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.

A Defining 48 Hours at the Supreme Court

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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.

Justice Ginsburg’s Staying Power

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Justice Ruth Bader Ginsburg opened a speech at the American Bar Association in San Francisco this week by observing, “I have lived long enough to see great changes in our profession.”

A question I’ve heard many times in my travels this summer is how much longer Justice Ginsburg, age 77, a cancer survivor and now a widow, will serve. Watching Justice Ginsburg on Monday (see the ABA video here) and following her activities since the death of her husband, Martin, I believe she will not step down in the next two years and is ready for the long haul, eager to see more changes in the law and profession.

That means it is likely President Obama’s Supreme Court nominations for a first term are over and that, after four appointments in five years (John Roberts, Samuel Alito, Sonia Sotomayor, Elena Kagan), we will see a new period of stability at the Supreme Court.

Justice Ginsburg has been saying for years (most recently in an interview this month with the Associated Press’s Mark Sherman) that she wants to serve as long as Justice Louis Brandeis. Brandeis, who sat 1916-1939, racked up nearly 23 years and retired at age 82. Now age 77 and a 17 year veteran of the Court, Ginsburg has survived two rounds with cancer, most recently pancreatic cancer in 2009. Through her treatments, she kept up an energetic speaking schedule and remained one of the most active justices on the bench.

At the ABA, she looked healthy and seemed as spirited as ever, despite the June death of her husband of 56 years. She addressed the great change in the profession since the 1960s with the influx of women, who are no longer rare “curiosities at the bar.” Ginsburg graduated from Columbia law school in 1959, after first attending Harvard 1956-58. (She transferred when Martin graduated and got a job in New York.)

In San Francisco, Justice Ginsburg referred to the support for her career that she received from her husband, who died June 27, the day before the last sitting of the Supreme Court’s 2009-10 term. Even in her grief, Ginsburg took the bench that last day. I could not help but recall all the other times she had been so tested in her family life. Her mother died of cancer the day before her high school graduation. And while she and Martin were at Harvard, he was diagnosed with cancer. She helped him complete his studies as he recovered. She was also caring for their infant daughter at this time.

As she received the ABA Medal, the group’s highest honor, Ginsburg noted that “my only sadness” is that Martin did not live to see the day. But the justice said that her husband had known of the award before his death and had said “he would be cheering for me.”

I was reminded twice in the past week of the culture of notes and letters at the Supreme Court. When I spoke to a group of mid-career journalists at the National Press Foundation on Monday, a reporter asked who at the Court I would call or e-mail if I wanted to interview a justice. I said I often wrote a letter to the justice detailing my request. “A letter?” she said with disbelief and a tone of who-does-that-anymore? But this is an old-fashioned bunch and that is how they regularly communicate with each other and the outside world. Many of them e-mail and even text now, but they still write letters — handwritten letters on heavy, engraved stationery.

I was also reminded of the practice when I read Adam Liptak’s story last Tuesday in the New York Times about studies of oral dissents. In my research for the O’Connor biography, I was tipped off to the timing of her first-ever dissent from the bench (in 1991, a decade after being sworn in) by a personal letter she wrote to then-retired Justice Lewis Powell. I found it in his archive at Washington and Lee University. O’Connor had been the lone dissent in the case of Pacific Mutual Life Insurance v. Haslip, upholding a punitive damages award, and she let Powell know she was so disturbed she took the unusual (for her) step of reading portions of her statement from the bench. She lamented what she perceived as a lack of standards for such damages: “Rarely is a jury told anything more specific than ‘do what you think best.’”

To this day, Justice Ruth Bader Ginsburg is a prolific letter writer, as is Chief Justice John Roberts. The late Chief Justice William Rehnquist would often pen whimsical notes to colleagues as he sat on the bench, and earlier when he was an associate justice (1972-1986), he wrote letters to friends when oral arguments bored him.

One of my favorite Rehnquist letters was written to Powell when he was recuperating from cancer surgery:

“We have now finished our January argument calendar, of course, and I must say I can’t ever remember a less interesting or stimulating group of cases. If you had to miss one oral argument session, I don’t think you could have picked a better one to miss. Even the conference today got a little bit testy, as it does at times. Some of the Chief [Warren Burger]’s discussion is quite good, when he feels very strongly about something and when he feels he has a majority with him; but some of it can be singularly uninspiring. Sometimes when he runs out of things to say, but he doesn’t want to give up the floor, he gives the impression of a southern Senator conducting a filibuster.

“I sometimes wish that neither the Chief nor Bill Brennan would write out all their remarks beforehand and deliver them verbatim from the written page. Bill is usually thorough, but as often as not he sounds like someone reading aloud a rather long and uninteresting recipe. Then of course Harry Blackmun can usually find two or three sinister aspects of every case which ‘disturb’ him, although they have nothing to do with the merits of the question. And John Stevens, today, as always, felt very strongly about every case, and mirabile dictu had found just the right solution to every one. As you might imagine, my conference discussion was, as always, perfectly suited to the occasion: well researched, cogently presented, and right on target!”

