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 -- "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." . . . That passage, from a landmark 1969 decision which held that students had a First Amendment right to wear black armbands to school in protest of the Vietnam War, is one of the most famous lines in the last 40 years of Supreme Court jurisprudence. . . . This year, when the Supreme Court decided its first student speech case in nearly two decades, Justice Clarence Thomas, in a bold yet little-noticed concurring opinion, rejected the proposition entirely. . . . "In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools," Thomas wrote. . . . None of the other eight justices questioned the court's ruling 28 years ago, in Tinker v. Des Moines Independent Community School District, that students retain speech rights at school. . . . Instead, they divided along ideological lines over whether those rights should extend to school speech that promotes illegal drug use, with the court's conservative majority ruling that a student banner proclaiming "Bong Hits 4 Jesus" was not protected. Morse v. Frederick, 2007 DJDAR 9448.

Isle memories move justice

Supreme Court Justice John Paul Stevens talks of his years here and Rice v. Cayetano

By Debra Barayuga

7-20-07 -- Associate Justice John Paul Stevens has fond memories of his first taste of Hawaii in the early '40s stationed at Pearl Harbor. . . . It was those early experiences and his law school background that influenced the most senior associate justice of the U.S. Supreme Court when he wrote the dissenting opinion in Rice v. Cayetano. . . . The majority opinion, written by Justice Anthony Kennedy, struck down the Hawaiians-only voting requirement for the Office of Hawaiian Affairs trustees. . . . "They were adopting a rather formalistic approach to an issue that had particular significance in this particular area," said Stevens, in a rare public comment on the U.S. Supreme Court decision that opened the OHA race to all Hawaii voters.

Judicial Nullification: Mob Plotted to Whack Chief Justice Warren Burger

New York Lawyer, By Lara Jakes Jordan, The Associated Press

7-20-07 -- It could have been just idle chitchat among bored prison inmates. The problem was, they weren't your average inmates, and the subject of their threatening chatter was the chief justice of the United States. . . . Languishing at the federal penitentiary in Lewisburg, Pa., mobsters from three top Mafia families allegedly had murder on their minds in 1979, according to recently released FBI documents. And the intended victim was Warren Burger. . . . At least that was the story a confidential informant told the FBI two years later. For good measure, the informant claimed, the plotters had also discussed hitting an unnamed federal judge, apparently seated in New Jersey. . . . What seemed to make the idea plausible were the players -- big names in two of New York City's Mafia families and a Montreal don, the documents show. . . . The bureau took the information seriously enough that Burger was alerted. In addition, FBI headquarters in Washington approved going to mobsters in seven U.S. cities to warn them off doing anything rash that they might come to regret. . . . "FBI HQ concurs with Newark's recommendation to contact LCN family heads and advise them of FBI knowledge of the alleged plot in general terms," said a June 1, 1982, memo from the office of FBI Director William H. Webster. "None of the proposed victims are to be named in the contacts with the LCN figures.

Judicial Tyranny

by Ernest Partridge

7-16-07 -- Is there no limit to the power of the Supreme Court to enact law from the bench? Does the Constitution simply mean what the Supreme Court says it means? . . . Consider an extreme and unlikely example, but nonetheless illustrative: Suppose the Supremes were to rule (five to four, of course), that “The United States is a Christian nation,” and that henceforth, only confessing Christians could hold public office. Such a ruling would, of course, directly contradict Article Six and the First Amendment to the Constitution. But such considerations have not constrained this Supreme Court or its predecessor. The Constitution also stipulates that the states are to determine the electors in a presidential election. (Article 2, Section 1) In Bush v. Gore, the Supremes ignored that when they brushed aside the Florida Supreme Court’s ruling that a statewide recount of the vote must continue. The same court in the same decision, set aside the rule of stare decisis (precedent) when it wrote that “Our consideration is limited to the present circumstances.” . . . The Roberts Court has found no occasion to restore habeas corpus or to reaffirm the Fourth Amendment prohibition of search and seizure, both of which are required by the Constitution, and both of which are openly violated by the Military Commission Act and by Bush’s admitted defiance of FISA. And just last month, in Hein v. Freedom from Religion Foundation, the Roberts Court moved half the distance toward an establishment of religion, when it allowed federal tax revenues to be distributed to religious agencies selected by the Bush’s White House. . . . Suppose further that in 2008 a Democratic President and an overwhelmingly Democratic Congress is elected. The Congress then proceeds to enact, and the President to sign, legislation depriving corporations of “personhood” status, instituting single-payer medical coverage, reforming campaign finance, etc. — in short, repealing the abuses of the Bush regime and the GOP Congress and instituting progressive reforms. And then, one by one, all these are voided by the Supreme Court, with rulings that are flimsy at best, and more often plainly absurd, and none of them open to appeal. In short: a nullification by one branch of government of the remaining two branches.

When in Doubt, Look to Roberts
for Outcome of Supreme Court Cases

Tony Mauro, Legal Times 

In 2004, then-appeals court Judge John Roberts Jr. tested a newly discovered theory for predicting Supreme Court outcomes. Using oral argument transcripts, he tallied the number of questions justices asked of advocates in a significant sampling of cases. . . . Eighty-six percent of the time, Roberts reported in a talk to the Supreme Court Historical Society, the lawyer for the party that ultimately lost had gotten the most questions. . . . "The secret to successful advocacy," Roberts deadpanned in conclusion, "is simply to get the Court to ask your opponent more questions." . . . Now that Roberts, as chief justice, is one of the nine robed ones who get to ask the questions, it turns out that he, more than any other active questioner, is affirming that predictive pattern. . . . A new study indicates that in the 25 oral arguments that led to 5-4 decisions in the term just ended, the mean number of questions Roberts asked of the side he favored was 3.6. The side he voted against got a mean of 14.3 questions from the chief justice. Overall, in 23 of the 25 5-4 decisions, Roberts asked more questions of the side he voted against than the side he favored.

Last Term’s Winner at the Supreme Court: Judicial Activism

By Adam Cohen Editorial Observer

7-10-07 -- The Supreme Court told Seattle and Louisville, and hundreds more cities and counties, last month that they have to scrap their integration programs. There is a word for judges who invoke the Constitution to tell democratically elected officials how to do their jobs: activist. . . . President Bush, who created the court’s conservative majority when he appointed Chief Justice John Roberts and Justice Samuel Alito, campaigned against activist judges, and promised to nominate judges who would “interpret the law, not try to make law.” Largely because of Chief Justice Roberts and Justice Alito, the court has just completed one of its most activist terms in years. . . . The individuals and groups that have been railing against judicial activism should be outraged. They are not, though, because their criticism has always been of “liberal activist judges.” Now we have conservative ones, who use their judicial power on behalf of employers who mistreat their workers, tobacco companies, and whites who do not want to be made to go to school with blacks.

The Power Broker

In an exclusive interview, Justice Kennedy discusses life, center stage.

By Stuart Taylor Jr. and Evan Thomas, Newsweek

July 16, 2007 issue - In 19 cases during the past year, the Supreme Court split down the middle along ideological lines. The court's four conservatives—Chief Justice John Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel Alito—lined up on one side, and the four liberals—Justices Stephen Breyer, John Paul Stevens, Ruth Bader Ginsburg and David Souter—lined up on the other. Each time, the tie was broken by a fifth vote belonging to Justice Anthony Kennedy. On 13 occasions, Kennedy aligned himself with the conservatives. While the court is clearly moving to the right, it's obvious that Kennedy holds the balance of power.

Justices to Teach, Travel in Europe

7-7-07 -- (AP) -- Here's a proposition a majority of the Supreme Court can agree on, without rancor or regard for ideology: Europe is a good place to spend the summer. . . . At least five of the nine justices will travel there this summer, mostly to take part in international programs sponsored by U.S. law schools. . . . Less than a week after the justices broke for the summer with a string of ideologically split 5-4 decisions, Justice Samuel Alito was the first to depart for Europe. Alito went to Latvia this week for a conference on judicial reform and a meeting with Prime Minister Aigars Kalvitis.

Exactly What Are Conservative Judges Conserving?

by William Fisher

7-7-07 -- If you listen to their rhetoric, the mission of the Conservative movement is to get big government off the people’s backs and out of their lives, live by what the framers of the Constitution intended, and help the least of us to enjoy the same liberties as the most of us. . . . That’s what they say they expect from our lawmakers and from our courts. And they’ll tell you it’s the reason they get apoplectic about what they call “activist judges.” . . . If we needed any more proof of their hypocrisy after the disgrace of the Terry Schiavo affair, it would be easy to find in the decisions of the Supreme Court session just ended. . . . The Supreme Court is supposed to be the last resort for the least of us, the one door always open to ordinary citizens seeking justice. . . . So consider how the Court ruled this term: . . . It struck down the modest and voluntarily adopted plans of Seattle and Louisville to re-integrate their public schools. By a 5-4 vote, the Justices decided, as The New York Times put it, that the equal protection clause of the14th Amendment was really intended to protect white students from integration.  . . . It ruled against a prison inmate who filed an appeal based on a deadline set by a federal judge because the judge gave him a wrong date.

Supreme Court tilt to right had its limits

The 2006-2007 term was dominated by notable conservative rulings.

By Warren Richey | Staff writer of The Christian Science Monitor

7-2-07 -- The US Supreme Court is a more conservative place under Chief Justice John Roberts and associate Justice Samuel Alito. . . . But the shift to the right is not as deep and abrupt as it might have been had both of the new justices fulfilled President Bush's wish to populate the high court with jurists in the mold of Antonin Scalia and Clarence Thomas. . . . Instead, Chief Justice Roberts and Justice Alito often staked out more moderate positions than Justices Scalia and Thomas, declining invitations from their conservative brethren to vote to strike down liberal precedents and declare broad new conservative doctrines in some of the high-profile cases decided in the just-ended 2006-2007 term. . . . The session did produce a string of conservative victories, including upholding a national ban on so-called partial-birth abortions, endorsing a narrow reading of a key section of the McCain-Feingold campaign-finance law, making it harder for taxpayers to sue to enforce the separation of church and state, and limiting the use of race-based enrollment policies in public schools. . . . But this was not Armageddon for liberal precedents. At least not yet.

Can a Law Change a Society?

By Jeffrey Rosen, NY Times

7-2-07 -- SINCE 1954, liberal and conservative justices have disagreed about the central meaning of Brown v. Board of Education. Was the purpose of Brown to achieve a colorblind society or an integrated one? Last week, in its 5-to-4 decision declaring that public schools in Louisville and Seattle can’t take explicit account of race to achieve integration, the Supreme Court came down firmly on the side of colorblindness. Despite some important qualifications by Justice Anthony Kennedy, at least four conservative justices made clear that they believe that nearly all racial classifications are unconstitutional. . . . The lawyers who won the Supreme Court case predicted that it would have as dramatic an effect on American society as the original Brown case did. “These are the most important decisions on the use of race since Brown v. Board of Education,” Sharon Browne, the principal lawyer for the conservative Pacific Legal Foundation, declared in a press release. “With these decisions, an estimated 1,000 school districts around the country that are sending the wrong message about race to kids will have to stop.” . . . But some legal scholars on both sides of the political spectrum, and of the affirmative action debate, question this assessment. They doubt that this case will transform society as dramatically as Brown did. And some of them question whether even Brown was as singularly influential in transforming society as many have claimed during the last half-century.

The 5-4 court

Consensus and 'judicial modesty' lose out to muddled, half-reasoned decisions. Kennedy emerges as the swing vote.

LA TIMES EDITORIAL

7-2-07 -- WHEN THE Supreme Court in its 2005-06 term handed down unanimous decisions on two controversial subjects — abortion and campaign finance — it seemed possible that newly seated Chief Justice John G. Roberts Jr., an exponent of "judicial modesty," would preside over a more collegial and consensus-seeking court. . . . The prospect of amity, which faded after Samuel A. Alito Jr. replaced the more moderate Sandra Day O'Connor in early 2006, has been definitively dispelled by the court's 2006-07 term, which ended Friday. Although seven of the nine justices were appointed by Republican presidents, they found little to agree on. Instead, they resolved 24 cases by votes of 5 to 4 — up from 11 the prior term. So fractured were the votes that important issues debated by the justices emerged without any majority at all. The most closely watched ruling, on school integration, produced only a muddle of division and half-reasoning. . . . Not for nothing is a leading textbook about the court titled "Storm Center: The Supreme Court in American Politics." This term, the winds too often blew in the wrong direction.

The Roberts Court
By The Editors, National Review Online

7-2-07 -- In its last term, the Supreme Court took tiny steps toward most conservatives’ understanding of what the role of judges in our republic should be. The reaction from liberals has been hysterical. E. J. Dionne Jr. said that the term had proved that Chief Justice John Roberts and Justice Samuel Alito are “activist conservatives intent on leading a judicial counterrevolution” (and that should President Bush nominate another justice in their mold, Senate Democrats should refuse even to hold hearings). Linda Greenhouse reported, “It was the Supreme Court that conservatives had long yearned for and that liberals feared.” . . . We wish it were true, but let us have a little reality check. None of the major liberal-activist precedents of the Warren or Burger Courts has been overruled in 30 years. The Supreme Court continues to insist that the First Amendment gives it the power to regulate school administrators’ disciplinary policies, even if it is easing up on those regulations. It continues to micromanage the circumstances in which states may employ the death penalty. Its church-state jurisprudence continues to have no consistent theme other than self-aggrandizement.

