Federal Judges Call for Higher Pay

By Mark Sherman
The Associated Press
New York Lawyer
December 29, 2008

WASHINGTON — Earlier this year, Martin Jenkins took what looked like a step down the career ladder. Jenkins traded his lifetime appointment as a federal trial judge for a seat on a California state appeals court.

In his new job, Jenkins must periodically face the voters, but he reaped one immediate benefit — a 20 percent jump in his annual salary.

Jenkins' case highlights what Chief Justice John Roberts and many other federal judges have identified as an emerging crisis — the failure to pay judges enough to keep them on the job and lure talented lawyers from private practice to the federal bench.

Not everyone sees it the way Roberts does. Committees in the House and Senate this year voted nearly 30 percent salary hikes for federal judges, but neither house of Congress acted on the measure.

Judges last received a substantial pay raise in 1991, although they have been given increases designed to keep pace with inflation in most years since then.

For 2009, though, judges are alone among federal workers — members of Congress included — in not getting a cost-of-living adjustment. Lawmakers get their COLA (cost-of-living allowance) automatically — $4,700 for 2009 — but they refused to authorize the same 2.8 percent bump for judges.

"Federal judges are currently under-compensated because Congress has repeatedly failed to adjust judicial salaries in response to inflation," said James C. Duff, director of the Administrative Office of the U.S Courts. "By its failure to do so once again, Congress only exacerbates a long-standing problem it must someday address."

Duff acknowledged that the current economic turmoil makes the judges' case harder. After all, federal trial judges are paid $169,300 a year, have lifetime job security and can retire at full salary at age 65 if they have 15 years in the job. Appellate judges make more, ranging up to Roberts' salary of $217,400.

But those salaries, large as they are, are much smaller than what judges' peers make in private practice. Attorney General-designate Eric Holder said his partnership at the law firm of Covington & Burling earned him $2.1 million this year. Attorney General Michael Mukasey, who retired as a federal judge in 2006 after 18 years, made nearly $2 million in 21 months at a New York law firm.

Timothy Lewis resigned from the 3rd U.S. Circuit Court of Appeals in Philadelphia in 1999 at the age of 44, after eight years as a federal judge. Money was a consideration.

"It's almost embarrassing to say you can't survive on $170,000 or $180,000, whatever it was that I was being paid," said Lewis, now in private practice in Washington. "That's not true, of course. But it just did not seem conducive to the lifestyle I was trying to provide for my children in private schools and college tuitions, which I'm paying now." Appellate judges made $145,000 in 1999.

Yet even with the wide gap in pay between judgeships and private practice, only a handful of judges are leaving before they are eligible for retirement. In the past two years, seven judges younger than 65 quit. Of those, Mark Filip was appointed deputy attorney general of the United States. Another judge, Edward Nottingham, resigned amid an ethics controversy.

Jenkins, who did not return calls for this article, was confirmed as a California Court of Appeal judge in the San Francisco division in April, 10 years after President Bill Clinton appointed him to the federal bench.

Jenkins, 54, packed up his office in the federal courthouse and moved across the street to a state court building. The trip was worth $35,000 a year at current levels. Another Clinton appointee in California, Nora Manella, made a similar move in 2006.

David Levi also was a federal trial judge in California who gave up his seat and the prospect of judges' retirement pay in 2007. Levi became dean at Duke University's law school in Durham, N.C.

He was 55 when he left, with 16 years experience as a judge, but still 10 years shy of eligibility for retirement.

Levi said he left because of the opportunity to be dean, but thought hard about giving up his pension rights. "It was significant to me that I'd be paid more as dean of the law school," he said. "That made up some of the difference."

More important than retaining experienced judges is the growing possibility that lawyers will pass up the chance to be federal judges until their children are grown.

"I think we will see people who are prepared to be considered in their late 50s and early 60s, but who will decline to be considered earlier than that because it's too expensive," Levi said.

University of Chicago law professor Eric Posner questions the case for raising judges' pay.

Posner said if judges were underpaid, there should be trouble recruiting them in the first place and then retaining them.

"Existing judges could make more money if they retire, maybe three to four times their salary, and yet they don't retire in great numbers," Posner said. He recently wrote a paper with fellow law professors Stephen Choi of New York University and G. Mitu Gulati of Duke, raising doubts about giving judges more money.

Judges have better job security than almost anyone and good retirement pay, Posner said. "For many people, it's more rewarding and less stressful to be a judge," Posner said. His father, Richard Posner, is a judge on the 7th U.S. Circuit Court of Appeals in Chicago, and also skeptical of the need to increase pay.

Supreme Court Rules Guantanamo
Prisoners Have Right to Sue in U.S. Courts

Michael Doyle
McClatchy Newspapers
June 12, 2008

Bill May Remove 'Loaded'
Words Psychologists' Guidelines at Risk

By M.C. Moewe
Daytona Beach News
May 12, 2008

Thinking they can stop divorcing parents from fighting in court, state officials want to rewrite the laws to replace loaded terms like "custody" with "parenting plan."

To do that, though, they'll strip out guidelines for psychologists that are designed to protect the children.

"It dumbs down the criteria," Coral Gables psychologist Jerome Poliacoff said of the proposal to replace American Psychological Association's guidelines with "standards that a reasonable psychologist would use."

"Who gets to be the reasonable psychologist?" Poliacoff said. "I think it leaves a lot of room for poor work."

The bill, sponsored by Sen. Evelyn Lynn, R-Ormond Beach, passed both the House and Senate last week and is waiting for Gov. Charlie Crist's signature.

The bill's supporters say it's designed to lessen the conflict in some of the state's nastiest divorces.

"The intent was never to limit the standards," said Elisha Roy, who worked on the bill for four years as a member of the family law section of The Florida Bar. "The goal of the bill is to limit litigation."

In contentious divorce cases involving children, psychologists often act as court experts who make recommendations to judges on issues such as where the child should live, how often the other parent sees the child and any mental health treatment the family might need.

Currently, psychologists are presumed to be acting in good faith if they follow the American Psychological Association's guidelines when making recommendations.

Roy said she believes those are the standards psychologists will continue to follow. "That is how I would interpret it," she said.

"I would assume that's what they'd use," added Lynn.

Assumptions, though, leave a lot of wiggle room and, without specific guidelines, judges and lawyers working with the psychologists would have a more difficult time determining the quality of the reports, Poliacoff said. Also, bringing a legal case against a psychologist who did a poor job of considering a child's best interest in an evaluation would also be more difficult.

Adele Guadalupe, president and a founder of Families Against Court Travesties, said standards for psychologists working as court experts are already difficult to enforce, yet the decisions can put heavy and expensive burdens on families.

"You have to dance to the tune of these so-called favored experts and favoritism is constantly rearing its ugly head," said Guadalupe, whose organization for the past four years has sent impartial court watchers to hearings to monitor family court cases. "The poorer parent can't afford to pay all these experts, so usually it's the parent with the money that wins."

The thought behind taking out the standards was because those rules contain the word "custody" and the bill is removing those words from the law, said Roy, the Florida Bar representative, who worked with psychologists in helping to write the bill.

Taking away terms like "primary custody" and replacing them with the term "parenting plan" will stop parents from fighting, she said: "The whole purpose behind (the bill) is to reduce litigation by the removal of labels that don't mean anything."

That the proposed law was vetted by lawyers and psychologists doesn't alleviate Guadalupe's concerns.

"These are the very people who stand to profit," said Guadalupe explaining the costs associated with these court experts often run into the thousands of dollars. "It can leave a parent financially decimated."

Scalia Speaks Out in "60 Minutes" Interview

By Tony Mauro
Legal Times
New York Lawyer
April 28, 2008

WASHINGTON - In his remarkable appearance on "60 Minutes" Sunday night, Supreme Court Justice Antonin Scalia acknowledged he has had "down times" on the bench, periods when he felt he was repeating himself in dissents and unable to move Court doctrine. It was Scalia's first extended broadcast interview in his 22 years on the Court.

In one of the more dramatic moments during the segment, CBS correspondent Lesley Stahl read from Scalia's 1996 letter written to the late Justice Harry Blackmun in which he voiced his melancholy about the preceding term -- a term that had produced Romer v. Evans, a victory for gay rights advocates, and United States v. Virginia, which said the state-run Virginia Military Institute could not admit only males.

Scalia said he "hadn't remembered" writing the letter, which is included in the Blackmun papers at the Library of Congress. But he did say that the final months of a Supreme Court are "usually a disappointment." He also said the situation, from his point of view, was "less dire in more recent years."

When he first joined the Court in 1986, Scalia said he planned to leave the Court "as soon as I could," when he turned 65 and could retire at full pay. But now at 72 and "working for free," Scalia says he is not thinking about retiring any longer. "I can't think what I would do for an encore."

Scalia's tenor during the lengthy segment was, by turns, wary, gently combative, and downright gleeful, as Stahl asked him about his originalism, his religion, and his upbringing in Elmhurst, Queens, in New York City. When Stahl pointed out Scalia was an only child, Scalia said, "Come on, lay off. Yes, I was spoiled." The two visited his neighborhood and even P.S. 13, his elementary school, where he was shown his perfect report cards. His wife Maureen, whom he married in 1960, also appears briefly. If she had married anyone else, she said, "I would have been bored." Justice Scalia added, "Whatever my faults are, I'm not wishy-washy."

It was an overall positive piece, with Scalia's charming side in full display. The segment also spent some time on the book he co-authored, titled, "Making Your Case: The Art of Persuading Judges," which was the occasion for the interview. Co-author Bryan Garner recounted how suprisingly deferential Scalia was during the writing.

First reported in The BLT: The Blog of Legal Times.

Justices Make It Tougher to Sue Medical Device Makers

By Linda Greenhouse
The New York Times
February 21, 2008

WASHINGTON — Makers of medical devices like implantable defibrillators or breast implants are immune from liability for personal injuries as long as the Food and Drug Administration approved the device before it was marketed and it meets the agency’s specifications, the Supreme Court ruled on Wednesday.

The 8-to-1 decision was a victory for the Bush administration, which for years has sought broad authority to pre-empt tougher state regulation.

In 2004, the administration reversed longstanding federal policy and began arguing that "premarket approval" of a new medical device by the F.D.A. overrides most claims for damages under state law. Because federal law makes no provision for damage suits against device makers, injured patients have turned to state law and have won substantial awards.

The Bush administration will continue its push for pre-emption in another F.D.A. case that the court has accepted for its next term, on whether the agency’s approval of a drug, as opposed to a device, pre-empts personal injury suits. Drugs and medical devices are regulated under separate laws.

The case before the court concerned only medical devices that had gone through the premarket approval process specified by the Medical Device Amendments of 1976. Most devices now available reached the market through a different process, under which the F.D.A. found them to be "substantially equivalent" to those marketed before the 1976 law took effect.

The Supreme Court ruled in 1996 that this less rigorous approval process does not pre-empt state damage suits against the manufacturers of "grandfathered" devices.

Devices subject to the premarket approval process, and thus affected by the court’s opinion, tend to be more technologically advanced, expensive and, in some instances, risky.

Examples of devices that have been the subjects of recent lawsuits include an implantable defibrillator, a heart pump, a spinal cord stimulator, a drug-coated stent, an artificial heart valve, and prosthetic hips and knees.

It was not immediately clear how many of the thousands of lawsuits against medical device manufacturers would be affected, though some pending cases will almost certainly be nullified.

The decision, for example, does not foreclose lawsuits claiming that a device was made improperly, in violation of F.D.A. specifications. Cases may also be brought under state laws that mirror federal rules, as opposed to supplementing them.

Next Monday, the court will hear another F.D.A. pre-emption case, on whether a state case can be based on the claim that a drug maker committed fraud by misrepresenting or withholding information from the agency during the approval process. The administration is supporting the manufacturer in that case, Warner-Lambert Co. v. Kent, No. 06-1498, which concerns the diabetes drug Rezulin.

Writing for the majority in Wednesday’s case, Riegel v. Medtronic Inc., No. 06-179, Justice Antonin Scalia said that permitting state juries to impose liability on the maker of an approved device "disrupts the federal scheme," under which the F.D.A. has the responsibility for evaluating the risks and benefits of a new device and assuring that it is safe and effective for its intended use.

A jury, looking only at the injured plaintiff, will tend to weigh only the dangers of a device and "is not concerned with its benefits," Justice Scalia said, adding, "the patients who reaped those benefits are not represented in court."

The decision affirmed the dismissal of a lawsuit by a patient who was injured during an angioplasty when a balloon catheter burst while being inserted to dilate a coronary artery. The device won F.D.A. premarket approval in 1994, two years before the incident. The patient, Charles R. Riegel, died after the lawsuit was filed, and the case was carried on by his widow, Donna.

The medical device statute contains a pre-emption clause that bars states from imposing "any requirement" related to a medical device that is "different from, or in addition to" a federal requirement. The question of statutory interpretation at the heart of the case turned on what Congress meant by "any requirement."

Justice Scalia said that state tort law, by imposing duties of care on product makers, amounted to such an additional requirement. He said the 1976 law "speaks clearly to the point at issue," regardless of the federal government’s previous or current positions.

Justice Ruth Bader Ginsburg, the solitary dissenter, said the court had misconstrued Congress’s intent in adding the pre-emption clause to the 1976 law. The purpose, she said, was to prevent individual states from imposing their own premarket approval process on new medical devices. Devices were not regulated under federal law at the time, and California and other states had stepped in to fill the vacuum by setting up their own regulatory systems.

That was all that Congress had in mind, Justice Ginsburg said, not "a radical curtailment of state common-law suits seeking compensation for injuries caused by defectively designed or labeled medical devices." She said that Congress had passed the 1976 law "to protect consumer safety," not to oust the states from "a domain historically occupied by state law." The decision was at odds with the "central purpose" of the 1976 law, Justice Ginsburg added.

Crucial Democratic lawmakers appear to agree with Justice Ginsburg, including Senator Edward M. Kennedy, Democrat of Massachusetts, who heads the Health, Education, Labor and Pensions Committee and was the sole Senate sponsor of the 1976 legislation in question.

"In enacting legislation on medical devices, Congress never intended that F.D.A. approval would give blanket immunity to manufacturers from liability for injuries caused by faulty devices," Mr. Kennedy said in a statement. He added: "Congress obviously needs to correct the court’s decision."

Representative Henry Waxman, the California Democrat who is chairman of the House Committee on Oversight and Government Reform and was on the House panel that approved the 1976 bill, expressed a similar view.

"The Supreme Court’s decision strips consumers of the rights they’ve had for decades," Mr. Waxman said. "This isn’t what Congress intended, and we’ll pass legislation as quickly as possible to fix this nonsensical situation."

The Food, Drug and Cosmetic Act of 1938, under which the F.D.A. regulates pharmaceuticals, does not contain a pre-emption clause. Nonetheless, the administration is arguing in the case the court has accepted for its next term, Wyeth v. Levine, No. 06-1249, that pre-emption is implicit in the structure of the statute.

The Supreme Court’s interest in pre-emption is not limited to the medical arena. In a similar case decided on Wednesday, this one unanimously, the court ruled that the federal law that deregulated the trucking industry in 1980 pre-empted two recent laws adopted by the State of Maine to regulate the shipment of tobacco products into the state.

The state laws were intended to prevent children who were not of legal age to buy cigarettes from ordering them over the Internet. The laws placed responsibility on shippers and delivery companies to verify the recipient’s identity and age.

Justice Stephen G. Breyer, writing for the court in this case, Rowe v. New Hampshire Motor Transport Association, No. 06-457, said the state law "produces the very effect that the federal law sought to avoid, namely, a state’s direct substitution of its own governmental commands for competitive market forces" in a deregulated environment.

Barnaby Feder contributed reporting from New York and Gardiner Harris from Washington.

Supreme Court Says 401(k) Participants Can Sue

By the Associated Press
The New York Times
February 20, 2008

WASHINGTON (AP) -- The Supreme Court ruled Wednesday that individual participants in the most common type of retirement plan can sue under a pension protection law to recover their losses.

The unanimous decision has implications for 50 million workers with $2.7 trillion invested in 401(k) retirement plans.

James LaRue of Southlake, Texas, said the value of his stock market holdings plunged $150,000 when administrators at his retirement plan failed to follow his instructions to switch to safer investments.

The issue in the LaRue case was whether the Employee Retirement Income Security Act permits an individual account holder to sue plan administrators for breaching their fiduciary duties.

The language of the law refers to recovering money for the ''plan'' rather than for an individual, raising the question of whether a participant can sue solely for himself.

Justice John Paul Stevens, in his opinion for the court, said that such lawsuits are allowed. ''Fiduciary misconduct need not threaten the solvency of the entire plan to reduce benefits below the amount that participants would otherwise receive,'' Stevens said.

The decision overturned a ruling by the 4th U.S. Circuit Court of Appeals in Richmond, Va.

Unlike people enrolled in traditional pension plans, employees in 401(k) plans, which have exploded in number in the past two decades, choose from a menu of options on where to invest their money. That puts workers squarely in the middle of decision-making about their pensions and inevitably leads to the kind of disputes LaRue has with his plan's administrators.

''Defined contribution plans dominate the retirement plan scene today,'' unlike when ERISA was enacted in the mid-1970s, Stevens said.

Many traditional pension plans guaranteeing a fixed monthly benefit have either been frozen or terminated, and 401(k) plans are the main source of retirement income, said the Air Line Pilots Association, which represents 60,000 pilots at 41 air carriers.

The Bush administration argued in support of workers. The government said the appeals court ruling barring LaRue's lawsuit would leave 401(k) participants without a meaningful remedy from any federal, state or local court when plan administrators fail to live up to their duties.

Business groups supported LaRue's employer. They argued that ERISA is aimed at encouraging employers to set up pension plans, while guarding against administrative abuses involving the plan as a whole. The law doesn't permit individual lawsuits like LaRue's, the business groups said.

Congress enacted ERISA after some widely publicized failures by companies and labor unions to pay promised pensions. Workers in class-action lawsuits have long relied on the law, most recently in the scandal-ridden collapses of companies like Enron and its 401(k) plan for workers.

The term 401(k) refers to a section of the Internal Revenue Code.

Participants in 401(k) plans do not know how much money they will receive in retirement. Employees invest a certain amount each month and how much they get back depends on how well their chosen investments have performed.

The case is LaRue v. DeWolff, 06-856.

Justice Souter Considered Resigning
 After Bush v. Gore, New Book Says

By Mark Sherman
The Associated Press
New York Lawyer
September 7, 2007

WASHINGTON -- Justice David Souter contemplated resigning from the Supreme Court because he was so upset by the decision that sealed the 2000 presidential election for George W. Bush, a new book says.

Souter, one of the four dissenting justices in the case, believed his five colleagues in the majority acted in a "crudely partisan" manner in siding with Bush to shut down the recount of votes in Florida in December 2000, author Jeffrey Toobin writes in "The Nine, Inside the Secret World of the Supreme Court." A day after the decision in Bush v. Gore, Vice President Al Gore formally conceded the election.

"Souter seriously considered resigning. For many months, it was not at all clear whether he would remain as a justice," Toobin writes. "At the urging of a handful of close friends, he decided to stay on, but his attitude toward the court was never the same. There were times when David Souter thought of Bush v. Gore and wept."

The reclusive Souter, 67, typically returns to his home in New Hampshire as soon as the court finishes work in late June and heads back to Washington only in time for the start of the next term. He was named to the court by the first President Bush in 1990.

Toobin does not say how he learned that Souter thought about retiring, although he says generally that his sources include the justices themselves.

But one of Souter's close friends, former New Hampshire Sen. Warren Rudman, called Toobin's account "absolutely false."

"It's laughable. Obviously he dissented strongly. He felt the court was very wrong and he didn't think it was good for the court, never mind the issue itself," Rudman said in an interview. "But he never, ever considered resigning over that or anything else."

Souter declined to comment on the report, court spokeswoman Kathy Arberg said.

The book will be available to the public beginning Sept. 18.

Justices End 96Year-Old Ban on Price Floors

By Stephen Labaton
New York Times
June 29 , 2007

WASHINGTON— Striking down an antitrust rule nearly a century old, the Supreme Court ruled today that it is no longer automatically unlawful for manufacturers and distributors to agree on setting minimum retail prices.

The decision will give producers significantly more leeway, though not unlimited power, to dictate retail prices and to restrict the flexibility of discounters.

Five justices said the new rule could, in some instances, lead to more competition and better service. But four dissenting justices agreed with the submission of 37 states and consumer groups that the abandonment of the old rule would lead to significantly higher prices and less competition for consumer and other goods.

The court struck down the 96-year-old rule that resale price maintenance agreements were an automatic, or per se, violation of the Sherman Antitrust Act. In its place, the court instructed judges considering such agreements for possible antitrust violations to apply a case-by-case approach, known as a "rule of reason," to assess their impact on competition.

The decision was the latest in a string of opinions this term to overturn Supreme Court precedents. It marked the latest in a line of Supreme Court victories for big businesses and antitrust defendants. And it was the latest of the court’s antitrust decisions in recent years to reject rules that had prohibited various marketing agreements between companies.

The Bush administration, along with economists of the Chicago school, had argued that the blanket prohibition against resale price maintenance agreements was archaic and counterproductive because, they said, some resale price agreements actually promote competition.

For example, they said, such agreements can make it easier for a new producer by assuring retailers that they will be able to recoup their investments in helping to market the product. And they said some distributors could be unfairly harmed by others — like Internet-based retailers — that could offer discounts because they would not be incurring the expenses of providing product demonstrations and other specialized consumer services.

A majority of the court agreed that the flat ban on price agreements discouraged these and other marketing practices that could be helpful to competition.

"In sum, it is a flawed antitrust doctrine that serves the interests of lawyers — by creating legal distinctions that operate as traps for the unaware — more than the interests of consumers — by requiring manufacturers to choose second-best options to achieve sound business objectives," the court said in an opinion by Justice Anthony M. Kennedy and signed by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.

But in his dissent, portions of which he read from the bench, Justice Stephen G. Breyer said there was no compelling reason to overturn a century’s worth of Supreme Court decisions that had affirmed the prohibition on resale maintenance agreements.

"The only safe predictions to make about today’s decision are that it will likely raise the price of goods at retail and that it will create considerable legal turbulence as lower courts seek to develop workable principles," he wrote. "I do not believe that the majority has shown new or changed conditions sufficient to warrant overruling a decision of such long standing."

During the period from 1937 to 1975 when Congress allowed the states to adopt laws that permitted retail price fixing, economists estimated that such agreements covered about 10 percent of consumer good purchases. In today’s dollars, Justice Breyer estimated that the agreements translate to a higher annual average bill for a family of four of roughly $750 to $1,000.

The dissent was signed by Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg.

The case involved an appeal of a judgment of $1.2 million against Leegin Creative Leather Products Inc. after it cut off Kay’s Kloset, a suburban Dallas shop, for refusing to honor Leegin’s no-discount policy. The judgment was automatically tripled under antitrust law.

Leegin’s marketing strategy for finding a niche in the highly competitive world of small leather goods was to sell its "Brighton" line of fashion accessories through small boutiques that could offer personalized service. Retailers were required to accept a no-discounting policy.

After the United States Court of Appeals for the Fifth Circuit, in New Orleans, upheld the judgment and said it was bound by Supreme Court precedent, Leegin took the case to the Supreme Court. Unless it is settled, the case, Leegin Creative Leather Products v. PSK Inc., will now be sent down to a lower court to apply the new standard.

The Supreme Court adopted the flat ban on resale price agreements between manufacturers and retailers in 1911, when it founded that the Dr. Miles Medical Company had violated the Sherman act. The company had sought to sell medicine only to distributors who agreed to resell them at set prices. The court said such agreements benefit only the distributors, not consumers, and set a rule making such agreements unlawful.

Justice Kennedy said today that the court was not bound by the 1911 precedent because of the "widespread agreement" among economists that resale price maintenance agreements can promote competition.

"Vertical agreements establishing minimum resale prices can have either pro-competitive or anticompetitive effects, depending upon the circumstances in which they are formed," he wrote.

But Justice Breyer said in his dissent that the court had failed to justify the overturning of the rule, or that there was significant evidence to show that price agreements would often benefit consumers. He said courts would have a difficult time sorting out the price agreements that help consumers from those that harm them.

"The upshot is, as many economists suggest, sometimes resale price maintenance can prove harmful, sometimes it can bring benefits," he wrote. "But before concluding that courts should consequently apply a rule of reason, I would ask such questions as, how often are harms or benefits likely to occur? How easy is it to separate the beneficial sheep from the antitrust goats?"

"My own answer," he concluded, "is not very easily."

Supreme Court Oks Abortion Procedure Ban

By Mark Sherman
Associated Press
April 18, 2007

WASHINGTON (AP) - The Supreme Court's conservative majority handed anti-abortion forces a major victory Wednesday in a decision that bans a controversial abortion procedure and set the stage for further restrictions.

For the first time since the court established a woman's right to an abortion in 1973, the justices upheld a nationwide ban on a specific (AP) Anti abortion demonstrator                   abortion method, labeled partial-birth abortion Joshua Alcorn stands outside the             by its opponents.
 

