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ATLANTA — Lawyers who come to Washington, D.C., to take the oath required to join the bar of the U.S. Supreme Court get to stand up and be recognized by the justices during a small ceremony before oral arguments. The 162 Georgia lawyers who were sworn in to the high court bar at the Capital City Club earlier this month missed out on that experience, but in exchange they got to hear some candid, often humorous insight into how the high court works. The event, sponsored by the Atlanta Bar Association and the St. Thomas More Society of Atlanta, featured a speech by the clerk of the Supreme Court, William Suter. He is responsible for the administration of the court’s dockets, the argument calendars and the admission of lawyers to the Supreme Court bar. A keen observer in his 12 years as clerk, Suter offered the luncheon crowd his take on a wide range of hot legal topics, including: • The Court’s habit of reversing the California-based Ninth Circuit U.S. Court of Appeals. • The possibility of television cameras in the high court. • The widely held belief that Justices Sandra Day O’Connor and Anthony Kennedy are the swing votes between the liberal and conservative wings of the court. • What he considered to be “activist” decisions by the justices. But Suter’s talk hardly took the tone of a dry law school lecture. He 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 — the political realities 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 high 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 of Gideon v. Wainwright, 372 U.S. 335, in which the court ruled that the Constitution required the government to pay for lawyers to represent defendants who cannot afford their own counsel. Suter recalled a more recent case that came from a pro se prisoner — a Mississippi man serving two consecutive life imprisonment terms for murder. The prisoner asked the court to overturn not his murder sentences, but his guilty plea on marijuana charges for which he received a three-year sentence. Suter said the court granted certiorari, appointed a lawyer to represent the prisoner and ultimately ruled that a lower court was wrong not to let the prisoner bring a habeas corpus case challenging the marijuana charges. Suter said the prisoner subsequently sent him a letter asking him to tell Justice Ruth Bader Ginsburg he liked her opinion for the court — “‘especially footnote number three,’” which noted that the prisoner had represented himself in the lower courts. The prisoner added, Suter said, “‘I want you to know my family and colleagues are proud of me.’” Suter said, with a laugh, that he’d never heard of fellow inmates described as “colleagues.” When he told Ginsburg of the letter, Suter said, the justice responded that the news brightened what had been a bad day, suggesting, there is “‘a little bit of good in even the worst of us. ‘” (Suter did not identify the case, but the facts and outcome of Garlotte v. Fordice, 515 U.S. 39 (1995), match his story.) Suter divides 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 person from being a 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 Ninth Circuit will always come up with something different — and weird.” Suter said that in the nine terms before this past one, the high court had reversed the Ninth Circuit about 90 percent of the time. In the 2002-03 term, he added, the Ninth Circuit improved to a 73 percent reversal rate. CAMERAS IN COURT: A BAD IDEA? When it came to discussing media coverage of the court, Suter asked whether the justices ever would 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 pointed out that after the 2000 presidential election cases, this year’s affirmative action cases and this week’s campaign finance reform case, the court released audiotapes of the arguments shortly after they concluded. Television viewers did get to see two fictional versions of the court in action last year in two short-lived programs, “The Court” on ABC and “First Monday” on CBS. The shows failed, Suter said, because the court has no sex or violence, which he said are necessary ingredients to television success in today’s culture. Similarly, Suter took a few jabs at news coverage of the court — blaming not the cadre of journalists 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 if the reason the court ruled against a woman was due to concerns about federalism or some other procedural reason. ALL POLITICS ASIDE While journalists view the court through a political lens, Suter said he didn’t think the court truly split into right and left wings. Today’s 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 today’s high 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 grouped into three “so-called” groups. “The so-called liberal” wing consists of Justices 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 O’Connor and Kennedy, Suter said, don’t like to be called swing voters. But Suter pointed out that Kennedy in recent years has voted with the majority about 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 today’s 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. ACTIVIST VS. RESTRAINT Suter then weighed in on the hot-button legal terms “activist” and “judicial restraint” — the former essentially a four-letter word used by critics to describe unjustified court decisions, the latter considered by judicial nominations experts to be the goals 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, 410 U.S. 113, Suter said, also could be considered an example of judicial restraint. As for activist decisions, Suter suggested the court’s recent rulings limiting punitive damages and banning execution of mentally retarded prisoners as possible examples. The punitive damages case stemmed from the 1996 ruling in BMW of North America v. Gore, 517 U.S. 559, in which the court reversed a $2 million punitive damages award given to a plaintiff who’d won $4,000 in compensatory damages. The case started when the plaintiff, Dr. Ira Gore Jr. of Birmingham, Ala., sued BMW when he found out 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, 01-1289. 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 criteria. 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, 536 U.S. 304, in which a 6-3 court held that executing mentally retarded criminals violated the constitutional ban on cruel and unusual punishment. Suter pointed out criticism made by dissenters who 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.” Suter used that comment to point out that the justices always shake hands before going on the bench and into their private conferences. Similarly, Suter credited the lawyers at the court, citing Bush v. Gore lawyers Theodore Olson and David Boies for their professional demeanor when the court staff called them to report the decision that effectively decided the presidential election. Suter ended his talk by saying that the 162 lawyers being inducted that day into the high court bar was the largest group he’d seen inducted in the 12 years he had served the court. At the beginning of the luncheon, an official announced that it would take about six weeks for the new inductees to get their certificates from the high court. Retired King & Spalding partner Frank Jones, the president of the Supreme Court historical society, noted, in introducing Suter, that he’d received his certificate in 1965. Unfortunately, Jones said, his wife accidentally had sold the framed certificate for 25 cents at a yard sale a few years later. Jones assured Suter that he valued the certificate much more than the price it brought at the yard sale. Jonathan Ringel is a reporter for Legal Times , a Recorder affiliate based in Washington, D.C.

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