First, and least controversially, Justice Kennedy still controls an important position in the middle of the Court. Justice Kennedy was the only justice to author not a single 9-0 opinion (Roberts 1, Stevens 1, Scalia 2, Souter 4, Thomas 4, Ginsburg 5, Breyer 6, Alito 5). He authored five 5-4 opinions (Bartlett, Iqbal, Caperton, Denedo, Ricci), one 6-3 opinion (Couer), and one 8-1 opinion (Negusie). As was well documented by SCOTUSblog, he cast fewer dissenting votes than any other justice, with only 6 dissenting votes in the entire term. The next closest was Scalia with 13 and the Chief Justice, Justice Thomas, and Justice Alito with 15 each. Justice Stevens topped the list with 28.

Second, the liberal members of the Court won as many victories as they could and also managed to taper several other opinions. On the issue of preemption, the conservatives lost twice and both times they were fairly clear-cut losses: early in the term with Altria and on the last day of the term with Cuomo. In Cuomo they found an unlikely ally in Justice Scalia to craft an unusual, though not inconceivable, majority of Justices Stevens, Scalia, Souter, Ginsburg, and Breyer. Another one of the more obvious victories is Caperton, which I think will produce an interesting set of guidelines on the state-level as different states grapple with the issue and devise ways to minimize the trauma tgatthiscase will wreak on their judicial systems. The opinion in Winters, while not a “liberal” victory, was fairly narrow and did not go as far as it could have gone in rejecting the federal government’s obligation to respect certain environmental boundaries.

For the liberal justices, I would call Northwest Austin Municipal Utility District v. Holder a victory. I think Congress will take a hint and reform Section 5 in a series of steps and the Court, while I doubt they will take on the issue while many of the current justices are sitting, will likely find that Congress did its best and grant it the deference that it deserves. Ricci, on the other hand, was a more significant setback. Still, the Court did not go as far as it could in attacking the bulk of the Title VII jurisprudence. It simply enforced a “strong-basis-in-evidence” standard that doesn’t seem so far removed from the burden that most governments impose on themselves already out of fear of litigation. Both NWAMUDNO and Ricci were saved by the Court’s not-so-sudden minimalist/incrementalist streak. In both cases there was, no doubt, very interesting insider baseball.

In both cases a single conservative member of the Court attacked a seemingly well-established precedent of the Court but no other member was willing to go so far. In NWAMUDNO, Justice Thomas refused to sign on to the Court’s effort to give Congress a chance to fix the VRA. While it’s difficult to say whether or not any other Justices are inclined to move in that direction, none of the others were willing to take that drastic step now.

In Ricci, Justice Scalia seemed to question the validity if the Courts entire field of disparate impact jurisprudence. No other Justice joined his concurring opinion, but his opinion, especially in light of Justice Thomas’ a week earlier, suggests that the Court’s normally well-coordinate conservative faction may be increasingly confident of it’s long-term viability.

Finally, it looks like the Court is becoming increasingly sensitive to the political environment around it. Caperton was an obvious acceptance of the role that politics and elections play in judicial decision-making and the broading of the constitutional right to a trial free of apparent bias is notable. In Ricci, Justice Alito authored a concurring opinion, joined by Justices Scalia and Thomas, pointing to the apparent bias of a Reverend in New Haven who had help Mayor DeStefano get elected. This marks the second time this term that the issue of politics influencing a court has come up. In Ricci only 3 judges bit on the politics issue but I think the issue may have traction as the Court begins to affirm more and more away from selectively applying past and towards creating entirely new lines of precedent.

Related posts

• BONG HITS 4 JESUS (May 6, 2007)
• Thoughts on Boumediene Oral Arguments (December 5, 2007)
• The Weeks Ahead (April 12, 2009)

Scene: Justice Breyer brings up a set of statistics from the record.

JUSTICE SCALIA: Excuse me. I am not following this exchange because I don’t understand whether the — the statewide percentage is the statewide percentage of English learners or the statewide percentage of all students.
MR. [KENNETH] STARR: Here is — and I think we can cut to — I’m sorry.
JUSTICE SCALIA: If you can’t answer that, I think Justice Breyer can. But I would like to know what comparison —
JUSTICE BREYER: He doesn’t actually have the right to ask me questions.
(Laughter.)
JUSTICE SCALIA: I don’t. That’s — that’s exactly true. But —
CHIEF JUSTICE ROBERTS: Very much true. Counsel, why don’t you try and answer?

Related posts

• Time to Update the Resume (April 29, 2009)
• The Weeks Ahead (April 12, 2009)
• Reflections on my First Live Oral Arguments – Ricci v. DeStefano (April 25, 2009)

In 1968, the Court ruled 8-1 in Flast v. Cohen (here) that Florence Flast and others could file suit against the Secretary of Health, Education, and Welfare for violating the First Amendment for the funding of religious schools. The Court acknowledged that “a taxpayer will have standing consistent with Article III to invoke federal judicial power when he alleges that congressional action under the taxing and spending clause is in derogation of those constitutional provisions which operate to restrict the exercise of the taxing and spending power.”

Since then, however, the reading in Flast has never been taken any farther and the Court has chipped away at the ruling with increasing frequency. In cases like DaimlerChrysler Corp. v. Cuno and Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., the Court held the Flast exception to almost the exact fact-scenarios that arose in the original case.

In Hein v. Freedom From Religion, the Roberts Court had its first full-swing at the Flast exception. Justice Alito, joined by the Chief Justice and Justice Kennedy, refused to extend Flast to executive expenditures but also refused to strike the precedent entirely.

Over the years, Flast has been defended by some and criticized by others. But the present case does not require us to reconsider that precedent. The Court of Appeals did not apply Flast; it extended Flast. It is a necessary concomitant of the doctrine of stare decisis that a precedent is not always expanded to the limit of its logic. That was the approach that then-Justice Rehnquist took in his opinion for the Court in Valley Forge, and it is the approach we take here. We do not extend Flast, but we also do not overrule it. We leave Flast as we found it.