The 5-4 decision written by Justice Anthony  Kennedy said the Partial Birth Abortion Ban Act that Congress passed and President Bush signed into law in 2003 does not violate a woman's constitutional right to an abortion.

The law is constitutional despite not containing an exception that would allow the procedure if needed to preserve a woman's health, Kennedy
said. "The law need not give abortion doctors (AP) National Clergy Council President       unfettered choice in the course of their medical Rev. Rob Schenck holds a copy of the          practice," he wrote in the majority opinion.

Doctors who violate the law face up to two years in federal prison.

Kennedy's opinion, joined by Bush's two appointees, Chief Justice John Roberts and Justice Samuel Alito, was a long-awaited resounding win that abortion opponents expected from the more conservative bench.

The administration defended the law as drawing a bright line between abortion and infanticide.

Reacting to the ruling, Bush said that it affirms the progress his administration has made to defend the "sanctity of life."

"I am pleased that the Supreme Court has upheld a law that prohibits the abhorrent procedure of partial birth abortion," he said. "Today's decision affirms that the Constitution does not stand in the way of the people's representatives enacting laws reflecting the compassion and humanity of America."

Justices Clarence Thomas and Antonin Scalia also were in the majority.

It was the first time the court banned a specific procedure in a case over how - not whether - to perform an abortion.

Abortion rights groups as well as the leading association of obstetricians and gynecologists have said the procedure sometimes is the safest for a woman. They also said that such a ruling could threaten most abortions after 12 weeks of pregnancy, although Kennedy said alternate, more widely used procedures remain legal.

The outcome is likely to spur efforts at the state level to place more restrictions on abortions.

"I applaud the Court for its ruling today, and my hope is that it sets the stage for further progress in the fight to ensure our nation's laws respect the sanctity of unborn human life," said Rep. John Boehner of Ohio, Republican leader in the House of Representatives.

Said Eve Gartner of the Planned Parenthood Federation of America: "This ruling flies in the face of 30 years of Supreme Court precedent and the best interest of women's health and safety. ... This ruling tells women that politicians, not doctors, will make their health care decisions for them." She had argued that point before the justices.

More than 1 million abortions are performed in the United States each year, according to recent statistics. Nearly 90 percent of those occur in the first 12 weeks of pregnancy, and are not affected by Wednesday's ruling. The Guttmacher Institute says 2,200 dilation and extraction procedures - the medical term most often used by doctors - were performed in 2000, the latest figures available.

Six federal courts have said the law that was in focus Wednesday is an impermissible restriction on a woman's constitutional right to an abortion.

The law bans a method of ending a pregnancy, rather than limiting when an abortion can be performed.

"Today's decision is alarming," Justice Ruth Bader Ginsburg wrote in dissent. She said the ruling "refuses to take ... seriously" previous Supreme Court decisions on abortion.

Ginsburg said the latest decision "tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists."

Ginsburg said that for the first time since the court established a woman's right to an abortion in 1973, "the court blesses a prohibition with no exception safeguarding a woman's health."

She was joined by Justices Stephen Breyer, David Souter and John Paul Stevens.

The procedure at issue involves partially removing the fetus intact from a woman's uterus, then crushing or cutting its skull to complete the abortion.

Abortion opponents say the law will not reduce the number of abortions performed because an alternate method - dismembering the fetus in the uterus - is available and, indeed, much more common.

In 2000, the court with key differences in its membership struck down a state ban on partial-birth abortions. Writing for a 5-4 majority at that time, Justice Breyer said the law imposed an undue burden on a woman's right to make an abortion decision in part because it lacked a health exception.

The Republican-controlled Congress responded in 2003 by passing a federal law that asserted the procedure is gruesome, inhumane and never medically necessary to preserve a woman's health. That statement was designed to overcome the health exception to restrictions that the court has demanded in abortion cases.

But federal judges in California, Nebraska and New York said the law was unconstitutional, and three appellate courts agreed. The Supreme Court accepted appeals from California and Nebraska, setting up Wednesday's ruling.

Kennedy's dissent in 2000 was so strong that few court watchers expected him to take a different view of the current case.

Kennedy acknowledged continuing disagreement about the procedure within the medical community. In the past, courts have cited that uncertainty as a reason to allow the disputed procedure.

"The medical uncertainty over whether the Act's prohibition creates significant health risks provides a sufficient basis to conclude ... that the Act does not impose an undue burden," Kennedy said Wednesday.

While the court upheld the law against a broad attack on its constitutionality, Kennedy said the court could entertain a challenge in which a doctor found it necessary to perform the banned procedure on a patient suffering certain medical complications.

The law allows the procedure to be performed when a woman's life is in jeopardy.

The cases are Gonzales v. Carhart, 05-380, and Gonzales v. Planned Parenthood, 05-1382.

Kennedy Recuses From Antitrust Case
 Involving Son's Company

Tony Mauro
Legal Times
March 21, 2007

Supreme Court Justice Anthony Kennedy's son Gregory is a managing director of Credit Suisse, the investment banking firm that is a party in a major antitrust case set for argument before his father's court March 27.

It is apparently because of his son's employment that Kennedy on Monday suddenly recused in the case, Credit Suisse v. Billing, after having participated in the decision last December to grant review.

Kennedy's late-stage recusal triggered an unusual sequence of events in the case, announced on an otherwise routine order list Monday. The Court vacated its December grant of review in the case, "having been advised by Justice Kennedy that he now realizes that he should have recused himself from participation in this case, and does now recuse himself."

But then, the order continued, the Court reconsidered the Credit Suisse petition, without the participation of Kennedy or Chief Justice John Roberts Jr., who had previously recused. Minus the two justices, the Court granted review again, and the case will be argued as previously scheduled -- though before a seven-member Court. At issue in the case is whether investment firms and underwriters like Credit Suisse are immune from antitrust lawsuits over alleged manipulation of prices of stocks sold in initial public offerings.

Kennedy, like most justices, never publicly explains his reasons for recusal. But his son's employment is almost certainly the cause, since no financial conflict of interest is apparent from Kennedy's latest financial disclosure form. Gregory Kennedy, who works in Credit Suisse's New York offices, declined comment and referred calls to the firm's public relations office, which also declined comment. Mayer, Brown Rowe & Maw partner Stephen Shapiro, who will argue the case for Credit Suisse next week, says he was not aware that Kennedy's son worked for the firm.

What is unclear so far is why Justice Kennedy did not recuse in the Credit Suisse case last December, even though his son has been a managing director at Credit Suisse since August 2005.

Kennedy was among seven justices who signed a statement in 1993 specifying that in cases in which their lawyer-spouses or lawyer-children had a connection, they would recuse only when the justices knew their relative had an interest that could be "substantially affected," or when the justice's impartiality "might reasonably be questioned."

Gregory Kennedy, a 1992 graduate of Stanford Law School, formerly practiced law at Sullivan & Cromwell in New York. At that time he, like Eugene Scalia, a son of Justice Antonin Scalia who works at Gibson, Dunn & Crutcher, structured his compensation so that it was not dependent on Supreme Court litigation.

But once the younger Kennedy left the law for Wall Street, the 1993 agreement no longer applied. The statute governing the recusal of federal judges makes it unnecessary to recuse in most cases in which a judge's close adult relatives are involved in a case before the judge.

Northwestern University judicial ethics expert Steven Lubet says that in such a situation the judge must recuse only if the relative is "known by the judge to have an interest" that would be substantially affected by the outcome of the case. Typically, if a relative of a judge is a salaried employee of a company in a case that falls short of life-or-death importance for that company, recusal is not required, Lubet says.

But on Wall Street, managing directors are typically compensated with a combination of salary and stock. A Credit Suisse spokesman declined to say if Gregory Kennedy's compensation includes stock.

But assuming that is the case for the young Kennedy, his father may have decided to act because the outcome of the Credit Suisse case could conceivably affect its stock value, Lubet says.

"He probably came to the belated conclusion that his son had an interest that could be substantially affected by the case," Lubet says.

Lubet says Kennedy "was prudent to be concerned" about the ethical issue, though he wishes Kennedy -- and his colleagues -- would be more open in their decision-making. "It is frustrating, baffling, and unjustifiable that they make this all so mysterious."

Roberts did not explain his recusal in the Credit Suisse case last December, but his 2005 disclosure form reveals he has investments with several of the firms connected to the case, including: Merrill Lynch, Pierce, Fenner & Smith; Fidelity; and Janus.

Case of the Dwindling Docket Mystifies the Supreme Court

Linda Greenhouse
The New York Times
December 7, 2006

WASHINGTON, Dec. 6 — On the Supreme Court’s color-coded master calendar, which was distributed months before the term began on the first Monday in October, Dec. 6 is marked in red to signify a day when the justices are scheduled to be on the bench, hearing arguments.

The courtroom, however, was empty on Wednesday, and for a simple reason: The court was out of cases. The question is, where have all the cases gone?

Last year, during his Senate confirmation hearing, Chief Justice John G. Roberts Jr. said he thought the court had room on its docket and that it "could contribute more to the clarity and uniformity of the law by taking more cases."

But that has not happened. The court has taken about 40 percent fewer cases so far this term than last. It now faces noticeable gaps in its calendar for late winter and early spring. The December shortfall is the result of a pipeline empty of cases granted last term and carried over to this one.

The number of cases the court decided with signed opinions last term, 69, was the lowest since 1953 and fewer than half the number the court was deciding as recently as the mid-1980s. And aside from the school integration and global warming cases the court heard last week, along with the terrorism-related cases it has decided in the last few years, relatively few of the cases it is deciding speak to the core of the country’s concerns.

The reasons for the decline all grow out of forces building for decades. The federal government has been losing fewer cases in the lower courts and so has less reason to appeal. As Congress enacts fewer laws, the justices have fewer statutes to interpret. And justices who think they might end up on the losing side of an important case might vote not to take it.

In a divided court, in a divided country, the court’s reduced role is perhaps not surprising, nor is it necessarily a bad thing. "In the post-Bush v. Gore era, the court may be concerned about taking the wrong case and making an unpopular decision," said Frederick Schauer, a professor at the John F. Kennedy School of Government at Harvard, in an interview.

Professor Schauer argued in a recent and much-discussed Harvard Law Review article that the court’s work "had only minimal direct engagement with the central issues of the nation’s public and policy agenda." In an interview, he said, "I think they like being under the radar."

In private conversations, the justices themselves insist that nothing so profound is going on, but rather seem mystified at what they perceive as a paucity of cases that meet the court’s standard criteria. The most important of those criteria is whether a case raises a question that has produced conflicting decisions among the lower federal courts.

But there are still plenty of lower-court conflicts that go unresolved, said Thomas C. Goldstein, a Supreme Court practitioner and close student of court statistics who wrote last week on the popular Scotusblog that the justices were "on the cusp of the greatest shortfall in filling the court’s docket in recent memory, and likely in its modern history."

"I don’t think we’re at the end of history and have fixed all the problems," Mr. Goldstein said in an interview.

One theory is that the court is so closely divided that neither the liberals nor the conservatives want to risk granting a case in which, at the end of the day, they might not prevail. To grant a case takes four votes, which can be a heartbreaking distance from the five votes it takes to win. Scholars of the court call this risk-averse behavior "defensive denial."

While such behavior may account for a portion of the shortfall, it can hardly provide a global explanation, because only a relative handful of the 8,000 appeals that reach the court each term are ideologically charged.

Other, more neutral explanations provide likely pieces of the puzzle.

One is the decreasing number of appeals filed on behalf of the federal government by the solicitor general’s office. Over the decades, the Supreme Court has granted cases filed by the solicitor general’s office at a high rate. In the mid-1980s, the office was filing more than 50 petitions per term. But as the lower federal courts have become more conservative and the government has lost fewer cases, the number has plummeted, opening a substantial hole in the court’s docket.

As recently as the court’s 2000 term, the solicitor general filed 24 petitions, of which 17 were granted. Last term, it filed 10, of which the court granted 4. This term, the solicitor general has filed 13 petitions; the court has granted 5, denied 3 and is still considering the rest.

Another explanation lies across the street from the Supreme Court, in Congress.

Over the years, about half the court’s docket has been made up not of constitutional cases, but of cases requiring the justices to interpret federal statutes. Statutes from the 1970s, including major environmental laws, antidiscrimination laws and Erisa, the employee-benefits law, have been staples of the court’s docket for decades. But as Congress’s willingness to pass new laws has waned, the flow of statutory cases has begun to dry up.

Another possible explanation is the method by which the justices screen the thousands of petitions. Eight of the justices, all except Justice John Paul Stevens, pool their law clerks and have only one clerk make the initial recommendation for each case.

The recommendation is not binding, of course. But there is a built-in "institutional conservatism" in which law clerks are afraid to look overly credulous and so are reluctant to recommend a grant, according to Stephen M. Shapiro, a former deputy solicitor general who practices law in Chicago with Mayer, Brown, Rowe and Maw.

"Perhaps the clerks have been trained to be naysayers for so long that they don’t know any other way," Mr. Shapiro said in an interview.

The sharpest drop in opinions came after William H. Rehnquist became chief justice in 1986. He had made clear his belief that the court under Chief Justice Warren E. Burger was taking too many cases, and Congress assisted in 1988 by eliminating from the court’s jurisdiction a category of "mandatory" appeals to which the justices collectively had long objected.

In the early 1990s, after the number of decisions dropped to 107 from 145 in the space of five terms, Chief Justice Rehnquist responded to reporters’ questions by commenting wryly that the Supreme Court would be the first institution of American government to fulfill Karl Marx’s prophecy of the withering away of the state.

He was kidding, of course. The late chief justice believed in a muscular role for the court, and went on to show that he could accomplish more with less.

The question now, on a docket dominated by cases that only a law professor could love, is how much less.

"It’s not obvious to me that the court should be doing more," said Orin Kerr, a visiting professor at the University of Chicago Law School who wrote on his blog that constitutional law scholars "are kind of bored these days."

In an interview, Professor Kerr said that while it was easy to say that the court should be doing something different, "no two people would agree on how it should change."

Alito Urges Judges to Show Restraint

By Mark Sherman
The Associated Press
New York Lawyer
November 17, 2006

WASHINGTON -- Supreme Court Justice Samuel Alito on Thursday called for judicial restraint, saying courts are not "the center of the universe" when it comes to legal questions.

"Life-tenured, appointed judges must exercise restraint in construing" the constitution, Alito told a meeitng of the Federalist Society in a hotel ballroom packed with prominent conservatives.

Alito joined the court earlier this year, helped by society members who mounted an aggressive campaign to build support for his confirmation in the Senate.

The newest justice proudly called himself a 20-year member of the group and embraced its ideal of limited government.

He said the executive and legislative branches of government should play an active role in determining the constitutionality of proposed laws and enforcement actions and not leave that function solely to the judiciary.

"It is wrong to think that the courts are the center of the universe when it comes to all legal questions," Alito said.

He spoke after the group marked Justice Antonin Scalia's 20th anniversary on the court. Alito jokingly complained that after Scalia's 98-0 confirmation in 1986, he expected all Italian-American jurists from New Jersey to have an equally smooth path to the court.

"It didn't quite turn out that way, but what's 40 votes?" Alito asked, recalling opposition to his nomination from liberal groups and some Democratic senators.

Alito was confirmed in the Senate by a vote of 58-42 earlier this year.

Alito and a half dozen other federal judges nominated by President Bush are taking part in the Federalist Society's annual convention, a measure of the conservative organization's influence in the nation's legal system.

Solicitor General Paul Clement, the Bush administration's lawyer at the Supreme Court, kicked off the meeting Thursday morning with the prediction that with two new Bush-appointed conservative justices, the high court will have ample opportunity in coming years to spell out its views on limited government, a Federalist Society hallmark.

Clement said an early test for the court would be the upcoming case in which 12 states, three cities and environmental groups are trying to compel the Environmental Protection Agency to recognize carbon dioxide and other greenhouse gas emissions from cars as harmful pollutants that should be regulated.

Clement said he will be defending the government's "discretion not to regulate" in this area. The administration has been strongly criticized by environmentalists and others for its lack of action to address global warming.

The Federalist Society for Law and Public Policy Studies was founded in 1982 as a debating society by students who believed professors at the top law schools were too liberal. It now claims 35,000 members, including prominent members of the Bush administration, the federal judiciary and Congress.

Vice President Dick Cheney and Homeland Security Secretary Michael Chertoff are scheduled to address the convention Friday.

Abortion Cases Draw Throngs to High Court
Lawyers Focus on Justice Kennedy in Arguments

By Joan Biskupic
USAa Today
November 9, 2006

WASHINGTON — The Supreme Court was packed and demonstrators gathered outside under drizzly skies Wednesday as the justices heard arguments in what probably will be two of the most significant abortion rights cases in decades.

The disputes over Congress' ban of a procedure it calls "partial birth" abortion represent a key test of whether the court led by Chief Justice John Roberts will take a harder line against abortion rights now that Justice Sandra Day O'Connor, a key supporter of such rights, has retired.

However, as the two-hour court session played out, neither Roberts nor the conservative justice who replaced O'Connor, Samuel Alito, were the key players. Instead, everything seemed choreographed around Anthony Kennedy, the justice who is at the ideological center of the divided, nine-member court. Kennedy, who has supported abortion rights but voted against striking down a state ban on "partial birth" abortion six years ago, is widely viewed as the key vote in the cases.

As he seemed to struggle with whether the Republican-led Congress' ban on the midterm procedure should be upheld, lawyers in the case focused on him in their arguments. Liberal justices such as Ruth Bader Ginsburg and John Paul Stevens suggested the ban restricted the right to abortion and appeared to try to lure Kennedy to their side by asking leading questions of lawyers.

In 2000, the court rejected state bans on "partial birth" abortion that did not include an exception for situations in which a woman's health was in danger. A key issue Wednesday was whether Congress can outlaw the procedure by declaring that it is "never" necessary for maternal health.

Kennedy expressed concern about how often the banned method — known medically as "intact dilation and evacuation" or "dilation and extraction" — is used and whether alternatives are readily available. The procedure involves removing a fetus so it partially emerges from the vagina intact, rather than dismembering the fetus in the uterus.

The court's 350-seat courtroom was filled; members of the public began lining up at 3:30 p.m. Tuesday for a chance to hear the arguments. Scores of protesters from both sides of the abortion debate, along with TV news crews and others who failed to get a prized seat inside, gathered in front of the building.

The arguments were jarringly broken 40 minutes into the session by the screaming of a spectator who opposed abortion. Several police officers wrestled him out of the courtroom.

Roberts, who appeared to support the ban, asked several questions, but the court's other conservatives were unusually quiet. Alito said nothing; the usually talkative Antonin Scalia made few queries. (Another conservative, Clarence Thomas, was absent because of illness; Roberts said Thomas would still participate in the case.)

The conservatives seemed content to let U.S. Solicitor General Paul Clement defend the 2003 ban. "Congress was entitled to make a judgment … to ban a particularly gruesome procedure that blurred the line between abortion and infanticide," he said.

Kennedy, who often votes with the conservatives, has vacillated on abortion. In 1989, he joined an opinion that would have undermined Roe v. Wade. In 1992, he reversed course and became the critical fifth vote to uphold Roe. In 2000, he split from his abortion rights colleagues and dissented from the ruling that said states could not ban the procedure without a health exception.

Kennedy's comments Wednesday suggested he is not locked into that position, but it was unclear how he might vote. "In how many … instances is there serious health risk to the mother that requires the procedure, as opposed to (it) simply being an elective procedure?" he asked.

Priscilla Smith, representing Nebraska physician LeRoy Carhart, said no hard data exist. But she said that for some doctors whose patients face cancer, hemorrhaging or other serious medical conditions, the procedure is common.

Lawyer Eve Gartner, representing Planned Parenthood Federation of America, said that although the number of women affected by the ban might not be high, "in some cases, this procedure averts catastrophic health consequences for the woman."

Some of Kennedy's questions suggested he was worried about the risks to women who might not have access to the procedure some physicians say is more protective of a woman's uterus. He also seemed concerned that doctors might inadvertently violate the law by starting to do one procedure, then ending up doing the banned one.

Half of New Supreme Court Cases Term Touch on Business

By Mark H. Anderson
Market Watch
September 29, 2006

WASHINGTON (MarketWatch) -- The U.S. Supreme Court so far has filled half of its 2006-2007 docket with business cases, cutting a wide swath across important legal issues for the corporate world.

Topping the list is a punitive damages case that is being closely followed across business sectors. But the justices have also taken up several cases on antitrust, intellectual property and environmental regulation, continuing a recent trend where the court has shown particular interest in these areas.

"When the Supreme Court returns from its summer recess, it will hear a great number of cases important to the business community," said Robin Conrad, senior vice president at the U.S. Chamber of Commerce's litigation unit. "We applaud the Supreme Court for recognizing that business cases belong on its docket and deserve to be addressed."

Mark Levy, an appellate lawyer at Kilpatrick Stockton LLP, said that by his count the Supreme Court is reviewing 19 business-related appeals of the 38 issues taken up so far for the 2006-2007 term set to begin on Monday, Oct. 2. The Supreme Court's accepts between 70 and 80 cases each term and will fill the second half of the docket between now and January 2007.

Levy said last year the court's docket was about 30% business matters. "The difference between 30% and 50% is significant," he said.

Earlier this week the justices added several more business cases when they granted nine new cases from almost 2,000 appeals that were filed with the high court over the summer. Among those appeals is a case on the "willfulness" liability test in the Fair Credit Reporting Act. The justices, reviewing class-action lawsuits on credit scoring and insurance coverage, will be deciding the standard for when insurance companies must tell consumers when low credit scores have resulted in higher quoted rates for coverage.

Here is a look at some of the important business cases already slated for review this fall:

- In late October the Supreme Court will hear an appeal filed by Altria Group Inc.'s (MO) Philip Morris USA unit challenging a $79.5 million punitive damages award to a smoker's widow. Punitive damages cases against companies is a high-profile legal business issue and how the court rules in this case is being closely watched by a number of corporate interests.

In addition to further clarifying limits on the size of punitive damages in relation to actual damages in liability suits, Levy said this case is well positioned to provide additional insights on how new Chief Justice John Roberts Jr. and Justice Samuel Alito will reshape the Supreme Court.

The last Supreme Court decision on punitive damages came in 2003 on a vote of 6-3 in the court's State Farm decision. Two of the majority votes came from former Chief Justice William Rehnquist and former Justice Sandra Day O'Connor, who declined to join the most conservative members of the court in rejecting limits on punitive damages.

"We don't know what they think about punitive damages," Levy said of Roberts and Alito. He added the case could say something about how far the new justices will go in respecting legal precedent, or stare decisis, which was a major issue during their confirmation hearings last year.

An incremental approach to punitive damages by the two justices would extend limits imposed by State Farm by the courts moderate and liberal justices. A vote with conservatives who have rejected judicial limits on jury awards could overturn the recent precedent that generally limits punitive damages to single digit ratios with actual damages.

- The Supreme Court will continue a recent trend of reviewing patent law and intellectual property rulings out of the Federal U.S. Circuit Court of Appeals, a special Washington-based court that rules on patent law appeals.

The most significant patent case is the Supreme Court's review of so-called obviousness standards in patent law, which determines when an invention is too obvious to warrant patent protection. In the case before the court, Teleflex Inc. (TFX) has claimed KSR International Inc. of Canada has violated patents it owns for gas pedal designs. Teleflex's claims were initially dismissed, but the Federal Circuit ruled additional analysis was necessary and spelled out what some patent experts believe are lower standards for obviousness claims.

- The justices have also so far taken up two cases that continue another recent trend of reviewing antitrust case law. Additional antitrust appeals that could be granted are in the pipeline. One case already on the docket, however, is a civil antitrust lawsuit against regional phone companies Verizon Communications Inc. (VZ), BellSouth Corp. (BLS), AT&T Inc.'s (T) SBC Communications unit and Quest Communications International Inc. (Q).

The issue in the phone company case is what the plaintiffs must prove in arguing the companies engaged in an anti-competitive conspiracy that violated civil antitrust law before their case can proceed to legal discovery. The phone companies argue the 2nd U.S. Circuit Court of Appeals, New York, issued a ruling that set the standards too low and will expose corporations to more costly litigation if allowed to stand.

The other antitrust case reviews a $78.77 million judgment against Weyerhaeuser Co. (WY) for allegedly engaging in predatory buying in the Pacific Northwest lumber market. The case could alter standards for what triggers an antitrust violation when a company buys up raw materials at inflated prices with the aim of choking off competition.

- The court is also hearing a pair of environmental regulation appeals that simultaneously review federal clean air regulation standards and probe presidential administration powers. "They both fit into a political template," Levy said of the clean air regulation appeals.

The first case involves an appeal from 12 states and several environmental groups that are trying to force the Environmental Protection Agency to regulate automobile emissions under the Clean Air Act. The second case probes whether plant upgrades by Duke Energy Corp. (DUK) are subject to EPA regulations to limit pollution at coal-fired power plants

In Loss for Bush, Supreme Court
Blocks War-Crimes Trials at Guantanamo

New York Lawyer
By The Associated Press
June 29, 2006

Washington - The Supreme Court ruled Thursday that President Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees.

