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Reading the Roberts CourtFour advocates discuss the Court's first full term under Roberts and the emergence of Kennedy
The first full term of the Roberts Supreme Court was a blockbuster, viewed by many as a historic turning point. Legal Times held a panel discussion, moderated by Supreme Court correspondent Tony Mauro, to analyze the arguments and opinions. Four leading high court advocates offered candid views on a variety of topics, including how it feels to have Justice Scalia all over you "like a cheap suit," why it's Justice Kennedy's world and we all just live in it -- and which cases to watch for next term.
Legal Times2007-08-17 12:00:00 AM
The first full term of the Roberts Supreme Court was a blockbuster, with major rulings on abortion rights, school integration and campaign finance reform.
The Court's conservative wing was victorious in most of the key cases, leading many commentators to view the term as a historic turning point. What was the significance of this past term, and what lies ahead? What are the implications for arguing before the Roberts Court? Debate has continued through the summer over those and other points about the 2006-07 term.
On July 11, Legal Times held a panel discussion at the Georgetown University Law Center to analyze the Court term. Each of the four panelists -- Michael Dreeben, Eve Gartner, Thomas Goldstein and Jeffrey Lamken -- had argued at least one case to the Court in the term just ended. Also hosting the event were West, a Thomson business, and the law firm of Jenner & Block. Legal Times publisher Ann Pelham and Jenner & Block partner Paul Smith opened the event and Legal Times Supreme Court correspondent Tony Mauro moderated the discussion.
The transcript, edited for length and clarity, follows. The panel discussion was taped by C-SPAN; check the Web site (www.c-span.org) for the air date and video archives.
TONY MAURO: Tom, as keeper of some of the most informative statistics about the Court, could you give us a sense from the numbers that you've collected about how much of a change we've actually seen this term and what the contours of the change are?
THOMAS GOLDSTEIN: The term, everybody knew going in, was going to be fascinating because we had this incredible transition from Justice [Sandra Day] O'Connor, who had been our so-called swing vote for many, many years. Everyone had been very focused on her. With her departure and the arrival of [Justice Samuel Alito Jr.], and also [Chief Justice John Roberts Jr.] for William Rehnquist, there was a sense, of course, that Justice Alito was more conservative than Sandra Day O'Connor, and that John Roberts was, in a sense, the protégé of William Rehnquist, and so they would be pretty similar ideologically. But we didn't have a firm grasp on it.
And while they had both been on the Court, obviously, for at least part of the previous term, the Court last term, you may recall, had ducked a series of the very big, high-profile, hot-button issues, resolving a big abortion case on the question of whether or not the remedy was right.
They really hadn't gotten deep into it, so this was the big test term, and here is what we found, first from the perspective of the numbers and then using the race cases to illustrate how the Court was functioning and where it went.
In the 2006 term you could look at useful numbers in terms of how divisive the term was and how divided the Court is, where it was headed ideologically and who was in charge, the sense of who was in the majority most of the time.
In terms of divisiveness, the Court this term, in one-third of its docket, divided 5-4, where a single vote made all the difference. That number is the highest that it's been in a decade, so it was a divisive term by that measure.
The number of unanimous opinions, that is to say without even a concurrence, where there is one opinion for the Court, that was one-quarter of the docket, the lowest number in a decade. So by another measure the Court was more fractured than it has been in the past. Not hugely so; the number of 5-4 cases picked up over the modern historical average, the number of unanimous cases kicked down. There were fewer pluralities, it is fair to say.
John Roberts had said in his confirmation hearings that one of his goals was to get clear decisions, and by and large, with the exception, actually, of the race cases, the Court managed to do that. There were plurality opinions where three conservative justices would say, "We would go this far," and Justice [Antonin] Scalia and Justice [Clarence] Thomas would say, "We'd put our foot on the gas pedal; let's go all the way." You might get two different rationales for the same result, but you wouldn't really call that a plurality. You knew what the rule was.
