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When the Supreme Court hands down its long-awaited decision on federal aid to parochial schools in Mitchell v. Helms, don’t be surprised if Justice Clarence Thomas is the author of the decision. Good news for parochial schools. And when the justices release Hill v. Colorado, another First Amendment case, chances are good that Justice John Paul Stevens will have written the majority opinion. Bad news for abortion clinic protesters. These predictions don’t result from any leak from within the marble walls. And they might well be completely wrong — and proven so even by the time you read these words. But for the last few weeks, they have been the prevailing hunches of the small but avid group of Supreme Court prognosticators. These tea leaf readers work below the surface, combining simple arithmetic with a large dose of Court experience to forecast which justice will write which opinion. And if you know — or think you know — who is writing, then you know which way the Court might rule. The best-known members of this small Washington club are Roy Englert Jr. of Mayer, Brown & Platt; John Elwood of Miller, Cassidy, Larroca & Lewin; and D.C. solo practitioner Thomas Goldstein. The origin of the art form is usually attributed to longtime Deputy Solicitor General Lawrence Wallace. “It’s imprecise, but it’s kind of fun,” says Wallace, who has been doing it for years. This is high season for Court seers, as the justices attack their list of pending cases in the frantic June crunch. As of June 9, the Court this term had disposed of 63 granted cases, with 17 decisions left to come before the end of the month. And the more cases the Court hands down, the easier it is to use the process of elimination to predict the authors of the rest. The founding principle of all the predictors is that most of the time, Chief Justice William Rehnquist likes to spread the work of the Court around evenly. As chief justice, he gets to assign the writing of opinions whenever he is in the majority. As a result, in each of the Court’s two-week oral argument cycles — in which roughly 12 cases are argued — each justice will generally be assigned to write at least one majority opinion, and almost never more than two. The theory seems to operate even when Rehnquist is in the minority and Justice John Paul Stevens, the next senior justice, does the assigning. So, by tallying up which justice has written which opinion for each of the cases in a given cycle, it becomes possible to predict with some accuracy who will write the rest. For example, as of last week, Mitchell v. Helms was the only remaining undecided case from the Court’s December argument cycle. Thomas is the only justice who has not written a majority opinion from that cycle, making it a fair prediction that Thomas will be the author of the decision in the Louisiana case, which challenged a federal program that loans classroom equipment to parochial schools. One note of caution, however: Justice Anthony Kennedy authored three decisions from the December cycle, which could mean that one of his dissents turned into a majority. Thomas’ grudging concurrence last month in United States v. Playboy Entertainment Group makes that decision the likely candidate for a case that flipped after opinion assignments were made. That could throw the Thomas prediction off. A safer bet might be that Stevens will author Hill v. Colorado, a test of that state’s effort to restrict aggressive demonstrations around clinics. It is the only case left undecided from January’s round of arguments, and Stevens is the only justice left who has not written a majority. Another factor that can go into the mix for the prognosticators is the speed with which justices write. Rehnquist and Justice Ruth Bader Ginsburg are known to be speedy, while David Souter, Antonin Scalia, and Thomas are on the slower end of the spectrum. Subject preferences also help in making a guess when, for example, two justices have yet to write a case from a given cycle. If one of the pending cases involves civil procedure, Ginsburg might be the justice to bet on; she likes the subject. Scalia lusts for cases that turn on whether one of the parties have standing to bring the case at hand, and Rehnquist likes to keep Fourth Amendment search-and-seizure cases for himself, at least when he is in the majority. Elwood has been making these sorts of predictions and e-mailing them around to a select group since he was a clerk for Kennedy four years ago. “After I left, I wanted to keep up with what was happening at the Supreme Court, so this is a way of following all the opinions.” Elwood, like all the others, cautions that predictions are often wrong, for reasons sometimes hard to fathom. “It really is mostly sport,” says Goldstein, who avidly keeps all kinds of statistics on the Court. “But it really is just guesswork. It doesn’t tell you which way the case will de decided, and sometimes it can be just wrong.” Englert was the only one of the lawyers who suggested that the predicting has value beyond the sport of it. “Most of the time, it’s a parlor game,” says Englert who has been reading Court tea leaves since he left the solicitor generals’ office 14 years ago. “But occasionally it proves useful and influences real world decisions.” He said there have been cases in which the likelihood that a certain justice would write a particular opinion has moved a client toward or away from the negotiating table, depending on whether that justice is viewed as favorable or unfavorable. “It has helped us think through where a case is going.” If you’d like to join the game, Englert’s chart and data on which the predicting can be based is viewable on Mayer Brown’s Web site: http://www.appellate.net/links/1999term.pdf. SCALIA LIGHTENS UP Justice Antonin Scalia seems in particularly good humor these days. What’s up? Not his weight. The justice has lost 30 pounds recently on the Atkins high-protein diet. His weight and mood may or may not be related, but he has been cheery on the bench. On May 