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Supreme Court

to Hear Violent Video Game Case

October 31, 2010
Filed at 10:23 a.m. ET
The New York Times

LONG BEACH, Calif. (AP) — Before picking up any Wii games or downloading apps on her iPhone for her two daughters, Lillian Quintero does her homework. She'll first read reviews online and in magazines, then try them out for herself. If she thinks the games are engaging and educational enough, 4-year-old Isabella and 2-year-old Sophia are free to play.

"I know there's going to be a point where they get these things on their own," said the 35-year-old mother from Long Beach, Calif. "We're not going to be there to monitor everything. That's why the most important thing is communication, instilling morals and values in them and helping them to understand certain boundaries. There's only so much you can do."

Quintero and her husband, Jorge, are some of the parents who support a California law that seeks to ban the sale and rental of violent games to children. The law, which has bounced around the legal system like a game of "Pong" since Gov. Arnold Schwarzenegger first signed it in 2005, was declared unconstitutional last year by the 9th U.S. Circuit Court of Appeals in San Francisco.

The U.S. Supreme Court will hear arguments Tuesday about the federal court's decision to throw out California's ban on violent games, marking the first time a case involving the interactive medium itself has gone before the Supreme Court. It's another sign that the $20 billion-a-year industry, long considered to be just child's play, is now all grown up.

California's measure would have regulated games more like pornography than movies, prohibiting the sale or rental of games that give players the option of "killing, maiming, dismembering, or sexually assaulting an image of a human being" to anyone under the age of 18. Only retailers would be punished with fines of up to $1,000 for each infraction.

The federal court said the law violated minors' constitutional rights under the First and Fourteenth amendments and the state lacked enough evidence to prove violent games cause physical and psychological harm to minors. Courts in six other states, including Michigan and Illinois, have reached similar conclusions, striking down parallel violent game bans.

Under California's law, only adults would be able to purchase games like "Postal 2," the first-person shooter by developer Running With Scissors that features the ability to light unarmed bystanders on fire, and "Grand Theft Auto IV," the popular third-person shoot-'em-up from Rockstar Games that allows gamers to portray carjacking, gun-toting gangsters.

The Quinteros, like most supporters, believe the law will protect children from buying such violent titles, while gamers and free speech advocates think California's ban could lead to strict federal regulation on the content of games and other media. All agree, however, that the graphically rich medium has come a long way from 8-bit tennis matches.

The average age of gamers is 34, according to the Entertainment Software Association, and many are paying close attention to the Supreme Court case. The Entertainment Consumers Association, which lobbies on behalf of gamers, is organizing a rally outside the Supreme Court building Tuesday as "a way of sending a strong message and uniting gamers."

"It's not so much a video game case as a First Amendment case," said George Rose, chief public policy officer at Activision Blizzard Inc., the Santa Monica, Calif.-based publisher of the popular "Call of Duty" and "Guitar Hero" gaming franchises. The gamemaker filed a friend-of-the-court brief opposing California's ban, which was never enforced.

Other allies in the fight include Xbox manufacturer Microsoft Corp., "Star Wars" publisher LucasArts, The Recording Academy, Motion Picture Association of America, as well as the Entertainment Merchants Association and Entertainment Software Association, which sued to block California's ban, calling it "unnecessary, unwarranted and unconstitutional."

Opponents of the ban have called the measure unnecessary because virtually all major game publishers and retailers employ a universal voluntary rating system, much like movie studios and theaters, that assigns one of eight age-specific ratings to games, then blocks the sale of games that are rated M for "mature" and AO for "adults only" to children.

The gaming industry has actually done a better job of preventing minors from buying entertainment not intended for their age group than the music and film industries, according to the Federal Trade Commission. In a report released last year, the FTC found that 20 percent of minors were able to buy M-rated games, down from 42 percent three years earlier.

In contrast, 72 percent of minors were able buy music CDs with explicit content warnings, 50 percent were sold R-rated and unrated DVDs and 28 percent purchased tickets to R-rated movies. The FTC noted there were gaps in enforcement of age-based sales restrictions, specifically with the use of gift cards in online purchases and unrestricted mobile games.

The Parents Television Council, which supports California's ban on violent games, conducted its own secret shopper campaign this year with children between the ages of 12 and 16 attempting to buy M-rated games at 109 stores in 14 states. The group found 21 instances of retailers, including Target, Kmart, Sears and Best Buy, selling M-rated games to minors.

Leland Yee, the Democratic state senator and child psychologist who originally authored the law, contends the gaming industry's rating system is not effective because of the sweeping scope of games, which are longer and more intricate than movies. Yee said he believes violent games are more harmful to children because of the medium's interactive nature.

"This isn't an attack on the First Amendment," said Yee. "I'm a supporter of the First Amendment. This is about not making ultra violent video games available to children. Within the bill, the definition of a violent video game is so narrowly tailored because of my respect for the First Amendment. This isn't to stop the creation of violent video games."

Yee's position hasn't stopped the Entertainment Software Association's Video Game Voters Network from targeting him. The group has asked gamers to write "I believe in the First Amendment" on old or broken controllers and send them to Yee. When asked about the joystick campaign, the senator scoffed and said that any gifts he received would be returned.

The Quinteros, who practice yoga poses in their living room during rounds of "Wii Fit," won't be sending their Wii Balance Board to Yee. While they believe it's ultimately up to parents to police what games their children play, Lillian and Jorge agree that they would feel more comfortable if violent games were legally off limits from being sold to kids.

"It's one less way for children to have access to it," said Jorge, a 35-year-old middle school teacher who recently bought an iPad. "It's common sense. You don't pick a weenie off the grill with your hands because you know your hand will get burned. We shouldn't let children buy something violent that they don't think will affect them."

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AP Technology Writer Barbara Ortutay in New York contributed to this report.

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Online:

http://www.supremecourt.gov/

Supreme Court to Hear Violent Video Game Case, NYT, 31.10.2010, http://www.nytimes.com/aponline/2010/10/31/arts/AP-US-Supreme-Court-Video-Games.html

Drowning in Campaign Cash

October 30, 2010
The New York Times

Shrill political attacks have saturated the airwaves for months, but behind them is the real problem of this demoralizing election: the dark flow of dollars, often secretly provided by donors with very special interests.

The amount is staggering: Nearly $4 billion is likely to be spent once the final figures are in, according to the Center for Responsive Politics, far more than in the 2006 midterms, which cost $2.85 billion. It could even eclipse the $4.14 billion spent in the 2004 presidential campaign.

Much of this is a direct creation of the Supreme Court under Chief Justice John G. Roberts Jr., which has cut away nearly all campaign finance restrictions.

The court’s 2007 decision in Wisconsin Right-to-Life gave corporations and unions the right to run advocacy ads in the last 60 days of a campaign — as long as they did not expressly advocate the election or defeat of a specific candidate. This year’s Citizens United decision effectively ended even that last restriction, and pulled away all limits on corporate spending in campaigns.

Building on those decisions, political operatives — mainly Republicans — decided they could collect unlimited amounts of money through independent, tax- exempt organizations known as 501(c) groups, without revealing the source of the donations.

By offering anonymity and no limits, these groups (with gauzily apolitical names, like American Future Fund and American Action Network) have been able to raise and spend extraordinary sums. In the 2006 midterms, outside groups not affiliated with political parties spent $51.6 million; so far this year, such groups have spent $280 million. About 60 percent of that spending is from undisclosed donors, most of which has benefited Republicans. Democratic candidates raised huge amounts, but the sources for most of it were disclosed.

Combining both traditional and outside money, Republicans have slightly outraised Democrats, $1.64 billion to $1.59 billion, but there is more to be tallied.

While large secret donations have been legalized, it is not clear that the 501(c) groups spending the money on barrages of attack ads are playing by the last, threadbare rules. The tax code requires that these groups not be “primarily engaged” in political advocacy, but neither the Internal Revenue Service nor the Federal Election Commission has made any apparent effort to investigate what other purpose they might have. Some groups have suggested they would begin nonpolitical activities — after the election.

What is clear is that the new world of unlimited spending, both open and secret, confers huge benefits on wealthy individuals, corporations and unions. In a striking example, reported by ABC News last week, Terry Forcht, a prominent Kentucky banker and nursing home executive, helped pay for a series of attack ads against Attorney General Jack Conway, the Democratic Senate candidate. Mr. Conway is prosecuting one of Mr. Forcht’s nursing homes for allegedly covering up sexual abuse.

Mr. Forcht has directly raised at least $21,000 for Mr. Conway’s Republican opponent, Rand Paul. He serves as the banker for American Crossroads, the shadowy group of nonprofits organized by Karl Rove that has spent nearly $30 million to defeat Democrats and more than $1 million to defeat Mr. Conway.

This year, of course, is just batting practice for 2012. Congress still has time to act. The first step is to pass the Disclose Act, which would require the identification of large campaign donors. The second is to create a public financing system for Congressional candidates that provides extra money to those who rely on small donations.

Voters say — again and again — that they want to break the hold of special interests and end pay-to-play politics. And politicians promise — again and again — that they will. Four billion dollars and one particularly ugly campaign later, there can be no more excuses.

    Drowning in Campaign Cash, NYT, 30.10.2010, http://www.nytimes.com/2010/10/31/opinion/31sun1.html

An Indefensible Defense

October 24, 2010
The New York Times

It can be hard to distinguish between the Bush administration and the Obama administration when it comes to detainee policy. A case the Supreme Court agreed last week to hear, Ashcroft v. al-Kidd, is one of those occasions.

It turns on a principle held sacrosanct since the country’s early days: the government cannot arrest you without evidence that you committed a crime. An exception is the material witness law, which allows the government to keep a witness from fleeing before testifying about an alleged crime by somebody else.

These principles were horribly twisted when John Ashcroft was President George W. Bush’s attorney general. The Justice Department held a former college football player in brutal conditions on the pretext that he was a material witness in a case in which he was never called to testify and which fell apart at trial.

The Bush administration’s behavior was disturbing, and so is the Obama administration’s forceful defense of this outrageous practice of using a statute intended for one purpose for something very different. Judge Milan Smith Jr. of the Ninth Circuit Court of Appeals called it “repugnant to the Constitution.”

The Justice Department arrested Abdullah al-Kidd, known as Lavoni Kidd when he was a star football player at the University of Idaho, at Dulles airport in March 2003 before he boarded a plane to Saudi Arabia, where he was going to work on his doctorate in Islamic studies. For over two weeks, he was treated like an enemy of the state — shackled, held in high-security cells lit 24 hours a day, and sometimes humiliated by strip searches. When Mr. Kidd was released, he was ordered to live with his wife and in-laws, restrict his travels and report to a probation officer. The restrictions lasted 15 months.

The government said Mr. Kidd was a material witness against Sami Omar Hussayen, who was tried for supporting an Islamic group that the government said “sought to recruit others to engage in acts of violence and terrorism.” A jury acquitted Mr. Hussayen on some charges and didn’t reach a verdict on others. Mr. Kidd was not called to testify. Nor was he ever charged with a crime.

Mr. Kidd sued Mr. Ashcroft personally, saying he unlawfully used the material witness statute as a pretext. The former attorney general asserted that he had immunity. In the ruling now being reviewed by the Supreme Court, the Ninth Circuit found that he did not.

To qualify for absolute immunity, the appeals court said, Mr. Ashcroft had to be prosecuting Mr. Kidd, not investigating him. When the purpose is “to investigate or pre-emptively detain a suspect,” at most a prosecutor is entitled to qualified immunity. Mr. Ashcroft didn’t qualify even for that because Mr. Kidd made a plausible case that it was the attorney general’s own strategy that led to misuse of the material witness statute.

The word “plausible” is key. In 2009, by a vote of 5 to 4, the Supreme Court sided with Mr. Ashcroft and others in a lawsuit, because the complaint against them was too vague and the allegations were not plausible. The government hasn’t challenged the plausibility of the core allegations in the current case.

Prosecutorial immunity is intended to let prosecutors enforce the law without fear of being held personally liable. Protecting that legitimate aim did not require the administration to defend the indefensible. In forcefully defending the material witness statute on grounds that curtailing it would severely limit its usefulness, it is defending the law as a basis for detention. That leaves the disturbing impression that the administration is trying to preserve the option of abusing the statute again.

    An Indefensible Defense, NYT, 24.10.2010, http://www.nytimes.com/2010/10/25/opinion/25mon1.html

The Court’s Pre-emption Test

October 18, 2010
The New York Times

In the Supreme Court last week, oral arguments in a case called Bruesewitz v. Wyeth turned on the meaning of the word “unavoidable,” but the real issue was something much bigger. The case is about whether the family of a girl, who they said was badly injured by a vaccine, can sue the manufacturer in a state court. Or are they barred by a 24-year-old federal law that blocks this sort of lawsuit if “the injury or death resulted from side effects that were unavoidable?”

That prohibition is called pre-emption, a hot issue in constitutional law because it is at the heart of the balance of power between states and the federal government — the meaning of federalism. At stake is the ability of states to protect their citizens, by regulating health, safety, the environment, and other primary interests and by giving victims of wrongdoing redress in court, as long as a state law doesn’t conflict with a federal law.

The vaccine issue is only one area where pre-emption disputes have enormous practical effect. The Bush administration declared the pre-emption of state law scores of times where Congress said nothing about it. It tried to stop California from raising the bar on auto emissions and giving greater protection to consumers.

After reviewing this brazen record, President Obama issued a memorandum halting the practice. The difference is sometimes explained by saying Mr. Bush favored shielding corporations from liability while Mr. Obama backs consumers. That’s half-right: the Obama administration recognizes the legitimacy of pre-emption as a way to avoid conflicts between state and federal law and enforce national standards when the federal government has set them.

Most statutes, however, don’t include clear statements about pre-emption. That’s the source of the controversy. The issue is of sufficient gravity that the American Bar Association recommended last summer that Congress address “foreseeable pre-emption issues clearly and explicitly” when it passes a law that has the potential to displace state law.

There is one big problem with this approach. Even when Congress is not as dysfunctionally partisan as it is now, it is rarely deliberative enough to get to that level of lawmaking. It would be unrealistic to expect Congress to address, or anticipate, each instance that state law is pre-empted. That leaves an important role for courts to engage in statutory construction, the close analysis used to decide what a statute means, to glean the purpose of a federal law and whether it pre-empts state law.

When the Roberts court, the most conservative in half a century, rules on pre-emption cases, the more conservative justices have sometimes taken an anti-federalist position in support of business, the more liberal ones a federalist stance in favor of vindicating people’s rights in state courts.

Because almost every pre-emption case turns on the particulars of the statute in question, however, these cases provide an important test: whether the court’s members can do what justices do at their best by reasoning their way through challenging thickets and, in each instance, winning the public’s confidence that the ruling strikes the right balance of power.

Supreme Court law provides a significant element of guidance: as the reach of federal law was extended, the court articulated a principle called the presumption against pre-emption. Under the Constitution’s supremacy clause, state laws can’t interfere with the operation of the federal government. But where state efforts to protect citizens and compensate victims don’t conflict with federal law, pre-emption should not be used as a weapon to defeat them.

    The Court’s Pre-emption Test, NYT, 18.10.2010, http://www.nytimes.com/2010/10/19/opinion/19tue1.html

Supreme Court to Consider Vaccine Case

October 11, 2010
The New York Times
By BARRY MEIER

The safety of vaccines is at the heart of a case expected to be heard on Tuesday by the United States Supreme Court, one that could have implications for hundreds of lawsuits that contend there is a link between vaccines and autism.

At issue is whether a no-fault system established by Congress about 25 years ago to compensate children and others injured by commonly used vaccines should protect manufacturers from virtually all product liability lawsuits. The law was an effort to strike a balance between the need to provide care for those injured by vaccines, some of them severely, and the need to protect manufacturers from undue litigation.

Under the 1986 National Childhood Vaccine Injury Act, such claims typically proceed through an alternative legal system known as “vaccine court.” Under that system, a person is compensated if their injury is among those officially recognized as caused by a vaccine. That person, or their parents, can choose to reject that award and sue the vaccine’s manufacturer, but they then face severe legal hurdles created by law to deter such actions.

The case before the Supreme Court is not related to autism. But the biggest effect of the court’s ruling, lawyers said, will be on hundreds of pending lawsuits that contend a link exists between childhood vaccines and autism. Repeated scientific studies have found no such connection.

Also, in several test case rulings over the last two years, administrative judges in vaccine court have held that autism-related cases did not qualify for compensation. During the last decade, about 5,800 of the 7,900 claims filed in vaccine court, or about 75 percent, have been autism-related, federal data show.

Federal data shows that $154 million was paid in fiscal 2010 to 154 claimants involved in vaccine court proceedings. That figure was significantly higher than in preceding years and reflected several unusually high awards, officials involved in the program said.

In the five preceding fiscal years, an average of $68 million in compensation was paid out on an annual basis, federal data indicates. A compensation fund is financed by an excise tax on vaccinations.

The case to be heard on Tuesday involves an 18-year-old woman, Hannah Bruesewitz, who suffered seizures when she was 6 months old and subsequently suffered developmental problems, her parents say, after receiving a type of D.T.P. vaccine that is no longer sold. The D.T.P. vaccine protects against three potentially deadly childhood diseases: diphtheria; pertussis, which is also known as whooping cough; and tetanus.

Ms. Bruesewitz’s parents have contended in court papers that the vaccine’s manufacturer, which is now a part of Pfizer, knew at the time that their daughter was immunized that there was a safer version of the D.T.P. vaccine but did not produce it. The company rejected that contention

Initially, Ms. Bruesewitz’s parents brought a claim on her behalf to the vaccine court, but the severe injuries that she reportedly suffered were removed from the list of those that qualified for compensation a month before the case was heard. An administrative judge in vaccine court subsequently rejected her claim, so her parents filed a product liability lawsuit against Wyeth, a Pfizer unit that had acquired the vaccine’s manufacturer, Lederle Laboratories.

Lower court judges have ruled that her claims are barred by the federal Vaccine Act. As a result, Ms. Bruesewitz, who lives with her family in Pittsburgh and requires specialized care, has not received any compensation, her father, Russell Bruesewitz, said in a telephone interview.

“The cost of her care is an ongoing burden,” Mr. Bruesewitz said.

The Supreme Court review revolves around the narrow question of whether Congress in passing the Vaccine Act intended to bar lawsuits against vaccine manufacturers based on so-called design defect claims. A vaccine design defect claim essentially asserts that the manufacturer should have sold a different vaccine, which plaintiffs say would have been safer than the one used.

Those filing briefs arguing that Congress intended to permit such lawsuits include the American Association for Justice, a plaintiffs’ lawyers group, and the National Vaccine Information Center, an advocacy group.

Those filing briefs arguing that Congress intended to bar them include the solicitor general of the United States, the Chamber of Commerce and several professional medical groups, including the American Academy of Pediatrics.

James M. Beck, a lawyer in Philadelphia who defends makers of drugs and medical devices, said in a phone interview that a ruling in favor of the Bruesewitzes would allow hundreds of lawsuits asserting a link between vaccines and autism to go forward.

“If these cases go forward, it will make it economically unfeasible for anyone to make vaccines in this country,” said Mr. Beck.

Mr. Bruesewitz said that he and his wife were not opposed to vaccination. Instead, he said they pressed his daughter’s claim because he thought that vaccine producers needed to face the threat of litigation to produce safer medications.

“What we want and are concerned about is to make sure that the safety of vaccines in this country is constantly enhanced,” Mr. Bruesewitz said.

    Supreme Court to Consider Vaccine Case, NYT, 11.10.2010, http://www.nytimes.com/2010/10/12/health/12vaccine.html

First Monday

October 3, 2010
The New York Times

The Supreme Court enjoys all but free rein in selecting which cases to review. From the end of one term in the summer until the start of the next, on the first Monday in October, the work of the court is to sift through thousands of petitions from parties that lost in one of the federal appeals courts or highest state courts and are eager for the justices to reverse their fate.

The kinds of petitioners favored say a lot about the court’s interests and biases. The Warren court, eager to champion individual rights, chose a large number of petitions from downtrodden people. The Rehnquist court, looking for opportunities to vindicate states’ rights, favored petitions from the states.

The Roberts court has championed corporations. The cases it has chosen for review this term suggest it will continue that trend. Of the 51 it has so far decided to hear, over 40 percent have a corporation on one side. The most far-reaching example of the Roberts court’s pro-business bias was Citizens United v. Federal Election Commission. By a 5-to-4 vote, the conservative justices overturned a century of precedent to give corporations, along with labor unions, an unlimited right to spend money in politics.

Equally striking is that the court reached far beyond what the parties had argued, to make a sweeping change in constitutional law. It could have upheld the right of the conservative nonprofit group to show an anti-Hillary Clinton movie on a video-on-demand service during the primary season — without opening the door to a new era of political corruption.

The cases scheduled for argument in the next few months may appear modest. But if there is one lesson from the Citizens United ruling, it is that nothing — for this court — is inevitably modest. There are two areas of business law particularly worth watching: “pre-emption” and protection of employees from retaliation.

In four cases, the court will address an obscure but significant debate on federal pre-emption of state law. The pro-pre-emption view is often pro-business, because it interferes with state efforts to protect citizens against corporate misconduct. Pre-emption can also protect against state interference with the national economy.

In AT&T Mobility v. Concepcion, the cellphone provider claims that California contract law has been used to frustrate the Federal Arbitration Act. If the company wins, it will likely force unhappy customers to rely on an arbitrator to resolve their differences with the company. If the respondents win, they will likely be able to bring AT&T Mobility to court — to answer accusations of fraud for promising “free” phones, then charging for the tax on their retail value. That would be good for consumers.

In two cases, the court will address the extent to which whistle-blowing employees are shielded by federal statute. In Thompson v. North American Stainless, the company fired Eric Thompson when it learned that his co-worker and then-fiancée had filed a charge of sex discrimination against the company. She was protected from reprisal. The court is asked to say whether anyone closely associated (a fiancé, spouse, or family member) is also protected.

Not all of the arguments the court will hear deal with corporate interests. This Wednesday, in Snyder v. Phelps — a particularly important First Amendment case — the justices will hear argument about one of the anti-gay protests staged by members of a Kansas Baptist church at funerals of American soldiers. They must decide whether this repugnant form of demonstration is protected by the Constitution, as seems right.

Next month, the court will consider another First Amendment issue: whether free speech is infringed by a California law restricting the sale or rental of violent video games to minors. It will also hear argument in a case involving the amendment’s establishment clause and whether an Arizona program providing tax credits to people who donate money to schools improperly favors religious organizations.

Each case forms a universe of distinct issues and interests, but, as Citizens United reminds us, an individual ruling can reshape our democracy. This term feels especially momentous because it is the first for Justice Elena Kagan and only the second for Justice Sonia Sotomayor. While the court’s 5-to-4 balance hasn’t changed, we can hope that their pledges of judicial modesty will influence the court’s performance.

