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For two days earlier this month, it appeared that several U.S. Supreme Court justices were at war with the world outside their marble palace — or at least with the news media and Congress. The events were a reminder that, even as it begins to turn its face to the public in the manner of other modern government institutions, the Supreme Court still thinks of itself as different — above the fray and even beyond question. Justice Antonin Scalia was the source of the most prominent eruption. That was, of course, his March 18 memorandum explaining his nonrecusal in Cheney v. United States District Court for the District of Columbia. With the case pending, Scalia had been hammered for weeks in editorials, cartoons and late-night jokes over his widely reported duck-hunting jaunt with Vice President Dick Cheney. The Scalia memorandum, offering details of his trip as well as his defense of friendships with powerful people, was unique. It displayed a level of modern-day public accountability that never would have occurred to, say, the late Chief Justice Warren Burger, if Burger had been the justice bagging birds with a vice president. But then, almost as if he was having misgivings about saying so much, Scalia went on to say that the Supreme Court must never again be subjected to the ordeal he had just weathered. “While the political branches can perhaps survive the constant baseless allegations of impropriety that have become the staple of Washington reportage, this court cannot,” Scalia wrote. “The people must have confidence in the integrity of the justices, and that cannot exist in a system that assumes them to be corruptible by the slightest friendship or favor, and in an atmosphere where the press will be eager to find footfaults.” Scalia didn’t elaborate on why a court composed of life-tenured justices is too fragile to endure such journalistic questioning. Advocates of government openness assert the exact opposite — namely, that the integrity of a government body is verified by withstanding scrutiny, not by avoiding it. And scrutiny it was a day earlier when Justices Anthony Kennedy and Clarence Thomas trooped up to Capitol Hill for the court’s annual budget hearing. They appeared in a cramped hearing room before the House Appropriations Subcommittee on Commerce, Justice, State, the Judiciary and Related Agencies to defend and explain the court’s $68.7 million proposed budget. The hearing began politely enough with a discussion of the court’s renovation project and its plans for improving information technology. It began to get testy when Rep. Jos� Serrano, D-N.Y., started asking, as he does every year, about the court’s progress in hiring minority law clerks. Picking up on a theme that subcommittee chairman Rep. Frank Wolf, R-Va., had raised at last year’s hearing, Serrano asked whether the court had discussed the idea of offering tuition waivers to encourage debt-burdened minority law students to seek relatively low-paying clerkships. Kennedy made it clear the court had rejected the notion. “We concluded that at our court it is not that necessary for recruiting,” he said dismissively. “Frankly, we did not want to be in a position where our clerks were preferred over the clerks in the district and circuit courts.” Wrong answer. Wolf informed Kennedy that the House already had passed a bill calling for tuition waivers for Supreme Court clerks. Sure enough, right there in H.R. 2799, an appropriations bill passed by the House last year, is �304(a), which would require the Supreme Court to establish a pilot program that would repay student loans, up to $6,000 a year, for its law clerks. “We were hoping that the Supreme Court would actually be a pioneer,” Wolf said, “and by adopting it in the highest court in the land, we would have been able to make a convincing case that the court of appeals and district courts could have done it.” Kennedy, who apparently had been unaware of the legislation, scrambled to recover, thanking Wolf for the pilot project idea and promising to “take a second look at that.” Before the legislators left the subject of law clerks, Kennedy offered a theory for a possible cause of the problem. He expressed his concern that “nationwide, Hispanic enrollment is down in law schools. I am not sure why that is. Members of our black community know what the law has meant to them over a long period of time. I am just guessing, but it may be that that is a substantial motivating factor that might be lacking in the Hispanic community.” That was probably the wrong answer to give Serrano, himself Hispanic. He told Kennedy, “There are still plenty of people who are qualified to fill the positions if you really want to make an effort to bring them in.” Kennedy said he has told the