While browsing the C-SPAN archives for interesting vidoes, I ran across a great one from 1989. The video features Tim O’Brien providing a recap of October Term 1988, which happened to be Justice Kennedy’s first year on the Court. I can’t embed the video, but you can find it here.

There are a few interesting takeaways:

  • O’Brien brags, or at least speaks somewhat casually, about leaking the result of five opinions in the years preceding this video. It would be hard to imagine Tony Mauro or Adam Liptak leaking any opinions, and I’m not sure it is something they’d be wise to speak much about.
  • O’Brien speaks at length about Justice Kennedy’s outsized influence on the term and mentions that it may be one of the most significant freshman terms for a Justice in recent memory. He’s right; Justice Kennedy’s first term on the Court established him as a solid conservative vote. They video is titled “Covering the ‘New’ Supreme Court” and O’Brien makes a compelling argument for why he had just witnessed a “new” Court. In one particularly memorable segment, he mentions that liberals would have been no worse off with Justice Bork than with Justice Kennedy.

You can find another interesting video about OT1988 here: a term recap provided by Justice White at the Tenth Circuit Judicial Conference.

The NLJ recently released their “Minority 40 Under 40” list of the top 40 minority lawyers under the age of 40. Its a fairly arbitrary marker of lawyerly accomplishment, but the NLJ clearly knows how much lawyers love lists. A few Supreme Court litigators make the list.

  • Leondra Kruger – Assistant to the Solicitor general and former Acting Principal Deputy Solicitor General
  • James Ho – Partner at Gibson Dunn and Former Solicitor General of Texas
  • Kannon Shanmugam – Partner at Williams & Connolly and former Assistant to the Solicitor General

The list includes several appellate lawyers – like Brian Matsui and Sarang Damle, for example – and countless Supreme Court clerks.

The Supreme Court denied cert. yesterday in a widely-discussed case revolving around whether a private organization could place memorial crosses at the location of fatal accidents along the highway. The case is Utah Highway Patrol Association v. American Atheists.

Justice Thomas filed a heated dissent from denial arguing that the Court should take the case in order to settle its widely-panned public display jurisprudence. Justice Thomas notes–and has been noting for some time–that the Court’s jurisprudence in this area is considered wildly disjoined by many of its critics and unappetizing to even its most passionate advocates.

I think there is a simple reason the Court denied cert.: the Justices knew this case wouldn’t resolve anything. In theory, this case gives the Court a perfect opportunity to clarify the issue, but after recent forays into the field failed to bring any clarity, there was little reason to believe that this case would bring any much-needed relief. If anything, another disjoined and badly fractured decision would be another egg on the face of an already embarrassed Court. Near misses like Pleasant Grove v. Summum and Salazar v. Buono have done little to convince the Court that this is an area of law that is going to be resolved anytime soon.

The conservatives on the Court do not have the votes to take this area of law in a clear direction, and they remain splintered within their own ranks. Justice Thomas has proven unwilling to compromise on the Establishment making a plurality opinion the best option available, assuming – and these are big assumptions – (1) that the Chief Justice and Justices Scalia and Alito could reach a common consesus, and (2) that Kennedy would join them. It is not hard to see why none of the conservatives on the Court want to touch this issue right now; there is no upside to this case beyond the remote possibility of a plurality opinion.

The liberals on the Court are marginally closer to reaching a consensus to rally around, but this case was an unsavory vehicle to crystalize that view. They might also be nervous about the outcome; Justice Ginsburg was never of fan of Justice Breyer’s quirky jurisprudence in this area and it may be too early to test Justices Sotomayor or Kagan. Justice Breyer would prefer to see his Van Orden decision percolate, and Justices Sotomayor and Kagan may be nervous about the case because Justice Kennedy’s vote could likely swing against them.

So what is the Court waiting for? That question is harder to answer. The Court may be hoping for the federal circuits to toy around with the idea and come up with a consensus on the matter, or the Court may simply be waiting for a change in membership that will lead it in the right direction. In the end, this was a well-done petition in a messy area of law. The Court has dabbled in the area quite a bit recently, however, and this petition doesn’t seem to be the vehicle for cleaning up the intertwined case law on the matter. Justice Thomas correctly noted that the Court has created clumsy precedent but, absent encouraging his colleagues to join his radical approach, he has not proposed a workable solution. In fact, his own inability to compromise may be halting progress more than anything else.

Today’s New York Times article about Paul Clement, “Lawyer Opposing Health Law is Familiar Face to the Justices“, reminds me of an interesting moment that happened at oral arguments a few years ago. The exchange took place in Perdue v. Kenny A. between Chief Justice Roberts, Justice Alito, and Paul Clement, who was appearing before the Justices for the first time after leaving the Solicitor General’s office.

The question in the case was whether the lodestar analysis in a fee shifting statute can be adjusted upwards based on performance alone.

Chief Justice Roberts: Maybe we have a different perspective. You think the lawyers are responsible for a good result, and I think the judges are.

(Laughter.)

Mr. Clement: And maybe your perspective’s changed, Your Honor.

(Laughter.)

