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The focus of the March 15 meeting of the Judicial Conference � whether formally on the agenda or simply discussed in the hallways � is likely to be growing concern for the security of federal judges. (See “More Killings Raise Court Safety Fears.”) But the meeting will be noteworthy for another reason: Chief Justice William Rehnquist will preside, in spite of his ongoing battle with thyroid cancer. After a week of conflicting predictions from several sources about whether Rehnquist will attend, Court spokeswoman Kathy Arberg confirmed on the afternoon of March 10 that the chief justice expects to preside over the meeting, to be held at the Supreme Court. The announcement appears to confirm reports from others who have seen Rehnquist recently that, while weak, he is still doggedly determined to keep up with as many aspects of his work as chief justice as possible. Leading the conference is a significant part of the chief justice’s duties, especially so for Rehnquist because of a coincidence of history. Rehnquist was presiding over a Judicial Conference meeting on Sept. 11, 2001, when terrorists attacked targets in New York and Washington, D.C. After being slipped a note about the attacks, Rehnquist reluctantly dismissed the meeting. He was whisked away to a secure location, and within minutes police sharpshooters were on the roof of the Court. But Rehnquist’s appearance at the Judicial Conference meeting won’t afford the public or press a chance to appraise his health or performance because the meeting will be closed to the public, as has been customary since the group was first created in 1922. The conference, made up of judges from each of the federal circuits and the Court of International Trade, sets policy for the federal judiciary. Rehnquist’s appearance will be his first non-Court official function since he swore in President George W. Bush on Jan. 20. Since then, Rehnquist has come to the Court for private conferences with the eight other justices and has authored several opinions. Rehnquist has not been on the bench since his illness was announced in late October. The secrecy of Judicial Conference meetings is not required by statute, but seems to be etched in its traditions. The judiciary is not covered by open meetings laws such as the Government in the Sunshine Act. Senior Judge Gilbert Merritt of the U.S. Court of Appeals for the 6th Circuit, chairman of the conference’s executive committee from 1994 to 1996, says he never understood why the meetings are secret, except that “it’s always been done that way.” “I always thought they ought to open it up,” Merritt says. “I don’t think that anything they do ought to be secret.” Merritt never made much headway with his fellow judges on the issue, though he did initiate the practice of holding a brief news conference after the annual meeting to summarize for reporters what went on. That practice has been continued by the current executive committee chair, Judge Carolyn Dineen King of the U.S. Court of Appeals for the 5th Circuit, who will brief the press after the meeting is over on March 15. In addition to not being able to see Rehnquist, the public also will not see or hear addresses by Attorney General Alberto Gonzales, Senate Judiciary Committee Chairman Arlen Specter (R-Pa.), and House Judiciary Committee Chairman F. James Sensenbrenner Jr. (R-Wis.). TOO MANY FRIENDS You may have suspected this already, but now it has been revealed: Supreme Court justices don’t read all of the ever-growing number of amicus curiae briefs filed with the Court. At a recent panel discussion sponsored by the National Association of Women Lawyers, Justices Ruth Bader Ginsburg and Sandra Day O’Connor acknowledged that they, at least, don’t read all of the briefs. And if they don’t, it is safe to guess the other seven don’t either. Ginsburg said she has her law clerks arrange the briefs into three piles: must-read briefs; those she could skim or read selected pages from; and the “skip” pile that she does not need to read at all. The first pile, she said pointedly, is “very thin.” The largest pile, she said sheepishly, is the “skip” pile. When O’Connor agreed, it seemed apparent that a message was being sent to the Supreme Court Bar: Don’t smother us with friendship. As Ginsburg put it, “There are many friends of the Court � sometimes too many to manage.” O’Connor said amici should file only when “they have something useful to say.” Ginsburg singled out the “me-too” briefs that merely tell the Court that an organization is on one side or the other of the case and concerned about the outcome. “I don’t see why they don’t consolidate,” she said. Two current experts on amicus curiae practice agree with the justices’ expressions of concern. “Surely there is an awful lot of crap out there,” says Columbia University Law School professor Thomas Merrill, who co-authored a 2000 University of Pennsylvania Law Review article that documented an 800 percent rise in the number of amicus brief filings during the last 50 years. Merrill sees several causes for the trend, including, paradoxically enough, the decrease in the number of cases the Court is deciding each term. Given the “glamour aspect” of Supreme Court practice, Merrill says, lawyers who want a piece of the action must find amicus, rather than direct party, clients. For these lawyers, it is not enough to be the eighth of 20 lawyers signing a joint amicus brief, so they fly solo. As for Ginsburg’s consolidation plea, Merrill says that practical problems interfere. More and more these days, the Court is expediting the briefing schedule to fill its case-hungry argument calendar. Merrill thinks that instead of prompting interested groups to join in a single amicus brief, the fast tracking may have the opposite, surely unintended, effect: Groups will write their own briefs because there is not enough time for the massaging and negotiating that sometimes goes into producing an amicus brief that several groups can agree on. Veteran practitioner Carter Phillips of Sidley Austin Brown & Wood agrees that the numbers are getting