You can see the whole report here.

Related posts

• The Johnson and Johnson Junior Associate Justice (April 12, 2007)
• Judges Have Lives Too (September 22, 2007)
• Federal Judiciary Doesn’t get COLA for 2009 (December 12, 2008)

Related posts

• Welcome Back, Old Friend (October 4, 2008)
• Upcoming Weeks (June 9, 2008)
• Upcoming Week (June 23, 2008)

I defined a ‘Subject Matter’ introduction as one in which the author wrote only about the facts of the case and did not mention the court below. See Justice Alito’s introduction in Gomez-Perez v. Potter:

The question before us is whether a federal employee who is a victim of retaliation due to the filing of a complaint of age discrimination may assert a claim under the federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA), as added, 88 Stat. 74, and amended, 29 U. S. C. §633a(a) (2000 ed., Supp. V). We hold that such a claim is authorized.

I defined a ‘Procedural’ introduction as one that included even a brief mention of the ruling below. The main distinction between ‘Subject Matter’ and ‘Procedural’ introductions is that in the latter, the author had to phrase the decision of the Court as a play off of the Court below. For example, in Richlin v. Chertoff, Justice Alito wrote this ‘Procedural Decision’ as the introduction:

The question presented in this case is whether the Equal Access to Justice Act (EAJA), 5 U. S. C. §504(a)(l) (2006 ed.) and 28 U. S. C. §2412(d)(1)(A) (2000 ed.), allows a prevailing party in a case brought by or against the Government to recover fees for paralegal services at the market rate for such services or only at their cost to the party’s attorney. The United States Court of Appeals for the Federal Circuit limited recovery to the attorney’s cost. 472 F. 3d 1370 (2006). We reverse.

Finally, I defined a ‘Tease Facts’ introduction as one in which the author only mentioned (usually very briefly) the facts of the case and omitted any mention of the Court’s ultimate conclusion. Here is Justice Alito’s introduction in Davis v. Federal Election Committee which I categorized as a ‘Tease Facts’ decision:

In this appeal, we consider the constitutionality of federal election law provisions that, under certain circumstances, impose different campaign contribution limits on candidates competing for the same congressional seat.

As for length, I defined a ‘Short’ introduction simply as one limited to one paragraph. A ‘Long’ introduction was two paragraphs or longer in length.

An interesting argument could be made for each style. The data suggests that some Justices have a opinion on the matter and that their introductions isn’t simply a function of upon which clerk writes the opinion or the idiosyncrasies of the case in question. Four Justices (Breyer, Stevens, Souter, Thomas) used the same style in each of their opinions and two others (Ginsburg, Alito) made only one exception to their own self-imposed rule.

The ‘Subject Matter’ approach is the most straightforward and easily understood by lay-people reading opinions. A Justice that uses this approach with only a short introduction might be more inclined to decide a case on the fundamental issues at hand. A Justice who uses the ‘Procedural’ approach with a long introduction might be setting up his arguments aimed at technical issues separated from the politically divisive roots of a case. In the end though, there isn’t enough data here to reach any conclusions about why certain Justices prefer certain methods.

Justice Kennedy issued two opinions that defied the criteria I had set up for the three types of introductions that his peers used. In Federal Express v. Holowecki, Justice Kennedy presented some of the facts leading up the case then offered advice to any practitioners or judges who might use this opinion in the future, “[w]hile there may be areas of common definition, employees and their counsel must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.” The phrase itself is not uncommon, but the fact that it was placed in the introduction is unorthodox.

The other curveball thrown by Justice Kennedy was in Gonzalez v. US, where Justice Kennedy did not structure his opinion with an introduction and subsequent sections, and, without sections, I had to use my judgement to decide how far the introductory part of the opinion extends. Luckily for me, the opinion features a decidedly introduction-like presentation of the question at hand before it jumps into what is normally a Section I discussion of the complete history. I’m not sure why Justice Kennedy (or one of his clerks) decided not to use the normal structure. The 8-1 decision (Thomas dissenting) weighed in slightly-underweight at 12-pages and otherwise features the standard components of a majority decision. The average majority opinion from OT 2007 was 19.16 slip pages but an opinion of only 12-pages doesn’t stand out as an aberration. 14 cases from the last term were 12-pages or shorter and all of them except Gonzalez were broken up into sections.

Justices Breyer and Souter both used only ‘Subject Matter’ introductions in their opinions. Even though the cases were written by different clerks, his preference shown through either from their research into his past opinions or from his corrections of the ones they gave him. Justice Stevens, who writes his own opinions, used all three types of opinions in both long and short form.