June 2007

Justice Kennedy's Remarkable OT06

This post was written by Jason Harrow, with research assistance from Adam Chandler.

6-29-07 -- Justice Kennedy’s just-completed October Term 2006 will certainly go down as one of the most “successful” in the Court's modern history. Indeed, the statistics are remarkable: Justice Kennedy was in the minority only twice this entire Term, he wrote only one dissenting opinion, and was a perfect 24-for-24 in 5-4 (or 5-3) cases. If the numbers alone weren’t enough evidence of his tremendous influence, he certainly ended the Term with a flourish: he authored two of the Court’s three 5-4 cases that were announced today – siding with the liberals in one and the conservatives in the other – and also wrote the controlling concurrence in the school assignment cases, which he proceeded to read aloud from the bench. It was a remarkable way to end a remarkable Term. . . . Digging deep back into the archives, it’s difficult to find a Term where the decision of a single justice so often determined the direction of the Court. In the last 20 years, under Chief Justices Rehnquist and Roberts, such an achievement in unparalleled. The closest analogy is Justice Kennedy’s own 1993 Term: in that year, he dissented four times, wrote one dissenting opinion, and was in the majority in 12 of 13 5-4 decisions. Not bad, but it doesn’t measure up to what he accomplished this Term.

Minimalists vs. Visionaries

The real divide on the Supreme Court is between two kinds of conservatives.

By Cass R. Sunstein

6-29-07 -- The most intriguing development on the Supreme Court this term has been the emergence of a powerful alliance between two different kinds of conservatives: the visionaries and the minimalists. . . . Justices Antonin Scalia and Clarence Thomas, the visionaries, are not merely predictable in their votes; their sweeping opinions call for fundamental changes in constitutional law. Chief Justice John Roberts and Justice Samuel Alito, the minimalists, have also turned out to be predictable in their votes. But their opinions tend to be cautious, narrow and unambitious. They are reluctant to reject the court's own precedents, and attempt to rule in a way that preserves them.

ACLU Slams Supreme Court Decision in Student Free Speech Case

by ACLU
6-27-07 -- The American Civil Liberties Union today criticized the Supreme Court's 5-4 ruling in , which held that Alaska public school officials did not violate a student's free speech rights by punishing him for displaying a banner during a public event. . . . "We are disappointed by the Supreme Court's ruling, which allows the censorship of student speech without any evidence that school activities were disrupted," said Douglas K. Mertz, an ACLU cooperating attorney who argued the case before the Supreme Court. . . . The case arose in 2002 when Joseph Frederick, then a student at Juneau-Douglas High School in Juneau, Alaska, was suspended for 10 days for holding up a humorous sign that the principal interpreted as a pro-drug message. As the ACLU and Mertz noted, the sign caused no disruption, was displayed at the Olympic Torch Relay - a public event on public streets - and Frederick had not yet arrived at school for the day. . . . "The Court's ruling imposes new restrictions on student speech rights and creates a drug exception to the First Amendment," said Steven R. Shapiro, ACLU National Legal Director. "The decision purports to be narrow, and the Court rejected the most sweeping arguments for school censorship. But because the decision is based on the Court's view about the value of speech concerning drugs, it is difficult to know what its impact will be in other cases involving unpopular speech. . . . "The Court cannot have it both ways," Shapiro added. "Either this speech had nothing to do with drugs, which is what Joe Frederick claimed all along, or it was suppressed because school officials disagreed with the viewpoint it expressed on an issue that is very much the subject of debate in Alaska and around the country."

Justice Stevens Calls On History He Lived

'Bong Hits' Dissent Points to Prohibition

By Charles Lane, Washington Post Staff Writer

6-27-07 -- Justice John Paul Stevens, the third-oldest person ever to sit on the Supreme Court, turned 87 on April 20. If he's still on the court 142 days from now, he'll overtake Roger B. Taney, who died as chief justice in 1864 at the age of 87 years 209 days. . . . Stevens still has a long way to go if he wants to catch Oliver Wendell Holmes Jr., who was 90 when he retired from the court in 1932. But he has already started invoking his considerable life experience to buttress his opinions. . . . On Monday, Stevens dissented in the case of the Alaska teenager who was suspended for displaying a "Bong Hits 4 Jesus" banner at a school event. While a majority of the court said the Constitution does not protect pro-drug student speech, Stevens took the historic view. . . . Harking back to Prohibition, which began three months before Stevens's birth and ended a month before he turned 13 in 1933, Stevens compared the current marijuana ban to the abandoned alcohol ban and urged a respectful hearing for those who suggest "however inarticulately" that the ban is "futile" and that marijuana should be legalized, taxed and regulated instead of prohibited.

Legislators consider fixes to Supreme Court rulings

By Elana Schor

6-27-07 -- As the Supreme Court’s term winds to a close this week, lawmakers are mulling the future of a thriving breed of bill: the high court “fix.” . . . Members of both parties are pressing or planning at least six bills to clarify recent Supreme Court rulings, signaling what may become a new era of congressional sensitivity to court decisions that can be remedied with legislation. . . . “What the court’s saying to us is, you have to write down every single little thing you want done,” Sen. Tom Harkin (D-Iowa) said. Congress should not have to step in often to address the court’s interpretation of statutes, he added, “but I’m afraid we may be moving in that direction.”

Supreme Court's Death Penalty Ruling in Troy Davis Case Reveals 'Catastrophic Flaws in the U.S. Death Penalty Machine'

by Amnesty International
6-26-07 -- Amnesty International is deeply disappointed with the Supreme Court ruling that permits the execution of Troy Anthony Davis in Georgia. . . . The organization maintains that evidence in his favor, which has never been heard in a courtroom, is enough to demonstrate that Davis should be granted a new hearing. . . . "The Supreme Court decision is proof-positive that justice truly is blind -- blind to coerced and recanted testimony, blind to the lack of a murder weapon or physical evidence and blind to the extremely dubious circumstances that led to this man's conviction," said Larry Cox, executive director of Amnesty International USA (AIUSA). "At times there are cases that are emblematic of the dysfunctional application of justice in this country. By refusing to review serious claims of innocence, the Supreme Court has revealed catastrophic flaws in the U.S. death penalty machine." . . . Troy Anthony Davis, who is African American, was convicted in 1991 of murdering Mark McPhail, a white police officer. Davis' conviction was not based on any physical evidence, and the murder weapon was never found. . . . The prosecution based its case on the testimony of purported "witnesses," many of whom allege police coercion. Seven of the nine non-police witnesses for the prosecution have recanted their testimony in sworn affidavits. One witness signed a police statement declaring that Davis was the assailant, then later said, "I did not read it because I cannot read." In another case a witness stated that the police "were telling me that I was an accessory to murder and that I would go to jail for a long time and I would be lucky if I ever got out, especially because a police officer got killed ... I was only 16 and was so scared of going to jail."

High Court Signals Rightward Tilt

By Mark Sherman, Associated Press Writer

6-26-07 -- The Supreme Court liberated corporate and union political spending, limited students' speech and shielded the White House faith-based program from legal challenge Monday in 5-4 rulings that pointed up the court's shift to the right. . . . President Bush's two appointees, Chief Justice John Roberts and Justice Samuel Alito, were front and center. They wrote the main opinions in those three decisions - including the "Bong Hits 4 Jesus" free-speech case - as well as another ruling that had been sought by the administration and business groups in an environmental case. . . . Five justices - Roberts, Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas - formed the majority in each decision. The court's four liberals, Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens, dissented each time.

Court turns a cold shoulder

By A TIMES EDITORIAL

6-25-07 --"It is intolerable for the judicial system to treat people this way." That's what four dissenting U.S. Supreme Court justices said of the treatment of Keith Bowles. In denying Bowles the ability to appeal of his murder conviction, the high court demonstrated it puts process ahead of justice. . . . Bowles, an inmate in Ohio serving a sentence of 15 years to life, missed a federal filing deadline for his appeal by three days. He had followed a federal district judge's instructions, but the judge had provided him with erroneous information. . . . One would think that the court system could adjust things slightly for a situation like this. Relying on the directions of a federal judge is a pretty good excuse for missing a deadline. . . . And in fact, the high court had established the "unique circumstances" doctrine for just such a happenstance.

In Second Term, Roberts Court Defines Itself

Many 5 to 4 Decisions Reflect Narrowly Split Court That Leans Conservative

By Robert Barnes, Washington Post Staff Writer

6-25-07 --In the final days of the Supreme Court's term, the stage is set for the divisions that narrowly but decisively split the justices on social issues to be on full display. . . . The court has already decided more cases on 5 to 4 votes this term than in all of last term -- some of them favoring the court's liberal wing, more won by the conservatives. This week, the opportunity is there for the court reconstituted under Chief Justice John G. Roberts Jr. to make a bold statement. . . . The cases remaining concern some of the most divisive of social and policy questions: the use of race in public school admission programs; the constitutionality of advertising restrictions in the McCain-Feingold campaign finance act; whether ordinary taxpayers have the right to sue over what they perceive to be violations of the separation of church and state.

The mean men in black

By Robyn Blumner

6-25-07 --Often you can sum up the collective actions of the Supreme Court under a particular chief justice with one word. The Warren court will always be remembered as liberal, the Burger court as pragmatic, the Rehnquist court as conservative, and the Roberts court in a short time has already earned its moniker: mean. . . . The addition of Chief Justice John Roberts and Justice Samuel Alito to the heartless duo of Justices Antonin Scalia and Clarence Thomas has cemented a plurality for cruelty. If there's a choice between casting their lot with the little guy and tipping a case toward compassion, or putting a foot on his throat, it's a safe bet that these four will be getting out their boots. . . . Thomas and Scalia are the guys who said in a dissent that a prison guard kicking and punching a prisoner to the extent that he suffered a split lip and loosened teeth didn't amount to cruel treatment under the ConstNow we see that Roberts and Alito are cut from the same razor wire, and when Justice Anthony Kennedy joins them its a winning hand for corporate interests, big government and persecutors everywhere.

Don't believe the judge

Observer-Reporter

6-22-07 --Every once in a whole, we read a court decision that is so breathtakingly unfair it violates the very notion of justice. The U.S. Supreme Court handed down such a ruling last week in a case from Ohio. . . . Keith Bowles was convicted of murder in 1999 in an Ohio state court for his involvement in a beating death and was sentenced to 15 years to life. He filed a habeas corpus petition in federal court, which was denied, and then sought an appeal of that ruling. . . . That appeal had to be filed within 14 days, by Feb. 24, but the district court mistakenly told Bowles the deadline was Feb. 27. When the appeal was taken on Feb. 26, it was thrown out for being too late. . . . The 4th Circuit ruled against Bowles on the ground that a deadline is a deadline, and the Supreme Court last week upheld that decision in a 5-4 decision. Justice Clarence Thomas, writing for the majority, held "that petitioner's untimely notice - even though filed in reliance upon a District Court's order - deprived the Court of Appeals of jurisdiction."

Jack Bauer Gets A Pass from Justice Scalia

By Dan Cook

6-22-07 --The merger of TV and politics continues: No, we’re not talking about former U.S. Sen. Fred Thompson of Law & Order considering a run for presidency, but rather about comments made recently by U.S. Supreme Court Justice Antonin Scalia at a legal conference in Ottawa. When a Canadian judge made brief reference to 24 character Jack Bauer — a U.S. counterterrorist agent who routinely veers into extra-legal methods in order to thwart danger — Scalia was quick to defend the fictional character’s methods. “Jack Bauer saved Los Angeles … He saved hundreds of thousands of lives,” Judge Scalia said, according to the Canadian Globe and Mail. Referencing the show’s second season, during which Bauer (played by Canadian Kiefer Sutherland) saved California from a nuclear attack by using zealous interrogation tactics, Scalia asked fellow judges at the conference: “Are you going to convict Jack Bauer? Say that criminal law is against him? ‘You have the right to a jury trial?’ Is any jury going to convict Jack Bauer? I don’t think so.” Against Scalia’s view, many panelists argued that “any implicit or explicit sanction of torture is a slippery slope.”

Precedents Begin to Fall for Roberts Court

By Linda Greenhouse

6-22-07 --No Supreme Court nominee could be confirmed these days without paying homage to the judicial doctrine of “stare decisis,” Latin for “to stand by things decided.” Yet experienced listeners have learned to take these professions of devotion to precedent “cum grano salis,” Latin for “with a grain of salt.”. . . Both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. assured their Senate questioners at their confirmation hearings that they, too, respected precedent. So why were they on the majority side of a 5-to-4 decision last week declaring that a 45-year-old doctrine excusing people whose “unique circumstances” prevented them from meeting court filing deadlines was now “illegitimate”? . . . It was the second time the Roberts court had overturned a precedent, and the first in a decision with a divided vote. It surely will not be the last. . . . The fact is that the court regularly revisits and reconsiders its precedents, as Chief Justice William H. Rehnquist, the current chief justice’s former boss and mentor, once observed succinctly. “Stare decisis is not an inexorable command,” he said in a 1991 opinion that included, in a page and a half of small type, a list of 33 precedents that the court had overturned in the previous 20 years.

