Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Last Monday, Dec. 4, began routinely at the Supreme Court — a brief respite after the previous Friday, when oral arguments in the Florida presidential election dispute placed it in the center of the legal universe. By midday, the justices were in the news again, issuing a decision in Bush v. Palm Beach County Canvassing Board, No. 00-836, that sent the case back to Florida and moved the high court out of the spotlight again, at least temporarily. What follows is a reporter’s notebook of the high court’s week. JUST ANOTHER MONDAY MORNING When the Court was gaveled into session at 10 a.m., Chief Justice William Rehnquist said what he has said on hundreds of other Mondays — that the Court’s usual orders list had been released and would not otherwise be announced. As he moved into Monday’s schedule, several reporters in the front two rows of the press section — obviously hoping for an election decision — stood up and slipped out of the courtroom. Justice Ruth Bader Ginsburg, who sits closest to the press gallery, watched the silent procession with an amused smile on her face, likely knowing that the media would get its news soon enough. But it did not come right away. Though per curiam opinions are usually released along with the orders list, this one was not, leading many lawyers and journalists to conclude that no decision would come until Tuesday at the earliest. All that changed when, at about 11:35 a.m., the decision was released electronically and in paper form to various news organizations and legal publishers. Representatives of the Supreme Court Public Information Office even raced upstairs to the press section in the courtroom to discreetly alert the reporters who were covering oral arguments that the decision had been released. Another exodus from the courtroom ensued. Soon, the parties to the election litigation were alerted by e-mail from the clerk’s office that the decision was out. It was a completely unorthodox way to release the decision, but Court officials steadfastly decline to explain why they did not simply wait a few minutes and make it available when the justices recessed at noon. It was a quirk of history that caught many people by surprise. Several media organizations, looking first at the bottom line, mistakenly reported the ruling as an outright reversal of the Florida Supreme Court decision and therefore a major victory for George W. Bush. – Tony Mauro and Jonathan Ringel WHAT THE COURT SAID In the order, The Supreme Court’s customary caution won out over any sense of national urgency, as the justices asked the Florida Supreme Court to clarify its decision on the recount of the state’s presidential votes. The justices had agreed to vacate the Florida Supreme Court decision extending the deadline for the recount — leading to the initial view that it was a clear Bush victory. But in seeking clarification rather than rejecting the decision outright, the justices signaled that the refereeing of presidential elections was not their cup of tea. They resumed the more comfortable position captured in the title of a recent book by scholar Cass Sunstein: “One Case at a Time: Judicial Minimalism on the Supreme Court.” The Court’s unsigned seven-page decision may also have represented the only area of agreement among all nine justices, papering over divisions on the merits of the case that were evident during oral argument. Traces of the quick writing style of Rehnquist, the more impassioned approach of Antonin Scalia, and the politesse of Ginsburg could be seen in different parts of the decision. “It was a way for them to come out and be unanimous,” said Georgetown University Law Center professor Susan Low Bloch. The decision was foreshadowed at the argument when Ginsburg suggested the possibility of a remand, and Scalia — followed by Justices Rehnquist, Sandra Day O’Connor, and Anthony Kennedy — sought clarification from the lawyers before them on the precise basis for the Florida Supreme Court’s decision. That question emerged as a crucial one in the Court’s calculation about whether the Florida court overstepped its bounds. Since Article II of the U.S. Constitution establishes state legislatures as the bodies that dictate the method for selecting presidential electors, the justices wanted to be sure the Florida court was staying within the confines of legislative acts in its interpretation of state law on recount deadlines — or whether it was relying instead on federal law or the Florida or U.S. constitutions. “We find that there is considerable uncertainty as to the precise grounds for the decision,” the high court said, citing Minnesota v. National Tea Co., a 1940 U.S. Supreme Court decision that has guided the Court’s interpretation of state court decisions in some past cases. The bottom line of the Court’s decision — the Florida Supreme Court ruling was vacated pending clarification — gave brief comfort to the Bush legal team, which wanted the decision set aside. The high court’s decision also gave the Florida jurists a virtual road map for how to explain their decision in a more constitutionally correct way. “As a general rule, this Court defers to a state court’s interpretation of a state statute,” the Court said. – Tony Mauro PER CURIAM CURIOSITY The Court chose to issue its ruling per curiam or “by the court,” rather than in a signed opinion by an individual justice. Some analysts suggested that was an effort to lower public expectations about the case, since the per curiam format is usually reserved for routine and brief decisions that are not announced from the bench. But in fact, some of the Court’s biggest landmarks — New York Times v. United States, the 1971 Pentagon Papers case; and Buckley v. Valeo, the 1976 campaign finance decision — were per curiam rulings that also appeared to represent the lowest common denominator of what all nine justices would agree to. In those cases, unlike last