In 1996, Justice Scalia wrote a particularly dispirited note to Harry Blackmun that I and other researchers have used over the years: “ … I am more discouraged this year than I have been at the end of any of my previous nine terms up here. I am beginning to repeat myself, and I don’t see much use in it any more.”

One particularly amusing personal note from Justice Scalia came in 2001, after I had switched from the Washington Post to USA Today. He was not happy with some of my coverage at the Post but said he wouldn’t hold it against me:  “Nursing grudges is a very Sicilian vice, but … not one of mine.”

When I asked Justice Scalia in an interview last year about his combative style during oral arguments, he defended himself by making comparisons with other justices. “I don’t think it’s true that I am the most talkative,” he said, adding that such distinction would go to Justice Breyer, who asks long hypothetical questions. Then Scalia became more animated and said, “You ever hear Ruth excoriate somebody who is arguing a … case? She can be really tough.”

I was reminded of that assessment this week as Justice Ginsburg forcefully questioned lawyers at the lectern and would not let up on a line of attack in several cases. She was, as usual, deep into the nooks and crannies of the disputes. At one point during arguments over a City of Chicago test for firefighters that hurt African American applicants, she told Deputy U.S. Solicitor General Neal Katyal, siding with challengers to the city, “I think you had a footnote in your reply brief that said if your position prevails here …” A few minutes later, when city lawyer Benna Ruth Solomon took the lectern, Ginsburg asked seven questions in a row, probing flaws in the city’s case.

The next day, Justice Ginsburg challenged Georgetown University law professor David Cole as he defended the Humanitarian Law Project’s desire to support nonviolent activities of the Kurdistan Workers’ Party. The PKK, as it is called, is a militant separatist group in Turkey that the U.S. Secretary of State has designated a “foreign terrorist organization.”

“There are a lot of groups on the (foreign terrorist organization) list,” Ginsburg noted. “I think the Al-Qaeda was one instance that was mentioned and, at least according to the briefs, you conceded that if you wanted to do just what you describe with respect to the Kurdish group or the Tamil group, the (U.S. government’s) ban (on any support of the organization) would be permissible.”

Cole responded, “We didn’t actually concede that, your honor.” Cole then tried to explain the difference between humanitarian support for Al-Qaeda or the Taliban, as opposed to the PKK. Before he could clarify, other justices raised questions.

Then Cole, seeing the white light at the lectern and knowing he had less than five minutes left, said to Chief Justice Roberts, “If I could reserve the rest of my time” for rebuttal.

But Ginsburg wasn’t going to let him sit down just yet: “Do you want to give an answer to the Taliban and the Al-Qaeda?”

“Oh, I’m sorry. I’m sorry, Justice Ginsburg,” Cole said. “The answer would be we are in a military conflict with the Al-Qaeda and the Taliban. … Therefore treason law might be applicable. … Number two, it is not clear that Al-Qaeda engages in any lawful activities … .”

When Solicitor General Elena Kagan stepped up to defend the disputed prohibition on not only financial support but training and advice to designated organizations, Ginsburg poked holes in her claim that the government was not targeting speech.

“How about what’s involved here?” Ginsburg asked. “I think they (Humanitarian Law Project members) said that they want to train them (the Kurds) how to … pursue their goals in a lawful, rather than a terrorist, way. And that is speech. It is not conduct. They want to engage in advocacy of peaceful means … .”

When other justices joined the fray with hypothetical questions about assistance for arguably lawful activities, including (as Justice Sotomayor suggested) teaching the harmonica, Scalia scoffed and asked Kagan:

“Why do these hypotheticals make any difference? Clearly the broad scope of this statute is constitutional, and whatever aspects of speech it may run afoul of are minimal. That being the case, of what relevance are these hypotheticals? It’s a lot of fun and it’s very interesting, but we can deal with all of that when the situations arise, can’t we?”

Kagan responded, “I do think that the answer to that is ‘yes,’ Justice Scalia.”

But then Ginsburg interjected, reminding her old friend Scalia that not all justices were as supportive of the government’s position: “The answer on the other side is, all we want to do is speak about lawful activity.”

When I once asked Ginsburg about Scalia, she said, “I love him. But sometimes I’d like to strangle him.”

I know exactly where I was when I first saw the headline of an ABC news story earlier this month that said, “White House Prepares for the Possibility of Two Supreme Court Vacancies.” I was in the San Francisco radio studio of Ronn Owens about to go on the air to talk about Justice Scalia, the Citizens United case and current term. Owens said the ABC story had just appeared on-line that February 4 morning and predicted the retirement subject would draw calls. “Two vacancies?” I said doubtfully. “Really?” As people who have since read the posting by longtime ABC producer Ariane de Vogue know, it said: “Court watchers believe two of the more liberal members of the court, justices John Paul Stevens and Ruth Bader Ginsburg, could decide to step aside for reasons of age and health.”