The Supreme Court’s Bonus Babies

Op-Ed Contributor David lat

6-18-07 --AFTER the Supreme Court’s term ends this month, the nine justices will go their separate ways for the summer. A few weeks later, their 36 law clerks — the young legal geniuses who spend a year assisting the justices in selecting cases for review, preparing for oral argument and drafting opinions — will leave the court’s marble palace at 1 First Street for good. . . . Most of these clerks will join elite private law firms. This is not surprising, since firms entice them with signing bonuses that are expected to reach $250,000 this year — paid on top of starting salaries approaching $200,000. Thus some former clerks, in their first year practicing law, will earn twice as much as their former judicial bosses (the chief justice earns $212,000 a year; his colleagues earn $203,000 each). . . . These gargantuan clerkship bonuses have their critics, including some of the justices themselves. They are attacked as the private sector’s way of luring some of the profession’s most promising new members away from more worthwhile enterprises. But this is exactly backward: these outsized bonuses, while questionable investments for the law firms, are actually healthy for the legal system as a whole.

Alito Offers Support for Free Speech Rights

Mark Sherman, The Associated Press

6-15-07 -- Like his Supreme Court colleagues, Justice Samuel Alito knows the outcome of the 17 remaining cases this term and is careful not to give anything away in advance. . . . But Alito nevertheless offered strong support for free speech rights in remarks Wednesday to a group on Capitol Hill. The comments hold particular interest because First Amendment freedoms are at the heart of two pending cases. . . . Asked by a young woman how to draw the line in the Internet age when people can and do say anything online, Alito said he takes a dim view of laws and policies that limit speech rights. . . . "I'm a very strong believer in the First Amendment and the right of people to speak and to write. I would be reluctant to support restrictions on what people can say," Alito said at the National Italian-American Foundation luncheon.

Retired justice O'Connor has a lot on her docket

Seeks to renew faith in courts

By Joan Biskupic, USA TODAY 

6-15-07 -- One week she is with Queen Elizabeth II in Virginia celebrating Jamestown's 400th anniversary. The next week she is supporting reform of state judicial elections and declaring that all judges should follow past rulings to boost public confidence. Then she's off to Beijing and Prague. . . . As the past two months have shown, in retirement former Supreme Court justice Sandra Day O'Connor has been anything but retiring. . . . Not since Chief Justice Warren Burger stepped down in 1986 to oversee the celebration of the Constitution's bicentennial has a retired justice assumed such a packed agenda. O'Connor's schedule makes Burger's look easy. . . . The high court she left behind is finishing up some of its biggest cases for the 2006-07 term — cases that will test how much the law changes in her absence and under new Chief Justice John Roberts.

Business Community, ACLU Share
Distaste for High Court Rule Changes

Tony Mauro, Legal Times 

6-13-07 -- Groups ranging from the American Civil Liberties Union to the U.S. Chamber of Commerce are urging the Supreme Court to withdraw a proposed rule that the groups say would compromise the privacy of their membership rosters. . . . The revised rule would require groups filing friend-of-the-court briefs with the Court to reveal whether parties in the case -- or their lawyers -- are members. . . . For example, if the Chamber filed an amicus curiae brief in support of Company X, or the ACLU filed for Protester Y, the organization would have to tell the Court whether X or Y, its lawyers, or opposing lawyers, are members of the respective organization. . . . A group of former government lawyers also objected to the rule's proposal that would, in cases in which the United States is a party, require amicus groups to research and reveal whether lawyers in the solicitor general's office listed on the government brief are members. "Forced disclosure of such information would ... intrude significantly on the privacy interests of career government attorneys," said the group, led by former Assistant to the Solicitor General James Feldman.

Supreme Court Justices' Financial Reports Show Most to Be Millionaires

Mark Sherman, The Associated Press

6-12-07 -- What do Clarence Thomas and Anthony Kennedy lack that the other seven Supreme Court justices have in abundance? . . . Money, according to annual financial disclosure reports released Friday. . . . At least six and possibly seven justices are millionaires. Then there are Kennedy and Thomas, who between them don't have a million bucks -- even after Thomas received a $166,000 advance for his autobiography due out in October. . . . Thomas previously received $500,000 from HarperCollins Publishers, part of the $1 million-plus book deal he signed in 2003. . . . Thomas supplemented his $203,000 salary with $25,000 from a seminar at Drake University and teaching at the University of Georgia. . . . Kennedy likewise added to his salary by teaching at the University of Pacific law school, receiving $24,500. . . . The disclosure forms also include expense-paid trips. Kennedy made 12, including an August jaunt that took him to Hawaii, Guam, Malaysia, the United Arab Emirates and England.

Reading the Constitution Right
Stephen B. Presser

6-12-07 -- Clarence Thomas’s fidelity to our founding documents is making its mark on the Supreme Court. . . . In 1991, George H. W. Bush nominated 43-year-old court of appeals judge Clarence Thomas, who had been on the bench only 19 months, for a seat on the Supreme Court. The president declared that “race played no part in his selection,” but the statement was hard to believe. After all, Thomas would replace Thurgood Marshall, the first African-American on the Court. Almost everyone assumed that Bush had caved to political pressure to reserve a black seat on the Court, and filled it with one of the few black conservatives on the bench. . . . Liberals immediately launched withering attacks on Thomas’s fitness for the highest court. The dean of the University of Chicago’s law school, eminent civil libertarian Geoffrey Stone, echoed the legal academy’s general opinion when he said: “I think, in all candor, [Thomas] fairly could be labeled ‘strange.’ Not in terms of right or wrong, but in being further outside the mainstream of constitutional interpretation than Bork”—Supreme Court nominee Robert Bork, that is, whose nomination Senate Democrats had shot down in 1987. Black leaders, despising Thomas’s political views, were particularly harsh, calling the nominee a “chicken-and-biscuit-eating Uncle Tom,” a “virulent Oreo phenomenon,” and an “assassin,” among other vicious insults. But even conservatives were dubious.

Ginsburg Finds Majorities Harder to Come By Without O'Connor

Mark Sherman, The Associated Press 

6-8-07 -- Ruth Bader Ginsburg has no need any longer for her "I'm Ruth, Not Sandra" T-shirt. She could, however, use Sandra Day O'Connor's vote. . . . O'Connor retired from the Supreme Court last year, replaced by a man. Her departure almost certainly cost Ginsburg's side a victory in an abortion case, decided 5-4 in April, and might have been a factor in a wage discrimination lawsuit the Court decided last week, also by a 5-4 vote, against a woman and in favor of her employer. . . . Ginsburg and O'Connor, the only women among the 110 justices in U.S. history, were not always on the same side. O'Connor, who has her own "I'm Sandra, Not Ruth" shirt, dissented from Ginsburg's very first opinion on the Court. . . . Yet they often were together on issues of particular concern to women, notably abortion rights.

Defending Justice Thomas

New York Sun Editorial

6-8-07 -- Let at least someone in this city rise to the defense of Justice Thomas, who was smeared on Sunday by an "editorial observer" column in the New York Times. The column managed to assail Justice Thomas for being friends with Rush Limbaugh and at the same time to assert that Justice Thomas's "longstanding goal" is "dismantling the integrationist vision of his predecessor Thurgood Marshall." It raises the question of, if Justice Thomas is so adamantly opposed to integration, why would he be mixing with a Caucasian such as Mr. Limbaugh? Though that's the least of the internal contradictions and gratuitous insults in the piece. . . . The Times writer asserts that the "central enigma" posed by Justice Thomas is "why the justice who has faced the greatest hardships regularly rules for the powerful over the weak, and has a legal philosophy notable for its indifference to suffering." Justice Thomas is perfectly capable of speaking for himself, but let us hazard an answer — could it be because the powerful might sometimes have had a better constitutional case? Justice, as symbolized by the blindfolded woman who appears more than once at the Supreme Court building itself, is supposed to be impartial to whether the parties before her are powerful or weak. Justice is supposed to decide the cases based on the law and the legal merits.

Despite Docket Drop, Justices Face Packed Homestretch

After 'B-movie' term, will Supreme Court make blockbuster rulings in final weeks?

Marcia Coyle, The National Law Journal

6-6-07 -- Seattle attorney Harry J.F. Korrell made his first argument in the U.S. Supreme Court last December. He and his opponent now hold the dubious distinction of having the oldest case awaiting decision in the current term, a decision that may well define the term itself. . . . As the justices enter the homestretch of the October 2006 term, neither Korrell nor his client -- an association of parents -- is biting fingernails or popping antacids. They knew in December that the question of a school district's use of race as a factor in assigning students to public schools would be complex and challenging for the high court. . . . And besides, said Korrell, they have been in this litigation for the long haul -- seven years and counting. . . . Korrell, a partner at Seattle's Davis Wright Tremaine, represents Parents Involved in Community Schools (PICS), in the case entitled PICS v. Seattle School District #1, No. 05-98. It was argued on Dec. 4 with another case raising similar issues, Meredith v. Jefferson County, Kt., Board of Education, No. 05-915. . . . The stakes are extremely high because the Court's most recent affirmative action precedents -- involving the University of Michigan and its law school -- are in play and the cases will test, for the first time, the views in this area of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. . . . "I don't think anyone is terribly surprised that this is one that will take a while to decide," Korrell said. "You obviously want to know the result, but we understand these are very big issues. The Court has not addressed them squarely before and there's probably a lot of work being done to get the largest possible majority for a decision."

In June, getting five justices to agree isn't so easy

Dissenters always try to pick off one to get a majority

By Joan Biskupic, USA TODAY 

6-6-07 -- Chief Justice John Roberts has publicly yearned for unanimous Supreme Court rulings that clearly state the law for the American people. To that, Justice Antonin Scalia has quipped, "Lots of luck." . . . The nation's high court has just entered its crunch month for deciding cases: June. . . . These are the intense, deadline-filled last weeks of the annual term that began in October. It's a time when wavering justices must stand firm, when drafts must be finished, and when hopes for unanimity are exchanged for a simple five-justice majority. . . . Even that is hard to come by in June. . . . At this time last year, as Roberts' first term as chief justice was ending, three significant cases (wetlands protection, campaign-finance regulation and congressional voting districts) produced not three clear-cut decisions, but 17 opinions and three rulings that are still confounding lawyers and lower-court judges. . . . That's not new with this new chief. . . . When Chief Justice William Rehnquist was trying to shepherd a complicated voting rights case in June 1994, he found justices bailing out of what was to be a Scalia opinion for the court. Even Scalia was having second thoughts. . . . "I have no desire to go down with the ship," Rehnquist wrote to his colleagues as he reassigned the leading decision in the Georgia redistricting dispute. Rehnquist added in frustration, "This late in the term, there does not seem to be any possibility of getting a court opinion" signed by five justices.

Roberts Court Proves Good for Business

Business has a lot to cheer about as the Supreme Court term enters its final month.

By Laura Kennedy

6-6-07 -- Is the Roberts Court a pro-business court? It sure looks that way. Though there are still a few important decisions to come, companies are compiling an impressive record in the Supreme Court's first full year with both of President Bush's appointees -- Chief Justice John Roberts and Associate Justice Samuel Alito -- sitting on the nine-judge panel. . . . Business boasts seven wins and only two losses after the June 4 ruling in Safeco Insurance Co. of America v. Burr decided together with GEICO General Insurance Co. v. Edo, which limited the ability of consumers to sue under a credit-reporting law and came just a week after the court's 5-4 decision in Ledbetter v. Goodyear Tire and Rubber Company Inc. In that case, the justices reversed decades of practice that allowed people to file complaints years after the initial event by insisting on a tight, 180-day timeframe for filing pay discrimination complaints under Title VII of the Civil Rights Act, which covers employment decisions based on gender, race, religion, national origin, etc. The decision is likely to make it harder to press pay discrimination suits because employees often don't know for several years that other workers are being paid more. On the other hand, the decision could work against employers if some workers react by filing suits quickly, before they have real evidence of pay discrimination.

A Mootness Dismissal Illustrates the Supreme Court's Split Personality: Is it a Constitutional Court or a Court of Error?
By Michael C. Dorf

6-6-07 -- By the time the current Supreme Court Term ends later this month, the Justices will have handed down a number of blockbuster decisions. Yet this Monday's ruling in Claiborne v. United States surely will not make anybody's "Top 10" list--and for seemingly good reason. The unsigned two-sentence order simply dismisses the underlying appeal as moot because the petitioner died last week. . . . That disposition of the Claiborne case reveals a deep tension in the Justices' understanding of the power they wield. On one hand, the Supreme Court frequently invokes doctrines of mootness, standing, ripeness, and other principles of justiciability--rules and standards governing when it is appropriate for a court to decide or refrain from deciding a given issue--in order to limit its own jurisdiction, as it did in Claiborne. According to the Court, because the Constitution's Article III only authorizes federal courts such as itself to resolve "cases" and "controversies," it has no power to decide anything if the ruling won't make a concrete difference in a particular dispute. . . . On the other hand, the Court also frequently states that it cannot devote its scarce attention to simply correcting alleged errors by the state courts and the lower federal courts--even though such errors routinely occur in the context of cases and controversies, and no one disputes that their resolution will make a difference to the parties to the dispute. The Justices have nearly complete control over their own docket and they exercise their discretion by choosing not those cases that seem ripe for error-correction, but those that present issues of national importance. In other words, the Justice select their cases for reasons having almost nothing to do with the concrete difference the result might make in the particular dispute.