Justice Scalia’s introductions were always instantly identifiable. In each case, he used the ‘Tease Facts’ approach and his introduction was only a sentences or two long. Take a look at his introduction to DC v. Heller, shown in its entirety:

We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution.

All of the Justices except Chief Justice Roberts and Justice Ginsburg preferred to use short introductions (those limited to one paragraph). The Chief Justice was split evenly 4-4 and Justice Ginsburg preferred lengthy introductions in six of her eight opinions. Four Justices refused to use long introductions at all (Breyer, Scalia, Souter, Thomas) and Justice Alito used them only once (Allison Engine Co. v. US.)

In a sign of things to come, Justice Roberts has already employed the ‘Procedural’ route this term in Winter v. NRDC when he declared “[t]he Court of Appeals was wrong, and its decision is reversed. ” In Altria Group v. Good, Justice Stevens used a ‘Procedural’ introduction as well. Hedgpeth v. Pulido, a case decided in a Per curiam decision, was written using the ‘Procedural’ style and was authored by the Chief Justice, Justice Scalia, Justice Thomas, Justice Kennedy, Justice Breyer or Justice Alito. Justices Stevens, Souter, and Ginsburg dissented from that opinion.

Related posts

• Footnotes in Supreme Court Opinions (December 19, 2008)
• Oral Argument Stats Posted (December 12, 2008)
• Methodology 101 (July 1, 2007)

Footnotes have, occasionally, caused quite a bit of controversy. In Microsoft v. AT&T (2007), Justice Ginsburg wrote a majority opinion for the court except for one footnote. The judgement line read as such:

Ginsburg, J., delivered the opinion of the Court, except as to footnote 14. Scalia, Kennedy, and Souter, JJ., joined that opinion in full. Alito, J., filed an opinion concurring as to all but footnote 14, in which Thomas and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion. Roberts, C. J., took no part in the consideration or decision of the case.

The footnote in question:

¹⁴In a footnote, Microsoft suggests that even a disk shipped from the United States, and used to install Windows directly on a foreign computer, would not give rise to liability under §271(f) if the disk were removed after installation. See Brief for Petitioner 37, n. 11; cf. post, at 2–4 (ALITO, J., concurring). We need not and do not reach that issue here.

It seems odd that Justice Ginsburg would only discuss the topic in a footnote if it was divisive enough to cause Justices to change their vote. The most famous footnote from a Supreme Court opinion is ‘Footnote 4′ from the majority opinion in US v. Carolene Products (1938). In it, Justice Stone famously hinted towards the possibility of heightened levels of scrutiny “when legislation appears on its face to be within a specific prohibition of the Constitution.”

Analysis of the modern court’s use of footnotes is difficult because most Justices do not write their own opinions. Justice Stevens is the only Justice known to write his first drafts with any frequency and he has long stated that footnotes are useful because they provide the user with ‘optional reading.’ In his majority opinion in Altria, Justice Stevens employed 14 footnotes.

I took a look at the majority and plurality opinions from OT 07 to see how frequently each Justices uses footnotes. I looked only at majority and plurality opinions because they follow the most consistent structure and length. Concurring and dissenting opinions serve different purposes and are more difficult to compare amongst one another and with other types of opinions. I also calculated the number of footnotes per page and the page count refers to Slip Pages.

Case	Vote	Author	Footnotes	Pages	F/P
CSX	9-0	Roberts	4	12	0.33
Knight	9-0	Roberts	4	13	0.31
Medellin	6-3	Roberts	14	37	0.38
Clintwood	9-0	Roberts	0	12	0.00
Baze	7-2	Roberts	7	24	0.29
Engquist	6-3	Roberts	0	17	0.00
Munaf	9-0	Roberts	6	28	0.21
Plains	9-0	Roberts	3	24	0.13

Case	Vote	Author	Footnotes	Pages	F/P
Gall	7-2	Stevens	11	21	0.52
LaRue	9-0	Stevens	6	8	0.75
Danforth	7-2	Stevens	24	27	0.89
Crawford	6-3	Stevens	21	21	1.00
Ressam	8-1	Stevens	2	6	0.33
Irizarry	5-4	Stevens	2	8	0.25
Brown	7-2	Stevens	2	16	0.13

Case	Vote	Author	Footnotes	Pages	F/P
Torres	9-0	Scalia	0	12	0.00
Riegel	8-1	Scalia	6	17	0.35
Virginia	9-0	Scalia	4	13	0.31
Williams	7-2	Scalia	3	21	0.14
Santos	5-4	Scalia	8	17	0.47
Giles	6-3	Scalia	7	24	0.29
Mogan Stanley	5-2	Scalia	6	26	0.23
Heller	5-4	Scalia	29	64	0.45