The distinction drawn in Hein is hard to understand. Justice Alito attempted to draw a distinction between an expenditure of Congress and an appropriation granted to the executive branch via Congress. Justices Scalia criticized that weak distinction in his concurring opinion and the dissenting Justices harped on the same issue. Justice Scalia wrote in an opinion joined by Justice Thomas that “Flast‘s lack of a logical theoretical underpinning has rendered our taxpayer-standing doctrine such a jurisprudential disaster that our appellate judges do not know what to make of it.”

It wasn’t hard to predict that this court would react so violently to assertions of Taxpayer standing. Justice Scalia has been a critic of Flast for some time now and published a controversial journal article in 1983 titled “The Doctrine of Standing as an Essential Element of the Separation of Powers” in the Suffolk Law Review. In 1993, a young ex-Deputy Solicitor General named John Roberts published an article in the Duke Law Journal defending an opinion by Justice Scalia lashing out at Flast.

Today, in Earth Island Institute, the Court took a more sober look at the principles underlined in Flast. Justice Scalia authored a majority opinion that did not cite Flast or Frothingham once. Instead, the Court simply held that the Earth Island Institute could not prove a “concrete” and “imminent” harm and therefore did not have standing per Article III.

I’m curious to see what direction the Court will take moving forward. In Hein, only Justices Scalia and Thomas signed on to the idea that Flast should be completely overruled. At the same time, however, Chief Justice Roberts and both Justices Kennedy and Alito have been highly critical of Flast and have done everything short of striking it down. As it stands, a plurality of the Court seems perfectly content chipping away at Flast until there is nothing of substance left. The problem thus far seems to be that the Court hasn’t had an opportunity to see the precedent directly. That would require a very specific set of facts that are hard to recreate in the real world. An individual would have to file suit against a program directly authorized by Congress that allegedly violates the Establishment Clause. I’m not currently aware of any cases that look like that, but I wouldn’t be surprised to see one come up through the courts in the next few years.

Related posts

• Supreme Court Hands Down Key Opinions (June 25, 2008)
• Footnotes in Supreme Court Opinions (December 19, 2008)
• Court Hears Arguments in Sleeper Exclusionary Rule Case (October 9, 2008)

I defined a ‘Subject Matter’ introduction as one in which the author wrote only about the facts of the case and did not mention the court below. See Justice Alito’s introduction in Gomez-Perez v. Potter:

The question before us is whether a federal employee who is a victim of retaliation due to the filing of a complaint of age discrimination may assert a claim under the federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA), as added, 88 Stat. 74, and amended, 29 U. S. C. §633a(a) (2000 ed., Supp. V). We hold that such a claim is authorized.

I defined a ‘Procedural’ introduction as one that included even a brief mention of the ruling below. The main distinction between ‘Subject Matter’ and ‘Procedural’ introductions is that in the latter, the author had to phrase the decision of the Court as a play off of the Court below. For example, in Richlin v. Chertoff, Justice Alito wrote this ‘Procedural Decision’ as the introduction:

The question presented in this case is whether the Equal Access to Justice Act (EAJA), 5 U. S. C. §504(a)(l) (2006 ed.) and 28 U. S. C. §2412(d)(1)(A) (2000 ed.), allows a prevailing party in a case brought by or against the Government to recover fees for paralegal services at the market rate for such services or only at their cost to the party’s attorney. The United States Court of Appeals for the Federal Circuit limited recovery to the attorney’s cost. 472 F. 3d 1370 (2006). We reverse.

Finally, I defined a ‘Tease Facts’ introduction as one in which the author only mentioned (usually very briefly) the facts of the case and omitted any mention of the Court’s ultimate conclusion. Here is Justice Alito’s introduction in Davis v. Federal Election Committee which I categorized as a ‘Tease Facts’ decision:

In this appeal, we consider the constitutionality of federal election law provisions that, under certain circumstances, impose different campaign contribution limits on candidates competing for the same congressional seat.

As for length, I defined a ‘Short’ introduction simply as one limited to one paragraph. A ‘Long’ introduction was two paragraphs or longer in length.

An interesting argument could be made for each style. The data suggests that some Justices have a opinion on the matter and that their introductions isn’t simply a function of upon which clerk writes the opinion or the idiosyncrasies of the case in question. Four Justices (Breyer, Stevens, Souter, Thomas) used the same style in each of their opinions and two others (Ginsburg, Alito) made only one exception to their own self-imposed rule.

The ‘Subject Matter’ approach is the most straightforward and easily understood by lay-people reading opinions. A Justice that uses this approach with only a short introduction might be more inclined to decide a case on the fundamental issues at hand. A Justice who uses the ‘Procedural’ approach with a long introduction might be setting up his arguments aimed at technical issues separated from the politically divisive roots of a case. In the end though, there isn’t enough data here to reach any conclusions about why certain Justices prefer certain methods.

Justice Kennedy issued two opinions that defied the criteria I had set up for the three types of introductions that his peers used. In Federal Express v. Holowecki, Justice Kennedy presented some of the facts leading up the case then offered advice to any practitioners or judges who might use this opinion in the future, “[w]hile there may be areas of common definition, employees and their counsel must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.” The phrase itself is not uncommon, but the fact that it was placed in the introduction is unorthodox.

The other curveball thrown by Justice Kennedy was in Gonzalez v. US, where Justice Kennedy did not structure his opinion with an introduction and subsequent sections, and, without sections, I had to use my judgement to decide how far the introductory part of the opinion extends. Luckily for me, the opinion features a decidedly introduction-like presentation of the question at hand before it jumps into what is normally a Section I discussion of the complete history. I’m not sure why Justice Kennedy (or one of his clerks) decided not to use the normal structure. The 8-1 decision (Thomas dissenting) weighed in slightly-underweight at 12-pages and otherwise features the standard components of a majority decision. The average majority opinion from OT 2007 was 19.16 slip pages but an opinion of only 12-pages doesn’t stand out as an aberration. 14 cases from the last term were 12-pages or shorter and all of them except Gonzalez were broken up into sections.

