institute of Justice. The pair surveyed 74 “like-minded legal scholars” who agree the court has all but abdicated its duty to protect “economic liberties” and “property rights.”

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