Case	Vote	Author	Footnotes	Pages	F/P
Stoneridge	5-3	Kennedy	0	16	0.00
Federal Exp.	7-2	Kennedy	0	17	0.00
Gonzalez	8-1	Kennedy	0	12	0.00
Boumediene	5-4	Kennedy	0	70	0.00
Philippines	9-0	Kennedy	0	20	0.00
Dada	5-4	Kennedy	0	20	0.00
Kennedy	5-4	Kennedy	0	37	0.00

Case	Vote	Author	Footnotes	Pages	F/P
Watson	8-1	Souter	9	9	1.00
Boulware	9-0	Souter	14	17	0.82
Hall Street	6-3	Souter	7	15	0.47
Dept. of Rev.	7-2	Souter	21	28	0.75
Meacham	8-0	Souter	14	17	0.82
Rothgery	8-1	Souter	17	20	0.85
Exxon	8-0	Souter	28	42	0.67

Case	Vote	Author	Footnotes	Pages	F/P
Ali	5-4	Thomas	7	14	0.50
Sprint	9-0	Thomas	3	9	0.33
Wash. St. Gr.	7-2	Thomas	11	16	0.69
Cuellar	9-0	Thomas	8	17	0.47
Quanta	9-0	Thomas	7	19	0.37
Bridge	9-0	Thomas	7	21	0.33
Picca-Dilly	7-2	Thomas	3	19	0.16

Case	Vote	Author	Footnotes	Pages	F/P
Logan	9-0	Ginsburg	6	13	0.46
Kimbrough	7-2	Ginsburg	15	23	0.65
Preston	8-1	Ginsburg	8	16	0.50
New Jersey	6-2	Ginsburg	22	23	0.96
Burgess	9-0	Ginsburg	5	11	0.45
Riley	7-2	Ginsburg	13	20	0.65
Taylor	9-0	Ginsburg	13	25	0.52
Greenlaw	7-2	Ginsburg	9	17	0.53

Case	Vote	Author	Footnotes	Pages	F/P
John R.	7-2	Breyer	0	9	0.00
Rowe	9-0	Breyer	0	11	0.00
Begay	6-3	Breyer	0	11	0.00
CBOCS	7-2	Breyer	0	14	0.00
Met. Life	7-2	Breyer	0	13	0.00
Kent. Ret.	5-4	Breyer	0	14	0.00
Indiana	7-2	Breyer	0	13	0.00
Sprint	5-4	Breyer	0	23	0.00

Case	Vote	Author	Footnotes	Pages	F/P
Snyder	7-2	Alito	2	13	0.15
MeadWestvaco	9-0	Alito	4	15	0.27
Rodriquez	6-3	Alito	5	14	0.36
Gomez-Perez	6-3	Alito	6	16	0.38
Richlin	9-0	Alito	10	18	0.56
Allison	9-0	Alito	2	10	0.20
Davis	9-0	Alito	9	19	0.47

I’ve summarized all of that into a more succinct table:

Remember that all of the Justices, except for Stevens, have their law clerks write the first draft of each opinion. With that in mind, however, I was surprised to see that Justices Kennedy and Breyer didn’t use any footnotes at all. Overall though, it seems like footnotes are a stylistic thing more than a substantive disagreement. Justices who use them tend to use them frequently and Justices who aren’t fond of them don’t use them much at all. It also doesn’t really matter which clerk writes the opinion because nearly Every Justice who uses footnotes uses them in almost ever case.

I also crunched the numbers on the average number of footnotes in opinions based on the votes in the majority. I excluded opinions written by Justices Kennedy and Breyer. Note: These numbers do not represent opinions with irregular voting blocs (ie. 5-3, 5-2, 7-1, etc)

Odd. Statistically speaking, 8-1 opinions featured the highest number of footnotes. That is likely just a result of Justice Souter writing with disproportionate frequency in 8-1 opinions this year (2 out of 5.)

