I’ve been fortunate as a reporter to have had three terrific beats in Washington: covering legal affairs on Capitol Hill for Congressional Quarterly, reporting on the Supreme Court for the Washington Post, and now covering it for USA Today. I’m about to switch to Reuters for a newly created legal-affairs job that I hope becomes the best of all.

Yet as I take stock, it occurs to me that a great bonus of the Court beat has been the colleagues. Journalists who come to the Supreme Court stay practically for life, like the justices. Right now there’s an especially tight group, interested in each other’s work, regularly discussing trends, watching each other’s back – well, up to a point. We’re still a competitive lot.

The beat tends to draw a different type of reporter. We’re all a bit bookish, with bad eyes and a penchant for yellow highlighters. We can laugh wildly at some joke filled with jargon that would fall flat outside the marble. We know as much about Teague v. Lane as Bush v. Gore. We favor predictability and patterns, which likely keeps us on a beat where everything happens at the same time each day. If the Court starts at 10:02 a.m. rather than right at 10:00, we’re bound to begin speculating on which justice was late to the Robing Room.

Once the nine leave the bench for lunch together, we have our own routines. Two of us eat at the same joint almost every day, rarely varying our orders. We go to the same conferences every year. We keep the same roles, substantive and social. We know who sits on the Moot Court and who finds the best restaurant in town. A few of us stay in such regular email contact that if one of us suddenly disappears for a couple of days, for any old reason, one of us is bound to write the others and ask what’s up. I’m not vanishing now, just expanding the beat and watching for legal trends at Justice, the White House and on Capitol Hill, too. I’ll still show up for some oral arguments, and when I do, I’ll be eyeing the clock just like the regulars.

Supreme Court Rorschach Test on Voting Rights

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As state legislatures have increasingly used sophisticated computers to draw voting maps configured to their political interests, districts have taken on odder shapes and prompted cracks about Rorschach ink blots. Friday’s Supreme Court decision in the Texas voting rights case offered its own kind of Rorschach test.

Commentators disagreed about who won and who lost in the continuing dispute over Texas’ new voting districts. (Law Professor Rick Hasen of the University of California, Irvine, has a range of reaction on his blog, including here.) Texas Republicans claimed victory. But so did Democratic advocates for the Latino groups that brought the case. Republicans emphasized language in Perry v. Perez about the importance of a lower court judges deferring to legislative choices. Challengers stressed that the high Court said the GOP-controlled legislature’s map could not take effect before it is approved, according to the Voting Rights Act. (That process is underway in a separate court proceeding.)

I think the divided reaction stemmed from the backdrop of conservative justices’ past criticism of the 1965 Voting Rights Act and the fact that more serious constitutional challenges to the landmark law are moving toward the Roberts Court. In the balance is the Act’s Section 5, which requires covered jurisdictions such as Texas (with a history of discrimination at the polls) to get federal approval before making changes in voting districts or electoral procedures. The preclearance process is intended to make sure a change would not hurt racial minorities who traditionally have been disenfranchised.

Friday’s opinion was plainly a compromise between liberals and conservatives, and it seemed to me to take pains to avoid harshly criticizing either the Texas legislature, which arguably minimized Latino interests in the line drawing, or the federal district court in San Antonio, whose maps better captured the surge in Texas’ Hispanic population since the last Census. In sending the case back, the justices wrote, “Some specific aspects of the District Court’s plans seem to pay attention to the State’s policies, others do not, and the propriety of still others is unclear.” Such language is hardly an indictment (or vindication) of one side over the other.

Adding to the ambiguity, Friday’s opinion was per curiam, rather than being signed by individual justices. Latin for “by the court,” a per curiam suggests the justices believe the law is clear and they are not breaking any new ground. That’s not always the case. Bush v. Gore was a per curiam opinion.

On Friday, no one wrote a dissent and most of us presumed the ruling unanimous. But I’ve learned that sometimes dissenters in these circumstances do not make their views public. We simply do not know at this point what went on behind the scenes or the majority’s real sentiment on Section 5.

Three years ago when the justices sidestepped a constitutional challenge to Section 5, conservatives including Chief Justice Roberts suggested the provision was no longer needed. “Things have changed in the South,” the chief wrote in an opinion laced with more doubts about Section 5 than Friday’s decision voiced. In Perry v. Perez, justices said of Section 5, “This Court has been emphatic that a new electoral map cannot be used to conduct an election until is has been precleared.”

