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Solicitor General Theodore Olson said he will take “at least a weekend” to decide what he wants to do next after announcing June 24 that he is leaving his post as the government’s top appellate lawyer in July. But because of ethical concerns and a full calendar for now, Olson told Legal Times that his weekend of reflection — and any active pursuit of law firm jobs — won’t come until after the Supreme Court term ends this week. Olson said he informed Attorney General John Ashcroft and Vice President Dick Cheney of his plans on Wednesday and told members of his staff on Thursday morning. “It seemed like the right time to do it,” said Olson, 63. “I love the job. I love the people. I love the Court. It’s good to go when you’re happy.” Olson said it was time to return to “a slightly higher paycheck” at a private law firm, but said he has not focused specifically on what firm that might be. No matter where he goes, Olson would catapult instantly to the upper echelons of lucrative Supreme Court practice, as have recent predecessors Seth Waxman, Walter Dellinger, and Kenneth Starr. So far, in his private and public career, Olson has argued 41 cases at the high court. Olson said Thursday he has a “strong affection” for his old firm, Gibson, Dunn & Crutcher, but no commitment to return there. He noted that Gibson, Dunn is the only place he has ever worked as a lawyer other than the Justice Department. During the Reagan administration, Olson headed the Justice Department’s Office of Legal Counsel. Olson was a veteran appellate litigator with Gibson, Dunn before becoming solicitor general just over three years ago. The appointment was widely viewed as a reward for the pivotal role Olson played in representing then-candidate George W. Bush in the historic Bush v. Gore litigation over the 2000 election results. Perhaps as a result, Olson’s Senate confirmation as solicitor general became a protracted battle. Once he took office, Olson won points among career lawyers for keeping his promise to attend every Supreme Court oral argument in which a member of the SG’s staff argued. Olson’s life and job changed on Sept. 11, 2001, when his wife Barbara, a well-known political commentator and lawyer, was killed in one of the planes that crashed in the terrorist attacks that day. Olson became an active and visible part of the Justice Department’s team devising strategy and legislation responding to terrorism. Before the Court, Olson argued numerous important cases, and on Thursday he singled out Zelman v. Simmons-Harris, the 2002 school voucher case, and McConnell v. FEC, the 2003 campaign finance reform case, as his biggest successes as solicitor general. “Some people thought we wouldn’t have our heart in defending the [campaign finance] law, but it was an act of Congress we were proud to defend,” Olson said. Olson would not speculate on who would be named as his successor, but he said he had “unparalleled admiration” for Paul Clement, his so-called political deputy. Making Clement the acting solicitor general would avoid any pre-election confirmation battles. Olson was at the Court the morning of June 24 to hear its announcement of opinions. He spoke briefly with reporters who cover the Court, but offered no hint that he was about to make his retirement announcement. One reporter even joked with him that Olson’s unusual attire — a cream-colored double-breasted suit, not his usual gray morning suit — was a sign that he was leaving. Of the suit, Olson said he had forgotten when he dressed Thursday morning that the Court was sitting. Once reporters chided him about the color of his suit, Olson said, “I tried to look small” when the Court session began. “Then I decided the best thing to do was resign,” Olson joked. STRENGTHENING APPRENDI Olson’s announcement came as the high court made its push toward adjournment. Seven argued cases remain to be decided — including key war-on-terror cases involving enemy combatants and Guantanamo detainees — and the Court is scheduled to issue rulings Monday and probably one other day this week. Last week, the Court handed down several of the most closely watched cases of the term — as well as others that also made headlines. On June 24, in a 5-4 ruling Justice Sandra Day O’Connor said would have a “disastrous” impact on state and federal sentencing, the justices ruled that any aggravating facts increasing a defendant’s sentence must be proved to a jury, not decided by a judge. The ruling in Blakely v. Washington, No. 02-1632, underscores and strengthens the Court’s 2000 ruling in Apprendi v. New Jersey, and could expand its scope to affect the federal sentencing guidelines. The ruling is sure to accelerate the growing debate over the wisdom of sentencing reforms enacted over the last two decades. Apprendi struck down a New Jersey hate crime law that allowed judges to increase sentences in certain crimes to 20 years — double the usual statutory maximum. But the June 24 ruling in Blakely said the Apprendi rule also applies to sentences that are above sentencing guidelines but below statutory maximums. The Court on June 24 also issued other important sentencing rulings in two capital cases. In Schriro v. Summerlin, No. 03-526, the Court said 2002′s Ring v. Arizona, which also extended Apprendi, does not apply retroactively to hundreds of death sentences that were already final when Ring was decided. In Beard v. Banks, No. 02-1603, the Court said 1988′s Mills v. Maryland, another sentencing precedent that helped defendants, did not apply retroactively. Blakely may have the most sweeping impact, at least in dissenting Justice O’Connor’s view. She said the decision might spell the end of 20 years of sentencing reform by forcing states and Congress to scrap their sentencing guidelines. And if sentencing guidelines are abandoned, she warned, the system will end up with more judicial discretion and less uniformity in sentencing — the very problems that sentencing guidelines were meant to address. “The Court ignores the havoc it is about to wreak on the trial courts across the country,” wrote O’Connor, who read parts of her dissent from the bench. In his majority opinion, Justice Antonin Scalia launched a broad attack on sentencing guidelines, although he said in a footnote that federal sentencing guidelines were not before the Court and were, thus, not ruled on. Scalia said the Court had a duty to protect the Sixth Amendment right to a jury trial from excessive government regulation. “The very reason the framers put a jury trial guarantee in the Constitution is that they were unwilling to trust government to mark out the role of the jury,” Scalia wrote. EXECUTIVE BURDENS Also on June 24, the Bush administration won at least a temporary victory in its legal battle to keep records of Vice President Richard Cheney’s energy policy task force out of public view. The Supreme Court, by a 7-2 vote, returned the dispute to the U.S. Court of Appeals for the District of Columbia, virtually guaranteeing that even if that court orders discovery, any documents would be released well after Election Day. In a ruling written by Justice Anthony Kennedy, the justices instructed the lower court to consider narrowing discovery and be “mindful of the burdens imposed on the executive branch” by such litigation. The case, Cheney v. United States District Court for the District of Columbia, No. 03-475, is largely procedural, but its language on the special nature of the executive branch is likely to strengthen the hand of future presidents in a range of separation-of-powers disputes. The case will also be remembered for the headline-making judicial ethics dispute that it triggered. After it became known that Justice Antonin Scalia went on a private duck-hunting trip with Cheney, the Sierra Club filed a motion asking Scalia to recuse from the case. Scalia refused and remained in the case, but did not write separately. He joined Justice Clarence Thomas in a concurrence with Kennedy that dissented on one small aspect of the case. TAKING THEIR MEDICINE Earlier in the week, the Court delivered a major victory to the health insurance industry. The justices on June 21 unanimously ruled that patients may not sue under state tort law for insurers’ refusal to pay for doctor-recommended medicines and procedures. The ruling in two consolidated cases — Aetna Health Inc. v. Davila, No. 02-1845, and Cigna Health Care of Texas v. Calad, No. 03-83 — said that the 1974 Employee Retirement Income Security Act completely pre-empts such lawsuits, in part because its purpose was to “provide a uniform regulatory regime over employee benefit plans.” Justice Thomas, writing for the Court, said, “Any state-law cause of action that duplicates, supplements, or supplants the ERISA civil enforcement remedy conflicts with the clear congressional intent to make the ERISA remedy exclusive.” Also on June 21: • The justices by a 7-1 vote ruled that federal courts can be enlisted to require U.S. companies to provide discovery materials in antitrust and other business litigation before foreign tribunals. The ruling in Intel Corp. v. Advanced Micro Devices Inc., No. 02-572, is a defeat for Intel in its fight against a European antitrust probe triggered by complaints from Advanced Micro Devices, a competing computer chip manufacturer. • The Court upheld a Nevada law that requires people to identify themselves to police when stopped by police with reasonable suspicion of a crime. In a 5-4 decision in Hiibel v. Sixth Judicial District Court of Nevada, No. 03-5554, Justice Kennedy wrote for the majority that “a police officer is free to ask a person for identification without implicating the Fourth Amendment.” Kennedy also said the law did not violate the Fifth Amendment bar against forced self-incrimination.

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