This weekend when I was clearing out book shelves, trying to make room for new volumes, I discovered a little book about Arizona’s distinctive state Capitol and copper dome. I had bought it years ago when I was researching Sandra Day O’Connor. I believed her tenure as a state senator in the 1970s was critical to understanding the justice who so skillfully counted votes among the brethren, and I had gathered all I could find about Arizona state politics and the legislature during her time there. I somehow found even the architecture of the Capitol intriguing.

I thought I had cleared out all the Arizona works as I later acquired books on all things Italian for my Justice Scalia biography. This weekend, I discovered a few of those books still on my shelves, too. One that I knew I had resisted packing up was Luigi Barzini’s consummate work on Italians, whose sweep included the importance of spectacle and power of the family. Barzini offered many insights toward my subject and when I came across this line — “The vigorous passions of a turbulent and restless people are always ready to flare up unexpectedly like hot coals under the ashes” – it was only a question of where in American Original I’d use it.

Now, I am in the middle of researching a book using Justice Sonia Sotomayor’s life as the scaffolding of a broader story about Latinos and the law. This will not be a biography as the O’Connor and Scalia works were, so it is even more important for me to understand the parallels of her life and those of a people. My shelves are filling with volumes about Puerto Rican history, Latinos and the law, and nomination politics. Among my favorites so far, however, have been works of Esmeralda Santiago, a beautiful writer who was born in Puerto Rico and came here when she was thirteen.

I had not read Santiago before and I find her memoirs deeply moving, independent of anything related to my research. Santiago’s life story mirrors some of Sotomayor’s, including methods for catching up in school. Toward the end of When I Was Puerto Rican, Santiago reveals that as she tried to get used to life in Brooklyn, “Every day after school I went to the library and took out as many children’s books as I was allowed. I figured that if American children learned English through books, so could I, even if I was starting later. I studied the bright illustrations and learned the words for the unfamiliar objects of our new life in the United States: A is for Apple, B for Bear, C for Cabbage.”

Sonia Sotomayor was born in New York, yet as a child of Spanish-speaking parents, she similarly struggled with English. When Sotomayor hit a wall on language and literature at Princeton, she did what Santiago did. She turned to grammar books, vocabulary builders and the classics that other students had read when they were young. A grade-school chum of Sotomayor, also of Puerto Rican heritage, told me recently that the same was true for him. He put in the extra time in college to compensate and catch up. He said there really was no choice: you sought out what you needed or you wouldn’t move ahead.

Some of that holds true for an author: You read up. You learn all sorts of new things. And the discoveries keep you going.

Road Trip! What Reporters Still Live For

| | Comments Off

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.

Add another critic to the Supreme Court’s recent decision in Connick v. Thompson: Retired Justice Stevens on Monday night denounced his old colleagues for ruling that a former Louisiana Death Row inmate could not sue prosecutors who had concealed blood evidence that might have shown his innocence.

In that 5-4 case in late March, Justice Clarence Thomas wrote for the conservative majority and Justice Ruth Bader Ginsburg wrote for liberal dissenters. (I referred in an earlier post to Ginsburg’s passionate dissent from the bench in the case focused on prosecutors’ duty to turn over exculpatory evidence.)

On Monday night, at a New York dinner sponsored by the Equal Justice Initiative, Stevens said he thought Ginsburg had the better argument and called the facts of the Thompson case “shocking.” Stevens then criticized a separate opinion Justice Antonin Scalia had filed in Connick v. Thompson. Stevens, who stepped down last summer, said Scalia had “either overlooked or chosen to ignore the fact that bad faith, knowing violations [of the rule for turning over evidence] may be caused by improper supervision” in a prosecutor’s office, this one in New Orleans.

Stevens said “an overzealous prosecutor might … [make] it clear [to underlings] that violations of the rule — if undetected by courts — will never give rise to discipline and may even be rewarded. Prosecutors’ electoral incentives and the facts of this case demonstrate that such prosecutorial malfeasance is of more than hypothetical concern.” Stevens said judges should consider a new standard that would hold elected District Attorneys liable for flagrant violations of constitutional rights committed by their assistants.