30, it fell to Scalia to announce his opinion for the Court in Hartford Underwriters Insurance Co. v. Union Planters Bank. It was the second relatively unheralded bankruptcy decision handed down that day. Justice David Souter had just summarized the first, Raleigh v. Illinois Department of Revenue. “Your lucky day,” Scalia exclaimed to the unsuspecting courtroom audience as he began. “It’s another bankruptcy case!” Postscript: The next time the Court was sitting, June 5, Scalia was missing from the bench. That may be because Scalia was due in Rome for dinner the next day to receive an award from the National Italian American Foundation. Leaders of the foundation were in Rome for a global business conference chaired by New York Stock Exchange President Richard Grasso. Also on the star-studded guest list for the Scalia award dinner were White House Chief of Staff John Podesta and superstar Italian tenor Andrea Bocelli. BROADER VISION When the Supreme Court grants certiorari in a complex case, it usually deals with all the cross-petitions and related cases at the same time. But the Court’s handling of the American Trucking Association case that challenges the Clean Air Act was more of a two-step affair-the result of a risky but successful gambit by Kirkland & Ellis partner Edward Warren on behalf of the Chamber of Commerce of the United States. On May 23, the justices granted the Clinton administration’s appeal of the U.S. Court of Appeals for the D.C. Circuit’s 1999 ruling in the truckers case, which said the Clean Air Act’s broad grant of power to the Environmental Protection Agency amounted to an unconstitutional delegation of the legislative power of Congress. That alone made it a significant case, but it left untouched or unclear another issue lurking in the D.C. Circuit decision — whether the air-quality standards at issue could have been struck down on less sweeping, nonconstitutional grounds, namely a cost-benefit analysis of the standards. The D.C. Circuit indicated that it could not consider the costs of meeting the new standards, because of its notorious 1980 decision in Lead Industries Association v. EPA, which said the EPA must ignore all nonhealth factors in setting air quality standards. The Lead Industries decision has been the object of scorn by business ever since — but has never been overturned. The cost-benefit question was intertwined with the constitutional issue of delegation, so business groups could have laid low in hopes that the Court’s review of the EPA appeal would include it. But Warren decided to separate it out in an unusual “conditional cross-petition” that asked the Court to give special consideration to the Lead Industries issue if it was also going to consider the delegation issue. “We felt this warranted spotlighting, with a cross-petition that made explicit that which was implicit,” says Warren. A brief from the solicitor general vigorously opposed Warren’s petition, arguing that taking on the cost-benefit question “would complicate the case with issues that, on the one hand, have been long settled or, on the other hand, the court of appeals had no occasion to reach.” The Court’s May 23 order granting cert in the EPA appeal was silent on the cross-petition, leading to some anxious moments over when and whether the other shoe would drop. It did on May 30, when the Court granted the petition for cert filed by Warren. The gamble paid off, and the cases will be handled together, giving environmental groups great concern that the Court will weaken the Clean Air Act by allowing issues of cost to be weighed in setting standards. Stephen Bokat, vice president and counsel of the Chamber, gave credit to Warren for devising the strategy that guarantees the Court’s review will “go to the heart” of the Clean Air Act. “It’s quite an expansion of the issues and we’re very pleased. The environmental groups are in a twit.” KLAT’S APPEAL Susan Viola Klat is serving time in a federal prison medical center in Texas for making threats against Chief Justice William Rehnquist and Court Clerk William Suter. Now, her appeal of her 1997 conviction may soon be on its way to the very Supreme Court that was the object of her anger. The D.C. Circuit on June 2 rejected Klat’s appeal, ruling that U.S. District Judge Royce Lamberth did not “clearly err” when he held a hearing on Klat’s competency to stand trial without a lawyer for Klat present. Lamberth had determined that there was no “reasonable possibility” that a lawyer’s presence would have changed the outcome. After finding Klat competent, Lamberth conducted a trial at which a jury found Klat guilty of violating the federal law against making threats on judges and federal employees. She was sentenced to 57 months in prison. Klat’s threats came after the Court denied review in her California child custody case, which she had appealed pro se. In a letter to the Court, she said that “creating casualties such as the Oklahoma City bombing to get your attention” might be called for in her case. After the Court acted in her case, she moved to Virginia and visited the Court twice, purportedly to look at her case filed. She was arrested in August 1996. “It’s a very sad case,” says Klat’s court-appointed lawyer Mary Petras, partner in D.C.’s Grimm, Petras & Weiser. “If a lawyer had been at the competency hearing, there is no way the case would have gone forward to a trial.” Because of Klat’s clear incompetence to stand trial, Petras says she could have been diverted out of the trial and “never served a day in prison.” Instead, she is nearing the end of her prison term. Petras says she is considering appealing the D.C. Circuit decision to the Supreme Court, though she is not optimistic that the justices would grant the appeal. One reason is that the Court itself was involved in the case, but she said, “even if you take that out of the mix, it’s not likely.” Tony Mauro is Supreme Court correspondent for American Lawyer Media and Legal Times. His e-mail address is [email protected]

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