Mr. Clement: But I would say certainly in the context of a consent decree, when to give up, when to fight further, is going to be factored into the results. And I think it’s a fair point that a judge in today’s system, especially in the context of class relief like this, sees a lot of cases that end up with a coupon settlement that really doesn’t do any good for the class. They’re –

Justice Alito: Maybe — maybe your perspective has changed too, Mr. Clement.

(Laughter.)

Justice Alito: But your argument is that, you know, for $495 an hour you really can’t get a good lawyer? You need to have — you need to pay more than that?

Mr. Clement: Well, on that my perspective has changed, Your Honor.

(Laughter.)

You can listen to the audio of this exchange below:

Before the November argument kicks off, I should point out a few fascinating oral arguments from the October sitting that are available on the Court’s website (or in a zip file at the end of this post):

Hosanna-Tabor v. EEOC

  • Whether the ministerial exception to the ADA applies to a parochial school teacher.
  • Douglas Laycock (petitioners), Leondra Kruger (federal respondent), Walter Dellinger (respondent)

Golan v. Holder

  • Whether Congress may remove works from the public domain and give them copyright protection.
  • Anthony Falzone (petitioners), Solicitor General Donald Verilli (respondents)

Florence v. Board of Freeholders

  • Whether a prison may conduct blanket, suspicionless strip searches of all new inmates.
  • Tom Goldstein (petitioners), Carter Phillips (respondents), Nicole Saharsky (amicus)

You can get a zip file with the argument from all three cases here.

Attorneys from the Office of the Solicitor General are scheduled to participate in nine out of the twelve cases scheduled for oral argument during the October sitting. In five cases – Reynolds v. United States, Hosanna-Tabor v. EEOC, Golan v. Holder, Pacific Operators v. Valladolid, Judulang v. Holder – the OSG will represent either the petitioner or respondent.

In four cases, the Office of the Solicitor General will argue as an amicus curiae: Douglas v. Independent Living Center, Martinez v. Ryan, Howes v. Fields, Florence v. Board of Chosen Freeholders. The federal government will not participate in oral arguments in three cases: Maples v. Thomas, CompuCredit v. Greenwood, Greene v. Fisher.

Last year, representatives from the OSG participated in 49 of 77 oral arguments (64%), so the fact that the OSG is arguing in 9 of 12 cases during the October sitting (75%), is not terribly unusual. That said, I think a lot of readers would be surprised to see that such frequent participation from that office is the norm.

An Unusually Short Long Conference

The Supreme Court released an order list from yesterday’s Long Conference and, in a surprising move, it granted only seven cases. That number is the lowest since I began recording Supreme Court statistics in 2003. Here is the breakdown for recent years:

However, the Court may have felt less pressure to grant cases at the long conference because it granted an unexpectedly high number of petitions at the end of June. In its final orders list of the year, the Court granted 13 petitions, a record high during the period I’ve been collecting these statistics. Below, I’ve combined the total for the last June conference and the September conference.

So, in the end, there was no need for alarm. This might be a boon for petitioners with cases coming up because the Court is threatening to fall behind its normal pace for this point in the term. Maybe today’s orders list means the Court will be able to give a pitty grant to some unsuspecting litigants?

The news that Mike Sacks has been tapped to become the Huffington Post’s first Supreme Court reporter is notable for two reasons. The first is that Mike did great work at F1@1F and Supreme Court fans should look forward to seeing what he can do as a full-time reporter with resources behind him.

The second, and perhaps more notable reason, is that the Huffington Post now joins a select group of news organizations with a Supreme Court beat reporter. The decision to put resources into Supreme Court reporting (and legal reporting as a whole), is a tacit acknowledgement of the generally poor quality of work that currently exists, and the demand for better and more plentiful reporting. Of course, there are an abundance of exceptions – SCOTUSblog, the New York Times, and the National Law Journal come to mind – and hopefully this move will increase the level of discourse about the Supreme Court. The Huffington Post is an influential source of news, and the Supreme Court remains a largely under appreciated and misunderstood institution. As the Huffington Post slowly devotes more column inches to the Supreme Court, hopefully we will see a subtle increase in the quality of legal discussion around the internet and in the mainstream media.

That said, this may all simply be a shrewd business decision from the Huffington Post. The Supreme Court is heading into a truly blockbuster year and the HuffPost could attract more than their fair share of pageviews by providing high-quality coverage.

Hard to say what the motivation was to hire Sacks, but Supreme Court watchers are the clear winners.

Last week, the Emory Law School Supreme Court Advocacy Project filed two Petitions for Writ of Certiorari. Both seek reversal of decisions from the Supreme Court of Georgia.

On a related note, I promise to begin publishing real posts again now that my first big wave of cert petitions and amicus briefs is over. ELSSCAP will continue working on projects, but hopefully DailyWrit will not suffer a moment longer.

Over the summer, the Emory Law School Supreme Court Advocacy Project filed two merits-stage amicus briefs in the Supreme Court. The students who worked on the briefs were supervised by Professor David Bederman.

Congrats to all who worked on the briefs!



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