In terms of ideology, for the 24 5-4 decisions, the highest percentage by far, 13 of those cases, were decided by a conservative majority. That is to say, Justice [Anthony] Kennedy and everybody to the right of him: Roberts, Alito, Scalia and Thomas. Six of the cases were decided by Justice Kennedy joining the more liberal members of the Court. That is the second-lowest number of wins for the liberal wing of the Court in the last 10 years, and so it fared pretty poorly. The biggest cases, with the exception of the global warming case [Massachusetts v. Environmental Protection Agency] really all went, to the extent they were decided on ideological lines, for the conservatives. So I think, ideologically, it is quite clear by the numbers that the Court took a genuine step to the right.
In terms of who is in charge, Justice Kennedy is in charge. Don't have any doubts about this. If Justice Kennedy ever tells you you must do something, you must comply. In the 24 5-4 decisions, he was in the majority in all of them, every single one. In the 72 cases decided this term, he was in the majority in 70. Two times, I don't know, he just felt like dissenting. You know, just to mix it up a little bit.
It is his world, and you just live in it. And that is a dominant, dominant theme. We were unable to identify in modern historical terms any sort of parallel. If you look to Justice O'Connor, for example, and we used to think of her as holding sway in the Court, she would be in the majority in roughly two-thirds of the 5-4 decisions over the last 10 years. Justice Kennedy, for his part, by the way, was in the majority one-half to two-thirds of the 5-4 decisions over the last 10 years. Suddenly, it is all of them.
There has not been a term since the mid-1960s that a justice dissented two or fewer times, and so that really gives you a sense that Justice Kennedy's vote is more centrally important than any other justice in the history, the modern history, of the Supreme Court.
MAURO: How did the school race cases [Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education] fit into this picture?
GOLDSTEIN: Just to rehearse for you what happened, Seattle and Louisville had voluntary integration programs that were intended to address de facto, not de jure discrimination. That is, these were not currently attempts to respond to histories of purposeful segregation in the schools. Rather, these are non-neighborhood school programs so that you don't go just to your local school, you can attend a different school throughout the district. The district had adopted a scheme that says, "Look, our basic goal here is to keep the racial proportions within the schools roughly the same within wide bands of the racial proportion in the district as a whole."
Those programs had been challenged pretty widely as race-based government decision-making in violation of the 14th Amendment guarantee of equal protection of the laws. Three in a row had been challenged, one from Lynn, Mass., and these two, and they had all been upheld by the Courts of Appeals.
The Lynn, Mass., case came to the Supreme Court in Justice O'Connor's last term, and the Supreme Court denied cert. Justice O'Connor leaves, Sam Alito arrives, and the Court grants cert in both of the cases with no circuit conflict. That is a fairly aggressive move for the Supreme Court.
Well, the Court decided the cases 4-1-4. This is the one time where we have a true plurality opinion. We have the four most conservative members of the Court and here, I think, we've got the illustration of how Justice Alito is a very solidly conservative vote. He and John Roberts had the highest proportion of agreement of any members of the Court, 89 percent in pure agreement, that is to say, not just in the result but in absolute, complete agreement, every word. They, along with Justice Scalia and Justice Thomas, essentially adopt a colorblind view of the Constitution, that the government should not be in what John Roberts regards as the ugly business of sorting people according to race.
The four most liberal members of the Court find that these programs are laudable as an attempt to increase integration, and, therefore, are completely consistent with the principles of the 14th Amendment. Justice Kennedy ends up in the middle.
Now, I think the bottom line of that opinion is that there really isn't that much difference between Kennedy and the majority, because I don't know of many school districts, and I wrote a brief for the National Association of School Boards, that really can look at each third-grader and say, "You know, I've looked at Kenny's essay, I've evaluated his socio-economic status" in the way that you do with college and law school admissions, right? It is really much more en masse. School districts don't have the resources, and there isn't the background information.
So I think this will present a substantial obstacle to school districts really doing much to account for race. I do think the race case, just to close, does illustrate the Court's step to the right.
If you asked true conservatives, they recognize that the Court took a step to the right this term, but they have an expression of real disappointment or a view of enormous unfinished business that Justice Kennedy, like Justice O'Connor, still presents an obstacle to true doctrinal reform. I think more liberal members of the legal community are dismayed, are basically giving up, saying, "Maybe we should shut the Supreme Court down. Is it really all that necessary?"