Cases with the most footnotes:

Heller 5-4 Scalia 29 64 0.45
Exxon 8-0 Souter 28 42 0.67
Danforth 7-2 Stevens 24 27 0.89
New Jersey 6-2 Ginsburg 22 23 0.96
Crawford 6-3 Stevens 21 21 1.00
Dept. of Rev. 7-2 Souter 21 28 0.75
Rothgery 8-1 Souter 17 20 0.85
Kimbrough 7-2 Ginsburg 15 23 0.65
Medellin 6-3 Roberts 14 37 0.38
Meacham 8-0 Souter 14 17 0.82

These represent an interesting cross section of the Court’s cases. Of course, none of the tight 5-4 decisions issued by Justice Kennedy are featured here, but Justice Scalia’s landmark opinion in Heller leads the list. Oral arguments in Danforth lead to an unusually heated debate between the justices, literally. Medellin produced an unusual decision from the Court in which the conservative majority struck against the President and ruled that ICC judgements were not binding on state courts. Two of the other major cases decided by the Court, Kennedy (Juvenille Death Penalty) and Boumediene (Detainee habeus claims), were written by Justice Kennedy and therefore had no footnotes.

Related posts

• Supreme Introductions (December 20, 2008)
• Court Hands Down First Opinion of the New Term (November 14, 2008)
• Unity Defined (June 11, 2007)

On December 10th, Senate Majority Leader Harry Reid decided to celebrate Blagojevich’s 52nd birthday by drafting a letter soliciting his resignation. The letter, which was subsequently co-signed by the entire Democratic caucus, includes this warning:

Please understand that should you decide to ignore the request of the Senate Democratic Caucus [to resign as Governor] and make an appointment we would be forced to exercise our Constitutional authority under Article I, Section 5, to determine whether such a person should be seated.

The Majority Leader is referring to Article 1, § 5, Clauses 1-2 of the Constitution of the United States, which read:

Section 5. [Clause 1] Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide.

[Clause 2] Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.

Due to the impeachment proceedings and Blagojevich’s newfound support for a special election, the chances are very good that no one will ever have to answer the question of whether or not Reid actually has the authority not to seat an appointed Senator. On face, this question would appear to be judicial taboo, plainly fitting the parameters for what Federal Judges often call “non-justicable political questions.” But seeing as how it is isn’t very polite to threaten someone with a constitutional power that you don’t have, some people are starting to ask some questions.

In Powell v. McCormack 395 U.S. 486 (1969), the Supreme Court held 8-0 (with Justice Fortas ironically not voting due to his own political scandal) that the House of Representatives did not have the authority to “exclude” a constitutionally-eligible person from serving in Congress. Representative Adam Clayton Powell (D-NY) – who brought the case against the Speaker, the House Clerk, the Sergeant at Arms, and even the Doorkeeper of the House – alleged that the House’s decision to exclude him (as made in House Resolutions 1 and 278, both in 1967) was unconstitutional. Powell, who was accused of misusing travel funds and paying his wife an unearned Congressional salary, fit the constitutional requirements for office as stated in Article 1, § 2, Clause 2. The United States District Court for the District of Columbia dismissed the case for lack of jurisdiction; the Appeals Court ruled that it did have jurisdiction, but that the matter was, in fact, a non-justicable political question. The Supreme Court accepted review, and heard arguments on April 21, 1969.

In the majority opinion, Chief Justice Warren wrote that the Court’s analysis of Article I § 5

demonstrated that in judging the qualifications of its members Congress is limited to the standing qualifications prescribed in the Constitution. Respondents concede that Powell met these. Thus, there is no need to remand this case to determine whether he was entitled to be seated in the 90th Congress. Therefore, we hold that, since Adam Clayton Powell, Jr., was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership.

Thus, it would seem that Harry Reid lacks the authority to refuse to seat a duly-appointed Senator assuming he or she meets the constitutional requirements. The Senate could, of course, vote to expel the member with a 2/3 majority. And it would also be prudent to note that no self-respecting politician would accept a Blagojevich appointment at this point anyway.

In the end, it appears that this a pretty cut-and-dry sort of thing. Harry Reid either misspoke, intending to threaten an expulsion, or else someone needs the Majority Leader of the United States Senate a copy of the Constitution.

Related posts

• Justice Stevens and Roe v. Wade’s Initial Reception (July 30, 2007)
• Today Is “Safe Harbor” Day 2008 (December 9, 2008)
• Supreme Court Rejects Question of Obama’s Citizenship (December 8, 2008)

Bartlett v. Strickland - Argued on October 14, 2008 (transcript here)- 62 days ago - Bartlett revolves around whether or not a minority group can file suit for vote dilution under certain circumstances.

FCC v. Fox Television Stations Argued on December 4, 2008 (transcript here)- 42 days ago - Fox asks whether or not the use of ‘fleeting expletives’ violates federal regulations against obscene and vulgar language.

