Since President Obama’s nomination of Elena Kagan last week to succeed retiring Justice John Paul Stevens, there has been a lot of talk about whether she would be a persuasive force in moving Justice Anthony Kennedy to the left. I’ve felt that much of this discussion ignores the limits of a new, junior justice, and I think Monday’s decision in the juvenile sentencing case offers a reminder of Justice Kennedy’s own force.

Kennedy wrote the Court’s decision that declared for the first time that juvenile offenders cannot be locked up without a chance of parole for crimes that do not involve homicide. (Read stories on the ruling here and on Kennedy here.) The decision in Graham v. Florida demonstrated Kennedy’s continuing role as the crucial fifth vote on the Court, as well as his dominant voice on the Eighth Amendment, which prohibits cruel and unusual punishment.

Monday’s decision flowed from two earlier Kennedy opinions, the 2005 Roper v. Simmons, which forbade the death penalty for juvenile criminals, and the 2008 Kennedy v. Louisiana, which prohibited the ultimate punishment for the crime of child rape.

As Kennedy, joined by the Court’s four liberals, extended the reasoning of Roper v. Simmons beyond the realm of capital punishment Monday, he wrote, “It is true that a death sentence is unique in its severity and irrevocability, yet life without parole sentences share some characteristics with death sentences that are shared by no other sentences.” Life without a chance of parole, he said, “deprives the convict of the most basic liberties without giving hope.”

Chief Justice John Roberts tried to make the case – beginning with his remarks at last November’s oral argument and then in his separate opinion in Graham – for an individualized approach, rather than a blanket rule against life-without-parole. But Roberts could not persuade Kennedy. And while senior liberal Stevens can often be credited with convincing Kennedy to join those on the left, in this Eighth Amendment dispute over penalties for young offenders, Kennedy was – more likely than not — already there.

As Supreme Court justices circulate draft opinions among themselves and respond to each other’s writing, no two justices engage in a tit-for-tat like Antonin Scalia and John Paul Stevens.

These defenders of conservatism and liberalism, respectively, disagree on big issues, of course, but they are also the two most likely to tussle down in the weeds — on the meaning of a statute, interpretation of precedent or nuances of a legal test. It is not unusual for Scalia to make some assertion that sets off Stevens, who then fires back in his opinion, which prompts Scalia to return the volley, which gets Stevens going again.

That happened in this week’s case of Shady Grove Orthopedic Associates v. Allstate Insurance, a complicated dispute that led to a 5-4 decision letting certain class-action lawsuits barred from state court be heard in federal court. Scalia wrote for a plurality and needed Stevens’s fifth vote for the judgment. Stevens penned a separate concurring opinion. The two feuded over legal reasoning, and by the time Scalia was done answering Stevens’s escalating arguments he had crafted a whole separate section of his opinion that opened with the sentence: “A few words in response to the concurrence.” Several hundred words followed.

As they poked holes in each other’s rationale, Scalia charged Stevens with being “unfaithful” to statute and “greatly exaggerat[ing]” how Scalia had spurned a precedent. Stevens labeled Scalia’s legal test “empty” and said his interpretation of the disputed law was “not much more determinative than mine.” The case had been argued on Nov. 2, and some of this back-and-forth likely led to its being unresolved for nearly four months.

Their dueling rhetoric contributed to the delay in Citizens United v. Federal Election Commission, which came out January 21, after the case had been argued in September and put on a fast-track of sorts. As I noted in an earlier post (Jan. 24), Stevens devoted much of his dissenting opinion in that case to Scalia’s concurrence. (Justice Anthony Kennedy had written the majority opinion.)

Stevens, 89, and Scalia, 74, are two of the more intellectual members of the bench, and they like and respect each other. Scalia revels in this verbal jousting. Stevens finds it more wearying. “He’s got to have the last word,” he once told me of Scalia. “But is it really worth it?”

I think they’ll both miss it when Stevens is gone.

Justice Scalia has been voicing his disdain for legislative history for a quarter century now. Today we celebrate the latest case in point — and his birthday.

