Justice Thomas -- Law Prof.

Justice Thomas drops in to teach Contracts for Dean Maggs at GW Law.

The Wrath of Scalia

(Scalia, J., dissenting).

SCOTUS: No Post-Trial Appeal of Summary Judgment Denial

Per Justice Ginsburg today in Ortiz v. Jordan. Logical enough...but will this encourage courts to deny summary judgment in order to avoid appellate review?

5th Cir. Upholds UT Admissions Policy

Abandoning its pre-Grutter v. Bollinger precedent.

Harvard/Yale and SCOTUS

(Oregonian/J.O.)

Elena Kagan's Law School Record

From the Wall Street Journal:

As part of her 1986 Supreme Court clerkship application, [Supreme Court nominee Elena] Kagan filed her most recent transcript, giving a snapshot of her academic interests and performance. She got a B- (her worst grade) in Torts, part of a first year law student’s mandatory curriculum. . . .

She did marginally better in Criminal Law, with a B, and managed a B+ in Administrative Law. For the rest, it was all A or A-, except for passing ungraded courses in Accounting and Copyright.

Five Harvard professors, writing separate letters of recommendation in her third year, left no doubt of her potential, however. . . . “I am looking at her transcript as I write, and there’s just no doubt that her first-year spring-term grades…not the [lower] fall-term ones, are the true reflection of her capacity and her learning,” wrote Prof. Frank Michelman.

So 1Ls, don't be discouraged if you mess up in a few classes during your first semester; the finish line is all that matters. You can still be a Supreme Court justice. :)

Elena Kagan: The Next Supreme Court Justice?

The Huffington Post reports that Obama is likely to nominate Elena Kagan to the Supreme Court on Monday. Read about it here.

Dr. Brian Leiter on Why Obama's Choice is Janet Napolitano

Dr. Leiter makes a convincing case for why President Obama's choice to replace Justice Stevens will be Janet Napolitano, the current Secretary of Homeland Security. His reasons from Brian Leiter's Law School Reports:

1. She's a she.

2. She's a Protestant, replacing the last remaining Protestant on the court.

3. She's not yet another Yale/Harvard, "inside the Beltway" nominee, who has done nothing but be a judge or DC lawyer or law professor. She has political experience, as well as prosecutorial experience.

4. She's not an East Coast insider either--she's a "real" Westerner. Geographic diversity!

5. Like Kagan, but unlike Wood (and Garland), she could easily serve 25 or more years on the court given her current age.

6. She has the strong support of the two Republican Senators from Arizona, which will help neutralize Republican opposition.

7. She was confirmed without opposition to her current post--and that wasn't long ago.

8. She's a solid Democrat, but not obviously a liberal--there's little ammunition for the crazy right. She even put people to death as a prosectur in Arizona!

9. She's politically skilled, and, esp. with the support of the Arizona Senators, could likely win over other Republicans.

10. She doesn't have the baggage of Kagan or Wood. In the case of Wood, a long judicial record creates lots of fodder for the right-wing kooks. In the case of Kagan, she has limited experience (she is no John Roberts), a somewhat odd academic career (tenured at Chicago, but then unable to get hired back to the faculty after leaving the Clinton Administration; a visiting stint at Harvard led to an appointment, which was then followed by a successful Deanship, but she's had a relatively limited scholarly output); and even her nomination as Solicitor General produced more than 30 'no' votes in the Senate.

Like Dr. Leiter, I cannot imagine that President Obama would waste a substantial amount of political capital on a nominee whom Republicans will simply not accept. Secretary Napolitano seems to be a safe pick.

Linda Greenhouse on Justice Stevens

Can justices still learn on the job, or are they confined to strict party lines? Linda Greenhouse examines how Justice Stevens began his career with a somewhat conservative lean, even voting against government funding for abortions. Now, as liberals lament his retirement, his initial views on affirmative action and the death penalty seem to be disregarded.

Greenhouse ends her op-ed implying that we've exited the era in which a Supreme Court Justice can afford to change his mind. People want to know exactly how a potential justice will decide major issues, and I can't say I'm an exception. Maybe it's because the role of the Supreme Court is far too powerful to leave up to chance or indecision. Then again, maybe it's just a further reflection of our exceedingly binary political system.

The End of an Era: Justice Stevens Retires

As many had predicted, this term will be Justice Stevens's last on the Court.  The New York Times reports:

In a brief letter to President Obama, whom he addressed as “my dear Mr. President,” Justice Stevens said he was announcing his retirement now because he had “concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court’s next term” in October.

Justice Stevens's early announcement will hopefully quell expressed concerns that the Senate would not be able to confirm a replacement Justice in time. But who will that Justice be? We leave that question to the comments...

