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STEVENS AIN’T LEAVIN’ It’s only the slightest of hints, but in comments in a recent interview, Justice John Paul Stevens, now 87, indicated not the slightest interest in retiring. The Third Branch, the newsletter of the judiciary, interviewed Stevens on March 27, on the occasion of Stevens’ entry into the “Top 10″ pantheon of justices in terms of length of service, at 31-plus years. “I know there are a lot of people out there who think I’ve been here five or 10 years too long,” Stevens told senior public affairs officer Dick Carelli, who used to cover the Court for the Associated Press. “But the reason I stay on is that I enjoy the job. It’s a rare privilege to have this job, to have work this interesting and challenging at this stage in your life.” Not the words of someone who is eyeing the exit door, though Stevens also added, “I’m not trying to set any records.” Stevens also had high praise for Chief Justice John Roberts Jr. — a significant counterpoint to occasional reports that some justices on the liberal wing of the Court are chafing under the new chief. “He’s a very charming guy with a wonderful sense of humor,” said Stevens. “And he’s equally effective in conference. He’s very fair in how he handles his responsibilities in conference. I’m sure he’s going to be a real credit to the Court over the years. And I know that’s not an isolated opinion.”
CLERK POWER No matter how small the Supreme Court’s decision output gets — and at 71 cases, it will be alarmingly low this term — the Clerk’s Office is always busy. And how well and amicably it operates can make a big difference in the life of the Court’s legal community. Which may explain why there was a large and enthusiastic turnout at Georgetown University Law Center April 26 as the Supreme Court Institute recognized four senior officials of the Clerk’s Office: Chief Deputy Clerk Chris Vasil, Deputy Clerk Gary Kemp, Deputy Clerk Cynthia Rapp, and Denise McNerney, the merits clerk. Even Justice Ruth Bader Ginsburg stopped by to shake their hands. Solicitor General Paul Clement extolled the Clerk’s Office, pointing to the user-friendly attitude established by Clerk William Suter along with the three honorees. Clement said that in litigation since the Sept. 11, 2001, terrorist attacks, he had become acquainted with clerks’ offices of other federal courts, and each time was reminded “how nice ours [at the Supreme Court] is.” Sidley Austin’s Carter Phillips seconded the motion, describing McNerney as the most important woman in his life — after those in his family. WilmerHale’s Seth Waxman agreed that the Clerk’s Office helps the justices “elevate their game.” The Clerk’s Office honorees are not often in the limelight, and they took the compliments with silent smiles. The circumspect Vasil did rise briefly to thank the institute and assert, “I have the greatest job in the world.” Before and after the ceremony, the buzz among advocates and others was all about the Court’s shrinking docket, which seems to be carrying on to the next term. So far, the Court has only granted nine cases for review in the term, behind its pace of recent years. As elaborated by Akin Gump Strauss Hauer & Feld’s Thomas Goldstein in a widely read posting at Scotusblog May 1, the Court’s continued slow pace of granting new cases puts it “on the brink of a substantial docket crunch” for the fall term if it does not pick up its pace in coming weeks. Prospects are good for an increase soon in the number of cases granted review, however. The Solicitor General’s Office is said to be working hard to respond as early as this week to nine invitations from the Court to state the government’s views on pending petitions brought by other parties. These CVSGs (short for “call for the views of the solicitor general”) by nature come in cases in which the justices are interested, and they often produce some review grants. Also, though it is not reaching out and urging lawyers to file interesting cases, the Clerk’s Office is advising lawyers — as it does routinely — when petitions should be filed so their petitions can be reviewed by the Court before the summer recess in late June.
