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ALL ABOUT HARRY As the Supreme Court recessed for the summer June 28, the justices seemed tired, bruised, angry. The rancorous dueling opinions in the school race cases seemed to have taken a toll. But a few hours later, in a private Court event that seemed to have healing qualities, the justices came together again for a common cause: bidding farewell to Harry Fenwick, the Court’s “food preparation specialist,” who was retiring after 38 years there. There was a large turnout, we hear, with all the justices except Justices David Souter and Samuel Alito Jr. in attendance. Chief Justice John Roberts Jr. and Justices John Paul Stevens, Anthony Kennedy, Stephen Breyer and Ruth Bader Ginsburg spoke, along with other Court officials. Fenwick was presented with a booklet of recipes by other Court employees and a copy of Fred Maroon’s book of Supreme Court photographs, signed by all the justices and their spouses. It was a fitting farewell for Fenwick, regarded as one of the grand men of the Court’s senior permanent staff. He started out in 1971 as a chambers aide to then-Associate Justice William Rehnquist and worked his way up. He was not formally trained as a chef, friends say, but always liked to cook. Through hard work and perseverance, Fenwick landed the job as food preparation specialist 19 years ago. The job is not the equivalent of the White House chef, exactly, and it’s not the same as cafeteria manager — in fact, the Court cafeteria was not in his purview. But Fenwick did a lot of cooking for Court events, from luncheons with his signature chicken salad to more elaborate events. Court officials estimate he personally catered 10,000 events during his tenure and supervised other caterers for 10,000 more. “In many ways, Harry was a self-made man,” says James Duff, who first met Fenwick when he was an aide to then-Chief Justice Warren Burger in 1975. Duff resumed his friendship with Fenwick when he returned to the Court in 1996 as administrative assistant to Chief Justice Rehnquist. Duff now serves as director of the Administrative Office of the U.S. Courts. “We’re still the best of friends,” says Duff. “Harry is one of the most dedicated, loyal, and fun friends I have ever known, and he will be missed at the Court. I’m very sad to see him leave.” Reflecting on Fenwick’s tenure recently, Duff said he realized what a teacher Fenwick was. “I learned a lot from him attitudewise, dedicationwise,” says Duff. “It was his devotion to the Court, his dedication to doing the best job he possibly could. He would do anything he could to make sure things were just exactly right for the Court, no matter how large or small.” Duff adds, “There’s no replacing guys like that.”
DOUBTING ROBERTS In 2004, then-appeals court Judge John Roberts Jr. tested a newly discovered theory for predicting Supreme Court outcomes. Using oral argument transcripts, he tallied the number of questions justices asked of advocates in a significant sampling of cases. Eighty-six percent of the time, Roberts reported in a talk to the Supreme Court Historical Society, the lawyer for the party that ultimately lost had gotten the most questions. “The secret to successful advocacy,” Roberts deadpanned in conclusion, “is simply to get the Court to ask your opponent more questions.” Now that Roberts, as chief justice, is one of the nine robed ones who get to ask the questions, it turns out that he, more than any other active questioner, is affirming that predictive pattern. A new study indicates that in the 25 oral arguments that led to 5-4 decisions in the term just ended, the mean number of questions Roberts asked of the side he favored was 3.6. The side he voted against got a mean of 14.3 questions from the chief justice. Overall, in 23 of the 25 5-4 decisions, Roberts asked more questions of the side he voted against than the side he favored. The numbers tend to support the growing perception that Roberts can be a sharp, even acerbic questioner. In Hein v. Freedom From Religion Foundation, the establishment clause case involving taxpayer standing, Roberts asked winning Solicitor General Paul Clement only three questions, while hitting Andrew Pincus of Mayer, Brown, Rowe & Maw, the lawyer for the losing foundation, with 23. In one curveball, Roberts pointed to Court Marshal Pamela Talkin and asked Pincus if a taxpayer could sue her for reciting the words “God save the United States and this honorable Court” before each session. Pincus said no and explained his reasoning, but the justices were unconvinced. Roberts also asked probably the most sarcastic question of the term, at the expense of Akin Gump Strauss Hauer & Feld’s Thomas Goldstein in the patent case KSR International v. Teleflex. At issue was the standard for determining when an innovation is so obvious that it does not deserve a patent. “Who do you get to be an expert to tell you something’s not obvious?” Roberts asked. “I mean, the least insightful person you can find?” Breyer asked more questions of the side he opposed in 19 of the 25 cases; Justice Antonin Scalia, who enjoys toying with any and all lawyers before him, followed the pattern in 17 cases; and for swing voter Kennedy the number, predictably enough, was 13 of the 25 — about half. These findings are reported by University of Kansas psychology professor Lawrence Wrightsman, author of a forthcoming book of empirical analyses of Supreme Court oral arguments. Oxford University Press published his book The Psychology of the Supreme Court last year. Wrightsman also documented the fact last year that with the retirement of Sandra Day O’Connor, the number of words oral advocates were able to deliver before being hit with a question shot up. Wrightsman’s latest analysis builds on a simple study performed in 2002 by then-Georgetown University Law Center student Sarah Shullman. She observed 10 oral arguments and found that in the aggregate, the side that ultimately lost got more questions — and more hostile ones — than the winning side. Her study was published in the Journal of Appellate Practice and Process. Roberts, in his historical society talk, modeled his own study after Shullman’s. Wrightsman and his students have now done a tally of all of the oral arguments of the past five terms and ended up finding a less strong correlation than was found in the earlier studies of either Shullman or Roberts. They determined that the winning side got fewer questions in only 60 percent to 65 percent of the Court’s cases. But the correlation is stronger in what Wrightsman has categorized as the ideological cases. In the term just ended, the losing side in ideological cases got more questions 73 percent of the time. So, what to make of Roberts’ penchant for asking more questions of the side he is against? One could argue that he is giving that side more opportunities to convince him — and they fail. But Wrightsman thinks it suggests that Roberts comes to the argument with a “predisposition.” He adds, “I don’t want to say he has already decided the case, but he is setting a higher standard for one side than for the other.”
ON THE ROAD AGAIN If it’s summertime, it’s travel time for the justices. Alito may have been first out of the box, heading to Riga, Latvia, for a judicial conference right after the Court term was over. Breyer’s summer itinerary includes the Aspen Ideas Festival in Colorado; a legal conference in York, England; an Eagle Scout ceremony in San Francisco — yes, Breyer is an Eagle Scout; and an appearance at the American Bar Association annual meeting in San Francisco. Kennedy will also be at the ABA meeting to receive its highest honor, the ABA Medal, for his lifelong work advancing the rule of law. Kennedy and Breyer will also be joining Roberts and Ginsburg in Paris this summer. They will help dedicate the Cornell University Center for Documentation on American Law, a 13,000-volume collection that will help European judges research American law and court rulings. It will be housed at the Cour de Cassation, France’s court of last resort. Nice of that court to host such a collection, given that Roberts and other justices have voiced disapproval of American judges relying on foreign court decisions. As for academics, Kennedy will be in Salzburg, Austria, for his long-running teaching gig for the University of the Pacific McGeorge School of Law. Ginsburg will teach comparative constitutional law for Hofstra Law School in Sorrento, Italy. And Roberts will be the featured faculty member for Penn State’s Dickinson School of Law program in Vienna, teaching a one-credit course with his longtime friend, Georgetown University Law Center professor Richard Lazarus.
Tony Mauro can be contacted at [email protected]. Visit Legal Times page dedicated to Supreme Court coverage

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