Practitioners' Reactions To Proposed Revisions To Supreme Court Rules - Part III

Posted by Kevin Russell, SCOTUSBLOG

6-6-07 --This is the third in a series of posts about practioners’ reaction to proposed amendments to the Supreme Court’s rules. The first post addressed new word limits for briefs, font requirements and electronic filing. The second post looked into time limits for filing merits and cert-stage amicus briefs. This final post will discuss the most controversial change: an alteration to the disclosure requirements for amicus briefs. We also include links to some of the public comments sent to the Court in response to the proposed revisions. . . . UPDATE: We've now added comments from the National Association of Criminal Defense Lawyers to the bottom of this post.

Show Us the Money

By Susan E. Reed Op-Ed Contributor

6-5-07 -- THIS year, each of the eight associate justices of the Supreme Court will earn $203,000. The only woman and the only African-American on the court are paid the same as their six white male colleagues. Only Chief Justice John G. Roberts Jr. earns more than everyone else, $212,100. Their pay is set by Congress, and it is a matter of public record. . . . Congress should pass legislation mandating that all workplaces create this kind of transparency by requiring companies to post salaries. It makes sense, especially in light of the court’s decision last week requiring employees to file pay discrimination complaints under Title VII of the Civil Rights Act within 180 days of the last pay adjustment. . . . It’s only fair since the five justices who supported this decision must have thought that it was easy for employees to find out whether they are being discriminated against. They must never have had to sidle up to co-workers and whisper nosy questions about pay to find out how they ranked. They must never have been so desperate for proof that they considered hacking into the company database or ransacking the human resources office searching for pay rosters. . . . It’s understandable that the Equal Employment Opportunity Commission, which is responsible for investigating pay discrimination complaints, requires evidence. But some employees have not discovered evidence that they are paid less until after the 180 days has expired. . . . For example, Justice Ruth Bader Ginsburg in her dissent cited two cases. One involved a veterinarian in Massachusetts, who learned that she was being paid less than her male counterparts when a newspaper published a list of her colleagues’ salaries. The other dealt with a worker at General Motors who learned long after the fact that her starting salary was set lower than those of her male co-workers. . . . If we are really going to enforce the 180-day rule, then Congress needs to make it easier for workers to procure the necessary evidence. The solution is to make salary data as transparent for ordinary workers as for Supreme Court justices. . . . Most business owners don’t want salary information released, reasoning that it would give their competitors an advantage. Yet many courts have said that wages are set by the market, but a market isn’t free if only the buyers of labor know the wages that are paid.

Former Supreme Court Justice Speaks at TU:

Constitutional liberties at risk, O'Connor says

By April Marciszewski World Staff Writer  

6-5-07 -- Funny and matter-of-fact, retired U.S. Supreme Court Justice Sandra Day O'Connor advocated for keeping the court system independent, giving states the first crack at addressing problems and teaching law students to be professionals, not business people merely out to make money. . . . O'Connor spoke Friday afternoon at the University of Tulsa in a discussion that was open to the public. . . . O'Connor quoted the criticism that judges are godless, secular and activist, digging into the latter like it was a dirty word. . . . She rattled off proposed legislation in various states and the federal government to punish judges who make decisions that other government officials do not like. . . . She hypothesized that the criticism of judges stemmed from the Terri Schiavo case, in which courts ruled that a feeding tube should be removed from Schiavo, who was brain-damaged, at the request of her husband and against the wishes of her parents. . . . After the court rulings, at least one member of Congress spoke of impeaching judges involved in the case. . . . Constitutional framers wanted judges to be able to make decisions fairly, impartially and to the best of their ability, O'Connor said.

May 2007

Groups Ask Court To Rehear Decision by Visitor O'Connor

By Staff Reporter of the Sun

5-25-07 -- In October, dozens of lawyers flocked to the federal appellate court in Lower Manhattan where a former Supreme Court justice, Sandra Day O'Connor, spent a day of her retirement hearing cases. Many city lawyers don't have fond memories of the day.  . . An assortment of civil rights groups and nonprofit organizations is asking the 2nd U.S. Circuit Court of Appeals to rehear one of the cases Justice O'Connor was involved in. The group says the decision sets a precedent for judges to award lower legal fees to civil rights attorneys on the grounds that civil rights cases can help lawyers advance their reputations. . . . The decision rendered by Justice O'Connor's panel "has the potential to inflict enormous collateral damage on the civil rights bar, and consequently on the enforcement of civil rights laws," according to a friend of the court brief filed by 29 organizations. The groups include the American Civil Liberties Union, the Brennan Center for Justice, and the National Resources Defense Council.

O'Connor: Supreme Court Rulings Shouldn't Differ Based on Who Sits on Court

Hope Yen, The Associated Press

5-24-07 -- Retired Justice Sandra Day O'Connor says the Supreme Court should generally follow its prior rulings so the public has confidence that laws do not change just because justices come and go. . . . O'Connor, a swing vote in favor of abortion rights and affirmative action, said she was seeing an unprecedented level of public criticism in recent months of state and federal court decisions. . . . The vast majority of the criticism, she said, is unjustified and borders on harassment of judges, especially in cases where lawmakers threaten impeachment of judges for decisions they disagreed with. . . . But federal courts, too, play a role in fostering public credibility by generally adhering to stare decisis, or settled precedent, O'Connor said. . . . "Obviously, that is a concern," said the Reagan appointee who retired early last year. She responded to a question in a broadcast interview about the public's perception that the Supreme Court based its decisions more on politics than principle and whether that belief undermined the Court's credibility. . . . The law "shouldn't change just because the faces on the Court have changed," she said.

Supreme Court Asked to Clear Up Sentencing Muddle

Legal Times 

5-24-07 -- Conference Call summarizes the roughly 15 percent of all non-pauper petitions that are the most likely candidates for certiorari. The Supreme Court's jurisdiction is almost entirely discretionary, and justices in recent years have annually selected roughly 80 petitions from the approximately 7,500 that are filed. . . . Conference Call is prepared by the law firms Akin Gump Strauss Hauer & Feld and Howe & Russell, which together publish the Supreme Court weblog. Tom Goldstein, who is the head of Supreme Court litigation for Akin Gump, selects the petitions from the docket of non-pauper petitions. Various attorneys for the firms then prepare summaries of the cases. If either firm is involved in a case mentioned in this column, that fact will be disclosed. . . . Seven years ago, the Supreme Court held in Apprendi v. New Jersey that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." In 2004, the Court clarified the Apprendi rule by holding that "the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." . . . It is probably no exaggeration to say that these two statements have generated more litigation over the last few years than almost any other language from the Court: By setting constitutional limits on a judge's discretion to sentence, these decisions called into serious question the sentencing schemes of the federal government and of dozens of states. In its private conference Thursday, the Supreme Court will consider whether to hear a case -- Washington v. VanDelft, No. 06-1081 -- that presents yet another wrinkle in the ever-evolving field of sentencing jurisprudence. . . . The question in VanDelft is whether the decision to impose consecutive rather than concurrent sentences is one that a judge can make, or whether, instead, it is a question that Apprendi and Blakely v. Washington repose in the jury.

Justice Thomas Asks No Questions During Entire Court Term

Mark Sherman, The Associated Press

5-21-07 --Justice Clarence Thomas sat through 68 hours of oral arguments in the Supreme Court's current term without uttering a word. . . . That's saying something -- or not -- even for the taciturn justice. . . . In nearly 16 years on the Court, Thomas typically has asked questions a couple of times a term. . .. He memorably spoke up four years ago in cases involving cross burning and affirmative action, the Court's only black justice in the unusual role of putting his race on display through questions to lawyers. . . . But the last time Thomas asked a question in court was Feb. 22, 2006, in a death penalty case out of South Carolina. A unanimous Court eventually broadened the ability of death penalty defendants to blame someone else for the crime. . . . Thomas has said in the past that he will ask a pertinent question if his colleagues don't but sees no need to engage in the back-and-forth just to hear his own voice.

In 4th Decade On High Court, Stevens Stays True to Form

Justice Known for Dissents Enters Top 10 for Tenure

By Robert Barnes, Washington Post Staff Writer

5-21-07 --Those who wonder if Supreme Court Justice John Paul Stevens might be tiring of the same old same old after 31 years on the job won't find any evidence in the court's workload this term. . . . Stevens was an active, if unfailingly polite, questioner at the court's oral argument sessions, wrote one of the court's two most important opinions issued so far, and is even more prolific when he's on the losing side. True to his reputation, he has written more dissents than any other member of the court -- one of them longer than the majority opinion with which he disagreed. . . . In a matter of months, the 87-year-old from Chicago could become the second-oldest justice ever to serve on the court, and earlier this year he moved into 10th place on the list of longest-serving justices. . . . He shrugged it off in an interview with the Third Branch, the newsletter of the federal courts.

Carter Phillips' Daughter Continues Family Tradition Among High Court Clerks

Tony Mauro, Legal Times 

5-16-07 -- A long tradition of father-daughter pairings among Supreme Court law clerks is about to be carried on by a Northwestern University law school graduate named Jessica Phillips. . . . Phillips, daughter of veteran Supreme Court advocate and onetime Warren Burger clerk Carter Phillips, begins this summer as a law clerk to Justice Samuel Alito Jr. Responding to an inquiry from Legal Times, Alito said last week through Court spokeswoman Kathy Arberg that Jessica Phillips will have no involvement in cases in which her father's firm, Sidley Austin, participates. That leaves Alito's other three clerks to work on Sidley cases. . . . Jessica Phillips, 27, was on the editorial board of Northwestern Law Review in 2005-2006 and is clerking for Joel Flaum, a judge on the 7th Circuit U.S. Court of Appeals. . . . She would have been clerking for Alito already, if Alito had remained on the 3rd Circuit. Alito's plans to hire her were interrupted, so to speak, when he landed his new job.

Distress over parody led to First Amendment case

By Joan Biskupic, USA TODAY 

5-16-07 -- Jerry Falwell's round face and jocular manner, coupled with his inclination for moralistic rhetoric, made him a frequent figure of satire. One extreme example turned into a First Amendment milestone at the U.S. Supreme Court. . . . In its November 1983 issue, Hustler magazine published a satirical advertisement that depicted Falwell having a drunken, incestuous encounter with his mother in an outhouse. . . . Falwell sued Hustler publisher Larry Flynt, alleging that the satire had caused severe emotional distress. A jury awarded Falwell $200,000, and an appeals court affirmed the decision. . . . However, in 1988 the Supreme Court threw out the award and ruled that the First Amendment protects the right to parody public figures, even when the parody is "outrageous." The unanimous opinion, written by Chief Justice William Rehnquist, said a standard tied to outrageousness in political discourse could subject publications to the whims of jurors' tastes or views.

The Temptation of Justice Thomas

In his latest anti-abortion opinion, Clarence Thomas hints at a moment of doubt

Evan P. Schultz, Legal Times 

5-8-07 -- One of the more fascinating (and frustrating) aspects of following the Supreme Court is trying to read the hints and feints that the justices sometimes drop into their opinions. It's just like discovering a scrambled message in "The Da Vinci Code" or another unexpected coincidence on "Lost." We scratch our heads wondering whether the writer is tempting us with a taste of something to come -- or not even thinking along the same conspiratorial lines. . . . In the abortion decision that the Court released April 18, Justice Clarence Thomas has left, peeking out like a half-hidden Easter egg, one of the more intriguing puzzles in a Supreme Court opinion. Read one way, Thomas' concurrence in Gonzales v. Carhart, joined by Justice Antonin Scalia, might well be a bread crumb in a trail pointing toward an eventual striking down of the law prohibiting "partial-birth" abortions. Carhart, of course, has just upheld that law. . . . What makes this hint worthy of a blockbuster thriller is that Thomas and Scalia are perhaps the Court's two strongest opponents of abortion rights. It's hardly what the political right would expect from its heroes -- or the left from its nemeses.

Justice Stevens shares tales of Ford

Supreme Court's oldest member recounts naming

By John Diedrich

5-8-07 -- Before he met Gerald Ford, John Paul Stevens always believed the image of the president portrayed in the media: a dopey bumbler who had played a few too many downs of college football for his own good. . . . But in 1975, Stevens met Ford at the White House and found him to be an engaging man, a graceful dancer and a smart lawyer. . . . "I came away with the impression and strong feeling that this is a very good, sound lawyer," Stevens said. "I had this very, very distinct memory of this surprisingly favorable impression of the obvious intelligence of our president. . . . He was a very impressive and decent man." . . . A short time later, Ford nominated Stevens to the U.S. Supreme Court. Stevens spoke Monday in Milwaukee at the 7th Circuit Bar Association's annual meeting at the Pfister Hotel. . . . At 87, Stevens is the oldest and longest-serving member of the court. He did not speak about his future plans or address any weighty legal issues, but instead he reflected back on the president who put him on the highest court - and tried to correct the impression that some have that Ford was a light-weight commander in chief.