    First Monday, NYT, 3.10.2010, http://www.nytimes.com/2010/10/04/opinion/04mon1.html

Woman on Death Row Runs Out of Appeals

September 21, 2010
The New York Times
By ERIK ECKHOLM

“She is clearly the head of this serpent,” the judge said of Teresa Lewis in 2003 when he sentenced her to death by lethal injection, describing her as the mastermind of the cold-blooded murders of her husband and his son as they slept in rural Virginia.

Late on Tuesday, the Supreme Court denied her last-ditch appeal for a stay, and Ms. Lewis, now 41, is scheduled to die on Thursday night at 9. Her case has drawn unusual attention, not only because she would be the first woman executed in the United States since 2005, and the first in Virginia since 1912, but also because of widely publicized concerns about the fairness of her sentence. Ms. Lewis waited this week in her prison cell, reportedly soothed by intense religious faith.

Her lawyers say her original defense against the death penalty was bungled. They also cite new evidence suggesting that Ms. Lewis — whose I.Q. of 72 is described by psychologists as borderline retarded — was manipulated by her co-conspirators, who were out to share in savings and life insurance worth hundreds of thousands of dollars. Her partners in the crimes, two young men who fired the guns, received sentences of life without parole in what her lawyers call a “gross disparity” in punishment.

On Tuesday, blocking her only other chance for a reprieve, Gov. Bob McDonnell said for the second time that he would not grant clemency for what he called her “heinous crimes.”

Ms. Lewis’s guilt is not at issue. By her own admission, she plotted with the men to shoot her husband, Julian C. Lewis Jr., 51, and his son, Charles J. Lewis, 25, a reservist about to be deployed abroad.

Ms. Lewis, then 33, met her co-defendants, Matthew J. Shallenberger, who was 21, and his trailer-mate, Rodney L. Fuller, 20, in a line at Wal-Mart and, according to court records, they quickly started meeting and hatching murder plans. She became particularly attached to Mr. Shallenberger, showering him with gifts, but she had sex with both men and also encouraged her 16-year-old daughter to have sex with Mr. Fuller, the records say.

Ms. Lewis withdrew $1,200 and gave it to the two men to buy two shotguns and another weapon. The night of the murders, she admitted, she left a trailer door unlocked. Later, she stood by as the intruders blasted the victims with repeated shotgun blasts. As her husband lay dying, court records say, she took out his wallet and split the $300 she found with Mr. Shallenberger. She waited at least 45 minutes to call 911.

Her husband was moaning “baby, baby, baby” when a sheriff’s deputy arrived and he said, “My wife knows who done this to me,” before he died, the records indicate.

After initially claiming innocence, Ms. Lewis confessed and led police to the gunmen. In 2003, she was sentenced by Judge Charles J. Strauss of Pittsylvania Circuit Court, who concluded that Ms. Lewis had directed the scheme, enticing the killers with sex and promises of money and showing the “depravity of mind” that would justify a death sentence. In separate proceedings, the same judge gave life sentences to the gunmen.

Ms. Lewis’s lawyers later unearthed what they called compelling evidence that it was Mr. Shallenberger who did the enticing, including his own statements that he devised the murder plan and a prison letter to a girlfriend in which he said he “got her to fall in love with me so she would give me the insurance money.” Mr. Shallenberger killed himself in prison in 2006.

But prosecutors, in fighting subsequent appeals, said that before and after the crimes, Ms. Lewis had engaged in concerted actions to obtain money from her husband’s account and then from insurance, showing that she was far more capable than her lawyers now assert.

None of the evidence suggesting Mr. Shallenberger’s dominant role has been presented in court, but it was provided to Mr. McDonnell in a plea for clemency, along with details of her limited intellect, her diagnosis of “dependent personality disorder” and her addiction to pain pills.

When he first turned down the appeal on Friday, Mr. McDonnell noted that appeals courts have upheld her sentence and that “no medical professional has concluded that Teresa Lewis meets the medical or statutory definition of mentally retarded.”

Her lawyers argued in their petition to the Supreme Court that the case should be reopened because her original defense lawyer failed to explore whether her low intelligence and her psychiatric vulnerability would have left her able to plan the scheme. State prosecutors disagreed.

Opponents of the death penalty, and others who feel Ms. Lewis’s sentence is unjust, plan to hold vigils on Thursday, including one outside the Greensville Correctional Center in Jarratt, Va., where the execution is to take place.

“She said she is leaving it in the hands of Jesus,” her lead defense lawyer, James E. Rocap III, of Steptoe & Johnson in Washington, said on Tuesday, before she heard of the 7-to-2 decision by the Supreme Court not to consider her case.

    Woman on Death Row Runs Out of Appeals, NYT, 21.9.2010, http://www.nytimes.com/2010/09/22/us/22execute.html

The Hard Work of Gun Control

July 9, 2010
The New York Times
 

Thirteen days ago, the Supreme Court undermined Chicago’s ban on handguns by applying the Second Amendment to the states, ruling that people have a right to protect their homes with a gun. Four days after that, Chicago passed another handgun restriction that edged right up to the line drawn by the court. And on Tuesday, a group of gun dealers and enthusiasts sued the city again to overturn the new law.

Bullets are flying on city streets, but the vital work of limiting gun use has become a cat-and-mouse game. Beleaguered citizens deserve better from both sides.

We strongly disagreed with the reasoning that led the court to find an individual right to bear arms in the Second Amendment, ending handgun bans in Washington, D.C., in 2008 and everywhere else last month. Nonetheless, the law of the land is now that people have a constitutional right to a gun in their home for self-defense.

That right can be limited, the court explicitly said, with reasonable restrictions. But it provided very little guidance as to what is reasonable, leaving lawyers, lawmakers and judges to thrash it out in a bog of lawsuits that could take many years to clear.

Cities and states have a need to be extremely tough in limiting access to guns, but they need to do it with more forethought than went into the Chicago ordinance. Lawmakers there sensibly limited residents to one operable handgun per home, with a strict registration and permitting process. But residents are not allowed to buy a gun in the city. They must receive firearms training, but ranges are illegal in the city. Chicago lawmakers sloughed off on the suburbs the responsibility to regulate sales and training. As a result, more people will travel more miles to transport guns.

The law is likely to draw heightened equal-protection scrutiny from skeptical judges at all levels. Chicago would have been better off allowing gun sales under the strict oversight of the police department, which could then better check the backgrounds and movements of every buyer and seller. The District of Columbia passed a largely similar ordinance last year after its law was struck down by the court. But it permits sales at the few gun shops in the district, and a federal judge upheld that ordinance after it was challenged. It could stand as a model for other cities.

As flawed as the Chicago regulation is, the lawsuit challenging it is entirely over the top. It disputes virtually every aspect of the law as a violation of the Second Amendment and poses ludicrous hypothetical situations to show that everyone needs a gun. “If an elderly widow lives in an unsafe neighborhood and asks her son to spend the night because she has recently received harassing phone calls,” the lawsuit complains, “the son may not bring his registered firearm with him to his mother’s home as an aid to the defense of himself and his mother.” Putting granny in the middle of a neighborhood firefight is preferable to having her simply call the police?

The gun lobby is going to attack virtually every gun ordinance it can find, if only to see what it can get away with now. (Last week, the same lawyers who brought the Chicago and Washington cases sued North Carolina, challenging a law that prohibits carrying weapons during a state of emergency.)

Lawmakers need not match the lobby’s obduracy. Cities and states should counter with tough but sensible laws designed to resist legal challenges and keep gun possession to a minimum.

    The Hard Work of Gun Control, NYT, 9.7.2010, http://www.nytimes.com/2010/07/11/opinion/11sun1.html

The Court’s Aggressive Term

July 4, 2010
The New York Times

John Roberts Jr., the chief justice of the United States, did not write the most important opinion of his court’s just concluded term, the one that allowed unlimited corporate and union spending in election campaigns. But his concurring opinion in that case, Citizens United v. Federal Election Commission, is the best guide to the court’s most unsettling tendency.

In the most recent term, even more than in earlier years, the Roberts court demonstrated its determination to act aggressively to undo aspects of law it found wanting, no matter the cost.

Explaining why the court’s five-vote majority in Citizens United had toppled precedent to reach its decision, Justice Roberts wrote that the court must be willing to depart from a previous decision if it thinks it does damage to a constitutional ideal, and particularly if the precedent was an aberration. A decision can become an aberration, it turns out, if the court’s conservatives never agreed with it in the first place. If not quite legislating from the bench, this is not a formula for stability.

It was not a thoroughly disappointing term. But the tone and posture of the court’s conservative majority made clear that it is not done asserting itself in redefining campaign finance laws, the rights of corporations, national security powers and the ownership of guns.

We do not argue that precedent must be worshiped and upheld at all costs. If that were the case, as Justice Roberts noted, segregation would still be legal and minimum-wage laws unconstitutional. But when the Brown v. Board of Education decision in 1954 overturned Plessy v. Ferguson from 1896 and outlawed segregation, it came after many years of relentless legal efforts against Jim Crow by Thurgood Marshall and many others. It was clear that the legal landscape was changing.

When the Roberts court overruled precedent in the Citizens United case, it did so far more abruptly. The dissenters, led by Justice John Paul Stevens, said the majority “blazes through our precedents” in a “dramatic break from our past.” It was nothing other than judicial activism when the court five months later stepped directly into the gubernatorial race in Arizona, cutting off matching funds to candidates participating in the state’s campaign finance system. The message to other states and cities with similar systems was clear: Watch out. When the Roberts court has a goal in mind, niceties like an actual political campaign cannot be allowed to get in the way.

The deference to corporate rights found in Citizens United could also be seen last month. The court made it harder for consumers and workers to challenge the mandatory arbitration clauses found in so many contracts, all designed to keep the fate of corporations out of the hands of judges and juries. When that mindset is combined with the court’s willingness to defy precedent and Congress, it could spell trouble for the national health care law when legal challenges reach the court.

But the court’s shifting majorities and Justice Roberts’s own preferences were unpredictable this year, leading to many welcome decisions. Life sentences for juvenile criminals who do not commit murder were banned. The vague “honest services” statutes, a favorite of prosecutors, were struck down.

Court decisions about property laws were ruled not to be “takings,” a blow to the property rights movement. And the court refused to put more categories of speech beyond the First Amendment.

Still, the problematic decisions continue to leave us worried about upcoming terms, where more decisions about fundamental rights await. In the last month alone, majorities on the court said gun ownership was a fundamental Second Amendment right that applies to states and cities, while reducing the First Amendment rights of those who try to pacify terrorist groups. If Elena Kagan is confirmed, her first task will be to keep her pledge and help the court realize that judicial modesty actually means something.

    The Court’s Aggressive Term, NYT, 4.7.2010, http://www.nytimes.com/2010/07/05/opinion/05mon1.html

A ‘Kagan Doctrine’ on Gay Marriage

July 2, 2010
The New York Times
By JONATHAN RAUCH

Washington

ELENA KAGAN uttered neither the word “gay” nor “marriage” in her opening statement at the Senate confirmation hearings on her nomination to the Supreme Court, but she addressed the issue nonetheless. No, she didn’t say how she will vote when gay marriage comes before the court, as it may soon. What she did say was this:

“The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the court must also recognize the limits on itself and respect the choices made by the American people.”

Ms. Kagan may not have had gay marriage in mind when she made that statement, but it could not be more relevant. She seems to be saying that protecting minority rights is the Supreme Court’s job description, but also that a civil rights claim doesn’t automatically trump majority preferences. This is something absolutists on both sides of the gay marriage debate don’t like to hear, but it has the virtue of being right.

While the Senate considers Ms. Kagan’s nomination, Judge Vaughn Walker of the United States District Court in San Francisco is deciding how to rule in a major lawsuit challenging Proposition 8, the 2008 ballot initiative that revoked and banned same-sex marriage in California (while leaving the state’s marriage-like domestic partner program intact). Judge Walker may declare that the United States Constitution gives gay couples the right to marry — a decision sure to start a political firestorm (possibly just in time to give the Democrats an additional headache in this year’s midterm elections). Whatever he decides is likely to be appealed, presumably up to the court that Ms. Kagan seems likely to join.

This case is not primarily about the merits of gay marriage. It is primarily about who gets to decide. The plaintiffs say marriage is a civil right, and when a civil right is assailed, the Supreme Court has no choice but to take command. If the Supreme Court doesn’t protect minority rights, it abdicates its job.

Proposition 8’s defenders retort that gay marriage is not a civil right, because it is not marriage, or not marriage as defined by most Californians. If the court does not defer to the voters’ wishes, it oversteps its bounds.

Ms. Kagan seems to reject both forms of absolutism. Civil rights, she implies, are important, but so is judicial modesty, and a sensible judge balances the two. A sensible judge can say something like, “Same-sex marriage may indeed be a civil right, but not all civil rights demand immediate judicial intervention, and other important interests militate against imposing this one on the whole country right now.”

Viewed in that light, the argument for upholding California’s gay marriage ban has merit — not because the policy is fair or wise (it isn’t) but because it represents a reasonable judgment that the people of California are entitled to make. Barring gay marriage but providing civil unions is not the balance I would choose, but it is a defensible balance to strike, one that arguably takes “a cautious approach to making such a significant change to the institution of marriage” (as the lawyers defending Proposition 8 write in one of their briefs) while going a long way toward meeting gay couples’ needs.

I say this knowing how deeply it stings gay Americans to let states make invidious choices. In June, my partner, Michael, and I married in the District of Columbia. But every time I commute from my office in Washington to my home in Virginia, my marriage magically dissolves like some matrimonial Cheshire Cat, because Virginia constitutionally bans any recognition of it. What straight couple would tolerate that?

Shortly before we married, we visited a lawyer who explained that it would cost thousands of dollars to draw up documents protecting us in states that, like Virginia, treat us as legal strangers — documents making Michael my heir, giving him access to my hospital room, allowing him to make financial decisions should I be incapacitated. Even so, our pricey paperwork could replicate only a few of the perquisites of marriage, and only imperfectly at that. This is how second-class citizenship feels.

But the gay-marriage debate, while assuredly a civil rights argument, is much more than that. It is also a debate about the meaning of marriage, about the pace of change in a conflicted society and about who gets to decide. Whatever the activists on both sides say, nothing in the Constitution requires the Supreme Court to short-circuit the country’s search for a new consensus, either by imposing gay marriage nationwide or by slamming the door on it with an aggressively dismissive ruling. Sometimes the right answer for the courts is to step aside and let politics do its job.

In her testimony, Ms. Kagan described the Supreme Court as “a wondrous institution” and the democratic process as “often messy and frustrating.” She was right, as every veteran of a civil rights struggle can attest. But she was also right to say that the court should be “properly deferential to the decisions of the American people and their elected representatives.” If she can turn those platitudes into a jurisprudence that respects both gay equality and judicial modesty, she will be unpopular on both sides of the marriage debate — and correct.


Jonathan Rauch, a guest scholar at the Brookings Institution, is the author of “Gay Marriage: Why It Is Good for Gays, Good for Straights and Good for America.”

    A ‘Kagan Doctrine’ on Gay Marriage, NYT, 2.7.2010, http://www.nytimes.com/2010/07/03/opinion/03rauch.html

Confirm Elena Kagan

June 30, 2010
The New York Times

Elena Kagan delivered an impressive performance at her Senate confirmation hearing. Assuming the commitments she made were authentic and not simply designed to tranquilize the members of the Judiciary Committee, she could act as an important brake on the current Supreme Court’s alarming tendency to bulldoze through decades of settled precedents. She deserves confirmation as an associate justice.

The hearing was far from illuminating, but it did allow Ms. Kagan to show her fortitude, good humor and, most important, judicial modesty. She said, in dozens of different ways, that she has the highest respect for the legal principle that precedents are to be upheld except in very unusual circumstances. She said precedents should be overturned only if they have proved unworkable over time or have been eroded by other decisions or if important factual circumstances change.

A “doctrine of humility” also entails a respect for Congressional lawmaking, she said, and keeping decisions as narrow as possible in order to enable a wider consensus. “I think results-oriented judging is pretty much the worst kind of judging there is,” she told Senator Ted Kaufman of Delaware, one of many Democrats who blasted the direction of the Roberts court and were seeking assurances that she would not join that march.

Ms. Kagan made it clear that justices need not always bow to the intentions of the Constitution’s authors. She said many of their ideas need to be reinterpreted in light of later advancements, citing search and seizure procedures and whether the First Amendment has anything to do with libel. She rejected the notion that constitutional interpretation is merely a robotic task of calling balls and strikes.

Ms. Kagan stood up firmly to a three-day tantrum thrown by the ranking Republican on the panel, Jeff Sessions of Alabama. He churned considerable political grist out of the nondiscrimination policy at Harvard. That policy, which she defended as law school dean and again this week, barred official campus recruiting by the military because it discriminates against gay men and lesbians. Her defense of Justice Thurgood Marshall from bizarre attacks by Republican senators was heartening.

There is much that we still do not know about Ms. Kagan and her philosophy. It still is not clear where she stands on critical issues of national security, executive power and the growing rights of corporations, and we will not find out until we read her opinions. Democratic senators would have better spent time boring in on those questions than tossing her softballs.

The frustrating lack of enlightenment was hardly surprising given how this process has deteriorated in meaning since the Robert Bork hearings in 1987. Not only are nominees reduced to platitudes about upholding precedents, but even the platitudes are porous. John Roberts Jr. blandly told the Senate that he would respect precedent and act as a passive umpire, then began over-reaching as chief justice to uproot decisions he disliked. Sonia Sotomayor said last year that she understood the individual right to bear arms had been determined by the Supreme Court in 2008, but this week she joined a blistering dissent that said the 2008 decision was wrong. (We agree with her, but her turnaround was striking.)

We hope Ms. Kagan was being candid. Frankly, we had expected somewhat more from her, considering her 1995 article disparaging the hearings process as a “vapid and hollow charade.” She did firmly reassert her position against the military’s “don’t ask, don’t tell” policy and did not shy away from her opposition as solicitor general to the court’s tragic decision to allow unlimited corporate spending in elections. Her legal scholarship has been impressive, as was her work as dean of Harvard Law School and adviser in the Clinton White House. After the hearing, we have increased confidence she will be a good addition to the Supreme Court.

    Confirm Elena Kagan, NYT, 30.6.2010, http://www.nytimes.com/2010/07/01/opinion/01thu1.html

Justices Take Broad View of Business Method Patents

June 28, 2010
The New York Times
By JOHN SCHWARTZ

The door to the patent office should remain open to those who create methods of doing business, the Supreme Court said in a long-awaited decision announced on Monday.

Many legal analysts had anticipated that the court would substantially narrow the rules regarding patents on business methods. The questions the justices raised during oral arguments in November made it clear that several were skeptical of the course of modern patent law.

Justice Sonia Sotomayor, for example, asked whether there could be a patent on a method of speed dating. Justice Stephen G. Breyer asked whether he should be able to obtain a patent for his “great, wonderful, really original method of teaching antitrust law” that “kept 80 percent of the students awake.”

The decision, however, closed off no options to patent seekers, though the justices unanimously declared that the process at issue in the case could not be patented.

The plaintiffs in the case, Bernard L. Bilski and Rand A. Warsaw, tried to patent a system that institutions like businesses and schools could use to hedge the seasonal risks of buying energy. The United States Patent and Trademark Office denied their 1997 application for a patent, and they filed suit.

The narrow question at issue in the case was whether a patent should be granted on processes that did not meet what was known as the “machine-or-transformation” test — that is, the process was not tied to a particular machine or did not change a particular article into a different state or thing.

The case, argued on Nov. 9, was among the decisions released on the last day of the Supreme Court’s term. The justices differed somewhat in their view of the legal reasoning in the decision.

Justice Anthony M. Kennedy, who wrote the 16-page majority opinion, was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. in saying that the United States Court of Appeals for the Federal Circuit was wrong to declare in 2008 that the “machine or transformation” test was the only appropriate test for patenting a process.

Justice Kennedy, however, wrote that “a business method is simply one kind of ‘method’ that is, at least in some circumstances, eligible for patenting.” Still, he added, the law “does not suggest broad patentability of such claimed inventions,” and so “we by no means foreclose the Federal Circuit’s development of other limiting criteria.”

Four other justices — Ruth Bader Ginsburg, Justice Breyer, John Paul Stevens and Justice Sotomayor — argued in a concurring opinion written by Justice Stevens that a broader shift in patent law was called for.

“The court is quite wrong, in my view,” Justice Stevens wrote, “to suggest that any series of steps that is not itself an abstract idea or law of nature may constitute a ‘process’ ” under the law that may be patentable. The court’s logic, he said, “can only cause mischief.” The better result, he said would have been to declare flatly that “business methods are not patentable.”

The scale was apparently tipped by Justice Antonin Scalia, who joined in parts of the majority opinion, and also in a concurrence written by Justice Breyer.

Court analysts suggested that Justice Stevens wrote his 47-page opinion in anticipation of its serving as the majority view, but lost to those who favored a narrower result. “He was swinging for the fences to have something to be remembered for many, many decades to come,” said Yar R. Chaikovsky, a former patent lawyer for Yahoo.

The court, by pursuing a moderate path, has left much unresolved, said James R. Myers, an intellectual property lawyer in Washington. “The Supreme Court’s division generates a significant set of disputes about where the boundaries ought to be drawn,” he said, “and this case does not — and explicitly refuses — to draw the boundary.”

Manny W. Schecter, chief patent counsel for I.B.M., which holds business process patents but has urged the court to tighten the rules concerning them, said that the ruling did provide a measure of guidance.

“Because of this ruling, we know there are limits to business method patents,” Mr. Schecter said. “But the court declined to take an extreme position.”

That measured middle ground, Mr. Schecter added, was “exactly what I.B.M. argued for.”

The lawyer who represented Mr. Bilski and Mr. Warsaw, J. Michael Jakes, said that he and his clients were “disappointed by today’s decision” because they believed that the hedging method should have been patentable. “We are pleased,” he continued, with the broader message of the case — that business methods could be patented, and that process patents would not be limited to the machine-or-transformation test.

He said the patent application from Mr. Bilski and Mr. Warsaw would be reworked and resubmitted to the patent office.


Steve Lohr contributed reporting.

    Justices Take Broad View of Business Method Patents, NYT, 28.6.2010, http://www.nytimes.com/2010/06/29/business/29patent.html

Justices Uphold Sarbanes-Oxley Act

June 28, 2010
The New York Times
By FLOYD NORRIS and ADAM LIPTAK

The first group established by Congress to regulate the accounting industry survived a constitutional challenge on Monday, emerging only with its members having a little less job security.

But the Public Company Accounting Oversight Board still faces a major problem of dealing with a number of foreign countries that refuse to cooperate with it. And it is soon likely to get a majority of new members, perhaps including — for the first time — an auditor who has experience being regulated by the board.

