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The Year in Opinion

December 24, 2012

If law clerks were the source of the leaked information (and there is some speculation that clerks may have leaked information about the case prior to the decision), then they have clearly violated the code of conduct. But what if the leaks were made at the behest of a justice? This does not exonerate the clerks, since the code provides that their duty of confidentiality applies to both their individual justices and the court as an institution.

AFFIRMATIVE ACTION

ALAN B. MORRISON
Lerner Family Associate Dean for Public Interest and Public Service Law, George Washington University Law School(November 5)

On October 10, the U.S. Supreme Court heard oral arguments in Fisher v. University of Texas, the latest in a series of cases in which the court has struggled to decide whether universities that are attempting to increase the numbers of African-Americans and Hispanics in their student bodies have gone too far and thus violated the equal protection clause of the Constitution.…

The presence of the large number of amicus briefs, presenting a wide range of views on all sides, might suggest to the court that it has enough information to be able to craft a sensible solution. To the contrary, an examination of even a few of those briefs demonstrates that there are stark policy choices to be made, based on which arguments one finds most persuasive and which studies are most reliable. Those are exactly the kinds of choices that are much more appropriately made by an open process conducted by the other branches of government, in this case the Texas Legislature, working in conjunction with the governor, the board of regents of the university, and those in charge of undergraduate admissions.…The Texas holistic approach is a modest and reasonable means to supplement the top 10 percent law for undergraduates at the University of Texas. If the Supreme Court concludes otherwise and does not end all racial preferences, it should write as narrow an opinion as possible, leaving open other avenues to achieve diversity.

THE ELECTION

RICHARD HASEN
Chancellor's Professor of Law and Political Science, University of California, Irvine School of Law (August 27)

What's changed since 2000 about election-related litigation? To start with, there's much, much more of it. When I first started teaching Election Law in the 1990s, the off-season for election disputes was all the time except for the fall in even-numbered years. These days, it is hard to keep up with all the litigation filed every year (though it peaks in presidential election years). I track the court action on the Election Law Blog, and I've posted more than 30,000 items since 2003.

In the period just before Bush v. Gore, courts in the U.S. collectively decided on average fewer than 100 election-related cases per year. Since 2000, that figure has more than doubled, to over 230 such cases nationally per year. Candidates are litigating early and often.

RUTH V. MCGREGOR AND RANDALL T. SHEPARD
Respectively, a retired chief justice of the Arizona Supreme Court and retired chief justice of the Indiana Supreme Court (October 22)

For more than a decade, special interests have engaged in increasingly partisan efforts to tilt the scales of justice, spending tens of millions of dollars to elect judges whom they believe fit their political beliefs. Now these assaults on America's courts are expanding in troubling new ways and in dimensions we have never witnessed.

In states as dissimilar as Florida and Iowa, interest groups are seeking to oust judges because they disagree with a few rulings in controversial cases. By focusing on retention elections — a historically low-key vote focusing on judges' professional qualifications — these groups have threatened to puncture a protective shield that keeps politics outside the courthouse.…

We were initially appointed by Repub-lican governors to our respective supreme courts. Voters granted us retention multiple times. We have no political agenda in speaking out. Rather, we fear that our courts are under fire for doing their job — and that political attacks today threaten to interfere with judges fairly and impartially following the rule of law tomorrow.

Transforming judicial elections into referenda on a few rulings in controversial cases threatens this impartiality. It creates a profound risk that Americans seeking a fair day in court will instead get caught up in the nation's political wars.