The Roberts Court’s trend towards releasing opinions late in the term is well-documented and commentators should not be surprised to see only four opinions heading into the winter break. The biggest counter to this argument is the fact that the Roberts Court has been making an effort to load the docket with cases during the first few months in an effort to soften the inevitable end-of-term rush to finish opinions. I’m not sure packing cases early would have a huge impact on decisions being released before Christmas although I do think there could be an increasingly large number of opinions released during February and March.

With all of that in mind though, Citizens United should be considered late. Capitol Hill is waiting for the decision and campaigns around the country are treading lightly in anticipation of the option. The Supreme Court’s delay will only extend the period of uncertainty.

Several commentators, most notably John Elwood on Volokh Conspiracy and Tony Mauro for the Legal Times, have considered the possible reasons and consequences of the Court’s rather delinquent decision. earlier this year I took a look at the cases from OT07 that took longer-than-expected and the stats generally support what the pundits have said. The average number of days for an opinion is about 92. The longest opinions from OT07 were 202 and 232 days, respectively. US v. Williams took 202 days, split 7-2, and had three opinions. US v. Santos took 232 days, split 5-4, and had four opinions.

The case with the greatest number of opinions was Department of Revenue of KY v. Davis. It took 197 days, split 7-2, and had seven opinions (Souter(m), Stevens(c), Roberts(c), Scalia(c), Thomas(c), Kennedy(d), Alito(d)).

On the other hand, McConnell v. FEC took about 92 days, split 5-2, and had three majority opinions, three concurrences, and two dissenting opinions. Notably, the decision in McConnell was released on December 10, 2007, relatively early in the year for an opinion and not even on the last day for opinions before the break (another opinion was released on December 15)!

In my opinions, the number suggest that the Citizens United decision will be as far reaching as people expect but I think there will be far less division than the McConnell opinions. The Court could probably churn out an opinion in a week if each of the Justices was to simply write an opinion for himself or herself and the Court issue nine opinions. In an effort to fulfill some of his nomination pledges, the Chief Justice may be placing a greater emphasis on writing a majority opinion (that I expect he will write) that can drag along a majority for the crux of his argument.

You can also find a video taken at the loosely termed “photo shoot” here. I should note that the Court released a few different photos from the shoot and in all of them, Justice Alito looks determined to avoid having his soul captured by the liberal photograph-making devices being pointed at him.

Supreme Court class photos have a tradition of capturing bizarre moments. One of my favorites is the class photo from 1986, taken after Chief Justice Rehnquist’s promotion and Justice Scalia’s arrival on the bench. Thurgood Marshall gives the camera his best smile, but he seems surprised to still be on the court.

Another all-time favorite is this below, taken in 1925. Note that the two Justices standing on the left, Justices Stanford and Sutherland, look nearly identical. The Justices standing on the right also look like they could be related.

The Court granted review in McDonald v. City of Chicago, a case decided by the Seventh Circuit in early-June. SCOTUSblog has a collection of cert. stage briefs that you can access here and David Kopel has an intersting collection of background reading available on Volokh Conspiracy here. Notably, well-regarded conservative judges Frank Easterbrok and Richard Posner both ruled against incorporation in this case.

In fact, the Washington Post and Above the Law are now reporting that General Kagan chose a black suit with a light blue blouse with which to disgrace the Office of the Solicitor General. ATL confirmed the choice of attire with General Kagan herself but was unable to get her to confess her choice of designer.

According to the Post, the DOJ official policy still requires men to wear the morning coat but now makes the traditional attire optional for women.

General Kagan opted not to wear the traditional grey morning coat that male Solicitors General wear. Instead, according to the WSJ Law Blog, she wore a blue pants suit. Of course, the writing was on the wall.

Additionally, the the formal collar worn by Sotomayor and gifted to her by Justice Ginsburg, is called a jabot (pronounced zha-BO). In their recent interviews with C-SPAN, both Justice Ginsburg and Justice O’Connor expressed a lot of frustration at their initial difficulty in obtaining proper judicial couture, so I suspect this gift was much more meaningful than we would typically assume.

I mentioned some of this stuff on the DailyWrit’s Twitter, but I’m getting a little lazy about posting these factoids with all deliberate speed. My apologies.

Hansen posits up some interesting analysis and I absolutely agree with his parting shot that this was an excellent set of oral arguments and each of the advocates was impressive. I’m not typically a big fan of election law (stemming solely from the fact that there are only a few fields of law about which I know less), but I thought the arguments today were fascinating and each of the advocates provided an example of superlative advocacy.

By contrast, when Justice Alito first sat on the Court on February 21, 2006 in Rapanos v. United States and he asked a single question. His only question appeared on page 5.

