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Category: Supreme Court

9

Supreme Court Clerk Feeder Judges And Snaring Those Clerkships When You Didn’t Go To Yale

ladder.jpgFor the many of us who teach at solid, but not top 10, law schools, one big challenge is figuring out a way to get our graduates Supreme Court clerkships. Each year, a handful of students – and sometimes a very small handful – from the law school hoi polloi find their way into a Supreme Court clerkship. How do they get there?

The first thing any aspiring clerk needs is a list of feeder judges. Stuart Buck provided this list. Note that it covers a long period – 1989 to 2005 – and there have been shifts over time. Still, it gives insights into highly desirable clerkships (for Supreme Court feeding purposes) and shows particular hiring patterns.

But what else can a student do to make the move from, say Alabama (or any other similar school) to a Supreme Court clerkship? The first requirement, naturally, is that the student do exceptionally well – probably top two or three in the class. It also helps if they pile on the achievements; relatively few valedictorians are also Editor-in-Chief of the Law Review. While they’re at it, they might work with a law professor, assuring an excellent, detailed letter of recommendation. And it wouldn’t hurt to publish a note (or two.) That’s all for starters.

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9

Big Judicial News: Michael Luttig Resigns

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The Supreme Court has lost its biggest law clerk feeder. Michael Luttig, a conservative Fourth Circuit judge who many expected to receive a Supreme Court nod, is leaving the bench to become general counsel to Boeing.

This is big news in many respects. For law students, the single most reliable path to the Supreme Court has closed. While I do not have hard numbers on this, I believe that for at least the last six or seven years, all – or virtually all – Luttig clerks have landed Supreme Court clerkships. This is an awesome statistic. There are always a few judges with very high rates of law clerk placement, but I am not aware of a single judge who has offered the certainty of Judge Luttig. Of course, the Luttig trail was not open to all comers. Luttig vetted his clerks to make sure they were in tune with him ideologically.

For Supreme Court watchers, this means that the odds of a Luttig nomination have just dropped measurably. I suspect that once Roberts and Alito took places on the Court, Luttig recognized that he could not be next. It seems virtually impossible to imagine that, if he gets another nomination, Bush will name a white male. Even if Bush gets two chances, Luttig’s odds have gotten long. Notwithstanding his experience on the Fourth Circuit, Luttig looks much less logical coming from a corporate slot then from a circuit court.

Fourth Circuit enthusiasts (and, as a former Fourth Circuit clerk, I count myself as one) will all watch to see if Bush actually manages to find and pick a nominee as conservative as Luttig. I think it will be awfully difficult to do, but it will be even harder to pick someone as ideologically consistent.

Make no mistake, though. This is big news. Judge Luttig was an important nominee for George G.W. Bush back in 1991. At 37, his appointment was a beachhead for movement conservatives. He was supposed to be on the Supreme Court. Bush’s two recent picks received strong support from the right. But a Luttig nomination would have triggered an entirely different sort of jubilation. For many judicial conservatives, Michael Luttig was a fellow traveler. He will be missed.

Hat tip to Howard Bashman.

4

Alito’s First Death Decision

Alitocollege.jpgSam Alito’s first SCOTUS opinion arrived yesterday and – if you see the world through Cass colored glasses – it’s a liberal one: the defendant won. The issue in Holmes v. South Carolina was whether:

a criminal defendant’s federal constitutional rights are violated by an evidence rule under which the defendant may not introduce proof of third-party guilt if the prosecution has introduced forensic evidence that, if believed, strongly supports a guilty verdict.

The trial court excluded evidence suggesting that a third party had confessed to killing 86 year old Mary Stewart. Why? On the grounds that the evidence against the defendant was so powerful that any evidence implicating the third party could not raise a reasonable inference that the defendant was innocent. To put it another way, the case against Holmes was so good that the state was allowed to exclude evidence that another guy did it. No need to bother the jury with messy details. The South Carolina Supremes thought this was a fine idea as well.

This didn’t look like a hard case to me and the 9-0 vote thankfully confirmed that feeling. If a defendant possesses reasonably relevant evidence on the issue of guilt, we generally let the jury hear it. When, as here, a judge keeps this information from the jury, he or she effectively decides the outcome of a case. In rejecting this policy as unconstitutional, Justices Alito and Roberts proved that whatever their ultimate ideological place on the Court, they are not completely off the deep edge.