Alito Shows His Colors, Just as Conservatives Hoped

Mark Sherman, The Associated Press 

5-7-07 -- In his 15 months on the Supreme Court, Justice Samuel Alito has been everything his conservative supporters expected and his liberal detractors feared. . . . The newest justice has been a reliable vote in favor of the death penalty, expanded police powers and restrictions on abortion. . . . Alito has yet to write an opinion on a major constitutional issue, not uncommon for someone so new to the Court. And he has been more measured than Justices Antonin Scalia and Clarence Thomas, declining to join their call to overturn the Court's landmark Roe v. Wade decision on abortion, for instance. . . . "He has been as advertised, not someone who wanted to dramatically change the law or had a fixed vision of the Constitution," said Thomas Goldstein, a lawyer who argues before the Court and tracks voting trends. "But he has moved the Court a significant step to the right." . . . Alito has voted with Chief Justice John Roberts, Scalia and Thomas in every case in which the Court has been ideologically divided.

Chief Justice Ponders Supreme Court's Declining Caseload

Jeannette Lee, The Associated Press

5-7-07 -- The number of cases heard by the U.S. Supreme Court is declining in part because of the lack of significant legislation coming out of Congress, Chief Justice John Roberts said at the Alaska Bar Association's annual convention. . . . "No one actually knows why the number of cases we are taking is declining," Roberts said Thursday as the keynote speaker at the association's banquet. "I think there really are three significant reasons. The first is the lack of any major legislation coming out of Congress in the last couple of decades." . . . Roberts also suggested the lower courts are interpreting statutes in a more uniform manner, meaning the Supreme Court has fewer disputes to sort out. . . . The third reason for the decline, he said, is that circuit courts can locate previous legal decisions online in cases where they might have once turned to the Supreme Court for guidance. . . . "Looking back at the term as a whole, I think it's fair to say there is a higher percentage of significant cases than usual, even though the actual number of cases that we take is declining," he said.

Supreme Court Web Site Endorses the "Living Constitution"

By AndrewHyman, Posted in Analysis and Predictions

The SCOTUS web site declares (without dissent) the following:

This power of "judicial review" has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a "living Constitution" whose broad provisions are continually applied to complicated new situations. . . . This is an unwise move. These words may (or may not) have been approved at one time by a unanimous Court, but nowadays (at least) the term "Living Constitution" is considered a theory of constitutional interpretation that is at odds with originalism. It's time for the Court to rewrite that essay at their web site, IMHO. . . . While they're at it, they might clarify that upholding equal justice under law is not the Court's "ultimate responsibility"; their ultimate responsibility is to uphold the Constitution and laws, regardless of whether they think they're just. The Court does not have carte blanche to completely substitute their view of justice for the American people's view of justice, as expressed through our elected representatives.

Scalia says judges shouldn't change Constitution
By The Associated Press

5-1-07 -- If Americans want to secure new constitutional rights, they should look to the legislative branch, not the Supreme Court, Justice Antonin Scalia said last week. . . . “If you want new rights, create them by statute,” Scalia said April 27 in a speech at the University of Delaware. “If you want new constitutional rights, then you need to amend the Constitution.” . . . Defending his “originalist” approach to interpreting what the framers of the Constitution intended, Scalia said too many Americans, from the man in the street to academics and judges, mistakenly consider it to be a document that must evolve to meet the changing norms of society. . . . “The professorate, the bench and even the American people have all been seduced into believing in, and I hate the term, ‘a living Constitution,’” he said. . . . “The Constitution is not a living organism,” Scalia added. “It’s a legal document.”

April 2007

Roberts Had Sharp Words for Stevens in Death Penalty Cases

Mark Sherman, The Associated Press 

4-27-07 -- When Chief Justice John Roberts took his center seat for the first time in October 2005, John Paul Stevens, the Supreme Court's senior justice, wished him "a long and happy career in our common calling." . . . This week, Roberts had some words for Stevens, who turned 87 last week. And they were not nearly so kind. . . . In a pointed dissent from decisions overturning death sentences for two Texas inmates, Roberts accused Stevens of engaging in revisionist history. . . . Stevens, leading a five-justice majority, said Texas state courts should have set aside the death sentences because the Supreme Court had made clear that such sentences could not stand if they were imposed as a result of flawed jury instructions that Texas used until 1991. . . . Roberts, a dissenter in six of the Court's 10 most recent rulings, wrote that contrary to being clear, Supreme Court death penalty law over the years has been a "dog's breakfast," a mess of "divided, conflicted and ever-changing analyses." State courts would find it difficult, if not impossible, to discern federal law from those rulings, he said.

Thomas Recusal Mystery Solved

Tony Mauro, Legal Times

4-25-07 -- For the last two years, Supreme Court Justice Clarence Thomas has consistently recused himself in cases in which Wachovia Bank is a party -- most notably the landmark decision last week in Watters v. Wachovia Bank, a win for federal regulation of national bank subsidiaries. On Monday, Thomas stepped aside in the denial of review of yet another Wachovia case -- as well as in Turnbaugh v. National City Bank of Indiana, which did not involve Wachovia directly but raised the same issue as the Watters case. . . . Thomas' financial disclosure form reveals no ownership of Wachovia stock, so what gives? Thomas does not reveal his reasons for recusal in public, but Legal Times has just confirmed that Thomas' son Jamal works at Wachovia Securities, a part of Wachovia Corp., at its headquarters in Richmond, Va. We haven't been able to learn his title or what area he works in, but that is almost certainly the explanation for his father's recusal.

Ginsburg dissent: judicial activism on parade
Bryan Fischer

4-24-07 -- Several excerpts from the Supreme Court ruling upholding Congress' 2003 ban on partial birth abortion are worth noting. In Anthony Kennedy's majority opinion, he expresses a view often espoused by pro-life groups: "The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form." We could not have said it better ourselves. ******** In contrast, Justice Ruth Bader Ginsburg revealed the principle problem with activist judges: they view their role as lawmakers rather than law-appliers. It's clear that for Ginsburg, the issue is not whether the partial birth ban is constitutional, but whether it represents enlightened public policy. Thus she clearly views the court as a kind of super-legislature, which has the right to second-guess any public policy decisions the Justices don't happen to like.. . . Her opinion, as one observer said, "reads like a feminist manifesto straight from the National Organization for Women." For instance, she says the real issue here is "a woman's autonomy to determine her life's course." For Ginsburg, this right to self-determination overrides any right to life that her baby might have. The big problem for Ginsburg is that the Constitution guarantees the right to life, but nowhere guarantees a right for women to do whatever they please, regardless of whose life is snuffed out in their pursuit of self-fulfillment. . . . She even goes so far as to say that Congress' interest in protecting the life of a partially-born baby is "irrational." But this way of approaching judicial rulings would obviously lead to a completely unpredictable judicial system, as it would grant license to any judge to set aside any law he doesn't like simply on the grounds that the law doesn't make sense to him. . . . Ginsburg's view is that the majority ruling emanated from a mindset that "is no longer consistent with our understanding of the family, the individual, or the Constitution." Note that for her, it is not the Constitution that has overarching legal authority, but our "understanding" of it. This is a recipe for judicial anarchy. And further, if her understanding of "the family" is different than Congress's, well, too bad for Congress. . . . But in our system of government, it is the responsibility of the legislative branch to make public policy, and the only responsibility of judges is to apply that public policy fairly and evenhandedly in matters of legal dispute. They have no legal or moral authority to overturn legislation simply because they don't think it represents good public policy.

Kennedy Reshapes Abortion Conflict as He Refines 'Swing Vote' Role

In a controversial 5-4 ruling, the Supreme Court found no medical exception needed for some abortion restrictions

Tony Mauro, Legal Times

4-23-07 -- Justice Anthony Kennedy clearly relishes his new role as the "swing vote" on the post-O'Connor Supreme Court. . . . But on Wednesday, Kennedy redefined that term to his liking: not as the swing of a swinging gate, blowing in the breeze, but as someone who can swing -- lead and persuade -- the Court in a new direction. In so doing he has introduced wrenching and controversial new language into the abortion debate. . . . Kennedy was the author of the Court's controversial 5-4 majority opinion last week in Gonzales v. Carhart, marking the first time the Court has upheld a federal ban on a specific abortion procedure since it first declared a woman's right to an abortion in Roe v. Wade in 1973. . . . By clinging to, and expanding, his attack on the "partial birth" abortion procedure, first expressed in 2000, Kennedy seemed to be telegraphing to liberals on and off the Court: "Don't think I can easily be swayed, especially when fundamental morality is at stake."

Has the Supreme Court Killed Off 'Scalito'?

Tony Mauro, Legal Times

4-21-07 -- Among other things, this momentous week at the Supreme Court may have sounded the death knell for a nickname: "Scalito." . . . That moniker, not usually complimentary, has been pinned on Supreme Court Justice Samuel Alito Jr. since long before he joined the high court. It picked up on the fact that both Alito and Antonin Scalia are Italian-American natives of Trenton, N.J., but also suggested that the two were kindred conservative spirits. . . . During Alito's confirmation battle, the National Italian-American Foundation even labeled it as an ethnic slur, urging that it be banished from the lexicon. It has lingered in the background even since Alito joined the Court.

Supreme Court Justices Confront the 'Judge Judy Standard' for Judicial Pay

Tony Mauro, Legal Times

4-21-07 -- Supreme Court Justices Stephen Breyer and Samuel Alito Jr. made a strong personal plea Thursday in favor of higher judicial salaries before a House Judiciary subcommittee. Both acknowledged the issue is a hard sell, given that as low as their pay might be relative to other lawyers and even to a growing number of executive branch employees, federal judges still make more than all but 2 percent of the general public. . . . But with 40 judges leaving the federal bench in the last five years -- many for jobs that instantly pay four or more times their judicial salaries -- the two justices see a severe threat to judicial independence. "There is a serious risk that this job that I love becomes a stepping stone," said Breyer. . . . Alito highlighted the loss of senior-status judges, who used to mentor new judges like himself, but who are now leaving the bench altogether. "We are approaching a very unfortunate tipping point." . . . Committee members, especially Democrats, generally embraced the justices' cause. But some pushed back -- especially on the issue of "de-linking" judicial pay from that of members of Congress. Currently, district court judges are paid $165,200, the same as members of Congress. Breaking the link, growled Wisconsin Republican Rep. F. James Sensenbrenner Jr. would be tantamount to saying that judges are more important than House members.

Chick Wit | The Supremes: Just what are top justices really afraid of?

By Lisa Scottoline, Inquirer Columnist

4-16-07 -- I'm cranky about something, and this time it's something that matters. Recently, Justice Anthony Kennedy testified before the Senate Judiciary Committee and argued against cameras in the Supreme Court, saying it would introduce an "insidious temptation" for justices to shape their comments and questions from the bench into sound bites. . . . Really? Is that the best argument a sitting Supreme Court justice can make for not allowing cameras in the courtroom? That the justices need to be saved from themselves? . . . I think it's time for cameras in the Supreme Court. The question comes down to this: Whose Supreme Court is it, and indeed, whose law? Answer: It's the people's. If that's so, then it follows that the people have the right to see it, and the most effective way to see it is to put it on TV.

Scalia tells UP tradition must guide court

Elizabeth Suh

4-16-07 -- Long-standing practices should win out over abstract rules when the U.S. Constitution is interpreted, Supreme Court Justice Antonin Scalia told a crowd of more than 1,500 Thursday at the University of Portland. . . . The Virginia jurist, who has served on the high court since 1986, gave the keynote speech on the opening night of a three-day conference on religious freedom at the Catholic school. . . . Scalia commanded an enthusiastic audience as he outlined eight Supreme Court cases involving the Constitution's two religious clauses in which he dissented. He lambasted interpretations of the Constitution that he said defied long-accepted practices. . . . Scalia likened his principle to one he said he learned in high school, which he called "The Shakespeare Principle." . . . A teacher responded to a fellow student who was criticizing one of Shakespeare's plays: "Mister, when you read Shakespeare, Shakespeare's not on trial. You are." . . . Similarly, Scalia said, a judge's responsibility is less about challenging widely accepted practices than using them as a guide.

Justice Kennedy Makes a Majority in Term's Close Cases

Mark Sherman, The Associated Press  

4-10-07 -- Justice Anthony Kennedy has become the object of his colleagues' attention on a Supreme Court with four reliably conservative votes and four dependably liberal. . . . Six cases before the Supreme Court this term have come down to 5-4 votes. Kennedy, alone, was in the majority every time. . . . Two cases last week -- including one the Court turned down -- highlighted his pivotal role in shaping just about any matter of consequence before the justices. . . . It is his vote that could decide pending cases on abortion and school integration, as well. . . . In a victory for environmentalists in the first Supreme Court case on global warming, Kennedy showed he can frustrate conservatives who hoped the Court would move firmly to the right with two appointees of President George W. Bush on board. . . . A setback for Guantanamo detainees, in the other case, demonstrated that the Court's conservative and liberal blocs must lean toward the middle or risk losing Kennedy's vote and, thus, a majority.

