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Legal Times ‘ Supreme Court Correspondent Tony Mauro took questions about the upcoming Supreme Court term. Below is the transcript of the session…
Tony Mauro: Welcome to our chat on the Supreme Court. I look forward to your questions and comments. First, a brief introduction: I have been covering the Supreme Court for the last 25 years, first for Gannett News Service and USA Today, and for the last 5+ years for Legal Times, American Lawyer Media and Law.com. Covering the Supreme Court is never dull, but it has been especially busy and exciting in recent months, with the first turnover in the Court’s composition in 11 years. The term began Monday with a new chief justice in the center chair: John Roberts Jr., who is well known to those who cover the Court. Yesterday, by contrast, President Bush appointed someone to replace Sandra Day O’Connor who is a virtual unknown in Supreme Court circles: White House counsel Harriet Miers. So, interesting times ahead. Let’s get to your questions…
Steve – Austin, TX: Would you comment about Justice O’Connor’s participation yesterday and herrole over the coming months. Thanks. Tony Mauro: Yes, Justice O’Connor was on the bench Monday and very much an active participant in the questioning of lawyers. As you probably know, when she announced her retirement July 1, she said it would take effect after her successor is confirmed. That is unusual, though not unprecedented, and she may have thought that contingency clause would not be needed. But she has agreed to stay on, even though it poses an awkward situation. As of tomorrow, she will begin voting (at private conference) on cases that have been argued this week. But if she is no longer on the court when those decisions are issued later in the term, her vote does not count, and her successor could not participate either. If she writes an opinion that does not come out until after she is off the court, though, it might not be for naught. Some decisions written by Abe Fortas before he resigned from the court in 1969 were revised slightly by other justices and issued as “per curiam” or unsigned decisions.
Andrew – New York, NY: Tony, this latest nominee has no experience on the bench. She’s not the first, of course. But when did it become that an absence of bench experience was not a disqualifer for potential candidates? Tony Mauro: I think that throughout history, nominees without judicial experience have been appointed and confirmed and many have gone on to be successful Supreme Court justices. Some have had very weighty non-judicial experience before joining the courts, such as Earl Warren (governor of California) and Hugo Black (U.S. Senator) and Lewis Powell (president of American Bar Association.) Others have had much less weighty outside experience. Where Harriet Miers falls on that spectrum is hard to evaluate right now. But for the last decade or so (including during the Clinton Administration) the idea of appointing someone who has not been an appellate judge has come back in vogue — though it was not until yesterday that president actually appointed someone outside that mold…
Jeff – St. Louis, MO: Tony, how do you anticipate Roberts’ leadership over the court to play out, as compared to Rehnquist’s? Do you think this will have an impact on closely decided cases? Tony Mauro: John Roberts has all the makings of a strong chief justice, perhaps even more forceful than Rehnquist in seeking consensus. Rehnquist, especially in recent years, appeared to view himself as powerless to bring other justices into line with a single court opinions, with the result that there were a proliferation of partial concurrences, without clear guidance to the lower courts and to the public. Roberts, who as a practitioner had to deal with such confusing outcomes, has already spoken of the need for clearer opinions, so I would not be surprised if he brings greater clarity and consensus, and perhaps less division.
Kate – New York, NY: If Miers is confirmed, how long after she is seated should we expect to wait before she is assigned a majority opinion? Can we definitely expect an opinion authored by her in her first term? Tony Mauro: It’s safe to say she will be given an opinion to write quite soon after she joins the court, if confirmed. There is a strong ethic among the justices that the work should be spread around evenly, so it will not be long before we see an opinion from her. There is also a tradition that a justice’s maiden opinion should be unanimous or close to unanimous, which also means that it could be a fairly easy one to get out quickly.
Brenda – Manhattan: Tony, how unusual is it for the president to nominate someone who has no experience as a judge. And what is the general feeling about Miers’ nomination — do people feel she is qualified or simply someone who may get on the court solely based on a personal friendship with Bush? Tony Mauro: As discussed, until recent years, it was not that unusual for a a nominee to lack judicial experience. There is also a long tradition of Presidents — Harry Truman comes to mind — naming “cronies” to the Supreme Court, whose main qualification is friendship with the president. But it was also Truman who once said that “Once a person becomes a justice, he ceases to be your friend.” (That is a paraphrase.)