Ariane’s post became part of a new round of speculation among those of us who would rather be first, than second, third, or really left in the dust, on a retirement story but who simply do not know the full intentions of these older justices. Justice Ginsburg has told me and others that she does not want to leave the Court in the next couple of years, and seeing how vigorously she approaches the job, I cannot believe she is seriously thinking of retiring. Yet she has twice battled serious cancer and will turn 77 in March. I believe she is healthy but I don’t know for certain — and the Ginsburg rumor is still going.

As I have previously written in these posts, I think Justice Stevens will retire at the end of this term. The question for me is: When would he announce it? He will turn 90 on April 20, and oral arguments for the term will be over at the end of April. Maybe he would choose then to let President Obama know. Maybe he would wait until the end of the term in June, when retiring justices used to do it.

The opportunity of a lifetime appointment to the Supreme Court doesn’t come around often for presidents, or for the reporters who cover it. Nomination stories become such big deals to us that I can say without much exaggeration that since I began writing about the Court in 1989, I can remember almost every minute of the days that we got a retirement announcement. Here, going back about a quarter-century, is when retiring justices told us when they were going:

June 17, 1986: Chief Justice Warren Burger publicly revealed his retirement, effective at the end of that current term. Burger had privately told President Reagan three weeks earlier, on May 27, that he would step down.
June 26, 1987:  Justice Lewis Powell announced his retirement on the last day of the annual term.
July 20, 1990: Justice William Brennan retired during a summer recess, after he had suffered a stroke.
June 27, 1991: Justice Thurgood Marshall announced his retirement on the last day of the term. At a news conference the next day, he answered a question about his health with memorable gruffness: “I’m getting old and falling apart.”
March 19, 1993: Justice Byron White wrote to President Clinton to let him know he would retire that summer. This was the earliest official notification in recent decades. White said he wanted Clinton to have plenty of time to choose his successor for the next term. (Clinton selected Ginsburg.)
April 6, 1994: Justice Harry Blackmun informed the White House he would retire at the end of the term.
July 1, 2005: A few days after the annual term ended, Justice Sandra Day sent a letter to President Bush saying she would retire. (I was finishing my manuscript of her biography at the time, and I really remember every moment of this astonishing day.) She said she needed to leave to care for her ailing husband but would not step down until her successor was named. It turned out she stayed on until January 2006, when Samuel Alito was sworn in.
September 3, 2005: Chief Justice William Rehnquist died in office, giving President Bush a second seat, along with O’Connor’s, to fill.
May 1, 2009: Justice David Souter sent a note to President Obama confirming that he was retiring, after news reports the previous night said Souter already had informally passed the word.

As we get ready to enter 2010, Supreme Court watchers – living in a tight and sometimes unhelpfully focused world (see 2005, below) — already have been considering who might be next for the Court. In the last two weeks, I have heard the question asked at holiday parties, during dinners and in private conversations. The most likely scenario is that Justice John Paul Stevens, who turns 90 in April, will announce his retirement in the spring, and that the Obama administration will work with a list that begins with the also-rans from spring 2009 and is expanded with other women and, likely this time, a few men. When Sonia Sotomayor was chosen last May to succeed David Souter, President Obama was determined to add a second woman justice to the nine-member bench and did not interview any male candidates. Some of the very premature discussion among Court insiders these days has centered on the current chances of candidates from the 2009 short-list: Would Homeland Security Secretary Janet Napolitano be a less likely choice because of fallout from the Christmas Day bombing plot involving a Nigerian student allegedly linked to al-Qaeda and her comment that “the system worked”? Have Solicitor General Elena Kagan’s arguments before the Court helped her chances? Would Appeals Court Judge Diane Wood, who turns 60 next July, be less likely now because of her age? Generally, I should note, President Obama has not been seeking younger candidates for the federal bench as GOP predecessors Ronald Reagan and George W. Bush did.

 I have found that all this preliminary speculation has taken a new twist, suddenly involving whether Justice Stevens would be the next to step down. I have long thought he would. When I interviewed him in October, he talked readily about his legacy and that he had not hired a full staff for the next term. When I asked him about media attention on the fact that he had not selected the usual contingent of law clerks, he said, “That can’t be news. I’m not exactly a kid.” While the justice would not confirm his retirement plans, it seemed to me his bags were all but packed. In recent days, however, a few Court watchers have been raising doubts about whether liberal Stevens would really be the next to go and whether a more likely possibility could be the retirement of one of the Court’s older conservatives. That would be far more consequential. If Obama were to replace a conservative justice on this closely divided bench, it would tilt the Court in a new direction and have a greater effect on the law of the land.