The tone was muted this time around. Signals were mixed. And a question remains about whether Section 5 will survive the real constitutional challenges percolating up from places like Shelby County, Alabama.

 

The Chief Justice Defends His Own

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They may be known by their 5-4 decisions, but when it comes to outside criticism, the nine justices of the Supreme Court close ranks. Chief Justice John Roberts made headlines this weekend by defending his colleagues’ recusal choices, implicitly decisions by Justice Elena Kagan and Justice Clarence Thomas to participate in the health-care litigation. See story.

Roberts’s endorsement of his fellow justices came in the annual report on the federal judiciary, a typically dreary document that rarely draws much press or public attention. (I do remember, however, Chief Justice William Rehnquist making similar headlines in the late 1990s when he blasted the Senate for delaying judicial nominations.)

In his report released on New Year’s Eve, Roberts wrote, “I have complete confidence in the capability of my colleagues to determine when recusal is warranted. They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process.”

On the broader subject of judicial ethics, Roberts warned critics they might not know what they’re talking about. He referred to “misconceptions” about the Supreme Court and its ethical guidelines. He insisted justices abide by a federal code of conduct that officially covers only lower court judges.

Roberts also reminded Congress that its authority over some judicial activity has never been deemed constitutional: “As in the case of financial reporting and gift requirements,” Roberts wrote, “the limits of Congress’s power to require recusal have never been tested.” Roberts said justices and judges follow those rules. But he wanted it on the record that, on the subject of ethics, Congress might not even have the power to tell them what to do.

As I’ve be researching the years of nomination politics that led up to Sonia Sotomayor’s historic appointment as the first Hispanic justice, I’ve been reminded that appointments to top federal courts require not only top qualifications but an ability to maneuver in a sometimes ruthless system dominated by grudges and score-settling.

I’ve thought of this most recently in light of Tuesday’s scheduled Senate vote on whether to cut off debate and hold a straight up-or-down tally on Caitlin Halligan, formerly the New York state solicitor general, for a seat on the Washington, D.C.-based federal appeals court. (Cloture – which ends debate — requires a three-fifths majority, 60 votes; approval of a nominee needs only a simple majority, 51 votes.)

At this point, Halligan’s qualifications, which include a Supreme Court clerkship, the highest rating from the American Bar Association, and current service as general counsel in the Manhattan District Attorney’s office, have become almost beside the point. Nominations to the D.C. Circuit, often dubbed the nation’s second most important court, have become nearly as politicized in recent years as those to the Supreme Court.

The D.C. Circuit, which resolves disputes over civil rights law, environmental, health and labor statutes, and myriad other regulatory matters, has been a stepping stone to the Supreme Court. Chief Justice John Roberts served on the D.C. Circuit, as did Justices Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg.

Nominations to this circuit rarely fly under the radar, and its nominees, more than most others, need the right insiders and the most vigilant supporters to monitor – and counter — opposition. This is when constant phone calls and letters count, to keep the pressure on key senators.

And then there’s the ghosts of nominations past. As dueling senators have mentioned as they’ve staked out ground on Halligan, in the late 1990s Republicans stalled on two D.C. Circuit nominees of President Clinton, Allen Snyder and Elena Kagan. In the early 2000s, Senate Democrats repeatedly filibustered Miguel Estrada, a nominee of George W. Bush. (Kagan, of course, got the better of the deal as she ended up confirmed to the Supreme Court, ten years after her D.C. Circuit nomination languished.)

In the past two decades, slightly more GOP nominees have made it onto the D.C. Circuit than Democratic nominees. During his two terms, President George W. Bush successfully named John Roberts, Janice Rogers Brown, Thomas Griffith and Brett Kavanaugh. Before that, during his two terms, Bill Clinton appointed Judith Rogers, David Tatel and Merrick Garland.

Caitlin Halligan is President Obama’s first nominee to D.C. Circuit. If the Senate does not vote on her nomination soon, it’s hard to see how – in these politically polarized times — she or anyone else selected this term would clear the Senate before the 2012 presidential election.

We’re Here for the News

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The Supreme Court press corps has SO been waiting for this case. The constitutional test of President Obama’s health-care law is now at the nation’s highest court. (See story.) And we are no longer at the margins of the news in this run-up to the 2012 presidential election. On Monday, even though reporters expected only a one-page order related to the petitions granted, several TV cameras were set up in front of the marble-columned building and the press room was crowded. We didn’t want to just see the order on a computer screen. We wanted it in our hands.