The ruling, a rebuke to the administration and its aggressive anti-terror policies, was written by Justice John Paul Stevens, who said the proposed trials were illegal under U.S. law and Geneva conventions.

The case focused on Salim Ahmed Hamdan, a Yemeni who worked as a bodyguard and driver for Osama bin Laden. Hamdan, 36, has spent four years in the U.S. prison in Cuba. He faces a single count of conspiring against U.S. citizens from 1996 to November 2001.

Two years ago, the court rejected Bush's claim to have the authority to seize and detain terrorism suspects and indefinitely deny them access to courts or lawyers. In this followup case, the justices focused solely on the issue of trials for some of the men.

The vote was split 5-3, with moderate Justice Anthony M. Kennedy joining the court's liberal members in ruling against the Bush administration. Chief Justice John Roberts, named to the lead the court last September by Bush, was sidelined in the case because as an appeals court judge he had backed the government over Hamdan.

Thursday's ruling overturned that decision.

Courtroom Camera Bill Stirs Debate

By Matthew Chayes
Chicago Tribune
May. 03, 2006

WASHINGTON - As far as opinions go, Justice David Souter has made it clear what he thinks of TV cameras in Supreme Court hearings.

"I think the case is so strong," Souter told a House subcommittee in 1996, "that I can tell you the day you see a camera come into our courtroom it's going to roll over my dead body."

But now a bill sponsored by Sen. Arlen Specter, R-Pa., and approved by the Senate Judiciary Committee he leads would force the Supreme Court to let cameras into its hallowed halls, one of the few public spaces in Washington, along with other federal courts, where cameras are banned.

That prospect miffed two other justices, Anthony Kennedy and Clarence Thomas, who told a House subcommittee early this month that if Congress authorized the use of cameras at the court, it would mar the Supreme Court's decorum, endanger the justices' personal security and raise constitutional questions over the proper role of each branch of government.

Supporters of cameras in the Supreme Court, including Sen. Dick Durbin, D-Ill., say that opening the court to cameras would teach the nation an important civics lesson.

"Unfortunately, a lot of people think this is all about Judge Judy, and that is not how justice is handed down in America," Durbin said, referring to the television judge. "This is an institution, one of the most important in our government, a government that prides itself on being open and accessible. Eliminating the mystery of these proceedings will help people understand what justice really means."

Laurence Tribe, a Harvard law professor who supports cameras at the high court, agreed, noting that only the "privileged few" get to witness the justices in court.

"Unfortunately, only the most naive idealist believes that the general public reads the court's opinions," said Tribe, whose first argument before the Supreme Court in 1980 established that the Constitution guarantees the public's right to attend criminal trials.

The move to allow cameras comes after Chief Justice John Roberts Jr. said in his confirmation hearings that he would be willing to consider televising Supreme Court sessions.

Last year, when the courts refused to step in to order that Terri Schiavo be kept alive, lawmakers demanded more accountability from the courts. When Specter introduced his camera measure in September, he complained that the Supreme Court has become a "virtual super legislature."

The same week, Sen. Charles Grassley, R-Iowa, and Rep. James Sensenbrenner, R-Wis., chairman of the House Judiciary Committee, proposed separate measures to install a watchdog over the nation's courts, that would "provide for the detection and prevention of inappropriate conduct in the federal judiciary."

Judge Boyce Martin of the 6th U.S. Circuit Court of Appeals based in Cincinnati said, "Televising proceedings is one of the more important new innovations that's gonna help the judiciary be appreciated more by the public as a whole."

Supporters of courtroom cameras dismiss Kennedy's assertion on legal grounds that forcing cameras into the court would raise separation-of-powers concerns. They note that Congress sets the judiciary's budget, its jurisdiction and the number of justices.

"For him to say that we couldn't say that you have cameras in the courtroom is just idiotic," said Grassley, who has proposed legislation that would let judges decide whether to televise proceedings in their courtrooms. The Specter measure would force the nine justices to admit cameras into the court although they could on a case-by-case basis have them banned.

Judge Alex Kozinski, who sits on the 9th U.S. Circuit Court of Appeals based in California, where cameras film some appellate proceedings, said he believes that giving jurists the choice is the right approach. But he opposes having legislators force it on the judiciary.

"I think cameras work fine if the judges involved are comfortable with having them there," he said, but he insists it should be an evolution in their thinking, not a mandate.

The Supreme Court now makes audio recordings and transcripts of the oral arguments available later each term. Recordings for noteworthy cases are released immediately after a hearing.

Kozinski said that televising all federal court proceedings is probably inevitable but that the push should come from the judiciary.

At the state level, numerous states allow cameras and televising of trials.

Several Supreme Court justices have at various times said they don't want cameras in the courtroom because they value their privacy, helping protect them from people who might physically attack them because they disagree with decisions.

But attacks on Supreme Court justices are rare.

Justice Byron White, during a speech in Utah in 1982, was punched by a screaming man critical of the court's decisions on school integration and pornography. Justice Ruth Bader Ginsburg and retired Justice Sandra Day O'Connor recently disclosed they got death threats.

White suffered minor bruising, but some attacks on judges have ended tragically, including last year's murders in Chicago of the husband and mother of U.S. District Judge Joan Lefkow by a disgruntled plaintiff.

But lawmakers pushing for televised court proceedings say judges would be in no more danger than members of the other two branches of government.

"Since I live in a world of televised Senate proceedings and vote on controversial bills and make speeches on a regular basis, I don't think that that jeopardizes my security," Durbin said.

Plus, camera supporters argue, the identities of most federal court jurists are publicly available anyway.

"Anybody who really wants to know what I look like can just put my name into Google," Kozinski said, "and a Google image will come up with any number of pictures of what I look like."

Ginsburg Calls Proposed
Congressional Watchdog for Courts "Scary"

By Gina Holland
The Associated Press
May 3, 2006

WASHINGTON -- Supreme Court Justice Ruth Bader Ginsburg said Tuesday that a Republican proposal in Congress to set up a watchdog over the federal courts is a "really scary idea."

Ginsburg told a gathering of the American Bar Association that lawyers should stick up for judges when they are criticized by congressional leaders.

"My sense now is that the judiciary is under assault in a way that I haven't seen before," she said.

As an example, she mentioned proposals by senior Republicans who want an inspector general to police judges' acceptance of free trips or their possible financial interests with groups that could appear before them.

"It sounds to me very much like the Soviet Union was .... That's a really scary idea," said Ginsburg, who was put on the court by President Clinton and is one of its liberal members.

Ginsburg said her confirmation hearings in 1993, and those the following year for Justice Stephen Breyer, were long but friendly. "That bipartisan spirit has broken down," she said.

Sen. Charles Grassley, R-Iowa, said last week that the judiciary wasn't doing enough policing of itself. His plan would create an inspector general to oversee federal courts including the Supreme Court. The inspector general would be directed to report any judicial misconduct to the Justice Department.

House Judiciary Committee Chairman James Sensenbrenner, R-Wis., has proposed a separate plan to cover lower federal courts only.

Ginsburg said her concerns were about the legislative branch setting up a so-called guardian for the judicial branch. She also said there have been discussions in Congress about limiting the scope of courts.

American Bar Association President Michael Greco asked Ginsburg what lawyers could do. She said attorneys can speak up and "say these efforts are wrong." Judges, she said, cannot lobby on their own behalf.

http://judiciary.house.gov/media/pdfs/judgeIGintro42706.pdf
  
  U.S. House of Representatives
  Committee on the Judiciary
    
  April 27, 2006
  
  Sensenbrenner, Grassley Introduced Legislation Establishing
  an Inspector General for the Judicial Branch
  
  WASHINGTON, D.C. – House Judiciary Committee Chairman F. James Sensenbrenner, Jr. (R-Wis.) and Senator Charles Grassley (R-Iowa), a Member of the Senate Judiciary Committee, today introduced legislation establishing an independent Inspector General for the Judicial Branch. Rep. Lamar Smith (R-TX), Chairman of House Judiciary’s Subcommittee on Courts, the Internet, and Intellectual Property is an original co-sponsor of the House legislation, H.R. 5219 “The Judicial Transparency and Ethics Enhancement Act of 2006.”
 

Roberts' Annual Report Focuses
 on Threats to Judicial Independence

By Tony Mauro
New York Lawyer
Legal Times
January 6, 2006

The year 2005 was a stormy one for the judiciary, not only because of the death of Chief Justice William Rehnquist, but because of clashes with Congress over the Terri Schiavo case, the politicking over judicial nominees, and issues such as Supreme Court citation of foreign laws and precedents.

Yet when Chief Justice John Roberts Jr. issued his first annual report on the state of the judiciary last week, he sidestepped those controversial questions and focused instead on what he saw as more bread-and-butter threats to judicial independence: low judicial salaries and high rental costs for courthouses. In doing so, he followed the precedent of predecessors Warren Burger and Rehnquist, who largely avoided controversial topics other than judicial salaries in their 30 years of annual reports.

Higher pay for judges and rent relief for courthouses, Roberts said, would have a "vanishingly small" impact on the overall federal budget but "would go a long way toward maintaining a strong and independent federal judiciary with the resources to administer justice efficiently and fairly. And that is priceless." Roberts also called for increased security for judges in the wake of violence aimed at federal and state judges last year.

Roberts issued the report three months into his tenure as chief justice, which he described as "a bit presumptuous," but said he did not want to break with the tradition of his predecessors.

Rep. Adam Schiff (D-Calif.), co-chair of the Congressional Caucus on the Judicial Branch, supports Roberts’ appeals, but expressed the hope that Roberts and the rest of the judiciary will do more to build public support for a more broadly defined brand of judicial independence.

"He could set a completely new tone and make an outreach to Congress and to the public to help the people understand that the judge’s role is not to be popular," said Schiff. "He did not focus on that aspect of judicial independence." Schiff’s caucus comprises two dozen members of Congress interested in improving relations between the legislative and judicial branches. The caucus has not yet met with Roberts, Schiff said.

The salary issue raised by Roberts is a recurring theme for chief justices; in 2002, as Roberts noted, the late Chief Justice William Rehnquist said he was ‘beating a dead horse’ by raising it. But the situation has only gotten worse, Roberts said, with the real pay of federal judges declining almost 24 percent since 1969. With a raise that began on Jan. 1, the annual salary of the chief justice went to $212,100. Associate justices are paid $203,000, while appeals judges get $175,100, and district court judges receive $165,200.

"There will always be a substantial difference in pay between successful government and private sector lawyers," Roberts acknowledged in his written report. "But if that difference remains too large -- as it is today -- the judiciary will over time cease to be made up of a diverse group of the nation’s very best lawyers." Roberts noted that increasing numbers of judges are leaving the bench -- nine in the last year. "Every time a judge leaves the bench for a higher paying job, the independence fostered by life tenure is weakened," Roberts said.

The rent complaint is a newer but growing problem. During the 2005 fiscal year, the judiciary paid $926 million to the General Services Administration in rent, Roberts said, even though the GSA’s actual cost of providing the space was $426 million. "The federal judiciary cannot continue to serve as a profit center for GSA," Roberts said. In part because of rising rents, about 1,500 jobs in the judicial branch were eliminated in the last two years.

In testimony before Congress last June, GSA official F. Joseph Moravec defended GSA rental policies as "an honest accounting of the cost of occupancy" for high quality courtroom space. The judiciary is the GSA’s largest customer, he said, occupying 2,159 courtrooms and 39 million square feet, a threefold increase in the last 30 years. "It is high quality, functional space with befitting public areas, modern technological functionality and enhanced security features," said Moravec, commissioner of public building services.

O'Connor Not Moving Quietly Toward Retirement

By Tony Mauro
Legal Times
New York Lawyer
November 28, 2005

Supreme Court Justice Sandra Day O'Connor is not moving quietly toward retirement.

O'Connor's speech Nov. 7 to the American Academy of Appellate Lawyers in Washington, D.C., was a rip-snorting defense of judicial independence that criticized -- without naming them -- former House Speaker Tom DeLay, R-Texas, Sen. John Cornyn, R-Texas, and even the late president Franklin Delano Roosevelt, whom she described as "the fellow on the dime." Her speech was the talk of the academy's meeting. The Court released the text of her speech on Nov. 21. O'Connor, 75, announced her retirement July 1, but said it would not take effect until her successor is confirmed. President Bush's nominee to replace her, Samuel Alito Jr., goes before the Senate for confirmation hearings in January.

"We have the power to make the President or Congress really, really angry," O'Connor told the lawyers. "In fact, if we do not make them mad some of the time, we probably aren't doing our jobs. Our effectiveness, therefore, relies on the knowledge that we won't be subject to retaliation for our acts."

O'Connor went on to describe threats to judicial independence worldwide -- including an episode in the mid-1990s in Russia in which presidential guards killed the chief justice's pet cat. But threats exist closer to home, O'Connor said, and she described them specifically. She recalled the speech of "a prominent House leader" -- DeLay -- before a conservative conference in which he criticized court decisions that struck down school prayer and other rulings that invoke foreign law. DeLay spoke of "a judiciary run amok," in the wake of the federal courts' handling of the Terri Schiavo case; O'Connor described that case as a "flagrant display of judicial restraint."

Then, referring to a floor speech made by Cornyn on April 4, O'Connor said: "It doesn't help when a high-profile senator, after noting that decisions he sees as activist cause him 'great distress,' suggests there may be 'a cause-and-effect connection' between such activism and the 'recent episodes of courthouse violence in this country.'" Cornyn later softened his remarks.

Not all of O'Connor's targets were Republican. She also quoted extensively from Roosevelt's criticisms of the Supreme Court leading up to his 1937 court-packing plan. Roosevelt accused the court of establishing itself as "a third house of Congress -- a super-legislature."

Said O'Connor, "Now President Roosevelt was in many ways a great and important president, but surely this was not his finest hour."

O'Connor also took on -- again, without naming names -- an op-ed piece written in the Washington Post in August by Robert Bauer, a D.C. partner with Perkins Coie. Bauer criticized the Court for being "imperious" and unaccountable to the public, and suggested cutting the Court's budget until it allows cameras into federal courts. "When I hear a threat to cut judicial budgets, even when it is only about cameras, I get really worried," said O'Connor. Bauer's reaction? "I'm pleased she read the article." He added, "There is nothing incompatible between judicial independence and some measure of accountability."

O'Connor ended her talk by charging the lawyers in the audience with the task of protecting judicial independence. There is no natural constituency for judicial independence," she said, "except for a vibrant, responsible lawyer class. We can't just trust the courts to protect themselves."

Justice Breyer Says He's Worried About Political Criticism

By Gina Holland
The Associated Press
August 10, 2005

Supreme Court Justice Stephen Breyer said Tuesday in Chicago that rulings on difficult subjects like gay rights and the death penalty have left courts vulnerable to political attacks that are threatening judicial independence.

Breyer urged lawyers to help educate people about court responsibility to be an independent decision-maker.

"If you say seven or eight or nine members of the Supreme Court feel there's a problem ... you're right," he told the American Bar Association. "It's this edge on a lot of issues."

Sen. Lindsey Graham, R-S.C., who was speaking with Breyer, said: "The politics of judges is getting to be red hot." He said Supreme Court rulings on the Pledge of Allegiance and Ten Commandments have captured the public's interest and polarized Democrats and Republicans.

"There's nothing that's not on the table," former Solicitor General Theodore Olson said of the Court's work, which this fall includes issues like abortion, capital punishment and assisted suicide.

Breyer said the nine-member Court is focused on constitutional limits on major fights of the day. "We're sort of at the outer bounds. And we can't control politics of it, and I don't think you want us to try to control politics of it," he said.

Congressional leaders including House Majority Leader Tom DeLay, R-Texas, have criticized justices in recent months. DeLay was particularly critical of the Court's refusal to stop Terri Schiavo's death and at a death penalty decision that cited international cases.

Breyer defended using overseas legal opinions as a guide only, adding, "It has hit a political nerve."

Breyer, Olson and Graham were discussing the future of courts on the final day of the ABA's annual meeting in Chicago.

Also Tuesday, the group agreed to endorse federal protection for journalists who refuse to reveal their sources to prosecutors. The measure, which was approved overwhelmingly by voice vote, authorizes the organization to lobby Congress, where "shield law" proposals are pending.

Judicial independence has been a major theme at the meeting of the ABA, a 400,000-member group.

The group's policymaking board passed a resolution urging elected officials and others to support and defend judges. New group President Michael Greco of Boston said judges have faced physical threats and threats of impeachment from Washington political leaders unhappy with court decisions.

"If we do not protect our courts, our courts cannot protect us," Greco said.

On another subject, Greco defended the ABA's role in checking the background of Supreme Court nominee John Roberts and other federal judicial nominees. The committee has spent the past two weeks reviewing Roberts' work on an appeals court and interviewing people who have worked with him.

"The ABA does not, and we will not, protect the interests of any political party or faction nor the interests of any ideological or interest group," said Greco, who previously oversaw the judge review committee.

Breyer told the group that the retirement of Sandra Day O'Connor is a personal loss and loss for the nation.

What Happens to O'Connor's Clerks?

By Tony Mauro
New York Lawyer
Legal Times
July 22, 2005

Inside the Supreme Court, Justice Sandra Day O'Connor's July 1 retirement announcement has made almost no perceptible difference.

Petitions still flow into O'Connor's chambers, her four clerks from last term are leaving in phases and looking for jobs, and her three new clerks are reporting for duty, with plenty of work to do.

The reason that so little has changed lies in O'Connor's carefully worded July 1 letter to President Bush, which states her retirement is effective "upon the nomination and confirmation of my successor." As things are shaping up, that means her new clerks will have at least a couple of months of experience before their settled plans for working seven-day weeks as clerks at the Court for the next year begin to change.

The new clerks are Benjamin Horwich, a Stanford Law School grad; Amy Kapczynski, a graduate of Yale; and from Harvard comes Alexander Volokh -- yes, the brother of University of California-Los Angeles law professor Eugene Volokh, who also once clerked for O'Connor.

So what happens to the trio once O'Connor officially leaves? One will likely stay on, since retired justices are assigned one clerk. It is not certain how that clerk will be picked. When Justice Lewis Powell Jr. retired, his four clerks drew a name out of a hat to decide.

As for the other two, they could be redistributed to, or shared with, other justices' chambers; they could be made available to O'Connor's successor; or they could be offered the chance to reapply to the Court next term.

Or, conceivably, the clerks could be shown the door. After Powell retired abruptly in late June of 1987, two of the three law clerks who suddenly were out on the street had jobs by August.

No tears need be shed, then, for the O'Connor clerks whose lives have been scrambled by her resignation. Lawyers at the firms that like to hire Supreme Court law clerks say the O'Connor trio will have just about the same cachet as clerks who spend the entire term at the Court.

"Anyone who was hired as a Supreme Court clerk would be a valuable commodity on the market, no matter how long they work there," says Jones Day partner Michael Carvin, who says he has already talked to some of last term's O'Connor clerks about jobs at his firm.

The clerks -- past and future -- enter a job market that continues to be stunningly lucrative. Last year, hiring bonuses for Supreme Court clerks topped $150,000 at some firms -- in addition to starting salaries at that level or higher.

As for O'Connor's offices, it appears likely she will be uprooted for the second time this year when she retires. Because of the ongoing Court modernization project, she had to move once already, to an office once occupied by Justice William Brennan Jr. Also because of that project, office space is at a premium at the Court. So chances are that when her retirement becomes official, O'Connor will move out of the Court building to the Thurgood Marshall Federal Judiciary Building a few blocks away.

The building, opened in 1992, was designed to handle the office needs of up to three retired justices at a time, and both Justices Byron White and Harry Blackmun set up shop there.

Back at the Court, if tradition holds, O'Connor's office space will be offered to current justices, and only if none of them wants to move will it be given to the new junior justice.

Disorder in the Court

Editorial
New York Daily News
June 28, 2005

Battered women across America have one more reason to cringe. A decision handed down by the Supreme Court yesterday will make it harder for them to fight back against the deadly scourge of domestic violence.

The sad, infuriating details of Castle Rock vs. Gonzales illustrate the desperate need for new laws to set right what the court got wrong. Our story starts in 1999, when a woman named Jessica Gonzales of Castle Rock, Colo., won a court order instructing her abusive estranged husband, Simon Gonzales, to stay 100 yards away from the family's home at all times.

But the husband had limited rights to visit the couple's three children, Rebecca, Kathryn and Leslie, ages 10, 8 and 7. And barely a month after the restraining order was issued, he violated it by unexpectedly showing up and secretly taking the three girls away without permission.

Jessica Gonzales called the police at 7:30 p.m. and reported that her husband had abducted the children, and again at 8:30 when a cell phone conversation with Simon revealed they were at a Denver amusement park. All this time, the cops in Castle Rock refused to chase down the husband, telling Jessica Gonzales to call back if the kids weren't home by 10 p.m.

The frantic mother called again just after 10; the cops did nothing. She called again at midnight, and filed a report in person at a police station at 1 a.m. Still, the cops stayed put.

Finally, Simon arrived at the police station around 3:30 in the morning and opened fire on the cops, who returned fire and killed him. A search of the dead man's pickup truck revealed the bodies of all three daughters, whom Simon had murdered.

Jessica Gonzales sued the town for failing to enforce her legally valid order of protection - an order that, under Colorado law, directly instructs cops that "you shall use every reasonable means to enforce this restraining order. You shall arrest ... the restrained person" if there is probable cause to believe the order has been violated.

That tough, unmistakably clear language was the Colorado Legislature's deliberate attempt to prevent exactly what the cops did to Jessica Gonzales. A state court and the 10th Circuit Court of Appeals ruled that the cops' lax performance violated Gonzales' due process rights and gave her grounds to sue. The Supreme Court could easily have let those lower-court rulings stand.

But Justice Antonin Scalia, writing for a majority of the Supreme Court, overruled Colorado and found Gonzales did not have a constitutional right to sue the police. Despite the court order's clear instructions to the cops ("You shall arrest the restrained person"), Scalia decided that the police possessed discretion over how, when and whether to enforce the order.

The decision leaves women vulnerable in a nation where 2 million to 4 million women a year are severely injured by their husbands or intimate partners. New York City's domestic abuse hotline (800) 621-HOPE averages more than 400 calls a day, and more than 6,800 complaints of violations of orders of protection were filed in the city last year.

The Republicans who control Congress - many of whom miss no opportunity to complain about "activist judges" allegedly overruling local laws - should waste no time undoing Scalia's damage. We need a federal law giving states like Colorado the power to order police to protect women and children from domestic violence.

Women have the right not to be pooh-poohed by their local police when a maniac is threatening their lives and the lives of their children.

                              Supreme Court Developments

Associated Press
June 27, 2005

On Monday, the Supreme Court met for the final time this term and:

Issued two 5-4 rulings that upheld the constitutionality of displaying the Ten Commandments on government land, but only in some circumstances.

Ruled unanimously that Internet file-sharing services will be held responsible if they intend for their customers to use software primarily to swap songs and movies illegally.

Decided 6-3 that cable companies may keep rival Internet providers from using their lines.

Ruled 5-4 that an appeals court improperly gave a Tennessee death row inmate a second chance.

Rejected appeals from two journalists who have refused to testify before a grand jury about the leak of an undercover CIA officer's identity.

Ruled 7-2 that police cannot be sued for how they enforce restraining orders.

Agreed to clarify when evidence collected during improper police searches can be used against a criminal suspect.

Said it would consider whether federal employees can sue in federal court for alleged constitutional violations.

Court Splits on Commandments Cases
 

By Rodoflo Gonzalez
Austin American Statesman
USA Today
June 27, 2005

Washington - The Supreme Court, struggling with a vexing social issue, held Monday it was constitutionally permissible to display the Ten Commandments on the grounds of the Texas capitol but that it was a violation of separation of church and state to place them in Kentucky courthouses.

    The 5-4 decision in the Kentucky case, first of two seeking to mediate the bitter culture war over religion's place in public life, took a case-by-case This display near the Texas   approach to this vexing issue. In the decision the
Capitol is constitutional,         court declined to prohibit all displays in court
the Supreme Court ruled.       buildings or on government property.

    The justices left themselves legal wiggle room on this issue, however, saying that some displays - like their own courtroom frieze - would be permissible if they're portrayed neutrally in order to honor the nation's legal history.

    But framed copies in two Kentucky courthouses went too far in endorsing religion, the court held.

    "The touchstone for our analysis is the principle that the First Amendment mandates government neutrality between religion and religion, and between religion and nonreligion," Justice David H. Souter wrote for the majority.

    "When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment clause value of official religious neutrality," he said.

    Souter was joined in his opinion by other members of the liberal bloc - Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer, as well as Reagan appointee Sandra Day O'Connor, who provided the swing vote.

    In a dissent, Justice Antonin Scalia argued that Ten Commandments displays are a legitimate tribute to the nation's religious and legal history.