I got a message last week that said: “Antonin Scalia is now following you on Twitter!” Despite our many years of interaction, I suspected this Scalia wasn’t the real one. I know he has an iPad and is pretty digital for a 75-year-old who works in the cloister of the Marble Palace. But he’s no Justice Stephen Breyer, who has a Twitter account –although Breyer does call it the “tweeter thing”.

I confirmed with the Court that the Twitter-joining “Antonin Scalia” is not the opinion-writing one. And I couldn’t help but be reminded of other fake Scalias that have come my way over the years. There was the fish called Scalia that I learned about during research for a 2002 newspaper profile. A Louisiana State University student had named a pet fish after Scalia, but not with his well-known nickname “Nino.” Rather, the student named him “Justice Scalia” and went on to say that “Justice Scalia ate all the others” in the tank.

I discovered another pinching of the Scalia name when I was doing research on American Original and my father, a lawyer who played the ponies, saw a horse named Scalia in the Racing Form. My father observed that the sire was named Holy Bull and believed there must be a connection. When I asked Justice Scalia about it, he said he had never heard of the horse and doubted it had anything to do with him. Out of curiosity and as a nod to my late father, I followed up on that horse as I was finishing the book. I found the Lexington, Kentucky, breeder, who told me that the horse’s name was indeed a tribute to the justice. The breeder, it turned out, was especially pleased with result in Bush v. Gore. I don’t think this new “Antonin Scalia,” who’s been firing off some of his own tweets, is the same guy.

The Supreme Court decided a little reported dispute this week involving a California prisoner’s claim of deficient legal representation. It revealed justices’ competing views of when a state prisoner merits a federal hearing and how bad a childhood might have to be to make a difference in a death sentence.

By a 5-4 vote, the Court ruled against Scott Pinholster, convicted in 1984 of the brutal murders of two men, and reinstated the death sentence a lower U.S. appeals court had set aside. The issue was whether Pinholster’s trial lawyers had wrongly neglected to investigate his troubled childhood and psychiatric problems that, if related to the jury, might have gotten him a life sentence, rather than death.

Justice Clarence Thomas, joined by fellow conservatives, wrote the Court’s opinion, reversing the 9th Circuit’s view that evidence of Pinholster’s mental problems could have brought Pinholster leniency. Justice Sonia Sotomayor wrote the main opinion for liberal dissenters. In one of the more caustic verbal swaps this term, the two justices accused each other of dishonoring precedent and a “fundamental misunderstanding” of standards for a prisoner challenging the constitutionality of his case. Sotomayor questioned how fair-minded jurists could reach the “harsh” result of the majority. Thomas deemed some of her reasoning “grounded in little more than her own sense of ‘prudence.’”

And the first Hispanic justice and second African American justice, who both saw more poverty in their youth than most members of the bench, drew contrasting views of Pinholster’s childhood. This was how Thomas recounted it: “When he was very young, Pinholster suffered two serious head injuries, first at age 2 or 3 when he was run over by a car, and again at age 4 or 5 when he went through the windshield during a car accident. When he was 5, Pinholster’s stepfather moved in and was abusive, or nearly so.”

Or nearly so? That’s not how Sotomayor saw it. First, she noted that in the first car accident, Pinholster’s mother ran over him. Regarding the stepfather, Sotomayor added that he “beat (Pinholster) several times a week, including at least once with a two-by-four board. There was so much violence in the home that Pinsholster’s brother dreaded coming home each day. Pinholster’s half sister was removed from the home as a result of a beating by his stepfather.” Sotomayor also wrote that, “a relative remembered seeing the children mix together flour and water in an attempt to get something to eat.”

A key question was whether, given the mitigating evidence of his background, there was a “reasonable probability” that at least one juror would have thought Pinholster did not deserve the death sentence. Yes, insisted Sotomayor, joined in her dissenting opinion by Justices Ruth Bader Ginsburg and Elena Kagan. “Had counsel conducted an adequate investigation, the judge and jury would have heard credible evidence showing that Pinholster’s criminal acts and aggressive tendencies were attributable to a disadvantaged background, or to emotional and mental problems,” Sotomayor wrote. “They would have learned that Pinholster had the kind of troubled history we have declared relevant to assessing a defendant’s moral culpability.” (Justice Stephen Breyer dissented separately.)