There are many, many more questions still to come. The stare decisis [doctrine] in the constitutional area means relatively little these days in particular, and so it opens the door to all kinds of fascinating issues under the 14th Amendment and other constitutional provisions.
MAURO: So the fact that Kennedy in the race cases and perhaps Alito and Roberts in some of the other cases weren't as willing to go all the way as the conservatives were, that doesn't mitigate the point that the Court has still gone very far [to the right]?
GOLDSTEIN: I don't think it does, for there are two different questions about how far you go compared to Scalia and Thomas, for example. And sometimes it's Justice Alito and John Roberts saying, "Not yet."
I think as a practical matter the conservatives in the Court are largely in the same place when it comes to the outcome of cases.
Doctrinally, I think that Justice Scalia and Justice Thomas have the more sweeping vision, the more aggressive vision. They have been in the wilderness, if you will, for a long time, and now that they perceive that they have the votes to correct what they view as serious missteps in the law, they would like to push ahead, but Justice Alito and John Roberts are much more modest in their ambitions in that respect.
MAURO: Now Eve Gartner, on the abortion cases in which you argued [Gonzales v. Carhart, Gonzales v. Planned Parenthood Federation of America], how do you see that decision fitting into this overall theme and how this Court is dealing with precedent?
EVE GARTNER: Just to give you a little background: The Court decided two of the three challenges that had been filed challenging a statute that Congress passed in 2003, the federal ban on so-called partial-birth abortion. All three of the cases that were filed were successful in all of the six lower courts in having the law enjoined and found unconstitutional. This was in large part because the statute that Congress passed is virtually identical to a statute that the Court had struck down only seven years ago in 2000 in a case called Stenberg v. Carhart.
In that case, which at this point we are calling Carhart I, the Court, by a 5-4 vote with Justice O'Connor at that time in the majority, found the Nebraska ban on so-called partial-birth abortion unconstitutional for two reasons. One, because the statute lacked a health exception [for the mother] and two, because the law was found to be so broad as to ban virtually any second-trimester, pre-viability abortion method.
The federal law that Congress passed in 2003 suffered from the identical constitutional flaws that the Court found in the Nebraska law, and, in fact, Congress passed the law very pointedly to create a vehicle for the Court to reconsider its Carhart I decision. So the abortion case, in addition to all the other ways that it presented very interesting constitutional issues for the new Roberts Court, it presented really a kind of test case to see how this Court was going to treat its own recent precedent ...
The Court, as we know, came out the other way, saying, "Yes, Congress can ban so-called partial-birth abortions, even without a health exception." So this shows us where the Court .... that at least in this particular context, the Court completely disregarded its precedent.
A lot of the commentators have talked about how the Roberts Court is taking an incremental approach and they are not going as far as Justices Scalia and Thomas would necessarily like, but at least in this case, this wasn't an incremental approach, even though the Court didn't use the word "overturn."
The other really interesting part of this ruling, and, from our perspective, [a] very problematic part, does relate to what are these state interests that can justify trumping a woman's interest in protecting her own health. For the first time, the Court identifies two interests it has never used before to justify a restriction on a safe pre-viability abortion method. It says the ban can be justified because of the Court's moral and ethical concerns about the use of this procedure.
But this moral and ethical concern rationale flies in the face of Justice Kennedy's own opinions in both Lawrence v. Texas and in Planned Parenthood v. Casey, the 1992 case where the Supreme Court reaffirmed Roe v. Wade as the law of the land despite the view at that point of many that the Court was on the cusp of overturning Roe.
In both cases, Justice Kennedy had written that the job of the Supreme Court is to define the liberty for all, not to state the moral code of a few. But now we have the moral code of five justices, the current five justices, trumping the woman's interest in her own health. And there is no real limiting principle to this moral and ethical concern rationale, because if the moral and ethical concerns of these five justices that voted in the majority today can justify a ban on one method of abortion, well why can't the moral and ethical concerns justify a ban on all abortions? There is just no limiting principle there whatsoever.
MAURO: Michael Dreeben, how do you see these trends playing out in the criminal cases of the term? I know you had one adversary who died while the case [Claiborne v. United States] was pending.
MICHAEL DREEBEN: And he still managed to win the case. So that sort of sums up the criminal term for me this year. I think we've heard some of the themes that Tom and Eve have articulated here for characterizing the term that we've just finished.