The Court has been in a slow period for headlines in recent years, making some of us news hounds uneasy. If you began covering the Court during the 1988-89 term, as I did, when there were blockbuster rulings on abortion rights, affirmation action, flag burning, and more in a single session, you’d have certain expectations. If you wrote about the Court during the rollicking 1990s, when the big-finish month of June meant two, and sometimes even three, front-page stories a day, you’d want more high-profile cases, too.

I remember when people regularly camped out for seats in the majestic courtroom and our press corps drew a crowd twice the size as it is now. Part of that change can be chalked up to the decline of the industry but another factor is that news organizations simply think politics and other stories are more important. (Isn’t it clear now that Anthony Kennedy is more relevant than Rick Perry?!)

The series of health-care cases the justices agreed to hear over 5 1/2 hours of arguments in March are momentous. They test the power of the federal government and hit people where they live. Big questions of politics and democracy loom. A ruling could determine for decades how much power Congress has to address real social problems. In the 1930s, when the Court heard challenges to the New Deal legislation and addressed similar questions of federal power, thousands of people lined up for seats in the courtroom. Maybe they’ll be back.

It was a coincidence that on Tuesday morning before we went up to the courtroom for the police GPS-tracking arguments, some of us in the Supreme Court press corps were talking about how rarely the outcome of a case catches us off guard.

The subject came up as we chatted about the fact that the justices were about to issue their first opinion of the term and the chance a ruling might present news that competed with the GPS arguments. (See story) We knew it was a small chance. This early in the term, it’s rare to see a big, consequential ruling. And none of us thought any of the cases heard so far would produce a blockbuster.

“When was the last time we were surprised by a decision?” one of my senior colleagues asked. We offered up a few examples, but only a few. One was the 2009 voting-rights case from Texas in which the court ruled narrowly after it looked like a majority was ready to roll back the landmark 1965 Voting Rights Act.

As it turned out Tuesday, the first decision of the Supreme Court term, Greene v. Fisher, a death penalty case from Pennsylvania, was no surprise.

But it was not long after we came down from the GPS arguments that we heard a shocker. A few blocks away, the U.S. Court of Appeals for the D.C. Circuit, in an opinion by veteran conservative Judge Laurence Silberman, had upheld the Obama-sponsored health care law. The decision was issued just two days before the Supreme Court justices are scheduled to decide whether they will take up the politically charged litigation. (See story.) The D.C. Circuit case is not now in the series of petitions the justices will consider in Thursday’s private conference. But I’d really be surprised if most of the justices, many of whom are former colleagues and friends of Silberman, don’t get their hands on his opinion to see how he reads the health-care law as lawful.

The Lines of Shakespeare, Scalia, Stevens

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With the new round of questions about whether William Shakespeare was a literary impostor, brought on by the movie Anonymous, I thought it was time to go back and ask Justice Scalia what he thought.

Scalia, who uses literature and lyrics to make his legal points, often quotes from Shakespeare. I recall in his first term he invoked lines from Henry the Fourth, Part I, as he dissented in an affirmative action case from Santa Clara County, California:

 Glendower: I can call Spirits from the vasty Deep.

Hotspur: Why so can I, or so can any man. But will they come when you do call for them?

But Scalia has been among those who in the past voiced doubts that Shakespeare, with his limited schooling, could have produced such a great body of work. When I asked last week, Scalia was uncharacteristically reluctant to take up the subject. He begged off that he wasn’t an expert on the topic and didn’t have an answer. He would only say there was room for doubt.

When I asked about his favorite Shakespeare work, Scalia said Macbeth — because when he was in high school he got to play the lead. When he first told me years ago about that experience, he said he considered it quite a feat: “Do you know how many lines I had to memorize?!”

 On a related Scalia note, retired Justice Stevens captures the wise-cracking Scalia his new memoir, Five Chiefs. Stevens wrote that, “When the microphones are turned off, a justice will occasionally exchange a comment or two with his immediate neighbor. For most of our careers, Nino Scalia and I sat next to each other, and I was the beneficiary of his wonderfully spontaneous sense of humor. One morning when we heard a case involving a defendant who had refused to answer questions about the crime under the investigation but volunteered a long incriminating statement about a more serious offense and a second case in which the defendant had refused to sign a written confession while verbally describing inculpatory facts in great detail, Nino whispered to me that this must be our ‘dumb defendant day.’”

