U.S. Supreme Court 2007 News & Views

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December 2007

A Historic Find Behind a Supreme Court Filing Cabinet

A copy of the Declaration of Independence sat forgotten at the high court. Now it's cleaned up and on display

Tony Mauro, Legal Times

12-28-07 -- For the past year, a rare early copy of the Declaration of Independence has hung unassumingly in a side hallway at the Supreme Court. . . . But how did it get there, and where was it before it went on public display? Therein lies a tale. . . . Court officials confirmed last week that the 1824 vellum copy had spent seven forgotten years hidden behind a filing cabinet at the Court clerk's office, until it was discovered in 2003, fixed up and displayed for public viewing in 2006. . . . The copy, one of only 200 made from the 1776 original, would likely fetch $500,000 or more if sold on the open market, according to an expert dealer in historic documents. . . . The story of the document begins in 1820, when then-Secretary of State John Quincy Adams ordered copies made of the declaration, out of concern about the condition of the 1776 original. The document signed in Philadelphia had been kept in several locations, had been furled and unfurled, and was already beginning to fade.

Ginsburg, Scalia strike a balance

By Joan Biskupic, USA TODAY

12-26-07 -- She is the nation's top female judge, a former ACLU lawyer who embodies the women's liberation movement of the 1970s. . . . He is a die-hard conservative who helped found the Federalist Society and who personifies the Republican effort to remove judges from America's social debates. . . . From the bench, she speaks in a slow, measured voice. Her hypothetical questions about lawyers feature a generic "she," not the conventional "he." . . . He is brash, fast-talking and wise-cracking. He could never be accused of being politically correct. . . . Yet this New Year's Eve, as they have done for more than two decades, Justice Ruth Bader Ginsburg and Justice Antonin Scalia will join with their spouses and another couple or two at the Ginsburgs' large Watergate apartment. After the caviar and wine, they may dine, as they have in the past, on something Scalia has bagged on one of his hunting trips.

Newly Disclosed Documents Shed More Light on Scalia's 'Hattiesburg Incident'

Tony Mauro, Legal Times 

12-14-07 -- The U.S. Marshals Service has released, with minor redactions, the report on its internal investigation of what it calls the "Hattiesburg Incident" of April 7, 2004. That's when a deputy U.S. marshal in the Mississippi city directed two local reporters who were covering a speech by Supreme Court Justice Antonin Scalia to erase their recordings of the speech, believing she was enforcing the justice's policy against recording his public talks. . . . When the marshal's actions were reported in the media at the time, Scalia took the unusual step of apologizing to the reporters by letter, taking blame for the marshal's actions. Scalia said he had failed to clarify his policy, which is to allow print reporters to record his talks for note-taking purposes, not for broadcast. But the reporters' employers, The Associated Press and the Hattiesburg American, lodged protests with the service and complained that the journalists' First Amendment rights in a public forum had been violated. The internal investigation ensued, after which the service's lawyers concluded no laws had been violated. At first the marshal's service withheld the investigative report from public view, but the Hattiesburg paper sued and the agency relented.

Commentary: Let the People See Justice

For the good of the nation, the Supreme Court's oral arguments belong on television

Brian Wommack, Legal Times

12-03-07 -- Justice David Souter once famously told a congressional committee that "the day you see a camera come into our courtroom, it's going to roll over my dead body." The courtroom sketch artists may agree with the sentiment, but in this age of transparency, isn't it high time we invited cameras, and thus the American people, into the Supreme Court? . . . Cameras -- both still and moving -- met a hostile reaction back in 1965 in the famous Supreme Court case of Estes v. Texas. There the high court reversed the conviction of notorious financier Billy Sol Estes, finding that his right to due process had been violated because of the publicity his pretrial hearing generated. That hearing was covered live by both TV and radio, which all sides conceded had caused considerable disruption. . . . Today's technology makes it possible to broadcast a trial without disrupting the proceedings. Many states now allow cameras in their courtrooms, and federal courts have experimented with them as well. In all courtrooms where cameras are allowed, judges have the final say -- they may exclude cameras if the cameras might jeopardize a fair trial. But even with this safeguard to protect the rights of litigants, the Supreme Court has remained flatly opposed to cameras in its courtroom.

A Little Less Conversation

by Benjamin Wittes

12-03-07 -- The wrong-headed movement to force judicial nominees to open up more in Senate confirmation hearings. . . . Sen. Ted Kennedy has drawn a line in the sand. Writing in the The American Prospect on November 19, the liberal lion declared that "the Senate needs to reform the process by which it considers Supreme Court nominees." The first two years of service by Chief Justice John Roberts and Justice Samuel Alito, he argues, degrade "the commitment to open-mindedness, modesty, and compassion that they professed during their confirmation hearings." And the senator's not going to take it any more: "General platitudes are no substitute for concrete statements about a nominee's constitutional views. The Senate should require more from Supreme Court nominees"--specifically, more written information and more answers to more questions. In the future, he says, "Questions about decided cases should be at the heart of confirmation hearings.... It does not compromise the integrity or impartiality of the judiciary to require nominees to tell the Senate what they think about specific legal issues."

November 2007

Chief Justice Declines to Provide Health Update

Tony Mauro, Legal Times 

11-30-07 -- Nearly four months after he suffered a seizure near his summer home in Maine, Chief Justice John Roberts Jr. is still declining to answer questions from the press and the public about the status of his health, his diagnosis, or the treatment or medications he might have been prescribed. . . . At the time the episode occurred in late July, some medical experts said the seizure -- paired with one he had in 1993 -- meant he had epilepsy, with possible consequences for his safety while driving and the prospect of taking anti-seizure medications that could affect him at work. . . . Friends say that off the bench, the 52-year-old Roberts is in good spirits and seeming good health, and he does not talk about the episode. On the bench and around the Court, no impairment or change in his behavior has been noted.

‘This Is Not Perry Mason’

Paul Bedard

11-30-07 -- There's a reason why Supreme Court Justice Clarence Thomas doesn't talk much from the bench: He thinks judges should be seen and not heard. "My colleagues should shut up!" he says. In a rare scolding of his fellow judges, Thomas Wednesday night took off after those who ask questions and debate cases out loud during oral arguments while defending his own, oft-criticized, silent treatment. . . . Asked at an event honoring Winston Churchill sponsored by independent Michigan school Hillsdale College if he would talk more from the bench to "give us relief" from the other chatty judges, Thomas said, "I don't think it's my job to give you relief." Thomas noted that through history, most top judges rarely asked questions. "What's changed? Have the laws changed? What's changed? And why are all these questions necessary? That should be the question," he demanded of the near epidemic level of judicial questioning at Supreme Court hearings.