One, of course, is the role of Justice Kennedy and the arguable ascendancy of the conservative wing of the Court.
So if you ask me how those themes played out in the criminal docket, I would say that to an extent, the criminal docket was a microcosm of some of these larger issues, but it also is a good illustration that the Court is a very complicated institution. I couldn't even begin to multiply the number of mathematical possibilities when you have nine different justices, each one applying his or her own philosophy, and not necessarily consistently, in an effort to produce opinions. So what I will illustrate in the criminal docket is that, yes, some of these themes were there, some of them were not, but the Court is actually a much more complicated and, in some cases, less clearly definable ideological institution than the hot-button social cases would lead somebody to believe.
Now, just by the numbers, I count 21 criminal or criminal-related cases on the Court's docket out of the 72 total that it decided. I know that Tom's blog counts them a little bit differently.
That's a large percentage of the Court's docket, and yet what is noteworthy about this term is that there were really no blockbuster cases in the criminal area.
There were some ripples and some interesting cases, but it shows the Court more at work in shaping an area of law, trying to make things work, playing out over time with its own internal disputes. In those cases, though, a very high percentage were 5-4 decisions -- I count 11 -- so more than half of the Court's criminal docket was decided by a 5-4 majority.
I really would say, in this area you can see liberal frustration boiling over, with the exception of the cases where Justice Kennedy decided that Texas needed to be reminded that the Supreme Court was in charge, as opposed to its own way of looking at the law.
The criminal defendants did not do too well in the 5-4 cases that the Court decided, and increasingly, the liberal justices were expressing some frustration. Justice [John Paul] Stevens announced his dissent from the bench in one case, involving jury selection in a capital case, which he felt unduly skewed capital juries toward death sentences, and in some of the other cases he also wrote very strong dissents. It was very unusual to see him writing that many dissents in one area.
But it is also, I think, noteworthy that defendants did actually win some pretty significant cases in the criminal area.
In a unanimous opinion [Brendlin v. California], the Court ruled that when police stop a car and you are a passenger in the car, the police have stopped you, too, for Fourth Amendment purposes. And this is a case where the laws of physics and common sense happen to align with the Constitution, at the expense of the State of California this time.
And all nine Justices agreed that they would feel stopped if a police officer stopped them and they were a passenger in the car, so that should be national law.
Now, what about access to the courts? This was an area in which the cases on the criminal docket got a lot of attention. Perhaps one of the sleeper cases of the term, the most unusual case to get a lot of attention [Bowles v. Russell], was the question of whether filing a notice of appeal late creates a jurisdictional bar to a court of appeals hearing an appeal. I mean, this is something that, you know, grips the nation regularly, and when I go out, people ask me about this case.
And I have to explain that it involves certain statutory requirements and when you have to file a notice of appeal, and by that point they are all asleep. But what got the public's attention, I think, was that the case involved a situation where a judge made a mistake and he told the defendant that the defendant had 17 days to file his notice of appeal. He really only had 14 under federal statute.
The defendant, relying on that extra time and doing what all good lawyers do, which is to wait until the very last moment to do anything, filed it on the 16th day, and the Supreme Court, by a 5-4 decision, holds "No, you can't rely on the judge's word and let it trump what Congress said. You're out of luck. No matter how meritorious your claims are, it is just too bad, so sad, move on."
Justice [David] Souter wrote a dissent. He was very upset about the sort of bait and switch, as he saw it.
There were other cases in the criminal area, one [Lawrence v. Florida] involving a state capital defendant who was shut out of federal habeas corpus because he had taken the time to try to seek Supreme Court review from his state decision, and the Court said, "Sorry, you can't do that if you want to preserve your rights under the statute of limitations for federal habeas."
In the capital area as well, the Court denied hearings to several defendants, including several defendants out of the 9th Circuit, which is traditionally to the left considerably of the Supreme Court. But there were exceptions.
In the Panetti [v. Quarterman case, the Court recognized a new right of capital defendants to challenge their competence to be executed, pretty much at the time that they discover that they are, in fact, going to be executed and have developed incentives to lose their competency. Justice Kennedy wrote for the majority. This was a 5-4 decision. He crossed over and joined the liberals, and he sort of maneuvered around a number of jurisdictional obstacles that would have kept Panetti out of court, according to the dissent, and he recognized this new right.
