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The Supreme Court began hearing oral arguments last week for the 2003-04 term — the 10th term in which the current nine justices have been together. The members of the Court, who have seen each other only sporadically since late June, sized up one another as well as the audience. Audience members, in turn, searched the bench for any apparent changes in the health or vigor of any of the justices. Chief Justice William Rehnquist, who seemed frail on his feet two days earlier at the annual Roman Catholic Red Mass held in the Court’s honor at St. Matthew’s Cathedral on Rhode Island Avenue, N.W., appeared well and comfortable in the center seat at the Court on Oct. 7. Justice Anthony Kennedy was on the bench, but his voice betrayed a bad cold, which had kept him away from the Mass. Justice Antonin Scalia was combative with lawyers, Justices Ruth Bader Ginsburg and Stephen Breyer were inquisitive, and Justice Clarence Thomas was silent. In other words, business as usual. The Court usually opens for business on the first Monday in October but, because of Yom Kippur, convened only briefly to issue orders and swear in bar members, with Jewish members Ginsburg and Breyer absent along with the ailing Kennedy. It marked the first time that the Court had officially acknowledged adjusting its argument calendar for the Jewish holiday. Two other slight shifts in Supreme Court policy also were launched with the new term, both suggesting the Court’s willingness to experiment with technology and with greater public access. Before the start of the session on Oct. 7, technicians were testing the Court’s sound system, which for the first time is making digital recordings of Court arguments — in addition to the reel-to-reel tapes used for the last 48 years. The test of digital recording is meant as a backup to the traditional system, which has produced low-quality recordings on occasion in recent years. “It’s a small step but an important one,” says Northwestern University political science professor Jerry Goldman, who first noticed the deterioration in sound quality and urged the Court to try digital taping. If the experiment is successful, Goldman, whose Oyez Project Web site carries audio of past Supreme Court arguments, believes the digital recordings will be much easier to work with and could be more quickly accessible to the public. The other development — this one on the Court’s Web site — will make available to the public the merits briefs in cases scheduled for oral argument. The Court still requires parties to file printed briefs, but also asks them or their printers to file them electronically as well. The electronic versions are being made available at www.supremecourtus.govthrough a link to the American Bar Association’s publication Preview,which provides summaries and material on upcoming high court cases. “It’s a cool public service, and we’re glad to be able to offer it,” says Previeweditor Charles Williams. The first oral arguments came in two cases involving state sovereignty: Frew v. Hawkins,No. 02-628, and Virginia v. Maryland,No. 129 Original. In Frew,the state of Texas argued that because of its 11th Amendment immunity, federal courts should not be able to force it to abide by a consent decree — even though Texas agreed to it in the first place. The decree at issue required improvements in the state’s Medicaid program, but a ruling could affect many other areas in which federal courts seek to enforce consent decrees against states. The justices seemed generally skeptical of the Texas position advanced by state Solicitor General R. Ted Cruz. Both Scalia and Sandra Day O’Connor asked why the federal government would enter into a consent decree if states could withdraw from it at will. The other case is a dispute, which has centuries-old roots, over the Potomac River. Maryland, which has owned the Potomac all the way to the Virginia shoreline for more than 300 years, objected when Virginia wanted to build a pipe into the middle of the river to draw drinking water for Virginia residents. Maryland said Virginia needed to obtain a permit from Maryland. A special master sided with Virginia, and the justices seemed to be sympathetic to Virginia as well. Virginia’s riparian rights, suggested Scalia, mean that Virginia “has a right to take water, not a right to beg Maryland to take water.” THE ADA AND SUBSTANCE ABUSE On the following day, Oct. 8, the Supreme Court struggled to sort out an important Americans With Disabilities Act case brought by an Arizona man who wanted his job back after being forced to quit years earlier for alcohol and drug abuse. Substance abuse itself is not a disability under the law, but workplace discrimination because of past abuse is covered. In Raytheon v. Hernandez,No. 02-749, the company says it was justified in not rehiring Joel Hernandez because of an across-the-board policy against rehiring anyone who was once terminated for cause. The Bush administration entered the case on the side of the Raytheon Co. The case has “extraordinary implications,” Raytheon lawyer Carter Phillips of Sidley Austin Brown & Wood told the Court, for “thousands of companies” with similar no-rehire rules. But much of the argument focused on procedural problems and factual uncertainties about Hernandez’s case, which had been dismissed summarily by a district judge. The U.S. Court of Appeals for the 9th Circuit reversed in a decision written by Judge Stephen Reinhardt, finding that Hernandez was entitled to a trial and had made a prima facie case of disability discrimination. The justices appeared troubled by the appeals ruling, which assumed certain facts about the case that had never been proved. Some justices appeared ready to dismiss the case because of flaws in the lower court ruling. Deputy Solicitor General Paul Clement said the record was adequate for the district judge to have dismissed the complaint summarily. Phoenix lawyer Stephen Montoya, arguing on behalf of Hernandez, suggested the case would have to be remanded for factual findings, but that the Court could still agree with the 9th Circuit that Raytheon’s policy was discriminatory. The outcome of the case was further complicated by the fact that two justices recused themselves. Justice Breyer, who owns between $50,000 and $100,000 in Raytheon stock according to his financial disclosure form, made his recusal known from the earliest stages of the case. But Justice David Souter, who participated in earlier motions in the case, was surprisingly absent from the bench during arguments — the first official indication that he, too, was recusing. Souter, like most other justices, does not reveal his reasons for recusal, and does not appear to own any stock that would explain his action. Phillips says the absence of two justices would not make much difference in the outcome — except that it eliminates the earlier possibility of a Breyer-generated 4-4 tie, which would have left the unfavorable 9th Circuit decision standing. Phillips’ argument was marred by a misstep that has afflicted other notable high court advocates in the past: he addressed Justice Ginsburg as “Justice O’Connor.” It took a broad smile from Ginsburg and nervous laughter from the audience before Phillips realized his error. Phillips recovered quickly and later in his argument jokingly said he hoped he’d gotten the names right when he addressed one of the two female justices again. In his blunder, Phillips joined the ranks of Harvard Law School professor Laurence Tribe, former acting Solicitor General Walter Dellinger, and the late Bruce Ennis, all of whom made the same curious mix-up. Justice John Paul Stevens made the same mistake in a speech a few years ago. “It’s amazing how often an advocate before the Court will call one by the other’s name,” he said at the time. “It’s always an embarrassing moment.” Two years ago, Ginsburg celebrated the fact that an entire term had gone by without any lawyer at oral argument getting her mixed up with O’Connor. After Wednesday’s argument, Phillips expressed regret that he had ended the error-free run among high court advocates: “I’ve argued 37 cases without doing it, and the 38th got me.”

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