Scalia to Join Supreme Court Book Club

The justice is collaborating with legal writing guru Bryan Garner on a book about the art of persuading judges

Tony Mauro, Legal Times

11-28-07 --While Supreme Court Justice Clarence Thomas has been out publicizing his bestselling memoir, fellow conservative Antonin Scalia has been quietly writing a book of his own. But Scalia's probably won't be a chart-topper -- except among lawyers. . . . Without fanfare or publicity, Scalia and Bryan Garner, the legal writing guru, have joined to co-author a book on the art of persuading judges, both orally and in written briefs. . . . Even though the irrepressible Scalia sometimes irritates rather than persuades the eight judges he happens to work with, the book seems destined to be a must-read for lawyers whose work brings them into courts. As Scalia is often viewed as the Court's best and most entertaining writer, his participation in the project is sure to invite comparison with a guidebook on ballet by Baryshnikov or on golf by Tiger Woods. . . . "Justice Scalia is a very serious student of advocacy," says Garner, whose Dallas-based LawProse Inc. runs extensive CLE training for lawyers on writing. "The idea is that we can make an important contribution to legal literature... and discuss basic principles of argumentation, rhetoric, and judicial persuasion."

Justice Stevens and the tipping point

J. Scott Applewhite / Associated Press

THE JUDGE: Justice John Paul Stevens chats with Chief Justice John G. Roberts. Justice Ruth Bader Ginsburg is at left. Stevens was appointed to the high court in 1975. . . . How the Supreme Court would look if its strongest liberal voice, now 87, were to exit may well depend on the presidential election.

By David G. Savage, Los Angeles Times Staff Writer

11-26-07 -- Justice John Paul Stevens, 87, last week became the second-oldest justice in the Supreme Court's history. Only Justice Oliver Wendell Holmes, who retired at 90 in 1932, served to an older age. . . . Although Stevens has given no hint of retiring and shows no sign of slowing down -- in the courtroom, he looks and sounds much as he did 20 years ago -- the question of his tenure looms over the court and the 2008 presidential campaign. . . . If there is a tipping point in the Supreme Court's future, it is likely to come with his departure. What kind of justice would replace him -- and how strong the court's slim conservative majority would be -- may well depend on who is elected president.

Who Guards the Custodians?
Responses to Justice O'Connor

David C. Rose, Professor and Chair Department of Economics, University of Missouri-St. Louis

11-19-07 --Regarding "Justice for Sale" by Sandra Day O'Connor (op-ed, Nov. 15), I share Justice O'Connor's concerns about the politicization of judges. In my view, the problem began with the rise of consequentialist moral philosophy in law schools. In a nutshell, this approach to moral philosophy holds that right and wrong is about ultimate effects; it is not about following the rules or obeying moral principles. . . . The problem is that the Founding Fathers were largely non-consequentialists. This means our Constitution was written by men who presumed that law would be interpreted by judges in a principled manner. They were not, however, so naïve as to think that politics would be so principled, of course. In any case, once law schools began actively inculcating an ethic of non-consequentialism, each subsequent generation of judges became more comfortable with the idea that greater good rationalizations are morally and legally respectable. This opened the door for judicial activism. . . . With the rise of judicial activism, however, a more direct route opened up. This route was first taken largely by liberal activists. After three decades of this, conservative activists got tired of what they perceived to be an increasingly rigged game, so now they are joining in. So the problem isn't politics per se. But in this case politics is a symptom of a deeper problem: having judges who issue decisions more because of their own desire to effectuate an outcome than because of what is required by a principled reading of the law. If we are to remain a country of laws and not men, this is a frightening development. But the solution is not to lament that conservative activists are no longer taking it on the chin. The solution is to begin turning back the tide of consequentialist moral philosophy in America's law schools. [More]

High court matters in '08 vote

Today’s justices illustrate how the balance of power can shift in ways that can affect everyday lives. That means you.

By Tony Mauro

11-14-07 -- Presidential candidate Rudy Giuliani knows how important the U.S. Supreme Court is. He ought to; he once argued a case there. It was in 1983, and he won it for the Gipper — President Reagan — in a case that strengthened the law against bank robbery. . . . So it was no surprise that when Giuliani was courting the Christian right at the recent Values Voter Summit in Washington, D.C., he said, "No set of decisions the next president makes will be more important than the judges that that president appoints." He promised that if elected, he would appoint "justices in the mold of Justice (Antonin) Scalia, Justice (Clarence) Thomas, Justice (Samuel) Alito or Chief Justice (John) Roberts." President Bush also promised in his 2000 and 2004 presidential campaigns to nominate justices who would not make social policy from the bench. And when asked which justices he admired most, he named two: Scalia and Thomas. . . . By appointing Roberts as chief justice (replacing William Rehnquist) and Alito as associate justice (to replace Sandra Day O'Connor), Bush fulfilled his goal, for better or worse, and it has made a huge difference. Joined often but not always by Justice Anthony Kennedy, the conservative four moved the court sharply to the right last term. . . . So Giuliani and other GOP candidates can rightly rattle off four names — just one shy of a Supreme Court majority — who hit the right buttons for a conservative target audience. . . .That fact is all one needs to know to understand the Supreme Court as a major, looming issue in the 2008 presidential election, for both conservatives and liberals.

Scalia Is Still the Funniest Justice (and Thomas, the Least)

Posted by Peter Lattman

11-14-07 --Our “Law Blog’s Laugh-In At the Supreme Court” feature — here and here — has been met with mixed reviews. We thought it would be funny to highlight the “laughter” moments during oral argument at the Supreme Court. But some readers thought that the moments, well, just weren’t very funny. . . . The feature was inspired by Jay Wexler’s “Laugh Track,” an essay in the Green Bag which was featured in this page-one NYT story. Wexler, a professor at BU Law, conducted the first-ever scientific study of how funny the various Supreme Court justices are during oral argument in the 2004-05 term. The results of the study, which Wexler admitted “was profoundly flawed in almost every respect”: Justice Scalia was the funniest justice, followed not so closely by Justice Breyer. The least-funny Justices: Ginsburg and Thomas, who four and zero laughs respectively. . . . In the Yale Pocket Part, the school’s online appendage to its Law Journal, Wexler updated the study (here), analyzing the data from last term. As the Law Blog has noted, Chief Justice Roberts is a laugh riot; we, like many other court watchers, suspected CJR might replace Scalia as the court’s resident comedian.