    Government officials may have had a religious purpose when they originally posted the Ten Commandments display by itself in 1999. But their efforts to dilute the religious message since then by hanging other historical documents in the courthouses made it constitutionally adequate, Scalia said.

    He was joined in his opinion by Chief William H. Rehnquist, as well as Justice Anthony Kennedy and Clarence Thomas.

    "In the court's view, the impermissible motive was apparent from the initial displays of the Ten Commandments all by themselves: When that occurs: the Court says, a religious object is unmistakable," he wrote. "Surely that cannot be."

    "The Commandments have a proper place in our civil history," Scalia wrote.

    The case was one of two heard by the Supreme Court in March involving Ten Commandments displays in Kentucky and Texas. That case asks whether the Ten Commandments may be displayed on the grounds outside the state capitol.

    The cases marked the first time since 1980 the high court tackled the emotional issue, in a courtroom boasting a wall carving of Moses holding the sacred tablets.

    A broader ruling than the one rendered Monday could have determined the allowable role of religion in a wide range of public contexts, from the use of religious music in a school concert to students' recitation of "under God" in the Pledge of Allegiance. It is a question that has sharply divided the lower courts in recent years.

    But in their ruling Monday, justices chose to stick with a cautious case-by-case approach.

    Two Kentucky counties originally hung the copies of the Ten Commandments in their courthouses. After the ACLU filed suit, the counties modified their displays to add other documents demonstrating "America's Christian heritage," including the national motto of "In God We Trust" and a version of the Congressional Record declaring 1983 the "Year of the Bible."

    When a federal court ruled those displays had the effect of endorsing religion, the counties erected a third Ten Commandments display with surrounding documents such as the Bill of Rights and Star-Spangled Banner to highlight their role in "our system of law and government."

    The Cincinnati-based 6th U.S. Circuit Court of Appeal subsequently struck down the third display as a "sham" for the religious intent behind it.

    Ten Commandments displays are supported by a majority of Americans, according to an AP-Ipsos poll. The poll taken in late February found that 76% support it and 23% oppose it.

    The last time the Supreme Court weighed in on the issue was 1980, when it struck down a Kentucky law requiring Ten Commandments displays in public classrooms.

http://www.usatoday.com/news/washington/2005-06-27-scotus-commandments_x.htm

      Supremes: Cities May Seize Homes for Private Developers

New York Daily News
Associated Press
June 23, 2005

WASHINGTON - A divided Supreme Court ruled that local governments may seize people's homes and businesses against their will for private development in a decision anxiously awaited in communities where economic growth conflicts with individual property rights.

Thursday's 5-4 ruling represented a defeat for some Connecticut residents whose homes are slated for destruction to make room for an office complex. They argued that cities have no right to take their land except for projects with a clear public use, such as roads or schools, or to revitalize blighted areas.

As a result, cities now have wide power to bulldoze residences for projects such as shopping malls and hotel complexes in order to generate tax revenue.

Local officials, not federal judges, know best in deciding whether a development project will benefit the community, justices said.

"The city has carefully formulated an economic development that it believes will provide appreciable benefits to the community, including - but by no means limited to - new jobs and increased tax revenue," Justice John Paul Stevens wrote for the majority.

He was joined by Justice Anthony Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

At issue was the scope of the Fifth Amendment, which allows governments to take private property through eminent domain if the land is for "public use."

Susette Kelo and several other homeowners in a working-class neighborhood in New London, Conn., filed suit after city officials announced plans to raze their homes for a riverfront hotel, health club and offices.

New London officials countered that the private development plans served a public purpose of boosting economic growth that outweighed the homeowners' property rights, even if the area wasn't blighted.

Justice Sandra Day O'Connor, who has been a key swing vote on many cases before the court, issued a stinging dissent. She argued that cities should not have unlimited authority to uproot families, even if they are provided compensation, simply to accommodate wealthy developers.

The lower courts had been divided on the issue, with many allowing a taking only if it eliminates blight.

"Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random," O'Connor wrote. "The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms."

She was joined in her opinion by Chief Justice William H. Rehnquist, as well as Justices Antonin Scalia and Clarence Thomas.

Nationwide, more than 10,000 properties were threatened or condemned in recent years, according to the Institute for Justice, a Washington public interest law firm representing the New London homeowners.

New London, a town of less than 26,000, once was a center of the whaling industry and later became a manufacturing hub. More recently the city has suffered the kind of economic woes afflicting urban areas across the country, with losses of residents and jobs.

The New London neighborhood that will be swept away includes Victorian-era houses and small businesses that in some instances have been owned by several generations of families. Among the New London residents in the case is a couple in their 80s who have lived in the same home for more than 50 years.

City officials envision a commercial development that would attract tourists to the Thames riverfront, complementing an adjoining Pfizer Corp. research center and a proposed Coast Guard museum.

New London was backed in its appeal by the National League of Cities, which argued that a city's eminent domain power was critical to spurring urban renewal with development projects such Baltimore's Inner Harbor and Kansas City's Kansas Speedway.

Under the ruling, residents still will be entitled to "just compensation" for their homes as provided under the Fifth Amendment. However, Kelo and the other homeowners had refused to move at any price, calling it an unjustified taking of their property.

The case is Kelo et al v. City of New London, 04-108.

For prior articles on this issue click here.

To read Supreme Court go to:
http://www.ij.org/pdf_folder/private_property/kelo/kelo-USSC-opinion-6-05.pdf

Public's Opinion of Supreme Court Declines

The Associated Press
June 16, 2005

The public's image of the Supreme Court has eroded over the past few years, with just over half of those in a new poll saying they have a favorable view of the high court.

With major changes expected as aging justices leave the bench, 57 percent of people had a favorable view of the Court in the poll by the Pew Research Center for the People & the Press.

Only Justice Clarence Thomas, who is 56, is under the age of 65. Nominations of new justices are likely in the coming months and years.

For more than a decade, at least seven in 10 people had a favorable view of the high court. In January 2001, just after the Court ruled that President Bush was the winner of the 2000 election, 68 percent had a favorable view.

Democrats grew more negative about the Court after the 2000 decision on the election, and 51 percent of Democrats now have a positive view. But conservative Republicans have been growing more negative in their views of the Court, the poll found. Favorable opinions of the Court have dropped by 20 points among conservative Republicans and white evangelical Christians since January 2001.

"The Court is taking criticism from both sides of the political spectrum," said Andrew Kohut, director of the Pew Research Center. "Liberals lost regard for the Court in 2001 following the 2000 election ruling, and the Court has lost favor with conservative Republicans, possibly because of their discontent about some big social issues they are focused on."

Conservative Republicans and liberal Democrats are most likely to say the selection of the next Supreme Court justice is very important to them personally. The overall number of people who feel that way is up to 47 percent, compared with 38 percent in March.

The public is evenly split on whether they want President Bush to select a nominee who will move the Court in a more conservative or more liberal direction.

One issue that is certain to be central in coming battles over the Court's makeup is the 1973 Roe v. Wade decision that made abortion legal. Almost two-thirds oppose "completely overturning" that decision.

Opponents of the decision to make abortion legal appear to be more passionate about the selection of the next justice than those who support Roe v. Wade. Six in 10 opponents of the decision to make abortion legal said the selection of the next justice is very important to them personally, while just four in 10 supporters of that decision felt that way.

The poll of 1,464 adults was taken June 8-12 and has a margin of sampling error of plus or minus 3 percentage points.

Top Court, Top Dollar

The Right Way to Judge the Courts

Editorial
New York Daily News
June 10, 2005

Justice Thomas: "Dope is cool." Justice Scalia: "Let the cancer patients suffer." If the headline writers characterized Supreme Court decisions the way many senators and most activists and lobbying groups do, that is how they would have characterized the Supreme Court decision this week on medical marijuana in California. It was ruled illegal because the federal law (prohibiting it) supersedes the state law (permitting it). Scalia agreed with the decision. Thomas dissented.

In our current corrupted debates about the judges, you hear only about results. Judge Priscilla Owen, we were told (by the Alliance for Justice), "routinely backs corporations against worker and consumer protections." Well, in what circumstances? In adjudicating what claims? Under what constitutional doctrine? The real question is never what judges decide, but how they decide it. The Scalia-Thomas argument was not about concern for cancer patients, the utility of medical marijuana or the latitude individuals should have regarding what they ingest.

It was about what the commerce clause permits, and even more abstractly, who decides what the commerce clause permits. To simplify only slightly, Scalia says: Supreme Court precedent. Thomas says: the Founders, as best we can interpret their original intent.

The Scalia opinion (concurring with the majority opinion) appeals to dozens of precedents over the past 70 years under which the commerce clause was vastly expanded to allow the federal government to regulate what had become a highly industrialized country with a highly nationalized economy.

Thomas' dissent refuses to bow to such 20th-century innovations. While Scalia's opinion is studded with precedents, Thomas pulls out founding-era dictionaries (plus James Madison's notes from the Constitutional Convention, The Federalist Papers and the ratification debates) to understand what the word commerce meant then. And it meant only "trade or exchange" (as distinct from manufacture) and not, as we use the term today, economic activity in general. By this understanding, the federal government had no business whatsoever regulating privately and medicinally grown marijuana.

This is constitutional "originalism" in pure form. Its attractiveness is that it imposes discipline on the courts. It gives them a clear and empirically verifiable understanding of constitutional text - a finite boundary beyond which even judges with airs must not go.

And if conditions change and parts of the originalist Constitution become obsolete, amend it. Democratically. We have added 17 amendments since the Bill of Rights. Amending is not a job for judges.

The position represented by Scalia's argument in this case is less "conservative." It recognizes that decades of precedent become so ingrained in the life of the country, and so accepted as part of the understanding of the modern Constitution, that it is simply too revolutionary to return to an original understanding long abandoned.

And there is yet another view. With Thomas' originalism at one end of the spectrum and Scalia's originalism tempered by precedent - rolling originalism, as it were - in the middle, there is a third notion, championed most explicitly by Associate Justice Stephen Breyer, that the Constitution is a living document and the role of the court is to interpret and reinterpret it continually in the light of new ideas and new norms.

This is what our debate about judges should be about. Instead, it constantly degenerates into arguments about results.

Two years ago, Thomas (and Scalia and Chief Justice William Rehnquist) dissented from the court's decision to invalidate a Texas law that criminalized sodomy. Thomas explicitly wrote, "If I were a member of the Texas Legislature, I would vote to repeal it." However, because he is a judge and not a legislator, he could find no principled way to use a Constitution that is silent on this issue to strike down the law. No matter. If Thomas were nominated tomorrow for chief justice you can be sure that some liberal activists would immediately issue a press release citing Thomas' "hostility to homosexual rights." And they will undoubtedly cite previous commerce clause cases - Thomas joining the majority of the court in striking down the Gun Free School Zones Act and (parts of) the Violence Against Women Act - to show Thomas' "hostility to women's rights and gun-free schools." I hope Bush nominates Thomas to succeed Rehnquist as chief justice to expose the idiocy of the attacks on Thomas that will inevitably be results-

oriented: hostile to women, opposed to gun-free schools ... and pro-marijuana?

                      Court Rules Against Pot for Sick People

Gina Holland
Associated Press
The Miami Herald
June 6, 2005

WASHINGTON - Federal authorities may prosecute sick people whose doctors prescribe marijuana to ease pain, the Supreme Court ruled Monday, concluding that state laws don't protect users from a federal ban on the drug.

The decision is a stinging defeat for marijuana advocates who had successfully pushed 10 states to allow the drug's use to treat various illnesses.

Justice John Paul Stevens, writing the 6-3 decision, said that Congress could change the law to allow medical use of marijuana.

The closely watched case was an appeal by the Bush administration in a case involving two seriously ill California women who use marijuana. The court said the prosecution of pot users under the federal Controlled Substances Act was constitutional.

"I'm going to have to be prepared to be arrested," said Diane Monson, one of the women involved in the case.

In a dissent, Justice Sandra Day O'Connor said that states should be allowed to set their own rules.

Under the Constitution, Congress may pass laws regulating a state's economic activity so long as it involves "interstate commerce" that crosses state borders. The California marijuana in question was homegrown, distributed to patients without charge and without crossing state lines.

"Our national medical system relies on proven scientific research, not popular opinion. To date, science and research have not determined that smoking marijuana is safe or effective," John Walters, director of National Drug Control Policy, said Monday.

Stevens said there are other legal options for patients, "but perhaps even more important than these legal avenues is the democratic process, in which the voices of voters allied with these (California women) may one day be heard in the halls of Congress."

California's medical marijuana law, passed by voters in 1996, allows people to grow, smoke or obtain marijuana for medical needs with a doctor's recommendation. Alaska, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Vermont and Washington state have laws similar to California.

In those states, doctors generally can give written or oral recommendations on marijuana to patients with cancer, HIV and other serious illnesses.

"The states' core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens," said O'Connor, who was joined in her dissent by two other states' rights advocates: Chief Justice William H. Rehnquist and Justice Clarence Thomas.

The legal question presented a dilemma for the court's conservatives, who have pushed to broaden states' rights in recent years. They earlier invalidated federal laws dealing with gun possession near schools and violence against women on the grounds the activity was too local to justify federal intrusion.

O'Connor said she would have opposed California's medical marijuana law if she were a voter or a legislator. But she said the court was overreaching to endorse "making it a federal crime to grow small amounts of marijuana in one's own home for one's own medicinal use."

Alan Hopper, an American Civil Liberties Union attorney, said that local and state officers handle 99 percent of marijuana prosecutions and must still follow any state laws that protect patients. "This is probably not going to change a lot for individual medical marijuana patients," he said.

The case concerned two Californians, Monson and Angel Raich. The two had sued then-U.S. Attorney General John Ashcroft, asking for a court order letting them smoke, grow or obtain marijuana without fear of arrest, home raids or other intrusion by federal authorities.

Raich, an Oakland woman suffering from ailments including scoliosis, a brain tumor, chronic nausea, fatigue and pain, smokes marijuana every few hours. She said she was partly paralyzed until she started smoking pot. Monson, an accountant who lives near Oroville, Calif., has degenerative spine disease and grows her own marijuana plants in her backyard.

In the court's main decision, Stevens raised concerns about abuse of marijuana laws. "Our cases have taught us that there are some unscrupulous physicians who overprescribe when it is sufficiently profitable to do so," he said.

Court Expands Scope of Disabilities Law

By Hope Yen
The Associated Press
The Washington Post
June 6, 2005

WASHINGTON -- The Supreme Court, expanding the scope of a landmark federal disabilities law, ruled Monday that foreign cruise lines sailing in U.S. waters must provide better access for passengers in wheelchairs.

The narrow 5-4 decision is a victory for disabled rights advocates, who said inadequate ship facilities inhibited their right to "participate fully in society."

"With this decision the Supreme Court has told the cruise lines that we are entitled to what every other passenger receives _ access to emergency equipment and the full range of public facilities," said Douglas Spector of Houston, one of the disabled passengers suing the cruise lines.

A spokeswoman for the International Council of Cruise Lines, based in Arlington, Va., said the group was reviewing the decision and had no immediate comment.

Congress intended the 1990 American with Disabilities Act to apply to cruise lines, the 5-4 majority said.

"The statute is applicable to foreign ships in the United States waters to the same extent that it is applicable to American ships in those waters," Justice Anthony Kennedy wrote for the majority. He was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

Still, the ruling is unclear how much the $2.5 billion foreign cruise industry, which carries 7.1 million passengers each year, will actually have to reconfigure pools, restaurants and emergency equipment for wheelchair accessibility, an upgrade that could cost the industry millions.

That's because Kennedy also writes that cruise lines need not comply with Title III of the ADA to the extent it creates too much international discord or disruption of a ship's internal affairs, under a provision of the statute that calls only for "readily achievable" modifications.

"It is likely that under a proper interpretation of 'readily achievable' Title III would impose no requirements that interfere with the internal affairs of foreign-flag cruise ships," Kennedy wrote, in sending the case back to lower court to determine what is ultimately required of cruise lines.

Three disabled passengers, who boarded Norwegian Cruise Line in Houston in 1998 and 1999, say they paid premiums for handicapped-accessible cabins and the assistance of crew but the cruise line failed to configure restaurants, elevators and other facilities in violation of the ADA.

Norwegian Cruise Line countered that only an explicit statement of Congress can justify imposing the U.S. law on a ship that sails under a foreign flag, even if it is docked at a U.S. port. The federal law is silent as to whether foreign cruise lines are covered by the ADA.

In a dissent, Justice Antonin Scalia argued that extending the federal law to foreign ships will create international discord and is wrong because Congress does not explicitly call for it. The ruling should leave no opening for ships to be required to change their amenities to fit the laws of each country they visit, he said.

Much of the industry registers its ships away from home countries in places such as the Bahamas, Liberia, Honduras, Panama and Cyprus, which promote the practice by pointing to their business-

friendly regulatory outlooks. The U.S. cruise industry is almost exclusively foreign-flagged.

"Title III plainly affects the internal order of foreign-flag cruise ships, subjecting them to the possibility of conflicting international obligations," Scalia wrote in an opinion joined by Chief Justice William H. Rehnquist as well as Justices Sandra Day O'Connor and Clarence Thomas.

The ruling has wide implications for the cruise industry, which fears the remodeling will cost it millions. The Bush administration and several state attorneys general backed the disabled passengers while the International Council of Cruise Lines supported Norwegian Cruise Line.

The case was an appeal from the 5th U.S. Circuit Court of Appeals based in New Orleans, which ruled in January that foreign-flag cruise ships are not covered by the ADA. Under the Supreme Court's decision, the disabled passengers which filed suit may now proceed to trial to prove they were discriminated.

Both the cruise lines and disability groups then urged the Supreme Court to take the case, noting a conflict with an 11th U.S. Circuit Court of Appeals ruling in 2000 that foreign ships must comply with the law.

After the 11th Circuit decision, several cruise lines settled lawsuits claiming ADA violations, while some voluntarily agreed to make their facilities more wheelchair-accessible.

The case is Spector v. Norwegian Cruise Line, 03-1388.

                                    Fluent in Tea Leaves
  Are Supreme Court Decisions Predictable from Oral Argument

Tony Mauro
The American Lawyer
05-01-2005

When the Supreme Court heard arguments last October in the juvenile death penalty case Roper v. Simmons, Justice Anthony Kennedy seemed to tip his hand with an unusual line of questions.

"I have one other question I'd like to ask because it's been troubling me," Kennedy said to former solicitor general Seth Waxman. Waxman was arguing on behalf of Missouri inmate Christopher Simmons in his challenge to the law that allows execution of those who committed their crimes at ages 16 and 17. "If we ruled in your favor and this decision was given wide publicity, wouldn't that make 16-, 17-year-olds subject to being persuaded to be the hit men for the gangs?"

Waxman, partner at Wilmer Cutler Pickering Hale and Dorr, replied that the over-18 "Fagin" of such a gang could be dealt with separately. Kennedy was not satisfied. Twice he came back to the point, fretting about the loss of the "deterrent value" of exposing juveniles to the death penalty, then pointing to a "chilling" brief filed by the state of Alabama that chronicles heinous crimes committed by 17-year-olds.

Kennedy, it seemed, was a lost crucial vote for those who hoped the Court would abolish the juvenile death penalty.

Wrong.

Four months later, Kennedy wrote the opinion for a 5-to-4 majority striking down the death penalty for under-18s. He made no mention of his underage hit man concerns, and cited the Alabama brief only in passing.

So much for predicting the votes of Supreme Court justices based on the tenor of oral argument. You never can tell, right?

Well, maybe you can, if you do it right. Kennedy, it seems, is the exception to the rule.

In a new study entitled "The Illusion of Devil's Advocacy: How the Justices of the Supreme Court Foreshadow their Decisions During Oral Argument," Sarah Shullman came up with a surprisingly simple and accurate way of predicting outcomes based on the number and tenor of oral argument questions by justices.

Shullman's article, in The Journal of Appellate Practice and Process, reports on oral arguments in ten cases she observed during the October 2002 term. As she watched, she tallied the number and tenor-helpful or hostile-of all the questions asked by all the justices. Then a student at Georgetown University Law Center, Shullman is now an associate at Steel Hector & Davis in West Palm Beach, Florida.
After seven of the ten cases she studied were decided, Shullman looked for correlations-and found them. In all of the cases, the justices in aggregate asked more questions, and more hostile questions, of the party that ultimately lost the case. The model of the devil's advocate-peppering the side you favor with tough questions-did not appear prevalent enough to derail this conclusion.

Shullman also found that Justice Ruth Bader Ginsburg asked the most questions-and the least hostile ones-of all the justices, and that Justice Stephen Breyer asked the most hostile questions. But his was equal-opportunity hostility, handed out in equal measure to both sides. Justice Sandra Day O'Connor, often viewed as the mystery swing vote, turned out to be highly predictable using this method; she asked more than three times as many questions of the party she then voted against than the party she supported.

Chief Justice William Rehnquist was, oddly enough, one of the least predictable, according to his nearly equal questioning of both sides. What about Justice Clarence Thomas, who almost always remains silent on the bench? "Because Justice Thomas is rarely a swing vote, his silence should not pose an obstacle in most cases" to prediction, she writes.

Justice Kennedy's questioning, she found, correlated least predictably with his ultimate votes. He asked roughly the same number and type of questions of both sides. Hence, perhaps, his misleading signals in Roper.

Parenthetically, we know from other sources-most recently the Blackmun papers at the Library of Congress-that Kennedy, more than other justices, is prone to changing his mind after oral arguments. For Kennedy, the oral argument is not the final act of the play. He is a notorious brooder. Kennedy's classic metaphorical méélange, first uttered to journalist Terry Carter as he deliberated abortion rights in 1992, still reverberates: "Sometimes you don't know if you're Caesar about to cross the Rubicon or Captain Queeg cutting your own tow line."

In any event, on the basis of her early success, Shullman proceeded to predict the remaining three cases she had charted that were still pending before the high court. And bingo! She was correct each time. A couple of justices strayed and asked more questions of the side they ultimately favored, but overall the justices turned out to be "quite predictable," she says.

"Essentially, whether they do it by asking more questions or by asking questions that are more hostile in content, the justices simply give the side they disagree with a harder time," she concludes. "This information suggests that one might profitably use an analysis of their questions to predict what was previously thought to be unpredictable."

Shullman acknowledges that her sample was small, but the methodology has already been tested since she did her study. John Roberts, Jr., one of the masters of the trade before taking the bench in 2003, used her theory for a talk he gave on oral advocacy before the Supreme Court Historical Society last year. Picking 14 oral arguments from the 1980 term and 14 from the 2003 term, Roberts found that in fact the most questions went to the losing party in 24 of the 28 cases-an 86 percent rate of accuracy.
"The secret to successful advocacy," Roberts deadpanned in conclusion, "is simply to get the Court to ask your opponent more questions."

An 86 percent success rate in making predictions compares favorably with that of other players in the growing field of Supreme Court prognosticators. Political scientists have gotten into the game to test the relative importance of precedents and politics in Supreme Court decision making. The Supreme Court Forecasting Project, based at Washington University in St. Louis, used statistical models and a panel of experts to predict the results in the cases argued in the 2002 term. The statistical method, based on data such as the circuit of origin and an analysis of precedents, came out right 75 percent of the time, while the human experts predicted outcomes correctly in 59 percent of the cases.

At a symposium on the project, Linda Greenhouse of The New York Times got into the spirit of things and looked back at her stories from the same term and found that in the 16 decided cases in which she ventured a prediction, she was right 75 percent of the time.

The allure of the question-count method is not just that it is simple, but that it now will be incalculably easier to use. Since last October, transcripts of the Court's oral arguments have named the justices asking the questions. (Before, they were listed only as "question," with no identification of the justice asking it.) Now all you need do is to search the .pdf files of transcripts for the names of each justice, and you'll have the count.

Coming back to the Roper case, what would have happened if predictions had been based on the overall question count, rather than on a single line of questioning by Justice Kennedy? Kennedy, it turns out, asked the same number of questions of both sides, and in retrospect, some of his questions to Missouri's advocate were hostile as well. But the overall number of questions told the story: Waxman fielded 40 questions, while Missouri's state solicitor James Layton took 58.

Missouri gets the most questions; Missouri loses. Maybe hard cases are not so hard after all.

Prima Donnas in Robes

By Alan Dershowitz
Los Angeles Times
January 17, 2005

The recent sentencing guideline decision — really, decisions — by the justices reveals a Supreme Court in disarray. It is not disarray caused by left/right ideological division. Nor is it necessarily the result of the illness of the chief justice. The high court just can't seem to get its judicial act together, at least in some important cases.

In the sentencing guidelines case, a 5-4 court majority ruled that a sentencing judge may not increase a defendant's sentence based on the judge's resolution of disputed facts. All such disputes must be submitted to a jury. Four dissenting justices disagreed vehemently with this interpretation of the constitutional right to trial by jury. Nothing surprising there. But then, in the second part of this unusual two-part decision, the dissenting justices won the vote of one of the majority justices and got to decide how to implement the decision. In doing so, they essentially gutted the other ruling, causing four members of the first majority to dissent from the second majority's ruling.