former clerks who help him screen future clerks “to reach out and be especially careful to try to recruit members of minorities.” Justice Thomas, for his part, added that he expects Hispanic law school enrollment to rise dramatically. “I think that black males will be where we will always have some problems because they are not in the law schools in the numbers that you have either Hispanics or black females.” Still, Thomas said, “I think that the members of the court have been concerned about this and responded to it. . . . I think that if you were to visit the court, you would see that it is quite different from when you first brought this question.” Wolf was not done with the topic, urging Kennedy to look at the loan forgiveness idea again. “We really cannot force something on the court,” Wolf said, but he made it clear that his wish is for the court to take his cue and embrace the idea. From that point on, Wolf seemed in a mood to hassle the justices before him. Wolf represents Northern Virginia and thus, presumably, was speaking at least in part on behalf of constituents who work at the Supreme Court. He asked what the court has been doing to promote teleworking. Kennedy joked that both he and Thomas “work at home a lot.” Wolf shot back, “Well, then I think it ought to be available to the rest of the court, the employees, because everyone looks to see what their boss is doing. If the bosses are doing it, then I think everyone else ought to have the right.” Then came the exchange that made it seem Congress and the Supreme Court reside on different planets. Wolf asked if the court produced anything such as the Congressional Record, which gives the public a daily report on the proceedings of both houses of Congress. (In 2003, the Government Printing Office turned out more than 29,000 pages of transcripts and texts in the Congressional Record.) Kennedy’s first response was to note that the court’s docket was online. But does that include “every word every justice says?” Wolf asked. “Oh no,” Kennedy said. “Why wouldn’t that be a good idea?” Wolf asked. Oral argument transcripts are made available to the press a week and a half after the argument, Kennedy answered � which may have sounded good to him, but unacceptable to a member of Congress whose words are printed in the Congressional Record the next day, not to mention aired on C-SPAN in real time. “Why not to a law student?” Wolf said. “Why not to a citizen?” “It is on the Web site,” Kennedy replied, seeming to tire of the subject. Wolf: “So it is totally available?” Yes, Kennedy said, and Wolf retorted, “Why don’t you print a copy?” Kennedy’s answer: “The transcripts are voluminous.” Thomas tried to make a more philosophical point. “The legislative process and what we do is a little bit different. The heart of what we do is actually in the briefs. . . . The oral arguments are important, but they are not the real meat of what we are doing.” Well, then, why not print up the briefs too? Wolf asked. Back and forth it went, with Kennedy icily telling Wolf, “We don’t want to get into the printing business.” Said Wolf at one point: “I can tell you are resisting.” Soon Serrano joined in: “I do not think what the chairman is proposing is something totally out of left field. I think information is good. In fact, at the expense of sounding sarcastic, I still am trying to figure out what you folks did in the 2000 election to pick a president.” Kennedy cut him off: “The votes on every case, congressman, are public.” Kennedy continued, “We are the only branch of government that must give reasons for what we do. They are in the opinions.” Serrano returned fire: “We give reasons, too. It is called re-election.” In large measure, the clash of the two branches of government was a cup-half-full-or-half-empty kind of disagreement. The Supreme Court, just beginning to emerge from its cloister to meet the public in a variety of ways, was eager for a pat on the head for the steps it has taken: namely, an active Web site that posts dockets, transcripts and merits briefs online. But for members of Congress, who receive marked-up copies of the Congressional Record from angry constituents and thousands of e-mails a week, the court’s progress seemed primordial. The message of the week was this: The court, sometimes crankily and reluctantly, is open to change, but it wants that change to occur on its own terms, at its own pace and always with the recognition from others that the Supreme Court is different. It should not surprise the justices that the rest of the world does not always see it that way. Breakfast With Blackmun Part of the workaday ritual of the late Justice Harry Blackmun � during and after his tenure � was breakfast in the Supreme Court cafeteria, where he was joined by a shifting cast of current