Justice Ginsburg Remembers Her First Steps in the Law

Debra Bruno, Legal Times

11-14-07 -- A young woman is accepted into Harvard Law School in 1956, one of a mere nine women in a class of more than 500. Early on, she crosses paths with Erwin Griswold, the dean of the law school and an eminent member of the legal establishment. Griswold is notorious for challenging Harvard's female law students with a question: How could they take a spot that could have gone to a man? . . . In this case, the young woman is Ruth Bader Ginsburg. Her response? "Oh, I mumbled something about my husband being in the second-year class and that it was important for a wife to understand her husband's work," says Ginsburg, with a laugh. . . . Today, Supreme Court Justice Ginsburg is the most powerful woman lawyer in the country. Although she is the only representative of her gender on the high court bench (since the retirement of Justice Sandra Day O'Connor), she can look out and see a deeper and wider pool of women lawyers than ever before. . . . But more than 50 years ago, Ginsburg was very much a minority in a sea of men. She recently talked to Legal Times about those early years and what it meant to be a legal pioneer in the 1950s and early 1960s. Back then, there was no women's movement, no "Feminine Mystique," no National Organization for Women. Few questioned traditional assumptions about a woman's role. Being a wife, a mother, and a lawyer wasn't a sign of social reform so much as it was a novelty -- or even a threat to the men who ran the world of law.

O'Connors' story sends message on Alzheimer's

John Faherty, Mary Beth Faller and Connie Cone Sexton, The Arizona Republic

11-14-07 -- A public family's private story is now the center of a discussion about Alzheimer's disease.  . . . Over the past week the world has begun to learn about the marriage of former Supreme Court Justice Sandra Day O'Connor and her husband of 54 years. . . . John O'Connor, 77, was diagnosed with Alzheimer's 17 years ago and now lives in a Phoenix nursing facility. . . . That fairly common story took a turn when the couple's son, Scott O'Connor, revealed that his father had fallen in love with another woman who also lives at the Huger Mercy Living Center. . . . Sandra, also 77, left the Supreme Court in 2006 in part to care for John.

O'Connor Says Judges Shouldn't Be Elected

Mark Sherman, The Associated Press 

11-9-07 -- Retired Supreme Court Justice Sandra Day O'Connor said Wednesday that she'd do away with electing judges and make prosecutors and defense lawyers interchangeable as a way of improving the U.S. justice system. . . . O'Connor, who has spent much of her 21 months in retirement defending judicial independence, said judges who must run in partisan elections risk being compromised by the growing amount of campaign cash they must raise. . . . "If I could wave a magic wand ... I would wave it to secure some kind of merit selection of judges across the country," O'Connor said at a conference on her majority opinion in Strickland v. Washington in 1984, which set standards for determining whether a lawyer is providing competent representation. . . . O'Connor's home state of Arizona switched from partisan elections of judges to an appointed system in the 1970s. "I watched the improvement of the judiciary in that state," O'Connor said at the conference sponsored by the non-partisan Constitution Project. She was elected a trial judge under the old system and later appointed an appellate judge by then-Gov. Bruce Babbitt.

O'Connor on the Temporary Disabled List

BLT: The Blog of Legal Times

11-9-07 -- Retired Supreme Court Justice Sandra Day O'Connor arrived at a D.C. speaking engagement Wednesday in a wheelchair, and she walked to the podium on crutches. O'Connor, 77, did not tell the audience the reason, shrugging it off with a laugh as a "temporary deficiency, I trust." But she told attendees beforehand that her hip gave her trouble during a recent overseas trip, and she had an MRI this morning to diagnose the problem. . . . O'Connor, who retired in January 2006, was the keynote speaker at a Law Library of Congress conference on the impact of Strickland v. Washington, the 1984 ruling that established standards for assessing claims of ineffective assistance of counsel in criminal cases. When pressed, O'Connor lists the decision, which she authored, as the one with "the greatest effect" of any she wrote in her 25 years on the high court.

Justice O'Connor's Wish: a Wand, Not a Gavel

Retired high court member says deficiencies in courts are nearly impossible to fix

By Emma Schwartz

11-9-07 -- For nearly 25 years Justice Sandra Day O'Connor helped shape the rule of law through the strict confines of opinions based on precedent. But speaking before a group of lawyers today, the retired Supreme Court justice wanted to wield power through a more unusual means: a magic wand. . . . No, O'Connor hadn't turned into a supernatural fairy. (For the record, she wore a black-and-white checked suit and pearls.) But the onetime Reagan appointee seemed to suggest that it would take a near-impossible effort to change some of the "deficiencies in the independence of courts" in the United States. . . . Key among those problems, O'Connor said, is the practice of high-cost, partisan elections of judges, something she has found "scary" because even judges admitted that it compromised their own independence. "If I could wave a magic wand—and I can't, they didn't give me one at the court—I would have it create a merit selection for judges," O'Connor said at a conference at the Library of Congress in Washington, D.C.

Justice Stevens Has a Bone to Pick With N.Y. Times

Tony Mauro, Legal Times

11-7-07 -- Supreme Court justices rarely respond publicly to news coverage or communicate with the media at all (unless they are on a book tour). But Justice John Paul Stevens felt compelled to write to the New York Times Magazine on Sunday to "correct certain misunderstandings" in its lengthy profile of Stevens published Sept. 23. . . . In the letter (apparently not yet online) Stevens said that while he did serve in the Navy communications intelligence unit at Pearl Harbor in World War II, he did not "help break the code" on a Japanese operation as the story suggested. Stevens added that he never turned down a teaching job at Yale Law School after his clerkship at the Supreme Court 60 years ago -- though it is true he was not interested in teaching at the time. . . . The justice also countered suggestions in the article that he once joined forces with good-government forces in Chicago. "I was never active in politics," Stevens wrote.