week’s, individual justices wrote signed concurrences and dissents. – Tony Mauro BACK TO BUSINESS In Monday’s first argument, Buckman Co. v. Plaintiffs’ Legal Committee, No. 98-1768, the justices who had sounded so divided on hearing the presidential election case a few days earlier showed what it is like when they appear to agree. In the case, a group of plaintiffs claim they were injured by orthopedic bone screws used on their spines. They argued that the screw manufacturer and its consultants defrauded the Food and Drug Administration by getting the FDA to approve the screws for use in bones, all the while marketing the device for spinal use. But a number of justices, from Scalia on the right to Ginsburg on the left, were highly skeptical of plaintiffs suing on behalf of the FDA. The notion is “amazing to me,” said Justice Stephen Breyer. “It’s up to the agency to enforce its own rule,” he said. The second case of the day was Gail Atwater v. City of Lago Vista, Texas, No. 99-1408-which promises to be one of the most interesting cases of the term. The facts are compelling: While driving her son and daughter home from soccer practice, Atwater was stopped and arrested for failing to buckle her and her kids’ seat belts, a violation that carries a maximum $50 fine. At issue at the argument on Dec. 4 was whether the Fourth Amendment, which bars unreasonable seizures, allows arrests for fine-only offenses. Robert DeCarli, Atwater’s lawyer, argued that such arrests are unreasonable and therefore unconstitutional. O’Connor seemed to agree, noting the “very unattractive” image of a police officer hauling a mother off to jail, leaving behind two crying children. “You’ve got the perfect case,” she told DeCarli, Atwater’s lawyer. DeCarli sounded happy to hear O’Connor’s assessment, but he soon found out perfection has its problems. O’Connor and other justices wondered whether the case was, perhaps, too perfect. Justice David Souter asked whether the case was so unique that it should not form the basis of a broad constitutional rule. Added Justice Kennedy: “It’s not a constitutional violation for a police officer to be a jerk.” Scalia chimed in, asking whether there was any value in the police officer arresting someone to deter their illegal behavior. Answered DeCarli: “That is confusing punishment with enforcement.” – Jonathan Ringel FULL COURT PRESS On the day after its much-anticipated — and widely covered — ruling in the Florida election recount, the Supreme Court ventured into a press freedom case for the first time in nearly a decade. Most justices showed their traditional skepticism toward government restriction — in this case a federal law that punishes anyone, including the press, who discloses the contents of illegally wiretapped conversations. But during oral arguments Dec. 5 some justices also signaled that privacy interests, which have grown in legal weight in recent years, could lead them to rule against the press in the joined cases of Bartnicki v. Vopper, No. 99-1687, and United States v. Vopper, No. 99-1728. In the midst of a Pennsylvania labor dispute in 1993, a cellular phone conversation between teachers’ union official Gloria Bartnicki and teacher Anthony Kane Jr. was taped by an unknown person. On the tape, Bartnicki and Kane can be heard making threatening remarks aimed at school board members and discussing the need to “blow off their front porches.” The tape ended up in the mailbox of Jack Yocum, leader of a taxpayers’ group, who turned it over to local talk show host Fred Vopper, who put it on the air. Bartnicki and Kane sued Yocum and Vopper, citing the federal wiretap law that imposes criminal and civil liability on anyone who uses and discloses the contents of illegally intercepted communications. The 3rd U.S. Circuit Court of Appeals said the law could not be applied to the press without running afoul of the Constitution, and Bartnicki and Kane appealed. Lawyers for Bartnicki and Kane, as well as for the Clinton administration, defended the law as an important, content-neutral way of protecting the privacy of phone conversations. Society has a “vital interest” in keeping “unwanted intruders” from listening in on phone calls, said Bartnicki’s attorney, Jeremiah Collins of Washington, D.C.’s Bredhoff & Kaiser. Added Solicitor General Seth Waxman: “There is no suggestion here of a censorious motive by the government” in enacting or enforcing the law. But justices challenged the scope of the law, which could be read to make criminals out of anyone who uses the information — even a journalist who writes later about the controversy over the taped conversation. “Why should it extend to a subsequent user who didn’t do anything wrong?” asked O’Connor. O’Connor and Kennedy also noted that the information disclosed in the Bartnicki case was undeniably of public interest. “What you are doing here is suppressing speech that is valuable to the public,” Kennedy said to Waxman. Waxman said, “There are other constitutional values at stake,” but Kennedy persisted. “No one questions that you can punish the interceptor,” Kennedy said, but “there is simply no precedent” for punishing the disseminators of publicly important information if they did not obtain it illegally. But when lawyers for Vopper and Yocum rose to speak, it was clear that not all justices were sympathetic to the press cause. Scalia noted that “there’s speech involved on both sides,” suggesting that people would be more reticent to speak on the phones if they knew that dissemination of the contents would go unpunished. Scalia said he never uses his wireless phone at home to discuss Court matters for fear his remarks will be intercepted and published. Lee Levine of Washington, D.C.’s Levine Sullivan & Koch, arguing for Vopper, said it would be appropriate to punish the interceptor or the person who stole a diary from a house. But any news organization or broadcaster that uses it afterward should not be