The Supreme Court is deep into its summer recess, but that does not mean the work of the court comes to a halt.
Briefs in the fall cases are flowing in, and the justices convene from time to time — electronically, it is safe to assume — to issue routine orders. It is even possible the justices will grant review in new cases over the summer. Could the Defense of Marriage Act cases be among them?
Thanks to Justice Antonin Scalia’s book tour, the court is still very much in the public eye. Scalia has done provocative interviews with CNN, NPR and C-SPAN. In one, he even revealed his favorite pasta dish. On July 25, retired Justice Sandra Day O’Connor testified before the Senate Judiciary Committee on the benign topic of the need for civic education, fending off efforts by her questioners to get her to talk about more controversial matters.
And the commentariat continues to analyze the Affordable Care Act cases, even as the Congressional Budget Office analysis of the decision concludes the Supreme Court ruling may have saved taxpayers some money.
Here are reports on some recent court-related developments, large and small:
As it does from time to time, the court on July 23 appointed a lawyer to argue, “as amicus curiae,” a position that neither of the parties in a case wants to espouse.
The justices named Harvard Law School professor John Manning to argue in Sebelius v. Auburn Regional Medical Center, a case that the court granted in June but has not yet been scheduled for argument. It involves the statutory deadline for hospitals to appeal Medicare payment decisions.
Manning will, according to the court’s order, argue that the 180-day deadline at issue can never be extended. That position was not exactly abandoned by the named litigants. Instead, both parties argue that the deadline can be extended under different circumstances.
Often, in cases like this, the court appoints a former clerk who has never argued before the high court — usually a clerk who worked for the justice from whose circuit the case arose.
The Manning appointment departs from that pattern. The case emanated from the U.S. Court of Appeals for the D.C. Circuit, whose circuit justice is Chief Justice John Roberts Jr. Manning was a 1988 clerk to Scalia. And Manning is no novice at the lectern. He argued eight cases at the high court in the early 1990s, when he served as assistant to the solicitor general. His time in the SG’s office overlapped with Roberts’ tenure as deputy solicitor general.
Manning, a conservative scholar, also has connections to Justice Elena Kagan, who hired him at Harvard Law School as part of her effort to diversify the faculty, ideologically speaking.
JUSTICE GINSBURG: THE BOBBLEHEAD VERSION
Supreme Court aficionados will soon have to make room on their office shelves for the latest bobblehead from the Green Bag. Justice Ruth Bader Ginsburg is the subject of the newest creation of the law review’s editor-in-chief Ross Davies.
As usual, the bobblehead itself — and the likeness of Ginsburg is very good — is only one element in a complex representation that is full of references to the justice’s work. Ginsburg is a major figure in legal and Supreme Court history, Davies said, and the bobblehead represents her legacy.
The mini-Ginsburg stands atop a miniature Volume 518 of United States Reports, where her landmark decision U.S. v. Virginia was published. That 1996 ruling struck down the all-male admissions policy of the Virginia Military Institute. At her feet is a small layout of the parade grounds at VMI, where graduation takes place.
Under her left arm is a copy of Samuel Johnson’s dictionary dating back to 1785, which Ginsburg quoted in the 2003 copyright case Eldred v. Ashcroft.
Ginsburg’s right hand is connected to an object that evokes a case in which she wrote a famous dissent: Ledbetter v. Goodyear, the 2007 Title VII equal-pay case that led Congress to pass a corrective statute in 2009. The object is a safe, adorned by a lily (the plaintiff in the case was Lilly Ledbetter). Inside the safe is 13 cents, representing the fact that Ledbetter was paid 87 cents for every dollar paid to her lowest-paid male colleague. And the safe will be marked with a tread from a Goodyear tire, symbolizing the fact that Ledbetter worked at a tire plant.
And there’s more: The box in which the bobblehead will be shipped will be lined with a photo of several volumes of the classic Federal Practice and Procedure by Wright and Miller. “Justice Ginsburg is known as a procedure person,” Davies explained.
As with all eight of the previous bobbleheads of living justices, Ginsburg’s has already been delivered to her chambers. Davies won’t reveal her reaction, if any. Eleven hundred of the Ginsburg bobbleheads have been manufactured, but don’t look for them in a store or online. They go only to current subscribers to Green Bag. Next in line is Justice Stephen Breyer.
SCALIA’S FAVORITE PASTA
The court has remained visible this summer in the form of Scalia, who is doing numerous media interviews to promote the new book he and Bryan Garner wrote, Reading Law: The Interpretation of Legal Texts. Ordinarily, the justice loathes cameras, but they become his friend when the interstate commerce of books is involved.
In his July 18 interview with CNN’s Piers Morgan, Scalia knocked down reports of squabbles with Roberts over the health care decision. “You shouldn’t believe what you read about the court in the newspapers, because the information has either been made up or given to the newspapers by somebody who is violating a confidence, which means that person is not reliable,” he said. When pressed to state whether he and Roberts are “best buddies,” Scalia demurred: “My best buddy on the court is Ruth Bader Ginsburg, has always been.”
One less-noticed revelation from the interview came when Morgan asked Scalia to name his favorite pasta dish. Scalia paused and said, “If I had to pick a favorite, there is a Sicilian dish with sardines and fennel. You can buy the yellow can. And it’s very good.”
He was referring to pasta con sarde which, in addition to sardines and fennel fronds, often includes pine nuts and raisins or currants. Those yellow cans have gathered dust in the pantries of many Italian-American households for years. Pasta con sarde is an acquired taste.
Without being asked, Morgan said his own favorite was pasta Bolognese, which is pasta with a meat sauce.
“If you ever sentence me to death, that will be my last meal,” he said. “Not a bad way to go,” Scalia conceded.
Tony Mauro can be contacted at email@example.com.