Justice Alito More Assertive at Court

By Mark Sherman, Associated Press Writer

11-7-07 -- (AP) -- Twenty-one months after joining the Supreme Court, Justice Samuel Alito has figured out how to overcome that uneasy feeling of wanting to ask a question at oral argument without cutting off a colleague. . . . Connie Lensing, a lawyer representing FedEx Corp. in an age discrimination lawsuit, got through just two complete sentences Tuesday before Alito chimed in with a question that tested the limits of the company's argument. . . . The FedEx case was the third this week at which Alito asked the first question. More assertive in his second full term, Alito had never before been the first to jump into the rough-and-tumble of oral argument. . . . Alito has acknowledged he found it difficult sometimes "to get a word in edgewise" among the several former law professors on the Supreme Court. Speaking at Pepperdine University in August, Alito said that the other justices are so talkative that "it's extremely difficult to get a question in."

Alito puts rookie year behind, gets a few words in

The former U.S. attorney brings 'prosecutorial experience to bear'

By Joan Biskupic, USA TODAY 

11-2-07 -- He sits to the far right on the Supreme Court's mahogany bench, reflecting his junior status. He still has trouble with the placement of the microphone in front of him and sometimes swats it with his hand or bumps it with his head. . . . Yet Samuel Alito, an unassuming, button-down justice who asked few questions in his first year, has emerged in his second year as a strong force during the court's spirited oral arguments, particularly in criminal law cases. Alito, 57, is the only current justice who was a federal prosecutor and, before his January 2006 appointment, had racked up 16 years as a federal appeals court judge — longer than any of his eight colleagues. . . . Oral arguments, which run for two weeks each month from October to April and began a new round this week, are lively affairs played before a crammed courtroom.

October 2007

Justice O’Connor Addresses Oral Argument, Supreme Court

By Jasmine Marcus

10-29-07 -- Yesterday afternoon, retired Supreme Court Justice Sandra Day O’Connor spoke before a packed Bailey Hall on the importance of oral argument in the Supreme Court. . . . O’Connor, the first female justice, told the audience that she chose to speak about oral arguments to correct the false assumption that the Supreme Court Justices make their decisions “without outside assistance.” . . . She stressed the importance of lawyers’ oral arguments, which “identify and spell out the legal issues [of cases] . . . and shape a consistent, coherent body of law.” . . . Oral arguments, which are presented by lawyers in addition to written briefs, encourage the justices to ask questions and better comprehend their cases. The ability to ask questions ensures, as O’Connor joked, that the Supreme Court stays awake during hearings. . . . On a more serious note, O’Connor said that the questioning provides, “a chance for the justices to hear each other’s concerns and views.” . . . O’Connor also described how the role of oral argument has changed throughout the Supreme Court’s existence. Whereas 19th century lawyers such as Daniel Webster once argued cases for days on end, a practice that provided public entertainment, there are currently time limits regarding how long lawyers can speak.

Scalia honored by Jesse Helms Center

Conservative Supreme Court justice defends his concept of strict constructionism, claiming Constitution 'is not a living organism' but a 'legal document.'

Titan Barksdale, Staff Writer

10-29-07 -- U.S. Supreme Court Associate Justice Antonin G. Scalia emphasized strict interpretation of the U.S. Constitution during a speech Friday night and explained how that interpretation applies to such issues as the death penalty, abortion and free speech. . . . Scalia's remarks came during an awards ceremony at the Embassy Suites held by the Jesse Helms Center. He received the Nance Medal of Freedom -- an annual award presented to a government official for public service. Helms, 86, who is in failing health, did not attend, but his wife, Dorothy, was there. . . . Scalia, nominated by President Reagan in 1986, has been one of the high court's most visible and controversial figures for his staunch conservatism. . . . Throughout his speech, Scalia criticized those who believe the Constitution should be adapted to mirror today's society. He maintained that the nation's founding document should be interpreted in its original context. . . . "The Constitution is not a living organism, it's a legal document," Scalia told about 200 people. "Proponents of a living Constitution are trying to bring you inflexibility."

Roberts says judges' freedom has limits

By Tad Walch, Deseret Morning News

10-23-07 -- U.S. Supreme Court Chief Justice John Roberts outlined his conservative judicial philosophy during a speech today at Brigham Young University, saying judges should not legislate from the bench. . . . "The judicial branch has the authority to interpret the Constitution because it is law," he said, "and must be independent to do so without fear or favor. But the judges must limit themselves to that task. They may not use their independence to write their own policy preferences into the Constitution." . . . During a 34-minute speech, Roberts quoted fellow conservatives Ronald Reagan, twice, and Robert Bork, once, and also used the Federalist Papers frequently to bolster his theory of a critical, but limited, role for judges. . . . Roberts suggested to the University Forum audience of 7,080 gathered in BYU's Marriott Center that they read the Constitution again and read the Federalist Papers, where, he said, Alexander Hamilton describes an independence for a Supreme Court justice that "is not the freedom to do whatever he pleases." . . . Roberts spent the first 20 minutes of his talk delivering a basic outline of the first three articles of the Constitution, which describe the separation of powers among the president, Congress and the Supreme Court. . . . The speech was free and open to the public. Roberts was not paid to appear. The audience gave him a 30-second standing ovation after his address.

12 justices on the Supreme Court?

By Richard Halicks, The Atlanta Journal-Constitution

10-23-07 -- This week’s “We the People” topic is a suggestion by University of Virginia professor Larry Sabato that we increase the Supreme Court from nine members to 12, which he believes would address the phenomenon of one swing vote deciding all close cases. . . . “The problem with having an odd number of justices is that, increasingly, you find that one justice becomes the entire Supreme Court,” says Sabato, professor of politics at UVA and author of “A More Perfect Constitution. “Sandra Day O’Connor was the Supreme Court. Now Anthony Kennedy is becoming the Supreme Court. That is unhealthy.

Justice Thomas landed the right job for himself --- and America

By Jim Wooten, The Atlanta Journal-Constitution

10-22-07 -- But for the failure of any law firm in Savannah or Atlanta to offer him a job out of Yale Law School, U.S. Supreme Court Justice Clarence Thomas would likely have wound up as a tax lawyer working corporate finance in the bowels of a big Southern law firm. . . . Praise thee, rejection. . . . "I didn't go to law school thinking about living in New York or living in D.C.," Thomas told The Atlanta Press Club last week. "I wanted to come back to Savannah" to work with the now-dissolved law firm of former state Rep. Bobby Hill. Though memories differ on whether the firm offered him a job upon his graduation from Yale, Thomas remembers rejection there and among the big firms in Atlanta. "That was a time of dashed hope and expectations and frustration," he said. "To say I was frustrated is an understatement. I was absolutely despondent about it. It was one of those times I got to see just how difficult it was to deal with rejection."