Similarly, Justice Sotomayor spoke only four times today during her first oral argument on the Supreme Court. Her first question came on page 24 and she went back and forth with former Solicitor General Ted Olson with a few lengthy questions.

Solicitor General Kagan did a fantastic job for her first oral argument. Her position was a difficult one and the Justices who disagree with her position certainly held no punches. Chief Justice Roberts, in particular, went after her position and commented on some aspects of the SG’s uncomfortably paternalistic position. Admittedly though, this was an interest set of arguments because each Justice seemed more clear than usual in the position they would be taking.

I’d recommend this set of oral arguments to anyone with an interest in the Court. The parties made some pretty interesting, well-laid out claims. As soon as we get the transcript I’m sure the (laugher.) count will be very high. You can find an audio recording from c-span here.

Justice Sotomayor formally took her seat on the Supreme Court after her investiture ceremony this afternoon. Among other things, Attorney General Eric Holder delivered to her a commission – the same object at the center of controversy in Marbury v. Madison. She is wearing a Bentley and Simon J-71 robe that was given to her as a gift from clerks at the 2nd Circuit and her collar was a gift from Justice Ginsburg.

The Supreme Court has a series of great photographs up here. The photo above comes from the official White House flickr feed.

Before I go any further, I should clarify what I mean with the term “qualified.” If I change the question a bit, the answer would be come obvious: Does Elena Kagan meet the qualifications to become Solicitor General? The answer would be yes- she has a JD (from prestigious law school) and that is the only requirement I know imposed on the Solicitor General. Sidenote: according to Pacelle, when the office of the SG was created in the 1800s, the JD requirement was shifted from the AG to the SG, beginning the SG’s eventual shift into what the AG is in name.

When I ask if she is qualified, what I mean to decide is if she makes a reasonably effective Solicitor General based on the complex, and often conflicting, set of responsibilities tasked upon the her office. First, the SG has to make strategic decisions on the behalf of the government in non-partisan cases. I say non-partisan only insofar as the Executive will always take the same position and the most famous example of this position would be standing (in case you didn’t already know, the federal government nearly always opposes expanding standing against a government program).

The role of lead government litigator is a difficult one but could be done by a wide variety of people considering the caliber of attorney staffing the OSG. The President and AG will typically avoid giving the SG explicit directives but there is always in implicit pressure to not argue contrary to a President’s stated objectives. The SG has to balance its obligation to the President with its institutional integrity at the Supreme Court.

Finally, and I think probably least importantly, is the SG’s role as an appellate advocate. The SG will rarely write any briefs (that duty is left to assistants and deputies) and will just as rarely argue before the Supreme Court. The most recent SG’s have had varying levels of prior experience arguing before the Court.

I’ve identified the most notable qualifiers for each of the Solicitor General’s through the Eisenhower administration. Again, what I consider to be a reasonable qualifier is subjective but I’ve tried to be as objective as possible in defining a qualifying experience is any experience in the Supreme Court or as a high-level government attorney.

Elena Kagan – Associate White House Counsel to President Clinton, SCOTUS clerk (Marshall)
Gregory Garre- 4 years as Assistant SG, 3 years as Principal Deputy SG, SCOTUS clerk (Rehnquist)
Paul Clement – 3 years as Principle Deputy SG, SCOTUS clerk (Scalia)
Theodore Olson – 12 arguments in SCOTUS, worked in OLC during Reagan admin.
Seth Waxman - Previous experience as Principle Deputy SG
Drew Days – 8 years as head of the NAACP LDF, including a famous win in Fulilove v. Klutznick
Kenneth Starr – 5 years as DC Circuit judge, SCOTUS clerk (Burger)
Charles Fried – Deputy SG, SCOTUS Clerk (Harlan)
Rex Lee – >12 arguments in SCOTUS, SCOTUS Clerk (White)
Wade McCree – 10 years as judge on Sixth Circuit.
Robert Bork –
Erwin Griswold – Member of SG’s office under SG Hughes
Thurgood Marshall – Several arguments as member of NAACP LDF

Going back further than that is fruitless because the nature of the office has changed so significantly and the relevant qualifications are certainly not the same. For example, a SCOTUS clerkship is now considered far more important than it was in the 1940s and 1950s.

I don’t know if Kenneth Star had any experience before the Supreme Court. He worked in private practice at Gibson Dunn before becoming a federal judge. Robert Bork worked in private practice for almost 10 years before heading to Yale Law School.

Kagan did work at Williams and Connelly for two years (1989-1991) after her clerkship with Justice Marshall. Even though she’s never argued before a Court in her career, her time at Williams and Connelly likely provided some basic level of experience in handling the intricacies of a case.