Stay on the Court, Justice Stevens

Senator Specter urges Justice Stevens to stay on the Court for the remainder of this term because he feels that the Senate will not be able to confirm a replacement this year. Washington Post

Blogging from the Supreme Court: Oral Argument Comedy

I was able to attend oral arguments in Barber v. Thomas, 09-5201 (2010) yesterday. The question presented in that case was whether the "'term of imprisonment' in Section 212(a)(2) of the Sentencing Reform Act, enacting 18 U.S.C. 3624(b), unambiguously require[s] the computation of good time credits on the basis of the sentence imposed?"

But an exchange between a few of the Justices and the Solicitor General's counsel during oral arguments provided more entertainment than the Court's endeavors to solve the mathematical puzzles in the case. Law.com provided a detailed account of the incident:

The issue before the Court in Barber v. Thomas is the interpretation of a "term of imprisonment" under the federal good-time credit statute. The petitioning federal inmates argue that they should be eligible for the statutory 54 days of good-time credit for each year of their entire sentence as originally imposed. The position of the Bureau of Prisons is that the calculation of good-time credit is based only on time actually served by the prisoner. . . .

Assistant to the Solicitor General Jeffrey B. Wall, arguing on behalf of the government, told the justices that the petitioners' method of calculating a year of imprisonment, subtracting the 54 days of credit, wrongly creates a 311-day cycle for good-time credit eligibility. "But what the statute says is you make the determination at the end of the year. And we don't read "year" to be a 311-day period. We read it to be a 365-day period," Wall said.

Ok, got that? Enter Justices Breyer and Stevens to comb through the arguments and the math:

Justice Stephen Breyer expressed concern about awarding good-time credit for what he at one point in the argument termed "phantom time" -- time sentenced but not actually served. A prisoner sentenced to 10 years, Breyer said, "is not actually in prison for 10 years. He is going to be released sometime late in year 8. And so why should we add 54 days? I mean maybe it would be a nice thing because sentences are awfully long, but -- but why would anybody want to add 54 days in respect to a year that's never going to be served?"

Breyer offered a somewhat lengthy and arithmetic-heavy reading of how the statute might apply to a prison term of 10 years: "At the end of the first year you write the number 54 on a piece of paper if [the prisoner] has done well. Suppose he comes in on Jan. 1, OK? So Jan. 2, after the first year, you write ... the number 54. And you do that each year. And by the time you get to the year eight, what you have done is you have got 432 days." . . . Breyer continued: "So then you subtract the 430 days from 10 years, and what you get is you are 67 days short of nine years. So now you look at the last sentence, and what you do is you take 67 days, subtract that from 365, and you've got 298, and you simply prorate for those 298. And you subtract that, too, so he gets another 10 days or so, or 15 days credit, and that's it.

Justice John Paul Stevens seemed concerned about the policy implications of the government's position, telling Wall: "You say there are 195,000 sentences affected by this rule. I don't know which way that cuts. If there are 195,000 people spending ... significantly more time in jail than they should, that's kind of troublesome." . . . "Justice Stevens, I think what I would say is the bureau has been doing it the same way since 1987. Congress has amended this statute five times in the last 20 years. It has never moved to alter the bureau's methods," Wall answered. . . .

"Probably they didn't understand it because it's an awfully hard statute to understand," Stevens offered.

"Justice Stevens, with all respect, Justice Breyer got it in the first five minutes," said Wall, to laughter from the audience in the courtroom.

"Well, he's a lot smarter than I am," Stevens quipped.

Justice Antonin Scalia jumped in with a mock-incredulous tone that ratcheted up the laughter: "Even Justice Breyer has got it! Whoa!"

Yes, even Justice Breyer got it.

---

On a related note, a few of my classmates and I got the opportunity to attend a small Q&A session with Justice Stevens after oral arguments. He talked with us about a few recent cases, his views on cameras in the Supreme Court and baseball. I'll be blogging more about this later.

The Power of Oral Dissents

The New York Times reports that dissenting from the bench is on the rise. With Justice Ginsburg holding the record for most oral dissents, other justices have stepped up to add a little more sarcastic flavor to their written dissents. Is this just a way to stick it to the majority, or is it because justices feel so passionately against the court's holding that they must outwardly express their displeasure?

The article mentions that some of the more prominent oral dissents were in cases such as Ledbetter v. Goodyear Tire and Rubber Co. and Stenberg v. Carhart, which, in Ledbetter's case, led to Congress passing the Lilly Ledbetter Fair Pay Act essentially overturning the original ruling. Maybe these oral dissents are a call to other sources to help overturn majority decisions when the justices themselves cannot get the votes. Then again, maybe it really is the political minority on the bench staking its claim and fighting back as aggressively as it can.

Predicting the Future: Is it a Proper Role for the Supreme Court?