 As far as I can tell, none of this very mildly percolating speculation about a conservative leaving is rooted in reality, and I would throw water on all of it — if 2005 did not remain so vivid in my mind. That was when, as we all were watching for the retirement word from Chief Justice William Rehnquist, ill with thyroid cancer, Justice Sandra Day O’Connor announced her exit. I remember too well that July 1 day when she went public. I had been finishing up my biography of her and in denial about the effect of her husband’s Alzheimer’s disease on her plans. I had known for years of his illness, yet I had seen her conquer so much over the course of her pioneering life that I believed his situation would not lead her to leave. I was wrong, as were many of my veteran court colleagues (“Most in the Media were Blindsided by Justice” read a Washington Post Style-section headline). Several of O’Connor’s fellow justices were shocked, too. Justice Scalia told me later that July he had heard the news on the car radio as he was coming into work and nearly driven off the road.

 All this was in the back of my mind last night when a close friend and an astute Court observer asked what I made of some talk that a conservative justice, maybe even Scalia, might retire. The facts cut both ways: Justices Scalia and Anthony Kennedy, the eldest on the conservative side, will each turn 74 in the new year. That’s young in justice-years, although not for the usual worker. Because of generous judicial pensions, both men could retire and earn their salaries for life. Justice Stevens told me, “You think about retiring when you get to the point that you’re working for free” – even though that clearly did not make the difference for him in his 60s, 70s, or even 80s. Scalia and Kennedy have had some minor health problems through the years but appear in good enough physical condition. Scalia, who smokes, eats and drinks in great quantities, comes from long-living kin. Finally, I think about whether either would want to end his legacy now and give Democratic President Obama an opportunity to name a successor? I just don’t see it – especially in the case of Scalia.  So I told my friend that I’d still put my money on Stevens to leave first. Yet, as I cannot dismiss the events of 2005, I must add that if I suddenly heard Scalia was leaving, I wouldn’t drive off the road.

People Are Asking:

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From Miami to Milwaukee, one of the most frequently asked questions I’ve fielded in recent weeks relates to how Scalia’s Catholicism influences his rulings. This is a touchy area but clearly one that fascinates people. The question is increasingly asked, too, because there are now six Catholic justices on the Supreme Court. Along with Scalia, they are Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, Samuel Alito and Sonia Sotomayor.

Yet more than any of them, Scalia, who was raised in a strict Catholic home, then attended a Jesuit high school and the Jesuit Georgetown University, is identified as a Catholic justice. He has spoken publicly about the importance of fidelity to the Church’s traditional values, such as saying the Rosary and observance of all holy days. How his religion affects his judicial views emerges mostly in the debate over abortion rights, a topic about which he is passionate as he is about religion. Scalia fiercely rejects the notion that the Constitution contains a right to abortion. Yet when asked about the connection between his religion and his rulings, he says there is none. He says he is only reading “texts,” not making value judgments. In the book, I let him have his say, but I also include skepticism from critics who contend his passion for his religion cannot help but affect his rulings.

It is true that irrespective of Scalia’s Catholicism, his conservative approach to the Constitution would likely dictate his opposition to abortion rights. Yet it is also true, as Scalia has told me, that one of the lasting lessons he has carried from his years of Catholic education is, “Do not … separate your religious life from your intellectual life. They’re not separate.”

Why are they friends? Another question I have heard a lot lately, including when I appeared at Washington’s independent bookstore Politics and Prose centers on the friendship between Justices Scalia and Ginsburg, the court’s prominent feminist. Much goes back to their roots as New Yorkers and in academia. She grew up in Brooklyn, he in Queens. They both spent years teaching in law schools and, as justices, now take an intellectual approach to the law. When they served together on the Washington, D.C., federal appeals court, before their respective appointments to the high Court, they used to run drafts of opinions by each other to test everything from the legal reasoning to points of grammar. Justice Ginsburg says of Scalia: “I love him. But sometimes I’d like to strangle him.”

Finally, Bush v. Gore:  As I discovered in Philadelphia, where I spoke at the National Constitution Center and also fielded questions for WHYY’s “Radio Times” show, many people still care passionately about the justices’ 5-4 decision in 2000 helping George W. Bush win the White House over then Vice President Al Gore. Scalia, of course, continues to say “Get over it,” but —  plainly — people are not. It does not surprise me that the controversy lingers. Scalia was the only justice who wrote a statement explaining why the majority felt justified in shutting down the Florida recounts at a crucial moment. On lingering controversies, however, I have to admit that I was thrown when someone at a Milwaukee speech asked me whether Scalia believed Anita Hill’s accusations against Clarence Thomas in 1991. I thought that one was history.