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Thanks to Wilmer, Cutler & Pickering, each justice of the U.S. Supreme Court received two copies of two classic DVDs last August. They weren’t a modern-day version of gift-giving or payola to public officials. They were “lodgings” filed by the Washington, D.C., law firm on behalf of its client the Motion Picture Association of America in connection with the copyright case Eldred v. Ashcroft, No. 01-618. The DVDs — restored and enhanced versions of “Casablanca” and “Citizen Kane” — bolstered the association’s argument that extending copyright protection for old works gives film studios the incentive to preserve and market movies that otherwise might fade into oblivion or disuse. It is unknown whether any of the justices watched the DVDs — or even whether they have DVD players. But the days of such offbeat, even quirky, lodgings with the Court are numbered. Under a rule change that takes effect May 1, parties and amici curiae in high court cases may not lodge materials with the Court without obtaining permission in advance from the clerk. They must first submit a letter to the clerk — with copies to other parties — describing the materials and their relevance. The new rule is aimed at curbing a trend that has grown steadily over recent years. Clerk William Suter’s published commentary on the new rule states that parties and amici have “deluged the Court” with stacks of paper, reports, photographs, videos and DVDs that are not part of the record of the case. Court officials say the practice — which can occur both before and after the Court grants review — has gotten out of hand. They say it produces often irrelevant materials that fill up nooks and crannies of the clerk’s office and the justices’ chambers. Lawyers who file lodgings with the Court are advised to send 20 copies — two for each justice and two for the clerk’s office. One of the clerk’s copies is available for public review. “I can understand the clerk’s concern,” says Edward DuMont, counsel at Wilmer Cutler who lodged the DVDs for the movie association. “But there are times when it is useful to get something to the Court that would be otherwise hard for the justices to obtain. It’s just meant to make life easier. It’s not meant to bother the Court. They don’t have to look at it.” The lodging practice has developed outside the rules of the Court for decades; the new rule marks the first time that the Court has officially recognized it. The Office of the Solicitor General has always been first and foremost in using lodgings to advance the government’s cause. Lincoln Caplan in “Tenth Justice,” the 1987 book on the solicitor general’s office, describes the practice of lodging as one example of the special relationship between the SG and the Court because few private practitioners knew about it. Since the official record of a case is not sent to the Court until the case is granted review, lodgings were seen as a way to give the justices an early peek at the record at the petition stage. Any other report or material that would also give the solicitor general a leg up would also be sent in, often surprising other lawyers who were unaware of the practice. Sometimes opposing counsel would object on the grounds that the government was unfairly introducing new evidence or arguments not used below, but it was too late. The material was already lodged. One of the most notorious lodgings by the government was a box of pornographic materials sent to the Court in 1957 in connection with the landmark case Roth v. United States. In the new book “The Trials of Lenny Bruce,” authors Ronald K.L. Collins and David M. Skover recount how Justice William O. Douglas, out of public view, handed out materials from the box to his fellow justices as oral arguments began. “In the very quarters where decorum and propriety were the rule, some of the justices eyed ‘stroke’ mags as they listened to the nuances of American procedural and constitutional law,” the authors write. “If only Lenny Bruce had known, it might have made a great bit.” As much paper as the lodgings generate, sometimes even more trees are felled to fight about the lodgings. Lodgings by the state of California in the three-strikes case currently before the Court, Ewing v. California, No. 01-6978, triggered an objection from lawyers for defendant Gary Ewing. California last August filed 20 copies of lower court materials — more than 300 pages each — that detailed the prior offenses on which the three-strikes sentence for Ewing was based. The material was not part of the trial record, but Assistant California Attorney General Donald DeNicola says it was relevant. “The sentencing judge said she had gone into the archives and pulled out the file, so we felt it would be useful to the Court.” In addition, DeNicola says, Ewing’s brief had made some statements about the past offenses that were “not supported by the record.” Amicus briefs on California’s side cited the material in the lodgings. When Federal Public Defender Quin Denvir, Ewing’s lawyer, saw what had been lodged with the Court, he hit the roof and filed a motion with the Court to strike it. “I felt it was kind of an ambush,” says Denvir. The material had not been considered by the appellate court, so it was not properly before the justices, Denvir adds. “You can’t file an extra brief in a Supreme Court case, so there ought to have been a control on this too,” says Denvir. “Once it was lodged, we were concerned that it would be hard for the Court to close its eyes and not consider it. It is hard to