Justice Bader Ginsburg visits Atlanta, noting threats to women's rights

By Steve Visser, The Atlanta Journal-Constitution

10-22-07 -- She is short, powerful and understated. And at one time, she was underestimated. . . . U.S. Supreme Court Justice Ruth Bader Ginsburg made clear her perspective on some issues when she spoke Sunday at an Atlanta synagogue. . . . It matters that women and minorities are on the high court — if only for the public get equal access to the bathroom, she said in one of the lighter moments of her talk. . . . The court itself, while collegial, has entered a period of turbulence with a series of 5-4 decisions that started with Bush v. Gore, the decision that ended the 2000 presidential election controversy, she said. . . . Speaking at Ahavath Achim on Peachtree Battle Avenue, Bader Ginsburg spoke of the discrimination she faced early in her legal career, and the stress she feels when having to vote on 11th hour death-penalty appeals — instances in which the appellant will die if the court refuses to hear the case. . . . Speaking in the dry wit appropriate to her station, she explained that when she was one of nine women entering Harvard University Law School in 1956, the dean asked why they were filling positions that could have been filled by men.

Ginsburg Notes Israeli Judges' Ban on Torture

Jonathan Ringel, Fulton County Daily Report 

10-22-07 -- As the U.S. Supreme Court prepares to hear another argument on how the nation should deal with suspected terrorists, Justice Ruth Bader Ginsburg has expressed admiration toward how her counterparts in Israel have dealt with the issue. . . . Speaking at an Atlanta synagogue Sunday, Ginsburg noted that the former president of Israel's high court, Aharon Barak, had said that while the U.S. had its Sept. 11, "we've had our 9/12, our 9/13 and so on. And yet we have strived mightily to remember what we stand for as a nation." . . . Ginsburg said that when the Israeli justices were asked if authorities could torture someone who knew when and where a bomb would go off, "The answer of the Supreme Court of Israel was unequivocal: torture never." . . . She then mentioned that an article in that day's Atlanta newspaper was "about how the courts in Israel have adhered to basic fairness and due process even dealing with people who would terminate the existence of the state of Israel."

Thomas Rejects Notion He Follows Scalia

By Greg Bluestein, Associated Press Writer

(AP) -- Supreme Court Justice Clarence Thomas condemned suggestions that he follows the lead of fellow conservative Antonin Scalia, telling an audience Thursday the notion is based on a racial stereotype. . . . The current court's only black justice said critics accuse him of picking up cues from Scalia, an Italian-American known as the court's most conservative member. . . . "Obviously, what it's based on is that I'm black and I'm supposed to think in a certain way," said Thomas, responding to an audience member's question about how he arrives at his judicial opinions. "And there's no way, since I'm not supposed to think that way, that I can come up with that myself, so I must be following somebody. You make your own judgments about that line of reasoning." . . . Thomas was speaking at the Atlanta Press Club to promote his book "My Grandfather's Son."

In Emotionally Revealing Book, Justice Thomas Is Most Critical of Himself

You know whom Justice Clarence Thomas really chastises in his new book? Himself

David J. Garrow, Legal Times 

10-17-07 -- Clarence Thomas' brutally self-critical autobiography, "My Grandfather's Son," bears little resemblance to most early accounts of the book's contents. . . . For instance, only at Page 241 -- well past the 80 percent mark in a 289-page book -- does Thomas reach the subject of Anita Hill's charges that threw his 1991 Senate confirmation hearings into turmoil. Previous references to Hill as an aide at first the U.S. Department of Education and then the Equal Employment Opportunity Commission foreshadow what's to come, but except for several derisively critical comments about her job performance, Thomas says nothing new about Hill or her accusations. Indeed, much of Thomas' account of his angry self-defense at those hearings is drawn directly from his public testimony and little more. Compared with the intensely intimate and emotionally riveting account that Sen. John Danforth, his mentor and close friend, provided in his 1994 book, "Resurrection: The Confirmation of Clarence Thomas," Thomas' own revisiting of that traumatic experience seems terse and restrained.

Judges' Opinions Off The Bench

Can Clarence Thomas attack liberals and still be a fair justice?

By Kermit Roosevelt

10-17-07 -- What can judges properly say outside court? Supreme Court Justice Clarence Thomas's harsh assessments of liberals throughout his recent autobiography have brought this question back into the news. . . . Of course, it has not been absent long. In March 2006, lawyers asked Justice Antonin Scalia to disqualify himself from a case involving Guantánamo detainees after he ridiculed the idea that captured enemy combatants deserved jury trials during a speech at the University of Freiburg in Switzerland. Justice Scalia refused, though in 2003 he did recuse himself from hearing a challenge to the recital of the Pledge of Allegiance in public schools after giving a speech in which he criticized the lower-court decision in that case. . . . Keeping quiet might seem the safer course, but judicial reticence can prompt complaints, too. During the confirmation hearings for John Roberts and Samuel Alito, many observers – myself included – expressed frustration at the nominees' unwillingness to say more about their opinions on constitutional law. . . . So are judges saying too much or too little? The answer, I think, is a bit of both. Consider first the confirmation hearings. The nominees generally stood on the principle that it would be improper for them to express opinions on matters that might come before the Court. . . . This is probably true with respect to particular cases that have been filed or whose filing can be foreseen. Canon 3A(6) of the Code of Conduct for United States Judges admonishes them not to comment publicly on the merits of a pending or impending case, though the canon exempts scholarly presentations from that ban and the code does not apply to Supreme Court justices. But it is not true with respect to particular legal issues. Nominees should not promise to rule a certain way, nor should they feel bound to adhere to statements made during confirmation hearings. But there is no good reason nominees cannot describe their current, provisional, views of particular constitutional issues. . . . The supposition that such comments are improper may stem from a failure to distinguish between cases and issues. Prejudging cases before reading the briefs and hearing arguments is wrong. Every litigant is entitled to a fair opportunity to convince a judge, and without hearing argument the judge cannot be sure which issues a case presents or on what facts it might turn. Prejudging issues is not wrong; it is the result of legal education and experience. A judicial nominee with no opinions on legal issues is not impartial but rather unqualified.