The second majority ruled that it would be perfectly all right for a sentencing judge to resolve disputed facts against a defendant and to add years to his sentence based on them, so long as the judge said he was doing so at his discretion, not because he was forced to do it by the guidelines.

The constitutional right of a defendant to have facts that could add years to a sentence decided by a jury was thus substantially, if not completely, undercut.

The swing justice in both instances was Ruth Bader Ginsburg, who failed to explain how she could come to what the other eight justices believed were two irreconcilable positions.

She was like the rabbi in the old story who, after listening to a husband's complaint against his wife, declared, "You're right, my son," and then after hearing the wife's complaint about the husband declared, "You're right, my daughter." When the rabbi's student complained, "They can't both be right," the rabbi shot back, "You're right." The only difference is that the rabbi acknowledged his inconsistency. Ginsburg said nothing.

Being a Supreme Court justice does not give one the right simply to cast a vote. As an unelected judge with lifetime tenure, Ginsburg's only source of authority is principle. A justice casting a deciding vote in an important case has an obligation to explain and to justify her vote. This is not like an election for president or a vote in Congress. It is arrogant in the extreme for a justice to exercise such untrammeled power without even deigning to explain what appears to the profession to be an unprincipled pair of votes.

Ginsburg should have written an opinion explaining why the two decisions were reconcilable, if they were, or why she voted inconsistently. Had she written an opinion, it would have been the definitive one. Instead, we have two equally authoritative opinions that seem irreconcilable. This will have to be resolved by lower-court judges or by Congress. Massive litigation probably will follow, with inconsistent results. By the time this issue again reaches the Supreme Court, a change of personnel among the justices is likely. The issue will be resolved, therefore, not by principle but by personnel shifts.

It is part of the job of a strong chief justice to avoid this type of conflict. Compromises are inevitable on a multi-justice court, but they should be clearly articulated and easily understood by the public, or at least by the legal profession. This decision, and many others over the past decade, can be explained only by means of patchwork pragmatism, vote-swapping and other considerations inappropriate for high court decision-making.

Ours is the most powerful Supreme Court on Earth. Its job is to interpret the Constitution by reference to principle and precedent. If it cannot explain and justify its decisions, it will deservedly lose much of its authority. The first job of the chief justice who will replace the ailing William H. Rehnquist will be to persuade the justices to get their act together and to do business more as a court than a collection of prima donnas in robes.

Even when Rehnquist was at the height of his powers, he was not able to get individual justices to act as an institution, in the way that former Chief Justice Earl Warren did during the era of desegregation.

Doing so will be a tall order, in light of the court's performance in this and other cases in recent years.

Alan M. Dershowitz is a professor of law at Harvard and author of "Rights From Wrongs" (Basic Books, 2004).

http://www.latimes.com/news/opinion/commentary/la-oe-dershowitz17jan17,1,5975760,print.story?coll=la-news-comment-opinions&ctrack=2&cset=true

Favors Can Compromise Integrity of the Court
Our Opinion: Supreme Court Justices Should Just Say No to Gifts

The Miami Herald Editorial
January 5, 2005

Some U.S. Supreme Court justices apparently don't understand the sometimes-subtle connections between money and influence. How else to explain the willing-ness of some justices to accept gifts worth tens of thousands of dollars? Does anyone believe that such gifts come only from the largess of the donor's heart, with nothing expected in return? Not really.

Yet Justice Clarence Thomas accepts gifts on a regular basis. In a five-year span between 1998 and 2003, he said Yes to $42,200 in gifts, according to a Los Angeles Times report. The gifts included $1,200 worth of tires, a rare Bible valued at $19,000 and a $5,000 personal check to pay for his grand-nephew's education.

Behind weak language

Four other justices also reported accepting gifts in this period, though none took as much as Mr. Thomas. Sandra Day O'Connor accepted $5,025 in gifts, William Rehnquist took $5,000 worth of freebies, Antonin Scalia got gifts valued at $1,275 and Ruth Bader Ginsburg accepted only $500 in gifts. Oddly enough, all of the gift-giving appears to be in compliance with the law. But that speaks more to the looseness of the law than the propriety of giving gifts and favors to high-

court justices. To their credit, the other four justices -- David Souter, Anthony Kennedy, John Paul Stevens and Stephen Breyer -- have exercised better judgment than their colleagues. They accepted no gifts.

The gift-accepting judges can stand behind weak language of the Ethics in Government Act of 1989, which prohibits federal judges and other federal employees from accepting ''anything of value'' from people with whom they conduct business. Thus, the law implicitly gives a nod for acceptance of gifts of value from persons not doing business with government or the court.

In the real world, that's a distinction without a difference -- and the justices ought to be the first to understand the concept. Someone who has no business before the court has won a prize of considerable value if the gift gains them the judge's ear.

Rewrite the law

Supreme Court justices aren't themselves bound by the federal ethics law, but they have generally followed its strictures. Congress should rewrite the rule to bar federal judges and employees from taking any gifts of substance. As for the Supreme Court justices? They should voluntarily agree to a code of ethics that makes such gifts off-limits.

If the justices allow such unfettered gift-giving to continue, they risk sullying their reputations and tarnishing the dignity of the court. Justices are appointed for life, get a salary of $199,200 and many perks, favors and prestige normally afforded to royalty. They should forgo the gifts.

Rehnquist Resumes His Call for Judicial Independence

By Linda Greenhouse
The New York Times
January 1, 2005

WASHINGTON - Chief Justice William H. Rehnquist, delivering his 19th and most likely his last year-end report on the federal judiciary, returned on Friday to one of his longtime themes: a need to safeguard the independence of federal judges from intrusive Congressional oversight.

Criticism of judges and their decisions "is as old as our Republic" and can be a healthy part of the balance of power between the branches, the chief William H. Rehnquist's year-end           justice said in remarks issued by the court's press report yesterday was most likely        office. But he added that criticism from Congress
his last as chief justice                    had "in the eyes of some taken a new turn in
recent years" - an oblique locution that nonetheless left no doubt that he himself was among those discerning a new and disturbing twist to the attacks.

Chief Justice Rehnquist mentioned a measure Congress passed in 2003 requiring special scrutiny of judges who issue sentences shorter than those called for by the federal sentencing guidelines. In his year-end report last year, the chief justice said this approach "could appear to be an unwarranted and ill-considered effort to intimidate individual judges."

This year he took account of more recent developments: "There have been suggestions to impeach federal judges who issue decisions regarded by some as out of the mainstream. And there were several bills introduced in the last Congress that would limit the jurisdiction of the federal courts to decide constitutional challenges to certain kinds of government action."

There have been calls in Congress to strip the federal courts of jurisdiction to hear challenges to the phrase "under God" in the Pledge of Allegiance, to the display of the Ten Commandments on government property and to the Defense of Marriage Act, a federal law that permits states to withhold recognition of same-sex marriages performed in other states.

On another front, a resolution with dozens of sponsors was introduced in the House last spring criticizing the Supreme Court for citing foreign legal authority in several recent decisions. The court has mentioned foreign law in such rulings as those striking down capital punishment for the mentally retarded and invalidating the Texas criminal sodomy statute.

The House measure, the Reaffirmation of American Independence Resolution, declared that "inappropriate judicial reliance on foreign judgments, laws or pronouncements threatens the sovereignty of the United States, the separation of powers and the president's and the Senate's treaty-making authority."

Justice Sandra Day O'Connor, addressing a judicial conference in California six months ago, called the resolution "very worrisome" and said the relationship between Congress and the federal courts was "more tense than at any time in my lifetime."

Representative Tom Feeney, a Florida Republican who was one of the resolution's main sponsors, said when he introduced it that judges who based decisions on foreign precedents would risk the "ultimate remedy" of impeachment.

Chief Justice Rehnquist said in his report on Friday that it had been clear since early in the country's history that "a judge's judicial acts may not serve as a basis for impeachment."

"Any other rule," he added, "would destroy judicial independence," since "judges would be concerned about inflaming any group that might be able to muster the votes in Congress to impeach and convict them."

In 1992, the chief justice published a book, "Grand Inquests," in which he recounted the politically driven effort to remove Justice Samuel Chase from the bench two centuries ago. Though Chase was impeached by the House, the Senate's decision not to convict and remove him "represented a judgment that impeaching should not be used to remove a judge for conduct in the exercise of his judicial duties," Chief Justice Rehnquist said Friday.

His 18-page year-end report made only glancing reference to his personal situation. Under aggressive treatment for a serious and usually fatal form of thyroid cancer, the 80-year-old chief justice has been absent from the court since late October.

"On a personal note, I also want to thank all of those who have sent their good wishes for my speedy recovery," he said, without giving any indication of when he might return.

He also offered "my best wishes to President Bush and Vice President Cheney and to the members of the 109th Congress."

Although the chief justice has accepted an invitation from Mr. Bush to administer the oath of office on Inauguration Day, Jan. 20, it remains uncertain whether he will be able to carry out the duty. He did not attend the court's Christmas party two weeks ago.

The other focus of the year-end report was financial. Referring to a "funding crisis," the chief justice noted that the judiciary's budget appropriation for the fiscal year that began Oct. 1 was not signed into law until early December. The delay created great uncertainty throughout the judicial system and led to steps including hiring freezes and furloughs in departments like probation and pretrial services.

The chief justice said 20 percent of the judiciary's budget was consumed by rental payments to a government agency, the General Services Administration, for federal courthouses.

"One way in which Congress could immediately relieve the judicial budget crisis facing the country," he said, "would be to reassess the rent."

The judiciary's appropriation, $5.42 billion, some $300 million below its request, accounts for less than 0.2 percent of the federal budget.

                Coming to Terms With Supreme Court Tenure

Tony Mauro
Legal Times
January 3, 2005

Life tenure for Supreme Court justices is one of the fixed features of the constitutio-nal landscape. Or is it?

A group of noted law professors, led by Cornell Law School emeritus professor Roger Cramton and former Duke University School of Law dean Paul Carrington, is hoping to launch a re-examination of Supreme Court life tenure by advancing a complex proposal for legislation that would, in effect, force justices into senior status after roughly 18 years on the high court.

"These guys are simply hanging on too long," says Cramton, who clerked for the late Justice Harold Burton nearly 50 years ago. "Some of them become famous just for being on the Court so long."

With op-ed columns, law review articles and a tentatively planned conference on the issue in the spring, the professors hope to force the nation to face what they say is a long-ignored problem of ever-lengthening and increasingly unaccountable service on the nation's highest court.

The power of the electorate to influence the Court through the appointment process, they explain in a joint statement, "has been steadily diluted by the increasing infrequency of vacancies." The proposal is backed, they say, by leading academics ranging from liberal Georgetown University Law Center professor Mark Tushnet to Federalist Society co-founder Steven Calabresi, a professor at Northwestern University School of Law.

Without dwelling on the health problems of Chief Justice William Rehnquist, Cramton and Carrington also think that current attention focused on potential Court vacancies will lend urgency to the issue.

Medical advances have pushed life expectancy to the point where more justices are living and serving longer, they assert, giving Supreme Court justices too much unchecked power. The average length of service on the current Court is 18.7 years, but they note that a new justice appointed at age 53 would have a life expectancy of 77 years -- meaning 24 years on the bench.

"There comes a time when someone else should be making these decisions," Carrington says. "It's not just antiquity. It's a problem of being in the same position for too long." This longevity, he says, breeds arrogance and hubris.

Adds Northwestern's Calabresi: "A lot of people are very interested in this issue right now," in part because it has been 10 years since the last high court vacancy. Noting that the average length of service of justices who left between 1971 and 2000 was 25.5 years, Calabresi says, "Serving 25 years or more is too long in a democracy."

The scholars point to William O. Douglas -- who served for 36 years in spite of a debilitating stroke in his final years -- as the most dramatic recent example of a justice overstaying.

But Emory University Law School scholar David Garrow wonders if the professors will have trouble creating a public clamor for their proposal. "Is there a consensus that Rehnquist and Stevens have stayed on the Court too long? I don't think so," Garrow says.
Rehnquist, 80, has been on the Court for almost 33 years, and John Paul Stevens, 84, has served for 29 years.

A LEGISLATIVE SOLUTION

As currently written and amended, the Constitution sets the terms of office and provides ways to fill vacancies for presidents and members of Congress. But there is no way to remove life-tenured justices except for impeachment, no matter what infirmity afflicts them.

Cramton and Carrington state that none of the hundreds of constitutions that have been written worldwide in the last 150 years have created "a court of last resort staffed by judges who are entitled to remain in service until they die or are found guilty of very serious misfeasance."

By proposing a legislative remedy, the professors hope to beat the almost insurmountable odds against passage of a constitutional amendment. In past discussions about Supreme Court longevity that have flared up sporadically over the decades, the assumption has been that the only way to alter justices' life tenure is by a constitutional amendment.

But, harkening back to the early days of the republic when justices also had circuit-riding duties on lower courts, the professors think that through legislation, they can rejigger the job description of Supreme Court justices so they could retain life tenure -- but serve on other courts in some kind of senior status after they have served on the Supreme Court for approximately 18 years.

Under their plan when it is fully functioning, presidents would appoint one new justice in each two-year term of Congress, guaranteeing that each president would get to name at least two justices. The arrival of each new justice would bump the most senior sitting justice into senior status, with circuit duties and other functions -- including occasional tie-breaking service on the Supreme Court itself.

Since the Court is made up of nine justices, this procedure would mean that at the end of roughly 18 years, the first justice appointed under the new law would be rotated off the Court into senior status by the arrival of a new justice. From then on, justices would rotate off in the same way, giving each approximately 18 years on the Supreme Court.

"Eighteen years of judicial office on the Supreme Court is long enough to guarantee judicial independence from the political branches," the two professors say in their joint statement. "But it is short enough and certain enough to serve other equally important policies."

PRESIDENTIAL POWER

The plan would give each president some influence over the Court -- but not too much or too little, the professors say, noting that presidents like Jimmy Carter named no new justices to the Court because no vacancies materialized. The regular rotation might also reduce the incentive presidents now have to appoint young justices who can extend their appointing president's influence over the Court for decades.

The legislation provides for contingencies such as a rash of vacancies that would require appointment of justices at a higher rate than one every two years. And to avoid charges that they are seeking to get rid of current justices, the professors' proposed law would not affect the current nine justices at all, making for a tricky transition period that would continue until all nine justices now sitting depart. That could take 30 years or more.

The professors acknowledge the plan's complexity. "The legislation we propose is not as simple as we might wish," their joint statement concedes. "This is so because it deals with a problem that is as sensitive as it is important." But Emory's Garrow says that such complexity can be fatal.

"It is so Rube Goldberg-complicated that I think it would be dead on arrival in Congress," says Garrow, who has written extensively on life tenure and aging justices.

Garrow also thinks the proposal, even if it were signed into law, might not pass constitutional muster because it alters the Constitution's design for the position of Supreme Court justice, insulated from political influence by life tenure. Even though the proposal would give Article III judicial duties to senior justices -- a position that does not now exist -- Garrow thinks the plan would "fundamentally diminish the office of justice" by in effect demoting justices as they are bumped off the Court.

Cramton and Carrington think the law would be constitutional, fitting under the broad range of legislation that Congress is entitled to enact concerning the structure of the federal court system.

"But if it turns out that this can only be achieved by constitutional amendment," says Cramton, "that's fine too." Getting the debate under way is his main goal, he says. "The problem has been permitted to languish for too long."

                     Thomas' Acceptance of Gifts Tops Justices

By Richard A. Serrano and David G. Savage
LA Times
December 30, 2004

WASHINGTON — Supreme Court Justice Clarence Thomas has accepted tens of thousands of dollars worth of gifts since joining the Supreme Court, from $1,200 worth of tires to valuable historical items and a $5,000 personal check to help pay a relative's education expenses.

The gifts included a Bible once owned by the 19th century author and abolitionist leader Frederick Douglass, which Thomas valued at $19,000, and a bust of President Lincoln valued at $15,000.

He also took a free trip aboard a private jet to the exclusive Bohemian Grove club in northern California -- arranged by a wealthy Texas real estate investor who has helped run an advocacy group that filed briefs with the Supreme Court.

Those and other gifts were disclosed by Thomas under a 1978 federal ethics law that requires high-ranking government officials, including the nine Supreme Court justices, to file a report each year that lists gifts, money and other items they have received.

Thomas has reported accepting much more valuable gifts than his Supreme Court colleagues over the last six years, according to their disclosure forms on file at the court.

The Ethics in Government Act of 1989 prohibits all federal employees, including the justices, from accepting "anything of value" from a person with official business before them. However, under the rules that the federal judicial system adopted to implement that law, judges are free to accept gifts of unlimited value from people without official business before the court.

Representatives for the federal judiciary and the Supreme Court argue that requiring the disclosure of any gifts is sufficient to prevent corruption or the appearance of favoritism.

But in October, an American Bar Association panel called for tightening the rules to forbid judges from taking expensive gifts, free tickets and other valuable items, regardless of who is the donor.

"Why would someone do that -- give a gift to Clarence Thomas? Unless they are family members or really close friends, the only reason to give gifts is to influence the judge," said Mark I. Harrison, a Phoenix lawyer who heads the ABA's Commission on the Model Code of Judicial Conduct. "And we think it is not helpful to have judges accepting gifts for no apparent reason."

"The public has to wonder when a justice accepts lavish gifts," said Northwestern University law professor Steven Lubet, a legal ethics expert. "The rich and powerful have a different set of economic interests than other people, and they can afford to give lavish gifts."

Thomas, through a court spokeswoman, declined to comment when asked in writing why he deemed it appropriate to accept some of the larger gifts. But a former clerk to Thomas defended the practice.

"I don't see anything wrong in this. I don't see why it is inappropriate to get gifts from friends," said John C. Yoo, now a law professor at the University of California, Berkeley. "This reflects a bizarre effort to over-ethicize everyday life. If one of these people were to appear before the Supreme Court, Justice Thomas would recuse himself. So I don't see the problem."

Despite the open-ended rules, most of the other Supreme Court justices reported accepting only items of lesser value, or token gifts for speaking at formal events, or nothing at all.

The Los Angeles Times reviewed the disclosures of all nine justices for the years 1998 through 2003, the only period of time for which disclosure forms were still on file at the court. They reported receiving cash, which they usually gave to charity, but kept or used various valuable items, mementos and club memberships.

In that six-year period, Thomas accepted $42,200 in gifts, making him easily the top recipient.

Next was Justice Sandra Day O'Connor, who accepted $5,825 in gifts, mostly small crystal figurines and other items. She also reported an $18,000 award in 2003 from the American Philosophical Society in Philadelphia, but listed it as income. The money was for the society's Benjamin Franklin Award for Distinguished Public Service. She gave other cash awards to charity.

Third was Chief Justice William H. Rehnquist, who accepted a $5,000-award from Fordham University -- the only gift he reported for the six-year period.

In addition, the Times obtained a full set of disclosure forms for Thomas's 13-year tenure on the court, as well as forms dating to 1992 from Justice Antonin Scalia, 1993 for Justice Ruth Bader Ginsburg and 1996 for O'Connor.

Since joining the court, Thomas reported accepting gifts valued at $47,745. He also reported other gifts without citing a dollar value, ranging from "small gifts and flowers" to free plane trips and accommodations from friends.

Ginsburg has received a number of large monetary awards since joining the court in 1993, which she reported giving to charity. In 1996 she received $100,000 from the philanthropic Kaul Foundation and distributed the money among 26 charities and nonprofit organizations, including law schools, women's organizations and theatrical companies.

Justices earned $194,300 this year and will get $199,200 in 2005, comfortable salaries but modest compared with some private-sector lawyers. They are permitted to earn as much as $23,000 more through outside activities, such as teaching.

But membership on the court offers perks in addition to the prestige and power unique to the role of the Supreme Court.

Nearly all the justices accept honorary memberships to private clubs, worth thousands of dollars annually. Most are Washington-area clubs that donate the memberships.

For example, Rehnquist and Justices John Paul Stevens and Anthony M. Kennedy listed honorary memberships in the Washington Golf and Country Club, which they valued last year at $4,000. These sums appeared to be in line with annual membership fees for such clubs in the Washington area. However, a court spokesman said the rules don't require justices to disclose the initiation fees for joining such clubs, which can be far higher.

Because of inconsistencies in the way the justices reported their memberships, they were not included in the Times' tally of the value of their gifts.

Several justices also take lengthy, all-expenses-paid summer sojourns abroad where they are paid to lecture on the law. Locales have included Italy, the French Riviera and the Greek isles.

Justices Stephen G. Breyer and David H. Souter reported turning down all gifts and club memberships. Breyer has traveled to Paris, Barcelona, Spain, and Florence, Italy, on law school programs. But Souter has stayed home and checked the box marked "NONE" for gifts on his yearly disclosure forms. Thomas also routinely passes up the overseas trips.

In calling for tighter restrictions on gifts to judges, the ABA commission was strongly influenced by the strict no-gift rules adopted in 1995 by the House and Senate, said another panel member, Jan W. Baran, a former general counsel to the Republican National Committee.

Members of Congress and their staffs may not accept "anything of monetary value" greater than $50 at one time, or more than $100 from one person during the year. The only exceptions are gifts from family members and close personal friends.

"The House and Senate concluded it is not healthy to the integrity of their institutions to allow members to accept valuable gifts from strangers. That was the issue for us," Baran said.

"We would place a limit on the value of gifts from anyone. . . . To get a new set of tires from a generous car dealer would not be OK under these new rules."

New York University law professor Stephen Gillers, a legal ethicist, said the federal judiciary should adopt a similarly strict ban on judges accepting valuable gifts.

"A justice of the Supreme Court attracts friends and generosity. These gifts are being given not because he is Clarence Thomas, but because he is Justice Clarence Thomas," Gillers said.

Gillers added that, despite the lax rules, he thinks most judges refuse to accept valuable gifts. "I have friends who have become judges, and once they do, they will not let me pay for lunch," he said.

This year, Scalia was involved in a controversy over whether a free plane ride aboard Air Force II to go duck hunting in Louisiana with Vice President Dick Cheney amounted to a gift, at a time when an energy case involving Cheney was before the court.

Scalia rejected a demand from the Sierra Club that he withdraw from the case, arguing that his trip on Air Force II did not amount to something of value. Scalia noted that he, his son and his son-in-law had bought round-trip tickets so they could return home on a commercial flight.

"In other words, none of us saved a cent by flying on the vice president's plane," Scalia said in a March 18 opinion. He subsequently voted for Cheney in the court case.

By law and tradition, the Supreme Court justices are exempt from many of the rules that govern lesser federal judges. Moreover, each of the justices is free to decide how the general ethics guidelines apply to them.

For example, when the Sierra Club filed its motion with the Supreme Court asserting that Scalia should step aside in the Cheney case, the court referred the matter to Scalia for him to decide.

Similarly, neither the ethics rules nor the court stands in the way of justices benefiting from the generosity of others.

Even if the ABA panel's recommendation to tighten the rules on gifts were adopted for federal judges, it would serve only as a guide for members of the Supreme Court.

Thomas, nominated to the Supreme Court at age 43 by President George H.W. Bush, has won many admirers who see inspiration in his rise from a childhood of poverty in the segregated South. Some of the gifts he has accepted have come from casual acquaintances or, in one case, a stranger. More often, they came from new, conservative friends who voice admiration for him.

Foremost among those conservative friends is Harlan Crow. The son of well-known Dallas real estate executive Trammell Crow, he runs a family holding company that owns 10 percent of Trammell Crow Co., one of the nation's biggest commercial real estate companies.

A big Republican donor, Crow last summer gave $25,000 to help launch the Swift Boat Veterans for Truth campaign deriding the Vietnam War record of Democratic presidential nominee John Kerry.

In an interview, Crow said he met Thomas 10 years ago at a conference in Dallas where the justice was a speaker. "I was in the audience and I was impressed," Crow said.

Soon afterward, Crow invited Thomas to a family campground in east Texas. Roger Connor, a businessman who was at the camp-out, remembers the all-male gathering.

"They were all smoking cigars. It was a very manly Texas thing," Connor said. He said the participants slept in sleeping bags and tents, and that the activities included a greased pig race.

In 1997, Crow flew Thomas on his personal plane to the San Francisco area and sponsored him as his guest at the Bohemian Grove, a private organization that for more than 125 years has held male retreats in the redwoods of Northern California for government and business leaders.

Crow and his wife, Kathy, in 2001 also gave Thomas the Bible that once belonged to Frederick Douglass. In disclosing the gift in his report for that year, Thomas valued the Bible at $19,000 and listed the Crows as "personal friends."

"I just knew that he was a fan of Frederick Douglass, and I saw that item come available at an auction and I bought it and gave it to him," Crow said.

Crow also donated $175,000 for a new Clarence Thomas wing at the justice's childhood library in Pin Point, Ga.

At the time, Crow was a national board member of the Center for the Community Interest, an advocacy group that filed amicus briefs with the Supreme Court espousing conservative views on cases involving such issues as crime and pornography. Crow said he was not deeply involved with the group, which is now defunct.