Adam Liptak wrote a fascinating article in today's New York Times regarding the habit of Supreme Court Justices to predict the future based on the resolution of the cases the Court adjudges. Principally, Liptak opines that "The Supreme Court’s main strength lies in adjudicating disputes based on things that have already happened. It is less good at predicting the future." Indeed, prescient--and in many cases, dire--predictions can often be found scattered about important dissents. Liptak illustrates this phenomenon:

When the court first ruled in June that prosecutors may not submit reports from such labs without accompanying testimony, the four dissenting justices warned that the decision would impose a “crushing burden” on prosecutors. Several of them repeated that point Monday.

“I don’t know except anecdotally,” Justice Stephen G. Breyer said, “but Massachusetts seems to be having huge problems.” That depends on whom you talk to. The chief trial counsel of the district attorney’s office in Boston, which handles about half of the state’s drug cases, told a symposium at the New England School of Law in November that “the sky is not falling.”

“Despite the dire predictions,” the prosecutor, Patrick M. Haggan, said, “defendants have not walked free. In the vast majority of cases where we have been required to produce the analyst’s live testimony, we’ve had that analyst there.”

These predictions are often more than mere rhetorical jabs waged by a disgruntled dissenter; they are sometimes found in majority opinions. As Liptak notes:

Poor predictions are not confined to dissents. Writing for eight justices in Clinton v. Jones, the 1997 decision allowing a sexual harassment case against President Bill Clinton to move forward, Justice John Paul Stevens confidently asserted that “it appears to us highly unlikely to occupy any substantial amount” of Mr. Clinton’s time. The aftermath of the decision dominated much of Mr. Clinton’s second term.

Given this, one wonders why the Justices even bother--particularly given the justiciability concerns such predictions evoke (to the extent the predictions relate to future legal issues that are not before the Court).

Is Law School Non Partisan?: A follow-up

As I discussed in a previous post, I find the role of partisanship and its potential to hinder insightful debate within a law school atmosphere rather intriguing. Therefore, when I read this New York Times article about how ideology is beginning to play a primary role in the life of former Supreme Court clerks, I expected to be similarly amazed. But I wasn't.

The article discusses how Justices are likely to hire clerks who agree with their political platform, and in turn, the presidential administration is more likely to hire former clerks of Justices that support the administration's political platform. I really want to be shocked that political figures are not actively seeking diverse partisan interests to avoid problems of groupthink, but it seems like that is simply the way the political world functions. While the same may not be true in finance or medicine, in politics, you want people on your side who at least agree with your overall approach to issues, and then they can debate you on more nuanced topics of how to tackle a specific problem. I am trying to follow through with my own thought process and think about what would happen if Obama began hiring all of Scalia's former clerks, but I cannot quite grasp how significant the effect would be.

The most interesting aspect of the article, in my opinion, was the idea that some firms have a tendency to hire more former clerks of either conservative or liberal justices, suggesting that law firms have political leanings as well. The article does not imply that firms are specifically turning candidates away for their political views, but simply notes a general correlation. At the end, the author claims that while these trends may be predictable, they effectively blur the line between law and politics. I guess the real question is whether that line exists, where it falls, and how much it matters in the real world.

Notes on Justice Sotomayor's Bench Presence During Oral Arguments

From the National Law Journal:

As Sotomayor wraps up her second full argument cycle as a Supreme Court justice, it has become clear that she is a prolific and fearless questioner. She can be tenacious and direct, bordering on harsh. She can be impatient when the lawyer does not answer her question precisely. She knows her stuff and clearly loves the give and take. All of which is to say, Sotomayor fits right in with her new colleagues, many of whom do exactly the same thing. Chief Justice John Roberts Jr. and Samuel Alito Jr. can be every bit as dismissive, Stephen Breyer can be just as persistent and wordy, and Antonin Scalia can be just as critical. No, Scalia is more critical: During one argument last week, Scalia told an advocate, "The big obstacle I find with your position is that it doesn't make any sense."

The Journal provided a tally of the number of questions Justice Sotomayor "asked in the second two-week cycle of arguments this term and compared it to the number asked by Roberts and Alito, the other recent newcomers to the Court, during the comparable period early in their tenures":

As expected, Sotomayor came out on top. She asked 146 questions during the 13 November arguments this term, by NLJ's count, for an average of 11.2 questions per argument. Roberts came next, asking 110 questions during 11 arguments in the November cycle of 2005, for an average of 10 questions per argument. As for Alito, he asked only 45 questions in the 13 March 2006 arguments, for an average of 3.5 per argument.

I suppose Justice Sotomayor is taking a more hands-on approach than Justice Thomas, who thinks his colleagues talk too much. Check out the article.