Justices Breyer and Souter both used only ‘Subject Matter’ introductions in their opinions. Even though the cases were written by different clerks, his preference shown through either from their research into his past opinions or from his corrections of the ones they gave him. Justice Stevens, who writes his own opinions, used all three types of opinions in both long and short form.

Justice Scalia’s introductions were always instantly identifiable. In each case, he used the ‘Tease Facts’ approach and his introduction was only a sentences or two long. Take a look at his introduction to DC v. Heller, shown in its entirety:

We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution.

All of the Justices except Chief Justice Roberts and Justice Ginsburg preferred to use short introductions (those limited to one paragraph). The Chief Justice was split evenly 4-4 and Justice Ginsburg preferred lengthy introductions in six of her eight opinions. Four Justices refused to use long introductions at all (Breyer, Scalia, Souter, Thomas) and Justice Alito used them only once (Allison Engine Co. v. US.)

In a sign of things to come, Justice Roberts has already employed the ‘Procedural’ route this term in Winter v. NRDC when he declared “[t]he Court of Appeals was wrong, and its decision is reversed. ” In Altria Group v. Good, Justice Stevens used a ‘Procedural’ introduction as well. Hedgpeth v. Pulido, a case decided in a Per curiam decision, was written using the ‘Procedural’ style and was authored by the Chief Justice, Justice Scalia, Justice Thomas, Justice Kennedy, Justice Breyer or Justice Alito. Justices Stevens, Souter, and Ginsburg dissented from that opinion.

Related posts

• Footnotes in Supreme Court Opinions (December 19, 2008)
• Oral Argument Stats Posted (December 12, 2008)
• Methodology 101 (July 1, 2007)

Footnotes have, occasionally, caused quite a bit of controversy. In Microsoft v. AT&T (2007), Justice Ginsburg wrote a majority opinion for the court except for one footnote. The judgement line read as such:

Ginsburg, J., delivered the opinion of the Court, except as to footnote 14. Scalia, Kennedy, and Souter, JJ., joined that opinion in full. Alito, J., filed an opinion concurring as to all but footnote 14, in which Thomas and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion. Roberts, C. J., took no part in the consideration or decision of the case.

The footnote in question:

¹⁴In a footnote, Microsoft suggests that even a disk shipped from the United States, and used to install Windows directly on a foreign computer, would not give rise to liability under §271(f) if the disk were removed after installation. See Brief for Petitioner 37, n. 11; cf. post, at 2–4 (ALITO, J., concurring). We need not and do not reach that issue here.

It seems odd that Justice Ginsburg would only discuss the topic in a footnote if it was divisive enough to cause Justices to change their vote. The most famous footnote from a Supreme Court opinion is ‘Footnote 4′ from the majority opinion in US v. Carolene Products (1938). In it, Justice Stone famously hinted towards the possibility of heightened levels of scrutiny “when legislation appears on its face to be within a specific prohibition of the Constitution.”

Analysis of the modern court’s use of footnotes is difficult because most Justices do not write their own opinions. Justice Stevens is the only Justice known to write his first drafts with any frequency and he has long stated that footnotes are useful because they provide the user with ‘optional reading.’ In his majority opinion in Altria, Justice Stevens employed 14 footnotes.

I took a look at the majority and plurality opinions from OT 07 to see how frequently each Justices uses footnotes. I looked only at majority and plurality opinions because they follow the most consistent structure and length. Concurring and dissenting opinions serve different purposes and are more difficult to compare amongst one another and with other types of opinions. I also calculated the number of footnotes per page and the page count refers to Slip Pages.

Case	Vote	Author	Footnotes	Pages	F/P
CSX	9-0	Roberts	4	12	0.33
Knight	9-0	Roberts	4	13	0.31
Medellin	6-3	Roberts	14	37	0.38
Clintwood	9-0	Roberts	0	12	0.00
Baze	7-2	Roberts	7	24	0.29
Engquist	6-3	Roberts	0	17	0.00
Munaf	9-0	Roberts	6	28	0.21
Plains	9-0	Roberts	3	24	0.13

Case	Vote	Author	Footnotes	Pages	F/P
Gall	7-2	Stevens	11	21	0.52
LaRue	9-0	Stevens	6	8	0.75
Danforth	7-2	Stevens	24	27	0.89
Crawford	6-3	Stevens	21	21	1.00
Ressam	8-1	Stevens	2	6	0.33
Irizarry	5-4	Stevens	2	8	0.25
Brown	7-2	Stevens	2	16	0.13

Case	Vote	Author	Footnotes	Pages	F/P
Torres	9-0	Scalia	0	12	0.00
Riegel	8-1	Scalia	6	17	0.35
Virginia	9-0	Scalia	4	13	0.31
Williams	7-2	Scalia	3	21	0.14
Santos	5-4	Scalia	8	17	0.47
Giles	6-3	Scalia	7	24	0.29
Mogan Stanley	5-2	Scalia	6	26	0.23
Heller	5-4	Scalia	29	64	0.45

Case	Vote	Author	Footnotes	Pages	F/P
Stoneridge	5-3	Kennedy	0	16	0.00
Federal Exp.	7-2	Kennedy	0	17	0.00
Gonzalez	8-1	Kennedy	0	12	0.00
Boumediene	5-4	Kennedy	0	70	0.00
Philippines	9-0	Kennedy	0	20	0.00
Dada	5-4	Kennedy	0	20	0.00
Kennedy	5-4	Kennedy	0	37	0.00

Case	Vote	Author	Footnotes	Pages	F/P
Watson	8-1	Souter	9	9	1.00
Boulware	9-0	Souter	14	17	0.82
Hall Street	6-3	Souter	7	15	0.47
Dept. of Rev.	7-2	Souter	21	28	0.75
Meacham	8-0	Souter	14	17	0.82
Rothgery	8-1	Souter	17	20	0.85
Exxon	8-0	Souter	28	42	0.67

