X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
DOCKET DIPS What with affirmative action, gay rights, cross burning, and possibly campaign finance reform on its docket, this will likely be remembered as one of the Supreme Court’s most important terms in recent history. It may also be memorable for yielding the smallest number of written opinions in the modern era. When the Court in January filled out its argument calendar for the current term, it appeared headed toward a 75-opinion total � on the low end of the number of opinions issued each term for the last decade or so, when the Court shrank its decision docket below 100 cases. But ever since January, an unusually large number of cases have either fizzled in front of the justices or seemed on the verge of being pulled off the docket by squabbling parties below. “The big-deal cases are still there, so there is still a lot on their plate,” says Court docket maven Thomas Goldsteinof D.C.’s Goldstein & Howe. “But the Court and the lawyers have also done all the work on these other cases that may be going away, and it’s too bad.” Even before the recent gyrations, the Court had ditched two cases that it had considered at oral argument: Ford Motor Co. and Citibank v. McCauley,No. 01-896, and Abdur’Rahman v. Bell,No. 01-9094. In both cases the Court had asked for additional briefing on jurisdictional issues, so when they were dismissed as improvidently granted, it appeared that those jurisdictional concerns were fatal. Similar threshold concerns cropped up in Sell v. United States,No. 02-5664, argued March 3. The substantive issue in the case is whether the government can forcibly medicate a mentally ill defendant to make him competent to stand trial. But much of the oral argument was spent on whether the case was properly before the Supreme Court. Justices wondered whether motions concerning the defendant’s medication had to be considered before trial or could be dealt with after. The case could easily fall by the wayside because of this glitch. Based on oral arguments March 4, another case seems on the verge of collapsing: National Park Hospitality Association v. Department of the Interior,No. 02-196. The government contracting case appeared to several justices not to be ripe for review, and by the end of oral arguments Chief Justice William Rehnquist verbally ordered both sides to brief the issue by the afternoon of Friday, March 7. The common thread in all these cases is jurisdiction. But with three other cases this term, the primary factor has been politics. In Department of Justice v. City of Chicago,No. 02-322, both sides were set to argue on March 4 whether certain gun ownership data compiled by the Bureau of Alcohol, Tobacco, Firearms, and Explosives must be disclosed under the Freedom of Information Act. But in its most recent appropriations bill, Congress passed a provision barring the ATF from spending money on such disclosures. Gun control advocates say the provision was added at the behest of the National Rifle Association, which wants the data kept private. When the high court was alerted to the new provision less than a week before arguments, it sent the case back to lower courts for further review. Medical Board of California v. Hason,No. 02-479, was set for argument on March 25. At issue was whether states had immunity from being sued under Title II of the Americans With Disabilities Act. But under pressure from the disabilities rights community, California Gov. Gray Davis and Attorney General Bill Lockyer decided they did not want to find out the answer and prevailed upon the medical board to withdraw its petition. On March 7, the high court responded by canceling the oral argument. In the redistricting case Georgia v. Ashcroft,No. 02-182, set for argument on April 29, the Court is playing host to a power struggle between Georgia Attorney General Thurbert Baker and Gov. George “Sonny” Perdue. Perdue, the first Republican governor in Georgia since Reconstruction, wants Baker, a Democrat, to withdraw the case. Perdue is worried that if the state wins, a districting map favorable to Democrats will be reinstated. Baker has refused, and Perdue says a “constitutional crisis” over who directs the state’s legal cases may ensue. Both sides have peppered the Supreme Court clerk’s office with correspondence on the issue. Perdue has enlisted Macon, Ga., sole practitioner Frank Jones,who is also president of the Supreme Court Historical Society, in his battle. The wild card for the Court’s docket may be the set of cases testing the constitutionality of the Bipartisan Campaign Reform Act, still pending before a three-judge panel in the U.S. District Court for the District of Columbia. Lawyers had advised the panel that it would have to rule by mid-February to guarantee that it would be reviewed by the Supreme Court this term. February has come and gone, and there is no decision yet. But the general feeling is that the Supreme Court will do whatever it can � including keeping its session open through the summer � to get the issues resolved well in advance of next year’s presidential election. Even if an appeal of whatever the panel decides is heard orally in May or June, the Court could issue a ruling during the summer. In recent years, it has issued certiorari grants through the summer, so a decision is not inconceivable. SURPRISE PARTY The date was Jan. 22, when the outside world was marking the 30th anniversary of Roe v. Wade. But inside the Court that evening, justices and their spouses were marking another milestone: eight and a half years of