A Defining 48 Hours at the Supreme Court

| | Comments Off

Sitting in the courtroom the last two days, I was reminded of how profoundly the Court is split 5-4, conservatives-liberals, on cases that really matter. The divide was evident during oral arguments in the Arizona campaign finance dispute Monday and in the gigantic Wal-Mart job-discrimination class action fight Tuesday. And one of most compelling moments along these lines came Tuesday morning when Justice Ruth Bader Ginsburg read aloud her dissenting opinion from a decision in which the five-justice conservative majority ruled that a former Louisiana Death Row could not sue prosecutors who had failed to turn over blood evidence that could have shown his innocence.

Justices rarely read dissents from the mahogany bench, and when it happens, it’s usually in June, the final, tense month of the term.

But Ginsburg, the most senior liberal, could not hold back from a very public protest of the majority decision in Connick v. Thompson, written by Justice Clarence Thomas and overturning the $14 million verdict John Thompson won in a civil rights trial after he was freed from prison.

With her outrage barely betrayed by a steady, flat voice, Ginsburg emphasized the injustice Thompson faced and responsibility former District Attorney Harry F. Connick bore. She noted that prosecutors have a constitutional obligation to reveal evidence that might exonerate a person:  “That obligation was dishonored in this case. Consequently, John Thompson spent 14 years isolated on death row before the truth came to light.”

Liberals were on the defensive in the two major cases argued this week, too. The five justices who have voted against campaign finance regulations in recent years, including Chief Justice John Roberts and key swing-vote Justice Anthony Kennedy, looked ready to strike down a newly disputed Arizona public-financing law that gives extra matching funds to candidates who run against well-off opponents. That case is the first campaign controversy to be taken up since the Court’s January 2010 decision in Citizens United v. Federal Election Commission, lifting federal limits on corporation and labor union spending in elections.

On Tuesday, in the high-stakes Wal-Mart Stores v. Dukes case, conservatives appeared inclined to block a decades-old lawsuit on behalf of Wal-Mart female employees nationwide. (See story.) The women contend their pay and promotions trailed those of men in comparable jobs across the nation. Wal-Mart disputes that assertion and argues the class action should be thrown out because the women lack sufficient common grounds to connect workers in thousands of stores, with hundreds of managers, in a single claim.

It was just two days of the term, but they may stand for the whole.

A professor at Gettysburg College last week said she had heard that the Justice Scalia had never hired a single female law clerk.  On several radio shows, I’ve been asked about Scalia and Opus Dei. Then there’s the assertion I hear constantly that Justices Scalia and Clarence Thomas vote in lockstep.

On many controversies (duck-hunting with Dick Cheney, for example), Justice Scalia is guilty as charged. But not on those above:

1. Justice Scalia has, in fact, hired several women clerks over the years, some of whom have gone on to prominent positions in academia, such as Joan Larsen at the University of Michigan. It is true, however, that clerks for a majority of the justices, including Scalia, have been overwhelmingly male (and white) through the years.

2. Justice Scalia is a conservative Roman Catholic who told me the Second Vatican Council (which excised Latin and liberalized the Catholic liturgy) was not on his “hit parade.” He was always looking around for the right place to worship. When his nine children were young, he hauled the clan from their suburban Virginia home to downtown Washington, D.C., for a remaining Latin mass at St. Matthew’s Cathedral and, when living other places, drove miles each Sunday to a just-right church. His visiting mother-in-law once said, “Why don’t you people ever seem to live near churches?”
 Yet, Scalia  is not a member of the secretive Opus Dei. As far as I know, none of the Catholic justices is, although those rumors – accelerated by Dan Brown’s portrayal of Opus Dei in The Da Vinci Code — constantly swirl.

3. Scalia and Thomas are indeed together on many cases (see their joint concurring opinion today in Wilkins v. Gaddy on what constitutes cruel and unusual punishment), but Thomas is more conservative than Scalia and often writes solo dissenting opinions. That happened in the recent case of  Citizens United v. Federal Election Commission (on the disclosure requirements of the disputed law) and in last term’s Voting Rights Act case, Northwest Austin Municipal Utility District No. 1 v. Holder.
 The two justices say they have an easy friendship, and Scalia told me that when they are aligned in dissent, it can have a psychic benefit: “There are times when I think I’ve been a comfort to him and he’s been a comfort to me. Nobody else seemed to see things our way. It’s nice to have a least one other person who you can sympathize with.”

And about Scalia’s relationship with Dick Cheney? The Scalia-Cheney bond – which put the justice in hot water in 2004 when Cheney had a case at the Court and the pair went hunting — traces to the mid-1970s when they both worked in the Ford Administration. Scalia was an assistant attorney general, and Cheney became White House chief of staff. Scalia told me they have remained friendly over the years but not close personal friends, as Scalia has, say, with then-deputy attorney general Laurence Silberman (now D.C. Circuit appeals court judge). Of Cheney, Scalia said, “He knew who I was. He knew my qualifications. He knew I was on the right team.”

When Clarence Thomas Does Speak

| | Comments Off

Justice Clarence Thomas has not spoken from the bench in nearly four years, and his silence regularly leads to questions from the public. When I’m asked, as happened twice last week, I usually repeat some of the reasons Thomas has given, including (as he told C-SPAN in 2009) he would rather let the lawyers talk on and explain their cases. Then I add that in interviews I’ve had with Thomas he has been unusually candid in his assessments of colleagues and open about his views. He provided some of the more vivid descriptions of Justice Scalia and Justice O’Connor, and he offered impressions of the confirmation process for Sonia Sotomayor last summer.

As we approach another anniversary of Justice Thomas’s silence on the bench (in February), here are two comments that I thought revealed as much about Thomas as the justice we were discussing:

When I spoke to him about the then-pending nomination of  Judge Sotomayor, I noted that she had been subjected to some inaccurate and rancid stereotyping. Thomas experienced some stereotyping, too, when he was nominated in 1991. I asked whether that caused him to have some sympathy for Sotomayor. In response, Justice Thomas focused on the fact that many of her liberal supporters had been his critics. “I don’t know her,” he said. “I had dinner with her once. She was nice to me. … I’ve always found it fascinating that people get upset with me because they think that because I’m black I have to have a particular point of view. But the people who have presumed that about me cannot now object if the same thing happens to Sotomayor. You see what I’m saying? A bigot cannot yell too loudly about bigotry.”

When I asked Thomas years earlier about Justice O’Connor, he openly recalled their differences in his first term on the Court, particularly in Wright v. West, the 1992 case regarding procedures for prisoners seeking a federal hearing. He wanted to go much further than O’Connor in curtailing the writ of habeas corpus. O’Connor made clear, behind the scenes and then in a published opinion, that she believed Thomas was misconstruing precedent. Thomas told me: “At first I thought, ‘Whoa, she’s a tough cookie.’ … But they had been working on these [habeas corpus] problems for years and I come marching in like this.” Thomas pumped his arms aggressively for effect. “I was the new kid on the block. I was brash…. I just took it like the rookie football player who gets clobbered by the linebacker: ‘Welcome to the NFL.’”

Makes me wonder what he was thinking during last week’s oral arguments in American Needle v. National Football League.