Case	Vote	Author	Footnotes	Pages	F/P
Ali	5-4	Thomas	7	14	0.50
Sprint	9-0	Thomas	3	9	0.33
Wash. St. Gr.	7-2	Thomas	11	16	0.69
Cuellar	9-0	Thomas	8	17	0.47
Quanta	9-0	Thomas	7	19	0.37
Bridge	9-0	Thomas	7	21	0.33
Picca-Dilly	7-2	Thomas	3	19	0.16

Case	Vote	Author	Footnotes	Pages	F/P
Logan	9-0	Ginsburg	6	13	0.46
Kimbrough	7-2	Ginsburg	15	23	0.65
Preston	8-1	Ginsburg	8	16	0.50
New Jersey	6-2	Ginsburg	22	23	0.96
Burgess	9-0	Ginsburg	5	11	0.45
Riley	7-2	Ginsburg	13	20	0.65
Taylor	9-0	Ginsburg	13	25	0.52
Greenlaw	7-2	Ginsburg	9	17	0.53

Case	Vote	Author	Footnotes	Pages	F/P
John R.	7-2	Breyer	0	9	0.00
Rowe	9-0	Breyer	0	11	0.00
Begay	6-3	Breyer	0	11	0.00
CBOCS	7-2	Breyer	0	14	0.00
Met. Life	7-2	Breyer	0	13	0.00
Kent. Ret.	5-4	Breyer	0	14	0.00
Indiana	7-2	Breyer	0	13	0.00
Sprint	5-4	Breyer	0	23	0.00

Case	Vote	Author	Footnotes	Pages	F/P
Snyder	7-2	Alito	2	13	0.15
MeadWestvaco	9-0	Alito	4	15	0.27
Rodriquez	6-3	Alito	5	14	0.36
Gomez-Perez	6-3	Alito	6	16	0.38
Richlin	9-0	Alito	10	18	0.56
Allison	9-0	Alito	2	10	0.20
Davis	9-0	Alito	9	19	0.47

I’ve summarized all of that into a more succinct table:

Remember that all of the Justices, except for Stevens, have their law clerks write the first draft of each opinion. With that in mind, however, I was surprised to see that Justices Kennedy and Breyer didn’t use any footnotes at all. Overall though, it seems like footnotes are a stylistic thing more than a substantive disagreement. Justices who use them tend to use them frequently and Justices who aren’t fond of them don’t use them much at all. It also doesn’t really matter which clerk writes the opinion because nearly Every Justice who uses footnotes uses them in almost ever case.

I also crunched the numbers on the average number of footnotes in opinions based on the votes in the majority. I excluded opinions written by Justices Kennedy and Breyer. Note: These numbers do not represent opinions with irregular voting blocs (ie. 5-3, 5-2, 7-1, etc)

Odd. Statistically speaking, 8-1 opinions featured the highest number of footnotes. That is likely just a result of Justice Souter writing with disproportionate frequency in 8-1 opinions this year (2 out of 5.)

Cases with the most footnotes:

Heller 5-4 Scalia 29 64 0.45
Exxon 8-0 Souter 28 42 0.67
Danforth 7-2 Stevens 24 27 0.89
New Jersey 6-2 Ginsburg 22 23 0.96
Crawford 6-3 Stevens 21 21 1.00
Dept. of Rev. 7-2 Souter 21 28 0.75
Rothgery 8-1 Souter 17 20 0.85
Kimbrough 7-2 Ginsburg 15 23 0.65
Medellin 6-3 Roberts 14 37 0.38
Meacham 8-0 Souter 14 17 0.82

These represent an interesting cross section of the Court’s cases. Of course, none of the tight 5-4 decisions issued by Justice Kennedy are featured here, but Justice Scalia’s landmark opinion in Heller leads the list. Oral arguments in Danforth lead to an unusually heated debate between the justices, literally. Medellin produced an unusual decision from the Court in which the conservative majority struck against the President and ruled that ICC judgements were not binding on state courts. Two of the other major cases decided by the Court, Kennedy (Juvenille Death Penalty) and Boumediene (Detainee habeus claims), were written by Justice Kennedy and therefore had no footnotes.

Related posts

• Supreme Introductions (December 20, 2008)
• Court Hands Down First Opinion of the New Term (November 14, 2008)
• Unity Defined (June 11, 2007)

Once again, Justice Scalia comes in as the most talkative and averages 21 comments per hour of arguments. That shouldn’t surprise many people as he has always been known to be a particularly vocal member of the court. Justice Thomas still hasn’t spoken since February 22, 2006. Chief Justice Roberts and Justice Breyer both average about 18 comments per case. On the other side of the spectrum, Justice Alito spoke an average of only 5 times per case. Justices Stevens, Kennedy, and Ginsburg spoke with similar frequency at 12, 11, and 10 times per argument, respectively.

This chart covers the difference between Justices’s overall speaking average and their average per individual court. I’ve highlighted the times when justices had variations of greater than 5 in either direction. I was particularly surprised to see that Ninth Circuit Cases had very little effect on justices, and, if anything, they actually spoke slightly less than usual.

When more cases start coming down, I’ll be interested to see what effect speaking frequency has on voting. Does Justice Kennedy speak more when he votes in favor of a case? Do Justices Stevens or Scalia speak more when they think a case will come down 5-4? With only 2 cases decided on merit thus far, its hard to say at this point but I’ll keep track of the decisions as they come down and post when I’ve collected enough data for some basic analysis.

You can find the data in these formats: xls, numbers, and, of course, pdf. Feel free to play with the data and let me know what conclusions you come up with!

Related posts

• Updated Humor Statistics (March 7, 2008)
• Supreme Introductions (December 20, 2008)
• Methodology 101 (July 1, 2007)

A lot of people have been making a big deal out of this, arguing that referrals of dead-end citizenship cases by conservative Justices could be interpreted as a slight on Obama. Nia-Malika Henderson of Politico even speculated that Thomas’ referral of Donofrio might just be his way of

returning the favor — putting through a case that questions whether Obama should be president, after Obama said [at the Saddeback Forum that] he wouldn’t have picked Thomas for the high court.