and former law clerks and friends. But because he was in such a public setting, others who recognized him would sometimes approach him, to the occasional dismay of court police and Blackmun himself. The story of one such approach that went awry is contained in Blackmun’s file on Justice David Souter (Box 1408). In March 1997, nearly three years after Blackmun retired, Souter wrote Blackmun to apprise him of the episode, which involved Raafat Toss, then an aide to American Civil Liberties Union president Nadine Strossen. At Strossen’s request, Souter had made a seat available in the court for Toss to see the arguments in City of Boerne v. Flores. With his letter to Blackmun, Souter enclosed a note from Toss, in which Toss thanked Souter for the seat but reported that his day at the court “did not begin well.” As Toss recounted it, he had spotted Blackmun in the cafeteria, and after seeing two other people approach and greet the retired justice, he decided to do the same, having met Blackmun while a student at New York Law School. “As I said “Mr. Justice’ and his hand met mine, three Supreme Court officers descended on me; one of them physically held me back,” Toss told Souter. Another officer told Toss, “Stop bothering the justice. Can’t you see he’s having breakfast?” Toss said he mumbled something, and an officer leaned over and whispered, “We won’t arrest you if you sit down.” Toss wrote, “Given that smorgasbord of choices, I opted to sit down.” But soon, Toss, who is of Egyptian heritage, said he saw someone else approach Blackmun, and that person, like the earlier two, was not impeded by police. “I couldn’t see the difference between me and the three others,” Toss continued. “Well, not until I looked in a mirror. See, the difference is that all those who approached Justice Blackmun were white men. I suppose I fit someone’s profile of a Mediterranean meany � an extremist of some sort. I should have left my face at home. Mr. Justice Souter, while great minds might argue about keeping cameras out of the courtroom, I think we can all agree to keep profiling out of the cafeteria.” In conveying the note to Blackmun, Souter said Toss’ description of the incident was “pretty awful,” and he intended to “take the matter up (in as low a key as possible) with the marshal of the court.” But first, Souter wanted to know how Blackmun recalled the episode. Blackmun replied in writing that “I have no recollection of the incident,” but he encouraged Souter to pursue his inquiry with the marshal and named the clerks in his own chambers who might be able to shed light on it. Two of those clerks wrote to Souter, confirming Toss’ account. Cecillia Wang said the person who approached Blackmun after Toss was, like most who approach him at breakfast, a white man dressed in a business suit. “Your guest appeared to be in his late 20s or early 30s, was wearing a blazer, dress shirt, and slacks, and appeared to be of Middle Eastern or Latino heritage. To be fair to the officers, I would also say that he seemed rather nervous as he approached our table.” But she added that “I must say that I haven’t ever seen court officers behave in this way,” and “I think all of us, including Justice Blackmun, felt badly about the way the officers treated him. On the other hand, we understood that the officer’s intent was to protect the justice.” No further correspondence appears in the file, and it is unclear what, if anything, came of Souter’s inquiry. Toss, now an associate with New York’s Heidell, Pittoni, Murphy & Bach, recalls that after he corresponded with Souter about the episode, he received a note back from the justice expressing regret and promising to look into it. But then, nothing. Toss is pleased to hear at least that Souter had taken the trouble to ask Blackmun about it and that the clerks confirmed his account. “I’m totally shocked,” Toss says. “I never would have guessed that Justice Souter would take it past a nicety.” Toss also recalls how shocked he was at his treatment at the court. A frequent visitor to high court arguments while he was at the ACLU, Toss says he had shaken hands with Blackmun before in the same circumstances, without incident. “I was bearded at the time,” recalls Toss, adding, “This was before 9/11.” So when he was ordered away from Blackmun just as they were about to shake hands, Toss says, “It was really really weird.” ( Editor’s note: This is the first in a regular series of “Courtside” items on life and cases at the Supreme Court, drawn from the Blackmun papers at the Library of Congress.) Tony Mauro is the U.S. Supreme Court correspondent for American Lawyer Media and Legal Times , a Washington, D.C., affiliate of Texas Lawyer . Mauro’s e-mail address is [email protected].

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