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Atlanta — As the head clerk of the U.S. Supreme Court, William Suter is responsible for the administration of the docket, the argument calendar, and the admission of lawyers to the Supreme Court Bar. After 12 years on the job, he’s also a keen observer of the Court and its customs. Most Court officials hold such observations close to the vest, but Suter made some of his insights public at a Sept. 4 luncheon here marking the swearing in of 162 Georgia lawyers to the high court bar. Suter, in his commentary, seemed amused by some of the odd situations and people that form the basis of the high court’s rulings, and — in an edgier way — his perception of life inside the Beltway. A former Army judge advocate who retired as a major general, Suter opened his talk by saying, “It’s good to come someplace where you fly the American flag and have an invocation. “We can’t do that in Washington,” he added. Suter pointed out that of the 8,000 certiorari petitions sent to the Court each year, about 3,000 come from prisoners usually representing themselves. “They all want to be Gideons,” said Suter, referring to the landmark 1963 ruling in Gideon v. Wainwright, which assured indigent criminal defendants state-paid lawyers. Suter spoke about the Court’s docket. He divided the 80 or so cases the Court agrees to hear each year into two groups. The first are important federal questions that never have been answered, he said, such as whether the Boy Scouts may exclude a gay scoutmaster, whether states’ efforts to restrict partial-birth abortions violate abortion rights, or whether someone could sue the sitting president of the United States. The second group, said Suter, comes from federal appeals court decisions on issues the justices will let “percolate” until there is a significant disparity between the circuits. “If you wait long enough,” Suter quipped, “the 9th Circuit will always come up with something different — and weird.” Suter said in the nine terms before this past one, the high court had reversed the U.S. Court of Appeals for the 9th Circuit — often considered the most liberal federal appeals court — about 90 percent of the time. In the 2002-03 term, he added, the 9th Circuit improved to a 73 percent reversal rate. When it came to discussing media coverage of the Court, Suter asked whether the justices would ever let television cameras broadcast their proceedings. “It’s a good question,” he responded to himself. “The answer is no.” Suter said camera advocates were making progress until the O.J. Simpson murder trial, which Suter said Los Angeles Judge Lance Ito let get out of control. Allowing cameras into the high court is a bad idea, Suter said, because “you can manipulate it too much.” He said he feared late-night comics such as Jay Leno would use the TV images to make fun of the justices, which Suter said would be “degrading to the judiciary.” Suter took a few jabs at news coverage of the Court — blaming not the cadre of reporters who regularly follow the Court but their editors, who Suter said demand too much personal news about the justices and result-oriented reports on decisions. Suter said reports that begin, for example, “Women suffered a setback at the Supreme Court” are misleading readers if the reason the Court ruled against a woman was due to concerns about federalism or some other procedural reason. While journalists may view the Supreme Court through a political lens, Suter said he did not think the Court truly split into right and left wings. Today the Court — which has been together longer than any group of justices in 180 years — generally agrees with the government in criminal cases, he said. Suter added that the current Court has been the most protective of freedom of speech since 1790, suggesting that if any justice were a true “strict constructionist,” he or she would not expand the First Amendment to cover “freedom of association.” When it comes to social issues, however, Suter said the Court could be divided into three “so-called” groups. “The so-called liberal” wing consists of Justices Ruth Bader Ginsburg, John Paul Stevens, David Souter (who, Suter had joked earlier, “can’t spell his name very well”), and Stephen Breyer, said Suter. On “the so-called conservative” side, Suter identified Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas. Justices Sandra Day O’Connor and Anthony Kennedy, Suter said, don’t like to be called the “swing voters.” But Suter pointed out that Kennedy in recent years has voted with the majority around 90 percent of the time, and O’Connor was in the majority in each of the Court’s 5-4 decisions issued last term. Suter took issue with comments by University of Chicago law professor Cass Sunstein that there were no true liberals on the Court. If that were so, argued Suter, would the Court have upheld racial preferences in public universities, struck down sodomy laws, upheld abortion rights, and struck down the Virginia Military Institute’s all-male policy? “I think the Court seems to be balanced, in the middle,” he said. Suter then weighed in on the hot-button legal terms “activist” and “judicial restraint” — the former essentially a pejorative term used by critics to describe unjustified rulings, the latter considered by judicial nominations experts to be the goal of any qualified judicial candidate. Suter said the justices exercise restraint all the time, usually when they refuse to grant certiorari on a decision they personally would like to reverse. Reaffirming the 1973 abortion rights ruling Roe v. Wade, Suter said, also could be considered an example of judicial restraint. As for activist decisions, Suter suggested the Supreme Court’s recent rulings limiting punitive damages and banning the execution of mentally retarded prisoners as possible examples. He referred to the 1996 opinion in BMW of North America v. Gore, in which the Court reversed a $2 million punitive damages award given to a plaintiff who had won $4,000 in compensatory damages. The case started when the plaintiff, Ira Gore Jr. of Birmingham, Ala., sued BMW when he found out that his supposedly brand-new BMW in fact had been repainted. “Can you imagine the humiliation — driving through Alabama in a repainted BMW?” said Suter to a chorus of laughs. This year the high court clarified its BMW ruling in State Farm Mutual Automobile Insurance Co. v. Campbell. In that case, the justices voted 6-3 to overturn a $145 million verdict against an insurer, saying it was out of whack with the $1 million in compensatory damages awarded in the case. Writing for the majority, Kennedy said the ratio of punitive damages to compensatory damages almost never should exceed single digits — a maximum of 9-to-1, in other words — and that in many cases punitive damages should not exceed compensatory damages at all. “Where’d it come from?” Suter asked of the majority’s single-digit criterion. Looking at a priest who had given the invocation at the beginning of the event, Suter said, “Canon law, Father, I guess.” Continuing his discussion of so-called activist decisions, Suter brought up Atkins v. Virginia, in which a 6-3 Court held that executing mentally retarded criminals violated the constitutional ban on cruel and unusual punishment. Suter noted that dissenters complained the majority relied too much on religious groups and foreign government policies to claim that evolving national standards disallowed the executions of the mentally retarded. He also quoted part of Scalia’s dissenting opinion, which the justice read from the bench, a rare occurrence: “Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.” Suter took issue with press accounts reporting that Scalia read his “angry dissent” from the bench. “He didn’t look angry,” said Suter, who regularly sits a few feet away from the justices. “He looked happy.” Jonathan Ringel is a reporter at the Fulton County Daily Report, the American Lawyer Media newspaper in Atlanta.

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