Scalia opines on faith and justice

"There is no such thing as a 'Catholic judge,' " the jurist declared.

By David O'Reilly, Inquirer Staff Writer

10-17-07 -- Devout U.S. Catholics like himself may stand apart from much of the nation on abortion, homosexuality, and embryonic stem-cell research, Supreme Court Justice Antonin Scalia told a packed audience at Villanova University yesterday, but he insisted "there is no such thing as a 'Catholic judge.' " . . . "The bottom line is that the Catholic faith seems to me to have little effect on my work as a judge," he declared. . . . Invited to speak to that very question - "the role of Catholic faith in the work of a judge" - the famously opinionated justice rendered his decision just three minutes into his keynote lecture at Villanova Law School's annual Scarpa conference on law, politics and culture.

Demystifying the U.S. Supreme Court's Cert Granted Process

Howard J. Bashman, Special to Law.com

Related: Bashman Archive

10-15-07 -- Each year, a small crop of highly credentialed recent law school graduates arrives at the U.S. Supreme Court to serve as law clerks for the nine justices. One significant duty that these clerks perform is analyzing whether petitions for writ of certiorari -- written arguments asking the Court to accept a case for review on the merits -- are meritorious and should be granted.  . . . Eight of the nine current justices -- everyone other than John Paul Stevens -- participate in what is known colloquially as the "cert pool." The law clerks for those eight justices are each randomly assigned cert petitions which they analyze and evaluate in a memorandum that describes what the case is about, what the arguments are for and against review, and what action the law clerk recommends the Court take on the request for review on the merits. A particular law clerk's cert pool memo is distributed not only to the law clerk's own Justice but also to the other seven Justices who participate in the pooling arrangement. . . . Over the years, I have heard various criticisms of the cert pool arrangement that essentially boil down to the thought that it places too much power into the hands of a single recent law school graduate who may have no pre-existing familiarity with the complex subject matter of a given area of law that a case involves. A related criticism is that the cert pool process contains a built-in bias in favor of denying review. The theory goes that no law clerk has ever appeared foolish for recommending a denial of review, while many have appeared foolish by recommending a grant of review in cases that are later discovered to be unsuitable vehicles for deciding the questions that appeared to have been presented. In addition, the eight justices who participate in the cert pool frequently have widely divergent views on the merits of cases, so one might wonder: How can a lone law clerk adequately serve as a proxy for whether those eight individuals will find an issue or case deserving of review?

Supreme Disgrace

NEW YORK TIMES Editorial

10-12-07 -- The Supreme Court exerts leadership over the nation’s justice system, not just through its rulings, but also by its choice of cases — the ones it agrees to hear and the ones it declines. On Tuesday, it led in exactly the wrong direction. . . . Somehow, the court could not muster the four votes needed to grant review in the case of an innocent German citizen of Lebanese descent who was kidnapped, detained and tortured in a secret overseas prison as part of the Bush administration’s morally, physically and legally abusive anti-terrorism program. The victim, Khaled el-Masri, was denied justice by lower federal courts, which dismissed his civil suit in a reflexive bow to a flimsy government claim that allowing the case to go forward would put national security secrets at risk. . . . Those rulings, Mr. Masri’s lawyers correctly argued, represented a major distortion of the state secrets doctrine, a rule created by the federal courts that was originally intended to shield specific evidence in a lawsuit filed against the government. It was never designed to dictate dismissal of an entire case before any evidence is produced.

Supreme Court Justice Ruth Bader Ginsburg Happy With Democratic Congress

10-12-07 -- (AP)  Are relations between lawmakers and judges better with Democrats in control of Congress? Justice Ruth Bader Ginsburg seems to think so, according to a talk on judicial independence she gave at a recent judges' conference. . . . "Particularly since the 2006 election, I am pleased to relate, rapport between Congress and the federal courts has markedly improved," Ginsburg said at a meeting of American and Canadian judges in Vancouver. . . . No bills limiting judges' independence have been introduced in the current Congress and "one sees far fewer broadsides against 'activist judges' reported in the press," Ginsburg said. . .  Democrats, it should be noted, won majorities in both the House and Senate in November 2006. Ginsburg was appointed by President Clinton, a Democrat. . . . She recounted with distaste comments about judges made in 2005 by two Texas Republicans, then-House Majority Leader Tom DeLay and Sen. John Cornyn.

Supreme downsizing

A growing group of scholars from both left and right say the nation's highest court is out of control. Cut back its power, they argue, and the country will be better off.

By Christopher Shea, Boston Globe Editorial

10-09-07 -- THE NINE MEMBERS of the US Supreme Court wield extraordinary power over American society: Last term alone, they struck down school desegregation plans in two cities, rewrote Congress's new rules for campaign-finance reform, and modified the free speech rights of high school students. (Tip: Kids, leave that "Bong Hits 4 Jesus" sign at home.) . . . Since the court now has two blocs of justices who tend to vote together - in shorthand, the liberal and conservative wings - momentous questions of policy often end up in the laps of a single justice who holds the swing vote. . . . The court's power explains the political furor that erupts every time there's a vacancy on the bench; its secrecy feeds the public hunger for any scrap of information about the justices' deliberations.

A Justice’s Scribbles on Journalists’ Rights

By Adam Liptak

10-09-07 -- THE Supreme Court has only once ruled on whether reporters may be forced to testify about their confidential sources, in a 1972 decision called Branzburg v. Hayes. Thanks to a cryptic concurring opinion from Justice Lewis F. Powell Jr., to this day no one is quite sure what the decision meant. . . . On the one hand, the majority in the 5-to-4 decision said journalists had no First Amendment protection against grand jury subpoenas. On the other, Justice Powell, who joined the majority, wrote a separate opinion calling on judges to strike the “proper balance between freedom of the press and the obligation of all citizens to give relevant testimony” — whatever that means. . . . Though Justice Powell’s concurrence was almost perfectly opaque, press lawyers seized on it and for decades convinced countless lower courts that Branzburg had in fact been a victory for the press. That line of argument essentially ground to a halt four years ago when a federal appeals court judge called the press lawyers’ bluff. . . . “A large number of cases conclude, rather surprisingly in light of Branzburg, that there is a reporter’s privilege,” Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit wrote in 2003. . . . Since then, the press has been on a losing streak in subpoena cases and has been looking to Congress for relief in the form of a shield law. On Thursday, the Senate Judiciary Committee voted to send a bill to protect reporters’ sources to the Senate floor.