Last week when I interviewed Justice Stevens about the new book, he elaborated on his colleagues and Scalia’s name came up often. As he addressed recent calls by critics for changes in the Supreme Court’s rules on conflicts of interest, Stevens said he didn’t think any revisions were needed. (See story and comments about Justice Clarence Thomas) “I really don’t have any concern that people are failing to disqualify themselves when they should,” Stevens told me. He added that, “The closest, I suppose, was Nino and the vice president,” referring to a 2004 case involving then-Vice President Dick Cheney that arose soon after the pair had gone duck-hunting together. “But I’m sure that didn’t have any impact on his vote.”

In tracing back the politics of Sonia Sotomayor’s first nomination to the federal bench, I’ve become interested in John Carro, who was a judge in New York City and recommended for a federal district-court seat that Sotomayor eventually landed. I knew the outlines of Carro’s compelling life story, but in new research over the weekend I learned more and was reminded of how disparate strands of history can intertwine.

In 1988, Senator Daniel Patrick Moynihan, D-N.Y., recommended Carro for a U.S. trial judgeship in New York’s southern district. Neither President Ronald Reagan nor George H.W. Bush took the Democratic senator’s recommendation, and Carro asked Moynihan to withdraw his name in January 1991. A few months later, Moynihan suggested Sonia Sotomayor (27 years younger than Carro and without his liberal record), launching a judicial career that led to her 2009 Supreme Court appointment.

Carro, born in Puerto Rico, moved to New York with his family when he was about 10. He went to Fordham, then Brooklyn Law School, and became a vigorous advocate for Latino legal rights. He worked for New York Mayor Robert Wagner in the early 1960s, and was appointed to the New York Criminal Court in 1969. A decade later, Gov. Hugh Carey named him to the Appellate Division, which is where he was when Moynihan tried to get Carro a seat on the federal bench. (Carro retired in 1994.) In researching his background, I discovered a transcript of an interview in which Carro recalled the tough East Harlem neighborhood of his youth and how he had to run home from school each day to avoid getting beat up or having his books, pencils or money stolen.

Here’s the connection that surprised me: Carro’s off-handed reference to his boyhood came as he was being deposed in 1964 about his time as a probation officer, when he met a boy named Lee Harvey Oswald. That was in 1953, and Oswald, then about 13, was a truant. Carro wrote up a history of the family and the boy’s problems. As a window on Oswald — and Carro — the transcript (link) is fascinating. Here are two small pieces that reveal a different chapter of American history, one having nothing to do with judicial nominations but ever so captivating:

First, Carro recalls Oswald as a boy compared to the youths he typically saw: “Most of the boys that I had on probation were Puerto Rican or Negro, and they were New York type of youngsters who spoke in the same slang, who came from the Bronx whom I knew how to relate to because I knew the areas where they came from. … [T]his boy was different … . I was a Catholic probation officer and this boy was a Lutheran, which was strange to begin with, because you normally carry youth of your own background. And secondly that he did dress in a western style with the levis, and he spoke with this southwestern accent which made him different from the average boy that I had on probation. … [T]here was no indication that this boy had any Marxist leanings or that he had any tendencies at that age that I was able to view that would lead him into future difficulty.”

Carro also explains how he came to realize that the boy he once knew was the man who shot President Kennedy on November 22, 1963: “I believe it was after the burial or just about that time, while I was watching the papers, on the day that he actually was killed by [Jack] Ruby, that I saw some pictures of the mother, and I started reading about the New York situation, that it suddenly tied in, because, you know, something happening in Texas … you hardly associate with a youngster that you had 10 years prior… . A friend of mine called me up, a social worker, to tell me, ‘Carro, you know who that case is?’ And he said, ‘That was the case you handled. Don’t you remember?’ And then we started discussing the case, and I remembered then, and what happened then is I felt, you know, it was a kind of a numb feeling …”