Pleasant Grove v. Summum - Argued on December 12, 2008 (transcript here)- 34 days ago -Summum followers asked to place a monument to the ‘Seven Aphorisms‘ be placed near a monument to the Ten Commandments in Pleasant Grove, Utah. See more analysis on the case here.

Ashcroft v. Iqbal - Argued on December 10, 2008 (transcript here)- 5 days ago - Ashcroft asks whether or not a high-level government official can be held liable for supposed mismanagement in crisis.

Related posts

• WSJ Op-ed on Judicial Elections (March 22, 2008)
• Wisdom (May 23, 2007)
• Which Justice Is The Most Talkative? (November 8, 2007)

In Rasul v. Myers, a group of individuals who had been held in Gutantanamo filed suit claiming inappropriate use of torture and “religious abuse and humiliation.” The DC Circuit handed down an opinion before the Supreme Court handed down Boumediene and today the Court vacated and remanded Rasule in light of its decision in Boumediene. You can see the filings in the case here thanks to SCOTUSblog.

The Court also, as expected, denied application for stay and/or injunction in Wrotnowski v. Bysiewicz, a case questioning whether or not Barack Obama can correctly be defined as a “natural born citizen” as mentioned in Article II. This marks the third case out of the three filed in which the Court has struck down similar claims.

Related posts

• Today Is “Safe Harbor” Day 2008 (December 9, 2008)
• Supreme Court to Consider Another Obama Citizenship Claim in Wrotnowski v. Bysiewicz (December 8, 2008)
• Supreme Court Rejects Question of Obama’s Citizenship (December 8, 2008)

Justice Stevens penned the majority opinion and was joined by Justices Kennedy, Souter, Ginsburg, and Breyer. Justice Thomas filed a dissenting opinion that was joined by the Chief Justice and Justices Scalia and Alito.

In a 5-4 decision, the Supreme Court struck down the cigarette-makers’ claim that federal labeling laws preempted state-level action against the content of those labels. See more of our analysis on the cases here and here.

Related posts

• Footnotes in Supreme Court Opinions (December 19, 2008)
• Court Hands Down First Opinion of the New Term (November 14, 2008)
• Unity Defined (June 11, 2007)

OT 07 - 3 cases
OT 06 - 2 cases
OT 05 - 2 cases
OT 04 - 4 cases
OT 03 - 2 cases
OT 02 - 1 cases
OT 01 - 2 cases
OT 00 - 1 case
(Greentree v. Randolph was handed down on 12/11/2000, the same day Bush v. Gore was heard. Bush was handed down the next day, 12/12/2000)

As such, expect 2-4 opinions tomorrow around 10pm EST. The four oldest cases on the docket are Altria Group v. Good (cigarette advertising), Locke v. Karass (government employee unions), Vanden v. Discover Bank (Federal Arbitration Act), and Herring v. US (exclusionary rule.) With that in mind, however, the Court almost never releases cases linearly over time.

Update: I forgot to mention that the Court will also almost certainly deny application for stay in Wrotnowski v. Bysiewicz.

Related posts

• Court Vacates and Remands Detainee Case; Rejects Another Case Questioning Obama’s Citizenship (December 15, 2008)
• Welcome Back, Old Friend (October 4, 2008)
• Upcoming Weeks (June 9, 2008)

Some of the tenets of the “liberal” point of view which commanded the sympathy of a majority of the clerks I knew were: extreme solicitude for the claims of Communists and other criminal defendants, expansion of federal power at the expense of State power, and great sympathy toward any government regulation of business—in short, the political philosophy now espoused by the Court under Chief Justice Earl Warren.

There is the possibility of the bias of the clerks affecting the Court’s certiorari work because of the volume factor described above. I cannot speak for any clerk other than myself in stating as a fact that unconscious bias did creep into his work. Looking back, I must admit that I was not guiltless on this score, and I greatly doubt if many of my fellow clerks were much less guiltless than I. And where such bias did have any effect, because of the political outlook of the group of clerks that I knew, its direction would be to the political “left.”

Rehnquist’s article doesn’t seem particularly provacative today, but at the time it was a heavily political question. The Court had decided Brown a few years earlier (while Rehnquist was a clerk) and the Warren Court was shifting into high gear. If fact, Rehnquist’s 1952 memo to Justice Jackson advocating a vote against Brown was the hot topic of both of his confirmation battles. He always attributed the views in the memo to the Justice himself, but I think a lot of people find that difficult to believe.

When I think of Supreme Court exposés my first thought is always Bob Woodward and Scott Armstrong’s The Brethren (1980). At the time, Justices were enraged by the apparent betrayal of hundreds of their former law clerks, but in 1985, following his death, Woodward revealed that Justice Potter Stewart had been his primary source.