More interesting to me, though, is what was missing from the decision. Alito did not note that this was a death penalty case. His opinion stated that Holmes received a death sentence after his first trial, and that this trial and sentence were reversed by a state court. But nowhere in the opinion did he say that this new appeal was also from a death sentence. Why is that? Perhaps it was an oversight. Or maybe Alito thought the underlying sentence was an unnecessary fact. If so, why did Alito note Holmes’ capital sentence after his first trial? Perhaps he didn’t want to highlight this as a death case. He might have felt uncomfortable reversing a death sentence in a heinous killing. Or maybe he didn’t want the case framed as a “death decision” – with all the attendant baggage – and instead cast it as a plain old evidence ruling.

This is a small detail to be sure, but Alito surely knew his first opinion would go under a microscope. The odds are that this omission was not strategic. But if it was, I certainly hope that it does not portend a broader willingness to omit uncomfortable facts.

11

Roberts’ And Alito’s Pragmatic Turn

In an otherwise mundane decision yesterday, Day v. McDonough, Justices Alito and Roberts joined a surprisingly pragmatic habeas corpus decision penned by Justice Ginsburg. The case involved a state prisoner who filed his habeas papers 23 days after the federal statute of limitations had run. A negligent attorney for the State of Florida, however, had miscalculated the time and the state conceded in briefs to the district court that the petition was timely. Fortunately (or unfortunately, depending on your perspective) a johnny-on-the-spot federal magistrate took out his abacus and discovered the error. He then dismissed the petition sua sponte.

The Supreme Court affirmed the per curiam decision of a conservative 11th Circuit panel (Pryor, Dubina and Tjoflat) holding that the district court was permitted to dismiss the case sua sponte on statute of limitations grounds. It held that the State’s waiver of the issue did not forfeit its statute of limitations claim. The issue is controversial because the Federal Rules of Civil Procedure generally provide that statute of limitations defenses are forfeitable. As Justice Scalia pointed out, the majority opinion “disregards the Federal Rules of Civil Procedure in habeas corpus cases chiefly because it believes that this departure will make no difference.” Scalia describes the holding as “novel presumption against” applying these rules.

On its face, the decision might be termed “conservative” because, well, the criminal defendant loses. (That is how Sunstein, at least, would probably classify it – based at least on his methodology in Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation.) But in fact this relatively loose play with the Federal Rules of Civil Procedure is pretty darn pragmatic. Scalia makes a good case that precedent and Congressional action both cut against this snubbing of the Federal Rules. Based on everything we’ve heard to this point, I wouldn’t have been surprised to see Roberts and Alito share Scalia’s skepticism. (And what about the uber pragmatist, Breyer? What’s he doing in bed with his nemesis?)

I’m neither a Supreme Court scholar nor a civil procedure buff. (I learned civil procedure from John Sexton, which means that I’d be an AWESOME law dean!) But does this configuration provide a hint – if only that – that Rolito (can I trademark that term, kind of like Three-peat?) will be more Rehnquist than Scalia? I guess we’ll just have to see.

Hat tip to a former student.

26

Looking Out Over the Crowd: A Moderate’s Take

In a previous post, I asked whether there was anything new to be said on the issue of the role of foreign and international law in interpreting the U.S. Constitution. Roger Alford wrote a thoughtful comment (also posted on Opinio Juris), laying out what he sees as some of the big issues that remain to be explored among scholars and courts. His post got me thinking: How will the debate over foreign and international law evolve over the next, say, ten years? And what will second-generation scholarship in this area look like? I, for one, hope it looks something like the following:

First, I hope we all tone down the rhetoric. Justice Ginsburg has a point when she blames the hysterical tone struck by many Congressmen (and, I would add, by Justice Scalia) for fueling the death threats that she and Justice O’Connor have received from the “irrational fringe”. On the other hand, she and others in the so-called “internationalist” camp surely deserve some of the blame for the ratcheting up of the rhetoric: They wrongly dismiss the democratic legitimacy concerns of those in the so-called “nationalist” camp as just so much neo-isolationist thinking. Is the simplistic, Crossfire-esque tone of the debate really helpful, and why does everyone feel the need to choose up sides? Am I an internationalist or a nationalist? I have no idea, because I don’t know what these labels MEAN.

Instead, I hope future debate on these issues becomes increasingly dominated by moderates, who reject these simplistic labels. In fact, the tide may already be turning: A recent editorial in the Washington Post called for moderation, and pointed out that “in the debate over foreign law, neither side has a monopoly on wisdom.” So what does a nuanced debate on the role of foreign and international law – one dominated by moderates in both camps — look like?