Scalia does not believe federal judges trying to interpret a statute should look to congressional committee reports, floor speeches and other artifacts of the legislative process. He says judges should look solely at the text of the law and related statutes to determine Congress’s intention.

With his usual punch, he reminded his colleagues this week of that view, in the case of   Milavetz, Gallop & Milavetz v. United States, regarding a 2005 bankruptcy law. Scalia joined the majority in a two-part decision that said the law barring certain professionals from advising clients “to incur more debt in contemplation of” filing for bankruptcy applies to attorneys, and that the law can be narrowly construed to avoid a First Amendment violation. But Scalia took exception to footnote 3 of the decision Justice Sonia Sotomayor wrote for the Court.

Sotomayor opened footnote 3 by declaring that, “Although reliance on legislative history is unnecessary in light of the statute’s unambiguous language, we note the support that record provides for the government’s reading.”

In his concurring opinion, Scalia countered, “The Court acknowledges that nothing can be gained by this superfluous citation … But much can be lost. Our cases have said that legislative history is irrelevant when the statutory text is clear. The footnote advises conscientious attorneys that this is not true, and that they must spend time and their clients’ treasure combing the annals of legislative history in all cases: To buttress their case where the statutory text is unambiguously in their favor; and to attack an unambiguous text that is against them. If legislative history is relevant to confirm that a clear text means what it says, it is presumably relevant to show that an apparently clear text does not mean what it seems to say. Even for those who believe in the legal fiction that committee reports reflect congressional intent, footnote 3 is a bridge too far.”

Beginning in the mid-1980s, after he became an appeals court judge yet remained on the academic lecture circuit, Scalia regularly spoke out against legislative history. In one stock speech (a signed copy of which is in the University of Chicago law library), he contended, “The use of legislative history to give meaning to a statute is a relatively new development in our common-law system.”

And in a metaphor tied to the maturation of certain creatures that somehow seems apt as we today celebrate his 74th year, Scalia continued, “Some creatures that seem pleasant and tractable in their infancy – tiger cubs, for example – are better abandoned when they reach their full natural development. Now that legislative history has reached its adulthood, perhaps it is time to reconsider whether we want to live with it.”

Many happy returns, Justice Scalia.

“Have you ever heard a turkey gobble?” Justice Scalia asked me during a visit to his chambers. “It’s a very strange sound, like a wooden rattle. [You] hear that far away and then make sounds like a hen to induce [the turkey] to come closer and closer. Finally, he sticks his head over a log, and you have to take your shot, or else you’ve lost him. Turkeys are very wily creatures. They have superb eye-sight and they’re very cautious. You get one shot. If you miss, the whole day’s ruined.”

In anticipation of  tomorrow’s arguments in the Supreme Court’s new Second Amendment case, it seems fitting to recall how Scalia, author of the Court’s 2008 Second Amendment case, explains his love of hunting: “It gets me outside of the Beltway, gets me into the woods, far away from all this stuff… [Hunting] gives you an objective for … getting there in darkness and watching the woods gradually lighten up, or being knee deep in cold water in the marshes and watching the rosy sunrise. It’s wonderful.”

Justice Scalia took a leading role in District of Columbia v. Heller, which established for the first time an individual right to bear arms. Yet, another piece of Scalia’s writing has also drawn attention on this second round of the Second Amendment. In his commentary in the 1997 book A Matter of Interpretation, edited by Amy Gutmann, Scalia included in a footnote about the Second Amendment: “Of course, properly understood, it is no limitation upon arms control by the states.”

And, of course, that goes right to the question in the case to be argued Tuesday, McDonald v. City of Chicago: whether the new right to keep guns in the home for self-defense extends to states, or applies only to regulation by the U.S. government and its enclaves, such as Washington, D.C., whose handgun ban was struck down in 2008. (For an overview of the new case, see my preview story here. For an article highlighting Scalia’s 1997 comment about whether the Second Amendment is incorporated against the states, see this story by Jess Bravin in the Wall Street Journal.)