Katharine – Bethesda, MD: With all the upheaval on the court, do you expect that any of the sitting justices will dominate this term more than usual? Thanks. Tony Mauro: That is tough to say. With two “freshmen” coming onto a court whose other justices are well-accustomed to each other, the dynamics will be fluid and unpredictable. One good possibility: that Anthony Kennedy will play a more pivotal role as the new swing justice. Justice Stevens will also be a leader, as he was last term.
Julie – Brooklyn, NY: Tony, looking at the range of cases the Court has agreed to hear this year, what are the most surprising cases they opted to look at and why? What is the process whereby they decide which cases to put on the calendar? Tony Mauro: No surprises come to mind right away. There’s a wide range of issues on the Court’s plate, from physician-assisted suicide to antitrust. The Court’s procedure for adding cases to the calendar is simple: as the roughly 7,000 petitions come in to the court, they are sifted and reviewed, mainly by the justice’s law clerks, and then, if four justices feel the case is worthy of scrutiny, it is docketed for oral argument. The main criterion is whether the issue has produced conflicting answers in courts below, but occasionally factors of national importance and interest also come into play. That might explain why Anna Nicole Smith’s probate case will be on the docket for the spring — and that, now that I think of it, was a surprising addition to the docket.
Kent – Sacramento, CA: Why would Justice O’Connor’s successor be unable to participate? There is no rule, as far as I know, that a Justice be present at argument. As I recall, Chief Justice Rehnquist participated in decisions where he was not present for argument when necessary to break a tie. Tony Mauro: I wondered that too, but here is how it was described to me by a knowledgeable person: when oral argument is over in a case, the chief justice announces that “the case is submitted.” That means it was submitted to the court as composed at that moment, which means that a justice who is ill and absent, but still a member of the court, would be able to vote. But someone who joins the court after the case is argued would not be part of the court to which it was submitted. Now, it is possible that this explanation is incorrect, so I will re-check that point. But it seems to make sense.
Jim – Atlanta, GA: Tony — If Bush’s appointees swing the court too far to the right, do you think it might be possible for a future Democratic Congress to amend the Constitution to create a “Super Supreme Court” to keep them in line under President Rodham Clinton? Tony Mauro: That sounds suspiciously like FDR’s “court-packing” plan, and I seriously doubt that any future president would want to relive the constitutional furor that endused when Roosevelt made the proposal. That’s a non-starter.
Tom – Miami, FL: This is a time that everyone is watching and forming their first impressions of the new Chief Justice. What are your first impressions? What do you hear from others inside the Marble Palace? Tony Mauro: Chief Justice Roberts seemed comfortable and confident, though there were a few flustered moments when his colleagues’ questions to lawyers were coming fast and furious. He also was a strict timekeeper, as his predecessor was — he cut off two lawyers in mid-sentence when their time was up. Other lawyers and fellow journalists also seemed to have a good impression of him. But these are early impressions. I wish members of the public who are not lucky enough to be in the Court chamber could also form impressions by watching the Court on television. I see that C-SPAN ceo Brian Lamb has just sent a letter to the new chief justice asking him to reconsider the high court ban on cameras. I hope he is successful, though I do not see that happening right away.
David – San Francisco, CA: Tony — Justice O’Connor has been pivotal in so many cases during the last several years — which justice might slip most comfortably into her role as the “swing vote?” Tony Mauro: Until the new dynamics sort themselves out, I think Kennedy will be the justice to watch as the swing vote, at least on some issues. He will be courted by both wings of the Court, and he will relish that role. Some court insiders call Kennedy “the great agonizer” because he changes his mind and seems inclined to share his doubts and angst over cases with his colleagues.
Becky – Hanson, MA: What is this we hear about Ms. Miers stance regarding abortion rights as head of the Texas bar? Tony Mauro: Unless something new has come out in the last hour, I think what you are referring to is the somewhat different issue about whether the American Bar Association should be taking a stand on abortion. Representatives of state bar associations are part of the governing body of the American Bar Assocation, and at the time Ms. Miers was active with the State Bar of Texas, there was quite a bit of turmoil within the ABA as to whether it should take stands on social issues such as abortion, or should stick to its knitting, taking stands only on legal issues that affect the practice of law directly. In that context, I think she took the stand that the ABA should stay out of the abortion issue, but that does not reveal he personal views on abortion.
Daniel – Madison, WI: What do you think of the fact that Harriet Miers headed the search, which eventually picked her? Tony Mauro: Of course that is how President Bush found his vice-presidential candidate as well: Dick Cheney led that search. I don’t think it’s a disqualifier, and I also don’t necessarily think it means that Miers stacked the deck, so to speak, so that she would look like the best candidate to her boss. President Bush seems to go by gut instinct on these things, and he may well have picked her without her actually seeking the job for herself.