We here at the DailyWrit admit that we got caught up in all the drama, even speculating that the conservative bloc might be tacitly participating in a game theory model called “cheap talk signaling” by using these referrals to remind Obama that they still have Judicial Review over the legislation he pushes through a very Democratic Congress. But after reading one too many stories about the referrals, Kedar realized that bloggers might be reading too much into this – mapping partisan politics onto a situation of routine Court procedure. Curious, we sent an e-mail to SCOTUSblogger Lyle Denniston, one of the top SCOTUS authorities in all the land. He graciously responded:

[Donofrio] was a routine referral. The Court formerly allowed repeated applications, even to all nine Justices separately. Because of perceived abuses of that approach, the Court now follows the practice — no matter which Justice gets the second application — to have it go to Conference, to end the Justice-shopping.

The fact of referral in the New Jersey case was totally without significance. The more telling fact, in each of these cases, is that the Court does not even ask for a response. That indicates it believes they are totally frivolous — as anyone who reads the papers will quickly discern.

Sorry, no political intrigue here.

Regards, and thanks for reading the blog,
Lyle D.

This should lay to rest all the rumors that Justice Thomas has an ax to grind with the president-elect. It turns out that the referral was a simple procedural matter of routine. When a petition is denied by a liberal Justice, it is not uncommon for the petitioner to then refile the application with a Justice who is more conservative (and vice-versa); to prevent the petitioner from simply resubmitting again and again, the second petition automatically triggers a referral to conference from the Justice who received that resubmitted application. It just so happens that the Donofrio and Wrotnowski were resubmitted to Justices Thomas and Scalia; thus, it is simply coincidence and nothing more that the cases were referred for Court review by conservative Justices.

But what truly shocked us here at the DailyWrit was how many media outlets – large and small, local and national – dropped the ball on this story. Among those who gravely misinterpreted Court procedure were: Kate Phillips at the Caucus (a blog of The New York Times), Elie Mystal at Above the Law, Earl Hutchinson at The American Chronicle, Les Payne at Newsday, a number of the good folks over at DailyKos, James Wright at New American Media, bloggers at ProgressPolitics, and, as we mentioned, Nia-Malika Henderson at Politico.

Who got it right? Well, Robert Barnes at the Washington Post, Eugene Volokh at his blog, Mr. Denniston, Ben Smith over at Politico, and Wikipedia!

Related posts

• Supreme Court Rejects Question of Obama’s Citizenship (December 8, 2008)
• President Obama and the Future of the Supreme Court (December 4, 2008)
• The In Vogue Word Of The Day: Stare Decisis (June 28, 2007)

Wrotnowski v. Bysiewicz is a motion for injunction filed by Cort Wrotnowski against Susan Bysiewicz, Secretary of State of Connecticut to halt the electoral college to hear a complaint against Barack Obama’s claim of citizenship. Unlike some of the other claims before the Court, this case focuses primarily on the President-elect’s father’s nationality. You can read the petition here.

According to the docket sheet (here), Justice Scalia referred the case to the Court as a whole today and it will be discussed at the December 12 conference. There is very, very little doubt that the Court will dismiss the case as it has the last two citizenship challenges to come before it.

Related posts

• Fishing for a Story: How the Media Is Reading Too Much Into Referrals of Obama Citizenship Cases by Conservative Supreme Court Justices (December 9, 2008)
• Today Is “Safe Harbor” Day 2008 (December 9, 2008)
• The In Vogue Word Of The Day: Stare Decisis (June 28, 2007)

JUSTICE SCALIA: Mr. Bress, I want to apologize to you for accusing you of not printing 2254(d) and (e) in your brief. You indeed did.
MR. BRESS: Well, thank you, Your Honor. I thought —
JUSTICE SCALIA: I’m grateful for your not throwing it in my teeth.

More on the event here.

Related posts

• Oral Argument Stats Posted (December 12, 2008)
• Oral Argument Jokes of the Day (December 2, 2008)
• Court Hears Arguments in Sleeper Exclusionary Rule Case (October 9, 2008)

WARREN: Which existing Supreme Court Justice would you not have nominated?

OBAMA: That’s a good one. That’s a good one. I would not have nominated Clarence Thomas. I don’t think that he…I don’t think that he was a strong enough jurist or legal thinker at the time for that elevation, setting aside the fact that I profoundly disagree with his interpretation of a lot of the Constitution.

And then to Senator McCain:

WARREN: Which existing Supreme Court Justices would you not have nominated?

McCAIN: [Pause] With all due respect…Justice Ginsburg, Justice Breyer, Justice Souter and Justice Stevens.

The discussions generated by this question provided a rare and candid window into how these men regard the nomination process. Obama argued throughout his discussion of the Judiciary that jurists ought be nominated on the basis of merit and experience. McCain, on the other hand, argued that nominations

should be based on the criteria of proven record of strictly adhering to the Constitution of the United States of America and not legislating from the bench….some of the worst damage has been done by legislating from the bench.

A discussion of Chief Justice Roberts then presented the opportunity for both men to contrast their ideal Justice with one who was currently serving. McCain mentioned that Chief Justice Roberts and Justice Alito were among his “most recent favorites.” He lauded both men as “very fine” and said that he was “proud of President Bush for nominating them.” Senator Obama voiced a slightly different opinion of Chief Justice Roberts:

WARREN: How about John Roberts?

OBAMA: John Roberts….I have to say was a tougher question only because I find him to be a very compelling person, you know, in services individually. He’s clearly smart, very thoughtful. I will tell you that how I’ve seen him operate since he went to the Bench confirms the suspicions that I had, and the reason that I voted against him and I’ll give you one very specific instance, and this is not a stump speech.

WARREN: All right. When I pick this up it means –

OBAMA: Exactly. I’m getting the cues. I’m getting the cues. One of the most important jobs of…I believe the Supreme Court is to guard against the encroachment of the Executive Branch on the power of the other branches, and I think that he has been a little bit too willing and too eager to give an administration – whether it’s mine or George Bush’s – more power than I think the Constitution originally intended.