In Scalia’s commentary of more than a decade ago, his references to the Second Amendment rested on where lower U.S. courts were at the time. Judges largely considered the right to bear arms to cover state militia, such as the National Guard, not individuals. So Scalia also wrote in his 1997 commentary, “[W]e value the right to bear arms less than did the Founders (who thought the right to self-defense to be absolutely fundamental), and there will be few tears shed if and when the Second Amendment is held to guarantee nothing more than the state National Guard.”

But that never happened. Five conservative justices, led by Scalia, held that the Second Amendment right covered individuals seeking to protect themselves in their homes. Because of that ruling in Heller, I believe that it is now unlikely that Justice Scalia will hew to the view that the Second Amendment is “no limitation” on the states. Scalia is only becoming more influential on this Court. I doubt he would pass up – with this new guns case — another good shot.

As legal commentators continue to debate last Thursday’s decision in Citizens United v. Federal Election Commission, I want to add a few observations related to Justices Scalia and Stevens. As Stevens read his poignant — sometimes halting — dissenting statement from the bench, he noted that the “seed that flowered” in the majority opinion had been planted by dissenters in the 1990 Austin v. Michigan Chamber of Commerce. In his written opinion Thursday, Stevens took specific aim at Scalia– an architect of the view that prevailed last week.

The majority decision was penned by Justice Kennedy, of course, yet Citizens United is another example of the success Scalia has enjoyed in recent years on the new Roberts Court. At one point, Justice Stevens wrote, “All of the majority’s theoretical arguments turn on a proposition with undeniable surface appeal but little grounding in evidence or experience, ‘that there is no such thing as too much speech.’” That quote is from Scalia’s dissenting opinion in Austin. Stevens went on to say, “In the real world, we have seen, corporate domination of the airwaves prior to an election may decrease the average listener’s exposure to relevant viewpoints, and it may diminish citizens’ willingness and capacity to participate in the democratic process.” Stevens then said in a footnote of the notion of “no such thing as too much speech”: “Of course, no presiding person in a courtroom, legislature, classroom, polling place, or family dinner would take this hyperbole literally.”

I’m not sure Scalia wouldn’t.

I was also reminded as the Court majority gave short shrift to Congress of something Justice Scalia had said during oral arguments in the case last September and of his overall view of the legislative branch. “Congress has a self-interest,” he told U.S. Solicitor General Elena Kagan. “We are suspicious of congressional action in the First Amendment area precisely because we – at least I – I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents. Now is that excessively cynical of me? I don’t think so.”

Well, maybe. Scalia cut his teeth in Washington in the Nixon and Ford administrations and, in the post-Watergate era, developed an antagonism toward Congress. He was constantly going up to the Hill to testify on behalf of executive privilege and against disclosure of White House documents. He sparred repeatedly with Sen. Edmund Muskie of Maine, U.S. Rep. Otis Pike of New York, and U.S. Rep. Father Robert Drinan of Massachusetts – all Democrats trying to pry information from the executive. I found in my research for American Original that Scalia’s experiences in the 1970s led him to enduringly value executive power and to consider Congress an adversary.

Finally, I’ve been asked for my take on some of the difficulty Justice Stevens’s had when he spoke from the bench last week. As he read excerpts of his dissent, going on for twenty minutes, he stumbled on some words. Tony Mauro wrote in the Legal Times blog that it was “painful” to hear Stevens speak, and Jan Crawford of CBS said she thought she was witnessing a “different” person. For my part, I thought Stevens’s mix of passion and weariness revealed his sense of the changed Court. As he began his remarks he observed that when he and Justice Sandra Day O’Connor jointly wrote a campaign-finance decision in 2003 (McConnell v. Federal Election Commission, rejecting a broad challenge to the McCain-Feingold law and the provision in dispute last week), they had begun with the belief that Congress could restrict corporate spending in elections. As Stevens spoke despairingly, he condemned the reversal of that notion. “The only relevant thing that has changed since Austin and McConnell is the composition of this Court,” he said in his opinion.