A new SCOTUS term and a week of Scalia

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Chief Justice John Roberts opened the term Monday with a salute to Scalia on the 25th anniversary of his appointment. “The place has not been the same since,” Roberts said. (See story)
And as the week went on, it was all Scalia all the time. During three days of oral arguments, he cracked wise and showed himself, as often happens, particularly skeptical of claims (story) by a Death Row defendant and of lawyers’ arguments (story) in a church- state controversy.
Tuesday’s case of condemned prisoner Cory Maples, who was blocked from an appeal because of a missed deadline that was no fault of his own, drew sympathetic comments from a majority of the justices. Maples’ lawyers had left their firm without telling him, and when a court clerk sent relevant appeal papers to their office, the firm’s mailroom returned them unopened.
Expressing no surprise or outrage at the misconduct, Scalia took more of a “get over it” stance. He asked whether sanctions ever fall on lawyers deemed “inadequate” in a death penalty case: “Have you ever heard of anything happening to them? Other than they are getting another capital case?”
Then on Wednesday afternoon, in testimony with Justice Stephen Breyer before the Senate Judiciary Committee, Scalia got off another set of caustic lines and drew most attention (story): “I’m hopeful that the ‘living’ Constitution will die,” he said, referring to Breyer’s view that the Constitution should be broadly interpreted to adapt to changing times.
Scalia brushed off questions related to public complaints about a dysfunctional Washington and legislative gridlock. He said it should be difficult to pass legislation that may not be embraced by a majority. “Americans should appreciate that,” Scalia said. “They should learn to love the gridlock.”
And so it goes, 25 years and counting.

I was so struck by the number of important decisions Justice Scalia wrote this term that I asked Justice Ginsburg about his record when I interviewed her this week. (Here’s the news story covering other topics.)

First, consider this: Scalia authored the decision striking down California’s ban on the sale of violent video games to minors and giving video games the kind of First Amendment protection granted books (Brown v. Entertainment Merchants Association). He wrote the decision throwing out the class-action sex discrimination lawsuit against Wal-Mart and setting a new standard for workers nationwide to bring such bias claims (Wal-Mart Stores v. Dukes). He wrote the ruling saying consumers can be bound by an arbitration clause in a cell-phone contract even when state law would permit a class-action claim (AT&T Mobility v. Concepcion). He also authored the decision that former Attorney General John Ashcroft could not be held liable for a post-Sept. 11 policy that led to the arrest of a Muslim U.S. citizen (Ashcroft v. al-Kidd) and the one upholding a Nevada ethics law that also declared voting by legislators not protected speech under the First Amendment (Nevada Commission on Ethics v. Carrigan).

So, I asked Justice Ginsburg whether she was surprised that he had prevailed so much.

She responded, “Is he prevailing more than the chief?” Her tone was sharp and it suggested she didn’t think Scalia was as influential as my question implied. And she was right: Scalia was not in the majority as much as Chief Justice John Roberts, or swing-vote Justice Anthony Kennedy. But Scalia did write opinions for the Court in the most closely watched cases. And the crux of my question had more to do with his history on the bench, which she – as a longtime colleague at odds with him on the law – knows well.

Scalia’s public profile arises from a conservatism that is not usually embraced by a majority (and that Ginsburg has told me she believes will never become the norm), along with a series of hyperbolic dissenting opinions. Think Romer v. Evans. Think Boumediene v. Bush. I also know that he was regarded as someone who could, more than other justices, lose a majority once he started drafting the opinion and expressing his legal rationale. But that has changed in recent years and clearly in the term that just finished up, Chief Justice Roberts had the confidence to assign Scalia several momentous opinions and Scalia held, at least, the requisite five.

When I laid all that out, Ginsburg said, “We’ll see how it is next term.”

A few weeks earlier when I was in Justice Scalia’s chambers, he didn’t want to talk about winning more and, in fact, was focused on the major California prison case, Brown v. Plata, that a few days earlier had not gone his way. The Court, in an opinion by Kennedy joined by Ginsburg and the other liberals, had found the overcrowded prison system unconstitutional and required reduction of about 30,000 inmates. In a dissent from the bench, Scalia declared that the Court was affirming “perhaps the most radical injunction issued by a court in our nation’s history.”

Now that I see that Brown v. Plata was an exception for Scalia this term, I cannot help but recall a conversation I had with him in summer 2009, right after District of Columbia v. Heller, when he wrote the opinion establishing individual gun rights under the Second Amendment. I observed then that he seemed to be in the majority more and getting to write more significant opinions for the Court. He brushed me off. “The wins,” he sighed. “The wins: Damn few.”

At the time, I wrote that Scalia might be at the apex of his influence. Now I’m wondering if he might be in a longer chapter and about to have more impact on the law than I ever would have imagined or that Justice Ginsburg ever would have wanted. Like her, I’ll wait for next term.