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On the legendary first Monday in October, the event that will put the Supreme Court into the headlines won’t be the opening of its fall term. This year Oct. 1 also happens to be the publication date for Justice Clarence Thomas’ long-awaited autobiography, My Grandfather’s Son: A Memoir. The day before, Legal Times has confirmed, an interview Thomas gave to CBS reporter Steve Kroft at the Court and elsewhere will be aired on “60 Minutes.” So, after a $1.5 million advance on royalties and nearly five years of labored writing � without a ghost writer � the Thomas book will finally make an unexpectedly high-wattage debut. When he first negotiated his book contract with HarperCollins, according to his agent, Lynn Chu, Thomas insisted that the standard clause requiring authors to do publicity be excised, and it was. At the recent urging of the publisher and Chu herself � “I was weeping in the background,” she says � Thomas finally agreed to what Chu says is a “severely limited” number of media interviews. But with two weeks to go before the debut, few advance copies are in circulation and remarkably little is known about the book, encouraging rampant speculation about its contents. What can he possibly say that will earn his advance back for the publisher? What can he write that we don’t already know? One thing appears certain: Those who have read the book say its narrative ends in 1991, when he was sworn in as a justice. Thomas committed himself to not embarrassing his colleagues in the way he did when he arrived at the Court. In the wake of the intense confirmation battle that erupted after allegations that he sexually harassed Anita Hill, Thomas and his wife, Ginni, remained in the limelight even after he was sworn in as a justice. A seven-page spread on the couple in People magazine “compounded the Court’s sense of bewilderment about him,” writes author Jeffrey Toobin in The Nine, his new book on the Court. Chu confirms that the book contains “no gossip about the Court.” As for what the book does contain, most of the guesswork focuses on Thomas’ confirmation hearings, which were nearly derailed when Hill, a former colleague, made her accusations of sexual harassment. In a 1994 book, former Sen. John Danforth (R-Mo.), who shepherded Thomas’ nomination through the Senate, offered graphic details of Thomas writhing on the ground in agony during the confirmation ordeal. But if Thomas goes into details about his relationship with Hill, that could be “explosive,” as one person familiar with the book says it will be. Chu, however, tamps down that speculation. “He does deal with the whole Anita Hill thing in a very open way,” she says, but she would not call that section of the book explosive. Still, says Kevin Merida, co-author of Supreme Discomfort: The Divided Soul of Clarence Thomas, published in April, almost anything Thomas says about their relationship will make news. “No matter what side you are on, there was more texture to the relationship” than has been revealed thus far. More generally, Chu says of the book, “He doesn’t pull any punches. Honesty is a good thing; that’s what books are for.” She says that, in “ David Copperfield fashion,” Thomas writes mainly about his birth and childhood, focusing especially on his grandfather Myers Anderson, who raised Thomas after his mother turned him and his brother over to Anderson when Thomas was a young child. It is no accident that, while earlier versions of the book’s title referred to Pin Point, the neighborhood near Savannah where he was born, the name he settled on for the book focused on his grandfather, who Thomas has said is the most important person in his life. But over the years, Thomas has spoken often about his childhood. Even though he is reticent on the bench � he has not asked a question during oral argument in more than a year � C-SPAN archives are full of public talks he has given in which he bared his soul about being “whupped” as a child, the stigma of affirmative action he felt, and other lessons of life. Four biographies of Thomas have been published, making his childhood an oft-told tale. Even a recent BusinessWeek interview with Thomas about his mentor at the College of the Holy Cross turned into a candid description of his angry college days and current spiritual exhaustion. “Will a book manuscript that’s been edited and read and reread be anywhere near as revealing as Thomas spontaneously was in that remarkably frank and emotional interview?” asks Cambridge University professor David Garrow, a longtime Court watcher. Thomas’ Court opinions can also sometimes be read as autobiographical. Last term, opinions he wrote in two cases were clearly informed by his upbringing. In Parents Involved in Community Schools v. Seattle School District No. 1, he repeated his view that black students do not need to be in the company of white students to be properly educated (undercutting one of the basic holdings in Brown v. Board of Education). In Morse v. Frederick, Thomas dismissed any notion that students deserved free speech rights. Through history, he said, “Teachers commanded, and students obeyed. Teachers did not rely solely on the power of ideas to persuade; they relied on discipline to maintain order.” The words could have described Thomas’ own education at the hands of Catholic nuns in Savannah. Still, there is a seemingly unquenchable curiosity about Thomas and his life story � in part because it led him to espouse views that run counter to traditional civil rights positions on affirmative action and politics in general. “As a Thomas biographer, I feel like I have a pretty good handle on him,” Merida says. “But I’m curious to see how he deciphers the events of his life.” Merida will be looking especially for further detail about Thomas’ relationship with his grandfather in the early 1980s, once Thomas became a Reagan administration official and a figure in conservative politics. “There’s a lot of debate about whether they became estranged at that time,” Merida says. Asked if the Thomas autobiography might in part be a response to Merida’s own book and others, Merida said he doubts it. Merida sent Thomas a copy of his new book earlier this year, but a few days later it came back in the mail. Merida said a note from Thomas’ secretary was attached, telling him that the book was being returned, unopened, at the justice’s request.