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11

Reading Justice Kennedy’s Tea Leaves

Scholars like myself who write on the formerly-arcane-now-bizarrely-fashionable issue of the role of international law in U.S. courts were sorely disappointed by Justice Anthony Kennedy’s keynote address a few weeks ago at this year’s Annual Meeting of the American Society of International Law. The past four years of ASIL having witnessed Justices Breyer, Ginsburg, O’Connor, and Scalia speak at length on the issue, Justice Kennedy departed from established tradition and instead gave the crowd a moving (even if somewhat depressing) speech on the dangers of genocide and our obligations as lawyers to do something about it. (Peggy McGuinness at Opinio Juris blogs about it here. Tony Mauro reports on the speech here.) He even declined to answer a question asking him for his views on using international law from none other than Anne-Marie Slaughter (former president of ASIL and now dean at Princeton), simply responding that “we should be judged by what we write.” But Justice Kennedy has not always been so reticent. In a speech just last year before the Eleventh Circuit Judicial Conference, he discussed at length the numerous international law issues before the Court, and defended the Court’s use of foreign legal sources in its decisionmaking.

All of which leaves me wondering: Has Justice Kennedy suddenly lost interest in the debate over the role of foreign and international law? What explains his reluctance to share his views? Have Congressional resolutions condemning the use of foreign authority in US courts lessened his enthusiasm for the practice? Have the diatribes of irresponsible politicians — inspiring death threats from those whom Justice Ginsburg calls the “irrational fringe” – played a role? In short, is Kennedy backing away from his now-famous statement in Roper: “It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom”? Or is it simply that the battle lines have now been drawn, everyone has chosen up sides in this Crossfire-esque debate, and so Justice Kennedy reasonably believed that there is nothing new to be said on the subject?

What does the CoOp crowd think? IS there anything new to be said on this subject? And will Justice Kennedy back away from Roper in future decisions?

7

Slapping Down Lower Courts

The Supreme Court has said, more than once, that it does not sit to review opinions, but rather judgments. See, e.g., Chevron USA v. Natural Resources Defense Council, 467 US 837, 842 (1984). But via a colleague, I just read February’s Ash v. Tyson Foods, which seems to offer a somewhat contrary (and fun) view. Ash is an employment decision case arising from the Eleventh Circuit. The plaintiffs (two African-American supervisors) won before a jury but lost on a variety of post-trial and appellate motions.

The Court’s short (4-page) per curium opinion reversed and remanded, even though it states that “[t]he judgment of the Court of Appeals, and the trial court rulings it affirmed, may be correct in the final analysis.” What, then, required intervention? First, the Court held that use of the word “boy” to refer to plaintiff may suggest animus given linguistic context, even in the absence of other racially charged language. More interestingly, however, SCOTUS criticized the Eleventh Circuit for its using particular language when determining whether asserted termination reasons were pretextual. The Eleventh Circuit had held that “Pretext can be established through comparing qualifications only when the disparity in qualifications is so apparent as to virtually jump off the page and slap you in the face.” This vivid phrasing irritated the Court, which held:

The visual image of words jumping off the page to slap you (presumably a court) in the face is unhelpful and imprecise as an elaboration of the standard for inferring pretext from superior qualifications. . . This is not the occasion to define more precisely what standard should govern pretext claims based on superior qualifications. Today’s decision, furthermore, should not be read to hold that petitioners’ evidence necessarily showed pretext. The District Court concluded otherwise. It suffices to say here that some formulation other than the test the Court of Appeals articulated in this case would better ensure that trial courts reach consistent results.

Weird result. What is wrong with the “slap you in the face” test? I just don’t see how it is less precise than phrases like “shocks the conscience,” “reasonable person,” or “deliberate indifference.” Is the lesson here, for Circuit Courts, that opinions that sound more legal are less likely to face review? Hmm. Perhaps we can see Ash as a datapoint in a new trend against the pressures to make opinions more marketable that I talked about here?

17

Has Scalia Gone Off The Rails?

scaliashot.jpgThe Boston Herald published a photo of Justice Scalia today documenting him flipping off a Herald reporter. (I’ve attached a different photo here. Call it USNewsophobia. The real image, with accompanying story, is only a click away.) This news story broke a couple of days back, and Scalia apparently argued that his gesture – flipping his fingers off his chin – had been misunderstood. The photographer released the photo to show that reporters had gotten the story right the first time.

Am I unusual in thinking that the Justice’s conduct is not only inappropriate but downright weird? I mean, this guy is on the SUPREME COURT. If I can learn to censor myself as part of my southern law prof persona, I have to think that the admittedly volatile Justice Scalia can do likewise. How hard can it be to avoid responding “fuck you” to a reporter? (And would the Senate confirm a similarly qualified candidate who had exhibited this sort of conduct prior to his or her confirmation hearings?)