MAURO: Now Jeff Lamken, this term has been declared as a very good term for business. We've also heard over the years that a conservative Court doesn't always mean a pro-business Court. But was this a term where business finally got both a pro-business and a pro-conservative Court?
JEFFREY LAMKEN: I think on the whole the results were good, but I don't think you can line up, even in this case, pro-business with conservative. In terms of the business community, I would caution: On the one hand, avoid irrational exuberance. A lot of good cases for you this year, but you don't know what is going to happen next year, because these cases very much tend to turn on their individual merits.
And in these cases, you also have to recall that very often there is business on both sides. If you happen to be a business that had a marginal patent, as in KSR [v. Teleflex], it wasn't a very good year.
If you happen to be a business that was put out of business by a competitor that you claimed engaged in predatory bidding [Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co.] -- not a very good year.
If you happen to be a business that was litigating against the government, claiming that its administrative damages claims were stale [BP America Production Co. v. Burton], which is the case I lost -- not a good year.
And there's a case called Microsoft v. AT&T. For Microsoft, it was a good year, setting aside the Xbox at the moment. For AT&T, not so much.
So you've got business on both sides in a lot of these cases, but generally the guy who won was the one who was on the defendant's side of the "v.," not the plaintiff's side.
And in general the business community likes the Court to be pro-defense, as opposed to pro-plaintiff, because that is where the business community finds itself. But there is no real reason to think there is that much difference between this Court and the Rehnquist Court, at least from what I can see.
If you look at the punitive damages case, which is the Williams v. Philip Morris case, it was one of the few business cases that lined up 5-4. But if you look where Alito was, he was in the same place that Justice O'Connor was in similar punitive damages cases.
If you look at where the chief justice was, he was in the same place where Chief Justice Rehnquist was in many of the punitive damages cases.
The switch in that case was actually Stevens, who was generally in the majority voting with business against punitive damages. He switched over to the dissent in that particular case. And so if you look at the lineup, it doesn't look like that much of a switch, but the lineup also shows you one thing, which is: Conservative doesn't mean pro-business.
I'm sure that Scalia and Thomas are very pro-business. They may even believe that what is good for GM is good for America, but they just read the Constitution differently than the majority. And business or not, they're not going to vote for them. In the "Bong Hits 4 Jesus" case [Morse v. Frederick], the student was going to lose if it said "Bong Hits 4 Ford." Conservative doesn't mean pro-business, necessarily.
MAURO: I want to get you to talk about what it is like arguing at the Roberts Court and how it was this term. And how you strategize. Is it all about Justice Kennedy? Let's start with Tom.
GOLDSTEIN: Well, I do think that the Court in oral argument has changed considerably in at least one way, and that is, I think for the first time the Court has an aggressive, solid, conservative questioner in John Roberts. That's not to say that the Court didn't have aggressive conservatives beforehand, but Justice Thomas, of course, almost never asks questions. Justice Scalia, you never quite knew what you were going to get; you could get the devil's advocate, Justice Curmudgeon, he could be sort of joking. It was unclear.
MAURO: He toys with everybody.
GOLDSTEIN: Yes, and the late William Rehnquist asked much more pointed questions. He had very particular lines, like "What is your best precedent for that?" and "Did we ever really say that?" Whereas John Roberts can ask you seven questions in a row that are very, very focused. That's not to say that he asks questions only from an ideological perspective -- I don't mean to say anything like that -- but he's obviously an incredibly smart guy. He has enormous experience from his time as an oral advocate in the Solicitor General's Office and in private practice. John Roberts really can come at you and ask what, for me, are very embarrassing questions.
MAURO: He asked you one of those this term, right?
GOLDSTEIN: Yes, well, he asked me a few of those. In order to make a point, he asked me in the KSR case when I answered a previous question about how something would be resolved by expert testimony, he asked -- and this was a case about the standard for determining whether an invention is obvious and, therefore, not patentable -- "What sort of expert do you get on that, the question on whether something is obvious, the most ignorant person you can find?" Everybody in the courtroom, except me, thought that was really funny, too.