Justice Thomas (joined by Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Samuel Alito) concluded Pinholster should never have won a new hearing in federal court. Thomas said that that telling the jury about all the Pinholster family problems might, in fact, have backfired. Wrote Thomas: “The new evidence relating to Pinholster’s family — their more serious substance abuse, mental illness, and criminal problems — is … by no means clearly mitigating, as the jury might have concluded that Pinholster was simply beyond rehabilitation.”

 Two views: simply beyond reconciliation.

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.

Justice Scalia lost it Monday in Michigan v. Bryant. As the majority ruled that a gunshot victim’s dying words to police could be used at trial against the alleged shooter, Scalia erupted. “[T]oday’s decision is not only a gross distortion of the facts. It is a gross distortion of the law—a revisionist narrative … at least where emergencies and faux emergencies are concerned.”

The majority opinion, written by Justice Sonia Sotomayor, said the victim’s statements identifying defendant Richard Perry Bryant – as the victim bled in a gas station parking lot — were made in an emergency situation and not “testimonial.” So allowing them at trial did not violate the Sixth Amendment’s Confrontation Clause, which guarantees that a defendant may confront his accuser.

Scalia’s anger and frustration were palpable. That’s because this is one area where Scalia had made progress over the past decade with his originalist approach, to narrow the grounds for exceptions to the confrontation guarantee. In an important 2004 case, Crawford v. Washington, he wrote the Court’s opinion making it harder to bring into trial past statements of witnesses who could not be cross-examined (for example, because they had died or invoked a privilege) even when the statements seemed reliable.

Scalia protested any exceptions to a rule that he said reflected the Framers’ understanding: “testimonial statements of witnesses absent from trial (may be admitted) only where the defendant has had a prior opportunity to cross-examine.”

In my interviews with Scalia, he called the Crawford case “one of the ones I’m most proud of – bringing the Confrontation Clause back to what the people thought it meant when they adopted it.” Scalia, not typically a friend of criminal defendants, took pride in saying he could disregard the social policy consequences (i.e. critical testimony against the shooter is kept from trial) of his originalist view.  On Monday, he suggested the court lacked “the courage” to persist in an unpopular series of cases that conflicted with the justices’ “policy preferences.”

He wrote alone in the 6-2 case (Justice Elena Kagan recused). The only other dissenter, Justice Ruth Bader Ginsburg, said she agreed with Scalia that the majority was creating “an expansive exception to the Confrontation Clause for violent crimes.” But she aired her protest in a page and a half. Scalia took 17 pages, and as Orin Kerr observed Monday, Scalia’s dissent was “blistering even by Justice Scalia standards.”

The Supreme Court case of Snyder v. Phelps, brought by a bereaved father against anti-gay demonstrators who protested the funeral of his Marine Corps son, was heard the first week of the term, on October 6, and we still don’t have a decision. So a recurring question as I visited law schools this February recess was: What’s holding up Snyder v. Phelps?

I recall several possible sticking points from oral arguments (transcript here; story here) but have been reminded of one particular issue at the heart of this free speech dilemma by a fascinating new paper (“They Saw a Protest”) using Westboro Church video. Yale Law Professor Dan Kahan and his colleagues who wrote the paper showed Westboro protest video to people but edited it so that half of their subjects thought they were seeing an anti-abortion protest at a health clinic and half thought they were seeing a protest against “don’t ask, don’t tell” in front of a campus recruitment center. At the core of the study — part of the Cultural Cognition Project — was the notion that people tend to form perceptions and to process facts based on their own values. And Kahan and his four co-authors found in their new experiment that what people might “see” in a video depends on their own views and values.

As they wrote, “Our subjects all viewed the same video. But what they saw – earnest voicing of dissent intended only to persuade, or physical intimidation calculated to interfere with the freedom of others – depended on the congruence of the protestors’ positions with the subjects’ own cultural values.”

In the real case at the Court, involving a 2006 protest by fundamentalist pastor Fred Phelps and his Westboro followers, Albert Snyder is trying to win reinstatement of a $5 million jury verdict for the distress he suffered from the demonstration at his son’s funeral.

One major sticking point for Snyder arises from a 1988 precedent, Hustler Magazine v. Falwell, that warns about jurors’ values and subjective assessments of offensive speech — and that applied a standard making it difficult to obtain damages for the infliction of emotional distress.

