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July 10, 2008
Legal Times Panel on ’07-’08 Term
I am in DC visiting family, and so I decided to attend the Legal Times’ panel “Sizing Up the 2007-2008 Supreme Court Term,” which was held this afternoon at Georgetown Law Center. It was an interesting panel. Tony Mauro moderated, and the speakers included Ted Cruz (who until recently was the solicitor general of Texas and now is at Morgan, Lewis & Bockius), Walter Dellinger (O’Melveny & Duke Law School), Pattie Millett (who recently left the US Solicitor General’s Office to join Tom Goldstein at Akin Gump’s Supreme Court practice), and Malcolm Stewart (a veteran assistant in the US Solicitor General’s Office whose oral argument recordings I’ve used to teach my students about appellate advocacy).
There were several great moments at the panel, including Stewart’s description of “the Two Courts.” The better-known Supreme Court issues 3 or 4 controversial decisions every term, often by a 5-4 margin, and its actions are reported closely by the NY Times and the Washington Post. The other Supreme Court decides more technical questions, such as the interpretation of statutes and federal rules, and its opinions remain largely unknown to the general public though they are in many ways the more important cases for the legal profession. Columnist James J. Kilpatrick once expressed this same concept in the following way ---“For every Roe vs. Wade, there are dozens of cases like Unitherm Food Systems Inc. vs. Swift-Eckrich Inc.”
Another highlight of the panel involved an interaction between Dellinger and Cruz. Cruz, who represented several amici in Kennedy v. Louisiana, was discussing the recent news that the majority opinion and the parties’ briefs failed to mention that US military law provides for the death penalty in child rape cases. (A story I blogged about last week.) Dellinger interrupted to observe that the media shouldn’t focus on a failing by the Court or the parties, but rather that Congress passed a bill, which the President signed, and yet no one in the legislature or in the White House seemed to realize that this provision existed. (Dellinger pointed out that the provision was introduced as a floor amendment to a 400+ page appropriations bill.) While the two panelists may have disagreed about whether the Court reached the correct result in Kennedy, they agreed that this obscure military law illustrated the absurdity in the Court’s death penalty consensus jurisprudence. Counting states and laws says little about public consensus when no one seems to know what laws are in place.
Posted by Carissa Hessick at July 10, 2008 12:48 AM
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Comments
The oversight by all the parties involved in the Kennedy v. Louisiana case points to a bigger issue. Since the ending of the draft, there is a major disconnect between the military and mainstream society. The average citizen is unfamiliar with the military or the laws by which it operates.
Posted by: Thaddeus Hoffmeister at July 10, 2008 06:34 AM
The second Supreme Court not only is unknown to the public, it also is unknown to Congress. That is why confirmation hearings, which focus on constitutional ideas in a narrow range of areas, have become so meaningless.
Posted by: Howard Wasserman at July 10, 2008 07:05 AM
I'm not sure you can generalize federal ignorance about what they are enacting to the states. My experience--admittedly in a low-population state (Montana)--has been that state legislators know what they are voting on and are pretty in touch with the views of their constituents. Also, don't many states have single-subject rules for legislation?
Posted by: Jennifer Hendricks at July 10, 2008 01:08 PM
That sounds like a good panel; wish it was on the Web.
I agree with the "Two Courts" model. In the CNN-level cases, the Roberts Court turns into the Kennedy Court:
http://www.concurringopinions.com/archives/2007/06/scotus_end_of_t.html
Posted by: Mike O'Shea at July 10, 2008 05:27 PM
thanks
Posted by: sex shop at July 19, 2008 02:29 PM