Gillers, the NYU professor, questioned whether Thomas should have accepted anything from Crow.

The federal rules say a judge "shall not accept a gift from anyone who is seeking official action from or doing business with the court," Gillers noted.

"If Harlan Crow is a member of the board of a group that files amicus briefs with the court, then I think he comes within that provision," Gillers said.

Thomas reported receiving gifts nearly every year he has been on the Supreme Court. They included $100 worth of cigars from talk-radio host Rush Limbaugh, a $500-Stetson hat from the Houston Club, and another $150 worth of cigars from Kansas City businessman Tim Trabon, who said he had never met the justice. He also took a $375 "performance chip" for the computer on his Corvette, a gift from a Corvette supplier he met at a rally.

There was an $800 Daytona 500 commemorative jacket after Thomas served as grand marshal at the race in 1999, $1,200 worth of tires from a businessman in Omaha, Neb., in 2002, and $1,375 in cowboy boots, Stetson hats, rawhide coat and a silver buckle after engagements in Texas in 1995 and 1996.

The only year Thomas listed no gifts or club memberships was 2003, the year he reported receiving $500,000 as part of a reported $1.5-million book contract for an autobiography with HarperCollins, a division of Rupert Murdoch's News Corp.

Another businessman who calls Thomas a friend is Earl Dixon. A pest control company executive in Jacksonville, Fla., and former Republican state legislator, Dixon is also a motor-home enthusiast -- a hobby shared by Thomas. He said they met about four years ago at a motor-coach repair shop in Florida.

Their friendship grew, Dixon said, and when he learned that Thomas was raising a grand-nephew, he gave the justice a $5,000 check to defray his education costs.

"I enjoy talking with him. I enjoy visiting with him. He's a class act," Dixon said of the justice. In 2001, the same year Crow gave him the Douglass Bible, the American Enterprise Institute -- of which Crow is a trustee -- presented Thomas with a bust of Lincoln that the justice valued at $15,000. The think tank praised him for his "clear, consistent, and courageous jurisprudence" on the Supreme Court.
 