In its ruling, the Supreme Court unanimously rejected a challenge to the constitutionality of the Sarbanes-Oxley Act of 2002, which established the board and sought to reform corporate America after the Enron and WorldCom accounting scandals.

A small accounting firm and a group called the Free Enterprise Fund had asked the court to rule the Public Company Accounting Oversight Board was illegal because it was appointed by the Securities and Exchange Commission, rather than the president.

Because the Sarbanes-Oxley Act contained no severability clause, some legal commentators forecast that such a ruling would lead to the entire act being thrown out, forcing Congress to act again or return to the law as it was before the act was passed.

Instead, the justices unanimously ruled that the board has been legally established and appointed. There was a 5-to-4 split, but it concerned only the way members of the board can be removed from office.

As a result of that decision, the S.E.C. will now be able to remove members at will, rather than being able to do so only if there were good cause to do so. There is no indication that the S.E.C. has any desire to fire any board members, so as a practical matter that ruling is unlikely to have any effect, unless it perhaps makes potential board members less likely to accept the job.

“The Sarbanes-Oxley Act remains ‘fully operative as a law’ with these tenure restrictions excised,” wrote Chief Justice John G. Roberts Jr. in the majority opinion.

While the decision’s immediate effect may be limited, it touched off a furious debate among the justices about the limits of executive power. Justice Stephen G. Breyer read his dissent from the bench and warned that the majority had imperiled the positions of hundreds and perhaps thousands of government officials.

Proponents of the “unitary executive” theory have long maintained that Congress should not have the power to protect agencies responsible for executing the law from presidential control. In the case of the accounting board, the S.E.C., but not the president, could remove members of the board, and only for cause. One level up, the president can remove S.E.C. commissioners, but again only for cause.

Chief Justice Roberts, writing for himself and Justice Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr., said that double-insulation violated the principles of separation of powers.

“The buck stops with the president, in Harry Truman’s famous phrase,” Chief Justice Roberts wrote.

“The Constitution that makes the president accountable to the people for executing the laws also gives him the power to do so,” the chief justice continued. “That power includes, as a general matter, the authority to remove those who assist him in carrying out his duties. Without such power, the president could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else.”

In his written dissent, joined by Justice John Paul Stevens, Ruth Bader Ginsburg and Sonia Sotomayor, Justice Breyer said that supervision of the accounting board “violates no separation-of-powers principle.” But it does, he said, call into question the constitutional status of many government officials.

“Reading the criteria as stringently as possible,” he wrote, “I still see no way to avoid sweeping hundreds, perhaps thousands of high level government officials within the scope of the court’s holding, putting their job security and their administrative actions and decisions constitutionally at risk.”

At least potentially among them, he said, were the leadership of the Nuclear Regulatory Commission, the Social Security Administration, administrative law judges and military officers.

The decision in the case, Free Enterprise Fund v. Public Company Accounting Oversight Board, No. 08-861, was a defeat for Solicitor General Elena Kagan, who argued it in December and whose confirmation hearings for a seat on the Supreme Court began on Monday.

With the issue settled, the S.E.C., under the direction of its chairwoman, Mary L. Schapiro, is expected to promptly act to fill three of the five seats on the accounting board. Under the law, board members are appointed to five-year terms and can serve up to two terms. But two of the four current members, Charles D. Niemeier and Bill Gradison, have completed their second terms and stay on only because no successors have been selected.

The commission delayed action because it was doubtful many good candidates would want the jobs before the high court issued its decision.

When Congress established the board, it specified that only two of the five members could be certified public accountants — and both those jobs went to former S.E.C. officials — Daniel L. Goelzer and Mr. Niemeier.

Mr. Goelzer’s second term will not end until 2012, and he is acting chairman. But Mr. Niemeier is likely to be replaced soon, and the top accounting firms have been lobbying the commission to have one of their partners, or former partners, named to the job. The S.E.C. is likely to designate one of the new appointees as chairman.

In a statement, Mr. Goelzer said the board was pleased it would be able to “carry out its important mission of overseeing public company audits in order to protect investors and promote the public interest.”

Despite the fact the board was established by Congress, it is not formally a government agency and does not have to comply with federal pay schedules. Members are paid more than $500,000 a year.

The law requires that any auditor who is involved in an audit of a company that sells securities on the public market in this country be registered. That includes many foreign firms, which may be involved in auditing foreign branches of American firms or may audit foreign firms that choose to list securities in the United States.

But the United States has been unable to persuade several important jurisdictions — the European Union, Switzerland and China — to allow inspections of auditing firms based there. The board had been able to do joint inspections in some members of the European Union, but it banned that in 2009 because of issues about sharing information. Congress may need to change the law to allow the board to share documents with equivalent foreign boards.

A major issue for the new members of the board will be working, with the administration and perhaps Congress as well as the S.E.C., to find a way around that issue.

When the Sarbanes-Oxley law took effect, there was a lot of complaining about the expense of a requirement that companies assess their management controls and that auditors offer an opinion on those controls. But the board worked to reduce the cost of those audits, and a survey of 400 corporate executives earlier this year by Protiviti, a consulting and internal auditing firm, found that 70 percent of the executives thought the benefits of complying were greater than the costs.

The financial regulation bill approved by a House-Senate conference committee last week would expand the authority of the board to inspect accounting firms to include firms that audit registered broker dealers, even if the firm has no public clients.

Until the Sarbanes-Oxley law was enacted, there had been little national regulation of accountants. Accounting firms had bitterly opposed efforts by the S.E.C. to approve regulations on auditor independence from clients. The S.E.C. could bar an auditor or a firm from certifying audits of public companies — effectively a death penalty — but doing that to a major firm seemed highly unlikely.

The board’s inspections and regulations have generally won praise however, and major accounting firms said before the court ruling that they hoped the board would survive, as it did.

    Justices Uphold Sarbanes-Oxley Act, NYT, 28.6.2010, http://www.nytimes.com/2010/06/29/business/29accounting.html

The Court: Ignoring the Reality of Guns

June 28, 2010
The New York Times

About 10,000 Americans died by handgun violence, according to federal statistics, in the four months that the Supreme Court debated which clause of the Constitution it would use to subvert Chicago’s entirely sensible ban on handgun ownership. The arguments that led to Monday’s decision undermining Chicago’s law were infuriatingly abstract, but the results will be all too real and bloody.

This began two years ago, when the Supreme Court disregarded the plain words of the Second Amendment and overturned the District of Columbia’s handgun ban, deciding that the amendment gave individuals in the district, not just militias, the right to bear arms. Proceeding from that flawed logic, the court has now said the amendment applies to all states and cities, rendering Chicago’s ban on handgun ownership unenforceable.

Once again, the court’s conservative majority imposed its selective reading of American history, citing the country’s violent separation from Britain and the battles over slavery as proof that the authors of the Constitution and its later amendments considered gun ownership a fundamental right. The court’s members ignored the present-day reality of Chicago, where 258 public school students were shot last school year — 32 fatally.

Rather than acknowledging Chicago’s — and the nation’s — need to end an epidemic of gun violence, the justices spent scores of pages in the decision analyzing which legal theory should bind the Second Amendment to the states. Should it be the due process clause of the 14th Amendment, or the amendment’s immunities clause? The argument was not completely settled because there was not a five-vote majority for either path.

The issue is not trivial; had the court backed the immunity-clause path championed by Justice Clarence Thomas, it might have had the beneficial effect of applying more aspects of the Bill of Rights to the states. That could make it easier to require that states, like the federal government, have unanimous jury verdicts in criminal trials, for example, or ban excessive fines.

While the court has now twice attacked complete bans on handgun ownership, the decision left plenty of room for restrictions on who can buy and sell arms.

The court acknowledged, as it did in the District of Columbia case, that the amendment did not confer “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” It cited a few examples of what it considered acceptable: limits on gun ownership by felons or the mentally ill, bans on carrying firearms in sensitive places like schools or government buildings and conditions on gun sales.

Mayors and state lawmakers will have to use all of that room and keep adopting the most restrictive possible gun laws — to protect the lives of Americans and aid the work of law enforcement officials. They should continue to impose background checks, limit bulk gun purchases, regulate dealers, close gun-show loopholes.

They should not be intimidated by the theoretical debate that has now concluded at the court or the relentless stream of lawsuits sure to follow from the gun lobby that will undoubtedly keep pressing to overturn any and all restrictions. Officials will have to press back even harder. Too many lives are at stake.

    The Court: Ignoring the Reality of Guns, NYT, 28.6.2010,  http://www.nytimes.com/2010/06/29/opinion/29tue1.html

Justices Say Gun Rights Apply Locally

The New York Times
June 28, 2010
By THE ASSOCIATED PRESS

WASHINGTON (AP) -- The Supreme Court held Monday that the Constitution's Second Amendment restrains government's ability to significantly limit "the right to keep and bear arms," advancing a recent trend by the John Roberts-led bench to embrace gun rights.

By a narrow, 5-4 vote, the justices signaled, however, that less severe restrictions could survive legal challenges.

Writing for the court in a case involving restrictive laws in Chicago and one of its suburbs, Justice Samuel Alito said that the Second Amendment right "applies equally to the federal government and the states."

The court was split along familiar ideological lines, with five conservative-moderate justices in favor of gun rights and four liberals opposed. Chief Justice Roberts voted with the majority.

Two years ago, the court declared that the Second Amendment protects an individual's right to possess guns, at least for purposes of self-defense in the home.

That ruling applied only to federal laws. It struck down a ban on handguns and a trigger lock requirement for other guns in the District of Columbia, a federal city with a unique legal standing. At the same time, the court was careful not to cast doubt on other regulations of firearms here.

Gun rights proponents almost immediately filed a federal lawsuit challenging gun control laws in Chicago and its suburb of Oak Park, Ill, where handguns have been banned for nearly 30 years. The Brady Center to Prevent Gun Violence says those laws appear to be the last two remaining outright bans.

Lower federal courts upheld the two laws, noting that judges on those benches were bound by Supreme Court precedent and that it would be up to the high court justices to ultimately rule on the true reach of the Second Amendment.

The Supreme Court already has said that most of the guarantees in the Bill of Rights serve as a check on state and local, as well as federal, laws.

Monday's decision did not explicitly strike down the Chicago area laws, ordering a federal appeals court to reconsider its ruling. But it left little doubt that they would eventually fall.

Still, Alito noted that the declaration that the Second Amendment is fully binding on states and cities "limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values."

    Justices Say Gun Rights Apply Locally, NYT, 28.6.2010, http://www.nytimes.com/aponline/2010/06/28/us/AP-US-SupremeCourt-Guns.html

High Court Turns Down Both Sides in Tobacco Fight

June 28, 2010
The New York Times
By THE ASSOCIATED PRESS
Filed at 10:19 a.m. ET

WASHINGTON (AP) -- The Supreme Court has rejected appeals by the Obama administration and the nation's largest tobacco companies to get involved in a legal fight about the dangers of cigarette smoking that has stretched more than 10 years.

The court's action, issued without comment Monday, leaves in place court rulings that the tobacco industry illegally concealed the dangers of smoking for decades. But it also prevents the administration from trying to extract billions of dollars from the industry either in past profits or to fund a national campaign to curb smoking.

In asking the court to hear its appeal, the administration said the industry's half-century of deception ''has cost the lives and damaged the health of untold millions of Americans.''

The appeal was signed by Elena Kagan, the solicitor general, a couple of months before President Barack Obama nominated her to the Supreme Court.

Philip Morris USA, the nation's largest tobacco maker, its parent company Altria Group Inc., R.J. Reynolds Tobacco Co., British American Tobacco Investments Ltd. and Lorillard Tobacco Co. filed separate but related appeals that took issue with a federal judge's 1,600-page opinion and an appeals court ruling that found the industry engaged in racketeering and fraud over several decades.

In 2006, U.S. District Judge Gladys Kessler ruled that the companies engaged in a scheme to defraud the public by falsely denying the adverse health effects of smoking, concealing evidence that nicotine is addictive and lying about their manipulation of nicotine in cigarettes to create addiction. A federal appeals court in Washington upheld the findings.

At the same time, however, the courts have said the government is not entitled to collect $280 billion in past profits or $14 billion for a national campaign to curb smoking. The high court previously denied the government's appeal on that issue.

The companies argue that the government improperly used the Racketeer Influenced and Corrupt Organizations, or RICO law, against them. The racketeering law often is employed against the Mafia and other criminal organizations.

The companies also say the courts' decision to brand their statements about smoking as fraudulent unfairly denied them their First Amendment rights to engage in the public-health debate about smoking.

The administration said the money it seeks from the industry is commensurate with the harm it has caused.

The public health groups in the case are: American Cancer Society; American Heart Association; American Lung Association; Americans for Nonsmokers' Rights; National African American Tobacco Prevention Network and Tobacco-Free Kids Action Fund.

The groups are most interested in forcing the tobacco companies to pay for a wide-ranging education campaign to discourage people from taking up smoking and helping others quit.

    High Court Turns Down Both Sides in Tobacco Fight, NYT, 28.6.2010, http://www.nytimes.com/aponline/2010/06/28/us/politics/AP-US-Supreme-Court-Tobacco-Case.html

Court: Christian Group Can't Bar Gays, Get Funding

June 28, 2010
Filed at 10:47 a.m. ET
The New York Times
By THE ASSOCIATED PRESS

WASHINGTON (AP) -- The Supreme Court says a law school can legally deny recognition to a Christian student group that won't let gays join.

The court on Monday turned away an appeal from the Christian Legal Society, which sued to get funding and recognition from the University of California's Hastings College of the Law.

The CLS requires that voting members sign a statement of faith and regards ''unrepentant participation in or advocacy of a sexually immoral lifestyle'' as being inconsistent with that faith.

But Hastings said no recognized campus groups may exclude people due to religious belief or sexual orientation.

The court upheld the lower court rulings saying the Christian group's First Amendment rights of association, free speech and free exercise were not violated by the college's decision.

    Court: Christian Group Can't Bar Gays, Get Funding, NYT, 28.6.2010, http://www.nytimes.com/aponline/2010/06/28/us/politics/AP-US-Supreme-Court-Campus-Christians.html

Balance of Prosecutorial Power

June 24, 2010
The New York Times

Prosecutors and lawmakers will have to work harder now that the Supreme Court has narrowed the excessively broad federal “honest services” law. Any benefit the ruling gives to public and private miscreants — including Joseph Bruno, Rod Blagojevich and Jeffrey Skilling, who have been charged with or convicted of violating the law — should quickly inspire more thorough investigations and sharper new laws to combat corruption.

Passed in 1988, the law made it a federal crime, under the mail-fraud statute, “to deprive another of the intangible right of honest services.” Intangible was right; almost no one knew what the phrase actually meant. Prosecutors most often used it when they suspected that a politician had done something wrong but were not sure they could prove outright bribery or corruption.

In the dubious 2007 prosecution, for example, of Don Siegelman, a former governor of Alabama, the Justice Department claimed that a political contribution to a campaign to adopt a state lottery was actually a bribe to get Mr. Siegelman to appoint the contributor to a hospital board.

Since Mr. Siegelman, a Democrat, never actually received any money, the bribery case was hard to make. Instead, he was convicted of five counts of honest services fraud, one of bribery and one of obstruction. (The case had strong political overtones, and Mr. Siegelman’s appeal may be bolstered by Thursday’s ruling.)

Six justices on the Supreme Court, led by Ruth Bader Ginsburg, said the law should be limited to clear cases of bribery and kickbacks; three other justices, led by Antonin Scalia, would have thrown out the entire law. All agreed that in its current form, it was far too vague.

Mr. Skilling, the former chief executive of Enron, who brought one of the cases on which the court ruled, was convicted of several charges involving Enron’s collapse, including honest services fraud. A lower court will have to reconsider his conviction.

Justice Ginsburg practically invited Congress to speak more clearly and find new ways to criminalize self-dealing. But she made it clear, in a footnote, that it would have to do so with real specificity. It is not enough, she wrote, to say that an employee cannot further his own undisclosed financial interest while purporting to act in the interest of others. Any new law also would have to make clear how significant the conflict of interest has to be before it amounts to fraud, she said, and would have to specify how these disclosures should be made.

The ruling should probably not affect the overall prosecution of Mr. Blagojevich, the former governor of Illinois who is now on trial for a host of crimes. But it may well reverse the conviction of Mr. Bruno, the former majority leader of the New York Senate who was sentenced last month to two years in federal prison after being convicted of two counts of honest services fraud. Using his official position, he earned millions off companies and unions trying to do business with the state.

If Albany and Washington had stronger and clearer laws prohibiting conflicts of interest and self-dealing, prosecutors would have better tools than the “honest services” law. The Supreme Court’s unanimity sends a message to state and federal lawmakers to act now.

    Balance of Prosecutorial Power, 24.6.2010, http://www.nytimes.com/2010/06/25/opinion/25fri1.html

Rolling Back a Law Born of Enron

June 24, 2010
The New York Times
By FLOYD NORRIS

The timing is exquisite. First the Supreme Court of the United States provided a significant legal victory to the mastermind behind one of the greatest corporate frauds in American history. Next the court may throw out the law that Congress passed to reform corporate America — a law inspired by that very fraud.

The end of a Supreme Court term is often the most interesting. The cases that produced the biggest arguments are delayed until the last minute — and that minute is upon us.

The term ends next week. It is expected that the final rulings will appear on Monday. It is then that the court will decide whether to throw out the Sarbanes-Oxley Act.

If it does, it will use the same basic argument it used Thursday. It will blame Congress for writing bad laws.

And that will clear the way for Congress, if it has the will, to swiftly rescue corporate reform and assure that future crooked corporate and government officials cannot take advantage of the rulings.

In one case decided Thursday, Jeffrey K. Skilling, the former chief executive of the Enron fraud, persuaded the Supreme Court that the concept of committing fraud through depriving an employer of “honest services” was not adequately defined in the law.

If the executive took a bribe or a kickback, then that is illegal under the law, the justices concluded. But if he did something else equally outrageous, the law is too vague and is therefore unconstitutional.

For Mr. Skilling, the victory is only partial and could prove fleeting. The justices refused to order a new trial for him. There were other legal theories advanced by the government in charging Mr. Skilling with conspiracy to commit fraud, and the lower courts will now hear arguments over whether the verdict was amply justified by evidence supporting the other theories.

The high court was equally kind to another disgraced corporate executive. Using the Skilling case as a precedent, it threw into doubt the conviction of Conrad M. Black, the newspaper baron who controlled The Daily and Sunday Telegraph of London and The Chicago Sun-Times. The lower courts will consider whether other prosecution arguments can still justify the verdict.

The decision expected next week is nominally about the Public Company Accounting Oversight Board and concerns an obscure constitutional clause regarding presidential powers. But it could lead to the entire Sarbanes-Oxley Act being thrown out.

The Sarbanes-Oxley Act was passed by Congress in 2002. The Enron scandal — in which it turned out that one of the largest companies in America had ridden roughshod over, under and through accounting rules to report billions in profits when it had no hope of paying its debts — got that effort started. The final push came when the WorldCom scandal broke.

Accounting firms had largely escaped any real regulation before, and the law created the board to inspect and regulate the firms. Board reports have forced major firms to change practices, and the board is generally viewed as having done a good job.

Under the law, the five members of the board are appointed by the Securities and Exchange Commission but are legally not government employees. The board is financed by fees paid by publicly listed companies, and its budget is subject to approval by the S.E.C.

The argument before the court is that under the Constitution, Congress should have allowed the president — or someone he directly appoints and can remove at will — to make the appointments. That argument could well appeal to some justices, particularly Samuel A. Alito Jr., who has supported stronger executive power.

By itself, that dispute over appointment powers might not be too important. But in passing the Sarbanes-Oxley Act, Congress did not put in a severability clause — a normal part of many laws saying that if part of the law is unconstitutional, the rest can stand on its own. So that has raised the prospect that the entire law would fall at the same time.

Out would go requirements for audits of corporate financial controls and for corporate executives to certify that their financial statements were accurate, among other things.

Just what Congress might do if that happened has become a subject of some speculation. Some corporate officials fear that in the current climate, Congress could enact new and tougher regulations. “It is conceivable that the re-proposed legislation would become a Christmas tree on which every ornament of corporate reform and governance will be hung,” said Susan Hackett, the general counsel of a trade group for corporate lawyers, the Association of Corporate Counsel.

But there are also signs that Congress is in no such mood. The financial reform bill that is expected to be passed seems likely to repeal the requirement for audited financial controls for most public companies, leaving it effective only for those with revenue above $75 million.

It also appears likely to grant corporate boards one of their greatest desires, by blocking planned S.E.C. rules aimed at permitting dissident shareholders from putting director candidates on the ballots sent to shareholders by the company. Instead, it would allow no such nominations unless the dissident owned at least 5 percent of the stock, a very high level.

In 2007, some of the same senators now supporting that provision, including Christopher J. Dodd, the Banking Committee chairman, argued that a 5 percent figure would gut any such rule.

It is interesting to consider why the court thinks it is Congress’s fault that it must rule as it did. The legal concepts at stake were largely based on judicial opinions beginning in the 1940s. The court blocked those opinions in 1987, saying that the law did not justify the “honest services” doctrine and inviting Congress to fix that.

Congress did just that in 1988. But now the justices say Congress did not define the doctrine very well. So it looked at the pre-1987 rulings and decided that they amply established that bribery and kickbacks were covered. But there was not enough consensus on other ways of violating that doctrine, like simple thievery. So Mr. Black and Mr. Skilling may walk. If Congress is unhappy, it can pass a better law.

If ever there was a corporate executive who viewed shareholders as inconvenient pests, it was Mr. Black. Eventually, after those shareholders complained over and over, a board committee advised by Richard C. Breeden, a former S.E.C. chairman, concluded that Mr. Black and his colleagues had been running a “corporate kleptocracy.” Facts the committee set out led to the Mr. Black’s conviction.

Mr. Black explained his concept of corporate governance in a 2002 e-mail message when he was under criticism from shareholders for excessive personal spending of corporate money:

“I’m not prepared to re-enact the French Revolutionary renunciation of the rights of nobility. We have to find a balance between an unfair taxation on the company and a reasonable treatment of the founder-builders-managers. We are proprietors, after all, beleaguered though we may be.”

Thanks to the Supreme Court, he may soon feel less beleaguered. Next week, all of corporate America may feel the same way.

    Rolling Back a Law Born of Enron, NYT, 24.6.2010, http://www.nytimes.com/2010/06/25/business/25norris.html

A Bruise on the First Amendment

June 21, 2010
The New York Times

Forty-three years ago, when the nation lived in fear of Communist sympathizers and saboteurs, the Supreme Court said that even the need for national defense could not reduce the First Amendment rights of those associating with American Communists.

On Monday, in the first case since the Sept. 11, 2001, attacks to test free speech against the demands of national security in the age of terrorism, the ideals of an earlier time were eroded and free speech lost. By preserving an extremely vague prohibition on aiding and associating with terrorist groups, the court reduced the First Amendment rights of American citizens.