Nobody Knows the Lynchings He’s Seen

By Frank Rich, Op-Ed Columnist

10-09-07 -- WHAT'S the difference between a low-tech lynching and a high-tech lynching? A high-tech lynching brings a tenured job on the Supreme Court and a $1.5 million book deal. A low-tech lynching, not so much. . . . Pity Clarence Thomas. Done in by what he calls "left-wing zealots draped in flowing sanctimony" — as he describes anyone who challenged his elevation to the court — he still claims to have suffered as much as African-Americans once victimized by "bigots in white robes." Since kicking off his book tour on "60 Minutes" last Sunday, he has been whining all the way to the bank, often abetted by a press claque as fawning as his No. 1 fan, Rush Limbaugh.

The school of very hard knocks

Inside the mind of a Supreme Court justice

From The Economist print edition

10-09-07 -- HE'S powerful. He's conservative. His daddy was an oil man. He found God and stopped drinking in middle age. The certainty and simplicity of his world view infuriate his many opponents. George Bush? No. The autobiography that is making the American left wobble with rage this week is by Justice Clarence Thomas, the only black member of the Supreme Court. Mr Thomas was paid $1.5m for a memoir that stops dead the moment he joined the court in 1991. About his 16 years working there, he is silent. Perhaps he is planning a second volume. In the meantime, his account of the first 43 years of his life is absorbing and sometimes moving. . . . Mr Thomas was born in penury and grew up with bare feet and intestinal worms. The man he called “Daddy” was in fact his grandfather (his real father having abandoned him) who was an oil man in the sense that he delivered the stuff in a truck. He could barely read but lived a life of rigid self-discipline, and tried to instil the same values in his grandsons.

Anita Hill Disputes Justice Thomas' Book

The Associated Press

10-2-07 -- Anita Hill, whose sexual harassment allegations against Clarence Thomas nearly derailed his Supreme Court nomination 16 years ago, said Tuesday she stood by her account of his behavior, disputing Thomas' assertion in a new book that the charges were politically motivated. . . . "I stand by my testimony" at a 1991 Senate Judiciary hearing on the nomination, Hill wrote in an Op Ed piece in The New York Times. "I will not stand by silently and allow him, in his anger, to reinvent me." . . . In his book, "My Grandfather's Son," Thomas says Hill, his former employee at the Education Department and the Equal Employment Opportunity Commission, was a mediocre employee who was used by political opponents to make claims she had been sexually harassed. . . . Powerful interest groups were out to stop him at all costs and chose "the age-old blunt instrument of accusing a black man of sexual misconduct," he writes. He described Hill as touchy and apt to overreact and said she complained to him only about his refusal to promote her. . . . Hill, who is also black, disputed Thomas' assertions.

Justice Thomas' Book Calls Anita Hill Mediocre Employee Used in Plan to Destroy Him

Mark Sherman, The Associated Press
10-1-07 -- Breaking his 16-year public silence on his bitter confirmation hearings, Supreme Court Justice Clarence Thomas says Anita Hill was a mediocre employee who was used by political opponents to make claims she had been sexually harassed. . . . Thomas writes about Hill, his former employee in two government agencies, and the allegations that nearly derailed his nomination to the high court in 1991 in his autobiography, "My Grandfather's Son." . . . A copy of the book, which goes on sale today, was obtained Friday by The Associated Press. . . . Powerful interest groups were out to stop him at all costs and they chose "the age-old blunt instrument of accusing a black man of sexual misconduct," he writes. . . . Hill, who is also black, had worked for Thomas at the Education Department and the Equal Employment Opportunity Commission. She first made her allegations after Thomas had been nominated to the high court, 10 years after she began working for him.

Behind the Black Robes

A new book about the Supreme Court focuses on the private lives of the justices. But should they be treated like Britneys in black?

By Adam B. Kushner, Newsweek

10-1-07 -- Justice David Souter, now in his 68th year, is still a bachelor, but that hasn’t stopped his colleagues from trying to marry him off. Sandra Day O’Connor—who back in Phoenix was once known as “the yenta of Paradise Valley”—tried and failed to fix him up. Then, according to Jeffrey Toobin’s new book, “The Nine,” an unnamed justice sent him on a date with a woman who reported a delightful jaunt—until the end: “Souter took her home, told her what a good time he had, then added, ‘Let’s do this again next year’.” . . . Toobin, a legal analyst at CNN and The New Yorker, is the third author this year to dish on the inner workings of the Supreme Court. Last winter Jan Crawford Greenburg of ABC News (“Supreme Conflict”) and Jeffrey Rosen of The New Republic (“The Supreme Court”) also made personality studies of the justices and their relationships with each other. The conceit, usually unspoken, is that inside dirt on their rapport helps us understand the court’s jurisprudence. But should we treat O’Connor the same way we treat Britney and Lindsey?

Kennedy talks poverty, rights

Justice avoids topic of Court politics

Tyler Hill and Andrew Mangino, Staff Reporter, Staff Reporter

10-1-07 --Supreme Court Justice Anthony Kennedy leaves the Law School on Thursday after a speech that touched on world poverty. . . . He may be the swing vote on the U.S. Supreme Court, but Anthony Kennedy said calling it the “Kennedy Court” might motivate his colleagues to rebel. . . . “If you keep saying that, the decisions will be 8-1,” Kennedy joked after delivering a lecture at the Yale Law School. His speech, according to attendees, mostly avoided talk about the High Court, its decisions and its internal politics. Instead, he spoke about world poverty, the power of individual rights and how separation of powers and checks and balances are not one and the same. . . . At Kennedy’s request, the lecture was closed to reporters.