Also receiving a shot out from Obama was Justice Scalia:

OBAMA: I would not nominate Justice Scalia although I don’t think there’s any doubt about his intellectual brilliance because he and I just disagree, you know. He taught at University of Chicago, as did I in the Law School.

I was pleased to see Obama acknowledge that Justice Scalia is “intellectually [brilliant]” and that Chief Justice Roberts is “clearly smart, very thoughtful,” even though these Justices’ interpretations of the Constitution are hardly in lock-step with his own. McCain, on the other hand, listed every single member of the Court’s liberal contingent (with special disgust for Justice Souter) when asked who he wouldn’t nominate.

But Senator McCain really caught my attention by speculating that, during the next four years, “there will be two, maybe three vacancies” on the Supreme Court. In a recent post I argued via a regression model that the next president would have exactly this many vacancies to fill in the next four years, so it’s good to know someone’s listening. But I think McCain was trying to scare the audience by using a number instead of a phrase like “several” or “a few”; by underscoring just how important the next president is going to be in deciding the future direction of the Court, he is endearing himself as a “best of the worst “option to right-wingers who might not be so hot on some other elements of his agenda. Nevertheless, by so prominently promising to nominate originalist jurists, McCain is backing himself into a corner. And I hope that doesn’t mean that he’ll overlook qualified jurists as a matter of process.

For those intrested, the full transcripts from the event are available here.

UPDATE: A lengthier discussion of these exchanges is available in tomorrow’s edition of The Wall Street Journal, courtesy of their shockingly conservative Editorial Board.

Related posts

• President Obama and the Future of the Supreme Court (December 4, 2008)
• Updated Humor Statistics (March 7, 2008)
• Unity Defined (June 11, 2007)

Its pissing me off a little that the Supreme Court is going to outlive me. Couple young Italian fellas and a brother on the Court now, too. But I defy you to find me, anywhere in the world, two Italians as tight-assed as the two Italians we got here. And as for the brother- well Pluto’s not a planet anymore either.

You can find the .wav file here. Calling Justices Scalia and Alito ‘tight-ass?’ Calling Justice Clarence Thomas a ‘brother?’ Oh dear.

Related posts

• Which Justice Is The Most Talkative? (November 8, 2007)
• Unity Defined (June 11, 2007)
• Tag-Team Cage Deathmatch: Roberts/Alito v. Scalia/Thomas (July 16, 2007)

None of these remarkable conclusions should come as a surprise. What is before us, after all, is a speech regulation directed against the opponents of abortion, and it therefore enjoys the benefit of the “ad hoc nullification machine” that the Court has set in motion to push aside whatever doctrines of constitutional law stand in the way of that highly favored practice. Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 785 (1994) (Scalia, J., concurring in judgment in part and dissenting in part). Having deprived abortion opponents of the political right to persuade the electorate that abortion should be restricted by law, the Court today continues and expands its assault upon their individual right to persuade women contemplating abortion that what they are doing is wrong. Because, like the rest of our abortion jurisprudence, today’s decision is in stark contradiction of the constitutional principles we apply in all other contexts, I dissent.

I offer the above passage as an introduction to Justice Scalia for everyone who was previously unaware of his glorious rhetorical pyrotechnics. Expect more of the same for the next decade or two.

Related posts

• Who Is The Funniest Justice? (November 10, 2007)
• Which Justice Will Author The Medellin Opinion? (March 19, 2008)
• Which Justice Is The Most Talkative? (November 8, 2007)

The arguments went almost exactly as expected. The obvious things first- Justice Scalia gave Seth Waxman, attorney for the detainees, a hard time. Justice Scalia repeatedly grilled Waxman on his position, arguing that there is no precedence, either in United States or English common law, that habeus corpus should be extended to non-citizens outside sovereign territory. This led Waxman to suggest (albeit indirectly) that Justice Scalia’s concerns may not reflect those of his eight colleagues.

Justices Souter and Breyer attacked Solicitor General Clements in the same way that Justice Scalia attacked Waxman, the only difference being that Souter was marginally less forceful. There was a substantial amount of discussion over whether Guantanamo Bay fell under the legal jurisdiction of the United States or Cuba. Justice Kennedy, who will likely be the swing vote, only asked a few questions, and it was difficult to read his opinion on the matter.

Chief Justice Roberts and Justice Alito both asked a few questions and appeared to be generally engaged.

I got the impression from the Justices that the most fundamental outcome of this case was a foregone conclusion. A majority of the Justices have clearly indicated that they believe detainees in Guantanamo Bay are subject to some form of habeus protection. The question now is whether or not the DC Court of Appeals is the proper location for that habeus filing, whether or not other issues can be brought up by detainees, and how the DC court should handle the cases if and when they are filed.

It seems rather inevitable that the Court here will not agree with the DC Court. Only the most conservative Justices (perhaps Justice Scalia alone) believe that detainees held at Guantanamo Bay should not be granted any habeus rights.

You can stream the oral arguments for yourself here (RealPlayer required.)

Related posts

• BONG HITS 4 JESUS (May 6, 2007)
• Unity Defined (June 11, 2007)
• Supreme Introductions (December 20, 2008)

The New York Times archive is a great resource for information about our recent history. In my brief search, I found a few articles from 1957 about the Dred Scott decision here, here, and here. As far as I can tell from the articles, the Dred Scott case was followed more closely by the general public than any case in recent memory. There were 3-4 front page articles in the New York Times outlining just the arguments that were made during oral arguments. Today, even the hottest Supreme Court cases would only get one front page article.

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• Kelo Turns Three Today (June 23, 2008)
• If I Hear One More Word About Clarence Thomas And Originalism… (July 12, 2007)
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No surprises here. Scalia talks almost twice as much as everyone else. John Roberts is incredibly personable and his colleagues are marginally funny as well.