Its pretty telling that we have to dig this deep to find trial experience for our government’s lead appellate advocate. A two-year stint as an associate doesn’t seem like an impressive line on the resume for this position, but SG is also more of a strategic actor than a lawyer working in the (gilded-gold) trenches.

More important than her trial experience is her judgement when it comes to gauging legal arguments before the Court. There are more than enough brilliant lawyers working in the SG’s office who can file motions and give oral arguments, but her judgement will seriously influence the most important and subtle arguments that get filed in the most grave cases.

In all, I’d say she is “less qualified,” by objective measures, than our most recent Solicitors General. She doesn’t have any experience litigating cases, only commenting on them from an academic position. Her experience in government came as a domestic policy advisor to the President, not as a member of any litigation team. Though she is “less qualified” with regard to some of her past experiences, the glowing recommendations that she received from the likes of Lawrence Tribe and several past SGs suggests that she has the knowledge and expertise to excel as Solicitor General.

I should probably mention that, despite everything I’ve said above, I still supported her nomination. I probably wouldn’t have nominated her, but as a candidate I would have voted to confirm her. Her relative effectiveness or readiness to perform the duty of SG is debatable, but there can be no question that she has shown a relative competence sufficient to perform her job.

The video are interesting, as moving-pictures of the Justices always are for this blogger, but don’t really reveal anything particularly scandalous. You can hear about Justice O’Connor and Justice Ginsburg grappling with the always-important issue of proper Judicial attire, but for the most part the Justices stick to the script. The full interviews, which will be broadcast in batches throughout the first week in October, should provide some interesting insight into the Court’s functions at this critical time in it’s history. The video published yesterday features interviews from Chief Justice Roberts, Justice Kennedy, Justice Thomas, Justice Ginsburg, Justice, Breyer, Justice Alito, and Justice O’Connor.

As always, its hard to read too much into this. Is it possible that this was a good strategic move from Justice Stevens to hedge against Justice Ginsburg’s health? If she remains in good health, he’ll quit and won’t have an overflow of clerks. If Justice Ginsburg decides to retire at the end of the term, she’ll be able to quit and Justice Stevens will take her clerks. If nothing else, he can evaluate his position a few months from now and hire his clerks in the spring.

The SG has historically had an incredible high success rate when asking the Court to review a lower Court’s decision (around 75%, according to Richard Parcelle in Between and Politics). Even when acting as the respondent in a case, the SG is said to have a success rate around 50%, despite the fact that the Court traditionally reverses around 75% of cases.

I’ve probably said it before but I’ll say it again: I’m a big fan of the Green Bag and I’d recommend it to anyone who is a law nerd or aspires to be one. If you’re more into the political side of things, you can check out the FantasyLaw website here. Registration for the new season starts in a few months.

The article does note however, that Olson has won 44 out of 55 cases, which is an incredibly impressive record. I have to mention though, that many of those cases came while he was the SG for a conservative President and before a fairly conservative Court. His record reminds me a bit of Thurgood Marshall’s record of winning 29 out of 32 cases, although many (most?) of his came while he was counsel for the NAACP arguing against a hostile Court.

The case will be the first heard by Associate Justice Sonia Sotomayor––and it should be one that she feels very comfortable with. Back in May, the New York Times noted that Sotomayor, who was appointed by New York City Mayor Ed Koch in 1988 to be one of the first members of that city’s Campaign Finance Board, has long been interested in issues of campaign finance. Although the finance regulations that govern New York City politics vary considerably from federal rules, Sotomayor’s experiences on the Board will surely make her a valuable resource to the Court as it considers whether FEC regulations apply to the film Hillary: The Movie.

Unlike Souter, who was relatively inactive towards the beginning of his tenure, Sotomayor is expected to be a vocal presence on the high Court from the very beginning. Perhaps she will even author the opinion (or, more likely, the dissent) in Citizens United.

An aside: I can’t help but notice that Sonia Sotomayor is the only Justice to have been personally and professionally involved with a campaign finance commission. Perhaps the time she spent serving as “a wise Latina woman” on a Board that was in part tasked with encouraging minority participation in local politics was just the sort of experience she was referring to back in 2001…

Arguments in this case should be interesting. How often do we see three all-star advocates battling it out over an issue of enormous consequence in front of a new Justice during a special hearing?

Reply briefs are due this coming Wednesday.

Justice John Marshall warned every new member to avoid contact with two people,a leper and the President of the United States.The more dangerous being the President that appointed you .

I’ve never heard that quip and I’ve certainly never heard one like it attributed to Marshall. I would assume that he was fond of the President who appointed him, John Adams, as he served as his Secretary of State for a period of time. Perhaps he gave this advice only to later Jefferson and Jackson nominees?

Has anyone else heard this story? Does anyone know more about the context in which Marshall used it?