Click for U.S. Supreme Court in History & Today
by: Nancy Salvato

The Supreme Court's Gatekeepers: The Role of Law Clerks in the Certiorari Process

David R. Stras, University of Minnesota Law School

Texas Law Review, Vol. 85

Abstract:
This Review Essay compares and evaluates two recent books on Supreme Court Law clerks, "Courtiers of the Marble Palace" by Todd Peppers and "Sorcerers' Apprentices" by Artemus Ward and David Weiden. Both books add to the understanding of the role of law clerks within the Supreme Court - Courtiers through its primarily historical approach and Sorcerers' Apprentices through its more ambitious statistical approach. . . . This Review Essay also reports the results from the first empirical examination of every pool memo from four Terms of the Supreme Court: October Terms 1984, 1985, 1991 and 1992. Three characteristics of the cert pool become apparent: (1) it is stingy with respect to making grant recommendations; (2) it emphasizes objective criteria of certworthiness in making its recommendations, such as the presence of lower court conflict; and (3) there is statistical evidence suggesting that its recommendations are correlated with the eventual decisions made by the Court on petitions for certiorari.

August 2007

In Address to ABA, Justice Breyer Reflects on 'Difficult Year'

Tony Mauro, Legal Times

8-13-07 -- As unhappy as he was about being on the losing side in so many cases last term, Supreme Court Justice Stephen Breyer said Saturday his faith in the legal system and the rule of law is undiminished. . . . "I had a difficult year," Breyer said before the opening assembly of the American Bar Association's annual meeting in San Francisco. "I was in dissent quite a lot, and I wasn't happy." With Chief Justice John Roberts Jr. and Justice Samuel Alito Jr. on the Court, conservatives won almost all the 5-4 opinions last term, leaving Breyer often in the minority. . . . Breyer noted that he wrote an impassioned 77-page dissent in June in last term's school race cases, criticizing the majority for taking a wrong turn on civil rights. After a summer of reflection, Breyer told the association, "I wish I had won," but he said he also thinks, "not a bad system." . . . The nation is one of "300 million people and 600 million opinions," Breyer added, and his can't be in the majority all the time. What makes him still proud of the system is that disputes over race and other deeply emotional issues are worked out "in the courts, not in the streets." . . . Breyer made his personal observations to underscore his charge to the lawyers to spread the word about judicial independence and the rule of law. Even when the Court makes unpopular decisions, Breyer said, the nation abides by them. Even in the Florida 2000 election case of Bush v. Gore, Breyer noted, "there were no paratroopers, no rocks. ... People accepted it."

Prepping the Court on the Second Amendment

Posted by Lyle Denniston on SCOTUSblog

ANALYSIS

8-13-07 -- In less than a month, lawyers for the city government in Washington, D.C., will file a new appeal to the Supreme Court asking the Justices to try again -- but for the first time in seven decades -- to tell the Nation what the Second Amendment means. Does it give Americans a personal right to have a gun, for private use? Is it only a guarantee that the National Guard will have weapons when it needs them to keep order, in the way that old-time militias supposedly did? Is the "right to keep and bear arms" an individual, or a collective, right? . . . There has been a spurt in new literature on the Second Amendment, especially from the academy, arguing both sides with points drawn from history, social science, constitutional theory, good (or bad) public policy, and several other categories of learning. Whether the Supreme Court will be willing to wade into this new debate any time soon may well depend upon its reaction to the coming petition for review in District of Columbia v. Heller, due at the Court by Sept. 5. The lawyers on the other side of the case share the city's lawyers' desire that the Court hear the case, and very likely will act swiftly to tell the Court so in their initial filing. Still, the Court may not reach the case for its initial reaction until after the new Term opens on Oct. 1.

Justices judge if health keeps them from work

8-1-07 -- (AP) — Two Supreme Court justices have had cancer. Another has a stent to keep an artery open. Now the chief justice has suffered his second unexplained seizure in 14 years. . . . Like society at large, the court lives with health issues large and small, letting the justices themselves decide whether and how to continue their work. In an institution that zealously guards the justices' privacy, how much to tell the public also gets decided on a case by case basis. . . . "There is quite a long history of illnesses, especially among older members of the court over the years and no formal structure for dealing with it," said A.E. Dick Howard, a Supreme Court expert at the University of Virginia. . . . Chief Justice John Roberts strode out of a Maine hospital Tuesday, looking well and waving to onlookers less than 24 hours after a seizure interrupted his summer vacation. He had a similar episode in 1993. . . . There are no indications he will have trouble resuming his work duties, and doctors said that most people who have seizures return to work with no ill effect, although they sometimes need medication. . . . At 52, Roberts is not only the youngest of the nine justices but is the youngest chief justice in 200 years. He is an incisive questioner during the court's argument sessions. He has two young children, ages 6 and 7. . . . That Roberts should now be the focus of health concerns is ironic, given the ages and medical histories of his colleagues.

July 2007

Stacking the Court

By Jean Edward Smith Op-Ed Contributor

7-27-07 --WHEN a majority of Supreme Court justices adopt a manifestly ideological agenda, it plunges the court into the vortex of American politics. If the Roberts court has entered voluntarily what Justice Felix Frankfurter once called the “political thicket,” it may require a political solution to set it straight. . . . The framers of the Constitution did not envisage the Supreme Court as arbiter of all national issues. As Chief Justice John Marshall made clear in Marbury v. Madison, the court’s authority extends only to legal issues. . . . When the court overreaches, the Constitution provides checks and balances. In 1805, after persistent political activity by Justice Samuel Chase, Congress responded with its power of impeachment. Chase was acquitted, but never again did he step across the line to mingle law and politics. After the Civil War, when a Republican Congress feared the court might tamper with Reconstruction in the South, it removed those questions from the court’s appellate jurisdiction. . . . But the method most frequently employed to bring the court to heel has been increasing or decreasing its membership. The size of the Supreme Court is not fixed by the Constitution. It is determined by Congress. . . . The original Judiciary Act of 1789 set the number of justices at six. When the Federalists were defeated in 1800, the lame-duck Congress reduced the size of the court to five — hoping to deprive President Jefferson of an appointment. The incoming Democratic Congress repealed the Federalist measure (leaving the number at six), and then in 1807 increased the size of the court to seven, giving Jefferson an additional appointment. . . . In 1837, the number was increased to nine, affording the Democrat Andrew Jackson two additional appointments. During the Civil War, to insure an anti-slavery, pro-Union majority on the bench, the court was increased to 10. When a Democrat, Andrew Johnson, became president upon Lincoln’s death, a Republican Congress voted to reduce the size to seven (achieved by attrition) to guarantee Johnson would have no appointments.

Thomas Charts a Jurisprudence All His Own

By Brent Kendall, Daily Journal Staff Writer

7-27-07 --