Here is the highlight reel. I’ve tried to include sufficient background information, but you can always click on the link to take you to the transcript. Enjoy-

In Gall-

CHIEF JUSTICE ROBERTS: Well, I’m sure that’s not always true. I mean, if the leader of some vast conspiracy is the one who blows the whistle, I suspect he may well be charged anyway.
JUSTICE SCALIA: Lex Luthor might.
(Laughter.)

JUSTICE SCALIA: So why don’t you just swallow all these things and say, yeah, I suppose the court of appeals could say that, but —
MR. GREEN: I — I —
JUSTICE SCALIA: — but my point stands?
MR. GREEN: Yeah, well, I’m happy to swallow in that sense.
(Laughter.)

In Kimbrough-

JUSTICE BREYER: If Congress passes a statute that says the mandatory minimum sentence of eight years for possessing a 12-inch shotgun unlawfully, does that mean it wants four years for a 6-inch shotgun?
(Laughter.)

In Torres-

CHIEF JUSTICE ROBERTS: Well, doesn’t that seem kind of odd, that if a State can have no role for voters, it can have a pure convention, that they’re penalized if they have some role for voters?
MR. SCHWARZ: I wouldn’t put it as being penalized, Your Honor. I think it is the —
CHIEF JUSTICE ROBERTS: Being found unconstitutional is a pretty severe penalty.
(Laughter.)

In Medellin-

JUSTICE BREYER: Maybe you could spend a minute explaining that, because, as I read the Constitution, it says all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land, and the judges in every State — I guess it means including Texas —
(Laughter.)

JUSTICE SCALIA: That is conferring upon the ICJ the responsibility to decide the meaning of a United States treaty which is United States law.
MR. CRUZ: And —
JUSTICE SCALIA: I’m rather jealous of that power.
(Laughter.)

In Williams-

JUSTICE SCALIA: … So I guess the whole doctrine is — is based on dictum. So we may as well put it in all an appendix. Let’s put our dictum in an appendix. I agree.
MR. DIAZ: In answer to Your Honor’s question or comment —
(Laughter.)

In Danforth-

JUSTICE STEVENS: But your basic position is that we should not be making new law. We should be — we might have misinterpreted the law over the years, but, basically, this Court has no power to change the text of the Constitution or its meaning. I guess Justice Scalia’s position is we have all that power in the world.
(Laughter.)
JUSTICE SCALIA: My position is we have asserted all that power in the world.
(Laughter.)

JUSTICE STEVENS: … But the notion we can make up a new rule of law at will strikes me as a very dramatic departure from what I understand the rule of law to require.
JUSTICE SCALIA: I’m really glad to hear that.
(Laughter.)

MR. DIAMOND:[After a few minutes without speaking] Your Honor —
CHIEF JUSTICE ROBERTS: I think you’re handling these questions very well.
(Laughter.)
JUSTICE GINSBURG: That was not a question addressed to you, Mr. Diamond.

In Davis-

JUSTICE SOUTER: So don’t you have to take — therefore, if you’re going to answer Justice Alito as you did, don’t you have to take the position that Carbone really is not good law and the Carbone/United Haulers distinction is not a — is simply not a relevant distinction?
As a dissenter in Carbone, I naturally do not find that the worst answer you could give.
(Laughter.)

JUSTICE ALITO: Well, as a dissenter in United Haulers, I also don’t think it’s a good distinction.

JUSTICE STEVENS: We are talking about not just a dormant Commerce Clause, but a dormant Congress.
(Laughter.)

In John R. Sand & Gravel-

[Background information-- Chief Justice Roberts represented the government during oral arguments in Irwin v. Deparment of Veteran's Affairs when he was a deputy solicitor general]

JUSTICE STEVENS: One last question: We disagreed on parts of the Irwin opinion, but I take it you would agree with me that the government was particularly well represented in that case, wouldn’t you?
(Laughter.)
MR. STEWART: The government could not have been better represented, Your Honor.
(Laughter.)
CHIEF JUSTICE ROBERTS: It is hard to understand how they could have lost the case.
(Laughter.)
MR. STEWART: I had the same reaction reading the transcript.

In FedEx v. Holowecki-

MR. ROSE: The charge Form 5 was file on — well, she signed it on the 30th. It may have been filed a couple of days later. But whatever it was, that was submitted. I sent it to the EEOC by, I think, FedEx.
JUSTICE SCALIA: But suit was pending at that time.
(Laughter.)
MR. ROSE: Well, I used FedEx —
JUSTICE SCALIA: That’s pretty risky.
MR. ROSE: I used FedEx for a record because I can use their tracking. Some of the tracking documents are in the joint appendix. I dealt with — I dealt with FedEx in the Bost case. I call it Bost. I’m not sure whether it’s “BOSST” or “BOEST.” He calls himself Tony, so I don’t know.
In any event –
[AWKWARD]
JUSTICE SCALIA: Answer my question. Was suit already filed at that point?

In Hall v. Mattel-

JUSTICE BREYER: My temptation is to say they’re open questions and they’d have to be argued on remand, which makes this case the case of the century, I guess, in a certain respect. It’s quite a difficult case.
MR. PHILLIPS: I was just looking for the case of the day, Your Honor, actually.
(Laughter.)

Related posts

• Updated Humor Statistics (March 7, 2008)
• Unity Defined (June 11, 2007)
• The People v. God, et al.: Scalia Never Stops Talking (Duh?) (May 17, 2007)

I found transcripts from the usual place and I copied the text into TextMate. From there, I conducted a simple ‘search’ function that returned only results with the proper case. I searched for Justices names in all caps in an effort to avoid conversational references to Justices. For example, a search for ‘JUSTICE SCALIA’ would not return references to his name when another individual mentioned his name. I subtracted two (2) counts from the Chief Justice because he signals the beginning and end of every case. Justice are frequently cut off when beginning a question which can lead to them being counted twice in the tally, but that should effect all Justices equally.

You can find a far more asthetically pleasing version of the chart here. You can find the data in .xls format here and .numbers format here.