During oral arguments, Justice Elena Kagan referred to Huster‘s caution about jurors’ views of “outrageousness in the area of political and social discourse.” She highlighted “one sentence [in Hustler] that is key to the whole decision” that cautions against allowing “a jury to impose liability on the basis of the jurors’ tastes or views.”

Snyder’s lawyer tried to steer the justices away from the Hustler framework and, to questions from Kagan and others, emphasized the context of a military funeral and the “targeted nature of the attack on the Snyder family.”

The justices return to the bench next week and we may soon see in a decision (and dueling opinions) just what consumed the justices over the past several months and what exactly they saw in this protest.

Scalia, Stanley Fish and a Memorable Sentence

| | Comments Off

In the first chapter of Stanley Fish’s new book, “How to Write a Sentence: And How to Read One,” he extols a sentence from Scalia’s dissent in Lee v. Weisman, the 1992 case in which the majority said prayer at a Providence, R.I., middle school graduation violated the required separation of church and state. Fish notes that the Court majority referred to the “psychological coercion” of students in attendance, and he continues, “This was too much for Justice Scalia, who, after citing a fellow jurist’s complaint that establishment clause jurisprudence was becoming so byzantine that it was in danger of becoming a form of interior decorating, got off this zinger: ‘Interior decorating is a rock-hard science compared to psychology practiced by amateurs.’”

Of those twelve words, Fish writes, “The sentence is itself a rock thrown at Scalia’s fellow justices in the majority; it is a projectile that picks up speed with every word; the acceleration is an effect of the two past participles ‘compared’ and ‘practiced’; their economy does not allow a pause or a taking of a breath, and the sentence hurtles toward what is both its semantic and real-life destination: the ‘amateurs’ who are sitting next to Scalia as he spits it out.”

Fish says his appreciation of Scalia’s sentence does not relate to the merits of the dispute. Rather, Fish writes, “It is the pleasure of appreciating a technical achievement … Scalia’s ability to load, aim, and get off a shot before his victims knew what was happening.”

And in the world of great sentences and neat coincidences, Fish notes, as an aside, that Daniel Weisman’s challenge – on behalf of his 14-year-old daughter Deborah — was to the same middle school Fish attended as a boy.

Antonin Scalia, past and present, had a starring role at today’s Supreme Court arguments in Federal Communications Commission v. AT&T. And I couldn’t help but be reminded of Scalia’s past views on the Freedom of Information Act, views definitely off-stage.

As I explain in this article, the FCC was appealing a lower court decision that would allow corporations to claim a “personal privacy” exemption under the FOIA law intended to make government more transparent. That exemption traditionally has been given only to individuals for potentially embarrassing situations.

In the government’s brief and at a couple of points Wednesday, the attorney for the FCC invoked a 1975 memo by former Attorney General Edward Levi (for whom Scalia worked in the mid-1970s) supporting the view that the disputed provision did not cover corporations. Scalia declared Wednesday that that view had stuck.

The FCC also in its brief had quoted then-Professor Scalia from 1981, testifying that FOIA’s exemption for unwarranted invasions of  “personal privacy” protects only individuals.

But what went unsaid — and wasn’t relevant to the case — was Scalia’s long-held opposition to FOIA before he became a judge. In the 1970s, he derided the law as costly and a distraction for government workers asked to fulfill public requests for information. He said the act’s flaws “cannot be cured as long as we are dominated by the obsession that gave them birth — that the first line of defense against an arbitrary executive is do-it-yourself oversight by the public and its surrogate, the press.” Scalia was among a small band of Ford administration officials, including Dick Cheney, who fought the FOIA amendments Congress adopted in 1974.

Years later at a congressional hearing, Scalia, as professor, explained his continuing opposition to FOIA by referring to a Peanuts cartoon that “one of the more philosophical” of his children had brought to his attention:

“A worldly wise and somewhat overbearing Lucy asks the good-hearted and somewhat naïve Charlie Brown, ‘Charlie, what would you rather do, be captain of the baseball team or marry the cute redheaded girl?’ And Charlie replies innocently, ‘Why can’t I do both?’ to which Lucy responds, ‘It’s the real world, Charlie Brown.’”

That was Scalia, aligning himself with cynical Lucy and telling lawmakers they were in the real world, which, he argued, “imposes choices, even ultimately upon a good-hearted and well-intentioned government.”