Scalia at Stetson praises original intent view of Constitution

By Chris Tisch

4-6-07 --U.S. Supreme Court Justice Antonin Scalia acknowledges so-called constitutional originalists like him are the minority. . . . But he thinks the group is growing. . . . In a speech to students and faculty members at Stetson University College of Law Wednesday, Scalia criticized those who believe the U.S. Constitution is a living document that can be re-interpreted over time. . . . "The Constitution is not a living organism for Pete's sake," an often witty Scalia told an audience of several hundred people. "It's a legal document. . . . Referring to the chief justice who wrote the landmark Marbury vs. Madison opinion in 1803, Scalia said, "If you told John Marshall that the Constitution morphed ... he would be unbelieving." . . . Scalia said we should rely on the bare text of the Constitution and its intent when written rather than expect the justices on the high court to breathe their opinions into the document.

Former Justice O'connor Says She's Concerned About Partisan Attacks On Judges

4-5-07 -- (AP) Former Supreme Court Justice Sandra Day O'Connor said Wednesday that she has grown weary of partisan attacks on judges, criticisms that she believes are causing citizens to lose faith in the judicial system. . . . O'Connor detailed plans to establish a Web site to teach schoolchildren about the judicial branch of government during a speech to law students, lawyers and fellow judges at a judicial conference at Southern Methodist University. . . . O'Connor, 77, said she finds troubling the "increased number of attack on judges that are coming out of the halls of Congress and out of state legislatures across the country." Single-issue advocacy groups are tagging judges with labels such as "activist judges" or "godless, secular humanists" to win passage of propositions or amendments to state constitutions, she said. . . . "The founders of our country did not intend that Congress or the legislative branch dictate results in specific cases," O'Connor said. "I think we're hearing more criticisms about judges than I've heard in my very long lifetime." . . . O'Connor's solution: a Web site about judges and the courts that students and teachers could use in classrooms. Arizona State University, located near her hometown of Phoenix, has promised to provide the technical support for the site, she said.

Fewer Cases Cite Harvard Law Review

By Maxwell L. Child, Contributing Writer

Harvard Law School may dominate the Supreme Court with five alums on the bench, but a new study suggests Harvard is losing its grip on one corner of the legal establishment. . . . The Harvard Law Review is cited less and less in decisions by federal courts, in keeping with a trend across several major law reviews, according to a study published last month by staff at the Cardozo Law Review of Yeshiva University. . . . The researchers found that the Harvard journal was cited 4,410 times in federal courts during the 1970s, but only 1,956 in the 1990s, and 937 so far in this decade—despite an increase in the number of cases brought to courts. . . . Andrew M. Crespo ’05, president of the Harvard Law Review, said these statistics do not represent a decline in the importance of law reviews. . . . “While judges play a unique and important role, they are by no means the only audience,” he said. . . . Instead, he suggested that the drop is a direct result of increasing caseloads.

A User's Guide to Law School Supreme Court Clinics

Howard J. Bashman, Special to Law.com

Related: Bashman Archive

4-2-07 -- Assume a client of yours has lost before a federal appellate court or state court of last resort a case that has a good likelihood of obtaining U.S. Supreme Court review, but the client is unable to afford counsel or even the cost of printing the briefs necessary to request review. Fortunately, all hope is not lost in such a situation, as I can attest based on recent personal experience. . . . Now that the U.S. Supreme Court only hears on the merits approximately 80 cases per year, the competition among lawyers and law firms seeking to play a lead role in those cases is more intense than ever. Although 80 argued cases would give rise to at least 160 oral argument opportunities before the high court, many of those cases involve government parties and public interest groups that litigate on their own behalf, further reducing the number of oral argument opportunities for lawyers in private practice.

March 2007

Scalia and Harvard Law Professor Trade Barbs in Court

Mark Sherman, The Associated Press

3-29-07 -- Two outsized personalities clashed at the Supreme Court on Wednesday and one of them, Justice Antonin Scalia, was briefly silenced by a barbed comment that left other justices laughing. . . . Longtime Harvard law professor Arthur Miller, rarely at a loss for words himself, was arguing on behalf of shareholders who want to sue companies for fraud. Miller is a frequent television commentator, prolific writer and possibly the inspiration for an abrasive professor in a popular account of life at Harvard. . . . Scalia and Miller were contemporaries at Harvard Law School in the late 1950s. Miller graduated in 1958, two years ahead of Scalia. . . . Scalia clearly was on the side of the companies, chiming in from time to time to make Miller's difficult task a bit harder. . . . After one remark, Miller let loose: "Is that because you never met a plaintiff you really liked?"

Roberts's Supreme Court Falls Behind in Pace of Issuing Rulings

By Greg Stohr

3-27-07 --  (Bloomberg) -- As U.S. Supreme Court cases go, Global Crossing v. Metrophones, an administrative-law tussle over pay-phone fees, hardly looms as a landmark. That's why lawyers in the dispute are so puzzled that almost six months after hearing arguments, the court hasn't ruled. . . . The case has become a symbol of John Roberts's second year as chief justice, one in which the court has fallen well behind its typical schedule. Six months into the 2006-07 term, the justices have issued only 19 signed opinions, 12 fewer than at this point a year ago. . . . ``I don't remember the pace of opinions ever being this slow,'' said Roy Englert, a Washington lawyer who argued his first Supreme Court case in 1987 and represented Metrophones Telecommunications Inc. in the Oct. 10 pay-phone argument. . . . While the court may release more opinions today, the delays, coupled with an unusually large number of April arguments, mean the vast majority of rulings will come in the term's final three months. Still to be decided are potentially far-reaching cases on abortion, school integration, student free-speech rights and election spending. . . . The justices must also resolve a full slate of business disputes, including fights about power-plant pollution, global warming, patents, antitrust and shareholder lawsuits. In addition, terrorism suspects held at Guantanamo Bay, Cuba, want the court to schedule an unusual May argument on their appeals. . . . `Unbelievable' Schedule

High Court Advocate Ken Starr Is Justices' Summer Employer

Tony Mauro, Legal Times

3-27-07 -- When former judge, solicitor general and Whitewater independent counsel Kenneth Starr argued a key First Amendment case before the Supreme Court last week, he was there in his capacity as of counsel at the law firm Kirkland & Ellis. . . . But he was also playing a lesser-known role: As dean of the Pepperdine University School of Law, Starr is also the summer employer of two of the justices who heard the case. . . . Justices Antonin Scalia and Samuel Alito Jr. will be teaching courses for the law school's summer programs -- Scalia for two days in London and Alito for two weeks in Malibu, Calif., university officials have confirmed. Typically, the justices are paid several thousand dollars for teaching stints like these, representing one of the few opportunities justices have to make outside income. . . . The juxtaposition of Starr as advocate and Starr as employer has surprised Starr's adversaries in the case before the Court, Morse v. Frederick. Starr represents, on a pro bono basis, high school principal Deborah Morse, who suspended student Joseph Frederick for displaying a banner with the message "BONG HITS 4 JESUS" across the street from the high school in Juneau, Alaska, during the Olympic torch run in 2002.

Kennedy Recuses From Antitrust Case Involving Son's Company

Tony Mauro, Legal Times

3-21-07 -- Supreme Court Justice Anthony Kennedy's son Gregory is a managing director of Credit Suisse, the investment banking firm that is a party in a major antitrust case set for argument before his father's court March 27. . . . It is apparently because of his son's employment that Kennedy on Monday suddenly recused in the case, Credit Suisse v. Billing, after having participated in the decision last December to grant review. . . . Kennedy's late-stage recusal triggered an unusual sequence of events in the case, announced on an otherwise routine order list Monday. The Court vacated its December grant of review in the case, "having been advised by Justice Kennedy that he now realizes that he should have recused himself from participation in this case, and does now recuse himself." . . . But then, the order continued, the Court reconsidered the Credit Suisse petition, without the participation of Kennedy or Chief Justice John Roberts Jr., who had previously recused. Minus the two justices, the Court granted review again, and the case will be argued as previously scheduled -- though before a seven-member Court. At issue in the case is whether investment firms and underwriters like Credit Suisse are immune from antitrust lawsuits over alleged manipulation of prices of stocks sold in initial public offerings.

Supreme Court's Scalia Says Future Nominees Will Face Bitter Fights

John Seewer, The Associated Press

3-14-07 -- Future Supreme Court nominees will face bitter and partisan confirmation battles, Justice Antonin Scalia said Tuesday. . . . Selecting a nominee is no longer about finding someone who is fair, Scalia said. It's about finding someone who agrees with those making the choice, he said at the University of Toledo. . . . "It's crazy," he said. "It's like having a mini-constitutional convention every time you pick a Supreme Court justice." . . . Scalia, who noted he was he confirmed 98-0 by the Senate in 1986, said he wouldn't get 60 votes today. . . . Speaking to students, lawyers and law professors, Scalia spent most of his time on his belief that the Constitution should be interpreted as it was written by the Founding Fathers. . . . He said it was not a living document that has evolved over time with society.

Supreme Court TV

The Supreme Court should televise its oral arguments. But Congress can't force it to make the change.

L. A. TIMES EDITORIAL

3-13-07 -- TELEVISING ORAL arguments in the U.S. Supreme Court is an idea whose time came, oh, about 20 years ago. But, like a surly adolescent, the court stubbornly refuses all entreaties to be more open. And, like a surly adolescent, it can't be forced to behave — especially not by Congress. It has to come to its senses all on its own. . . . Legislation forcing the court to televise its proceedings would pit Congress against the court in a needless constitutional confrontation. A proposal from Sen. Arlen Specter (R-Pa.) to permit cameras in the courtroom in most cases makes the court's opposition to them look even more silly — but it's still a bad bill. The court's practices may be archaic and frustrating, but Congress has no right to force it to change. . . . A majority on the court opposes cameras in the courtroom because, as Justice Anthony M. Kennedy told a Senate hearing recently, it would "change our collegial dynamic." But the cameras wouldn't capture the justices' internal deliberations, only their public questions to lawyers — which are already accessible online in transcript form and sometimes via audio recordings.

Clerks Avoid Getting Their DIGs In

They just say no to cert petitions, as the court's docket shrinks
By Stephanie Ward From The March ABA Journal

3-9-07 -- Anup Malani doesn’t recall which clerk wrote the memo six years ago suggesting that the U.S. Supreme Court grant certiorari to an affirmative action case. . . . But Malani, who was clerking for Justice Sandra Day O’Connor, remembers the result. After full briefing and oral argument, the court dismissed the case as improvidently granted, otherwise known as a DIG. . . . The case, Adarand Constructors Inc. v. Mineta, 534 U.S. 103 (2001), involved a challenge to the U.S. Department of Transportation’s affirmative action program for federally funded contracts. The Supreme Court said the petitioner had failed to challenge an appeals court ruling that denied standing. . . . Luckily, the justices and other clerks probably didn’t know the identity of the memo’s author either, says Malani, now a law professor at the University of Chicago. But, he says, he assumed the author was embarrassed. . . . “For one thing, the court seems unprofessional when it admits a mistake,” Malani says. “If I were that person that recommended something that got DIGed, I would have forced the court to look bad.”

Most move right; judges go left

Thomas Sowell, Creators Syndicate

While there is a tendency to label judges "liberal" or "conservative" – and the labels may fit, even if somewhat loosely – the real puzzle are judges who start out one way and move the other way over time. . . . In the population at large, and even among the intelligentsia, the usual movement over the years has been from left to right. . . . Most of the leading conservative intellectuals were at least liberal, and often radical, in their youth. That includes Milton Friedman, Friedrich Hayek and the whole neo-conservative movement. In politics, the leading conservative figure of the 20th century – Ronald Reagan – was a liberal in his early years. . . . On the Supreme Court of the United States, however, the movement has been in the opposite direction. . . . In an outstanding recently published book titled "Supreme Conflict," author Jan Crawford Greenburg traces systematically the leftward movement of Supreme Court justices who were initially part of the conservative wing of that court. . . . Justice Harry Blackmun began his career on the High Court by voting with his fellow Minnesotan, conservative Chief Justice Warren Burger, so consistently that the media called them the "Minnesota Twins." . . . Over the years, however, Blackmun moved steadily leftward and established as his judicial legacy the decision in Roe v. Wade that created a "constitutional right" to abortion out of thin air.

February 2007

Why Are the Justices Popping Up All Over the Tube?

Dahlia Lithwick, The American Lawyer 

2-28-07 -- Two questions have been haunting U.S. Supreme Court watchers this winter: Why has the caseload dropped to a historic low, and why are the justices suddenly seeking media exposure like Paris Hilton? . . . The causes underlying these phenomena can be debated, but there's no denying the connection between them. The only real question is whether the justices are hearing fewer cases so they can do more television, or doing more television because they have no cases left to hear. . . . In December, Linda Greenhouse of the The New York Times reported that the Supreme Court caseload has shrunk 40 percent since last term, when the high court issued only 69 signed opinions. Greenhouse speculated that the drop in the number of cases heard was the result of a confluence of historical factors: The federal government loses fewer cases in lower courts and now feels no need to appeal; fewer dumb laws enacted by Congress means that the justices now have no statutes to interpret; the court's liberals and conservatives are both equally reluctant to grant cert on cases they may lose; and law clerks are too afraid to recommend cases.