I know from my interviews with Justice Stevens that he considered retiring in the late 1980s, after he hit age 65. He stayed on the bench partly because of the role he thought he could play as the Court moved to the right with appointees of Ronald Reagan and the first President Bush. Stevens will be 90 in April. This time around, his options for the long-term are different.

The week is about to end without a ruling from the Supreme Court in Citizens United v. Federal Election Commission, regarding governments’ authority to regulate corporate and labor union spending in elections. Both sides have been anxiously awaiting a decision in the case that was argued last September and could affect big-money expenditures in this fall’s mid-term elections and all future races.

So sure were many campaign experts that the ruling was coming this week that they deluged reporters with notices of planned teleconferences and statements of how significant the decision was likely to be.

I cannot blame anyone for trying to predict the Court, especially when so much is at stake. But having gone through hundreds of once-private documents in judicial archives and seen how eleventh-hour switched-votes play out, I know how many factors can delay a case. A justice whose vote is crucial to the majority could be wavering. There could be an escalation in rhetoric between the majority and dissenting opinions. And those are just the predictable hold-ups.

I can recall numerous cases from my research on Antonin Scalia and Sandra Day O’Connor of flipped votes detected only after a justice’s private papers became public.

In the 1988 case of Bowen v. Massachusetts, between the federal government and states over Medicaid expenditures, Justice Scalia started with the opinion for the court but lost it when Justice William Brennan reconsidered competing legal rationales. One of the lawyers in the case told me recently that he wouldn’t have known that the outcome had changed if he hadn’t read about the behind-the-scenes maneuverings. Sometimes, there’s enough of a ‘we were robbed’ tone to the dissenting opinion to suspect that a justice changed his or her vote. But often the public opinions give no clue.

In the 1994 Holder v. Hall dispute over the scope of the landmark Voting Rights Act, Scalia started with the majority and the opinion for the Court, but then justices on his side began splintering off. Chief Justice William Rehnquist reassigned the opinion to Anthony Kennedy. That case, by the way, was argued on Oct. 3, 1993 and not decided until June 30, 1994. Could we be waiting for Citizens United until June?

I solved a mystery in the 1989 case of Wyoming v. United States, involving water rights for Native Americans on the Wind River Reservation, while I was doing research on O’Connor. The United States government, as a trustee for the tribes, had successfully contested a Wyoming state policy that voided the water rights. In its appeal to the Court, Wyoming claimed the rights had lapsed when the Indians failed to invoke them for irrigation or other projects. O’Connor was writing an opinion for a five-justice majority that sided with Wyoming and would deny the tribe water rights. As Justice Brennan began a draft of his dissent in the case, he referred to the Bible, “The Court might well have taken as its motto for this case the words of Matthew 25:29: ‘but from him that has not shall be taken even that which he has.’”

 But then suddenly everything changed. In late June, O’Connor sent a note to her fellow justices saying she had discovered her family’s Arizona ranch was named in a similar water-rights lawsuit, and she wanted to disqualify herself from the Wyoming matter. Without O’Connor’s vote, the Court was split 4-4 and the tie vote automatically affirmed the lower-court decision favoring the U.S. government as trustee for the tribes. The Court announced its resolution in one sentence. In private, O’Connor had closed her recusal note, which I first found in the papers of the late Justice Thurgood Marshall, with, “The unexpected has become the order of the day this term.” Maybe we’re in for another one of those terms.

When Citizens United finally is handed down, we’ll get some indication of what was happening. And then, years from now, if one of the justices makes his or her papers available – and if any of us are still around to read them – we’ll know much more. Those are big Ifs.

When I asked Justice O’Connor recently about when her archives might be available and if I might find some gems there, she said, “Don’t hold your breath.”