The case was not about sending money to terrorist organizations or serving as their liaison, activities that are clearly and properly illegal. And it did not stop people from simply saying they support the goals of groups like Hamas or Al Qaeda, as long as they are not actually working with those groups. But it could have a serious impact on lawyers, journalists or academics who represent or study terrorist groups.

The case arose after an American human rights group, the Humanitarian Law Project, challenged the law prohibiting “material support” to terror groups, which was defined in the 2001 Patriot Act to include “expert advice or assistance.” The law project wanted to provide advice to two terrorist groups on how to peacefully resolve their disputes and work with the United Nations. The two groups — the Liberation Tigers of Tamil Eelam and the Kurdistan Workers’ Party — have violent histories and their presence on the State Department’s official list of terrorist groups is not in dispute.

But though the law project was actually trying to reduce the violence of the two groups, the court’s opinion, written by Chief Justice John Roberts Jr. on behalf of five other justices, said that did not matter and ruled the project’s efforts illegal. Even peaceful assistance to a terror group can further terrorism, the chief justice wrote, in part by lending them legitimacy and allowing them to pretend to be negotiating while plotting violence.

In a powerful dissent, Justice Stephen Breyer, also speaking for Justices Ruth Bader Ginsburg and Sonia Sotomayor, swept away those arguments. If providing legitimacy to a terror group was really a crime, he wrote, then it should also be a crime to independently legitimize a terror group through speech, which it is not. Never before, he said, had the court criminalized a form of speech on these kinds of grounds, noting with particular derision the notion that peaceful assistance buys negotiating time for an opponent to achieve bad ends.

The court at least clarified that acts had to be coordinated with terror groups to be illegal, but many forms of assistance may still be a criminal act, including filing a brief against the government in a terror-group lawsuit. Academic researchers doing field work in conflict zones could be arrested for meeting with terror groups and discussing their research, as could journalists who write about the activities and motivations of these groups, or the journalists’ sources. The F.B.I. has questioned people it suspected as being sources for a New York Times article about terrorism, and threatened to arrest them for providing material support.

There remains a reasonable way of resolving these disputes. Justice Breyer proposed a standard that would criminalize this kind of speech or association “only when the defendant knows or intends that those activities will assist the organization’s unlawful terrorist actions.” Because he was unable to persuade a majority on the court, Congress needs to enact this standard into law.

    A Bruise on the First Amendment, NYT, 21.6.2010, http://www.nytimes.com/2010/06/22/opinion/22tue1.html

Court Allows New Trial in Hormone Therapy Case

June 21, 2010
The New York Times
By THE ASSOCIATED PRESS

WASHINGTON (AP) — The Supreme Court is allowing a new trial in the case of a woman who got breast cancer after taking hormone replacement therapy and is seeking punitive damages against Wyeth Pharmaceuticals.

The justices on Monday rejected Wyeth’s attempt to block the trial because it is to be limited to punitive damages. Wyeth also wanted the high court to throw out $2.75 million compensatory damages that the woman, Donna Scroggin of Little Rock, Ark., won after suing Wyeth and Upjohn Co., another drug maker. Both companies now are owned by Pfizer Inc.

A jury also awarded Scroggin $27 million in punitive damages after concluding that Wyeth inadequately warned her that its drugs Premarin and Prempro carried an increased risk of breast cancer.

A federal judge struck down the punitive damages award, saying certain testimony from former Food and Drug Administration official Dr. Suzanne Parisian, who was the plaintiff’s regulatory expert, shouldn’t have been allowed at trial.

The 8th United States Circuit Court of Appeals in St. Louis ordered the partial retrial, limited to punitive damages.

Chief Justice John Roberts, who owns Pfizer stock, did not take part in the consideration of the case.

The case is Wyeth v. Scroggin, 09-1123.

    Court Allows New Trial in Hormone Therapy Case, NYT, 21.6.2010, http://www.nytimes.com/2010/06/22/business/22pfizer.html

Court Backs Monsanto on Biotech Seed Sales

June 21, 2010
The New York Times
By REUTERS
 

WASHINGTON (Reuters) — The Supreme Court ruled on Monday that a federal judge had erred in prohibiting the planting of Monsanto’s genetically modified alfalfa seed until a federal government agency completed a detailed environmental review.

By a 7-to-1 vote, the justices reversed the lower-court ruling in their first decision involving genetically modified crops. At issue in the case was an environmental impact study on how the Roundup Ready seed could affect nearby crops.

Environmental groups and conventional seed companies, led by Geertson Seed Farms, had sued the Agriculture Department in 2006 to force it to rescind its approval of the Monsanto alfalfa seed until it did a full environmental study.

Monsanto, based in St. Louis, intervened on the government’s side in the case, and had appealed to the Supreme Court.

Alfalfa is the fourth-largest crop grown in the United States, covering about 23 million acres annually, Monsanto has said.

United States District Judge Charles Breyer in San Francisco issued the injunction barring the nationwide planting of the alfalfa seeds pending the environmental review. His decision was upheld by a federal appeals court.

In the Supreme Court’s main ruling, Justice Samuel Alito said the district court had abused its discretion in barring the Agriculture Department agency from carrying out a partial deregulation and in prohibiting the planting of the seeds, pending the completion of the environmental review.

Judge Alito also said in the opinion that the federal judge had erred in entering the nationwide injunction against planting the seeds.

Shares of Monsanto were up 0.4 percent at $50.57 in morning trading.

    Court Backs Monsanto on Biotech Seed Sales, NYT, 21.6.2010, http://www.nytimes.com/2010/06/22/business/22bizcourt.html

Supreme Court Affirms Ban on Aiding Groups Tied to Terror

June 21, 2010
The New York Times
By ADAM LIPTAK

WASHINGTON — Rejecting a First Amendment challenge, the Supreme Court on Monday upheld a federal law that bars providing “material support” to terrorist organizations.

The decision was the court’s first ruling on the free speech and association rights of American citizens in the context of terrorism since the Sept. 11 attacks.

Chief Justice John G. Roberts Jr., writing for the majority in the 6-to-3 decision, said the law’s prohibition of providing some forms of intangible assistance to groups said by the State Department to engage in terrorism did not violate the First Amendment.

“At bottom, plaintiffs simply disagree with the considered judgment of Congress and the executive that providing material support to a designated foreign terrorist organization — even seemingly benign support — bolsters the terrorist activities of that organization,” the chief justice wrote. He was joined by Justices John Paul Stevens, Antonin Scalia, Clarence Thomas, Anthony M. Kennedy and Samuel A. Alito Jr,

“Given the sensitive interests in national security and foreign affairs at stake,” Chief Justice Roberts continued, “the political branches have adequately substantiated their determination that, to serve the government’s interest in preventing terrorism, it was necessary to prohibit providing material support in the form of training, expert advice, personnel, and services to foreign terrorist groups, even if the supporters meant to promote only the groups’ nonviolent ends.”

Justice Stephen G. Breyer took the unusual step of summarizing his dissent from the bench. He wrote that the majority had been too credulous in accepting the government’s argument that national security concerns required restrictions on the challengers’ speech, and “failed to insist upon specific evidence, rather than general assertion.”

In his dissent, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, Justice Breyer concluded that the majority “deprives the individuals before us of the protection the First Amendment demands.”

The law was challenged by Ralph D. Fertig, a civil rights activist who said he wanted to help a militant Kurdish group in Turkey find peaceful ways to achieve its goals.

In 1997, Secretary of State Madeleine K. Albright designated some 30 groups under the law, including Hamas, Hezbollah, the Khmer Rouge and the Kurdistan Workers’ Party. The United States says the Kurdish group, sometimes called the P.K.K., has engaged in widespread terrorist activities, including bombings and kidnappings, and “has waged a violent insurgency that has claimed over 22,000 lives.”

Since 2001, the government says, it has prosecuted about 150 defendants for violating the material-support law, obtaining roughly 75 convictions.

The federal appeals court in San Francisco ruled in 2007 that bans on training, service and some kinds of expert advice were unconstitutionally vague. But it upheld the bans on personnel and expert advice derived from scientific or technical knowledge.

The cases are Holder v. Humanitarian Law Project, No. 08-1498, and Humanitarian Law Project v. Holder, No. 09-89.

    Supreme Court Affirms Ban on Aiding Groups Tied to Terror, NYT, 21.6.2010, http://www.nytimes.com/2010/06/22/us/politics/22scotus.html

Mere Silence Doesn’t Invoke Miranda, Justices Say

June 1, 2010
The New York Times
By ADAM LIPTAK

WASHINGTON — Criminal suspects seeking to protect their right to remain silent must speak up to invoke it, the Supreme Court ruled on Tuesday, refining the court’s landmark 1966 ruling in Miranda v. Arizona.

Justice Anthony M. Kennedy, writing for the majority in a 5-to-4 decision that split along familiar ideological lines, did not disturb Miranda’s requirement that suspects be told they have the right to remain silent. But he said courts need not suppress statements made by defendants who received such warnings, did not expressly waive their rights and spoke only after remaining silent through hours of interrogation.

Justice Sonia Sotomayor, in her first major dissent, said the decision “turns Miranda upside down” and “bodes poorly for the fundamental principles that Miranda protects.”

Monday’s decision followed two in February that also narrowed and clarified the scope of the Miranda decision. One allowed police officers to vary the wording of the warning; the other allowed a second round of questioning of suspects who had invoked their rights so long as two weeks had passed since their release from custody.

The latest case concerned Van Chester Thompkins, a Michigan man accused of shooting another man to death in 2000 outside a mall. Arrested a year later, Mr. Thompkins was read his Miranda rights but refused to sign a form acknowledging that he understood them.

Mr. Thompkins then remained almost entirely silent in the face of three hours of interrogation, though he did say that his chair was hard and that he did not want a peppermint.

After two hours and 45 minutes of questioning, Mr. Thompkins said yes in response to each of three questions: “Do you believe in God?” “Do you pray to God?” And, crucially, “Do you pray to God to forgive you for shooting that boy down?”

His affirmative response to the last question was used against him at trial, and he was convicted of first-degree murder. The federal appeals court in Cincinnati ruled in 2008 that his statement should have been excluded because prosecutors could not prove that Mr. Thompkins had knowingly and voluntarily waived his right to remain silent.

Justice Kennedy acknowledged that “some language in Miranda could be read to indicate that waivers are difficult to establish absent an explicit written waiver or a formal, express oral statement.”

Indeed, the Miranda decision said that “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.” It added that the government faced “a heavy burden” in trying to prove that a suspect’s waiver was knowing and intelligent.

Justice Kennedy said that decisions since Miranda had undercut its language and that a more sensible rule put the burden on suspects to invoke their rights.

“A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police,” Justice Kennedy wrote. Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. joined Justice Kennedy’s opinion.

In her dissent, Justice Sotomayor said the majority had created a kind of paradox. “A suspect who wishes to guard his right to remain silent,” she wrote, “must, counterintuitively, speak.”

Justice Kennedy said that people who knew their rights and acted “in a manner inconsistent with their exercise” might be presumed to have waived their rights, meaning that responding to police questioning is itself an implied waiver of the right to remain silent.

Justice Sotomayor, in her dissent, said “these principles flatly contradict” earlier decisions from the court.

“At best, the court today creates an unworkable and conflicting set of presumptions,” she wrote. “At worst, it overrules sub silentio an essential aspect of the protections Miranda has long provided.”

The better practice in the face of ambiguous responses from a suspect, Justice Sotomayor wrote, would be for the police to ask follow-up questions like, “Do you want to talk to us?”

Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer joined Justice Sotomayor’s dissent.

Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, a victims’ rights group, said Monday’s decision, Berghuis v. Thompkins, No. 08-1470, was a sensible accommodation.

“The Supreme Court recognized the practical realities that the police face in dealing with suspects,” Mr. Scheidegger said. “They don’t always answer the waiver question clearly. When they do not, the bright-line rule of Miranda should not apply, and the statement should be admissible as long as it is not compelled.”

The court also issued decisions in cases involving torture victims and people convicted of sex crimes.

In Samantar v. Yousuf, No. 08-1555, the court unanimously removed one possible legal roadblock to a suit against Mohamed Ali Samantar, who served as Somalia’s minister of defense and prime minister and now lives in Virginia. The plaintiffs in the case said Mr. Samantar had directed a campaign of torture and killings against them and their families.

Mr. Samantar, who has called those accusations baseless, argued that the Foreign Sovereign Immunities Act of 1976 provided him with immunity from suit.

The court, in an opinion by Justice Stevens, said that law applied to foreign states and the entities they controlled. It does not, Justice Stevens wrote, “include foreign officials.”

But Justice Stevens went on to say that Mr. Samantar may nonetheless be immune from suit under other legal principles, emphasizing that the court had decided a narrow question.

“Whether petitioner may be entitled to immunity under the common law, and whether he may have other valid defenses to the grave charges against him,” Justice Stevens wrote, “are matters to be addressed in the first instance” by the trial court.

In Carr v. United States, No. 08-1301, the court considered a 2006 federal law that made it a crime for sex offenders to fail to register with the authorities after traveling to another state. The question in the case was whether that travel could take place before the law became effective.

Justice Sotomayor, writing for the majority in the 6-to-3 decision, said the law applied to post-enactment travel. She relied largely on the law’s use of the present tense in its use of the word “travels.”

In dissent, Justice Alito, writing for himself and Justices Thomas and Ginsburg, said that interpretation, made at some length, ignored other more plausible readings of the law.

“A bad argument,” Justice Alito said of Justice Sotomayor’s reasoning, “does not improve with repetition.”

    Mere Silence Doesn’t Invoke Miranda, Justices Say, NYT, 1.6.2010, http://www.nytimes.com/2010/06/02/us/02scotus.html

A New Standard of Decency

May 17, 2010
The New York Times

Monday’s welcome Supreme Court decision, banning sentences of life without parole for juvenile criminals who do not commit murder, recognizes that children mature and should not be irrevocably punished for a childhood act short of killing. But it also recognizes that nations mature — that standards of justice and constitutional principles change over the centuries and should be reinterpreted by new generations.

Justice Anthony Kennedy, writing for a five-member majority, acknowledged that permanent life sentences for juveniles might not have been historically recognized as cruel and unusual punishment but should now be considered unconstitutional because of “evolving standards of decency.”

Justice John Paul Stevens stated the case simply and elegantly in a concurring opinion:

“Society changes,” he wrote. “Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time.”

That, of course, infuriated the strict constructionists on the court, who said the Constitution’s framers meant “cruel and unusual” to refer to torture and nothing more. Justice Clarence Thomas, writing for two other justices, said the court was overstepping its bounds by interpreting the clause to ban disproportionate punishment.

Viewing the case from that 18th-century perspective, however, means ignoring recent scientific evidence showing a fundamental difference between the minds of juveniles and adults. Justice Kennedy, expanding on his landmark 2005 decision that banned the death penalty for juveniles, noted that the brain matures through late adolescence. He said juvenile actions are less likely to be evidence of an “irretrievably depraved character.”

The subject of the case decided on Monday, Terrance Graham, whose parents were crack addicts, participated in a restaurant robbery at age 16 and in a home-invasion robbery at age 17. A Florida judge sentenced him to life in prison without parole in 2005 at a time when the state, overreacting to a rash of juvenile crime, was cracking down on what it considered teenage superpredators.

But the court was hardly ordering his release, or that of the 128 other juveniles like him around the country (mostly in Florida) who are also locked up with no chance of parole. Instead, the court simply gave these prisoners a chance to show that they have matured and been rehabilitated, that years after their crimes, they have, at least, the hope of winning their release. (Chief Justice John Roberts Jr. took a middle position, saying Mr. Graham deserved a shot at parole but declining to endorse a categorical position.)

The majority’s opinion was particularly heartening for its forthright acknowledgment that there are other sources of judicial inspiration beyond the country’s founders. The low number of juvenile criminals sentenced to life without parole for noncapital crimes demonstrates that states, judges, prosecutors and juries have reached a de facto national consensus against the practice, the opinion said.

And, braving the catcalls of nativists, Justice Kennedy also looked to international law to bolster his argument, noting that this form of sentencing had been rejected by countries the world over. Until Monday, the United States was the only country to impose such sentences on its teenagers; thanks to five justices on the court, the world now stands in unanimous agreement.

    A New Standard of Decency, NYT, 18.5.2010, http://www.nytimes.com/2010/05/18/opinion/18tue1.html

Court: Sexually Dangerous Can Be Kept in Prison

May 17, 2010
The New York Times
By THE ASSOCIATED PRESS
Filed at 12:31 p.m. ET

WASHINGTON (AP) -- The Supreme Court ruled Monday that federal officials can indefinitely hold inmates considered ''sexually dangerous'' after their prison terms are complete.

The high court in a 7-2 judgment reversed a lower court decision that said Congress overstepped its authority in allowing indefinite detentions of considered ''sexually dangerous.''

''The statute is a 'necessary and proper' means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others,'' said Justice Stephen Breyer, writing the majority opinion.

President George W. Bush in 2006 signed the Adam Walsh Child Protection and Safety Act, which authorized the civil commitment of sexually dangerous federal inmates.

The act, named after the son of ''America's Most Wanted'' television host John Walsh, was challenged by four men who served prison terms ranging from three to eight years for possession of child pornography or sexual abuse of a minor. Their confinement was supposed to end more than two years ago, but prison officials said there would be a risk of sexually violent conduct or child molestation if they were released.

A fifth man who also was part of the legal challenge was charged with child sex abuse but declared incompetent to stand trial.

The 4th U.S. Circuit Court of Appeals in Richmond, Va., ruled last year that Congress overstepped its authority when it enacted a law allowing the government to hold indefinitely people who are considered ''sexually dangerous.''

But ''we conclude that the Constitution grants Congress legislative power sufficient to enact'' this law, Breyer said.

Solicitor General Elena Kagan successfully argued the government's case in front of the Supreme Court. Kagan has now been nominated to replace the retiring Justice John Paul Stevens.

Kagan in January compared the government's power to commit sexual predators to its power to quarantine federal inmates whose sentences have expired but have a highly contagious and deadly disease.

''Would anybody say that the federal government would not have Article I power to effect that kind of public safety measure? And the exact same thing is true here. This is exactly what Congress is doing here,'' she said.

Justice Clarence Thomas dissented from the court's judgment, saying Congress can only pass laws that deal with the federal powers listed in the Constitution.

Nothing in the Constitution ''expressly delegates to Congress the power to enact a civil commitment regime for sexually dangerous persons, nor does any other provision in the Constitution vest Congress or the other branches of the federal government with such a power,'' Thomas said.

Thomas was joined in part on his dissent by Justice Antonin Scalia.

Chief Justice John Roberts last year granted an administration request to block the release of up to 77 inmates at a federal prison in North Carolina. These were people whose prison terms for sex offenses were ending. The justice's order was designed to allow time for the high court to consider the administration's appeal.

The Adam Walsh Child Protection and Safety Act also establishes a national sex offender registry, increases punishments for some federal crimes against children and strengthens child pornography protections. Those provisions are not being challenged.

State laws allowing civil commitments of sex offenders also are unaffected.

The case is U.S. v. Comstock, 08-1224.

    Court: Sexually Dangerous Can Be Kept in Prison, NYT, 17.5.2010, http://www.nytimes.com/aponline/2010/05/17/us/politics/AP-US-Supreme-Court-Sex-Offender-Law.html

Justices Bar Life Terms for Youths Who Haven’t Killed

May 17, 2010
Filed at 11:29 a.m. ET
The New York Times
By THE ASSOCIATED PRESS

WASHINGTON (AP) -- The Supreme Court has ruled that teenagers may not be locked up for life without chance of parole if they haven't killed anyone.

By a 5-4 vote Monday, the court says the Constitution requires that young people serving life sentences must at least be considered for release.

The court ruled in the case of Terrance Graham, who was implicated in armed robberies when he was 16 and 17. Graham, now 22, is in prison in Florida, which holds more than 70 percent of juvenile defendants locked up for life for crimes other than homicide.

''The state has denied him any chance to later demonstrate that he is fit to rejoin society based solely on a nonhomicide crime that he committed while he was a child in the eyes of the law,'' Justice Anthony Kennedy wrote in his majority opinion. ''This the Eighth Amendment does not permit.''

Chief Justice John Roberts agreed with Kennedy and the court's four liberal justices about Graham. But Roberts did not join the majority opinion as it applies to all young offenders who are locked up for crimes other than murder.

Life sentences with no chance of parole are rare and harsh for juveniles tried as adults and convicted of crimes less serious than killing, although roughly three dozen states allow for the possibility of such prison terms. Just over 100 prison inmates in the United States are serving those terms, according to data compiled by opponents of the sentences.

Those inmates are in Florida and seven other states -- California, Delaware, Iowa, Louisiana, Mississippi, Nebraska and South Carolina -- according to a Florida State University study. More than 2,000 other juveniles are serving life without parole for killing someone. Their sentences are not affected by Monday's decision.

Justices Samuel Alito, Antonin Scalia and Clarence Thomas dissented from Monday's ruling.

Thomas criticized the majority for imposing ''its own sense of morality and retributive justice'' on state lawmakers and voters who chose to give state judges the option of life-without-parole sentences.

''I am unwilling to assume that we, as members of this court, are any more capable of making such moral judgments than our fellow citizens,'' Thomas said.

Kennedy, however, said that the high court ruling does not ensure anyone's release. ''What the state must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,'' Kennedy said.

Kennedy wrote the Supreme Court opinion in 2005 that ruled out the death penalty for people under 18, judging them less responsible than adults.

Monday's decision is an extension of the rationale he used then.

An expert in sentencing law said the outcome is likely to pose challenges to judges and lawyers in cases of young offenders.

For example, are extremely long sentences of 35 years to 40 years that offer no chance at parole before release constitutional?

The court's ''ruling likely will produce challenges for lawyers and lower courts to determine just whether and when other extreme prison terms are constitutionally problematic,'' said Ohio State University law professor Douglas Berman.

In November, the justices heard argument in two cases. The other involved Joe Sullivan, also of Florida, who was sent away for life for raping an elderly woman when he was 13. The court did not issue an opinion in Sullivan's case, but he will benefit from the Graham ruling.

    Justices Bar Life Terms for Youths Who Haven’t Killed, NYT, 17.5.2010, http://www.nytimes.com/aponline/2010/05/17/us/AP-US-Supreme-Court-Juvenile-Sentences.html

On Speech, Kagan Has Leaned Toward Conservatives

May 14, 2010
The New York Times
By ADAM LIPTAK

WASHINGTON — In her early years as a law professor, Elena Kagan wrote almost exclusively on the First Amendment. There are indications in those writings that her views on government regulation of speech were closer to the Supreme Court’s more conservative justices, like Antonin Scalia, than to Justice John Paul Stevens, whom she hopes to replace.