Prepping for the Next Big Battle: The Supreme Court By Sheryl Gay Stolberg The New York Times December 8, 2004 WASHINGTON, Dec. 7 - With the presidential race over and Chief Justice William H. Rehnquist ill with thyroid cancer, the Washington advocacy establishment - that vast machinery of special interest groups, research institutions and pundits who thrive on the periphery of politics - is gearing up for the next big fight: the battle over the Supreme Court. Justice Rehnquist has not announced plans to retire, but advocacy groups on both sides are already raising money and plotting strategy either to support or to oppose whoever is nominated to be his replacement. The result is an awkward wait for a conflict that both sides expect will be as bitter and divisive as the presidential election itself. "This will be a repeat, and all the organizations that were engaged in work around the election, from big groups to small groups, will feel that this is their own personal fight," said Nan Aron, the president of the Alliance for Justice, a liberal advocacy group. Ms. Aron said her office had been flooded with calls from students, lawyers and activists "who were involved in get-out-the-vote work and now want to turn their attention to the Supreme Court." It has been 10 years since the last Supreme Court vacancy - not since 1823 has the court gone so long without a new member - so advocates have spent years preparing for this moment. Yet some say a Rehnquist retirement, in which a conservative chief justice will probably be replaced with another conservative, will be little more than a dress rehearsal for an even bigger battle that will unfold when one of the court's swing voters, perhaps Justice Sandra Day O'Connor or Justice Anthony M. Kennedy, or one of its liberal members like John Paul Stevens, leaves. "Arguably, this is not the biggest fight you'll see, assuming there are other openings, which maybe one shouldn't assume," said C. Boyden Gray, the former White House counsel, who has been conducting strategy sessions with Edwin Meese III, the former attorney general, among others. Mr. Gray predicted "a test case of the determination of the two sides." Test case or not, any nomination will draw intense scrutiny, if only because it will be President Bush's first. Liberals, especially, are girding for conflict because Mr. Bush has often said he admires Justices Antonin Scalia and Clarence Thomas, two of the court's staunchest conservatives. Ralph G. Neas, president of People for the American Way, warns that similar nominees would turn the clock back on civil rights and environmental protections, not to mention Roe v. Wade, the Supreme Court decision legalizing abortion. Like the presidential election, a Supreme Court nomination fight will feature polling, paid television advertising and grass-roots organizing. Ms. Aron said she had been "on the road for weeks," recruiting volunteers and trying to build networks in various states. Mr. Neas said liberal groups planned to survey American attitudes on issues like civil rights, the environment and abortion, to gather data for an eventual advocacy campaign. And like the presidential election, a nomination fight will be expensive. Jay Sekulow, the chief counsel for the American Center for Law and Justice, a conservative group, said his organization expected to spend $3 million to $5 million. The money, Mr. Sekulow said, is already in the bank. "There's a comprehensive game plan that will unfold upon the retirement," said Mr. Sekulow, who has taken part in the Gray-Meese strategy talks. "It's already in process. It's going to include everything from media, paid media, to grass roots in various states where senators are up for re-election in '06, to position papers on potential nominees." There will even be a war room. People for the American Way built it, with 35 computers, Mr. Neas said, to function as "a nerve center" during a confirmation battle. The fight will play out in the already tense environment of the Senate, where Democrats used the filibuster to block 10 of Mr. Bush's judicial nominees last year, and Republicans recently settled a dust-up over whether Senator Arlen Specter, a moderate Republican, should become the next chairman of the Senate Judiciary Committee. Now, though the Senate landscape is changing. Republicans will have 55 votes in January, and so one major question is whether Democrats will be able to hold together a filibuster, which requires 60 votes to break. "If a candidate is a mainstream candidate, even with conservative leanings, it will be hard," said Senator Charles E. Schumer, the New York Democrat who serves on the judiciary panel. "But if the candidate is a hard right-wing candidate, it will not be that hard. The more the hard right rattles its sabers, the more resolved our caucus is not to cave." But conservatives are resolved as well and are pressing the Senate Republican leadership to change Senate rules to prevent filibusters on judicial nominees. Mr. Sekulow argues that the change must be made soon, before any Supreme Court nomination. Mr. Gray, though, believes it might be better to wait. "There is a lot to be said for Jay's view that it should be done right away," Mr. Gray said. "On the other hand, it's not an abstraction if you have a live candidate and you're seeing the Democrats obstruct." Of course, there is always the possibility that Chief Justice Rehnquist will recover and return to the court, and these discussions will be moot. Coming before an official retirement, the preparations, which include the almost impossible task of trying to figure out whom the White House might nominate, are delicate business. "It's like walking on eggshells," Mr. Sekulow said. "But you can't be naïïve"                Rift Grows Between Congress and the Courts Marcia Coyle Staff reporter The National Law Journal 10-18-2004 Washington-Sooner or later, predicts a Missouri Republican congressman, a president is going to come along and tell the U.S. Supreme Court or federal judges, "You can write as many opinions as you want. We're going to ignore them." "If I was president and they decided to redefine marriage, I would tell them I'm going to ignore it," said Representative Todd Akin. "That is something completely legitimate for the executive to do." That scenario will occur sooner, he added, if steps are not taken to stop what he calls one of the three greatest threats facing America today-activist judges who legislate from the bench. Akin is dead serious and has backed up his concerns by leading the charge with some other Republican colleagues to eliminate federal court jurisdiction over challenges involving such hot-button issues as gay marriage and the pledge of allegiance. How many members in the House share his view? "You can judge by the votes," he said: 233-194 to strip jurisdiction over challenges to the federal Defense of Marriage Act, which defines marriage as the union between a man and a woman, and 273-173 to prevent federal judges from ruling on the constitutionality of the pledge of allegiance. Tension among the three branches of government has always existed, but the degree of tension between Congress and the judiciary today hasn't been experienced for at least half a century, according to political and legal observers. And, they add, that creates a particularly dangerous situation for the judiciary. "When impeachment threats are added to legislative threats, part of the goal is to intimidate so they do not have to pass legislation," said Bert Brandenburg, executive director of Justice at Stake, a nonpartisan campaign working for reforms to keep politics and special interests out of courts. "It's striking how radical and personal the attacks are. "This is a pre-emptive war. This is not a war to win back turf, but to prevent courts from ruling before they do lose turf," he added. Congress has to make a pre-emptive effort, Akin asserted, because its key tool for reining in activist judges is a pre-emptive one: Art. III, Section 2 of the Constitution, which gives Congress authority to make exceptions and regulations to Supreme Court appellate jurisdiction. "This is the way to say we are very upset about these activist kind of rulings," he explained. "At the same time, this is a respectful and constitutional way to react." If "under God" in the pledge is unconstitutional, he said, "We have to live with it until a constitutional amendment is passed or the president tells them to stick it in their ear." What is happening in Congress has not fallen on deaf judicial ears. Chief Justice William H. Rehnquist and the Judicial Conference of the United States have been working to improve relations with the legislative branch. And some House members, led by Representative Adam Schiff, D-Calif., and Judy Biggert, R-Ill., have formed a Caucus on the Judicial Branch to work on that problem and to counter attacks. Although only the so-called Feeney Amendment-passed without any input from the judiciary-has become law, the recent efforts in Congress to strip federal courts of jurisdiction should be taken very seriously, said Charles Tiefer of the University of Baltimore School of Law, a former solicitor and deputy general counsel of the House of Representatives. "Lawyers vastly underestimate the significance of these political mobilization measures," said Tiefer. "The passage of legislation is the last act of something that is set into motion." Modern playbook Both Tiefer and Brandenburg believe the closest historical analogy to what is happening now in Congress was the late 1950s, a period when, according to Brandenburg, the "modern playbook" for today's situation was developed and perfected. At the time, a conservative alliance with a strong Southern base used similar tactics against the judiciary in responding to a similar constituency, said Tiefer, author of the recently published, Veering Right: How the Bush Administration Subverts the Law for Conservative Causes (University of California Press). "They were moving these door-closing sort of proposals," he recalled. "They were holding hostile hearings about the courts. They were working from their constituencies' feelings about Brown v. Board of Education, but the vulnerability of the courts that they were exploiting were the unpopular Warren Court decisions recognizing basic civil liberties in the First and Fifth amendments, possessed even by people accused in the McCarthy investigations." The pressure on the Supreme Court at that time was enormous, according to Tiefer, and so powerful that the Supreme Court switched from earlier holdings that came close to saying that the House Un-American Activities Committee was unconstitutional in how it operated, to later rulings allowing convictions for contempt stemming from the committee's operation to stand. What's unique about the current situation, Tiefer said, is that "We have much greater party polarization now; therefore the leadership of one of the political parties-the Republican Party-and the White House are willing to give a great deal of support to the conservatives in Congress. That's what makes this period special and especially dangerous for the judiciary." Tonja Jacobi, a professor at Northwestern University School of Law who specializes in the relationship between the judicial and legislative branches, agreed, adding: "I actually think if you look for causes, you're better off looking at Congress than the courts. The increasing role of partisan division over the more traditional norms of seniority, for example, changes the way Congress approaches the issues. "Courts have always taken a lot of stances that are very controversial," she added. "But we're seeing changes in Congress. Party is on the rise again and that has the effect of changing the way members interact with one another. In the Senate, people are much more likely to take a stance against judicial appointments or be willing to filibuster than to reach compromise," she said. "There is value in the appearance of division as well. Being able to say, 'Look at what the opposition is doing to stop our nominees' has value in itself." Michael Gerhardt, a separation-of-powers scholar at the College of William & Mary Marshall-Wythe School of Law would add to those assessments election-year anxiety over who will make the next appointment to the Supreme Court. Gerhardt testified against court-stripping proposals in several House hearings. He said there was a common theme in all of the hearings-hostility to the federal courts and to the Rehnquist Court. "That's really important-it's even Republican justices on the Rehnquist Court," he emphasized. The court's ruling striking down anti-sodomy laws is very unpopular among conservative members, he noted, and some still have not forgiven the court's refusal to overrule Roe v. Wade in 1992. "I think the problem is some people in Congress formulate their attitudes about the courts solely on the outcome of cases," he added. "But I think there's another dynamic here that sometimes gets ignored and that is we're seeing an unusual fracture in the Republican Party's position on judges. Usually Republicans are pretty united on questions of judicial appointment. But now I think we're seeing some Republicans disagreeing with others about what constitutes good judicial appointments and even perhaps about the importance of the independency of the federal judiciary." Mending fences? Chief Judge Deanell Reece Tacha of the 10th U.S. Circuit Court of Appeals, who chairs the Judicial Conference's Committee on the Judicial Branch, noted there have been many issues recently on Congress' front burner that have a significant impact on the work of the judiciary. "My view is clearly everybody is playing their appropriate constitutional role, but it would be helpful for all three branches if there were enhanced dialogue and interchange about effects on each branch," she said. "Even more important than effects for me is public perception about what we do," she added. "I truly believe the players in each branch understand quite well their roles, but it's not clear the public has the same understanding. This rule of law depends on public trust. To the extent the rhetoric or reality of this tension has the effect of skewing the public's understanding of what each of us does in our proper role, that undercuts the very foundation of the rule of law-the public trust." Tacha said her committee has met with representatives Schiff and Biggert, and she called their caucus "incredibly helpful." Her committee has also met with the staffs of the majority and minority chairmen of the Senate Judiciary Committee in order to enhance the dialogue. And she said meetings between members of Congress and their district judges also are occurring. A meeting of the branches Judges cannot lobby in the traditional way because of their ethical canons, said Schiff. But, he said, "Every district judge ought to meet with their members a few times a year. I think judges really need to establish relationships with Congress individually and collectively. They all showed the ability to do that during the appointment process. We're inviting justices to come visit on the Hill."                      An Aging Court Begins New Term The Tampa Tribune Fl October 4, 2004 This morning the nine justices of the U.S. Supreme Court begin what could well be their last term together. They'll be deliberating about the death penalty, civil rights, eminent domain and other important issues. But four years after deciding the outcome of the 2000 election in Bush vs. Gore, interest in this opening day is heightened by another presidential election. This is an aging court. Chief Justice William Rehnquist turned 80 on Friday. Justice John Paul Stevens is 84. Not a single justice has retired in a decade. Every year brings speculation that one or more of the justices will leave, and it is likely that George W. Bush or John Kerry will be making new appointments sometime in the next four years. Indeed, the selection of judges - most especially a Supreme Court justice - is a critical issue in the November election. New appointments to the court could resolve a range of issues, but abortion is key. Bush has said he favors judges like Justices Antonin Scalia and Clarence Thomas, who would overturn Roe vs. Wade, the decision legalizing abortion. Kerry has made support for abortion rights a litmus test for his nominees. The future of the Supreme Court should weigh heavily on voters' minds on Election Day.         High Court Clerks Bemoan 'Bush v. Gore' Revelations Tony Mauro Legal Times 09-28-2004 More than 90 prominent lawyers and former Supreme Court law clerks including former Attorneys General Richard Thornburgh and William Barr have joined in a statement sharply criticizing the law clerks who gave behind-the-scenes details about the 2000 case Bush v. Gore to Vanity Fair magazine. The statement, submitted to law.com affiliate Legal Times, says clerks who spoke to Vanity Fair contributing editor David Margolick for the piece in the magazine's October issue engaged in "conduct unbecoming any attorney or legal adviser working in a position of trust." The anonymous clerks' disclosures also violate the clerks' Code of Conduct and their "duty of confidentiality" to their justice and to the Court, the joint statement asserts. Entitled "The Path to Florida," the article reviews the dramatic events of four years ago and depicts sharp divisions within the Court over whether the Florida recount should proceed or be ended. Justices Antonin Scalia, Sandra Day O'Connor and, eventually, Anthony Kennedy are portrayed as determined to reach a result that would hand victory to George W. Bush. Several law clerks are named, though they are not necessarily among the clerks Margolick was able to interview. Margolick says roughly one-fourth of that term's 35 clerks spoke with him. In a footnote published with the article, Margolick, a former legal affairs reporter for The New York Times, acknowledges the confidentiality rule and says none of the clerks he spoke to disclosed internal documents or conversations with their justices. But he indicates that the clerks who were willing to give him other details did so because they felt strongly the Court had acted improperly in the election case. "We feel that something illegitimate was done with the Court's power, and such an extraordinary situation justifies breaking an obligation we'd otherwise honor," Margolick quotes one clerk as saying. The joint statement responding to the article says the clerks' breaches of confidentiality "cannot be excused as acts of 'courage' or something the clerks were 'honor-bound' to do." Later it states, "Personal disagreement with the substance of a decision of the Court ... does not give any law clerk license to breach his or her duty of confidentiality." In one episode reported in the story, Scalia clerk Kevin Martin visited the chambers of Justice John Paul Stevens to discuss the case with Stevens' clerks. The conversation "turned nasty," Margolick reports, and Martin stormed out. Martin could not be reached for comment. On another occasion, Kennedy was said to have visited Justice Stephen Breyer's chambers, where he stated aloud that he hoped Breyer would join his opinion against continuing the recount. "We just kind of looked at him like he was crazy," a clerk is quoted as saying. 'UNBELIEVABLE' Andrew McBride, a 1988 O'Connor clerk who helped draft and circulate the statement, says it was launched after "seven or eight former clerks of various years read that footnote and said, 'This is unbelievable.' " He says clerks of all political stripes were upset that some clerks were willing to violate their Code of Conduct because of their disagreement with Bush v. Gore. Signers were solicited nationwide, McBride says, adding that none of the 2000 clerks were asked to participate. McBride, a partner at Wiley Rein & Fielding, says disclosures like those made by the clerks in the Vanity Fair article damage the functioning of the Court. "It has to chill communications" between justices and their clerks, he says. Erik Jaffe, a 1996 Clarence Thomas clerk who also signed the statement, says confidentiality is a crucial obligation. "Clerks have unprecedented access and are granted unprecedented candor," says Jaffe, who compared what the clerks did in Vanity Fair with "stealing my diary." He adds, "If any attorney did that, he'd be disbarred." McBride, speaking for himself and not the other signers, also says the magazine's use of the information provided by the clerks was "not good journalism." He reasons that the views of any clerk who was willing to violate the Code of Conduct were inherently suspect and, in this case, were one-sided against the Court majority. "The reliability of the statements cannot be verified, and other clerks can't respond because they feel bound by the code," McBride says. In an interview, Margolick agrees that "people on one side of the decision were much more likely to talk than those on the other side." But he acknowledges the imbalance in his story and does not feel that the clerks who spoke to him were political advocates. "They were offended as lawyers by what the Court did." Margolick adds, "We don't have the complete story of what went on, and it's not completely balanced. But it is important for the public to have as much of the story as possible and not wait for 30 years to get it." Artemus Ward, author of a forthcoming book on the high court's clerks, says he found clerks sharply divided over the confidentiality issue. As he sought to interview dozens of clerks -- not about specific cases but about the functioning of the clerks and the Court -- some were glad to speak to him, while others, including some who clerked for long-dead justices, were angry at him for even asking. Ward, a political science professor at Northern Illinois University, notes that many clerks were interviewed for the 1979 book "The Brethren," some of them apparently upset with Chief Justice Warren Burger and other members of the Court. Some spoke to the authors, Bob Woodward and Scott Armstrong, with the permission of their justices. Efforts to solicit responses to the article and to the statement from the clerks who were at the Court during the 2000 term were largely unsuccessful. Most did not return phone messages, and those who could be reached would only speak as long as they would not be identified. One 2000 clerk says he has gotten interview requests from journalists over the years seeking comment about Bush v. Gore, but never returns their messages. "There should absolutely be no breaches of confidentiality," he says. Another 2000 clerk says, "Because I take the obligation of confidentiality seriously, I wouldn't talk to Margolick, and I won't talk to you."                    Justice Stevens Disputes Media Coverage Gina Holland Associated Press September 21, 2004 WASHINGTON - The Supreme Court's oldest member is taking issue with those who believe the court is secretive and that he and his colleagues spend their summers frolicking on fabulous vacations. Justice John Paul Stevens says his time off was sedate: He read two biographies and the 567- page report of the Sept. 11 commission. And he did not frequent exotic locations - unless you count Chicago. The 84-year-old justice, speaking to Chicago lawyers, complained about a newspaper column which called the court's members the "nine most powerful, secretive public officials in the land." The column in The New York Times by Slate senior editor Dahlia Lithwick said, "Justices have just spent another summer like vacationing Greek gods, frolicking" and earning extra money teaching at exotic locations, with little attention paid to them. The justice with the tan might be Antonin Scalia, who taught summer school in the Greek Isles. Justice Ruth Bader Ginsburg was in France, and Chief Justice William H. Rehnquist in England. After a three-month break, most of the supremes are back at the court, getting ready for closed- door meetings that begin next week. They open a new term on Oct. 4. Many of the justices accept money for summer teaching jobs. Stevens, a World War II veteran, has had few public appearances in recent years. In the past, he was a frequent participant in the jurist-in residence program at the University of Hawaii Law School. Stevens used the speech at the Chicago Bar Association to defend the mysteriousness of the court, where cameras and tape recorders are barred. "I have always taken pride in the fact that we are the one branch of the government that conscientiously tries to explain the reasons for all of its important decisions. Although we may not give press conferences, we certainly write our own form of substantive and comprehensive press releases," he said. Ironically, reporters found out about Stevens' speech in Chicago last week only after-the-fact. A copy of his remarks were distributed two days later. Like many members of the court, Stevens declines to release a schedule of speeches and appearances. Stevens, put on the Supreme Court by Republican President Ford in 1975, is generally one of the more outspoken justices, at least on paper. He write vigorous dissents and is considered one of the court's most liberal members. He said in the speech that if people want to talk about secrecy, they should look at the White House. "The executive branch in particular often makes important decisions without providing official explanations or recording the presence of internal dissent," he said. He did not explain the remark, but the Supreme Court recently dealt with a dispute over presidential privacy in the Bush administration's effort to withhold details about private meetings of the vice president's energy task force. Stevens also said that the Sept. 11 commission report of the 2001 terrorist attacks was too agreeable. "I believe a more complete airing of differing opinions would have better served Congress' interest in correcting past mistakes than limiting the commission's recommendations to those that the commissioners could endorse unanimously." As far as his summer, Stevens acknowledged he was a book worm. His picks were the 592-page "Salt of the Earth, Conscience of the Court" about the late Supreme Court Justice Wiley Rutledge by John Ferren (Stevens was a law clerk for Rutledge in 1947) and author Ron Chernow's 600- page biography of founding father Alexander Hamilton. He said Rutledge's work significantly influenced the Supreme Court in its recent ruling that opened federal courts to foreigners being held without legal rights at a U.S. military prison in Guantanamo Bay. Stevens ended his speech with a thanks to the Chicago lawyers for hosting him "in this exotic locale."                            O'connor to Judges: Explain Yourselves                     In Other Remarks at 9th Circuit's Annual Conference,          Supreme Court Justice Likens 'Blakely' Decision to an Earthquake Jeff Chorney The Recorder 07-23-2004 U.S. Supreme Court Justice Sandra Day O'Connor had some advice for judges as the 9th Circuit's annual conference drew to a close on Thursday. "Try to make a friend out of the members of Congress," O'Connor said. "Try to help them understand the needs of judges. It's much harder to turn a cold shoulder on someone you know." O'Connor took the stage for nearly an hour in a partially rehearsed "conversation" with 9th U.S. Circuit Court of Appeals Judge Raymond Fisher, Seattle U.S. Attorney John McKay and University of Arizona law professor Ana Maria Merico-Stephens. Despite tensions with Congress, confusion over criminal sentencing and budget problems hanging over the room, O'Connor was charming and, at times, self-effacing. She got a few laughs out of conference attendees, who gave her a standing ovation at the end of the program. The justice, who is the 9th Circuit's liaison to the Supreme Court, avoided going into detail about the cause of the recent sentencing confusion, Blakely v. Washington, 04 C.D.O.S. 5539, in which she dissented. But she did say that the decision "looks like a number 10 earthquake to me." But she encouraged judges to educate legislators about what goes on in the courts. At the same time, she warned that any effort to influence Congress is going to be tough. "The apparent state of relations ... is more tense than at any time in my lifetime," O'Connor said, citing judicial pay and other funding issues. "What can we do about it?" She said lawyers "should be equally engaged." Northern District of California Judge Susan Illston and Magistrate Judge James Larson said they already follow O'Connor's advice and try to regularly meet with California's congressional delegation. "Information seems to be the key," Illston said. "If there's an open flow, maybe things can improve." Larson said O'Connor's perspective is useful. "Even [Chief Justice William] Rehnquist has to walk across the street," he said. O'Connor's words were an appropriate bookend for the conference, which began Monday with a state of the circuit speech by 9th Circuit Chief Judge Mary Schroeder. Although the tone of the four-day event was generally positive, concern over what Congress might do with the judicial budget or with sentencing guidelines in light of Blakely crept into seminars and pervaded private conversations. The tension isn't only between Congress and courts. In a quick review of the most recent high court session, O'Connor briefly touched on Hamdi v. Rumsfeld, 04 C.D.O.S. 5669, and the other cases that questioned the legality of some tactics in President Bush's war against terrorism. O'Connor said the cases highlighted a clash between branches. "These are terribly important cases in our country," she said. "The executive position was to leave it in the hands of the executive [branch] and have no judicial review." She said the cases were difficult because justices couldn't find very many precedents to guide decisions. "There was no situation such as what we had in Guantanamo Bay," O'Connor said. She added a few minutes later: "I think it's probably a good idea to move slowly in unknown areas." Just before the conference began, the chief judges from California's four judicial districts sent a letter to members of Congress warning of layoffs and reduced services if there's no budget. Judges are already warning of budgetary doom and gloom because it appears that Congress will not approve a plan in time for the 2005 fiscal year, which begins in October. If there isn't a budget on time, courts will continue operating at 2004 levels. And on Wednesday, the 9th Circuit became the latest circuit to decide a federal case using Blakely. The original decision tossed out Washington state's sentencing guidelines because they allow judges to ratchet up prison terms based on facts that don't have to be proved to juries first. The 9th Circuit and other courts have said Blakely applies to the federal sentencing scheme, while other courts have gone the other way. The government has asked the Supreme Court to expedite review in two federal cases to end the uncertainty. Right before O'Connor took the stage, conference members voted on two resolutions. One urges legislators to give judges more discretion in sentencing. The other asks for help to avoid budget cutbacks. The results of the voting won't be available for a couple of weeks. OPENING ARGUMENT Our Imperial, Disingenuous, Indispensable Court By Stuart Taylor Jr., National Journal Group Inc. Friday, July 16, 2004 Liberals say the Supreme Court is too conservative. Conservatives say it's too liberal. But many experts in both camps agree that the nine current justices have taken us too far down the road of judicial supremacy. In an end-of-term speech on July 9, outgoing Solicitor General Theodore Olson told the conservative Federalist Society that this may be "the most powerful Court in the nation's history." While the justices "have deep disagreements about how the country should be governed," observed Washington lawyer Miguel Estrada at a July 12 Heritage Foundation forum, "they all agree that they should be governing the country." The Court "seems incapable of admitting that some matters -- any matters -- are none of its business," complained Justice Antonin Scalia in a June 29 dissent. Nor is this just conservative sour grapes. At the same Heritage forum, Walter Dellinger, a leading Democratic scholar who was President Clinton's acting solicitor general in 1996 and 1997, enthusiastically seconded Scalia's complaint and added this: "This Court puts itself at the center of the constitutional universe.... It's rather striking, the Court's lack of deference to anyone else." No deference to Congress. Especially striking is the Court's pattern of treating Congress, in which the Constitution vests "all legislative powers," as a junior partner in the law-making process. Take the June 29 decision in Ashcroft v. ACLU, barring enforcement for now (and probably forever) of the Child Online Protection Act of 1998, in which Congress required Internet sellers of hard-core commercial pornography to verify that each online visitor was 18 or older before letting him or her see their smut. The 1998 criminal statute -- adopted after the justices had in 1997 struck down the earlier, much broader, Communications Decency Act of 1996 -- reflected Congress's painstaking effort to "meet each and every criticism of the predecessor statute that this Court set forth, [and] protect children from exposure to obscene professional pornography without obstructing adult access to material that the First Amendment protects," in the words of Justice Stephen Breyer's dissent. But that did not stop the majority, in an opinion by Justice Anthony Kennedy, from nullifying the 1998 law unless and until the government can prove that no "less restrictive" protections for children could possibly be devised. "The Court in effect gave Congress the finger," observes Paul Rosenzweig of Heritage. The same day, the justices ruled 6-3 that federal courts may entertain lawsuits by foreigners claiming to be victims of severe human-rights violations anywhere in the world. Justice David Souter's majority opinion (Sosa v. Alvarez-Machain) styled this as an interpretation of the long-dormant Alien Tort Statute of 1789. He followed the reasoning (while disapproving of some of the results) of lower courts that have read the statute since about 1980 as authorizing international human-rights lawsuits -- even though Congress clearly had no such intent, either in 1789 or since. Scalia's dissent called this "the latest victory for [the Court's] 'Never Say Never' Jurisprudence." No deference to the president. The Court on June 28 rejected by a stunning 8-1 vote President Bush's claim of power to hold U.S. citizens suspected of being "enemy combatants" incommunicado for years, perhaps decades, with no meaningful judicial review. This decision (Hamdi v. Rumsfeld) was basically right, in my view. But the justices gave disturbingly short shrift to the government's argument against giving such detainees immediate access to lawyers, lest the attorneys disrupt interrogations and thus "interfere with the military's compelling interest in gathering intelligence to further the war effort." In Rasul v. Bush, the Court squashed by 6-3 Bush's argument that no court could question his detention of non-American prisoners overseas, including the hundreds held at the Guantanamo Bay, Cuba, naval base. This prompted Scalia to complain in dissent that the Court had extended its powers "to the four corners of the Earth," risking "conflict between judicial and military opinion highly comforting to enemies of the United States." No deference to states. Scalia broke some furniture himself in a 5-4 decision on June 24 that threw the sentencing systems of about a dozen states into chaos, along with the federal government's own congressionally ordained sentencing guidelines. Scalia's opinion in Blakely v. Washington held that the Sixth Amendment right to trial by jury bars use of judicial fact-findings to increase any defendant's sentence beyond the ordinary range for his crime. Now it was Kennedy's turn to accuse Scalia of dissing democracy, by engineering "the destruction of a sentencing scheme devised by democratically elected legislators." Justice Sandra Day O'Connor's separate dissent attacked the potentially "disastrous" Scalia opinion for imposing a "rigid rule that destroys everything in its path," including "over 20 years of sentencing reform" by states and Congress. So much for judicial restraint. No deference to the Court's own precedents. Administration lawyers had initially been confident of winning the Guantanamo case because under a 1950 Supreme Court precedent, Johnson v. Eisentrager, federal courts lacked jurisdiction to hear petitions from foreigners held by the government outside the United States. But the administration underestimated the ingenuity of 84-year-old Justice John Paul Stevens. He wrote for the majority that Eisentrager had been effectively overruled by a 1973 decision that did not even mention it. This was, as Scalia wrote for the dissenters, "implausible in the extreme." All nine justices complain when precedents that they like are disregarded. But not one is consistently willing to "accept legal precedent as binding" when it stands in the way of what he or she wants to do, Estrada said at the Heritage forum. They "really don't care about acting like a court [and thus are] not really doing [their] job," he asserted. Other experts add that by deciding many cases on such narrow grounds as to leave unclear what the Court will do in the next case raising similar issues, the justices shirk their cardinal duty to tell litigants and lower courts what the law is. In short, none of the nine consistently practices judicial restraint. And when the justices do invoke that ideal, it is often an exercise in disingenuousness. Take the 5-3 decision on June 14, which ducked the merits of the case in which a federal appeals court in California had ruled that "under God" must be dropped when the Pledge of Allegiance is recited in schools (Elk Grove Unified School District v. Newdow). The case presented a dilemma for the four liberals and Kennedy. A decision striking out "under God" would have provoked an election-year firestorm, perhaps even a constitutional amendment. But that was the outcome required by any honest reading of the most relevant precedent, a 1992 decision in which Kennedy had tortured language and logic to find that a brief, nondenominational, nonparticipatory prayer by a rabbi at a middle-school graduation amounted to unconstitutional "compulsion" of all students to "participate in a religious exercise." Stevens escaped this box by seizing upon a dispute between the atheist who had brought the lawsuit to bar his daughter's school from reciting "under God" and the girl's mother, who disagreed. To avoid intruding into this family law dispute, wrote Stevens for the majority, the lower courts should have invoked the "prudential standing" doctrine to dismiss the case. But the Stevens twist on this doctrine was so contrived that it's hard to imagine any of the majority justices taking it seriously had they not been so desperate to hide the radical implications of their own graduation-prayer precedent. Given all these complaints, from critics across the ideological spectrum, why do we put up with these self-aggrandizing judicial legislators? Why do they outpoll Congress and the executive in terms of public confidence? Why has no modern president ever dared defy them? One reason is that all nine justices are credited, even by critics, with being highly capable and honorably motivated by their visions of the public good, rather than by pursuit of votes, campaign money, or self-enrichment. A second reason is that the two who control the outcomes of the biggest cases, O'Connor and Kennedy, have moderate political philosophies and never stray very far from the mainstream of public opinion -- or, at least, of elite opinion. A third reason is that the justices provide an indispensable check against abuses by the states and the elected branches. Congress has largely abdicated its own duty to restrain the wartime president. So the Court stood alone against Bush's frightening claim of power to seize anyone in the world, at any time, and hold him incommunicado, perhaps for decades, with no semblance of due process. A more restrained or timid group of justices might have acquiesced. For myself, I hate the Court's relentless aggrandizement of its own powers -- except when I like it. Stuart Taylor Jr. is a senior writer for National Journal magazine, where "Opening Argument" appears.               