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.

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.

Road Trip! What Reporters Still Live For

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When I started in this business ages ago, it wasn’t unusual to hear a reporter say, “I can’t believe I get paid for this.” This was in the days when most of us – even law and government reporters — were regularly on the road, visiting the scene of the crime, so-to-speak, covering live events, traveling with officials, talking to real people. News organizations don’t have the money they had for travel, and the time pressures of filing for the Web make it impossible to linger anywhere.

In my early years on the Supreme Court beat, I used to go to the locales of all the big cases each term. I’m thinking of places in the 1990s such as Hialeah, Fla., for people practicing Santeria, or Denver, for Richard Evans, one of the challengers to the anti-gay rights Amendment 2. This term, I drove up to York, Pa., to interview Albert Snyder, father of the Marine whose funeral was picketed by anti-gay fundamentalist pastor Fred Phelps. But for other people in this term’s marquee cases (the women of Wal-Mart, video game producers), I’ve mostly stuck to the phone.

I was reminded this week of the thrill of actually going somewhere for a story when I covered the first U.S. appeals court hearing on the Obama-sponsored health-care law. Now, it meant only a two hour drive down I-95 to Richmond, Va., to a courthouse even older than that one I’m at every day, to listen to people in the same black robes. But it was truly exciting to see a new set of players, to hear how they would react to this landmark law, and to experience the atmospherics of this political and legal battle.

Eager to check out any early action, I left my hotel at 6:30 a.m. and ran over to the courthouse to see if people might already be lining up for the 9:30 morning session (they were!) and whether TV satellite trucks had started getting into place (yes). Then I went back to the hotel to wait for the 7:30 a.m. announcement of the names of the three judges on the panel. The U.S. Court of Appeals for the Fourth Circuit is one of only three appeals courts that wait until the day of the hearing to announce the judges. (The Seventh and Federal Circuits are the others.)

When I saw the names go up on the Fourth Circuit’s web-site, I couldn’t believe the luck for the Obama administration in this random draw: three Democratic appointees. I also didn’t trust what I was reading. I kept looking at it and checking my notes of the circuit judges’ biographies. (I even called the clerk’s office to double-check.) Shortly after 8 a.m., I filed a story for our newspaper’s web-site, letting readers know the judges who would be hearing the case, providing a little about the arguments expected, and offering some of the color already emerging, e.g., long lines, rallies, press conferences.

I had told my editor that I wasn’t sure whether I would be able to predict the outcome of the dispute based on the oral arguments, but after more than two hours in the Richmond courtroom, I felt confident that we could say that the administration would likely win. As soon as presiding Judge Diana Gribbon Motz closed the hearings, I was out the courtroom door, down a flight of steps, on the street, and heading back to the hotel to quickly file an update. It was just about noon (check-out time) and I begged the indulgence of the maids for an extra 30 minutes. It occurs to me only now, as I recall all that raced through my mind at the time (how much of the give-and-take to put in this first draft, whether to stay in Richmond and wait for the 2 p.m. release of the court’s audiotape, or drive back to my D.C. office  …. how much more of a tip to leave for the maids), that I never thought bigger news was happening anywhere else. But of course it was. Everywhere. From the Mideast, to the Mississippi River, to Maria and Arnold. The health-care arguments didn’t make the front page of any big paper. But that didn’t matter to me, at the time or now.

After I filed my update of the arguments, I drove back to Washington, listened to the audio tape, re-wrote our main story and added a little side-story on the broccoli discussion. I was happy for what readers I could draw and simply glad I had been there. My journalism colleagues rarely say anymore that they can’t believe they get paid to do this job. We talk more about pay freezes and lay-offs. On nearly a daily basis, we question whether we should stick with this work or move on. But for some of us, the chase is still there. My mantra (at least this week): If the news industry sinks, I’m going down with the ship.

An editorial assistant from Farrar, Straus & Giroux wrote last week to say he was clearing out old correspondence and drafts associated with American Original and to ask whether I wanted anything saved. With the Antonin Scalia biography securely in hard-cover and about to be in paperback (September 1), I said don’t bother. But, I said, if you come across the original Herblock cartoon I acquired for the photo insert, save it.