Justice Scalia on Vocabulary

The Business Insider reports that Justice Scalia gave an attorney arguing before the Court a quick lesson on word usage:

Randolph "Dolph" Barnhouse was arguing that a city government may not bring a RICO suit to recover uncollected taxes on cigarettes shipped from low-tax jurisdictions to higher tax jurisdictions. He was in the first few minutes of his argument when he made a small slip-up.

He "slipped up" when he used the word "choate." Justice Scalia promptly corrected him:

"There is no such adjective -- I know we have used it, but there is no such adjective as 'choate.' There is 'inchoate,' but the opposite of 'inchoate' is not 'choate.'"

A3 Unleashed: C.J.R. Shares Wine With Neighbors

When Justices Go Wild! This story pairs nicely with the ATL piece on Scalia's cameo.

C.J.R. went to dinner with his wife at some swanky Manhattan eatery. Not wanting to let good wine go to waste (or, decent wine...), C.J.R. did what any good Conservative would do (with his wife, Jane, concurring)--he offered to share it with his neighbor. Who says Conservatives aren't community organizers? Not only that, but he signed the bottle, too!

C.J.R.--In Vino Veritas, indeed!

Clerkship Series: Day 3 -- Ranking the T14 by all-time Supreme Court Clerk Placement

For this edition of the Clerkship Series, I decided to rank the Top 14 law schools (the so-called "T14") by all-time Supreme Court clerk placement. I attempted to search the internet for information on the total number of clerks each law school in the T14 has ever placed on the Supreme Court, but was unable to find the precise statistics. It is true that Artemus Ward and David Weiden wrote Sorcerers' Apprentices, a resource that provides an extensive, detailed account of key issues relating to Supreme Court clerks, their duties, and the Court viewed from their perspectives. And of course, Wikipedia provides a fairly solid reference point (here) which lists the Supreme Court clerks of each Justice by law school dating as far back as 100 years. But I could not find an actual tally online.

While it is conceivable that such an online tally exists, I instead decided to draw on the Wikipedia list, and to do some independent research of my own to compile an unscientific ranking. As a preliminary matter, Wikipedia's numeric data differed slightly from the information I obtained from the administrative offices of various T14 law schools. Instead of precisely accounting for these minor differences, I decided to simply group each school within a defined range (i.e., 100-200 clerks total). The schools within the top four ranges are ranked according to their quantitative totals. Because of the numerical deficiencies in the data (the variance in information I obtained from the schools and Wikipedia), I could not rank schools within the last two ranges. In the fourth range at least, each school had very similar placement numbers (i.e., Wikipedia says Penn, NYU, and Northwestern have placed nearly the same amount of total clerks).

It is essential to emphasize that this ranking is not meant to be scientific, though it does shed some light into which schools do the best job of landing their students the most prestigious clerkship out there. Now on to the stats. . . .

-------------

The Defined Ranges:

400+

200-300

100-200

50-100

30-50

1-30

(by total clerk placement)

-------------

The Rankings:

400+ (Harvard)

200-300 (Yale)

100-200 (1. Chicago, 2. Stanford, 3. Columbia)

50-100 (1. Virginia, 2. Michigan)

30-50 (Berkeley, Northwestern, NYU, Penn)

1-30 (Georgetown, Duke, Cornell)

--------------

I know this list may draw some criticism because of my decision to limit the sample to T14 schools. Indeed, it is absolutely true that a few schools outside of the T14 have placed more clerks than some on this list. For example, the University of Texas has placed 30 clerks--substantially more than Cornell, which has only placed 7. My decision to exclude these schools was solely based on my desire to draw the line somewhere. After all, the Justices have employed hundreds of clerks since the early 20th Century, and many schools have at least one clerk represented in that number. Finally, it must again be emphasized that I was only able to conclusively gather the information from the schools themselves and from Wikipedia, so to the extent that there are any unlisted clerks or other problems, I apologize. I'll be pleased to make updates to this list as information trickles into our inbox.

Incorporate This?

Breaking news: The Supremes have granted cert. on the Chicago gun case. The issue is whether or not the rule from Heller (i.e. the right to own guns in one's home is a 'fundamental right') should be incorporated against the states.

I wonder what impact (if any) this will have on the N.J. Blogger case. Remember him? The guy who wanted to kill Posner, Easterbrook, and Bauer because they refused to overturn the Cruikshank case? (For more insight into the pertinent legal issues, see Volokh).

More importantly, how crazy will this lunatic get if the Supremes disagree with him?

Personally, I think the Supremes will incorporate the Heller rule against the states. There really isn't much of a reason why it shouldn't be incorporated. Additionally, (and strictly as a matter of policy) Chicago is one of the most dangerous cities in the nation and it also has some of the most restrictive regulations on handgun possession and licensure. Steve Chapman agrees.

UPDATE (6:21 ET) For our more ambitious/eager readers, here's the link for the petition for cert.