The Supreme Court heard a dispute in November testing whether the Eighth Amendment’s ban on cruel and unusual punishment prevents states from sentencing someone under 18 to life-without-parole for a non-homicide crime. (Read my preview story about the two cases from Florida and a recounting of the Court’s oral arguments.) A week after the arguments, through a coincidence, I was paired at a table at the National Press Club Book Fair and Authors’ Night with a man named R. Dwayne Betts, who had a role in the cases. Betts was at the Book Fair because he has written a memoir called A Question of Freedom about surviving and coming-of-age in prison. When he was 16 he committed a carjacking in Virginia. In his memoir, he recounts his eight-year prison experience and how he escaped into books and began writing essays and poetry. He has been out nearly five years and is now a graduate student. In the Supreme Court cases of Graham v. Florida and Sullivan v. Florida, Betts joined an amicus curiae brief with such other former juvenile offenders as actor Charles Dutton and former Wyoming Sen. Alan Simpson. “A sentence of life in prison without the possibility of parole, like a death sentence, extinguishes all hope that a juvenile offender might one day contribute to his or her community …” they said in their brief, siding with the Florida defendants and against the option of life-without-parole for juveniles. As it happened, Justice Anthony Kennedy, who is often a crucial swing vote, asked during arguments why juveniles — and not adults — should have “a constitutional right to hope.” The lawyer for one of the Florida youths serving life said, “the juvenile is different than the adult …. (and) has an inherent capacity to change.” The lawyer said minors should be allowed review of a life sentence and a chance for parole as they mature. A majority of the justices appeared torn over how to resolve the case. A ruling is likely by next spring.

Betts was a easy partner with whom to peddle books. Although we plainly appealed to two distinct sets of readers, we decided we could work together to pitch our books to the hundreds of people who filed past the tables piled with tomes, ranging from politics to cooking to wrestling. We told people we offered an inside look at the two ends of the criminal justice system, his at the ground, mine at the top of the appeal heap. We thought that if someone didn’t care for my subject, he might like his, and vice versa. We talked up our respective projects to potential buyers and to each other. In the end, we decided to buy a copy of each other’s book and inscribe it. Dwayne Betts wrote, “For Joan Biskupic, who was kind enough to share a table with me and will teach me about Scalia.”

A First for New Justice Sotomayor

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Justice Sonia Sotomayor, who joined the Court last August, issued her first written opinion today, in the case of Mohawk Industries v. Carpenter. (Read the decision, which also was the first of the Court’s current term.) The case, involving when discovery orders related to the attorney-client privilege may be appealed, had not been closely followed by reporters. But the decision caused a small stir in the press room today, simply because it was the new justice’s first and because it was not fully signed by all eight of her colleagues. Justice Clarence Thomas concurred in part and filed a separate statement disagreeing with some of Sotomayor’s reasoning.

Justice Thomas’s move prompted some old hands in the Supreme Court press corps to believe a tradition of collegiality had been broken. By longstanding practice, the chief justice usually assigns the new justice a case that all nine agree on and that can be written up without much difficulty. It’s a courtesy that helps ease a new justice into ways of the marble cloister.

But this tradition has been broken before.

When I was doing research for my biography of Sandra Day O’Connor, Justice Ruth Bader Ginsburg recalled what happened to her shortly after she had taken her seat in 1993. Chief Justice William Rehnquist assigned Ginsburg, as her first opinion, a case involving the Employee Retirement Income Security Act, a complex federal law covering worker benefits. The Court was split 6-3 in the case, John Hancock Mutual Life Insurance v. Harris Trust & Savings Bank.

Ginsburg went to Justice O’Connor with a complaint about the break in usual practice. “Sandra, how can he do this to me?” Ginsburg said to O’Connor.

“Ruth, you just do it, and get your opinion in circulation before he makes the next set of assignments,” O’Connor told her.

Of O’Connor’s no-nonsense, no-pity response, Ginsburg told me, “That is so typical Sandra.”

Today, it’s difficult to imagine that Sotomayor is truly perturbed that Justice Thomas broke off from part of her opinion for the majority. What likely matters to her is that history will record that the very first signed opinion of the 2009-2010 term bears this notation: “Sotomayor, J., delivered the opinion of the Court.”