I worked with the legendary Washington Post cartoonist Herb Block for eight years and was a fan of his work and even greater admirer of the man himself. He died in 2001 at age 91. I used an iconic drawing of his in the Sandra Day O’Connor biography. The cartoon showed Lady Justice lifting her blindfold to see a robed woman ascending the Court steps. “Well, it’s about time,” Lady Justice is saying. The Herblock I used in the Scalia book was drawn in 1996 after the justice appeared at an event sponsored by the Christian Legal Society at a Mississippi law school. Scalia criticized the “worldly wise” who might mock “true believers.” As controversy over Scalia’s speech boiled up, Herb sketched him on the bench reading the Bible and fuming about “worldly wise guys.”

Recalling that cartoon last week nicely coincided with a question from Touro law professor Marty Schwartz, who was a panelist with me at a recent legal conference in New York. Marty, who has an extensive collection of law-related cartoons, asked me about a Jim Morin drawing I had cited in a chapter on Scalia’s views related to affirmative action and other racial policies. The cartoon was published in the Miami Herald in 1988 after a conservative Court majority had voted to reconsider the reach of a longstanding civil rights law. Morin linked the action to President Reagan, who had appointed most of the justices in the majority, and drew a caricature of Reagan sticking his tongue out at Abraham Lincoln in his chair at the memorial. Under the headline “Supreme Court Votes to Reconsider Major Civil Rights Law,” Lincoln looks distressed. (The Court’s action had come in a case of Patterson v. McLean Credit Union. As it turned out, the justices in 1989 did not significantly scale back the civil rights law in question, even as they voted against the African American woman alleging harassment on the job.)

After reading about the cartoon in American Original, Marty tried to find the Morin work in various Internet cartoon-banks. He turned up other Morin cartoons on race and even one related to the Patterson case, yet not the cartoon I mentioned.

I knew it was unlikely that I had personally clipped the 1988 cartoon, but I also knew I wouldn’t have referred to a drawing I hadn’t actually seen. I suspected I had found and copied it from a justice’s files during research.

In a quick search of the plastic bins stacked in the basement under the ping pong table (the Library of Congress I am not), I found my Patterson files. And there was a cartoon Justice Harry Blackmun had included among his personal conference papers on the case. Blackmun had saved Morin’s cartoon along with newspaper editorials denouncing the conservatives’ vote to review the longstanding law. It endures, even beyond the Internet. I made a copy for Marty and dropped it in the mail.

For years, Supreme Court justices, lower court judges and law professors have argued over the merits of Scalia’s approach to constitutional interpretation. Yet last weekend in a commencement speech at Harvard, retired Justice David Souter offered a powerful counterpoint to “originalism” that might eclipse those arguments by virtue of the setting and timing.

 “Even a moment’s thought is good enough to show why it is so unrealistic,” Souter said in his dry, direct manner. “The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches. … But this explanation hardly scratches the surface.”

Speaking before thousands of graduates under a blue sky, he added that, “The reasons that constitutional judging is not a mere combination of fair reading and simple facts extend way beyond the recognition that constitutions have to have a lot of general language in order to be useful over long stretches of time. Another reason is that the Constitution contains values that may well exist in tension with each other, not in harmony.”

It is precisely that tension that brings cases to the marble steps of the nation’s highest court. Scalia has always professed that his approach — tied to the 18th Century understanding of the text — is straightforward, even easy, because the answers are right there and judges’ values need not enter the mix.

Souter dismissed that out of hand and concluded: “The fair reading model fails to account for what the Constitution actually says, and it fails just as badly to understand what judges have no choice but to do. The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another. …. Judges have to choose between the good things that the Constitution approves, and when they do, they have to choose, not on the basis of measurement, but of meaning.”

Now, debate over originalism is hardly new. Justice Breyer wrote a whole book, Active Liberty (2005), countering Scalia. And two years ago, in a case testing whether the Second Amendment holds an individual right to bear firearms, District of Columbia v. Heller, originalism was the backdrop. Scalia prevailed with his reading for an individual right to handguns. In dissenting opinions, both Justice Breyer and Justice Stevens (from different angles) wrote at length against Scalia’s interpretation. Justice Souter, who was still on the Court then, dissented but did not write separately.

Yet now, retired and shed of his robe and the yoke of a particular case, Souter in a single speech may be more effective against Scalia’s originalism.

Washington Post columnist E.J. Dionne, who wrote admiringly of Souter’s Harvard speech, says it has received far too little attention. But I would bet that changes.

