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Legal Times ‘ Supreme Court Correspondent Tony Mauro took your questions on all things concerning the high court. Below is the chat’s transcript…
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 26 years, first for Gannett News Service and USA Today, and for the last 6+ years for Legal Times, ALM and Law.com. The beat is always exciting, but since last July 1 — when Justice Sandra Day O’Connor announced she would retire — the news has almost been non-stop. With the death of William Rehnquist last September, we now have two new justices on a Court that had no turnover for the previous 11 years. A lot of change, and more may be ahead. Now, to your questions…
Jake, Washington D.C.: Tony, in what ways has John Roberts shown himself to be a different chief justice than William Rehnquist? How does he get along with the other justices? Thanks. Tony Mauro: Remembering that Roberts regards Rehnquist as his mentor, it seems that the new chief justice is following in the late chief justices footsteps in many ways. But already, it appears that Roberts, partly as a function of his newness and relative youth, is a more open, accessible and affable presence inside the building. And from all indications, his colleagues have welcomed Roberts enthusiastically. Former solicitor general Ted Olson told me in a story this week that several justices say Roberts could be one of the great chief justices.
Jean L.: Do you think the new Supreme Court will have the majority vote (5to 4) needed to overturn Roe vs. Wade? If yes, what impact will a non-unanimous decison to overturn Roe vs. Wade have on pro-choice groups? Tony Mauro: My guess is that we are several steps away from reversing Roe v. Wade. Even Justice Scalia, in a recent speech, said he does not think it will happen soon. First, the right case must come to the court — and the South Dakota abortion law recently passed might not be the right case. Second, a majority of justice need to be convinced that the settled expectations of generations of women must be upset and Roe overturned. The current lineup seems unlikely to go that far. One, and possibly two more justices appointed by President Bush might get us there, but it does not seem imminent.
Jean L.: Considering that Jane Roe herself has become a christian & pro-life, do you think that gives more fuel to the anti-abortion folks to seek an overturn of the case? Tony Mauro: At the Supreme Court level, the actual parties in a case become abstractions, for better or worse. Jane Roe’s views, whether they’ve changed or not, will likely have little impact on any future determinations — especially since any challenge to Roe would likely come in the context of an entirely new case, with new parties.
Jean L.: Should the American people be concerned about the direction of the new Supreme Court? If so, Why? Tony Mauro: Depending on your political point of view, yes, it is of great concern. Even though polls continue to show that more people can name the Three Stooges than any three justices, the Court is of tremendous importance. The last 7 months or so have put a welcome spotlight on the Court and its importance, and I can only hope that the public will continue to pay attention.
Wright G.: Is this court likely to take another eminent domain-for-private-use case in the near future? Tony Mauro: I think the Court has said its piece on the subject for now — though I think the justices are amazed at the reaction the ruling in Kelo v. City of New London engendered. It has triggered numerous legislative efforts, as well as litigation, to make it more difficult for governments to condemn properties for what appear to be purposes that benefit private developers, not the public. This second wave may, of course, present new issues that could compel the Supreme Corut to look at the issue again and clarify Kelo, but that seems years off.
Matthew D.: Is the court this term really issuing more unanimous opinions than in previous years? Tony Mauro: Yes, even considering that this is still the early part of the term in terms of issuing opinions. And the early decisions tend to be the easiest, which also tend to be more unanimous. But it is also striking how few separate concurrences are being written, as well as how few dissents. It seems to many court-watchers that CJ Roberts is working hard to achieve greater unanimity — a highly prized goal for someone who was a Supreme Court practitioner and appeals court judge who had to make sense of the Court’s fractured, mix-and-match majorities in recent years.
Matthew D.: What do you think the Supreme Court will have to say about Crawford redux, that is, Hammon v. Indiana and Davis v. Washington? Tony Mauro: Both of these cases will be argued next Monday, March 20, and they follow up on the Crawford precedent, which took a strong stance on the value of the confrontation clause. These cases involve 911 tapes and other ‘excited utterances,’ and I honestly don’t know how to handicap the outcomes, except to not that both cases come to the court in the posture of defendants challenging lower court rulings — which means the Court is at least inclined to take the defendants’ arguments seriously.
Bob, Alexandria: Now that there are a record five Roman Catholics on the Supreme Court, I’m detecting uneasiness among lawyers of other faiths (and even Roman Catholics) pertaining to Roe v. Wade. Any insights as to how the court may rule in the case the court is considering or how it will rule in future cases? Tony Mauro: It is remarkable that a Court once dominated by Protestants now has only two — John Paul Stevens and David Souter. The five Catholics are John Roberts Jr., Antonin Scalia, Anthony Kennedy, Clarence Thomas (a recent convert) and Samuel Alito Jr. Ruth Bader Ginsburg and Stephen Breyer are Jewish. The new pope has said that on abortion, Catholic politicians have no wiggle room to depart from Court doctrine against abortion (or words to that effect). But we probably can only take the justices’ word that their personal beliefs will not color their judicial views. It is a touchy subject to debate since no one wants to place a religious test on candidates for public office or for judgeships.