"Ideological Drift among Supreme Court Justices: Who, When, and How Important?"

Professors Lee Epstein, Andrew D. Martin, Kevin M. Quinn, and Jeffrey A. Segal will have this article forthcoming in the Northwestern University Law Review.

In Defense of Dissents

By Reynolds Holding

2-19-07 -- When the U.S. Supreme Court scolded the Bush Administration last year for attempting to try suspected enemy combatants on the cheap, the ruling rested largely on one of the court's most honored precedents. It's the same opinion that helped force Richard Nixon to cough up those embarrassing tapes in 1974. And for more than 50 years it has guided the court in deciding whether a President has acted within his powers or whether he has stepped over the line. . . . The interesting thing is, it's not a majority opinion. It's a concurrence, a separate statement that a lone Justice, Robert Jackson, cooked up to accompany the court decision striking down Harry Truman's plan for taking over the steel mills in 1952. But its elegant reasoning long ago made it the go-to opinion when the court puts a President in his place. . . . The Jackson concurrence comes to mind because in several speeches and interviews since early last year, Chief Justice John Roberts has been pursuing a push for unanimity on the court. He wants the Justices to speak with one voice as much as possible, to decide cases 9 to 0, with no pesky dissents or concurrences. As he advised a crowd two weeks ago at Northwestern University School of Law, "The court functions most effectively as a judicial institution saying what the law is when it can deliver one clear and focused opinion of the court."

The Chief Justice's Quest for Less Fractured Supreme Court Rulings

Howard J. Bashman, Special to Law.com

Related: Bashman Archive

2-19-07 -- The U.S. Supreme Court plays an essential role in resolving splits that have arisen among lower federal and state courts on questions of federal law. Often, the correct answer in these cases is far from apparent; if the question presented had an easy answer, no lower court division of authority would have occurred. Because the vast bulk of the Supreme Court's workload consists of cases that present the most difficult and important questions of federal law, it does not come as any great surprise that many of those cases produce sharply divided rulings from the Supreme Court itself. . . . But while sharply divided high court rulings provide countless hours of enjoyment to the media and other Court watchers, they don't offer the same promise of legal stability that unanimous decisions or nearly unanimous decisions provide. Chief Justice John G. Roberts Jr. recently addressed this matter at length in a very interesting interview with law professor Jeffrey Rosen that is the subject of an article in the January/February 2007 issue of The Atlantic Monthly.

A Renewed Call to Televise High Court

By Robert Barnes, Washington Post Staff Writer

2-12-07 --With Supreme Court justices becoming increasingly comfortable in the spotlight, Sen. Arlen Specter says it might finally be time for their close-ups. . . . Spector (Pa.), joined by two other Republican and three Democratic senators, has refiled his legislation to require the court to televise its proceedings. Although getting the rest of Congress to agree still seems very much a long shot, Specter said there is a big difference between now and last year, when the bill did not reach the Senate floor. . . . "I think the frequency with which the justices are appearing on television can be a very significant factor" in changing minds in Congress, Specter said in an interview.

Alto Recaps First Year on High Court

Tony Mauro, Legal Times

2-7-07 -- One year after joining the nation's highest court, Supreme Court Justice Samuel Alito Jr. says he finally knows his way around the Supreme Court building. But he is still perplexed by something else: why the Court is deciding so few cases. . . . "It's a real mystery to me," Alito said in an exclusive interview with Legal Times marking his first anniversary on the Court Jan. 31. . . . Speaking on a wide range of Court topics, the newest justice also said:

• Despite pressure from Congress and elsewhere, the consensus among his colleagues persists that allowing cameras into the Supreme Court is a "a bad idea."

• He agrees with the Chief Justice John Roberts Jr.'s oft-stated goal of achieving greater unanimity, but not to the point of "endorsing something you don't believe in."

• After earlier doubts about the law clerk-pooling arrangement, he intends to remain in the pool for the long term.

• Supreme Court advocacy is "considerably better" than it was 25 years ago when he observed arguments as an assistant to the solicitor general.

"It's hard to believe a whole year has gone by," Alito said in the Feb. 2 telephone interview. "I'm enjoying the job; it's very satisfying." . . . Still, his year in the spotlight has been a culture shock for the unassuming Alito, who recalls that in his prior judgeship on the 3rd U.S. Circuit Court of Appeals, "I could go for weeks without seeing anyone other than my secretary and my clerks before going down in the garage every night and driving home." His chambers were in Newark, N.J., and the court sat in Philadelphia. . . . That kind of isolation is gone. Now Alito is a sought-after speaker, and when he enters a roomful of lawyers, all heads turn. Last month, he still seemed awed by watching the State of the Union address from a front-row seat. "Some of that has felt very strange -- like an out-of-body experience," Alito says. . . . But Alito has gotten into the rhythm and work of the Court, which he says is "not all that different" from what he did on the appeals court.

O'Connor Sped Up Her Retirement Due to Ill Spouse

By Associated Press

2-5-07 -- Justice O'Connor would have preferred to stay on the Supreme Court for several more years until she was ill and "really in bad shape" but stepped down because of her ailing husband. . . . Justice O'Connor, 76, also says she accelerated her retirement announcement by at least a year because Chief Justice Rehnquist, who was battling thyroid cancer at the time, told her he was not ready to leave the court, according to a Newsweek interview released yesterday. . . . "I was concerned about whether he had an intention to step down since his plans might have altered my own. It's hard for the nation to grapple with two [retirements] at once," she said. . . . After Rehnquist said he was staying, Justice O'Connor announced her retirement in July 2005. Rehnquist died two months later. . . . Justice O'Connor, who is still physically and mentally fit, said it was her plan to follow the tradition of previous justices, who enjoy lifetime appointments, to work until they die or are virtually incapacitated.

Roberts Supports Court's Shrinking Docket

By Robert Barnes, Washington Post Staff Writer
2-2-07 -- Chief Justice John G. Roberts Jr. defended the Supreme Court's workload and explained his view of the justices' essential but limited roles in a speech Thursday, his first trip "back home to the Midwest" since his elevation to the court. . . . He mentioned that the first chief justice, John Jay, convened the Supreme Court 217 years ago and then adjourned, because it had no cases to hear. . . . As it was in Jay's day, Roberts said, it remains: "The Supreme Court has only limited control over the size of its docket, and the court's docket rises and falls with the actions of Congress, the executive branch and the lower courts." . . . The court's dwindling caseload has been a topic of controversy, as the number of cases it has taken is about half what it was 20 years ago. Roberts said during confirmation hearings in 2005 that he thought the justices should be taking more cases. . . . "I regarded this as a matter of great concern when I was a practicing lawyer, somewhat less significant when I became a Court of Appeals judge," Roberts said. And now that he has seen it from the high court's viewpoint, he says that at times, there just are not that many cases that merit the court's review.

Love Us!
It's no coincidence that the Supreme Court's caseload is down, and the justices' television appearances are up.

By Dahlia Lithwick, The American Lawyer

2-1-07 -- Two questions have been haunting U.S. Supreme Court watchers this winter: Why has the caseload dropped to a historic low, and why are the justices suddenly seeking media exposure like Paris Hilton? . . . The causes underlying these phenomena can be debated, but there's no denying the connection between them. The only real question is whether the justices are hearing fewer cases so they can do more television, or doing more television because they have no cases left to hear. . . . In December, Linda Greenhouse of the The New York Times reported that the Supreme Court caseload has shrunk 40 percent since last term, when the high court issued only 69 signed opinions. Greenhouse speculated that the drop in the number of cases heard was the result of a confluence of historical factors: The federal government loses fewer cases in lower courts and now feels no need to appeal; fewer dumb laws enacted by Congress means that the justices now have no statutes to interpret; the court's liberals and conservatives are both equally reluctant to grant cert on cases they may lose; and law clerks are too afraid to recommend cases.

January 2007

PBS Series Spotlights the Supreme Court's Past and Present Personalities

Tony Mauro, Legal Times

1-30-07 --At the rare times the Supreme Court pops into the consciousness of the public, it is usually because of a vexing case or, more recently, a personnel change or two. Rarely is there a chance to step back and look at the Court's history or its evolving role in the life of the nation. . . . PBS makes a vitally important effort to do just that in a four-part documentary, "The Supreme Court," which begins airing this week. It is a must-see series that takes the viewer back to the pitifully weak early days of the Court, then all the way forward to its current incarnation as a center-of-the-universe powerhouse. It perfectly tees up the current air of anticipation over just how conservative the new Roberts Court is -- or will be, with another vacancy or two. . . . The challenge in a series like this is to make the Supreme Court visual -- a difficult task not just for its long-ago past, but its contemporary history as well, as cameras are not allowed in the courtroom. In the main, director Thomas Lennon rises to the task, with a mix of historical re-enactors, period paintings, newsreel footage, and photos. And then there are the talking heads: enthusiastic historians, law professors, and others, including a couple of judges named John Roberts Jr. and Sandra Day O'Connor.

Thanks to Howard Bashman for the following information:

You can't yet view it on TV, but you can now access the transcripts: The web site that PBS has created in connection with its forthcoming broadcast, this Wednesday night and next Wednesday night, of the program "The Supreme Court" provides access to the transcripts for all four hours of the show. You can access the transcripts at the following links: first hour; second hour; third hour; and fourth hour. . . . You can also access short video previews of each of the four hours via this link. And a related discussion guide for educators contains illustrations by Mark Alan Stamaty. --

Specter Introduces “Cameras In The Courtroom” Legislation

1-30-07 -- Today, Senator Arlen Specter (R-Pa.), Ranking Member of the Senate Judiciary Committee, introduced legislation that will require the Supreme Court to permit television coverage of open Supreme Court proceedings, unless a majority of the Justices determine that the due process rights of one or more litigant would be violated. The legislation will open the Supreme Court’s doors so that more Americans can see the process by which the Court reaches critical decisions of law that affect this country and everyday Americans. . . . The legislation is cosponsored by Senators Charles Grassley (R-Iowa), Richard Durbin (D-Ill.), Charles Schumer (D-N.Y.), Russell Feingold (D-Wiss.) and John Cornyn (R-Texas). . . . “The Supreme Court makes pronouncements on Constitutional and federal law that have direct impacts on the rights of Americans,” stated Specter. “Those rights would be substantially enhanced by televising the oral arguments of the Court so that the public can see and hear the issues presented. With this information, the public would have insight into key issues and be better equipped to understand the impact of and reasons for the Court’s decisions.”

The High Court's Junior Justice Speaks Out

Rebecca Riddick, Daily Business Review

1-29-07 -- On a New York to Washington, D.C., train last November, Samuel Alito heard two women sitting in front of him discussing his nomination for justice to the U.S. Supreme Court. . . . Having no idea he was within earshot, the two mused that a basketball-sized chunk of the Supreme Court building that had tumbled to the ground the day before was a sign from God that Alito should not join the Court. . . . In a speech Friday before a luncheon sponsored by the Palm Beach County, Fla., Bar Association, Alito conceded he wondered the same thing. He was in the midst of a contentious U.S. Senate confirmation hearing. "It was the best of times, it was the worst of times," he declared. . . . The junior justice of the Supreme Court spent an hour on center stage before an estimated 500 people at the Kravis Center speaking about his first year on the bench and answering audience questions. The talk was light on controversy and heavy on humor. . . . nAlito shared stories from his first days as a justice and talked about past justices who serve as his role models.

The Truth About Clarence Thomas
He's an independent voice, not a Scalia lackey.
By Jan Crawford Greenburg  

1-29-07 -- Clarence Thomas has borne some of the most vitriolic personal attacks in Supreme Court history. But the persistent stereotypes about his views on the law and subordinate role on the court are equally offensive--and demonstrably false. An extensive documentary record shows that Justice Thomas has been a significant force in shaping the direction and decisions of the court for the past 15 years. . . . That's not the standard storyline. Immediately upon his arrival at the court, Justice Thomas was savaged by court-watchers as Antonin Scalia's dutiful apprentice, blindly following his mentor's lead. It's a grossly inaccurate portrayal, imbued with politically incorrect innuendo, as documents and notes from Justice Thomas's very first days on the court conclusively show. Far from being a Scalia lackey, the rookie jurist made clear to the other justices that he was willing to be the solo dissenter, sending a strong signal that he would not moderate his opinions for the sake of comity. By his second week on the bench, he was staking out bold positions in the private conferences where justices vote on cases. If either justice changed his mind to side with the other that year, it was Justice Scalia joining Justice Thomas, not the other way around.

From Court To Jester

Without Dissent, Alfalfa Club Honors Sandra Day O'Connor

By Lynne Duke, Washington Post Staff Writer

1-29-07 -- You think you know politics? You think you know power? Well, if you've never heard of the Alfalfa Party and its nominee for president of the United States, you don't really know what makes this town tick. Oh yes! Take our word for it. There's more to this town than just Democrats and Republicans, though they'd never know it, never even fathom it, what with their chronic obsession with each other. . . . But as the new Alfalfa Party nominee said last night in accepting the nomination during the Alfalfa Club's annual dinner, "Quitus whinus over spiltus milkus." . . . She was talking to Republicans, "who've been bellyaching about losing the last election." . . . Oh, and did you notice? She's a she. This august body of the nation's powerful and rich, which as recently as 1993 did not even admit women into their ranks, last night elevated former Supreme Court justice Sandra Day O'Connor as its presidential nominee. Among her qualifications?