The Year Rehnquist May Have Lost His Court By Linda Greenhouse The New York Times July 4, 2004 It is too soon to say for sure, but it is possible that the 2003-04 term may go down in history as the one when Chief Justice William H. Rehnquist lost his court. The cases decided in the term's closing days on the rights of the detainees labeled "enemy combatants" by the Bush administration provided striking evidence for this appraisal. The court ruled that foreigners imprisoned at Guantáánamo Bay, Cuba, as well as American citizens held in the United States are entitled to contest their classification before an impartial judge. The surprise lay not in the outcome: it was scarcely a great shock, except perhaps to the administration, that a court preoccupied in recent years with preserving judicial authority would reject the bold claim of unreviewable executive power at the core of the administration's legal arguments. Rather, what was most unexpected about the outcome of the cases was the invisibility of Chief Justice Rehnquist. It is a remarkable development. Since his promotion to chief justice 18 years ago, his tenure has been notable for the sure hand with which he has led the court, marshaling fractious colleagues not only to advance his own agenda but also to protect the court's institutional prerogatives. Four years ago, for example, the court reviewed a law by which Congress had purported to overrule the Miranda decision, a precedent Chief Justice Rehnquist disliked and had criticized for years. But in the face of Congress's defiance, he wrote a cryptic opinion for a 7-to-2 majority that said no more than necessary about Miranda itself but found common ground in making clear that it was the court, not Congress, that has the last word on what the Constitution means. This year, there was every reason to suppose the chief justice would want to shape the court's response to the war on terrorism. His 1998 book on the history of civil liberties in wartime reflected his extensive knowledge and evident fascination with the subject by which the term, if not his entire tenure, was likely to be known. If there was a message to be delivered from one branch of government to another, Chief Justice Rehnquist figured to be the one to deliver it. Yet the Guantáánamo case found him silently joining Justice Antonin Scalia's dissenting opinion as Justice John Paul Stevens explained for the 6-to-3 majority why the federal courts have jurisdiction to review the status of the hundreds of foreigners detained there. In the case of Yaser Esam Hamdi, the American-born Saudi taken from the battlefield in Afghanistan and held since 2002 in a military prison, Chief Justice Rehnquist was among the eight justices who found the open-ended detention improper for either constitutional or statutory reasons. But his was not among the several voices with which the court spoke. He was a silent member - perhaps even a late-arriving one - of Justice Sandra Day O'Connor's plurality opinion. The implication is not that Chief Justice Rehnquist, who turns 80 on Oct. 1, has lost a step. Nor does he show any interest in leaving the court, which he joined in 1972 at the age of 47. A few days ago, in fact, he hired law clerks for the term beginning in October 2005, and some people believe he is aiming to top the record of 36 years set by Justice William O. Douglas, or at least to equal the 34-year tenure of his judicial hero, Chief Justice John Marshall. Rather, it appears that while he has stood still, the court's center of gravity has moved away from him. One statistic is particularly telling. There were 18 cases this term decided by five-member majorities (17 were 5-to-4 decisions and one, the Pledge of Allegiance case, was 5 to 3 but would surely have been 5 to 4 had Justice Scalia participated; he would certainly have agreed with Chief Justice Rehnquist, in the minority, that the court should rule that "under God" posed no constitutional problem). Of the 18 cases, Chief Justice Rehnquist was in the majority in only eight. That contrasts sharply with the chief justice's notably successful term two years ago, when he was in the majority in 15 of 21 5-to-4 decisions. A year ago, he was in the majority half the time, in 7 of 14 cases with 5-to-4 votes, and was on the losing side in the most important of those cases, the decision that upheld affirmative action at the University of Michigan. He was also on the losing side in the Texas gay rights case, in which the court voted 6 to 3 to overturn the state's criminal sodomy law. Those were the first stirrings of what accelerated during the term that began Oct. 6. The chief justice was in dissent in most major cases, from the expedited ruling in December that upheld major provisions of the new campaign finance law, until the two decisions last Tuesday, the term's final day, blocking enforcement of an Internet pornography law and taking a generous view of federal court jurisdiction under the Alien Tort Statute to hear foreign human rights cases. Also last week, he dissented from the court's refusal to authorize a police interrogation tactic designed to induce suspects to confess despite receiving their Miranda warnings. Further, the Rehnquist court's federalism revolution, with its expansive approach to state sovereignty and correspondingly limited view of Congressional power, appeared this term to stall in its tracks. The chief justice was on the losing side in the term's major federalism case, the 5-to- 4 decision in Tennessee v. Lane rejecting state immunity from suit under a provision of the Americans With Disabilities Act. A number of other cases had federalism overtones that a majority of the court either rejected or ignored. In the case that struck down the sentencing guidelines in the state of Washington, Justice Anthony M. Kennedy objected in dissent that the court was failing to give the states proper respect for their legislative choices on criminal justice. Chief Justice Rehnquist also dissented in that case, which although just over a week old has already left criminal sentencing in turmoil around the country. Opponents of the McCain-Feingold campaign finance law objected on state's rights grounds to limits on the fund-raising abilities of political parties at the state level. In upholding the law, over Chief Justice Rehnquist's dissent, the court barely acknowledged the federalism argument. The chief justice tried and failed to use a Pennsylvania redistricting case this term to overturn a 1986 precedent, to which he had strongly objected at the time, that gave courts authority to review claims of partisan gerrymandering. While there were five votes to reject the particular gerrymander complaint, one of the five, Justice Kennedy, refused to go along completely, instead writing a concurring opinion that kept the prospect of a successful gerrymander suit alive for future cases. The court decided 73 cases with full opinions during the term. Of the major cases, Chief Justice Rehnquist wrote the majority opinion in two. One was the third of the terrorism detainee cases, that of Jose Padilla, an American arrested at O'Hare International Airport on suspicion of being part of a terrorist plot, who has been held in a military prison for the last two years without access to court. The decision postponed resolution of the case by holding that Mr. Padilla's lawyer should have filed his habeas corpus petition in South Carolina rather than in New York. The second of the chief justice's major opinions came in an important church-state case, Locke v. Davey. The question was whether a state that underwrites college scholarships for secular study must also subsidize students who want to study for the ministry. The argument for the religious subsidies built on Chief Justice Rehnquist's opinion for the court two years ago in a school voucher case from Ohio, holding that it did not violate the Constitution for states to give parents vouchers for religious school tuition as part of a general "school choice" plan. As a practical matter, the future of the school-choice movement depended on the answer to the question Locke v. Davey brought to the court: if vouchers were permissible, were they also constitutionally required? Writing for a 7-to-2 majority, the chief justice's answer was no. "The state has merely chosen not to fund a distinct category of instruction,'' one that was "not fungible'' with ordinary secular studies, he said over biting dissents from Justices Scalia and Clarence Thomas. Largely overlooked in the drama of the term's higher-profile cases, Locke v. Davey was an important decision, indicative of the struggle now going on within the court over how far to push some of the principles that the conservative majority has established over the last 10 years or so. In this instance, although the consequences of turning permissible vouchers into required vouchers would have been profoundly unsettling, the court's recent insistence on an equal place for religion at the public table provided at least a plausible basis for that outcome. Instead, the majority looked at the consequences of carrying the recent precedents to their logical conclusion, and stopped short. In fact, as Locke v. Davey demonstrates, the most consequential debate on the court today may be not so much over first principles, but over how far to carry those principles. That the chief justice was so often on the losing side this term may not mean that those who once agreed with him have changed their minds, but that they disagree over what to do next. In Locke v. Davey, the stopping point appeared clear to a broad majority of the court. In the Tennessee federalism case, by contrast, while the chief justice wanted to continue pressing the boundaries of state sovereignty to immunize the state from a lawsuit by a man who could not reach a second-floor county courtroom in his wheelchair, Justice O'Connor decided that Tennessee v. Lane was not the case in which to push sovereign immunity to its logical conclusion. The outcome was reminiscent of the court's decision a year ago in the Michigan affirmative action case. Justice O'Connor, long skeptical of all official policies that take account of race, joined Justices Stevens, Ruth Bader Ginsburg, David H. Souter and Stephen G. Breyer to uphold the law school's admissions plan, essentially on the ground that diversity was good for the country. Pragmatism rather than doctrine seems to be the order of the day at the court now. Justice O'Connor, perhaps the court's leading pragmatist, cast only five dissenting votes in the entire term, far fewer than anyone else, and was in the majority in 13 of the 18 most closely decided cases, more often than any other justice. She formed strategic alliances with other justices, for example writing an unusual joint opinion with Justice Stevens that upheld the central portions of the campaign finance law. Justice Stevens displayed his own strategic skills, finely honed during a 29-year tenure that has made him the senior associate justice, in a position to assign the majority opinion in all cases where the chief justice is in dissent. He tailored his majority opinion in Tennessee v. Lane to Justice O'Connor's comfort level, for example, and crafted a procedural opinion that removed the highly sensitive Pledge of Allegiance case from the court's docket with surgical precision, leaving no precedent behind. At 84, his intellectual energy appears undimmed, and he told a gathering of his former law clerks a few weeks ago that he has no retirement plans. So when the new term begins on Oct. 4, the same justices will reassemble for a highly unusual 11th year together. The juvenile death penalty and medical marijuana are among the cases already on a docket that may continue pushing these nine people, so familiar to each other, in new directions. Following are summaries of the term's major decisions. (Some of the vote counts are judgment calls; an opinion labeled by its author as a concurrence may be counted as a dissent, for example, if it departs from the essential elements of the majority opinion.) Detainees Rejecting the Bush administration's claim of unreviewable presidential authority in its war on terrorism, the court ruled that both citizens and noncitizens held in open-ended detention, in the United States and at Guantáánamo Bay, Cuba, are entitled to challenge their designation as "enemy combatants" before a federal judge or other "neutral decision maker." The decisions left unanswered many important questions about what procedures will satisfy the court's standards, and what will happen next. In the Guantáánamo decision, Rasul v. Bush, No. 03-334, the court held by a vote of 6 to 3 that the United States naval base in Guantáánamo Bay is within the jurisdiction of the federal courts, entitling hundreds of foreign detainees to file petitions for habeas corpus. Justice Stevens wrote the opinion. Justice Scalia wrote a dissent, joined by Chief Justice Rehnquist and Justice Thomas. The court ruled by a divided 8-to-1 majority in Hamdi v. Rumsfeld, No. 03-6696, that the two- year detention of a United States citizen, Yaser Esam Hamdi, was invalid, for any of several reasons. Justice O'Connor, along with Chief Justice Rehnquist and Justices Kennedy and Breyer, said that Mr. Hamdi, picked up on the battlefield in Afghanistan, had a due process right to a "meaningful opportunity" to contest the factual basis for his detention. Justices Souter and Ginsburg found that Congress had never authorized Mr. Hamdi's detention in the first place. Justices Scalia and Stevens said the government must either try Mr. Hamdi for a crime, with the normal protections accorded to a criminal defendant, or release him unless Congress itself suspends the right to habeas corpus. Only Justice Thomas said the detention "falls squarely within the federal government's war powers" and therefore holds up against any argument. A second United States citizen, Jose Padilla, arrested at O'Hare International Airport in Chicago and now confined in the same naval brig in Charleston, S.C., as Mr. Hamdi, must file a new lawsuit in federal district court there as the result of the court's 5-to-4 ruling in Rumsfeld v. Padilla, No. 03-1027. The federal courts in New York, where Mr. Padilla was initially held and where his lawyer filed a habeas corpus petition in June 2002, lacked jurisdiction, the court held in an opinion by Chief Justice Rehnquist. Justices Stevens, Souter, Ginsburg and Breyer dissented. Politics Two cases had important implications for the political system. In one, the court upheld the new federal campaign finance law by a vote of 5 to 4, rejecting arguments made by the Republican National Committee and a coalition of business, labor and lobbying groups that the law's restrictions on contributions and advertising violated the First Amendment guarantee of free speech. Experience with the flood of unregulated money into politics amply justified the new law, the majority said. The justices worked hard to expedite the decision, McConnell v. Federal Election Commission, No. 02-1674, managing to hand it down in early December as the 2004 campaign season got under way. By then, the provisions of the Bipartisan Campaign Reform Act, usually referred to as McCain-Feingold for its Senate sponsors, had been in effect for 13 months and the system was already adjusting to the ban on unlimited contributions of so-called soft money to the political parties. Justices Stevens and O'Connor co-wrote the main opinion, joined by Justices Souter, Ginsburg and Breyer. Justice Kennedy wrote the main dissent, criticizing the majority's definition of corruption as unduly broad. Chief Justice Rehnquist and Justices Scalia and Thomas also dissented. The second case raised the question of whether the federal courts should intervene in a redistricting dispute to correct a partisan gerrymander. The case was from Pennsylvania, where the Republican-controlled Legislature redrew the state's Congressional district to squeeze out several Democratic incumbents. The court was deeply split. Justices Scalia, O'Connor and Thomas and Chief Justice Rehnquist said in a plurality opinion by Justice Scalia that partisan gerrymander cases did not belong in federal court because there was no standard that judges could apply to evaluate them. Justice Kennedy provided a fifth vote for rejecting the Democrats' constitutional claim in this case, Vieth v. Jubelirer, No. 02-1580, while indicating that a future case could be so extreme as to violate the constitutional guarantee of equal protection. Justices Stevens, Souter, Breyer and Ginsburg said the courts should be open to such cases, although they did not agree on what standard to apply. Criminal Law Continuing the revolution in criminal sentencing that the court began four years ago, a 5-to-4 decision striking down Washington State's sentencing guideline system threw federal sentencing into turmoil, indicating the need for a quick resolution of the validity of the federal guidelines. The court ruled that under the Sixth Amendment's guarantee of trial by jury, judges cannot be permitted to make the factual findings that increase a defendant's sentence beyond the usual range for the crime. Juries must find such facts "beyond a reasonable doubt," Justice Scalia wrote for the court in Blakely v. Washington, No. 02-1632. As in earlier rulings in this line of cases, the unusual majority included Justices Stevens, Souter, Thomas and Ginsburg. Justices O'Connor, Kennedy and Breyer dissented, as did Chief Justice Rehnquist. At the same time, the court refused to give retroactive application to a 2002 ruling that invalidated the death penalty laws of Arizona and four other states for permitting judges to make the factual determination that placed a convicted murderer in the category of those eligible for the death penalty. The 5-to-4 decision in Schriro v. Summerlin, No. 03-526, returned as many as 100 inmates to the five states' death rows. Justice Scalia wrote the majority opinion. Justices Breyer, Stevens, Souter and Ginsburg dissented. The court strengthened the constitutional right of criminal defendants to confront the witnesses against them, unanimously ruling that prosecutors cannot introduce statements from an absent witness - on tape, for example - unless the defense has had a chance to cross-examine the witness at an earlier hearing or a previous trial. This decision replaced the court's previous, more flexible approach, which often favored the prosecution. Justice Scalia wrote for the court in Crawford v. Washington, No. 02-9410, that the Sixth Amendment's confrontation clause gives defendants the right to face their accusers, with few exceptions. With Justice Kennedy making the difference, the court reached opposite results in two cases on the consequences of a failure by the police to read suspects their Miranda rights. In Missouri v. Seibert, No. 02-1371, the court rejected a police tactic of withholding the warnings during an initial phase of questioning in order to induce an initial, inadmissible confession that the suspect can then be persuaded to repeat after receiving the warnings. The second confession is not admissible either, the court ruled in an opinion by Justice Souter. Justice Kennedy voted in the majority, as did Justices Stevens, Ginsburg and Breyer. The second case, United States v. Patane, No. 02-1183, permitted the police to introduce physical evidence discovered as the result of statements from a suspect who did not receive Miranda warnings. Justice Thomas wrote an opinion for himself, Chief Justice Rehnquist and Justice Scalia that was noticeably hostile to the Miranda precedent. Justices O'Connor and Kennedy did not go so far, but they agreed with the outcome in this particular case. In two Texas death penalty cases, the court issued unusually pointed rebukes of the United States Court of Appeals for the Fifth Circuit, which sits in New Orleans and has jurisdiction over federal court appeals originating in Texas. The justices in both cases found that the appeals court had failed to follow Supreme Court precedent in refusing writs of habeas corpus to death-row inmates: Delma Banks, who presented extensive evidence of prosecutorial misconduct, and Robert J. Tennard, whose lawyers argued that he had been blocked from presenting his low I.Q. as mitigating evidence. The decision in Banks v. Dretke, No. 02-8286, was 7 to 2, with a majority opinion by Justice Ginsburg and dissenting votes from Justices Thomas and Scalia. The vote in Tennard v. Dretke, No. 02-10038, was 6 to 3, with a majority opinion by Justice O'Connor and dissenting votes from Justices Thomas and Scalia and Chief Justice Rehnquist. Privacy The court ruled unanimously that release of the death-scene photographs of Vincent W. Foster, the Clinton administration's deputy White House counsel, would be an unwarranted invasion of the privacy of his family. Mr. Foster committed suicide in 1993. Alan J. Favish, a lawyer who disputed the finding of suicide, sought the photographs under the Freedom of Information Act. His "bare suspicion" was not enough to justify the intrusion, Justice Kennedy said for the court in National Archives v. Favish, No. 02-954. The court divided 5 to 4 on another privacy question, ruling against a Nevada rancher, Larry D. Hiibel, who argued that he could not constitutionally be required to identify himself to a law enforcement officer. The court held in Hiibel v. Sixth Judicial District Court, No. 03-5554, that the police are entitled to obtain the name of someone they suspect might be involved in a crime, even in the absence of the probable cause necessary to make an arrest. Justice Kennedy wrote the majority opinion. Justice Stevens, Souter, Ginsburg and Breyer dissented. Discrimination Addressing sexual harassment in the workplace, the court set guidelines for the first time for evaluating an employer's liability for working conditions that become so intolerable as to induce a reasonable employee to resign. Speaking for an 8-to-1 majority, Justice Ginsburg said an employer could ordinarily defend itself by showing that it had adequate procedures in place for reporting harassment and the employee had failed to use those procedures. But if a supervisor or manager had taken official action against the employee - a demotion or reduction in pay, for example - as part of the harassment, that defense would not be available, the court said in Pennsylvania State Police v. Suders, No. 03-95. Justice Thomas dissented. Interpreting the federal law against age discrimination in employment, the court ruled 6 to 3 that the statute is not a two-way street: it protects those whose employers think they are too old, but not those who are disfavored for being too young. A group of younger workers had sued General Dynamics over changes in retirement health benefits that hurt those under 50 while protecting older workers. The court said the law should be understood in the context of Congress's intent to protect older workers. Justice Souter wrote for the majority in General Dynamics Land Systems v. Cline, No. 02-1080. Justices Scalia, Thomas and Kennedy dissented. Federalism and Regulation Ruling narrowly, the court held that states could be sued under the Americans With Disabilities Act for failing to make their courthouses accessible. The law requires accessibility for a broad array of public services and programs, but Justice Stevens's opinion for a 5-to-4 majority confined itself to the plight of wheelchair users in Tennessee who were barred by architectural barriers from entering county courthouses. Whether states can claim immunity from suit in other applications of the disability law remains to be seen in future cases. Limited as it was, this decision, Tennessee v. Lane, No. 02-1667, was significant as a break from past decisions rejecting Congressional efforts to overcome the states' constitutional immunity from suit. The majority said Congress was justified in this context by a well-documented history of the exclusion from state judicial proceedings of people with disabilities. Chief Justice Rehnquist dissented, along with Justices Scalia, Thomas and Kennedy. In a major health care case, the court ruled unanimously that federal law barred the states from extending to patients in managed care the right to sue for damages when a health maintenance organization refuses to cover treatments that a doctor has deemed medically necessary. Congress alone can decide whether to enact a "patients' bill of rights," the court said in Aetna Health Inc. v. Davila, No. 02-1845. Justice Thomas wrote the opinion. The court affirmed the authority of the federal Environmental Protection Agency over state regulators in a Clean Air Act case from Alaska. The dispute in Alaska Department of Environmental Conservation v. Environmental Protection Agency, No. 02-658, was over which agency had the final word in setting conditions for expansion of a zinc mine. Voting 5 to 4, the court upheld the federal regulators' authority to set stricter conditions. Justice Ginsburg wrote the opinion. Justice Kennedy dissented on federalism grounds, joined by Chief Justice Rehnquist and Justices Scalia and Thomas. Speech and Religion In an opinion by Chief Justice Rehnquist, the court ruled that states that subsidize college tuition for secular studies are not constitutionally obliged to also subsidize students who are preparing for the ministry. The case rejected the claim of a ministry student to equal access to a Washington State scholarship for which he would have been eligible if not for the state's own constitutional ban on public financing of religious institutions. The vote in Locke v. Davey, No. 02-1315, was 7 to 2, with Justices Scalia and Thomas dissenting. Similar constitutional barriers against subsidizing religious study exist in most states and stand in the way of an expansion of the tuition voucher programs the court upheld in a case from Ohio two years ago. The question raised by the new case was whether states must include religious schools in "school choice" programs as a matter of the free exercise of religion. More generally, does exclusion of religious institutions from a general public benefit automatically amount to discrimination? The court's answer was no. A dispute over the constitutionality of the words "under God" in the Pledge of Allegiance ended inconclusively when five justices held that the atheist who complained about the recitation of the pledge in his daughter's elementary school classroom lacked standing to bring the lawsuit. Justice Stevens said for the majority that Michael A. Newdow's lack of legal custody of his daughter, coupled with the desire of the child's mother to have her continue reciting the pledge, meant that the lower courts should have refrained from deciding the case. Justices Souter, Kennedy, Ginsburg and Breyer joined the majority opinion in Elk Grove Unified School District v. Newdow, No. 02-1624, which took no view on the constitutional merits of the lawsuit. Chief Justice Rehnquist, Justice Thomas and Justice O'Connor wrote separate opinions addressing the merits and finding the pledge constitutional. Justice Scalia recused himself from the case after having expressed his view before the appeal reached the court that "under God" was constitutional. The court rejected Congress's latest effort to curb children's access to sexually explicit material on the Internet. But the 5-to-4 decision in Ashcroft v. American Civil Liberties Union, No. 03- 218, left open the prospect that the Child Online Protection Act of 1998 might yet survive a federal district court trial if the Bush administration can show that the voluntary use of filters would not be as effective as the law's stiff criminal penalties in achieving the goal of protecting children. Justice Kennedy wrote for the majority, joined by Justices Stevens, Souter, Thomas and Ginsburg. Jurisdiction Several cases this term posed novel questions about the jurisdiction of the federal courts to resolve disputes over events that took place outside the country's borders. Interpreting a 215-year-old law, the Alien Tort Statute, the court kept federal courthouse doors open to lawsuits by foreigners who say they were victims of serious human rights violations anywhere in the world. The 6-to-3 decision in Sosa v. Alvarez-Machain, No. 03-339, left many unanswered questions about the full reach of the statute. Justice Souter wrote for the majority. Justices Scalia and Thomas and Chief Justice Rehnquist dissented. The court ruled that the heir of an Austrian Jewish art collector could pursue a lawsuit in federal court against Austria for the return of six valuable paintings seized from the family during the Nazi era. The 6-to-3 decision interpreted a jurisdictional statute, the Foreign Sovereign Immunities Act, to apply to conduct predating its enactment in 1976. Justice Stevens wrote the majority opinion in Republic of Austria v. Altmann, No. 03-13. Justice Kennedy wrote a dissenting opinion that Justice Thomas and Chief Justice Rehnquist signed. The court limited the foreign reach of federal antitrust law, ruling that the Sherman Antitrust Act does not apply to transactions that take place in foreign countries unless the defendant's actions in the United States can be shown to have contributed to the anticompetitive effects felt overseas. The 8-to-0 decision came in a private suit for damages in an international conspiracy to fix vitamin prices. Justice Breyer wrote the opinion in F. Hoffmann-LaRoche Ltd. v. Empagran S.A., N0. 03-724. Justice O'Connor did not participate. A case involving Vice President Dick Cheney had intensely political overtones but turned, as a legal matter, on arcane issues of federal court jurisdiction. The underlying question was whether groups suing the vice president to get information about contacts between his energy policy task force and energy company executives could undertake pretrial discovery in their effort to establish that a federal open-meetings law applied to the task force. For the Supreme Court, however, the only question was whether a federal appeals court properly interpreted a jurisdictional statute when it refused to block the pretrial discovery. Voting 7 to 2, the justices found that the appeals court had acted "prematurely" when it refused the vice president's request to block discovery. The decision, Cheney v. United States District Court, No. 03-475, gives the vice president a second chance at shielding the information. Justice Kennedy wrote for the majority. Justices Ginsburg and Souter dissented. O'Connor's Power Examined Professor Says Add Justices, End 'Court of 1' By Billy House Republic Washington Bureau July 2, 2004 WASHINGTON - Justice Sandra Day O'Connor's recurring role as a key swing vote is essentially turning the U.S. Supreme Court into "a court of one," says a prominent constitutional scholar who argues that the nation's highest court should be expanded from nine justices to 19. In an article titled "Unpacking the Court," George Washington University law Professor Jonathan Turley calls it "remarkable" how uncontroversial this "concentration of power" in a single justice has been, saying that never was the intent of the nation's Founding Fathers. Turley, who is a frequent witness before the House and Senate on legal issues and has worked as an on-air analyst for network television news shows, hopes his just-published article in the summer edition of Perspectives on Political Science will serve as a catalyst for debate on the issue. He said he already has gotten telephone calls from some congressional offices intrigued by the article's call to make the Supreme Court bigger. O'Connor, from Arizona, is a 23-year veteran of the court. She was not available for comment Thursday. By virtue of her often being the deciding vote on an otherwise evenly divided court, O'Connor has had a major role in helping to reshape the country in areas such as criminal sentencing, campaign financing and affirmative action. Along the way, she sometimes has confounded her long-time conservative allies with what at times seems to be evolving, if not legally inconsistent, views on everything from abortion rights to federalism. Turley's article lays out how consistently key her votes have been. Justice's key role Nearly 20 percent of the 71 published Supreme Court decisions in the 2002-2003 were the results of 5-4 votes. In 12 of those 14 cases, O'Connor was the swing vote. In 2001-2002, 28 out of 85 decisions were 5-4 votes, with either O'Connor or Justice Anthony Kennedy emerging in every one of them as the swing vote. "It is . . . ridiculous that Sandra Day O'Connor should be a court of one," Turley said in an interview on Thursday. "She has contradicted herself from one term to another, and that has left the law constantly being whiplashed by the evolving views of a single justice." "The size of the court is the problem," Turley argues in his article. But Turley says there's no constitutional reason why that can't be changed. In fact, he notes the court has had as few as five justices and as many as 10 in its history. The current nine-member format was instituted in 1869. In 1937, then-President Franklin Roosevelt wanted to increase the number of justices to 15 after a conservative-leaning court blocked his New Deal reforms. Roosevelt dropped the idea to pack the court with his appointees when the court suddenly shifted in favor of his legislation, a move known in history as the "switch in time that saved nine." "In hindsight, however, Roosevelt may have had the right idea for the wrong reason," Turley writes. "The interest in expanding the court is not to pack it but to unpack it." "A 19-member court would not eliminate the possibility of a single justice being a continual swing vote, but it would make such a role less likely," Turley writes. A larger court also would reduce the time it takes for the justices to write their opinions on cases and possibly increase the number of cases they would hear to 90 from the current level of about 75, he writes. Turley also argues that an expanded court would lessen the partisan "bloodletting" over court appointments. While a president's Supreme Court picks would continue to attract political advocacy and controversy, he says the relative importance of any given justice would be greatly reduced except in rare periods of sharp splits on the court. Under Turley's plan, the 10 new justices would be phased in so no president could appoint more than two per four-year White House term (not counting retirements). Ways to expand To expand the court, he writes, Congress could pass a statute or pursue a constitutional amendment, which would set a final number of justices in stone. "My initial reaction is skepticism," said Elliot Mincberg, vice president of the People for the American Way Foundation, a Washington, D.C.-based civil rights group that monitors Supreme Court activities. "It would clearly be a major change. But in some ways, it could raise the same concerns of the so-called court-packing scheme under FDR" if the additional judges were not added in a balanced way, he said. Rep. Jeff Flake, R-Ariz., a member of the House Judiciary Committee, hesitated to comment on Turley's Supreme Court proposal until he reads the article, said his spokesman, Matthew Specht. Spokesmen for the chairmen of the House and Senate Judiciary committees had similar comments. http://www.azcentral.com/news/articles/0702oconnor02.html                                9th Circuit Dominates Top Docket Jeff Chorney The Recorder 07-01-2004 The numbers just don't jibe with the controversy. For the third year in a row, the 9th U.S. Circuit Court of Appeals -- for many, the black-robed embodiment of crazy West Coast liberalism -- fared about the same as other circuits when it came to getting reversed by the U.S. Supreme Court. But as the circuit moves toward shaking its reputation for being out of step with courts in the rest of the country, a new trend appears on the rise. "The most striking fact is not the reversal rate, but the number of cases accepted," said Arthur Hellman, a professor at the University of Pittsburgh School of Law. Ninth Circuit appeals accounted for about one-third of the Supreme Court's docket in the term that ended Tuesday -- 25 of 78 cases. Hellman said about one-sixth of petitions for certiorari were from the 9th Circuit, meaning that the Supreme Court is "taking cases from the 9th Circuit at a much higher rate than you would expect." Although the reversal rate was normal, the term was not without trouble. More than half of the 9th Circuit's 19 reversals were unanimous. Those include Tuesday's final case from the circuit, Sosa v. Alvarez-Machain, 04 C.D.O.S. 5790, which deals with the Federal Tort Claims Act and the Alien Tort statute. The 9th Circuit had allowed a man abducted from Mexico to sue the United States for false arrest. Legal scholars offer a handful of explanations for the circuit's increasing domination of the high court docket, which they noticed a few years ago. One reason may be that the West is a cultural and economic powerhouse, a place where novel legal issues are simply more likely to come up. "If an issue is not happening somewhere on the West Coast, it's probably not a significant issue," said Hastings College of the Law professor Vikram Amar. Besides that, there's also the microscope factor. "You have to wonder whether the [Supreme Court] law clerks don't take a special look at 9th cases," said Hellman, who closely follows the 9th Circuit. It's like "a self-reinforcing phenomenon because they've taken so many in the past that it becomes the focus of attention," he speculated. Amar pointed out that nearly half the Supreme Court has personal ties to California and the West: Chief Justice William Rehnquist and Justice Sandra Day O'Connor both attended Stanford Law School and then worked in Arizona. Justice Anthony Kennedy was born in Sacramento and sat on the 9th Circuit, and Justice Stephen Breyer was born in San Francisco. Amar said the higher number of reviews could be linked to the flogging the circuit got in years past. "That lack of trust may carry forward even when the basis for it may not be there," Amar said. Critics shouldn't look to the recent session for ammunition to disparage the 9th Circuit. The U.S. Supreme Court reversed or vacated 76 percent of the 9th Circuit cases it heard this session. Collectively, the circuits were reversed 77 percent of the time. But comparisons between circuits are difficult when no other circuit comes close to the number of cases under review. The closest was the 6th Circuit, which contributed eight cases. Six were reversed. In last year's session, the 9th Circuit's reversal rate was 75 percent. Over the last three years, it has averaged 74 percent. In the last five years, the average is 78 percent, including a 90 percent rate for the 1999-2000 session. Whether the numbers will have any effect on the 9th's notoriety remains to be seen. It's still the circuit that took God out of the Pledge of Allegiance and temporarily stopped the California recall election. "The circuit is not going to be able to rid itself of its reputation," said court watcher Thomas Goldstein of Goldstein & Howe in Washington, D.C. "It has been tarred and feathered as being liberal in the extreme. The most it can hope for is being liberal in moderation." The tarring came just a few years ago when the circuit was viewed as being dangerously out of step with the rest of the country. Unhappy with what the circuit was doing, U.S. Supreme Court justices sent a strong message, Goldstein said, by reversing circuit cases and making comments at judicial conferences and in other speeches and writings. "What the Supreme Court was really doing was encouraging the 9th Circuit to police itself," Goldstein said. The 9th Circuit is apparently taking that message to heart. Goldstein pointed to the litigation last fall over the recall, where a three-judge panel halted the election -- a move many believed would benefit embattled Democratic Gov. Gray Davis. But the court immediately reconsidered the case en banc and issued a unanimous ruling in Southwest Voter Registration Education Project v. Shelley, 03 C.D.O.S. 8617. Arnold Schwarzenegger won the election by a comfortable margin. One of the clearest ways the high court sends a message that it doesn't like what a circuit is doing is through summary reversals. This year, the Supreme Court did that in two 9th Circuit cases -- Middleton v. McNeil, 03 C.D.O.S. 3783, and Yarborough v. Gentry, 03 C.D.O.S. 9167. There were only two other summary reversals this term, indicating that justices are still closely watching the 9th. But circuit judges should also be encouraged, Goldstein said, because this year's numbers are an improvement. Last year, four 9th Circuit cases were summarily reversed. Despite that, some 9th Circuit judges fared well. Richard Tallman and Thomas Nelson both wrote dissents in cases the high court later flipped. And one local judge, U.S. District Judge Charles Breyer, saw his case go up to the Supreme Court. With a 6-2 decision in Olympic Airways v. Husain, 04 C.D.O.S. 1528, Breyer's decision was upheld. The 9th Circuit is already contributing its share of blockbuster cases to next term's docket. Earlier this week, the high court granted cert in Ashcroft v. Raich, 03-1454, a Commerce Clause case in which the 9th Circuit held that the federal government has no business outlawing marijuana grown for personal, medical use. Related charts: How the West Was Reversed (with links to decisions) The 9th Circuit's reversal rate through the years The Case of the Gradually Disappearing Supreme Court                   Could the Battles over Supreme Court Nominations                                   Become So Acrimonious That it            Becomes Impossible for Anyone to Win Senate Confirmation? By Stuart Taylor Jr. The Atlantic June 22, 2004 July 1, 2008——With the retirement of 88-year-old Justice John Paul Stevens today, the Supreme Court's membership dwindled to four. The remaining two liberals (Stephen Breyer and David Souter) and two conservatives (Antonin Scalia and Clarence Thomas) are almost certain to deadlock on big issues including abortion, affirmative action, gay rights, religion, and presidential war powers. So any tie-breaking replacement for Stevens would be in a position to rewrite vast areas of constitutional law. This, in turn, almost guarantees that no nominee in the foreseeable future will have much chance of getting past the Senate filibusters that have blocked all eight of the men and women named by the president since the retirements in 2005 of Chief Justice William Rehnquist and Justice Sandra Day O'Connor, at the ages of 80 and 75, and the retirements in 2007 of Justices Ruth Bader Ginsburg and Anthony Kennedy, at the ages of 74 and 71. No matter who wins the 2008 presidential election, the Senate is once again likely to be so closely divided that senators in the opposing party will easily muster the 41 votes to sustain a filibuster against any nominee who does not pass their litmus tests. And any nominee who can pass the Democratic test would fail the Republican test, and vice versa. Indeed, experts say it's conceivable that the Court's membership could eventually shrink to zero, unless and until one party or the other can muster a decisive Senate majority. (The Court would already be out of business had it not reduced the quorum required by its rules from six to five last year and then to four this year.) Whoever wins the 2008 presidential election will once again be under enormous pressure to pick nominees acceptable to his political base——and doomed to be blocked by filibusters——rather than seek a deal with opposition senators to break the logjam. Some even speak of a slow-motion Supreme Court suicide over the past five or six decades. By steadily aggrandizing their own powers, both liberal and conservative justices have made the Court into a wide-ranging superlegislature, imposing on the nation the personal political preferences of whichever group can get five votes in the guise of construing the Constitution. This in turn has transformed Senate confirmation battles into plebiscites on the nation's most- divisive issues, almost as consequential and bitterly contested as presidential elections. It has made increasingly anachronistic the traditional refusal of nominees——now seen as mere candidates for political office——to discuss their views. It has galvanized conservative and liberal activists alike to attack any nominee who fails their tests of ideological purity. And when combined with the Senate's deep partisan split and the legitimization of the filibuster as a device to block any nominee who falls shy of 6! 0 votes, these trends have produced a stalemate that may threaten the Court's very existence. The downward spiral of partisan bickering over judicial nominees is rooted in the conservative backlash against the Warren Court's well-intentioned assumption of vast and unprecedented powers to expand criminal defendants' rights, take over school districts in pursuit of desegregation, redraw election districts, ban school prayer, and more. Richard Nixon, Ronald Reagan, and George W. Bush all campaigned on vows to put more conservative judges on the bench. They were only partly successful. Nixon put the conservative Rehnquist and Chief Justice Warren Burger on the Court. But he also chose Justice Harry Blackmun, who wrote Roe v. Wade in 1973 and had become the most liberal justice by the time he retired in 1994, and the more moderate Lewis Powell, who voted with the liberals on abortion, affirmative action, and religion. Stevens, a Gerald Ford appointee, also ended up in the liberal bloc. And President Carter stocked lower courts with liberals. Reagan's first Supreme Court appointee, the ideologically amorphous Sandra Day O'Connor in 1981, ended up voting much like Powell. Reagan did make the Court more conservative by elevating Rehnquist to chief justice and appointing the conservative Scalia in 1986. But Reagan's 1987 bid to push the Court decisively to the right, by choosing conservative crusader Robert Bork to succeed Powell, provoked a titanic confirmation battle that ended in a 58-42 defeat by the newly Democratic Senate. In the process, Senate Democrats made "to Bork" a verb and set a precedent for opposing even eminently qualified nominees solely (or at least primarily) because of political disagreements with their philosophies. Reagan ended up appointing a more moderate judge, Kennedy, who ended up joining O'Connor——and the liberals——on big social issues including abortion rights, religion, and gay rights. Similarly, while the first President Bush pushed the Court to the right by choosing the fervently conservative Thomas in 1991, he had inadvertently pushed it to the left the previous year with his first appointee, Souter. Picked because he had no publicly expressed views to galvanize opposition, this "stealth nominee" proved to be solidly liberal. And when Souter joined Kennedy and O'Connor in a 1992 opinion that largely reaffirmed Roe v. Wade, bitterly disappointed conservatives vowed that there would be "no more Souters." President Clinton, uninterested in spending political capital to mold the courts, chose moderately liberal judges Ginsburg and Breyer. But this did not stop Republicans from escalating the judicial wars during Clinton's second term by using their control of the Senate and various stalling tactics to block many qualified lower-court nominees who would have been confirmed in up-or-down votes. Meanwhile, during the 1990s, the more conservative justices (often joined by O'Connor and Kennedy) became increasingly aggressive in striking down civil-rights provisions and other acts of Congress based on constitutionally questionable notions of states' rights. This in turn fueled a liberal backlash against "right-wing judicial activism." The second President Bush touched off a bitter, protracted battle with Senate Democrats——who were spoiling for revenge——by choosing strongly conservative nominees for federal appellate vacancies, many of which would previously have been filled by Clinton nominees but for Republican obstructionism. The Democrats' loss of Senate control in 2002 left them with only one blocking tactic: the filibuster, which had never before been systematically used to block, on ideological grounds, nominees who would otherwise have been confirmed. And filibuster they did. In the 2004 campaign, with the Supreme Court closely balanced on issues including racial preferences, gay rights, abortion rights, and religion, Bush and John Kerry were implored by their conservative and liberal bases to pledge to put on the Court only people who had publicly espoused views rejecting (in Bush's case) or embracing (in Kerry's case) Roe v. Wade. By the campaign's closing weeks, each candidate had come very close to doing just that. Even moderate centrists, and Souter-like "stealth" candidates, were off-limits and, in any event, unconfirmable, because conservative and liberal groups were determined to avoid the kind of surprises that Blackmun, Stevens, O'Connor, Kennedy, and Souter had given Republicans. The winner of the 2004 election was thus committed to choosing nominees who were sure to be blocked by filibusters. And the widespread assumption that a Hispanic nominee could skate through because of the opposition party's fear of offending a key voting bloc proved incorrect. By the time ideological opponents had finished trashing every controversial aspect of every nominee's record, in multimillion-dollar ad campaigns featuring distortions and denunciations by various Hispanic "leaders," Hispanic voters were so split and confused that opponents felt safe to filibuster. This made almost inevitable the filibusters in 2005 of the first two nominees to replace Rehnquist and O'Connor, and then of the second two. Nor was it a great surprise when the president——vowing never to "knuckle under" on a "core presidential prerogative"——spurned proposed trades in which the Senate would confirm one nominee of his choosing and another picked by the other party. This uncompromising stance kept the president's political base happy. It also had the not- unwelcome side effect of insulating from any further Supreme Court second-guessing the president's claims of vastly expanded power to override the Bill of Rights and congressional constraints in the name of the war against terrorism. Since the Court began shrinking——to seven members in 2005, five in 2007, and now a stalemated four——both its prestige and its will to take on a wartime president have diminished. "I can't say I miss them much," the president has reportedly said of the departed justices. So at a time when we desperately need a judicial check on executive power, the justices——with a push from the president and the Senate——may have taken themselves out of the game.

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