Some of the results were obvious- Justice Thomas doesn’t speak at all and Justice Scalia speaks a lot. Justice Scalia has the highest standard deviation, meaning his activity is the least predictable (without looking at the facts of cases.)

Speaking frequency isn’t strongly tied to writing frequency. The most frequent authors, Stevens, Scalia, and Thomas, speak it very different frequencies. Roberts and Alito, the two least prolific writers, are the most and least frequent interrogators, respectively.

Justice Ginsburg speaks less than I had expected. Looking back a major cases from last term, it shouldn’t have surprised me that Justice Ginsburg doesn’t speak too often. In Ledbetter, she spoke only 29 times, a number that is above her average, but not alarming by any means. In Carhart, she also spoke an inconspicuously low 10 times.

Related posts

• Supreme Introductions (December 20, 2008)
• Oral Argument Stats Posted (December 12, 2008)
• Methodology 101 (July 1, 2007)

I’m surprised to see Clarence Thomas on the list and Anthony Kennedy and Ruth Bader Ginsburg left off. From my perspective, Thomas is an important figure in the conservative movement but he can’t hold a candle to the heavy influence that Anthony Kennedy holds over the entire Court. He is being wooed at every stage of the litigation process, from the writing of petitions for certiorari to the opinion-writing process. Lawyers want to persuade him to vote with them and his colleagues want to barter with him for votes on their side. He has single handedly given the conservative wing of the Court almost free reign to roll back the clock on important facets of precedent.

Ruth Bader Ginsburg, on the other hand, is evolving as a powerful dissenter for the liberal wing. Her stirring dissents on topics like equal protection and women’s rights have been cause célèbre for liberal activists, lobbyist, and legislators around the country. If the liberals have any hope of making progress before they can get a clear majority on the Court, Justice Ginsburg is going to have to be on her A-game.

(via Eminent Domain)

Related posts

• Unity Defined (June 11, 2007)
• Supreme Introductions (December 20, 2008)
• Supreme Court Upholds Application of Lethal Injection (April 16, 2008)

The judgment of the Mississippi Supreme Court relies upon an adequate and independent state ground that deprives the Court of jurisdiction.

The Supreme Court has now granted a stay in Emmett v. Johnson, affirmed the Eight Circuit’s decision to grant a stay in Norris v. Jones, and denied a stay in yesterday’s case.

In Norris v. Jones, Justice Scalia filed a dissenting order in which he declared that “the grant of certiorari in a single case does not alter the application of normal rules of procedure.” He rejected the idea that the Court’s acceptance of Baze v. Rees granted a blanket stay against all lethal injections.

It will be interesting to see how the Court proceeds over the next few months in dealing with petition’s for stay of execution. It’s currently divided position indicates that we will have to wait before we see a final resolution to this issue.

Related posts

• Which Justice Is The Most Talkative? (November 8, 2007)
• Unity Defined (June 11, 2007)
• Thoughts on Boumediene Oral Arguments (December 5, 2007)

Justice Thomas has been a long-time critic of Judges who speak out during oral arguments only to argue with their colleagues. At one point early in the arguments, Justice Scalia engaged in this dialogue with the counsel for Mr.Gall:

JUSTICE SCALIA: Well, you don’t — you don’t have to answer all of thse things for you case, do you?
MR. GREEN: No.
JUSTICE SCALIA: You’re not saying that a reasonable persion wouldn’t have found the opposite. YOu’re just saying that a reasonable person could have found what this district judge found.
MR. GREEN: That’s exactly right, Justice Scalia.
JUSTICE SCALIA: So why don’t you just swallow all these things and say, yeah, I suppose the court of appeals could say that, but –
MR. GREEN: I — I –
JUSTICE SCALIA: — but my point stands?
MR. GREEN: Yeah, well, I”m happy to swallow in that sense.
(Laughter.)

Justice Thomas has also expressed his displeasure at having to elbow his way into a discussion if he wants to ask a question. This dialogue occured between Justices Ginsburg and Stevens:

JUSTICE GINSBURG: How?
MR. GREEN: If the unwarranted -
JUSTICE GINSBURG: How can it fix the -
JUSTICE STEVENS: One question. Why couldn’t, if…[asks lengthy question]

The Chief Justice has an interesting dialogue with Mr. Green (in the laboratory with a candlestick?) about the presence of two conflicting judges on the same court:

CHIEF JUSTICE ROBERTS: But if you have two district judges in the same courthouse and the one says, when I have a young defendant I always — I forget whether the term is “vary” or “depart” — but I always go down, and the next judge says, I never consider age. Those — both of those are upheld under your view, I take it?
MR. GREEN: Yes, both — both would be upheld.

Justice Souter than proposes that abuse of discretion should be a holistic analysis of multiple cases in multiple regions to determine whether or not a single case was ‘incorrectly’ decided.

Related posts

• Updated Humor Statistics (March 7, 2008)
• Unity Defined (June 11, 2007)
• The People v. God, et al.: Scalia Never Stops Talking (Duh?) (May 17, 2007)

John Roberts looks like a real square when he’s drinking a soda (or alcoholic beverage?). Stephen Breyer looks like a real cool kid. Thomas Sowell is a chess master. Micahel Chertoff’s job is really taking a toll on his body. Samuel Alito’s haircut is a little sketchy, but his wife speaks very well and sounds like a cool kid. Watching Alito and Specter talk baseball and Thomas and Graham talk USC football is a keen reminder of how human these political figures are, despite the way the people (myself included) portray them as ideological ironclads.

Clarence Thomas, like everyone else, has an opinion on the Appalachian State upset over Michigan. He grills Stephen A. Smith of ESPN on the media bias against the Cowboys and drops some random bits of sports trivia.

Overall, a pretty interesting video if you’re a Political nerd or if for some reason you can’t fall asleep.

Related posts

• Updated Humor Statistics (March 7, 2008)
• Unity Defined (June 11, 2007)
• The People v. God, et al.: Scalia Never Stops Talking (Duh?) (May 17, 2007)