ridiculous. But he sees little that can be done about it without sterner Court intervention. In its Rule 37, the Court already drops a strong hint to amicus filers: “An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.” The rule has failed completely to stem the flow of superfluous briefs, Phillips says. For too many organizations, the filing of a brief has become “a way of attracting more resources and more members,” Phillips says, because it signals that the organization is a player in Washington, D.C. The result, at times, is a beauty contest, in which parties seek to exceed their adversary’s brief count. “That’s not how the Court decides a case,” Phillips says. The problem is not brand-new, he notes. When he clerked for the late Chief Justice Warren Burger in 1978, Phillips says amicus briefs could easily be converted by overworked law clerks into Frisbees: “We’d see who could get them into a wastebasket first.” As a more recent example of the proliferation of briefs, Phillips offers a case he argued just last October: Norfolk Southern Railway Co. v. Kirby, a fairly obscure but important maritime dispute over liability for damages at different stages of a shipment’s journey. “Eighteen amicus briefs were filed!” exclaims Phillips, who won the case. “It was mind-numbing.” Phillips says he urged some of the amici to join together: “At some point, when you are the party, you don’t need so much clutter. Two or three would be fine.” He was somewhat successful, he says, “but there is nothing you can do if somebody feels the need to file.” Ultimately, Phillips believes, amicus briefs still serve a valuable role for the justices � and their clerks, who are the first, and often the only, people to read them inside a justice’s chambers. “Law clerks really are little sponges,” he says. A POX ON BOTH HOUSES On March 7, the Supreme Court resolved a rare dispute between two parties on the same side of a case by just rejecting the whole mess. The Court, without explanation, denied review in Illinois v. Torres, a case in which the state of Illinois and the Cook County state’s attorney battled over which was the proper party to petition the Court in the case. “It’s a very strange situation,” says Darrel Oman, the assistant appellate defender who represents defendant Jose Torres and watched, bemused, as his adversaries slugged it out. “It qualifies as a turf battle, I’d say.” It began last year when the Appellate Court of Illinois set aside Torres’ conviction on weapons charges. That intermediate court said Chicago police acted improperly when they checked for possible outstanding warrants against Torres during a routine stop-and-frisk. Police did find an outstanding warrant, searched Torres’ truck, and found weapons. The appeals court said the search violated the Fourth Amendment. The Illinois Supreme Court declined to review the case. Lawyers from the offices of Illinois Attorney General Lisa Madigan and State’s Attorney Richard Devine conferred as usual about what to do next, but sources say a disagreement broke out over the correct strategy on appeal. With a deadline looming, Devine’s office bolted, petitioning the high court on Jan. 5, without the support of the Illinois attorney general. Then came the return punch. A week later, the Illinois attorney general filed a motion with the high court asking to substitute her petition for the state’s attorney’s. It filed an alternative petition just in case. “We are aware of no other situation where a state’s attorney filed a petition with the U.S. Supreme Court without the attorney general’s consent,” says state Solicitor General Gary Feinerman in an interview. Devine’s brief, says Feinerman, was “inconsistent with the strategy that the attorney general has been pursuing on behalf of the entire state of Illinois.” Feinerman adds, “We have a great working relationship with the Cook County state’s attorney’s office that we value.” In a written response to the AG’s motion, Devine said he was “absolutely entitled” to file on his own. Next came a reply from Feinerman, who said it would be “irrational” for the state’s 102 state’s attorneys to have independent authority to appeal to the nation’s highest court. “The state of Illinois very much regrets the need to bring this dispute before the Court,” Feinerman added. BLACKMUN BRIEFS: ‘PRAIRIE HOME’ FAN When Justice Harry Blackmun retired in 1994 and died in 1999, many of the articles about him repeated the oft-quoted label once applied to Blackmun by “Prairie Home Companion” radio host Garrison Keillor: “The shy person’s justice.” But based on Blackmun’s file at the Library of Congress, Blackmun was anything but shy about his fondness for the show, for Keillor, and for all things relating to Minnesota Public Radio, which produces the show. Blackmun’s hometown pride shows through for the radio phenomenon that may have done more than anything or anyone else to publicize St. Paul, Minn., where the show is usually taped. The 13 file folders in the collection about “Prairie Home Companion” are full of correspondence and memorabilia, including an Oct. 17, 1981, ticket stub for a taping of the show Blackmun attended. Whenever the show came to Washington, D.C., Blackmun was there, and he even organized a reception for Keillor at the Court in 1982. Surprisingly little of the correspondence is from Keillor himself, except for a 1993 postcard thanking Blackmun for arranging seating in the Court for an oral argument. Much of Blackmun’s correspondence about the show was not with Keillor but with Sally Pope, then vice president of Minnesota Public Radio, whose production arm, American Public Media, produces and distributes the show. In 1981, Blackmun wrote her that a Powder Milk Biscuit T-shirt she had sent him as a souvenir of the show was “worn proudly” by the justice during a summer trip to Wisconsin. In another letter to Pope, Blackmun reports that his law clerks, even those with an East Coast bent, are big fans. Blackmun wrote, “I am doing my best to whomp up a bunch of new fans for you.” Tony Mauro can be contacted at [email protected].

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