Justice Stevens is not a First Amendment absolutist. He wrote the majority opinion in 1978 in Federal Communications Commission v. Pacifica Foundation, which said the government could ban the broadcast of George Carlin’s “seven dirty words” monologue. And he dissented in Texas v. Johnson, a 1989 decision striking down a state law that made it a crime to burn the flag, while Justice Scalia was in the majority.

There is good reason to think Ms. Kagan disagreed with Justice Stevens in both cases.

“Her articles on free speech showed a strong sense of the importance of civil liberties as a bulwark against ideological orthodoxy — a perspective that will give her ready camaraderie with free speech devotees on the court like Justices Scalia, Kennedy and Thomas,” Kathleen Sullivan, a former dean of Stanford Law School, said in a blog post on The New York Times’s Web site.

About the flag-burning case, Ms. Kagan wrote in 1996 that “the court, in invalidating the statute, made the correct decision.”

The passage appears in Ms. Kagan most-cited First Amendment article, “Private Speech, Public Purpose,” which was published in The University of Chicago Law Review. The article contains few statements as direct as the one about the flag-burning case. But she did say that “the government may not limit speech because other citizens deem the ideas offered to be wrong or offensive,” which suggests a position at odds with Justice Stevens in the “seven dirty words” case.

First Amendment scholars have been rereading Ms. Kagan’s work in recent days. Much of her work was concerned with more abstract First Amendment theory as applied to the hot topics of the day, including pornography and campus speech codes. But her writings also echo the views of several of the Supreme Court’s more conservative justices.

In 1992, she wrote an essay endorsing Justice Scalia’s opinion in R.A.V. v. City of St. Paul, a decision that year striking down a hate-speech ordinance. The case involved battling opinions from Justices Scalia and Stevens, who reached the same result on different grounds.

On the central questions in the case, Ms. Kagan sided with the more conservative justice. “Justice Scalia seems to me to have the upper hand,” she wrote at one point. “The position of Justice Stevens cannot be right as a general matter,” she said later.

As United States solicitor general, the government’s top appellate lawyer, Ms. Kagan has sometimes taken positions seemingly in tension with her academic writing, including in Citizens United v. Federal Election Commission, the blockbuster 5-to-4 decision in January that allowed unlimited corporate spending in elections.

Marvin Ammori, who teaches First Amendment law at the University of Nebraska, said Ms. Kagan might have voted with the majority in that case. “Looking at Elena Kagan’s scholarship,” Professor Ammori wrote on the legal blog Balkinization, “I doubt she agrees with Justice Stevens, who dissented in Citizens United, and suspect she is a defender of corporate speech rights.”

Ms. Kagan’s current personal views on that question are unknown, though she argued and lost the government’s side of the case as solicitor general.

Senator Arlen Specter, Democrat of Pennsylvania, said Ms. Kagan discussed the case with him in a meeting on Thursday. “She said there wasn’t sufficient deference to Congress” in the majority opinion, Mr. Specter told reporters.

That comment may provide a glimpse of Ms. Kagan’s thinking, but it is nothing like a complete answer to how she would have voted in Citizens United, one of the most divisive Supreme Court decisions in recent memory and the subject of repeated criticism from President Obama, including in comments in his State of the Union address in January and in announcing his nomination of Ms. Kagan on Monday.

An advocate’s private views and the positions she takes on behalf of a client in court need not be identical, of course. Ms. Kagan’s adversary in the Citizens United case, Theodore B. Olson, had, for instance, defended the law as solicitor general in 2003.

In announcing Ms. Kagan’s nomination, Mr. Obama said her decision to argue that case against long odds “says a great deal about her commitment to protect our fundamental rights, because in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”

But Ms. Kagan has been skeptical of that idea, devoting eight of the 1996 article’s 105 pages to a ruminative critique of “laws ‘equalizing’ the speech market.” She seemed wary of what she called “schemes designed to promote balance or diversity of opinions,” saying the government often cannot be trusted to regulate the marketplace of political ideas.

In her argument in Citizens United in September, she expressly rejected that equalization rationale as a basis to regulate corporate speech, though she did defend the central precedent at issue in the case, Austin v. Michigan Chamber of Commerce, on other grounds, including that corporations may be treated differently from individuals.

In the 1996 article, however, Ms. Kagan rejected a version of an argument commonly made on the left these days — that corporations may be regulated because they are artificial entities created by the government. Or, as Ms. Kagan characterized the argument in her article, that regulation is permissible “on the ground that corporate wealth derives from privileges bestowed on corporations by the government.”

“This argument fails,” Ms. Kagan wrote, “because individual wealth also derives from governmental action.”

In the article, she also said campaign finance laws were problematic because they could “serve as incumbent-protection devices, insulating current officeholders from challenge and criticism.”

At the argument in September, Justice Scalia pressed Ms. Kagan on this point.

“I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents,” Justice Scalia said. Ms. Kagan demurred, saying the facts supported the contrary view. “In fact, corporate and union money go overwhelmingly to incumbents,” she said. Barring such spending, she went on, “may be the single most self-denying thing that Congress has ever done.”

Richard L. Hasen, an election law specialist at Loyola Law School in Los Angeles, said “there is some tension between what she writes in the article and what she said to Justice Scalia on incumbency and the corporate spending limits.” But Professor Hasen added that Ms. Kagan statements in court were on behalf of her client and might not represent her own thinking, which might in any event have changed in the intervening 14 years.

    On Speech, Kagan Has Leaned Toward Conservatives, NYT, 14.5.2010, http://www.nytimes.com/2010/05/16/us/politics/16court.html

A New York Bloc on the Supreme Court

May 11, 2010
The New York Times
By JAMES BARRON

The Supreme Court has some justices who are liberals and some who are conservatives. It has some who see themselves as strict constructionists and some who probably do not.

And then it has the justices who grew up riding the subway and the ones who grew up turning right on red.

It has the justice who was the treasurer of the Go-Getters Club at James Madison High School in Brooklyn. It has the justice who watched “Perry Mason” on television in a housing project in the Bronx and decided that the star defense lawyer was less important than the judge. It has the justice who took part in a junior military training program at Xavier High School in Manhattan and carried his rifle home on the train to Queens.

If the nomination of Elena Kagan to the Supreme Court is confirmed, she would join three others in a distinct bloc. For the first time in the court’s history, said William Treanor, the dean of Fordham Law School, it would have four justices who grew up in New York City.

The four are a portrait of the city, each carrying distinct New York traits to Washington. “Kagan is so Manhattan, Scalia is so Queens, Ginsburg is so Brooklyn and Sotomayor is so Bronx,” said Joan Biskupic, the author of a biography of Justice Antonin Scalia. “They adopted in their identities the whole New York sensibility.”

Only Staten Island — “the forgotten borough,” as a woman who answered the telephone in the borough president’s office described it on Tuesday — would be without a justice to call its own if the Senate confirms Ms. Kagan.

The first chief justice, John Jay, was a New Yorker. But Vincent M. Bonventre, a professor at Albany Law School, said that Jay considered the Supreme Court as a comedown after contributing to the Federalist Papers and serving as president of the Continental Congress.

“He left the Supreme Court because he didn’t think it was prestigious or important, and it wasn’t, back then,” Professor Bonventre said. Jay resigned as chief justice in mid-1795 to take a job that interested him: governor of New York.

Other notable justices spent all or part of their youth in the city, including Felix Frankfurter and Benjamin N. Cardozo. But if Ms. Kagan takes the seat being vacated by Justice John Paul Stevens, a Chicagoan, it will be an unusual moment for a city whose political influence has been slowly shrinking since the nation outgrew the original 13 colonies.

Now the Supreme Court stands to have as many justices from New York City as New York State’s highest court, the Court of Appeals. (The Supreme Court is larger, with nine justices to the Court of Appeals’ seven.)

Justice Scalia — like Justice Samuel A. Alito Jr. — was born in Trenton. But Justice Scalia’s family left for Queens when he was a young child, and he “defines himself as a man from Queens rather than a boy from Trenton,” Ms. Biskupic said.

“He loved that borough,” she said.

Justice Scalia grew up in Elmhurst, in what he once called “a really mishmash sort of a New York,” with Germans, Irish and Puerto Ricans. He went to Public School 13, where he got straight A’s, and Xavier, the Jesuit school in Manhattan, where he was first in his class and was in the military program.

He said he realized that New Yorkers were assertive when his high school band went to march in a parade in Washington.

“These people just stood there and looked at us, you know?” he told the CBS News program “60 Minutes” in 2008. “In New York, people say, ‘Hey, play something for us, you know? You bums, why don’t you play something?’ They were — they were alive, they were confrontational.”

Justice Sonia Sotomayor has described herself as a Nuyorican who grew up in the Bronxdale Houses and later in Co-op City, where the talk of the neighborhood was that her mother had bought an Encyclopaedia Britannica. She was the valedictorian of the class of 1972 at Cardinal Spellman High School and became a prosecutor in the Manhattan district attorney’s office after attending Princeton and law school at Yale.

One of her answers to a questionnaire from the Senate Judiciary Committee was a peephole into her New York background. Asked to list the 10 most significant cases she had handled, she mentioned one that involved a shooting in a housing project.

Justice Ruth Bader Ginsburg was born in the Flatbush section of Brooklyn; her father owned small clothing stores, and she was an editor of the newspaper at James Madison High School.

She went to Cornell as an undergraduate and to Harvard for law school. But she transferred to Columbia Law School after her husband got a job in New York. She made the law reviews at Harvard and Columbia and was the first woman to become a tenured law professor at Columbia.

And then there is Ms. Kagan, whose father was a community board leader on the Upper West Side and who attended the prestigious Hunter College High School, Princeton and Harvard Law, later becoming its dean.

“They would all say the identities forged in these various boroughs propelled them forward and contributed to how they see themselves and how others see them,” said Ms. Biskupic, the Scalia biographer. “I was interviewing Justice Alito about jumping in at oral argument when you’re a new justice and how do you get a word in edgewise. We were talking about the temperament of a Scalia and a Ginsburg, and he said, as somebody from Trenton, he knows how to mix it up with them.”

Three of the four New Yorkers — Justices Ginsburg and Sotomayor and Ms. Kagan, if she is confirmed — would form the court’s liberal wing with Justice Stephen G. Breyer. Professor Bonventre of Albany Law School said that the “ethnic-gender-religious composition of the liberals on the court” would underscore their differences with the conservative majority.

“For most New Yorkers, they will look at the liberal minority and say, ‘That’s us, that’s our America,’ ” Professor Bonventre said, “and so when the court renders liberal decisions and you have all of those four, the three women and the Jewish guy, it will make complete sense to New Yorkers, whereas for the South and the Bible Belt, people are going to say, ‘They don’t understand the rest of America.’ ”

But Martin Flaherty, a professor at Fordham Law School who knew Ms. Kagan when they were undergraduates at Princeton, said that being a judge from New York did not mean “everyone is going to be a liberal or a conservative.”

“Witness Scalia,” Mr. Flaherty said. “But there’s a certain toughness, mental toughness, to spending time in New York. That is true of all four New Yorkers. None of them is a pushover.”

    A New York Bloc on the Supreme Court, NYT, 11.5.2010, http://www.nytimes.com/2010/05/12/nyregion/12newyorkers.html

Editorial

Searching for Elena Kagan

May 11, 2010
The New York Times

President Obama may know that his new nominee to the Supreme Court, Elena Kagan, shares his thinking on the multitude of issues that face the court and the nation, but the public knows nothing of the kind. Whether by ambitious design or by habit of mind, Ms. Kagan has spent decades carefully husbanding her thoughts and shielding her philosophy from view. Her lack of a clear record on certain issues makes it hard to know whether Mr. Obama has nominated a full-throated counterweight to the court’s increasingly aggressive conservative wing.

Ms. Kagan would fill the seat held for 34 years by Justice John Paul Stevens, whose ringing opinions defined modern liberal jurisprudence, particularly as the decibel level of his dissents grew in recent years. The quality of his voice and his persuasive power raise the bar to a high level for his successor, and at this point there are little more than entrails and tea leaves to suggest that Ms. Kagan will meet the standard he set.

It is gratifying that the president has nominated to this court what would be its third female justice, one who is relatively young, well spoken and, by all accounts, brilliant and collegial. Though Republicans already are deriding her for never having worn a judicial robe, the current court, dominated by former appeals court judges, could use more members who have engaged more closely with the world than with a trial transcript.

But where, precisely, has Ms. Kagan been during the legal whirlwinds of the last few years, as issues like executive power, same-sex marriage, the rights of the accused and proper application of the death penalty have raged through the courts? As dean of the Harvard Law School, she spoke out against the military’s discrimination against gay and lesbian soldiers, but many students and professors there have expressed chagrin that she did not take a more forceful stance. And she has stated that “there is no federal constitutional right to same-sex marriage.” Her positions on other current issues are either unclear — or possibly to the right of Justice Stevens.

In a 2001 Harvard Law Review article, Ms. Kagan defended a robust assertion of presidential power unless specifically limited by Congress — albeit in the service of “progressive goals” on the domestic front. She told the Senate last year that she agreed the government has the right to indefinitely detain enemy combatants captured around the world. As Mr. Obama’s solicitor general, she has supported his administration’s positions, little changed since the Bush administration, on the use of military force against Al Qaeda, the habeas corpus rights of military detainees and the state secrets privilege. (In 2005, however, she did oppose a Republican attempt to remove judicial review from the cases of detainees at Guantánamo Bay, Cuba.)

It may be unfair to blame Ms. Kagan for some of the positions she has taken as solicitor general, a job that requires her to defend the government’s views. But a search for her own views on dozens of other matters yields little. Though she has said that she respects precedents on abortion, she has said virtually nothing on racial preferences, gun rights or private property rights. When the constitutionality of President Obama’s health care law reaches the Supreme Court, as it probably will, given the forceful challenges now being waged in several states, would she reject the argument that Washington has overstepped its role in requiring health insurance? There is no record to suggest an answer.

The White House undoubtedly hopes the ellipses in Ms. Kagan’s record will help her avoid a rocky confirmation hearing. That expedient approach, unfortunately, reflects the widespread sentiment that the right holds the upper hand in judicial debates, forcing the left to duck and cower. But in one of Ms. Kagan’s few forcefully stated positions, she wrote in 1995 that she detests “polite and restrained” confirmation hearings, calling them a “vapid and hollow charade” and urging senators to fully explore a court nominee’s substantive views. We hope the Senate follows her advice and gets Ms. Kagan to open up a little.

    Searching for Elena Kagan, NYT, 11.5.2010, http://www.nytimes.com/2010/05/11/opinion/11tue1.html

Letters

A New Face for the Supreme Court

May 11, 2010
The New York Times

To the Editor:

President Obama’s nomination of Solicitor General Elena Kagan to the Supreme Court is a fine choice. As your May 10 front-page article stated, she is a “well-regarded” — as well as well-rounded — lawyer, having worked in all three branches of government. Although she has no prior judicial experience, she has also not been cloistered as a sitting judge.

Ms. Kagan was the first woman to be dean of Harvard Law School; that was not an easy position, as she was surrounded by the many clashing egos of the law professors there. And she was also the first woman to be solicitor general.

Ms. Kagan is battle-tested, and it will be interesting to see how persuasively she can push back against the positions of Chief Justice John G. Roberts Jr. and Associate Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr., the most conservative members of the court.

If she is confirmed, we should find out over the next 30 or so years; at age 50, Ms. Kagan should have a very long tenure on the court.

Eugene Gorrin
Union, N.J., May 10, 2010

The writer is a retired attorney.

•

To the Editor:

When I clerked at the Supreme Court for Justices Arthur Goldberg and Abe Fortas (1965-67), the court greatly benefited from the input of a diverse group of judges.

Justice Goldberg had been a top labor lawyer and secretary of labor; Justice Fortas, a presidential adviser and one of the country’s most sophisticated lawyers; Chief Justice Earl Warren, governor of California; Hugo Black, a senator; William O. Douglas, a Yale law professor and Securities and Exchange Commission chairman; Byron White, a football star, private litigator and Justice Department official; Tom C. Clark, an attorney general, and William J. Brennan Jr., a New Jersey state court judge. Only John Marshall Harlan and Potter Stewart had been federal appellate judges.

The diversity worked beautifully — a lot better than the current monopoly by former federal appellate judges.

Dan Levitt
Scarsdale, N.Y., May 10, 2010

•

To the Editor:

As a proud liberal, I am disappointed with President Obama’s nomination of Solicitor General Elena Kagan to the Supreme Court.

Over the past few years, the activist judges on the Roberts court have broken their confirmation hearing vows to act as umpires and “call balls and strikes.” In ruling after ruling they have replaced the doctrine of stare decisis (adherence to precedent) with the doctrines of a results-driven, conservative legal agenda.

I was hoping, therefore, that President Obama would use the occasion of Justice John Paul Stevens’s retirement to appoint a judge with a proven liberal record, someone who would push back against these conservative judicial activists.

With the exception of Ruth Bader Ginsburg (and perhaps Sonia Sotomayor; it’s too early to tell), every nominee to the Supreme Court since 1971 has been more conservative than his or her predecessor. While it is impossible to predict Ms. Kagan’s rulings from the bench, I believe that her appointment continues this trend.

I find it disturbing and ironic that the court may well be more conservative at the end of President Obama’s first term than it was at the beginning.

Richard Kavesh
Nyack, N.Y., May 10, 2010

•

To the Editor:

I applaud President Obama for picking a brilliant legal scholar, Elena Kagan, as his choice to be the next Supreme Court justice.

During her tenure as dean of Harvard Law School, Ms. Kagan won the respect of many conservatives by hiring more conservative faculty members. This is just one example of why Ms. Kagan is an innovative, pragmatic thinker, one who will be an excellent addition to the court.

Steven M. Clayton
Ocean, N.J., May 10, 2010

•

To the Editor:

I believe in appointing the most qualified person for the job, but is there no one qualified in the United States who didn’t go to Harvard, Yale or Princeton?

Perhaps, heaven forbid, a state school graduate?

Peter Kelly-Joseph
Wellfleet, Mass., May 10, 2010

    A New Face for the Supreme Court, NYT, 11.5.2010, http://www.nytimes.com/2010/05/11/opinion/l11scotus.html

Reshaping Court’s Culture, a Woman at a Time

May 10, 2010
The New York Times
By MARK LEIBOVICH

WASHINGTON — In her confirmation hearings before the Senate Judiciary Committee in 1993, Judge Ruth Bader Ginsburg predicted that she would eventually be one of “three, four, perhaps even more women on the high court bench.”

It took 17 years, a step back (Justice Sandra Day O’Connor was succeeded by Samuel A. Alito Jr. in 2006) and a good bit of public frustration voiced by Justice. O’Connor, Justice Ginsburg and others.

But President Obama’s nomination of Solicitor General Elena Kagan on Monday to succeed the retiring Justice John Paul Stevens — following his nomination of Judge Sonia Sotomayor last year to succeed Justice David H. Souter — means there could now be three women on the court for the first time in history.

It was a benchmark that women’s law groups celebrated as a major step toward a sex parity that has eluded the United States Supreme Court compared with the highest courts of several states and countries.

“Even when you had two women, there was still a sense that they were exceptions to the rule,” said Marcia Greenberger, the co-president of the National Women’s Law Center.

That notion, Ms. Greenberger added, was reinforced by how frequently legal advocates would confuse Justices O’Connor and Ginsburg, “even though they did not look anything alike.”

Justice O’Connor, who in 1981 made history when she joined the Scotus, or Supreme Court of the United States, referred jokingly to herself by the mouthful moniker of “Fwotsc” (or “First Woman of the Supreme Court”) in a 1983 letter to the editor of The New York Times.

Justices Ginsburg, Sotomayor and O’Connor declined to comment Monday.

Among court watchers and women’s judicial advocates, the significance of Ms. Kagan’s nomination can be boiled down to basic math: in a small and rarefied population of nine, the difference between two and three women can make a significant impact on the culture of the court.

“Any practitioner of diversity will tell you that you can’t bring in a few token people and get a real diversity of viewpoint,” said Pamela Harris, the executive director of the Supreme Court Institute at the Georgetown Law Center.

Ms. Harris said having three women on the court could also be a powerful “optic” that could potentially change the makeup of the lawyers who argue before it.

“If clients are visualizing the court as a predominantly male entity, they are going to want a lawyer who looks like the people on the bench,” she said. “I think this could also be a critical moment in terms of women arguing before the Supreme Court.”

    Reshaping Court’s Culture, a Woman at a Time, NYT, 10.5.2010, http://www.nytimes.com/2010/05/11/us/politics/11women.html

Nomination of Kagan Leaves Some Longing on the Left

May 10, 2010
The New York Times
By PETER BAKER

WASHINGTON — The selection of Solicitor General Elena Kagan to be the nation’s 112th justice extends a quarter-century pattern in which Republican presidents generally install strong conservatives on the Supreme Court while Democratic presidents pick candidates who often disappoint their liberal base.

Ms. Kagan is certainly too liberal for conservatives, who quickly criticized her nomination on Monday as a radical threat. But much like every other Democratic nominee since the 1960s, she does not fit the profile sought by the left, which hungers for a full-throated counterweight to the court’s conservative leader, Justice Antonin Scalia.

In many ways, this reflects how much the nation’s long war over the judiciary has evolved since Ms. Kagan was a child. While the American left back then used the Supreme Court to promote social change in areas like religion, race and abortion, today it looks at it more as a backstop to defend those rulings. The right, on the other hand, remains aggrieved and has waged an energetic campaign to make the court an agent of change reversing some of those holdings.

Along the way, conservatives have largely succeeded in framing the debate, putting liberals on the defensive. Sonia Sotomayor echoed conservatives in her Supreme Court confirmation hearings last year by rejecting the idea of a “living” Constitution that evolves, and even President Obama recently said the court had gone too far in the past. While conservatives have played a powerful role in influencing Republican nominations, liberals have not been as potent in Democratic selections.

In that vein, then, no Democratic nominee since Thurgood Marshall in 1967 has been the sort of outspoken liberal champion that the left craves, while Justice Scalia has been joined by three other solid conservatives in Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. By all accounts, Mr. Obama did not even consider the candidates favored most by the left, like Harold Hongju Koh, his State Department legal adviser, or Pamela S. Karlan, a Stanford Law School professor.

“Why do the conservatives always get the conservatives, but we don’t get to get the liberals?” Senator Tom Harkin, Democrat of Iowa, asked the Web site Politico recently, voicing the frustration of the left when Ms. Kagan was considered a front-runner but was not yet Mr. Obama’s selection. “What the hell is that all about?”

Ms. Kagan addressed the point herself 15 years ago in the University of Chicago Law Review: “Herein lies one of the mysteries of modern confirmation politics: given that the Republican Party has an ambitious judicial agenda and the Democratic Party has next to none, why is the former labeled the party of judicial restraint and the latter the party of judicial activism?”