(Hat tip to Emperical Legal Studies Blog)

(Update 12/14, 6:36p: I mistakenly mentioned that Adam Liptak is formerly of SCOTUSblog- Adam isn’t associated with SCOTUSblog. I was thinking about Adam Chandler, who wrote for SCOTUSblog some time ago and published an interesting article with Sloan recently.)

Related posts

• The Cert. Pool in Action (October 14, 2008)
• Justice Alito Bows Out of Cert. Pool (October 8, 2008)
• Tag-Team Cage Deathmatch: Roberts/Alito v. Scalia/Thomas (July 16, 2007)

With that in mind, its even more surprising that his work at Harvard will have very little to do with IP rights. He has signed up to head their program on ethics and public policy. If Dean Elena Kagan ends up leaving for a post in the Obama administration, as some expect, she’s certainly left HLS a nice going-away present!

Related posts

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Now here’s where you all come in. In the top-right corner of the blog you’ll notice a famous quote from a Supreme Court opinion. So far I have about 13 rotating randomly but I’m looking to expand.

Leave your favorite quote from a Supreme Court opinion below and I’ll set it into the rotation. Funny, profound, confusing, or otherwise- if it’s from an opinion handed down by the Supreme Court I’d love to have it.

Related posts

• Updates (December 4, 2007)
• Oral Argument Stats Posted (December 12, 2008)
• Looking Ahead to OT 2007 (July 30, 2007)

“Wrong time. Wrong place,” Sen. Claire McCaskill, (D-Mo.) exclaimed on the Senate floor Dec. 11. “We have families all over this nation that are scared today, that aren’t buying Christmas presents. Federal judges get lifetime appointments and they never take a dime’s cut in pay. They die with the same salary they have today.” After that, it was little surprise that senators supporting the auto bailout began the process of pulling the judicial provision out of the bill. They did not want to jeopardize any much-needed votes. But then the whole thing collapsed anyway.

So, federal judges will now have another distinction besides life tenure: They are the only federal employees who will begin 2009 without a COLA.

Oh dear. I can see why it would be easy for Congress to ignore federal judges. A lifetime-appointment gives them incentive to stay on the bench but for most of them, going into private practice would be incredibly lucrative. We’ve had examples in the last few years where judges have left the bench and listed pay as a major reason. Judges of the caliber that make the federal judiciary socialize in circles what include lawyer-friends who are almost certainly making several times what they make. While positions on the Supreme Court or high-level seats on the Court of Appeals have a certain altruistic appeal, its hard to blame district judges and court of appeals judges for heading back to private practice.

Related posts

• The Johnson and Johnson Junior Associate Justice (April 12, 2007)
• Judges Have Lives Too (September 22, 2007)
• Chief Justice Asks Congress for Judicial Pay Increases (January 1, 2009)

Once again, Justice Scalia comes in as the most talkative and averages 21 comments per hour of arguments. That shouldn’t surprise many people as he has always been known to be a particularly vocal member of the court. Justice Thomas still hasn’t spoken since February 22, 2006. Chief Justice Roberts and Justice Breyer both average about 18 comments per case. On the other side of the spectrum, Justice Alito spoke an average of only 5 times per case. Justices Stevens, Kennedy, and Ginsburg spoke with similar frequency at 12, 11, and 10 times per argument, respectively.

This chart covers the difference between Justices’s overall speaking average and their average per individual court. I’ve highlighted the times when justices had variations of greater than 5 in either direction. I was particularly surprised to see that Ninth Circuit Cases had very little effect on justices, and, if anything, they actually spoke slightly less than usual.

When more cases start coming down, I’ll be interested to see what effect speaking frequency has on voting. Does Justice Kennedy speak more when he votes in favor of a case? Do Justices Stevens or Scalia speak more when they think a case will come down 5-4? With only 2 cases decided on merit thus far, its hard to say at this point but I’ll keep track of the decisions as they come down and post when I’ve collected enough data for some basic analysis.

You can find the data in these formats: xls, numbers, and, of course, pdf. Feel free to play with the data and let me know what conclusions you come up with!

Related posts

• Updated Humor Statistics (March 7, 2008)
• Supreme Introductions (December 20, 2008)
• Methodology 101 (July 1, 2007)

Unsurprisingly, one factor that is very seldom discussed in Election 2008 coverage is how the candidates would treat the DoJ if elected, both ideologically and logistically. Perhaps it’s time for Wolf Blitzer and the cats at CNN to ask a question about human trafficking, mandatory minimums, restricted access to civil courts, wire-tapping, or racial discrimination…

The Bush precedent has hopefully taught all of the candidates two lessons: first, that a multi-dimensional DoJ cannot be taken for granted, and, second, that effective policymaking largely hinges on the competency of the choice for Attorney General.