Souter’s timing seems just right. We are entering a confirmation season (Elena Kagan’s Senate Judiciary Committee hearings begin on June 28), and large constitutional questions will be in the air. We are also nearing the end of another Court term. Among the many awaited cases is one (McDonald v. City of Chicago) requiring further interpretation of the Second Amendment.

Souter’s sharp words, delivered while wearing a cap and gown, rather than a black robe, are likely to reverberate louder.

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.

I received enough reaction from the post on that snowy February 10 regarding whether journalists should call law clerks for information that I have a sequel. (See “But Would the Supreme Court Law Clerk Have Taken My Call?”)

University of Texas Law Professor Scot Powe, who clerked for William O. Douglas during the 1970-71 term and whose latest book is The Supreme Court and The American Elite, told me that reporters called him on the direct line into his office at the Court. He was not sure how they got the number. Powe said the reporters sought clarification of an opinion, rather than gossip about behind-the-scenes maneuvering. He said he tried to help when he could, without compromising confidentiality. Other former clerks told me they might have taken a journalist’s call — not on the substance of cases but on some of the social dynamics at the Court, for example, from the clerks’ end-of-term skit or, more seriously, regarding ideological maneuverings by clerks. That latter theme of the late 1980s was brought out publicly by former law clerk Edward Lazarus (who worked for Harry Blackmun) in his book Closed Chambers. Some justices were furious about that 1998 book, which had the subtitle: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court.

In my earlier post, I referred to memos filled with apprehension and anger over The Brethren by Bob Woodward and Scott Armstrong. That 1979 classic relied on scores of law clerks and five of the justices for inside information. I’ve collected other internal memos through my years of research that show how intensely justices act in response to any report that lifts the veil.

Sandra Day O’Connor, who served 1981-2006, was among those who reacted most negatively to disclosures. She took the lead with then-Chief Justice Rehnquist in 1990 to try to get retiring Justice William Brennan not to turn over files to researchers. Three years later, she and Rehnquist were among the most agitated when the papers of Thurgood Marshall were opened at the Library of Congress. I was part of the Washington Post team that discovered the documents and used them for a four-part series published in May 1993. The stories about the once-private exchanges among the justices generally made the Court look good. We noted that, “The exchanges are serious, sometimes scholarly, occasionally brash and personalized, but generally well-reasoned and most often cast in understated, genteel language.” Yet the series also revealed internal deliberations, including O’Connor’s changed views and votes on abortion rights.

After the Post series began, Rehnquist drafted a letter to Library of Congress director James Billington that said, “I speak for all of the active Justices of the Court when I say that we are appalled by the Library’s decision to open to the public Justice Thurgood Marshall’s papers….” O’Connor echoed that sentiment in a memo back to Rehnquist and told him, “Perhaps the final sentence could state that the failure of the Library to consult with and to consider all the ramifications and effects of granting such an early release of confidential materials may discourage future grants of judicial papers to the Library of Congress.” Other justices, however, including Byron White and Anthony Kennedy, thought that the LOC had done exactly what Marshall, who died earlier in 1993, had wanted. Those justices would not endorse Rehnquist’s rebuke, and, in the end, the chief justice revised his letter to say he was speaking for only a “majority of the active Justices,” not “all of the active Justices.”

In 2004, the files of the Justice Blackmun were made public at the Library of Congress. They were exceedingly valuable to researchers because, as Linda Greenhouse wrote in her biography of Blackmun, he chronicled “his life and the world around him in astonishing detail.” He saved virtually every piece of correspondence he received — to the chagrin of some of his colleagues, whose personal thoughts can now be copied for 20-cents a page at the LOC. After that, O’Connor said it would be a long time before another justice’s files were open to the public.

Since then, some of the papers of Rehnquist, who died in 2005, have become available at the Hoover Institution on the campus of Stanford University. And as I noted in an earlier post, Justice O’Connor has warned about the opening of her files: “Don’t hold your breath.”

One final note on the subject of bypassing justices and trying to get current law clerks to talk: After my earlier post, I heard from reporters who said they were thinking about being more aggressive about calling clerks. Well, I wouldn’t want that! It goes without saying that I’m not trying to spur anyone to a more competitive advantage. And for any law clerks out there waiting for the call (as the professor who started all this was): Remember me, please.