Conservatives reject the notion that what they seek amounts to activism, saying they want justices who do not interpret the Constitution and laws to promote a policy agenda. But they said the public has come around to their view that the courts have overreached, and they have made the issue a potential liability for Democrats.

“What does President Obama gain by putting forward an unabashed progressive, liberal judicial activist?” asked Leonard A. Leo, a conservative leader who helped President George W. Bush confirm Chief Justice Roberts and Justice Alito. “Polling suggests that’s not something that adds a lot of value to his own immediate political objectives.”

The ground began shifting on Supreme Court politics in President Ronald Reagan’s second term when conservatives pushed for candidates who would reverse what they saw as the excesses of the court under Chief Justices Earl Warren and Warren E. Burger.

In 1986, Mr. Reagan appointed Justice Scalia and elevated Justice William H. Rehnquist to replace Chief Justice Burger. But Mr. Reagan’s nomination of Robert H. Bork a year later was rejected by the Senate after an ideological clash. Only after that vote and another nominee withdrew did Mr. Reagan finally pick Anthony M. Kennedy, a more moderate conservative.

Leery of another such showdown, President George Bush picked a so-called stealth candidate in David H. Souter in 1990, a move conservatives considered a betrayal after he turned out to be more liberal than expected. A year later, Mr. Bush appointed Justice Thomas, who was a favorite of the right, as were the second President Bush’s choices, Chief Justice Roberts and Justice Alito. The 2005 nomination of Harriet E. Miers, on the other hand, collapsed amid a revolt by conservatives who feared another Justice Souter.

Liberals have had Scalia envy for nearly a quarter-century, only to be let down. They considered President Bill Clinton’s selections of Ruth Bader Ginsburg and Stephen G. Breyer to be satisfactory but not satisfying, much like the nomination of Sonia Sotomayor last year. While Justice Ginsburg came closest to what they were looking for, given her record of advocacy for women’s rights, she does not go far enough for them on capital punishment and other issues.

Richard Primus, a professor at the University of Michigan Law School, said conservatives did more to influence Republican nominations because the energy on court advocacy is on the right, which still resents rulings that barred school-sponsored prayer, legalized abortion and upheld some affirmative action programs. “It still lives off of that anger, and nothing of that sort of fire has really taken hold on the other side,” Professor Primus said.

The left, by contrast, focuses on guarding the status quo, a less animating mission. “The quote-unquote liberals are defending the New Deal and Warren court inheritances,” said Bruce Ackerman, a constitutional scholar at Yale Law School.

A 2009 study provided some fodder for Mr. Harkin’s argument that today’s conservative justices lean more to the right than the liberals lean to the left.

Richard A. Posner, a conservative appeals court judge in Chicago, and William M. Landes, his colleague from the University of Chicago law school, ranked all 43 justices from 1937 to 2006 by ideology and found that four of the five most conservative ones are on the current court. Even the moderate swing vote, Justice Kennedy, was the 10th most conservative over that period. By contrast, none of the current justices ranks among the five most liberal members, and only Justice Ginsburg is in the top 10.

Where exactly Ms. Kagan would fall on that scale is unclear since she has never been a judge. She has been a forceful critic of the ban on openly gay men and lesbians serving in the military, but has argued for strong executive power, a hot issue since the Sept. 11 attacks. Some analysts even say Ms. Kagan would actually shift the court somewhat to the right when compared with Justice John Paul Stevens.

Ronald A. Klain, chief of staff to Vice President Joseph R. Biden Jr. and a longtime friend, said “she is more of the progressive mold than not” but has a “pragmatic lawyer’s approach to legal questions.”

Mr. Leo said he assumed she would be a reliable liberal but not a Scalia for the left. “Kagan’s probably a vote,” he said, “but probably not the full package.”

    Nomination of Kagan Leaves Some Longing on the Left, NYT, 10.5.2010, http://www.nytimes.com/2010/05/11/us/politics/11nominees.html

A Climb Marked by Confidence and Canniness

May 10, 2010
The New York Times
By KATHARINE Q. SEELYE, LISA W. FODERARO and SHERYL GAY STOLBERG

This article is by Katharine Q. Seelye, Lisa W. Foderaro and Sheryl Gay Stolberg.

WASHINGTON — She was a creature of Manhattan’s liberal, intellectual Upper West Side — a smart, witty girl who was bold enough at 13 to challenge her family’s rabbi over her bat mitzvah, cocky (or perhaps prescient) enough at 17 to pose for her high school yearbook in a judge’s robe with a gavel and a quotation from Felix Frankfurter, the Supreme Court justice, underneath.

She was the razor-sharp newspaper editor and history major at Princeton who examined American socialism, and the Supreme Court clerk for a legal giant, Thurgood Marshall, who nicknamed her “Shorty.” She was the reformed teenage smoker who confessed to the occasional cigar as she fought Big Tobacco for the Clinton administration, and the literature lover who reread Jane Austen’s “Pride and Prejudice” every year.

She was the opera-loving, poker-playing, glass-ceiling-shattering first woman to be dean of Harvard Law School, where she reached out to conservatives (she once held a dinner to honor Supreme Court Justice Antonin Scalia) and healed bitter rifts on the faculty with gestures as simple as offering professors free lunch, just to get them talking.

Elena Kagan has been all of these things, charting a careful and, some might say, calculated path — never revealing too much of herself, never going too far out on a political limb — that has led her to the spot she occupies today: the first female solicitor general of the United States, who won confirmation with the support of some important Republicans, and now, at 50, President Obama’s nominee for the United States Supreme Court.

“Elena is open-minded, pragmatic and progressive,” said Walter Dellinger, a former acting solicitor general in the Clinton administration who is close to both Ms. Kagan and the White House. “Each of those qualities will appeal to some, and not to others.

“Her open-mindedness may disappoint some who want a sure liberal vote on almost every issue. Her pragmatism may disappoint those who believe that mechanical logic can decide all cases. And her progressive personal values will not endear her to the hard right. But that is exactly the combination the president was seeking.”

In some respects, Ms. Kagan’s traits — her desire to build consensus through persuasion, her people skills, her ability to listen to others — mirror those Mr. Obama sees in himself. They are qualities that the president hopes will play out in a leadership role on a deeply divided court. While Ms. Kagan has cited Justice Marshall as one she admires, some expect her to behave more like the center left Justice David Souter, who retired last year, or the master tactician John Paul Stevens, whom she would replace if confirmed.

“She was one of the most strategic people I’ve ever met, and that’s true across lots of aspects of her life,” said John Palfrey, a law professor who was hired at Harvard by Ms. Kagan. “She is very effective at playing her cards in every setting I’ve seen.”

Ms. Kagan’s paper trail is scant, her academic writings painstakingly nonideological. And unlike Justice Sonia Sotomayor, a fellow New Yorker and Princeton graduate, who has written and spoken extensively about her childhood, Ms. Kagan, the daughter of a lawyer and a schoolteacher, is more private. During her academic and public life, she has rarely spoken of her political beliefs.

When Mr. Dellinger interviewed her recently for a forum at Georgetown Law, he prodded her to talk about her growing up, and the influences that shaped her. She obliged, somewhat reluctantly, serving up only some bland details about her admiration for her parents.

Yet as a young writer for The Princetonian, the student newspaper at Princeton, Ms. Kagan offered clear insight into her worldview. She had spent the summer of 1980 working to elect a liberal Democrat, Liz Holtzman, to the Senate. On Election Night, she drowned her sorrow in vodka and tonic as Ronald Reagan took the White House and Ms. Holtzman lost to “an ultraconservative machine politician,” she wrote, named Alfonse D’Amato.

“Where I grew up — on Manhattan’s Upper West Side — nobody ever admitted to voting for Republicans,” Ms. Kagan wrote, in a kind of Democrat’s lament. She described the Manhattan of her childhood, where those who won office were “real Democrats — not the closet Republicans that one sees so often these days but men and women committed to liberal principles and motivated by the ideal of an affirmative and compassionate government.”

It was perhaps the last time Ms. Kagan wrote so openly of her own political beliefs. Last year, at her confirmation hearing to become solicitor general, senators focused less on her politics, but on whether she was too much in the ivory tower, with too little lawyerly experience to argue cases before the nation’s highest court. That question will almost certainly come up again, given that Ms. Kagan has never been a judge.

“One of the things I would hope to bring to the job is not just book learning, not just the study that I’ve made of constitutional and public law, but of a kind of wisdom and judgment, a kind of understanding of how to separate the truly important from the spurious,” Ms. Kagan said. “I like to think that one of the good things about me is that I know what I don’t know and that I figure out how to learn it when I need to learn it.”

At Hunter College High School in the 1970s, Ms. Kagan was a standout in a school of ultrabright girls. At least one classmate there, Natalie Bowden, remembers she had an ambitious goal: to become a Supreme Court justice.

“That was a goal from the very beginning,” Ms. Bowden said. “She did talk about it then.”

The school, which then occupied three floors of an office building at 46th Street and Lexington Avenue, was and remains one of New York’s elite public high schools. It drew girls from across the city and an array of backgrounds — all admitted on the strength of their performance on an entrance exam, rather than money or family connections.

“We were really exposed to tremendous diversity there — whether it was a Jewish girl from the Upper West Side or a cop’s kid from the Bronx or the daughter of a C.E.O. from the Upper East Side or kids whose parents worked in sweatshops in Chinatown,” said Ellen M. Purtell, a high school classmate of Ms. Kagan’s. “It was never about what you were wearing. It was: Did you bring your best game academically with you today and could you contribute to the discussion?”

The school, which went coed soon after Ms. Kagan left in 1977, was a rigorous, nurturing environment that instilled an ethos of public service.

“There was no driver’s ed, there was no home economics, you didn’t learn to type,” said Jennifer Raab, the president of Hunter College, who was a few years ahead of Ms. Kagan. “You were reading great books and you were going to college. You were going to lead, you were going to give back.”

Ms. Kagan, the middle of three children, grew up in a family that embraced such values. They lived in a third-floor apartment at West End Avenue and 75th Street that was comfortable, but not fancy, in the days before the Upper West Side became trendy.

Her mother, Gloria, who died two years ago, taught fifth and sixth grade at Hunter College Elementary School, which Elena attended as a young girl. Her brothers followed their mother’s footsteps. Marc, a onetime subway worker and union activist, teaches social studies at the Bronx High School of Science, while Irving teaches social studies at Hunter College High.

Ms. Kagan hewed more to her father’s path. With no shortage of modesty, she described herself in her confirmation hearings last year as “a famously excellent teacher.” But in terms of dynamism and disposition, family friends say, she is her father’s daughter.

Robert Kagan, who died in 1994, represented tenant associations whose rental apartments were being converted to co-ops. A graduate of Yale Law (he was said to have been crushed when his daughter was accepted there but chose Harvard Law instead), he was also immersed in the politics and culture of the West Side.

He fought the controversial Westway highway project as chairman of Community Board 7, an influential citizens’ advisory group. He was a trustee of the West End Synagogue and president of the United Parents Association, a citywide parents’ advocacy group.

“He was one of these people whom everyone liked and everyone believed,” said Bill J. Lubic, Mr. Kagan’s law partner of 20 years. “He could deal with people in extremely difficult circumstances — everything at the grass-roots level on the Upper West Side was a major problem. That was his talent. I firmly believe that that’s what his daughter got from their relationship.”

The young Ms. Kagan was independent and strong-willed. Mr. Lubic recalls her bat mitzvah — or bas mitzvah, as it was then called — in a conservative synagogue, where Elena clashed with the rabbi over some aspect of the ceremony.

“She had strong opinions about what a bas mitzvah should be like, which didn’t parallel the wishes of the rabbi,” he said. “But they finally worked it out. She negotiated with the rabbi and came to a conclusion that satisfied everybody.”

Even as a teenager, Ms. Kagan struck her peers and teachers as someone who was bound for greatness, demonstrating an interest in constitutional issues and displaying qualities that made her well suited for a career in the law.

“Honestly, if you had asked us back then who among you would be a Supreme Court justice some day, she’d certainly be on the short list,” Ms. Purtell said. “She was always very thoughtful, deliberate and focused and got along with everyone without any drama. Everybody liked her.”

One thing was unusual about Ms. Kagan: she smoked cigarettes. One old friend, Margaret Raymond, said Ms. Kagan was the only girl she knew who smoked in high school. Disco was the rage in New York back then, but Ms. Kagan’s was not a partying crowd; on Saturday nights, Ms. Raymond said, they were more apt to sit on the steps of the Metropolitan Museum of Art and talk.

Ms. Kagan emerged as a leader. She became president of the student government, or Government Organization, as it was known, and was appointed to serve on a faculty committee.

“In assemblies and meetings, I used to watch her work,” said Irv Steinfink, a retired teacher of history and comparative religion. “She’d stand up on stage and present ideas for votes and she did it very well. She was very self-confident.”

Although there was nothing judicial about the student government, in her senior yearbook Ms. Kagan, in wire-rimmed aviator glasses and long hair, is pictured on the group’s page wearing a judge’s robe, gavel in hand. Underneath is a quotation from Justice Frankfurter, who was appointed to the Supreme Court by Franklin D. Roosevelt.

“Government,” it reads, “is itself an art, one of the subtlest of arts.”

Ms. Kagan quickly found a place at The Princetonian, the daily student newspaper at Princeton University, when she arrived there in the fall of 1977.

Her circle of friends was a high-powered one, including Eliot Spitzer, the future governor of New York, who became student body president. Bruce Reed, who would hire her as his deputy when he ran the White House Domestic Policy Council under President Bill Clinton, worked for Ms. Kagan at The Princetonian. He wrote “smart-alecky columns, mostly about politics” he said, while she, as editorial chairwoman, seemed “determined to have a serious discussion about the nation’s problems.”

Still, she was hardly the dour sort, and her writings reflected not only her intensity, but her wry sense of humor. In 1979, she reported for Kiosk, a university magazine, on the Telluride House association, a student-governed academic community at Cornell that was facing money woes.

“Only hours before being interviewed on the association’s financial state,” Ms. Kagan wrote, “several members of the house had been fleeced in a game of penny-ante poker by this reporter, a very average card player. Seven-card stud, it seemed, was looked on as an activity in which the very considerable intelligence of these men and women could lie completely dormant.”

As a history major, Ms. Kagan was reflective and thoughtful, said Prof. Sean Wilentz, her senior thesis adviser, who guided her on an exploration of the history of American radicalism.

She titled the thesis “To the Final Conflict: Socialism in New York City, 1900-1933,” and used the acknowledgments to thank her brother Marc, whose “involvement in radical causes,” she wrote, “led me to explore the history of American radicalism in the hope of clarifying my own political ideas.”

In 153 pages, the paper examines why, despite the rise of the labor movement, the Socialist Party lost political traction in the United States — a loss that she attributed to fissures and feuding within the movement. “The story is a sad but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America,” she wrote.

If that sounds like a defense of socialism, Mr. Wilentz insists that is not the case.

“She was interested in it,” he said. “To study something is not to endorse it.”

Apart from her life as a student journalist, Ms. Kagan also dabbled in politics, working as a summer intern for Representative Ted Weiss, Democrat of New York, and later as an assistant press secretary for Ms. Holtzman, who was a congresswoman. In her senior year, she signed a manifesto, along with Mr. Spitzer and six others, under the rubric “Campaign for a Democratic University,” arguing for students to have a greater voice in university governance — an effort that fell apart, one member said, when its adherents left for spring break.

She graduated summa cum laude and seemed drawn, friends say, to a career in academia, public service and the law. She did not have to make an immediate choice; in her senior year, Ms. Kagan received a fellowship to Worcester College, Oxford, where she obtained a master’s degree in philosophy.

Upon returning to the United States, Ms. Kagan enrolled in law school at Harvard, where, predictably perhaps, she made law review at the end of her second year. It was a time of deep political divisions on the law school campus, but Jeffrey Toobin, a classmate and close friend of Ms. Kagan’s who today covers legal issues for The New Yorker and CNN, recalls that Ms. Kagan had an uncanny ability to navigate the philosophical disputes that erupted on the law review board over what kind of articles to publish.

“She was someone who could always navigate easily between and among factions,” he said, “and I think that has remained a touchstone throughout her career.”

She went on to win two plum clerkships, first for Judge Abner Mikva, of the federal appeals court in Washington, and then for Justice Marshall, where she impressed the male clerks by joining their pickup basketball games in the court’s top-floor gym, the so-called “highest court in the land.” Harry Litman, a fellow clerk and former United States attorney in Pittsburgh, remembers Ms. Kagan as a “plucky” player. She played guard.

“I wouldn’t say she dominated,” Mr. Litman said. “It was very much a hacker’s game.”

During her confirmation hearing, Ms. Kagan recalled that the memorandums she drafted for Justice Marshall reflected his views, not hers.

“You know, I was a 27-year-old pipsqueak and I was working for an 80-year-old giant in the law and a person who, let us be frank, had very strong jurisprudential and legal views,” she said. “He knew what he thought about most issues. And for better or for worse, he wasn’t really interested in engaging with his clerks on first principles.”

In 1988, as she was wrapping up her clerkship, it was time for Ms. Kagan to make a career decision. She had hoped to work for a Democratic administration; when George Bush won the presidency, that did not work out. So she went to work for Williams & Connolly as a litigator in Washington, though she did not last very long. Carol Steiker, a fellow clerk who is now a Harvard law professor, recalls that Ms. Kagan never seemed motivated by money. She told the story of Ms. Kagan’s interview with a young associate at a mergers and acquisition firm in New York.

“He was single and he had no family and he was earning — the sum seemed unimaginable — $750,000 a year as a young partner. So she asked the guy, ‘What do you do with all that money?’ And he said, ‘I buy art.’ I remember her telling that story, and just shaking her head,” Ms. Steiker said.

In 1991, having acquired two years of real-world experience practicing law, she joined the faculty at the University of Chicago Law School. That same year, another bright young lawyer and Illinois state senator, Barack Obama, began teaching constitutional law there on the side. Unlike Mr. Obama, who held the title of lecturer, Ms. Kagan was hired as a full-time faculty member, on a tenure track. Geoff Stone, the Chicago law professor and former dean who hired her, said Ms. Kagan was an instant success.

“She was tough, she was independent-minded, she was demanding of her students, she had a good sense of humor,” he said, adding, “The students admired her and raved about her right from the beginning.”

Richard Epstein, another professor at the school, remembers something else about Ms. Kagan: a fierce ambition. “This was a very focused person,” he said. “There was this desperate desire to get ahead of the world and make a mark for herself.”

She was so intense that life’s mundane tasks would sometimes slip her mind.

“A couple of times when she was so focused on her work, she would park her car and leave it running overnight,” said Lawrence Lessig, a longtime friend who taught alongside Ms. Kagan in Chicago. “She just forgot to turn it off.”

As a scholar, he said, Ms. Kagan’s interests were narrow and somewhat technical. She was interested in questions like when the government could limit free speech. “This is not a subject about which there is any ideological slant,” Mr. Stone said. “It’s an intellectual puzzle.”

She was granted tenure in 1995, despite the reservations of some colleagues who thought she had not published enough. Shortly thereafter, Washington beckoned. Judge Mikva was Mr. Clinton’s White House counsel. Remembering Ms. Kagan as a very bright law clerk — “the pick of the litter” from her year, Mr. Mikva said in an interview — he wanted her to be one of his associates.

It was an offer she could not resist, though she knew it was a risk. Chicago, like many universities, would allow her leave for up to two years. After that she would have to resign, giving up her tenure. That is exactly what happened — in December 1996, after she quit her government post and planned her return to Chicago, she was asked by Bruce Reed, her old friend from Princeton who was now Mr. Clinton’s director of domestic policy, to serve as his top deputy.

“Elena thought going ahead in politics was the better path,” Mr. Epstein said. “I think her preferred path was to stay there an extra year, get a really big administrative position, or a judgeship.”

In 1999, Ms. Kagan almost got her chance, when President Clinton nominated her to a seat on the federal appeals court for the District of Columbia, where she had clerked for Judge Mikva. But the nomination fell through; Republicans would not schedule a hearing. Eventually, the judgeship went to John G. Roberts Jr.

The nation’s cigarette makers had already been under attack, both in the legal courts and the court of public opinion, by the time Ms. Kagan joined the Clinton policy shop. Coming off the heels of a legal settlement with state attorneys general, the industry now faced a new challenge: a White House plan to give the Food and Drug Administration authority to regulate tobacco.

Ms. Kagan was pressing the case in the Senate.

As the administration’s lead negotiator on a far-reaching tobacco bill that was to include F.D.A. regulatory authority, Ms. Kagan was assigned to work with the Republican author of the legislation, John McCain of Arizona. The talks were on-again, off-again, with Ms. Kagan eventually winning the support not only of Mr. McCain, but of another important Republican, Bill Frist of Tennessee.

“She brought Republicans and Democrats together on the toughest, most contentious issue in the tobacco debate,” Mr. Reed said.

Although the bill she helped shape never passed (it fell three votes short of the 60 necessary to break a filibuster), it made it out of the Commerce Committee by an extraordinary 19-1 vote in a year, 1998, when Mr. Clinton was facing impeachment and bipartisanship was in exceedingly short supply. Just last year, Congress did give the F.D.A. jurisdiction over cigarette makers — a triumph, colleagues say, for the legislation Ms. Kagan worked on a decade ago.

While she was respected inside the Clinton White House for her smarts (she would often bat around constitutional law questions with the president), one Clinton colleague, Jamie Gorelick, told The New York Sun in 2006 that Ms. Kagan was seen by some as brusque and overly demanding. She sometimes rubbed people in the Justice Department the wrong way.

“She was extremely aggressive when she was in the White House in trying to carry out the president’s agenda,” Ms. Gorelick, a former deputy attorney general and a fan of Ms. Kagan, was quoted as saying. “She was not the most popular person there in part because of that.”

The tug of academia was powerful for Ms. Kagan, and in 1999, with her time in the White House winding down, she tried to return to Chicago but was rebuffed.

“It was a close call, Professor Epstein said. “There were many people passionately in favor of it, some of whom had the prescience to say she would be a very good dean.”

Ms. Kagan landed a visiting professorship at Harvard Law; two years later, she was named a full professor. Two years after that, in 2003, Harvard’s president, Lawrence Summers (now Mr. Obama’s top economics adviser) named her dean. She took charge of what was, in effect, a dysfunctional family stuck in the legal Dark Ages.

The faculty was at odds with itself. The curriculum was out of date. The gym and the dining facilities were old and run-down. The professors were aging, the students unhappy and the law school had fallen behind Yale in the all-important school ranking in U.S. News & World Report.

Ms. Kagan undertook a top-to-bottom transformation, making the faculty more diverse, at least ideologically, and the school more student-friendly and academically competitive, the facilities more modern. Building consensus became her signature style.

One big task was updating the first-year curriculum. With the faculty unable to come to terms on how to do it, Ms. Kagan coaxed professors into addressing the issue.