unring the bell.” The Court last October denied Denvir’s motion, and the case was argued in November. DeNicola defended the lodging, arguing that in the context of the case, it was appropriate for the Court to take “judicial notice” of the same material that the sentencing judge had also seen. But DeNicola acknowledged he had some concern about dumping so much paper on the Court — especially when he recently read the Court’s new rule. “I looked at the stack of paper and wondered whether it was me they were talking about.” MARSHALL THE SCHOLAR The late Thurgood Marshall is remembered most often as a civil rights lawyer who became the first black Supreme Court justice. But until now, little has been written about his contributions as a scholar and thinker. Howard University School of Law Professor J. Clay Smith Jr. sets out to augment the record with the publication of a fascinating new collection of Marshall’s writings and speeches, “Supreme Justice,” published this month by University of Pennsylvania Press. “A lot of people look at Thurgood Marshall as a good trial lawyer and a strategist, but not at the same level that the writings of other justices elevated them to,” says Smith. “My vision was that with his writings, he deserved and won the right to be lifted to a higher level.” The genesis of the book dates to a conversation Smith had with Marshall in 1992. Marshall had written a foreword to Smith’s first book, “Emancipation: The Making of the Black Lawyer, 1844-1944,” and Smith, by way of thanking him, said he would compile as many of Marshall’s speeches as he could find. Characteristically, Marshall told Smith there was not much value in what he would find. Instead, Smith tapped into a rich lode of writings by Marshall. The book pulls together some of Marshall’s earliest writings about civil rights, published in African-American publications, along with texts of speeches and panel discussions he participated in over the decades, many of which have never appeared in print elsewhere. Early in the book is a letter by Marshall that is stunning to contemplate: a 1935 job application in which Marshall sought a faculty position at Howard’s law school. Marshall had graduated from the law school himself two years earlier and was working as a lawyer in Baltimore. “There is no information on what happened with the application, but think about how history might have changed if he had become a professor,” says Smith. In a 1959 panel discussion reprinted in the book, Marshall debated civil rights theory with the likes of Yale Law School Professor Thomas Emerson and Princeton University historian Eric Goldman. A 1969 interview on file at the Lyndon Johnson presidential library recounts Marshall’s involvement with Democratic politics and his friendship with Johnson. In the 1960s and 1970s, Marshall expanded his civil rights vision and spoke often about human rights worldwide, as evidenced by several speeches in the book. And Smith includes what may have been Marshall’s most powerful and controversial speech as a justice: his 1987 talk on the bicentennial of the Constitution, given to a conference of patent lawyers in Hawaii. Without contemplating the flaws of the Constitution on the subject of slavery, Marshall said the bicentennial celebration would be a “blind pilgrimage.” Says Smith: “Americans all live by the theories of Thurgood Marshall. The first Justice Marshall, John Marshall, told us what the judiciary had the power to do. Thurgood Marshall told us the judicial system is for everybody.” BREYER, THE STUDENT Another new book sheds unexpected light on a Supreme Court justice. “Pinstripes & Pearls,” by Judith Richards Hope, focuses on the women of the Harvard Law School class of 1964, but one male member of the class pops up throughout: Stephen Breyer. Breyer wrote a foreword, acknowledging that “life as a woman at Harvard Law School was not easy.” The women of the class — 15 out of 513 — “were my classmates,” Breyer wrote. “They are my friends.” He complimented Hope for telling their story with “a sense of humor and a smile.” What Breyer graciously did not gripe about is that some of the humor in the book comes at his expense. Hope writes about Breyer as part of the informal eating club at Harkness Commons that gave the women and men of Harvard Law the chance to meet each other outside class. Breyer reminisces about eating with the women there, in particular Ann Dudley, who, he recalled, wore short skirts and “gorgeous blouses.” Another member of the group remembers Breyer had more than a passing interest in Dudley. When she came into the room one day, Marge Freincle recalled, “Steve’s head suddenly picked up and his eyes kind of glowed. … I just looked at him and said, ‘Did Ann just come in?’ And he said, ‘What are you talking about?’ But sure enough there she was.” Later in the book Breyer helps Dudley out of a jam in a class in which then-professor Charles Fried asked her a tough question. But then Breyer bested Dudley in another class, in which property Professor John Mansfield held up a mason jar with a large cockroach inside. Mansfield asked Dudley to analyze the jar and its contents. “There’s a bug in the jar,” she said, but it was the wrong answer. Mansfield immediately turned to Breyer, who said, “There appears to be a bug in the jar,” illustrating the rule of evidence not to assume anything. Breyer went on to be an associate justice of the Supreme Court. Dudley, now Ann Dudley Goldblatt, became a bioethicist at the University of Chicago.

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