SUGGESTION OF DEATH Clients do the strangest things � even at the Supreme Court level. Two cases set for argument this fall might be bumped from the calendar because of unusual developments beyond the control of the lawyers involved. In one case, it turns out the client died more than two years ago, well before his lawyers petitioned the high court for review. More than a little awkward, but lawyers have filed what is called a “suggestion of death” informing the Court and asking that the petitioner’s widow be substituted in the case to allow it to proceed. The case, Riegel v. Medtronic, is high on the list of important cases the business community will be watching this fall. At issue is whether Food and Drug Administration approval of a medical device � in this case a balloon catheter made by Medtronic � pre-empts state tort action. New Yorker Charles Riegel suffered injuries when the catheter burst during his angioplasty surgery. The U.S. Court of Appeals for the 2nd Circuit ruled in May that Riegel’s suit against Medtronic was pre-empted, and as the case came to the Supreme Court, the Bush administration agreed. It was not until June of this year that Riegel’s lawyers learned from his wife Donna that Riegel had died in December 2004. “Donna is not a lawyer, and she didn’t think she needed to tell anyone,” says Allison Zieve of the Public Citizen Litigation Group, counsel of record in the case. Riegel’s original lawyer in the case, Wayne Smith of Schenectady, N.Y., heard the news only when he asked to speak to Charles to tell him the Court had granted review. “I know it sounds like a long time not to talk to your client,” Zieve acknowledges. But she said the case was moving slowly through appeals, a period when it would not be unusual for a lawyer to keep a client apprised by mail. Since the lawyers learned of Riegel’s death, his widow has been named administrator of the estate, and Zieve is urging the Court to keep the case alive by accepting Donna as the appellant. No way, says Medtronic, represented by former Solicitor General Theodore Olson of Gibson, Dunn & Crutcher. Olson filed a response urging the Court to dismiss the case because of Riegel’s death. Under Court rules, Olson says, “the case will abate” if a dead party is not substituted within six months of the death � a deadline that passed even before the petition was filed. Olson also took a swipe at Riegel’s lawyer, telling the Court that “an attorney’s failure for more than two and a half years ever to speak with a client or otherwise ascertain that client’s wishes (as opposed to simply inferring them from silence) . . . cannot conceivably be deemed excusable neglect.” The other case that might get scrubbed from the high court calendar is LaRue v. DeWolff, Boberg & Associates, also an important business case asking whether, under the Employee Retirement Income Security Act, a pension plan participant can sue the administrator of the plan for investment losses in his individual plan. Thomas Gies of Crowell & Moring, the lawyer for DeWolff, a consulting firm, informed the Court in July that in reviewing materials in the case, the firm discovered that plaintiff James LaRue had withdrawn all his funds from the 401(k) account at issue. Gies urged the Court to dismiss the case, asserting that LaRue’s “new status leaves him with no legally cognizable interest in the outcome of the case.” The motion was first reported on SCOTUS Blog. LaRue’s lawyers fought back with a response describing the motion to dismiss as “an eleventh-hour attempt to avoid” resolution of the important issues at stake. LaRue still fits the ERISA definition of a participant, insists Whittier Law School professor Peter Stris, his attorney. And the fact that LaRue withdrew his $119,000 from an account “that he believes to have been depleted by fiduciary misconduct” should not preclude him from suing the fund administrator. LaRue should not have to leave his money with a “thief or mismanager” to retain his right to sue, says Stris. Both motions to dismiss may be acted on at the Court’s conference set for Sept. 24.
Tony Mauro can be contacted at [email protected].

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