I think a join a good number of people in arguing that Eric Holder, President-elect Obama’s choice to be the next Attorney General, is just the sort of competent and experienced legal mind needed to restore the Justice Department to its Clintonian roots as a civil rights watchdog. A lot of what I wrote in that post was a reaction to a piece in that morning’s New York Times, which drew attention to the fact that the Bush DoJ seemed to be pushing civil rights litigators out the door in favor of so-called “holy hires” who specialized in religious advocacy. The Times indexed a number of consequences of what it called a “mission change” in the Bush Justice Department:

[Increased intervention] in federal court cases on behalf of religion-based groups like the Salvation Army that assert they have the right to discriminate in hiring in favor of people who share their beliefs even though they are running charitable programs with federal money.

Supporting groups that want to send home religious literature with schoolchildren; in one case, the government helped win the right of a group in Massachusetts to distribute candy canes as part of a religious message that the red stripes represented the blood of Christ.

Vigorously enforcing a law enacted by Congress in 2000 that allows churches and other places of worship to be free of some local zoning restrictions. The division has brought more than two dozen lawsuits on behalf of churches, synagogues and mosques.

Taking on far fewer hate crimes and cases in which local law enforcement officers may have violated someone’s civil rights.

Sharply reducing the complex lawsuits that challenge voting plans that might dilute the strength of black voters. The department initiated only one such case through the early part of this year, compared with eight in a comparable period in the Clinton administration.

Again, Holder seems like just the right choice to reframe civil rights as a departmental priority. As a 1L at Columbia Law School in 1974, Holder worked at the NAACP’s Legal Defense and Educational Fund, a civil rights organization with a reputation for community-based change. A vocal critic of the warrantless wire tap program, Holder is also on the record railing against the USA PATRIOT Act. He told CNN:

When you look at some of the things that have done under the spirit of the [Patriot Act], where you detain citizens without giving them access to a lawyer, where you listen in on attorney-client conversations without involving a judge, these are the kinds of things that have been done in the name of the Patriot Act by this administration that I think are bad ultimately for law enforcement and will cost us the support of the American people…

In short, my argument is that we now have a near-perfect candidate, uniquely equipped to restore the Justice Department’s critical role in protecting civil rights. I think that if you had asked Neil Lewis, who wrote that article for the Times, to give you the name of someone who could lead the DoJ back to its core mission, he might very well have said Eric Holder.

This is especially good news considering that it now appears as though Senate Republicans, after first signaling that Holder’s nomination may be derailed by the Marc Rich pardon, have now acquiesced to the appointment. Expect Holder to be confirmed shortly after the Inauguration, and the DoJ’s policy priorities to begin radically shifting not long after.

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A lot of people have been making a big deal out of this, arguing that referrals of dead-end citizenship cases by conservative Justices could be interpreted as a slight on Obama. Nia-Malika Henderson of Politico even speculated that Thomas’ referral of Donofrio might just be his way of

returning the favor — putting through a case that questions whether Obama should be president, after Obama said [at the Saddeback Forum that] he wouldn’t have picked Thomas for the high court.

We here at the DailyWrit admit that we got caught up in all the drama, even speculating that the conservative bloc might be tacitly participating in a game theory model called “cheap talk signaling” by using these referrals to remind Obama that they still have Judicial Review over the legislation he pushes through a very Democratic Congress. But after reading one too many stories about the referrals, Kedar realized that bloggers might be reading too much into this – mapping partisan politics onto a situation of routine Court procedure. Curious, we sent an e-mail to SCOTUSblogger Lyle Denniston, one of the top SCOTUS authorities in all the land. He graciously responded:

[Donofrio] was a routine referral. The Court formerly allowed repeated applications, even to all nine Justices separately. Because of perceived abuses of that approach, the Court now follows the practice — no matter which Justice gets the second application — to have it go to Conference, to end the Justice-shopping.

The fact of referral in the New Jersey case was totally without significance. The more telling fact, in each of these cases, is that the Court does not even ask for a response. That indicates it believes they are totally frivolous — as anyone who reads the papers will quickly discern.

Sorry, no political intrigue here.

Regards, and thanks for reading the blog,
Lyle D.