“She would have the corporate law people, then the public law people, then the criminal law people to her house for dinner and they would talk about it,” said John Manning, a law professor Ms. Kagan poached from Columbia in January 2004. Together with Martha Minow, who succeeded her as dean, she built a proposal to add courses on legislation, international law and problem-solving. The faculty adopted it unanimously.

But perhaps the greatest display of Ms. Kagan’s ability to build consensus — and the hallmark of her tenure as dean — was her breaking the logjam that had bogged down the hiring of new faculty members.

Hiring had slowed in part because the faculty was divided into ideological factions and each could stop a new hire. Ms. Kagan convinced her colleagues the law school needed fresh blood. She went after star professors at other universities and helped raise significant amounts of money to lure them to Cambridge. When she became dean, in July 2003, there were 81 full-time permanent members of the faculty, according to the law school. By the time she left, in March 2009, she had added 43. Taking into account retirements and other losses, the net expansion during her tenure was 22, an astonishing number in less than six years

Her hiring binge became the subject of an April Fool’s parody in 2008 in the Harvard Law Record. “Dean Kagan Hires Every Law Professor in the Country,” the headline blared.

Critics have noted that most of the hires were white men. Of the 43 new hires, four were minorities and nine were women; law school officials said the numbers did not reflect the whole story because more offers were made than accepted and some jobs were still open.

But Ms. Kagan broadened the faculty ideologically. Mr. Manning, a conservative, was one of the first professors she hired. Another early recruit was Jack Goldsmith, a Justice Department official in the Bush administration.

As for getting agreement on the new hires, one Harvard law professor who spoke on the condition of anonymity to discuss internal politics at the school said that Ms. Kagan was more of a coalition-builder than a consensus-builder. The faculty was essentially divided into three blocs, this person said: conservative, liberal and one in the middle that usually went along with the dean.

“Elena would count the votes and say, ‘This crowd will vote for X and I want X, so that will be two thirds and we’ll make it happen,’ ” the professor said. “It was not that she won over people after they suddenly saw the wisdom of what she wanted.”

Perhaps surprisingly for someone so prominent in academia, Ms. Kagan published very little. Except for her deep involvement in a fracas over whether military recruiters could use the law school’s facilities — and her strong antipathy toward the law barring gays and lesbians from serving openly in the armed forces — Ms. Kagan did not write or speak out on the issues of the day.

One of her biggest accomplishments, according to former students and faculty members, was simply making the campus more student-friendly. She renovated the gym and opened a skating rink and volleyball court. Her first summer, she hired contractors to create a place for students to sit outside Harkness Dining Hall and renovated the Harkness Commons. She created a faculty dining area that served free lunch.

“She was very big on building community at the law school,” Mr. Manning said. “She put two big round tables in the room and created a good place where people could get to know each other. She understands human nature very well.”

When Ms. Kagan became United States solicitor general, the federal government’s top appellate lawyer, in March 2009, she had argued no cases in the United States Supreme Court and had, indeed, just recently become a member of its bar.

Six months later, she made her debut in a case that would turn out to be one of the court’s biggest decisions in recent years, Citizens United v. Federal Election Commission.

She lost.

The court ruled against Ms. Kagan in January by a 5-to-4 vote, with the court’s more conservative justices in the majority. Now that decision, which allowed unlimited corporate spending in candidate elections, will figure most prominently in Ms. Kagan’s upcoming hearing. Mr. Obama has made the case a central theme of his argument that the court under Chief Justice Roberts is engaging in a conservative brand of judicial activism.

Back at Princeton, Ms. Kagan’s history professor, Mr. Wilentz, says it makes perfect sense that the woman who argued Citizens United will now be looking to counter what the president regards as the court’s rightward tilt.

“I’m not at all surprised that President Obama is drawn to Elena Kagan,” Professor Wilentz said. “She was just a wonderful combination of brains and passion.”

Adam Liptak and Charlie Savage contributed reporting.

    A Climb Marked by Confidence and Canniness, NYT, 10.5.2010, http://www.nytimes.com/2010/05/10/us/politics/10kagan.html

Obama Is Said to Select Kagan as Justice
 

May 9, 2010
The New York Times
By PETER BAKER and JEFF ZELENY

WASHINGTON — President Obama will nominate Solicitor General Elena Kagan as the nation’s 112th justice, choosing his own chief advocate before the Supreme Court to join it in ruling on cases critical to his view of the country’s future, Democrats close to the White House said Sunday.

After a monthlong search, Mr. Obama informed Ms. Kagan and his advisers on Sunday of his choice to succeed the retiring Justice John Paul Stevens. He plans to announce the nomination at 10 a.m. Monday in the East Room of the White House with Ms. Kagan by his side, said the Democrats, who insisted on anonymity to discuss the decision before it was formally made public.

In settling on Ms. Kagan, the president chose a well-regarded 50-year-old lawyer who served as a staff member in all three branches of government and was the first woman to be dean of Harvard Law School. If confirmed, she would be the youngest member and the third woman on the current court, but the first justice in nearly four decades without any prior judicial experience.

That lack of time on the bench may both help and hurt her confirmation prospects, allowing critics to question whether she is truly qualified while denying them a lengthy judicial paper trail filled with ammunition for attacks. As solicitor general, Ms. Kagan has represented the government before the Supreme Court for the past year, but her own views are to a large extent a matter of supposition.

Perhaps as a result, some on both sides of the ideological aisle are suspicious of her. Liberals dislike her support for strong executive power and her outreach to conservatives while running the law school. Activists on the right have attacked her for briefly barring military recruiters from a campus facility because the ban on openly gay men and lesbians serving in the military violated the school’s anti-discrimination policy.

Replacing Justice Stevens with Ms. Kagan presumably would not alter the broad ideological balance on the court, but her relative youth means that she could have an influence on the court for decades to come, underscoring the stakes involved.

In making his second nomination in as many years, Mr. Obama was not looking for a liberal firebrand as much as a persuasive leader who could attract the swing vote of Justice Anthony M. Kennedy and counter what the president sees as the rightward direction of the court under Chief Justice John G. Roberts Jr. Particularly since the Citizens United decision invalidating on free speech grounds the restrictions on corporate spending in elections, Mr. Obama has publicly criticized the court, even during his State of the Union address with justices in the audience.

As he presses an ambitious agenda expanding the reach of government, Mr. Obama has come to worry that a conservative Supreme Court could become an obstacle down the road, aides said. It is conceivable that the Roberts court could eventually hear challenges to aspects of Mr. Obama’s health care program or to other policies like restrictions on carbon emissions and counterterrorism practices.

With all signs pointing to a Kagan nomination, critics have been pre-emptively attacking her in the days leading up to the president’s announcement. Paul Campos, a law professor at the University of Colorado, Boulder, writing on The Daily Beast, compared her to Harriet E. Miers, whose nomination by President George W. Bush collapsed amid an uprising among conservatives who considered her unqualified and not demonstrably committed to their judicial philosophy.

M. Edward Whelan III, president of the Ethics and Public Policy Center in Washington, wrote on National Review’s Web site that even Ms. Kagan’s nonjudicial experience was inadequate. “Kagan may well have less experience relevant to the work of being a justice than any entering justice in decades,” Mr. Whelan wrote.

Ms. Kagan defended her experience during confirmation hearings as solicitor general last year. “I bring up a lifetime of learning and study of the law, and particularly of the constitutional and administrative law issues that form the core of the court’s docket,” she testified. “I think I bring up some of the communications skills that has made me — I’m just going to say it — a famously excellent teacher.”

Ms. Kagan was one of Mr. Obama’s runners-up last year when he nominated Sonia Sotomayor to the court, and she was always considered the front-runner this year. The president also interviewed three other candidates, all federal appeals court judges: Merrick B. Garland of Washington, Diane P. Wood of Chicago and Sidney R. Thomas of Montana.

Ms. Kagan had several advantages from the beginning that made her the most obvious choice. For one, she works for Mr. Obama, who has been impressed with her intelligence and legal capacity, aides said, and she worked for Vice President Joseph R. Biden Jr. when he was a senator. For another, she is the youngest of the four finalists, meaning she would most likely have the longest tenure as a justice.

Ms. Kagan was also confirmed by the Senate just last year, albeit with 31 no votes, making it harder for Republicans who voted for her in 2009 to vote against her in 2010.

The president can also say he reached beyond the so-called “judicial monastery,” although picking a solicitor general and former Harvard law dean hardly reaches outside the Ivy League, East Coast legal elite. And her confirmation would allow Mr. Obama to build on his appointment of Justice Sotomayor by bringing the number of women on the court to its highest ever (three, with Justice Sotomayor and Justice Ruth Bader Ginsburg).

Moreover, in his selection of finalists, Mr. Obama effectively framed the choice so that he could seemingly take the middle road by picking Ms. Kagan, who correctly or not was viewed as ideologically between Judge Wood on the left and Judge Garland in the center.

Judge Garland was widely seen as the most likely alternative to Ms. Kagan and the one most likely to win easy confirmation. Well respected on both sides of the aisle, he had a number of conservatives publicly calling him the best they could hope for from a Democratic president. Senator Orrin G. Hatch of Utah, a Republican member of the Judiciary Committee, privately made clear to the president that he considered Judge Garland a good choice, according to people briefed on their conversations.

But Mr. Obama ultimately opted to save Judge Garland for when he faces a more hostile Senate and needs a nominee with more Republican support. Democrats expect to lose seats in this fall’s election, so if another Supreme Court seat comes open next year and Mr. Obama has a substantially thinner margin in the Senate than he has today, Judge Garland would be an obvious choice.

As for Ms. Kagan, strategists on both sides anticipate a fight over her confirmation but not necessarily an all-out war. The White House hopes the Senate Judiciary Committee can hold hearings before July 4, but some Congressional aides were skeptical. Either way, Democrats want Ms. Kagan confirmed by the August recess so she can join the court for the start of its new term in October.

A New Yorker who grew up in Manhattan, Ms. Kagan earned degrees from Princeton, Oxford and Harvard Law School, worked briefly in private practice, clerked for Justice Thurgood Marshall, served as a Senate staff member and worked as a White House lawyer and domestic policy aide under President Bill Clinton. She was nominated for an appeals court judgeship in 1999, but the Senate never voted on her nomination.

She has been a trailblazer along the way, not only as the first woman to run Harvard Law School but also as the first woman to serve as solicitor general. Her inexperience as a judge makes her a rarity in modern times, but until the 1970s many Supreme Court justices came from outside the judiciary, including senators, governors, cabinet secretaries and even a former president.

If the Senate confirms Ms. Kagan, who is Jewish, the Supreme Court for the first time will have no Protestant members. In that case, the court would be composed of six justices who are Catholic and three who are Jewish. It also would mean that every member of the court had studied law at Harvard or Yale.

Like her former boss, Justice Marshall, who was the last solicitor general to go directly to the Supreme Court, Ms. Kagan may be forced to recuse herself during her early time on the bench because of her participation in a number of cases coming before the justices. Tom Goldstein, publisher of ScotusBlog, a Web site that follows the court, estimated that she would have to sit out on 13 to 15 matters. Mr. Whelan argued that it would be significantly more than that.

    Obama Is Said to Select Kagan as Justice, NYT, 9.5.2010, http://www.nytimes.com/2010/05/10/us/politics/10court.html

Editorial

The Court and Free Speech

April 24, 2010
The New York Times

When the Supreme Court ruled 8-to-1 this week that a federal law banning the sale of animal-cruelty videos violates the First Amendment, it reaffirmed the right to engage in even highly unpopular speech. And it wisely declined to create another category of expression outside of the First Amendment’s protection.

With this case and the court’s earlier Citizens United decision on corporate speech and political campaign contributions, this could be one of the most important terms in years for defining the constitutional scope of freedom of expression — for better or for worse.

Taken together, the rulings give freedom of speech a wide berth in two directions. The animal-cruelty ruling takes a strong and welcome stand that there should be only very narrow exceptions to the general rule that almost all content of speech is protected. That view is broadly accepted by most judges and constitutional scholars, and was reflected in the fact that eight justices from across the political spectrum joined the majority.

The campaign finance ruling, regrettably, gave a particular kind of speaker — corporations — a more expansive free speech right to spend than the court has ever acknowledged. The break there with the nation’s legal traditions was sharp, and opened the floodgates for big business and special-interest dollars to overwhelm American politics. That was delivered by a bitterly divided 5-to-4 court.

The animal-cruelty case involved Robert Stevens, who ran a business that sold disturbing, even disgusting, videos of pit bulls fighting and attacking other animals. Mr. Stevens was convicted under a federal law that criminalizes the sale of depictions of animal cruelty if the acts are illegal in the state where the depiction is sold.

The Supreme Court ruled, in United States v. Stevens, that Mr. Stevens’s conviction violated the First Amendment. It declined to add animal cruelty to the short list of forms of expression — including obscenity, incitement and defamation — that are not protected by the Constitution.

It then went on to rule that the federal law was overly broad, since it swept within its coverage many sorts of images that should be considered core protected speech. For example, hunting is illegal in the District of Columbia, and under the law, selling hunting magazines there would also be illegal.

The majority opinion, by Chief Justice John Roberts Jr., was a strong affirmation of the importance of freedom of expression, even in the face of substantial societal condemnation of the horrific nature of some of the speech involved. It was gratifying that the court recognized that the right way to protect animals from abuse is through laws aimed at the abuse itself, not at free expression.

The court has two more important free speech cases coming up. One raises the question of whether people have a right to keep their identities secret if they signed a petition to put a referendum against same-sex marriage on the ballot. Putting an initiative on the ballot is an important governmental act, and we hope the court does not decide that there is a right to do so anonymously.

The court has already heard arguments in a challenge to a federal law barring material support to terrorists, which prohibits some kinds of speech in support of controversial causes. We hope it narrows the statute’s scope, carefully sorting through what kinds of assistance are protected speech, and what are the sorts of aid the government can properly prohibit.

That respectful treatment of the First Amendment, also reflected in the Stevens case, is what the nation needs from this court — not the recklessness of the ruling in the Citizens United case.

    The Court and Free Speech, NYT, 24.4.2010, http://www.nytimes.com/2010/04/24/opinion/24sat1.html

Letters

How Judges See the Constitution

April 22, 2010
The New York Times

To the Editor:

“Our Fill-in-the-Blank Constitution,” by Geoffrey R. Stone (Op-Ed, April 14), deserves to be widely read.

Judicial decisions on the central issues of our time — separation of church and state, freedom of speech and the press, the right to assemble, gun control, affirmative action, capital punishment, abortion rights and so on, are in general governed by constitutional provisions like due process of law, equal protection of the law, privileges and immunities of citizens, unreasonable search and seizure, and the right of people to keep and bear arms. These provisions and others like them were purposely drafted by the founding fathers in broad and general terms.

They were written centuries ago when, obviously, there was no electric power, no television or radio, no airplanes or railroads, no Internet and so forth. Most of them were written when blacks were considered property and women did not have the right to vote.

To insist, as some judges and justices do, that they now be interpreted as written is, therefore, completely without foundation.

Owen Birnbaum
Boca Raton, Fla., April 14, 2010

The writer is a former law professor at Howard University School of Law and lawyer for the federal government.

•

To the Editor:

Every practicing lawyer knows that one of the best predictors of the outcome of a lawsuit is the politics of the judge. The law sets some boundaries on how far the judge can drift left or right, but it rarely dictates a precise outcome. Analytical ability and judicial experience play a role, but personal convictions or biases often matter more.

Richard Joffe
New York, April 14, 2010

The writer is a lawyer.

•

To the Editor:

Geoffrey R. Stone’s panegyric to liberal Supreme Court justices doesn’t mention the vast expansion of government power and truncation of individual liberties that can be laid at the doorstep of his judicial heroes.

Thanks to so-called empathetic judges who have ignored the commandments of the Constitution, Congress can regulate anything and everything, redistribute money from anyone to anyone else, delegate its lawmaking authority to unaccountable and unelected bureaucrats, erase private contracts between consenting adults, extend less protection to political speech than to flag burning, seize private property for transfer to politically connected developers, punish blameless but disfavored racial majorities and impose anticompetitive restrictions on would-be entrepreneurs seeking only to earn an honest living.

Professor Stone might at least have acknowledged the pro-liberty role played by more conservative justices who managed to restrain their personal impulses in favor of the text of our founding documents.

Robert A. Levy
Chairman, Cato Institute
Naples, Fla., April 14, 2010

•

To the Editor:

Prof. Geoffrey R. Stone has hit the proverbial nail on the head in rebutting the notion, advanced hypocritically these days by certain judges and politicians, that appellate judges are somehow like baseball umpires, making objective decisions according to immutable rules of the game. While that characterization may be somewhat applicable to trial judges, it has nothing to do with the work of appellate judges, state or federal.

The judge is not a clean slate, inputting arguments, reading precedent and rendering a more or less predictable decision. Rather, judging, particularly appellate judging, is not a science, and certainly not a baseball game, but an art. Judges come to the bench with a mind-set reflecting their life and work experiences, and their decision making is apt to be influenced by that background. The best judges can do is to keep an internal rein on their preconceived biases or prejudices.

In the federal system, any effort to dispel the myths exposed by Professor Stone would require an honest debate by our senators and the political will to retreat from purely ideological attacks on federal judicial candidates, whether for district courts, courts of appeal or the Supreme Court.

At the moment, such a sea change appears highly unlikely, and the confirmation process, when exposed to view (which is not often), remains a national disgrace.

Harvey Weissbard
Newark, April 16, 2010

The writer is a retired appellate judge.

•

To the Editor:

It’s been clear since Gore v. Bush that the right-wing cabal on the United States Supreme Court are the “activists.”

That’s when the Conservative Five used equal protection, a constitutional provision that they had routinely rejected in civil rights cases, to impose their ideological choice for president on the country. While Geoffrey R. Stone’s article is somewhat nuanced, at least he is challenging the right-wing propaganda that claims that the Conservative Five are only following the Constitution.

In fact, the Constitution has been turned on its head by the conclusion-driven decisions of this court.

Barbara Blinderman
Beverly Hills, Calif., April 14, 2010

The writer is a retired lawyer.

•

To the Editor:

Geoffrey R. Stone cites James Madison’s apprehension about the tyranny of the majority, going on to argue that “conservative judges often stand this idea on its head” when they “invalidate laws that disadvantage corporations, business interests, the wealthy and other powerful interests in society.”

But Madison’s idea does not support the point Mr. Stone wishes to make. The wealthy, in Madison’s time and ours, are the few. But they have rights, too, and arguably their rights are violated when the majority support a law that, for example, tends to silence them. Madison’s concern for the rights of the few, as against the will of the majority, supports the conservative side of the argument.

Mark DeBellis
New York, April 14, 2010

    How Judges See the Constitution, NYT, 22.4.2010, http://www.nytimes.com/2010/04/22/opinion/l22scotus.html

Obama Weighs Supreme Court Nominees, and Each Potential Battle

April 16, 2010
The New York Times
By CHARLIE SAVAGE

WASHINGTON — As President Obama’s advisers consider Supreme Court nominees, White House officials and political activists are focusing on the vulnerabilities that conservatives could exploit to portray them as so-called liberal judicial activists, according to interviews and a review of documents.

Richard Viguerie, a conservative fund-raiser who is developing direct-mail and Internet campaigns about the coming nominee, said conservatives relished the prospect of a fight with Democrats over the Supreme Court before the November election.

“The more material he gives us to work with, the easier the battle will be,” Mr. Viguerie said. “The more quickly we can identify that person as an ideological liberal, the easier it is for us to communicate to the American people how radical the president is and the nominee is.”

White House aides have said they were considering as many as 10 potential nominees to succeed retiring Justice John Paul Stevens, but three contenders have drawn the most attention: Solicitor General Elena Kagan and two federal appeals court judges, Diane P. Wood and Merrick B. Garland.

Conservatives activists say they have already conducted opposition research into Judge Wood and Ms. Kagan because they were finalists for the seat filled by Sonia Sotomayor last year. Some of those files, obtained by The New York Times, show that if Mr. Obama nominates Judge Wood, conservatives would seek to portray her as an abortion-rights extremist who is hostile to Christians. Should the pick go to Ms. Kagan, conservatives are likely to accuse her of subordinating national security to a gay rights agenda.

Conservatives say they have yet to find as much potential ammunition in Judge Garland’s record, so there is debate over how aggressively to attack him if he is nominated. Still, some say, there might be enough material to portray him as a proponent of Big Government regulations who wants to give greater rights to people accused of terrorism.

Defenders of the potential nominees argue that portraying any of them as ideologues would be a misleading caricature, one that relies on the premise that nearly all Democratic appointees are “out of the mainstream.”

“No matter who the president nominates, we fully expect that many Republicans will oppose the nominee and attempt to brand him or her as ‘outside the mainstream,’ ” said Ben LaBolt, a White House spokesman. He said Mr. Obama would pick “someone who has a rigorous legal intellect, respects the limits of the judicial role and has a keen understanding of how the law impacts the daily lives of Americans.”

Still, opposition research files compiled by conservative activist groups suggest that Judge Wood would be the riskiest choice. M. Edward Whelan III, a former Bush administration lawyer who blogs for the conservative National Review, has called her “a hard-left judicial activist and aggressor on culture-war issues.” And this month, Americans United for Life, an anti-abortion group, said Judge Wood’s “record shows she places her pro-abortion ideology above her judicial duty.”

Conservatives point to several cases in which she voted to strike down laws restricting abortion, including a ban on the procedure opponents call partial-birth abortion and an “informed consent” law similar to one the Supreme Court had previously upheld. She was also twice reversed by the Supreme Court in a long-running civil lawsuit, in which she approved applying extortion laws to an aggressive group of abortion clinic protesters.

Judge Wood could also find herself attacked as hostile to religion. She voted to allow people to challenge a Bush administration program that gave taxpayer money to religious groups and the Indiana House of Representatives’ practice of opening sessions with sectarian prayers. And she sided with a public university that revoked the status of a Christian club because it denied membership to gay people.

Judge Wood’s defenders say that she has a lengthier record on social issues than other potential nominees only because more such cases came before her court. Moreover, they say, in many of those cases, including several involving abortion, Republican appointees — often including the renowned conservative Judge Richard Posner — voted the same way she did.

There is less potential fodder in Ms. Kagan’s record. Still, as former dean of Harvard Law School, she earned conservative enmity by limiting the access of military recruiters to campus because of the Pentagon’s policy of not allowing gay men and lesbians to serve openly. The law school had long restricted military recruiters under its antidiscrimination policy, but in 2002, Ms. Kagan’s predecessor had lifted that ban after the Pentagon, invoking a statute known as the Solomon Amendment, threatened to cut off federal aid to universities that blocked military recruiting.