liable. “This speech was truthful and a matter of public interest,” he said. Chief Justice Rehnquist cited a ruling from last term, Hill v. Colorado, to suggest that privacy interests can sometimes trump free speech rights. In that case, the Court invoked the right of privacy in upholding a Colorado law that barred abortion protesters from approaching clinic visitors uninvited in some circumstances. Levine said that case involved a time, place, or manner restriction on speech, but the wiretap law imposes a “direct prohibition” on speech that is not supported by the Court’s precedents. Washington, D.C. practitioner Thomas Goldstein, representing Yocum, said the law is “so broad” that it would apply to “the 10th party down the line” who disclosed the contents of the tape. “It is too crude a weapon,” he said. – Tony Mauro PUBLIC POST-MORTEM As the week progressed, a return to normalcy at the Supreme Court also allowed time to tally the public participation in the historic oral argument Dec. 1. Court officials say that every one of the members of the public who waited on line for seats was able to see at least some of the argument. Fifty-four stayed the entire 90 minutes, while hundreds more were cycled in and out of 30 additional seats for three to five minutes. One hundred Supreme Court litigators saw the argument from the section reserved for the Supreme Court Bar, with an additional 100 or so listening to an audio feed in the nearby lawyers’ lounge. As for the media, 121 reporters were squeezed into the press section while an additional 25 or so listened to the audio in the outer section of the public information office. No figures were available on the total number of guests of justices and parties and public officials who also squeezed into the courtroom. As to the decision to expedite public release of the audiotape and transcript of the arguments, Court officials would offer no other explanation except to point to a letter that Chief Justice Rehnquist sent to media organizations that requested broadcast access. In the letter, Rehnquist said the Court had acted “in light of the public interest” in the case. – Tony Mauro RETURNING TO THE SCENE During the Dec. 1 oral argument in the Florida election case, it seemed that half the members of the Senate were in the chamber watching and listening. Then last Tuesday, all the senators were back at the Supreme Court, but for festivities, not oral argument. Every two years since 1996, the Court has been the locale for the first dinner gathering of the incoming Senate. It was picked as an elegant, nearby, “neutral territory” where the new and old senators and spouses could get to know each other before the Senate gets into full swing. An added goal is the chance for senators to visit the Court and meets its justices. The event is sponsored by the Supreme Court Historical Society with funding from the Freedom Forum. It is an intensely private affair, with no press permitted — even last Tuesday, when one of the attendees was a Senate spouse of President Bill Clinton. (ABC News’ Barbara Walters was spotted at the dinner, but was apparently off duty.) But sources who attended said that in spite of the recent dramatic events inside the Court, speakers made no reference at all to the presidential election dispute. “They all dodged the subject pretty effectively,” said one attendee. Six justices were on hand — all but Rehnquist, Stevens and Thomas. That left O’Connor as the senior justice on hand, and she made brief welcoming remarks without making any reference to having seen so many senators at the Court a few days before. Instead, she made a presentation to Sen. Strom Thurmond, R-S.C., on the occasion of his 98th birthday. Noting that Thurmond had voted on the confirmation of all the justices currently on the Court — and many before that — O’Connor gave him a medallion that includes marble from the Court that was replaced in recent renovations. And then, in a priceless Washington moment that apparently went unrecorded, President Clinton, Senate Majority Leader Trent Lott, R-Miss., and Minority Leader Tom Daschle, D-S.D., sang Happy Birthday to Thurmond. – Tony Mauro STRANGER THAN FICTION More than one commentator has said in recent weeks that the legal battle over the presidential election is so unimaginable that it would surely be rejected if presented in the form of a novel. So it was fitting that the night before the oral arguments in the Florida case, a panel discussion was held at the Court on the subject of the Supreme Court in fiction. It was part of a lecture series put on by the Supreme Court Historical Society covering the Court and the art of the written word. Novelists Louis Auchincloss and Louis Begley generally sniffed at the idea of writing a novel set at the Court — not evocative enough of some human dilemma, it appears. Beverly Lowry offered the view that she has written about the Court without ever setting a scene there, because her three novels are about pre- and post-segregation Mississippi. Brad Meltzer, representing a newer generation of novelists, showed more enthusiasm for the subject, having written the best-selling “The Tenth Justice” about an errant law clerk. As is customary, the event was introduced by a justice. Given that the historic Florida argument was scheduled for the next day, few were expecting that Justice Kennedy would appear as planned. But he did, positing that judges think like writers. “We are legal writers,” he said. But unlike fiction writers, he added, “we have a certain number of people who are required to read what we write.” Kennedy then apologized for being unable to remain to listen to the discussion. “We’ve had to alter our schedule. Some of you may not know this,” he said with a smile. Noting that a reply brief had just been filed hours earlier, Kennedy said he had to get back to work. “I have miles to go and promises to keep.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.