This should lay to rest all the rumors that Justice Thomas has an ax to grind with the president-elect. It turns out that the referral was a simple procedural matter of routine. When a petition is denied by a liberal Justice, it is not uncommon for the petitioner to then refile the application with a Justice who is more conservative (and vice-versa); to prevent the petitioner from simply resubmitting again and again, the second petition automatically triggers a referral to conference from the Justice who received that resubmitted application. It just so happens that the Donofrio and Wrotnowski were resubmitted to Justices Thomas and Scalia; thus, it is simply coincidence and nothing more that the cases were referred for Court review by conservative Justices.

But what truly shocked us here at the DailyWrit was how many media outlets – large and small, local and national – dropped the ball on this story. Among those who gravely misinterpreted Court procedure were: Kate Phillips at the Caucus (a blog of The New York Times), Elie Mystal at Above the Law, Earl Hutchinson at The American Chronicle, Les Payne at Newsday, a number of the good folks over at DailyKos, James Wright at New American Media, bloggers at ProgressPolitics, and, as we mentioned, Nia-Malika Henderson at Politico.

Who got it right? Well, Robert Barnes at the Washington Post, Eugene Volokh at his blog, Mr. Denniston, Ben Smith over at Politico, and Wikipedia!

Related posts

• Supreme Court Rejects Question of Obama’s Citizenship (December 8, 2008)
• Statistics Show Obama Would Likely Redefine SCOTUS as 6-3 Liberal Majority; McCain Could Engineer an 8-1 Conservative Supermajority (August 8, 2008)
• President Obama and the Future of the Supreme Court (December 4, 2008)

I don’t think Team Obama should get too comfortable with the Court’s denial of [Donofrio] since [Wrotnowski] IS distributed for Dec 12 conference.

It’s important to remember that the “safe harbor” deadline–the date when Secretaries of State can begin constitutionally locking their states’ Electoral College votes–is today, December 9th. Thus, there is no reason for the Obama team to be anything less than totally comfortable: as long as the case is not heard and ruled upon by the end of business today (which it won’t be because it is not on the docket), the Court will concretely guarantee Obama 365 electoral votes. Game over.

Related posts

• Supreme Court Rejects Question of Obama’s Citizenship (December 8, 2008)
• Fishing for a Story: How the Media Is Reading Too Much Into Referrals of Obama Citizenship Cases by Conservative Supreme Court Justices (December 9, 2008)
• Court Appears to Deny Stay in Donofrio v. Wells (December 6, 2008)

Wrotnowski v. Bysiewicz is a motion for injunction filed by Cort Wrotnowski against Susan Bysiewicz, Secretary of State of Connecticut to halt the electoral college to hear a complaint against Barack Obama’s claim of citizenship. Unlike some of the other claims before the Court, this case focuses primarily on the President-elect’s father’s nationality. You can read the petition here.

According to the docket sheet (here), Justice Scalia referred the case to the Court as a whole today and it will be discussed at the December 12 conference. There is very, very little doubt that the Court will dismiss the case as it has the last two citizenship challenges to come before it.

Related posts

• Fishing for a Story: How the Media Is Reading Too Much Into Referrals of Obama Citizenship Cases by Conservative Supreme Court Justices (December 9, 2008)
• Today Is “Safe Harbor” Day 2008 (December 9, 2008)
• The In Vogue Word Of The Day: Stare Decisis (June 28, 2007)

The case had been rejected by Justice Souter, the Justice who presides over that circuit, before it was refiled with Justice Thomas, who opted to refer it to the Court at-large. It was rejected by the Court in conference last Friday. Note that the case was submitted to the court on the eve of the election.

Here is what the docket reads:

Nov 3 2008 Application (08A407) for stay pending the filing and disposition of a petition for a writ of certiorari, submitted to Justice Souter.
Nov 6 2008 Application (08A407) denied by Justice Souter.
Nov 14 2008 Application (08A407) refiled and submitted to Justice Thomas.
Nov 19 2008 DISTRIBUTED for Conference of December 5, 2008.
Nov 19 2008 Application (08A407) referred to the Court by Justice Thomas.
Nov 26 2008 Supplemental brief of applicant Leo C. Donofrio filed. (Distributed)
Dec 1 2008 Letter from applicant dated November 22, 2008, received.

Related posts

• Fishing for a Story: How the Media Is Reading Too Much Into Referrals of Obama Citizenship Cases by Conservative Supreme Court Justices (December 9, 2008)
• Today Is “Safe Harbor” Day 2008 (December 9, 2008)
• Statistics Show Obama Would Likely Redefine SCOTUS as 6-3 Liberal Majority; McCain Could Engineer an 8-1 Conservative Supermajority (August 8, 2008)