MAURO: Eve, you had a different experience?
GARTNER: Well, I think I am the only one on this panel who has only argued before this Court, so I don't have any basis for real comparison. You know, for us, everything was about Justice Kennedy. Even though we knew he was our only hope for a fifth vote, we also knew that he was against us, because he had written the dissent in the first Carhart case. So going in, we basically knew it was a lost cause.
He actually was, but we were completely focused on him and I have to say during the argument he was incredibly, much, much more open to our arguments than we ever thought that he would be. He actually seemed, in his questioning of [Solicitor General] Paul Clement, to be really taking our side, giving him a little bit of a hard time: "What about sick women, what about women with cancer?"
The Court ultimately concluded that our case shouldn't have been brought, that women should wait until they are literally at the point of needing a banned abortion to bring suit. He actually made the case to Paul Clement [during oral argument], "Well, that wouldn't make any sense if women had to wait until they were sick, because she's in the hospital, and it takes judges time to digest all of the papers. And if she needs the abortion right away, there wouldn't be enough time." So we actually had the impression in the argument that he was at least open to where it went, and it was actually a pleasant experience arguing. And a less pleasant experience reading the actual opinion.
MAURO: What do you think happened?
GARTNER: Wait another 20 years, until someone's papers are really opened.
LAMKEN: I actually got to argue before a seven-justice panel this time, because the judge below who wrote the opinion was named Roberts, and so he recused himself, and Justice [Stephen] Breyer recused himself.
And it struck me that the one thing I noticed is you actually get time in rebuttal, which is something that you didn't used to get with the Rehnquist Court, and I think that may be a rule that Chief Justice Roberts has been enforcing.
The other thing that's notable is, it is increasingly important to keep Justice Scalia off your case so you don't lose Justice Kennedy. I do remember arguing one case where Justice Scalia was all over me like a cheap suit and trying to get me to take a very extreme position that he agreed with and virtually no one else would agree with. And much of the battle was for me to say "Please, please don't make me say that; I need other votes besides yours." At one point, Justice Kennedy asked a question, and Justice Scalia then proceeded to answer it in a rather abusive fashion. I just watched Justice Kennedy turn redder and redder, and I'm thinking, "There goes my vote, there goes my case."
So, I think, the advocate part of it is trying to make sure that you actually get an opportunity to answer the question and that you don't lose justices because some other justice is of the view that isn't quite so calibrated to getting five votes, trying to use you as their vehicle for pushing their views.
MAURO: Michael, you've had the most experience up there. How is it different?
DREEBEN: I'm not sure that it is different. Oral argument in my view is, and always has been, about the justices basically taking each other's measure and using the advocate in various ways, some of which are not very flattering. Sounding board. Whipping boy. Piñata.
I do think what I've seen a little bit more in this term is the aggressiveness with which the justices are talking to each other through the lawyer. Justice Breyer has long been known for his elaborate questions, but a lot of his questions this term were very impassioned speeches that nominally finished with a question mark. Then he would look down at his colleagues on the bench to see how they were reacting and see whether anybody noticed that there was an advocate still there.
I've also noticed this term the frequency with which one justice has answered another justice's question, and that can get into the kind of embarrassing dynamic that happened to me in arguing the federal sentencing case, Rita v. United States. Justice Breyer delivered his by-now-standard spiel on why he thinks the Court's jurisprudence makes no sense. Justice Scalia rose to the occasion and answered him and explained why it did. Justice Breyer got rebuttal in, and Justice Scalia got surrebuttal, and I felt like waving my hand and saying, "You know, I'm here too." Then they did it to my opponent too. They were just having such a good time.
MAURO: I've always wondered, when you see this sort of tennis game in front of you, the justices talking to each other at length, what do you think? And are you thinking, "Well, maybe, this is a good thing that they work this stuff out in front of me"? Or is it just awful?
LAMKEN: I think the answer is no way. When you get up there, you've carefully planned. You've carefully calibrated. You've choreographed your answers, your spiel. You know what questions you want to draw. How to answer them. How to transition to another point. When the justices take over, you don't have that control anymore.