Michael – New York: Miers does not have a judicial record for the Senate Judiciary Committee to examine. Given that, what will the committee likely focus on during confirmation hearings when trying to gauge her leanings on the topic of Constitutional law and her qualifications to sit on the Supreme Court in general? Tony Mauro: It will be difficult for the Senate to base its questioning on documentary evidence. Since she literally seems to have such a short paper trail — no court rulings, obviously, since she was not a judge, but also no law review articles, etc. Senate Democrats will try to pry as many files out of the White House from her days there, but that will be difficult. But she is a competent lawyer, it certainly appears, and I am sure she will prepare for the hearings as a lawyer would and will come up with answers on constitutional issues raised that will mollify some senators but upset others. I doubt we will hear her say anything sensational about the issues she will face as a justice.
Daniel – Madison, WI: Why are conservatives so much more nervous about Miers then they were about Roberts, who also had a very thin record? Tony Mauro: I think the cry of “No More Souters” still rings in their ears. They are very wary that once again, a nominee whose conservative credentials had to be presumed, will get on the court and shift toward the left, as David Souter did. So they have to take President Bush’s word on Miers as well, and that makes them uncomfortable. At his press conference this morning, Bush was quite insistent that Miers will vote as he expects she will, and also that she will not change once on the bench. Most justices I’ve ever read or written about have said that change is inevitable and even good, but Bush thinks that will not be the case with Miers — or Roberts, for that matter.
Brian: Tony, can you comment on Justice Souter’s role on the court. Is he an active questioner or does he more or less sit there and listen? Tony Mauro: Justice Souter can be very persistent at times, and seems fully engaged atoral argument. With his New England accent and sometimes 19th century syntax, his questions can be difficult for advocates to untangle, but he is known as an active and insightful questioner.
Rob – Washington, D.C.: How was oral argument yesterday in the FLSA cases about whether walking and waiting time from putting on safety gear must be compensated? Any sense of which way the Court is leaning? Tony Mauro: If I had to guess, I would say the employees will win in these cases. The Court — including Chief Justice Roberts — seemed to have a hard time figuring out why, if workers must be compensated for the time needed to don and doff required protective gear, they should not also be compensated for the time taken to walk to, or wait for, the gear.
James – Rockville, MD: Tony, wondering if you saw Breyer on the Stephanapolous show on Sunday…. he admitted that he felt extra pressure when he was the fifth vote. Is that a surprising admission coming from a justice? Have you heard it before? Tony Mauro: I think other justices have noted, sometimes lightheartedly, that they know they are under greater scrutiny as junior justices when their votes really matter. Junior justices otherwise feel that they for at least the first few years, they are supposed to listen, not speak.
Evan – Washington, D.C.: Chief Justice Roberts has said that he would prefer that the Court take more cases than it has in recent years. If he can make this happen, what sorts of topics do you think that the justices will pick? Tony Mauro: I think he can make it happen; by going down to 75 or 80 cases per term, I think the court cut back too far. And as chief justice, he can make it happen, through the persuasive power of assigning cases. But the increase, probably to as many as 90 cases per term or more, won’t mean reaching out into bold new areas; it will probably mean taking more business cases. Businesses and their advocates — one of whom was John Roberts — have long complained that the Court, by reducing its docket, has left too many lower court conflicts festering out there, requiring businesses to live under one set of rules in one part of the country and different rules elsewhere. This is where I would see the increase.
Tim – Atlanta, GA: Tony, do you think that Bush’s two appointment nominations — one for a Chief Justice who was never part of the Suprreme Court and the other to an attorney who has never sat on any court — ultimately points to a disdain for The Court as it currently exists? Tony Mauro: I wouldn’t take that message from the appointments necessarily. John Roberts, while not part of the Court, is very much part of its culture, and I think the justices themselves felt that his appointment reaffirmed the Court’s importance and stature. The Miers appointment may play out differently, but the current justices also have a sense of the court’s history, and know that presidents appoint people for a wide range of reasons. In the end, with few exceptions, the Court seems to muddle through no matter what.
Tony Mauro: Thanks for all these interesting and challenging questions, and I look forward to following up on some and continuing to write about the Supreme Court.
Editor’s Note: Legal Times retains editorial control over online chats and will choose questions relevant to the discussion topic.

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