service together, the longest period of high court stability since becoming a nine-member panel in 1837. It was celebrated at an exclusive dinner party at the Court, instigated by the justices’ spouses. And best of all, it was a surprise. Hoodwinking all nine justices is a formidable feat, but reliable sources indicate that total surprise was achieved. The idea was hatched at one of the occasional lunches the spouses have, and the main plotter was said to be Joanna Breyer,whose husband was the last justice to join the Court, in August 1994. Martin Ginsburgwas the head chef, and key support came from Maureen Scaliaand Mary Kennedy. The spouses’ cover story was that the dinner was being convened to toast Cissy Marshallon the issuance of a postage stamp honoring her late husband, Justice Thurgood Marshall. Cissy Marshall, as Chief Justice Rehnquist said at the public unveiling of the stamp, is a “welcome presence” at the Court, so the announced reason for the dinner was a guaranteed draw. It was not until they arrived at the justices’ dining room that the justices learned the real reason for the gathering � the Court’s long tenure together. The spouses brought the food, and entertainment accompanied the dinner. “It was a blast,” says one attendee. The dinner, as fun as it might have been, leaves one question tantalizingly unanswered: Why now, as opposed to, say, next term? The justices themselves are certainly not saying when their longevity will be interrupted by a retirement. But maybe the spouses know that it’s now or never to celebrate the current Court’s modern-day record. SYMPHONY NOTES When Chief Justice William Rehnquistwas off the bench in December recovering from knee surgery, the Court was like a symphony orchestra without its conductor � a little off on its timing and discipline. Substitute concertmaster Justice John Paul Stevenswields a more lawyer-friendly baton at oral argument. In late February, when Justice Antonin Scaliawas sidelined by shoulder surgery, the orchestra lost its percussion section. The bombast was gone, and the justices seemed less interested in the arguments. The lawyers seemed less on their toes, as well. By last week, all the orthopedic patients were back on the bench, but, at least for a while, it seemed that the Court had changed for good. Perhaps borrowing a page from Stevens, Rehnquist seemed a little more solicitous of the lawyers before him. On March 3, Rehnquist did something unusual when the petitioners lawyers’ yellow light, signifying the lawyer has five minutes left to speak, went on. Stevens is known to believe that this five-minute period should be left to the lawyer to cover points not made and to sum up, especially in light of the current Court’s constant barrage of questions. In both cases, Sell v. United Statesand Madigan v. Telemarketing Associates,No. 01-1806, the level of questioning was fairly typical. But soon after the yellow light went on, Rehnquist asked the attorneys if they would like to reserve their remaining time for rebuttals. They both took the hint and sat down. Rehnquist seemed to be doing the lawyers a favor by saving their precious time for rebuttal, giving them an opportunity to reflect on and respond to issues raised by the other side. But by the next day, it seemed that even this small trend toward a kinder bench had evaporated. In National Park Hospitality Association v. Department of the Interior,surely one of the least enthralling cases of the term, the questioning was hot, heavy, and unremitting. Rehnquist forgot his friendly invitation when the yellow light went on, and questioning continued. Kenneth Geller,a partner at Mayer, Brown, Rowe & Maw who represents the association, remained calm and highly competent as usual, but it must have been hard for him to stay cool under the barrage. He was arguing that the federal Contract Disputes Act applies to contracts between the park service and concessionaires. When Assistant to the Solicitor General John Elwoodrose to argue the opposite, the questioning was just as persistent and harsh. Usually lawyers have the chance to say at least one sentence of their own choosing before the questioning begins, but Elwood, making his debut before the justices, did not have that luxury. “Why does the government not want the CDA to apply?” Justice Sandra Day O’Connorasked suspiciously and right off the bat. “What’s going on?” In Elwood’s case, it was hard not to suspect that the justices were toying with him as a sort of hazing � a payback for Elwood’s toying with them. For several years before joining the SG’s office, Elwood dished out biting commentary on the Court in a daily e-mail that surely got back to the justices. But he was good at taking it as well as giving it, and acquitted himself well in his debut. On March 6, the barrage continued during the more high-profile arguments in United States v. American Library Association,No. 02-361. During Solicitor General Theodore Olson‘s verbal defense of the law requiring public libraries to filter Internet access, it was Justice David Souter‘s turn to get hot under the collar. He disputed several of Olson’s premises, and at one point Olson was rattled enough that he addressed Souter as “Justice Scalia.” Souter broke the ensuing tension by joking, “You do me a great honor.” The Court had returned to its former, sometimes disharmonious, self. Tony Mauro is Supreme Court correspondent for American Lawyer Media andLegal Times. “Courtside” appears every other week. Mauro can be reached at [email protected].

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.