CHANGING THE RULES The Georgetown event was also abuzz with discussion of proposed rules changes being considered by the Court and shopped around by the Clerk’s Office. One change under consideration is aimed at thwarting lawyers who fiddle with fonts, type sizes, and margins to squeeze more words into the maximum number of pages allowed for filings. Like other courts, the Court may go to a word limit rather than a page limit. Other proposals are aimed at various tricks lawyers play to throw adversaries off balance. One gambit comes after the filing of a petition for certiorari in which nonparties are interested in filing amicus briefs. Ordinarily these amici have 30 days to file their briefs — the same amount of time the party opposing review has to file its response to the petition. Under this timetable, the justices then receive the petition, the reply, and the petitioner’s amici all at once. But sometimes, the opposing parties will suddenly waive their right to reply, at which point the 30-day period is cut short and the case is sent to the justices. This can leave the amicus groups out in the cold. Alternatively, some opposing parties wait until the last minute to seek an extension for the filing of their briefs in opposition; that way, they get a chance to see — and respond to — the amicus briefs that have been filed for the petitioner. Court officials confirm that ways of dealing with these issues are under consideration, but they declined to release any details.
RUTH, NOT DAVID When the Court had two female justices, even the most experienced Supreme Court advocates would get them mixed up with disturbing frequency, addressing Justice Ginsburg as “Justice O’Connor” and vice versa. Now that Ginsburg is the only woman on the Court, you’d think that she would no longer be confused with another justice. But on April 24 it happened again. The embarrassing moment came during oral arguments in Office of Senator Mark Dayton v. Hanson, a case testing whether a senator’s hiring and firing decisions are protected under the Constitution’s speech and debate clause. Jean Manning, the Senate’s chief counsel for employment, argued that senators are protected from discrimination suits. Toward the end of her argument, Justice David Souter asked her a question, and she replied, “No, Justice Ginsburg.” Those in the courtroom say Ginsburg broke out in a broad smile as Souter said gently, “I’m Justice Souter.” Spectators laughed as he told Manning, “You’re very flattering.” Manning apologized profusely, and went on. She could not be reached for comment last week, but perhaps it’s not as surprising a faux pas as it seems. There is, after all, a distinguished retired lawyer in town named David Ginsburg.
FINDING ORDER IN MUSIC Since the late Justice Harry Blackmun launched it in 1988, the now-annual Supreme Court musicale has been a fixture on the Court’s calendar, offering a brief respite before the spring crunch is in full swing. The likes of Bobby Short, Denyce Graves, Michael Feinstein, and Marian McPartland have entertained for toe-tapping justices and their guests, and the concerts have been aired later on National Public Radio. It’s a sought-after gig that the artists point to on their r�sum�s for years. First then-Justice Sandra Day O’Connor and now Justice Ruth Bader Ginsburg have taken over impresario duties since Blackmun retired. Ginsburg, probably the Court’s most knowledgeable music buff, presided again on May 2. Former Washington Performing Arts Society director Douglas Wheeler chairs the Friends of Music at the Supreme Court, which makes the arrangements along with the Supreme Court Historical Society. This year’s concert had to be one of the most rousing of all, testing but not shattering the crystal chandeliers of the Court’s East Conference Room. Korean-Canadian prodigy Wonny Song started off with a dazzling piano performance. Then Ginsburg introduced baritone Gordon Hawkins, noting that she had wanted him to perform for the Court ever since seeing a “three-hanky performance” by Hawkins in “Porgy and Bess.” He mesmerized the justices with his booming voice, as did the final performer, mezzo-soprano Elizabeth Bishop. The two vocalists ended with an impromptu duet performance of “If I Loved You” from the musical “Carousel.” Attendance by the justices was down from past years; five attended, and four did not — though O’Connor, the only living retired justice, was on hand. Three justices from the Court’s conservative wing — Roberts and Justices Antonin Scalia and Clarence Thomas — had other engagements or were out of town, as was Justice Stephen Breyer. Justice Samuel Alito Jr. attended his first Court musicale, joining regulars Stevens, Souter, Anthony Kennedy, and, of course, Ginsburg. In Roberts’ absence, Ginsburg asked Kennedy to deliver closing remarks. “She drives a hard bargain, I know that,” Kennedy joked of Ginsburg, his only reference to the Court’s current dynamic, which finds Kennedy in the center being wooed by both sides. Kennedy then grew philosophical, observing that judges, like musicians, “seek to find order in a disordered reality.” Soon the justices were on their way back to their chambers, shifting gears from the soaring diversion of music to the weighty work of writing opinions.
Tony Mauro can be contacted at [email protected].

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