Perhaps he’s hoping to run for vice-president.

Update. Let me first admit that I had not been following the story – particularly the Justice’s letter to the editor - as closely as I ought to have. I enjoyed the Justice’s originalist explanation a great deal. Do I think he was unaware of the more commonly understood (modern) meaning of the gesture? I’ll reserve judgment. That said, even if he was engaging in a bit of cultural arbitrage – no, particularly if he was – I have to give it up to the Justice.

3

Late Thoughts on the Barron/Roberts Debate

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David Barron’s provocative post on Chief Justice Roberts’ citation practices attracted a great deal of attention this week. Barron argued that the Chief’s opinions to date have not cited any academic commentary, noting that “it’s worth watching — and challenging if it develops into an actual theory of constitutional decision making.” Steve Bainbridge retorted here: “[h]ow frustrating it must be for a con law scholar to face the prospect of decades of having the Chief Justice of the United States ignore you.” But, as Ethan Leib pointed out, law professors are used to a silent reception. (Tom Smith might agree.) A commentator to Ethan’s post noted that in fact the Chief did cite an article in his opinion in Martin v. Franklin Capital Corp., 126 S. Ct. 704, 710 (U.S. 2005). Rounding out the debate, Orin Kerr unearthed some previous opinions by Roberts citing treatises (cold comfort to young profs) and suggested such work made it “a bit less likely that Roberts will differ from the other Justices in his willingness to note or engage with scholarly commentary.”

There are a few balls in the air here. First, there is a predictive question: “Do the Chief Justice’s three opinions to date provide a sufficiently large data set to say anything about his citation practices in the future, and, if so, what?” Second, there is a descriptive question: “What is the current practice of the Court with respect to citing secondary authority, and how has that practice changed over time?” Finally, there is a normative question: “Is citation to secondary authority a metric that we should use to evaluate the strength of an opinion by the Supreme Court? Does it matter the type of case?” And, despite being a few days late, I’ve a few tentative thoughts on what is going on.

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3

More Details From The Breyer Visit

In the aftermath of Justice Breyer’s talk at Alabama, I find myself discovering just how little news it takes to constitute “news.” Or perhaps just how much I missed when I didn’t write for my college daily. For example, Breyer compared deliberations under Rehnquist and Roberts. He described Roberts’ deliberations as a bit more informal, offering more opportunities for discussion. Interesting, I thought. Newsworthy, thought AP. There was other discussion of Breyer here . So here are some other things Breyer said during his trip to the University of Alabama. People can decide for themselves whether they are interesting, or simply expected.

Commenting on the professional Supreme Court bar: It is mostly a good thing, particularly given the constraints of one hour oral argument. (He’d prefer longer arguments.) In certain specialized areas – like bankruptcy – it is more helpful to have an expert in the field than an expert in Supreme Court argument. The worst thing, though, is when a high-powered attorney (like an elected official or senior partner) grabs the oral argument just for the sake of arguing before the Court, but fails to fully learn the case and prepare for argument.

Commenting on abortion and gay rights: These are very hard issues, and there is much to be said on both sides.

Commenting on his hobbies: Biking, movies, and reading.

Commenting on Jefferson’s suggestion of recurring revolution: Total disagreement. One of the best developments in America is people’s willingness to follow and enforce the law even when they disagree with it. This is a big step forward from the actions of Andrew Jackson in the aftermath of the Court’s decision in Worcester v. Georgia and Arkansas Governor Faubus in the aftermath of Brown v. Board. Despite what he sees as an erroneous decision in Bush v. Gore, Breyer is pleased by how the nation responded.

Commenting on recent unanimous decisions by the Court: Once people are on the Court together for a while, you start to know where everyone stands on issues. You just accept that there will be disagreement. Perhaps on a reconstituted Court there is more effort to find some common ground. But maybe it’s just that all the tough decisions get pushed to the end of the session as people look to see who they can convince to join them.

Commenting on the meaning of “per curiam” decisions: These decisions often suggest that the Supreme Court thinks the lower court just missed something. These sorts of lower court opinions may occur more often when matters are deferred to staff clerks who write with relatively less direction and supervision.

Commenting on Justice Thomas’s relative silence during argument: Thomas feels that time for argument is limited and most of his questions are ulitmately going to be addressed by someone. And he’s usually right. But don’t think his silence reflects any lack of preparation. He is as prepared as everyone else.

Hat tip: Howard Bashman and Orin Kerr