Ruth Ginsburg: I Feel Alone on Court

1-29-07 -- (AP) U.S. Supreme Court Justice Ruth Bader Ginsburg said Friday that she dislikes being "all alone on the court" nearly a year after the retirement of Sandra Day O'Connor. . . . Ginsburg, who spoke to an assembly at Suffolk Law School, said she sees more women in law school, arguing before her court and sitting as federal judges. But there is not enough female perspective on the nine-member high court, she said. . . . "We have very different backgrounds," Ginsburg said of herself and O'Connor. "We divide on a lot of important questions, but we have had the experience of growing up women and we have certain sensitivities that our male colleagues lack." . . . Ginsburg, 73, did not take questions afterward to elaborate.

How Humpty Dumpty Changed the World: 34 Years of Roe

by Ken Connor

1-29-07 -- Every year since 1973, millions of Americans have paused to remember the day when new words entered the American vocabulary. Words fraught with ambiguity, like "the right of personal privacy". Euphemisms, like "terminate one's pregnancy." Obscure phrases, like "the penumbras of the Bill of Rights." January after January we take time to remember these words, and the carnage they have caused. . . . In an act of breathtaking judicial arrogance, the Supreme Court of the United States on January 23, 1973, "discovered" a right to abortion in the Constitution which had, theretofore, been overlooked by lawyers, judges and scholars for almost 200 years. As a consequence of the court's ruling, over 47 million unborn children have perished at the hands of abortionists in this country. Thousands of women have suffered physical and emotional injury. The entire culture has been poisoned by the rise of a "disposable man" ethic that jeopardizes the elderly, infirm, and handicapped. That ethic has given rise to a spirit of utilitarianism that undergirds a ghoulish form of medical "research" that requires the destruction of human embryos for the "greater good." No single decision in American jurisprudence has resulted in more damage to the American people than Roe v. Wade.

Supreme Court Retirement Will Change How America Thinks

By Kevin Roeten

1-29-07 -- How can a retirement in the Supreme Court change how America thinks? That retirement will happen - it’s happened recently---and it will happen again. But if you talk about the aborting illegally, eyebrows are raised. If the current 5-4 decision on Roe vs. Wade changes, the act of abortion will literally effect how millions of Americans think and act. Interestingly, the head of a judicial watchdog group says he believes that 86 year old Justice John Paul Stevens may retire. . . . Stevens, appointed in 1975(32 years ago), has been battling heath problems, and several reports have appeared recently that his health has taken a turn for the worse. Stevens is a member of the five justice block who has backed legalized abortion. His retirement could potentially pave the way for the confirmation of a justice who may be the deciding vote for overturning Roe vs. Wade. . . . With Bush’s two years left, his nomination would likely be a conservative, and favoring an overturn. Of course, if Stevens remains active, and a conservative president is elected in two years, chances are that a conservative judge will be nominated again to the Supreme Court. Again Roe vs. Wade could be overturned.

Chief justice assigns himself a difficult case

Monitor staff Editorial

1-15-07 -- As chief justice of the United States, John Roberts is something less than the boss of his colleagues on the Supreme Court. He can't tell them how to decide a case. He can't stop them from granting interviews, giving lectures or writing books. About the worst thing he can do is to stick one of the other justices with the writing of a dull, arcane ruling. . . . But Roberts wants to influence his colleagues. He wants them to speak as one more often: to have the court known for narrowly construed, unanimous decisions rather than 5-4 catfights. He especially wants to avoid cases where seven or eight justices write multi-part opinions, with two or three splitting hairs to concur here and dissent there so that it takes a scorecard to figure out the precedent that has been set. . . . Evidently Roberts is also attuned to news media portrayals of the court - which is to say, for perhaps two or three decades to come, his court. The current issue of The Atlantic contains an interview with Roberts adapted from a new book by law professor Jeffrey Rosen, and the chief justice says he was "kind of put out" by the attention given to last term's split decisions. He particularly dislikes the reader-friendly charts compiled at the end of each term showing which justices tended to vote together or to write the most dissents. . . . "I think it's bad, long-term," Roberts told Rosen, "if people identify the rule of law with how individual justices vote."

Roberts' Rules

by Jeffrey Rosen

1-11-07 -- In an exclusive interview, Chief Justice John Roberts says that if the Supreme Court is to maintain legitimacy, its justices must start acting more like colleagues and less like prima donnas. . . . Last July, I went to the Supreme Court to interview John G. Roberts Jr., who had just completed his first term as chief justice of the United States. I was finishing a book about judicial temperament, and Roberts, who is a keen student of constitutional history, had agreed to share some thoughts on the subject. I had interviewed Roberts once before, when his nomination to the U.S. Court of Appeals for the District of Columbia Circuit was stalled in the Senate, but I had not talked to him since he became chief justice and was eager to hear his thoughts about the new job. . . . The chief justice’s chambers are impressive without being showy. They include a paneled waiting room, the private conference room in which all nine justices meet to discuss cases after oral arguments, and a cozy inner office with fading photographs—hung by the late Chief Justice William Rehnquist in the 1980s—that Roberts hadn’t yet bothered to replace. In shirtsleeves and a tie, Roberts invited me to take off my jacket and have a seat in his office, on a nineteenth-century couch that, according to Court lore, is the one on which John Quincy Adams expired in the House of Representatives. . . . Before long, the conversation turned to judicial disappointments. “It’s sobering to think of the seventeen chief justices; certainly a solid majority of them have to be characterized as failures,” Roberts said with a rueful smile. “The successful ones are hard to number.”

The Brennan Memos

PART ONE OF THREE

Jim Newton -- Brennan on Burger

1-9-07 -- When Earl Warren relinquished the chief justiceship of the United States in 1969, he had reason to fear the worst. He gave his vacancy to the man in politics he most despised, President Richard Nixon, a man determined to undo Warren's work. Not surprisingly, Nixon set out to reconstitute the court along the lines he had promised during the 1968 campaign, and by the beginning of 1972, four of the Supreme Court's nine justices had been placed there by Warren's nemesis. The retirement and subsequent death of William O. Douglas in 1975, the court's uncompromising and cantankerous liberal, gave Republicans a solid hold on the majority—and thus, it seemed, on the future. . . . And yet, the counterrevolution predicted for the court in the Nixon-Ford years never materialized. Instead, the liberals held on, protecting and in some cases extending the civil liberties' edifice erected by the Warren Court. That remarkable—and, to some, infuriating—achievement was the result of many forces: Warren Burger proved singularly incapable of leading the court, while Justice Harry A. Blackmun, advertised as Burger's "Minnesota Twin," instead emerged as an independent centrist. But one factor stood above all others in those years: the subtle, effective leadership of Justice William J. Brennan Jr., who guided the court's dwindling liberal bloc to influence well beyond its votes and solidified the work of the Warren Court into a set of accepted norms of American life.

Part II—Abortion

1-10-07 -- So grave and important were the issues surrounding the death penalty that the justices put over their work in another landmark area that year. Roe v. Wade and Doe v. Bolton had come to the court in its 1971 term, challenging abortion statutes in Texas and Georgia. Just before the term began, the court's senior justice, Hugo Black, retired, then died eight days later. The same week, its beloved and principled conservative, John Marshall Harlan, succumbed to his failing health and retired as well. A shorthanded court thus initially took up what was to become the commanding issue of its generation. After a confusing debate in conference, Burger equivocated as to his own position, taking it upon himself to assign the opinions to Blackmun. Douglas objected—and, being Douglas, he objected testily. Still, the assignment stuck, and after five months of work, Blackmun circulated a draft on May 18. . . . "It was," Brennan's history of the case bemoans, "disappointing to say the least." Blackmun had not reached the central question of a constitutionally protected right to an abortion, dismissing the Texas law for its vagueness rather than by asserting a protected right of choice. Blackmun had accompanied his draft with a memo indicating that he was still flexible. He then followed up his draft in Roe with a more extensive and, to Brennan, more acceptable, opinion in the companion case, known as Doe.

PART III: Brennan Dishes on His Colleagues

The Colleagues

1-11-07 -- William Rehnquist was in many ways Brennan's antipode, as fiercely conservative as Brennan was liberal, yet as intellectually capable and, at times, as charmingly friendly. But even as Brennan's admiration for Rehnquist's intellect comes through in the memos of the Burger years, so too does his distaste for his colleague's behavior and integrity. Brennan recorded in his histories a number of instances in which Rehnquist misrepresented the record in cases. Probably as a result, one senses in Brennan's memos a deepening distrust for his colleague. . . . By 1976, Brennan described Rehnquist's contribution to a contraception case in dismissive terms. "The vehemence of the dissent," Brennan's memo for that term notes, "did not surprise us, but the absence of a reasoned attack did." By 1978, even the absence of reason from Rehnquist would not surprise Brennan. A case posing the question of the right to counsel in misdemeanor trials left Brennan on the losing side but, his memo for that year states: "I find some consolation … in the hope that [Rehnquist's] decision in this case is so unprincipled and inherently unstable that it will prove only a temporary setback in the line of decisions developing the right to counsel under the Fifth and Sixth Amendments."

Sedative Withdrawal Made Rehnquist Delusional in '81

Files Detail Drug Addiction And FBI's Role in Hearings

By Alan Cooperman, Washington Post Staff Writer

01-05-07 -- The late Chief Justice William H. Rehnquist took a powerful sedative during his first decade on the Supreme Court and grew so dependent on it that he became delusional and tried to escape from a hospital in his pajamas when he stopped taking the drug in 1981, according to newly released FBI files. . . . The files also show that during both of Rehnquist's confirmation battles -- when he was first named to the court by President Richard Nixon in 1971 and when President Ronald Reagan nominated him as chief justice in 1986 -- the Justice Department enlisted the FBI to find out what witnesses lined up by Senate Democrats were prepared to say. . . . The FBI this week released 1,561 pages from its files on Rehnquist in response to Freedom of Information Act requests filed after his death in September 2005. Privacy laws forbid disclosure of such files during the person's lifetime.

Rehnquist FBI File Sheds New Light on Drug Dependence, Confirmation Battles

Tony Mauro, Legal Times

01-04-07 -- The late Chief Justice William Rehnquist's Senate confirmation battles in 1971 and 1986 were more intense and political than previously known, according to a newly released FBI file that also offers dramatic new details about Rehnquist's 1981 hospitalization and dependence on a painkiller. . . . The FBI file on Rehnquist, released last week under the Freedom of Information Act, reveals that in 1971, as Rehnquist's confirmation hearings for associate justice approached, the Nixon Justice Department asked the FBI to run a criminal background check on at least two potential witnesses who were expected to testify against Rehnquist. Then-FBI Director J. Edgar Hoover approved the request.

Editorial: A new court policy?

In a welcome move, U.S. Supreme Court justices take on a larger public presence

01-04-07 -- The U.S. Supreme Court is the ivory tower of ivory towers - justices have lifetime appointments and their job is to issue the final ruling in any case they hear. . . . Aloof? Absolutely. It adds to the court's mystique and its reputation. The rule barring cameras in the building has allowed justices to work in relative anonymity, and that has suited the justices just fine. . . . When they have appeared in public, it has mainly been limited to the dowdy C-SPAN or the occasional after-dinner speech. Their comments, with the exception of outspoken Justice Antonin Scalia, have typically been tempered. . . . Chief Justice John Roberts, though, is changing the image of the court. He has been more open and accessible to the media than his predecessors, showing up on the television news program "Nightline," and his associates have been more willing to speak publicly on their views about the courts, as Scalia and Justice Stephen Breyer did last year debating their views of the Constitution. . . . It is a remarkable and welcome change as the justices are providing a better glimpse into the workings of a court that is often inscrutable.

The perils of being a judge: Surviving on a six-figure salary isn’t easy

01-04-07 -- And now, prepare to weep, as I’ve got a sad story to tell (cue violins).

See, the Chief Justice of the United States Supreme Court, John Roberts, issued a report the other day, and if you don’t want tears in your Wheaties, stop reading now. . . . Seems to him there’s a major problem in America, a problem he calls a "constitutional crisis." . . . And the problem is... federal judges don’t make enough money. . . . That’s right. Federal judges, from Mr. Roberts on down, are apparently waiting in bread lines, sleeping on floors, and clothes shopping in trash dumps. . . . So. Are you crying yet? You will be in a second, as soon as I tell you Roberts makes $212,000 a year, other Supreme Court justices make $203,000, Appeals Court judges make $175,100, and federal district judges make $165,200. . . . Told you it was a tear-jerker. . . . After finding all this out, I felt I should do something to help. Some charity work, as it were.

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.

Suggested Citation: Stras, David R., "The Supreme Court's Gatekeepers: The Role of Law Clerks in the Certiorari Process" . Texas Law Review, Vol. 85 Available at SSRN: http://ssrn.com/abstract=938566

Contact Information for DAVID R. STRAS (Contact Author)
Email address for DAVID R. STRAS, University of Minnesota Law School
229 19th Avenue South , Minneapolis , MN 55455, 612-624-2947 (Phone)

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