Kate, Rockville: Tony, do you believe the American public and the media overestimate the impact the Supreme Court has on society or underestimate it? It seems that it doesn’t always get the same level of scrutiny that Congress and the White House receives? Thanks… Tony Mauro: As suggested in an earlier answer, I think the public underestimates the importance of the Court. One reason it is continued invisibility. It does not allow cameras to record its proceedings, so its justices are unknown to the public — which the justices seem to like. Another is that Supreme Court does not turn on a dime; through the appointment process, it can take tyears or decades to shift significantly. So the public might be lulled into thinking that it need not pay attention.
Stephan, Chevy Chase: Hi, Mr. Mauro, do you have any thoughts about why the Court granted cert in eBay v. MercExchange, a patent case that will be argued on March 29? It strikes me that the case is quite clearly “un-certworthy.” Tony Mauro: Well, given the huge number of briefs on both sides of this case, it seems that the issue is of high importance. My impression is that the issue involved — how easy it should be for a patent holder to obtain an injunction against an infringer — has been festering for some time, and causing uncertainty in certain industries that would like some clarity. Patent cases, since they usually come through the U.S. Court of Appeals for the Federal Circuit, don’t usually produce the �circuit splits’ that often trigger certiorari, but the Supreme Court, especially in the last year or so, has been paying attention nonetheless.
Bob, Alexandria: Who is the First Amendment champion of the Supreme Court these days, particularly concerning issues of Free Press and Free Speech? Tony Mauro: It’s hard to decide which justice deserves that distinction. But it’s likely not the Court’s liberals, who often balance First Amendment values with others they find important — and the First Amendment comes up short. (I am thinking, for example, of the Court’s decisions on campaign finance reform, in which the First Amendment advocates have lost in recent years.) Anthony Kennedy, Clarence Thomas, even Antonin Scalia, often have libertarian impulses that lead them to vindicate First Amendment claims. Scalia, for example, gives high importance to commercial speech (advertising) and I think that may result from the fact that colonial newspapers often had as many ads on their front pages as news items. For Scalia the originalist, that’s enough to win his vote.
Rob, Virginia: Last week, the Supreme Court gave the legal academy a 8-0 defeat in the Solomon Amendment case about banning military recruiters from law-school campuses. Do you think this suggests a Court less inclined to consider the views of law professors as even persuasive authority? Has the legal academy damaged its credibility by pushing the challenge to the Solomon Amendment as far as it did? Tony Mauro: I don’t think the decision means the Court will ignore the legal academe from now on. But it was remarkable how CJ Roberts, in fairly dismissive terms, gave short shrift to every First amendment argument the law schools made against the Solomon Amendment. It may be that the academics felt they needed to make these arguments whether they were winning arguments or not, but it does make one wonder whether their strategy was flawed, or whether they should have taken a mrore detached look at whether the case was worth bringing — and losing.
Elizabeth, D.C.: Do you think the South Dakota abortion ban will be challenged in the Supreme Court? If so, what do you see as the timeline for that? Tony Mauro: I think it will be challenged, and it could occur relatively quickly. But whether or not the Court agrees to hear it is less clear. Since the South Dakota law is fairly unique in the breatdht of its restrictions, when it gets to the Court (probably after having been struck down) it may be seen by the justices as an �outlyer’ or oddball law that it can be allowed to stand, without high court scrutiny. It may take other law being passed — and upheld — to produce the kind of division among lower courts that the court will want to resolve.
Tony Mauro: On the First Amendment question, Freedom Forum First Amendment Scholar Ron Collins just emailed to cast his vote for Anthony Kennedy as the main champion on the current court. And he offers this link to an analysis done a few years ago by UCLA’s Eugene Volokh, who tracks the First Amendment docket as well as anyone.
Bob, Alexandria: Can you discuss the demeanor and stylistic differences of the court under Chief Justice Roberts versus the late Chief Justice Rhenquist, particularly during oral arguments? Is Justice Scalia deferential to Roberts than to Rhenquist, or vice versa? Tony Mauro: Rehnquist could be quite stern from the bench I recall him correcting lawyers’ grammar and pronunciation. Roberts seems more agreeable, but he is also a firm timekeeper. Other justices, including Scalia, seem quite deferential toward the new chief, pausing so as not to interrupt Roberts and the like. Roberts seems to have eased into the middle chair with great comfort and respect, as if he had been there for years.
Glen, Columbia, Md.: With all the upheaval recently with the justices, do you see any more potential opportunities for “W” to place another conservative on the court before his presidency comes to an end? Any justices that look in bad health that could be candidates for retiring in the next few years? Tony Mauro: All the current justices seem remarkably chipper, including Stevens who turns 86 next month. Justice Ginsburg, who turns 73 tomorrow and took some flak for taking a brief nap on the bench, said recently that she looks over at Stevens often and says to herself, �If he can continue, so can I.’ That said, it would not be hard to imagine that some health crisis could change the picture overnight, and Bush might well have one or more vacancies to fill. And if you think the battles over Roberts and Alito were monumental, you’ve seen nothing yet. The next battle will be even more contentious.
Tony Mauro: Thanks for your excellent questions, and we’ll hope to do this again soon. LT.com: Thanks to you Tony for taking time out of your schedule to do this.
Editor’s Note: Legal Times retains editorial control over online chats and will choose questions relevant to the discussion topic.

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