But in 2004, Ms. Kagan briefly reinstated the recruiting restrictions because an appeals court had called the legality of that statute into question. She dropped it again a semester later — while denouncing the military’s policy of discriminating against gay men and lesbians as “deeply wrong” — after the Pentagon again threatened Harvard’s financing. In addition, when the Supreme Court reviewed an appellate ruling over the issue, Ms. Kagan signed a “friend of the court” brief arguing that universities could bar military recruiters without losing their financing, so long as their antidiscrimination policy did not single out the military. But the court unanimously upheld the statute.

Curt Levey of the conservative Committee for Justice, said her handling of the recruiting matter would generate criticism on both national security and gay rights grounds. And Liz Cheney, a daughter of former Vice President Dick Cheney and a former student of Ms. Kagan’s, recently declared in a Fox News discussion about her that “not allowing the military to recruit on campus clearly was very radical.”

Defenders of Ms. Kagan note that the recruiting restrictions had been a longstanding policy at Harvard and other schools. And, during her solicitor-general confirmation, she endorsed counterterrorism policies like holding Qaeda suspects without trial and declared that there is no federal constitutional right to same-sex marriage.

Less has come to light that could be used against Judge Garland. Still, some researchers have pointed to preliminary findings that could be fodder for attack.

For example, while Judge Garland has not often dealt with social issues, at a 2005 book event, he reportedly described the release of the papers of the late Justice Harry Blackmun — the author of the 1973 Roe v. Wade abortion rights decision — as a “great gift to the country.”

Phillip Jauregui, the president of the conservative Judicial Action Group, said that remark sent an alarming signal to social conservatives. “The fact that he would use those words to describe Harry Blackmun’s papers is cause for concern,” he said.

Because the District of Columbia Circuit hears all challenges to federal agency regulations, Judge Garland also has a long record of voting to uphold such federal authorities — an issue that could resonate with the libertarian sentiment on display in the Tea Party movement.

Finally, Judge Garland has also several times sided with the rights of detainees. He voted to overturn the military’s determination that a Chinese Muslim detainee at Guantánamo Bay prison in Cuba was an “enemy combatant.” He also voted to allow former detainees who had been held at the Abu Ghraib prison in Iraq to sue private contractors accused of being involved in abuses.

Still, defenders argue that Judge Garland has strong national security credentials; before becoming a judge, he was a prosecutor who oversaw the cases against Timothy McVeigh, the Oklahoma City bomber, and Theodore J. Kaczynski, the so-called Unabomber. He also sided against Guantánamo detainees in a 2003 case, later reversed by the Supreme Court.

And Walter Dellinger, a solicitor general in the Clinton administration, said that all three were respected by prominent conservative law professors and judges who, he said, would vouch for their “reputations for integrity, fairness and being open-minded” if they were nominated.

“This is an era where any nominee is going to be attacked,” Mr. Dellinger said. “But I think the attacks from the right are not credible about any of these three.”

    Obama Weighs Supreme Court Nominees, and Each Potential Battle, NYT, 16.4.2010, http://www.nytimes.com/2010/04/17/us/politics/17court.html

Op-Ed Contributor

Our Fill-in-the-Blank Constitution

April 14, 2010
The New York Times
By GEOFFREY R. STONE

Chicago

AS the Senate awaits the nomination of a new Supreme Court justice, a frank discussion is needed on the proper role of judges in our constitutional system. For 30 years, conservative commentators have persuaded the public that conservative judges apply the law, whereas liberal judges make up the law. According to Chief Justice John Roberts, his job is just to “call balls and strikes.” According to Justice Antonin Scalia, conservative jurists merely carry out the “original meaning” of the framers. These are appealing but wholly disingenuous descriptions of what judges — liberal or conservative — actually do.

To see why this is so, we need only look to the text of the Constitution. It defines our most fundamental rights and protections in open-ended terms: “freedom of speech,” for example, and “equal protection of the laws,” “due process of law,” “unreasonable searches and seizures,” “free exercise” of religion and “cruel and unusual punishment.” These terms are not self-defining; they did not have clear meanings even to the people who drafted them. The framers fully understood that they were leaving it to future generations to use their intelligence, judgment and experience to give concrete meaning to the expressed aspirations.

Rulings by conservative justices in the past decade make it perfectly clear that they do not “apply the law” in a neutral and detached manner. Consider, for example, their decisions holding that corporations have the same right of free speech as individuals, that commercial advertising receives robust protection under the First Amendment, that the Second Amendment prohibits the regulation of guns, that affirmative action is unconstitutional, that the equal protection clause mandated the election of George W. Bush and that the Boy Scouts have a First Amendment right to exclude gay scoutmasters.

Whatever one thinks of these decisions, it should be apparent that conservative judges do not disinterestedly call balls and strikes. Rather, fueled by their own political and ideological convictions, they make value judgments, often in an aggressively activist manner that goes well beyond anything the framers themselves envisioned. There is nothing simple, neutral, objective or restrained about such decisions. For too long, conservatives have set the terms of the debate about judges, and they have done so in a highly misleading way. Americans should see conservative constitutional jurisprudence for what it really is. And liberals must stand up for their vision of the judiciary.

So, how should judges interpret the Constitution? To answer that question, we need to consider why we give courts the power of judicial review — the power to hold laws unconstitutional — in the first place. Although the framers thought democracy to be the best system of government, they recognized that it was imperfect. One flaw that troubled them was the risk that prejudice or intolerance on the part of the majority might threaten the liberties of a minority. As James Madison observed, in a democratic society “the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended ... from acts in which the government is the mere instrument of the major number of the constituents.” It was therefore essential, Madison concluded, for judges, whose life tenure insulates them from the demands of the majority, to serve as the guardians of our liberties and as “an impenetrable bulwark” against every encroachment upon our most cherished freedoms.

Conservative judges often stand this idea on its head. As the list of rulings above shows, they tend to exercise the power of judicial review to invalidate laws that disadvantage corporations, business interests, the wealthy and other powerful interests in society. They employ judicial review to protect the powerful rather than the powerless.

Liberal judges, on the other hand, have tended to exercise the power of judicial review to invalidate laws that disadvantage racial and religious minorities, political dissenters, people accused of crimes and others who are unlikely to have their interests fully and fairly considered by the majority. Liberal judges have ended racial segregation, recognized the principle of “one person, one vote,” prohibited censorship of the Pentagon Papers and upheld the right to due process, even at Guantánamo Bay. This approach to judicial review fits much more naturally with the concerns and intentions of people like Madison who forged the American constitutional system.

Should “empathy” enter into this process? In the days before he nominated Sonia Sotomayor to the Supreme Court, President Obama was criticized by conservatives for suggesting that a sense of empathy might make for a better judge.

But the president was correct. If all judges did was umpire, then judicial empathy would be irrelevant. In baseball, we wouldn’t want an umpire to say a ball was a strike just because he felt empathy for the pitcher. But once you understand that the umpire analogy is absurd, it’s evident that a sense of empathy can, in fact, help judges fulfill their responsibilities — in at least two ways.

First, empathy helps judges understand the aspirations of the framers, who were themselves determined to protect the rights of political, religious, racial and other minorities. Second, it helps judges understand the effects of the law on the real world. Think of judicial decisions that have invalidated laws prohibiting interracial marriage, granted hearings to welfare recipients before their benefits could be terminated, forbidden forced sterilization of people accused of crime, protected the rights of political dissenters and members of minority religious faiths, guaranteed a right to counsel for indigent defendants and invalidated laws denying women equal rights under the law. In each of these situations, in order to give full and proper meaning to the Constitution it was necessary and appropriate for the justices to comprehend the effect that the laws under consideration had, or could have, on the lives of real people.

Faithfully applying our Constitution’s 18th- and 19th-century text to 21st-century problems requires not only careful attention to the text, fidelity to the framers’ goals and respect for precedent, but also an awareness of the practical realities of the present. Only with such awareness can judges, in a constantly changing society, hope to keep faith with our highest law.

This does not mean judges are free to make up the law as they go along. But it does mean that constitutional law is not a mechanical exercise of just “applying the law.” Before there can be a serious national dialogue about our Constitution, our laws and the proper role of our judges, that myth must be exposed.

 

Geoffrey R. Stone, a professor of law at the University of Chicago, is an editor of The Supreme Court Review.

    Our Fill-in-the-Blank Constitution, NYT, 14.4.2010, http://www.nytimes.com/2010/04/14/opinion/14stone.html

My Boss, Justice Stevens

April 11, 2010
The New York Times
By SUSAN ESTRICH, EDUARDO M. PEÑALVER, JEFFREY L. FISHER,
CLIFF SLOAN, DEBORAH N. PEARLSTEIN and JOSEPH THAI

On Friday, John Paul Stevens, the longest-serving Supreme Court justice on the bench, announced that he would retire at the end of the term. The Op-Ed editors asked six of his former clerks to share their memories of working for him.

THE petition came in around 9 p.m. on May 24, 1979. A man named John Spenkelink, convicted in the murder of a fellow hitchhiker in Florida, was scheduled to die that night, and he was fighting to the end. Justice Lewis Powell, who sat as circuit justice for Florida, had already denied the stay of execution.

Those of us in Justice Stevens’s office thought Spenkelink’s lawyers would go to one of the anti-death penalty justices — William Brennan or Thurgood Marshall — but we were waiting just in case. For whatever reason — maybe they knew they would need Justice Stevens’s vote to get a hearing before the court, to get anything other than a few hours. They chose our office instead.

Justice Stevens had already gone home, so my fellow clerk and I, Jim Liebman, got in my car, a beat-up Ford Maverick with no inside light. Jim, who would go on to be one of the nation’s leading death penalty lawyers, brought a flashlight; he read, I drove.

The justice and his wife had recently separated, and he was living in one of those nondescript high-rises that poke out of the landscape in Arlington, Va. The three of us sat on his rented furniture, going issue by issue through the petition.

At one point, Justice Stevens called Justice Potter Stewart, the other “death penalty moderate” on the court. We summarized each of the issues. Were any of them worth being considered by the full court? Justice Stewart didn’t think so. Justice Stevens agreed.

We drove back with the death warrant. Justice Marshall was waiting for us when we got there. He signed the stay, and the court dissolved it in the morning. Spenkelink was executed.

Years later, I talked about that night with Justice Stevens. He had lost faith in the fairness of the death penalty, because no one paid the kind of attention that he had, and Justice Stewart had, and Justice Marshall had, that night long ago. When I asked him why he had changed, he told me that on this, as on so many questions, he had not changed at all. The court had.

— SUSAN ESTRICH, lawyer in Los Angeles and clerk from 1978 to 1979

•

DURING my clerkship interview with Justice Stevens, we talked about our hometowns. When I mentioned that I had grown up in a small town near Seattle, he leapt from his chair and pulled a plaque off the wall. It read: “Small Town Lawyer of the Year: Associate Justice John Paul Stevens.” It had been given to him a few years before by the bar association of Poulsbo, Wash.

At the time, I was puzzled that the award was so meaningful to him. I shouldn’t have been. Although Justice Stevens has always practiced law at the highest levels of the profession, his modesty would make him feel right at home in a place like Poulsbo. He may not have actually been a small town lawyer, but he was definitely a kindred spirit.

— EDUARDO M. PEÑALVER, professor at Cornell Law School and clerk from 2000 to 2001

•

ONE of Justice Stevens’s trademarks is the courteousness with which he treats the lawyers who appear before the Supreme Court. When he wants to elicit information or make a point during oral argument, he typically interrupts the lawyer with the gentle preface, “May I ask you a question?”

During William Rehnquist’s tenure as chief justice, a lawyer was arguing in the court for the first time. When asked a question by Justice Anthony Kennedy, the nervous lawyer started her response with, “Well, Judge — ”

Chief Justice Rehnquist interrupted her. “That’s Justice Kennedy,” he said.

Shaken, the lawyer continued. A few minutes later, she responded to Justice David Souter by saying, “Yes, Judge.” Chief Justice Rehnquist corrected her again: “That’s Justice Souter.” A couple of minutes later, she called Chief Justice Rehnquist himself a judge.

The chief justice leaned forward, his deep voice now at its sternest, to say, “Counsel is admonished that this court is composed of justices, not judges.”

Before the lawyer could say anything, Justice Stevens interjected: “It’s O.K., Counsel. The Constitution makes the same mistake.”

— JEFFREY L. FISHER, associate professor at Stanford Law School and clerk from 1998 to 1999

•

JUSTICE STEVENS’S energy amazed me, especially because he always seemed relaxed and unhurried. He’d come to chambers first thing in the morning with a draft of an opinion, which he had banged out or dictated at home earlier that day. And it was never a breezy one-pager in the style favored by his predecessor, William O. Douglas. Whether a majority opinion, a concurrence or a dissent, it would be thoughtful and detailed, complete with footnotes. He would have also gotten in a few sets of tennis that morning.

He loved to come into the clerks’ office to brainstorm about pending cases, delighting in the facts and law of every one, no matter how obscure. One time, a clerk for another justice happened to be there and stayed for the discussion. Later, he gave Justice Stevens his highest accolade: “That was like talking to another clerk.”

In those days, Justice Stevens hired only two clerks, even though most justices hired four, and even though the court decided twice as many cases as today. He didn’t see the need for more help. And, of course, he was one of the few justices who wouldn’t join the “cert. pool,” the collective divvying up of the court’s 7,000 annual requests for review. Better to look at all 7,000 ourselves.

Maybe the best example of Justice Stevens’s energy came a few years ago. I and some other former clerks were planning a clerks’ reunion with Justice Stevens, and one suggested a tennis tournament. Justice Stevens didn’t approve. “Why not?” asked the organizer.

“Most of the clerks aren’t very good,” he responded. He didn’t want to waste his time playing with hackers. He was 85 at the time.

— CLIFF SLOAN, lawyer in Washington and clerk from 1985 to 1986

•

EARLY in my clerkship, a man was scheduled to be executed late at night, and it was my turn to keep Justice Stevens posted on any final appeals.

As I would soon learn, the last-minute claims this petitioner was raising were common features of capital cases. They had been raised and litigated before, and they presented no novel question of law that would make the case a likely candidate for further review. Nonetheless, the man was about to be executed, and so I called Justice Stevens at home and woke him up.

He was patient as we reviewed the key points. But in the end, he indicated he would vote against staying the execution. I decided to reiterate what I thought was the petitioner’s strongest argument.

“No,” he said firmly, and thanked me for the call. I apologized for waking him and hung up. It was a fairly gentle exchange, but I was at a loss, equally unsure whether I’d been wrong for pushing, or whether I’d failed in making the case.

The justice came to my desk first thing the next morning. Before I could say anything, he apologized, saying he hoped he hadn’t been too short with me. “I forget you get baptized pretty quickly in this business,” he said, shaking his head.

It struck me as a remarkable act of empathy from a man who’d already been plenty patient with a rookie clerk and who had been, it later was clear to me, correct on the merits. But this was par for the course for Justice Stevens: deeply empathetic, and on the law almost always right.

— DEBORAH N. PEARLSTEIN, visiting associate professor at the Georgetown University Law Center and clerk from 1999 to 2000

•

FOR all the majesty of the Supreme Court, the object in the building that impressed me most during my clerkship was a black leather armchair. That worn armchair sat in the clerks’ office, and the boss sat himself in it whenever he wanted to chat.

Justice Stevens occupied an office on the opposite side of chambers, and never announced when he would walk over. Two clerks worked in the room with the armchair; another was in a makeshift space in the middle, and I had an office down the hall. The clerk in the middle sounded the alarm whenever the justice made a move, and we all scrambled around the armchair.

Once in the chair, Justice Stevens usually broke the ice by talking about sports or current events, or by asking us about our lives. When the conversation turned to cases, he had several habits that stood out.

First, he never disclosed his own views before asking for ours. Second, he always stopped to listen whenever we interrupted him, which I fear was too often. Third, he often brought up points of fact or law that we had overlooked, as well as difficulties with his own views.

Watching Stevens grapple with every case made me a believer in the words he wrote in Bush v. Gore during my clerkship — that confidence in those who administer the judicial system is “the true backbone of the rule of law.” For 35 years, Justice Stevens added backbone to the rule of law — one case at a time, and from a modest black chair in a corner of the Supreme Court.

— JOSEPH THAI, professor at the University of Oklahoma College of Law and clerk from 2000 to 2001

    My Boss, Justice Stevens, NYT, 11.4.2010, http://www.nytimes.com/2010/04/11/opinion/11stevens.html

Stevens’s Retirement Is Political Test for Obama

April 9, 2010
The New York Times
By SHERYL GAY STOLBERG and CHARLIE SAVAGE

WASHINGTON — The announcement by Justice John Paul Stevens on Friday that he would retire at the end of this term gives President Obama the rare opportunity to make back-to-back appointments to the Supreme Court during the first two years of his presidency.

But it also presents Mr. Obama with a complex political challenge: getting a nominee confirmed in the thick of a midterm election season, when Republicans, fueled by the intensity of their conservative base, are angling to knock him down, and Democrats, despite having lost their 60-vote supermajority in the Senate, are eager to flex their muscles after passing a landmark health care bill.

Justice Stevens’s announcement, delivered to the White House on Friday morning in a one-paragraph letter that began “My dear Mr. President,” set off an immediate scramble among the parties and a raft of advocacy groups that have been assembling dossiers on potential successors.

The three leading candidates — Mr. Obama is considering about 10 names all told, the White House says — present the president with a spectrum of ideological reputations, government backgrounds and life experiences. His choice will shape the battle to win Senate confirmation of his nominee.

In effect, the president must choose to be bold or play it safe.

Merrick B. Garland, 58, an appeals court judge here, is well liked by elite legal advocates and is widely considered the safest choice if Mr. Obama wants to avoid a confrontation with the minority party. A former federal prosecutor who worked on the Oklahoma City bombings, he is well-known in Washington’s legal-political community, where some view him as a kind of Democratic version of Chief Justice John G. Roberts Jr.

Elena Kagan, 49, is solicitor general but has never been a judge and does not have a lengthy trail of scholarly writings, so her views are less well documented. But as the dean of Harvard Law School, she earned respect across ideological lines by bringing in several high-profile conservative professors, and she is a favorite among some in the extended Obama circle, who see her as smart and capable. Her relative youth means she could shape the court for decades to come.

Diane P. Wood, 59, a federal appeals court judge in Mr. Obama’s home city, Chicago, is seen as the most liberal of the three. She has been a progressive voice on a court that is home to several heavyweight conservative intellectuals. As a divorced mother of three, she brings the kind of real-life experience that Mr. Obama considers important. But her strong support for abortion rights would provoke a confrontation with conservatives. On Friday, the anti-abortion group Americans United for Life warned that a Wood nomination “would return the abortion wars to the Supreme Court.”

In making his selection, Mr. Obama confronts a vastly altered political landscape from the one he faced just 11 months ago, when he nominated Sonia Sotomayor to fill the seat left vacant by the retirement of Justice David H. Souter.

With the election of Senator Scott Brown, Republican of Massachusetts, Democrats can no longer hold off a Republican filibuster. And while Democrats are emboldened by the health care vote, the passage of the legislation — which is already facing legal challenges from Republicans who say it is unconstitutional — has left the Senate more polarized than ever and created a climate in which the courts could easily become an election issue.

For the court, Justice Stevens’s departure will be the end of an era. He is the longest-serving justice by more than a decade, and he is the last remaining justice to have served in World War II. (He joined the Navy, where he served as a cryptographer, the day before Pearl Harbor was attacked.) His leaving will not, however, change the composition of the court; although he was appointed in 1975 by President Gerald R. Ford, a Republican, he has become one of its most reliably liberal members during his nearly 35-year tenure, as the court drifted ever rightward.

Still, for Mr. Obama, who taught constitutional law at the University of Chicago (where he was a colleague of Judge Wood), the vacancy is an unmistakable chance to put his stamp on the direction the court takes for the next several decades. Mr. Obama is already engaged in an unusual public confrontation with the court over its recent decision in the Citizens United case, which lifted strict limits on corporate spending in elections. On Friday, during a brief appearance in the Rose Garden, he made clear that the case was very much on his mind.

He vowed to “move quickly” in announcing a nominee. Senior advisers said they expected a decision within the next several weeks. The president said he would look for a candidate who possessed what he described as qualities similar to that of Justice Stevens: “an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law and a keen understanding of how the law affects the daily lives of the American people.”

And, in what legal scholars took as a clear swipe at the Citizens United decision (for which Justice Stevens wrote the dissent), the president said he would look for a justice who “knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”

The White House already has a Supreme Court nomination team in place, with the selection process run by the new White House counsel, Robert F. Bauer, and overseen by Rahm Emanuel, the chief of staff. Once a nominee is picked, Mr. Bauer’s wife, Anita Dunn, who is Mr. Obama’s former communications director, will coordinate with advocacy groups. Vice President Joseph R. Biden Jr., who was chairman of the Senate Judiciary Committee during some of its most contentious confirmation fights, is also likely to play a crucial role.

On Capitol Hill, Senator Patrick J. Leahy, the Vermont Democrat and the current chairman of the Judiciary Committee, said in an interview that Justice Stevens told him privately several weeks ago of his intentions. Mr. Leahy said he had had “long conversations” with the president and wanted a vote before the August recess so that a new justice could be installed by the start of the fall term.

“When I was the most junior Democrat in the Senate, I voted for John Paul Stevens,” Mr. Leahy said. “He was a Republican nominated by a Republican president who was going to be up for election, and we voted for him, and proudly.”

That kind of bipartisanship is highly unlikely this time. While both sides agree that Republicans are unlikely to use a filibuster to block a Supreme Court nominee, conservatives will at the very least use the debate to make the case for Republican candidates. They say they will calibrate their fight to how liberal they perceive Mr. Obama’s choice to be.

“If it’s someone like Merrick Garland, I don’t think there’s going to be a big fight,” said Curt Levey of the Committee for Justice, a conservative advocacy group. But Mr. Levey said a more liberal nominee, like Judge Wood, would “be a field day for the conservative groups.”

But leaders of liberal groups, like Nan Aron of the Alliance for Justice, are suspicious of conservative assurances that a more centrist nominee would face little opposition. They note that Justice Sotomayor was perceived by many on the left as far more centrist than they would have preferred, and yet Republicans portrayed her as a “judicial activist,” and 31 voted against her.

“No matter who he sends up,” Ms. Aron said, “I think Republicans are loaded for bear and will oppose.”

Democrats were divided Friday over whether Mr. Obama would pick a fight with Republicans or shrink from one. But Walter E. Dellinger III, who was acting solicitor general under President Bill Clinton, predicted passion, as much as politics, would play a role in Mr. Obama’s decision.

“I think that in choosing a Supreme Court justice,” Mr. Dellinger said, “the president is less likely to compromise and more likely to go with his heart than on any other matter.”


Peter Baker contributed reporting.

    Stevens’s Retirement Is Political Test for Obama, NYT, 9.4.2010, http://www.nytimes.com/2010/04/10/us/politics/10stevens.html