DREEBEN: I do think that it's an opportunity, as most of the oral argument is, to get a window into what they are thinking, and when you see them clashing with each other, it sharpens where you might be able to go to find some common ground or at least answer the concerns that have been raised. If they forgot you're there, however, that's bad.
MAURO: We have time for questions. We would love to have questions from the audience for these advocates.
SPEAKER: This is mostly for Eve, or anyone who could answer it would be great. What consideration was given to making a commerce clause argument against the partial-birth abortion law?
GARTNER: I think there would be one vote on the Court to strike down this law on the commerce clause issue, and that is Justice Thomas and Justice Thomas alone.
The statute that we challenged has a jurisdictional hook -- it is limited to abortions that are in or affecting interstate or foreign commerce. There was a claim made throughout the case in the amicus brief on the fact that it injected vagueness into the statute, because when a doctor begins to perform an abortion procedure, how does he or she know if it is in or affecting interstate commerce? I think if and when doctors are actually prosecuted under this statute, that will be an issue that will be litigated in this context of a particular prosecution.
MAURO: So strategically, going into the argument, you decided you were not going to make a federalism argument?
GARTNER: We did not make the federalism claim because we didn't think that it was a winning claim, but we did make the claim that the statute doesn't give doctors fair notice, because who knows whether a particular abortion is in or affecting interstate commerce? The Court never reached that claim.
SPEAKER: The chief justice, during his confirmation, said as a former practitioner that one of the things that he would look at was how many cases are on the docket, implying that maybe he would try to get more cases, but I think this year was a record low, or at least close to a record low. Next year is looking to be a new record low, based on what they've done so far. Was that just confirmation talk? Did the chief justice underestimate how hard it is to get four votes? Do you think it will turn around? Any thoughts on that?
DREEBEN: Well, speculation about the size of the docket is rampant among the Supreme Court Bar, but there are only nine people who actually know what's going on, and they haven't told us, literally. The Court is probably concerned about keeping the docket up and having enough cases. They granted a lot of cases for their April session last year, more than they had for other sessions, and they pressed hard on the advocates to get the briefs done in order to keep the numbers up. So I think they are conscious of it.
As for the chief justice's statement during his confirmation, things may just look differently to him now that he's evaluating, on a case-by-case basis, is this case an appropriate vehicle for the Court to grant review?
There have been any number of theories as to why the Court's docket has dropped: ideological agreement with the lower courts, as more Republican appointees have rendered decisions that the Court agrees with; the absence of major new statutory initiatives by Congress that have given rise in the past to litigation; and I suspect you'd get half a dozen other reasons from other people who watch the Court. I suspect that over time the Court will return to the numbers that we have seen in the last few years. I doubt that we will see in the time that I'm practicing a return to what the Court did in the '70s and '60s, of 150 cases a year.
LAMKEN: I couldn't guess why this is happening, unless they just sort of lost count somewhere along the way. There are rumors that Justice O'Connor was the statistician and sort of rounded them up to try and get them to grant cases to keep the docket going, and when she left, they sort of lost track, and it fell off.
I don't know anything "inside baseball" of that to be true, but for those of us who like practicing before the Court, watching this trend down toward the 60s is pretty bad. We're hoping it goes back up.
MAURO: One of the prevailing theories, also, is the timid law clerk theory, under which the idea is that as the influence of law clerks in screening incoming cases has increased, their reticence about recommending that the Court grant cases has also increased. They don't want to be the single clerk who messes up and encourages the Court to take a case the justices later discovered is flawed or not the best vehicle for deciding that issue.
In an interview I was able to do with Justice Alito in January, I asked him about that theory, and he said there was nothing to it all, because he said that if the clerks recommend that they grant the case, the justices will often go against that recommendation, and if they recommend to deny a case, the justices will also go counter to that recommendation as well. So the idea of a timid law clerk being the driving force behind the reduction of the docket really doesn't hold much water, at least in his view.
LAMKEN: For what it's worth, I clerked when there were 120 cases on the docket, and I don't think it is a good explanation, because, frankly, there was nobody more timid than us when I was there, and the Court still found 120 cases.
And frankly, my view is, even in the cert process the law clerks are pretty close to irrelevant. The justices do what they think is right.
SPEAKER: Mr. Mauro, a couple of years ago, you had a very interesting set of articles on diversity in the clerkships, and I was wondering if you could give us an update on the influence of that article and where that stands now.
MAURO: My impression in speaking to some justices is that those articles and the awareness that it created has had some impact on how law clerks are selected. There has been a greater awareness, a greater desire for diversity, and I think overall the numbers have gone up. There still have been dips, like this past term there was an unusually low number of women. That's now come back up for next term. The justices are to some extent the victim of their pool of potential law clerks, who come from this very narrow range of the Ivy Leagues and law review editors. And why that pool, that small pool, contains very few women and minorities, that's a whole other discussion. But I think there is greater awareness among the justices that having greater diversity is a good thing.
SPEAKER: I was wondering if you guys could elaborate on executive privilege, and if issues of that sort were to appear before the Court, given that a couple have been appointed by the current administration, what are your feelings about that?
DREEBEN: The Court is not poised to decide any issues in that area right now, and I think it is probably best to put them in a broader perspective of separation-of-powers issues. The executive privilege claims do arise in the context of the president being able to assert confidentiality of his advisers in order to carry out that office, and it is simply based on the idea that if people knew that what they say is going to be printed in The New York Times or the Legal Times, they'll be less candid with the president, and the nation will suffer.
But it is a balancing process, as are most constitutional separation-of-powers issues. You need to look at whether the functions of another branch will be impaired by that assertion and how focused the assertion of privilege is. So we don't really have anything from the Court since United States v. Nixon, where the Court held that the needs of the criminal process for specific, relevant evidence outweighed the generalized interest of confidentiality that a president might assert in conversations with his advisers. What the Court pointedly reserved in the Nixon case [was] whether Congress would be on the same footing or whether the president's conversations about something like national security might get immunity even if they were needed for the functions of another branch to go forward. So you see the executive privilege assertions that may or may not end up in court.
There are also the state secret privileges that are being asserted in various litigation, including attacks on the [National Security Agency] wiretapping and in some of the enemy combatant cases. None of those issues has yet risen to where I think it is probably ripe for Supreme Court review. If you are generally interested in separation of powers, I think that the enemy combatant case [Boumediene v. Bush] that the Court took at the end of the term is going to pose some very interesting questions.
MAURO: All right, in the time remaining, could we just go down the line and see what cases we should be looking at for next term, either already granted or on the horizon?
LAMKEN: If I'm given the business docket, I'm going to say, you know, I think it is going to be something that comes up later because the business docket looks a little bit boring. There is one case that's called Stoneridge [Investment Partners v. Scientific-Atlanta Inc.] that is the only one that I think is of any import. That's a question of: How expansively is the Court going to be dealing with securities laws, and is it going to think there is aiding and abetting liability without an express aiding and abetting provision?
But, frankly, I mean, geeks like me who like statutory construction think that's fascinating, but I think the rest of the world is not going to think it is the most important case to come down the line.
GARTNER: You know, in terms of the abortion cases, there definitely are cases that are -- that have recently been decided or are about to be decided at the circuit court level that raise interesting questions, but my bet is that the Court is not going to touch any abortion cases for a few years. I don't think they want to get involved with it again. So I don't think there will be anything on our issues.
DREEBEN: It's going to be a big term. The big Guantánamo cases that the Court took at its last official day, really again plunged the Court back into what is the role of the judiciary in policing the executive in the war on terror. And Justice Kennedy will be front and center in those cases. What was particularly unusual was that the Court granted them after having previously denied certiorari.
On the criminal docket -- this is another cliffhanger that the Court left us with, as I mentioned earlier -- that the Court had decided an important sentencing case and it was unable to decide a companion case because the defendant died, probably a few days before the Court would have released its opinion. So the Court took another case to replace that one and granted certiorari in a companion case dealing with whether crack defendants can be sentenced more leniently in federal court because the crack sentences generally under the federal sentencing guidelines are higher than sentences for powder cocaine.
The Court has really laid the table to complete its revolutionizing of federal sentencing, which is a process it has been undertaking now since 2005. So there is a lot to watch for in the criminal area.
MAURO: Thank you all so much. We hope to see you next year.