USA > History > 2010 > Supreme Court (III)

Court Chooses Guardians

for Orphaned Arguments

December 13, 2010
The New York Times
By ADAM LIPTAK

WASHINGTON

Adam G. Ciongoli, the general counsel of a big insurance company, argued a case before the Supreme Court last week. But he was not representing his employer. Indeed, he was not representing any client at all.

Mr. Ciongoli was there because neither the prosecution nor the defense was willing to support a particularly harsh sentencing decision from the federal appeals court in St. Louis. The Supreme Court had appointed him to defend the decision because no one else would.

The court uses that odd procedure roughly every year or so. It is a great honor for the lawyer involved, but it raises questions about whether the court is engaged in a kind of judicial activism in shaping the case before it.

The adversary system generally allows the parties to decide which issues to present. And the Constitution says that federal courts should decide only actual cases and controversies.

In an article to be published in the Stanford Law Review in April, Brian P. Goldman analyzed the phenomenon of appointing lawyers to argue positions abandoned by the parties.

He found that the Supreme Court had named more than 40 lawyers to argue such positions, and he concluded that about a third of the appointments were problematic examples of “judicial agenda-setting” at the expense of “party autonomy.”

But Mr. Goldman said Mr. Ciongoli’s appointment was “not improper” because it concerned a point that the parties were not free to decide for themselves. The question in the case, Pepper v. United States, was whether judges who resentence defendants after an appellate reversal may take account of the defendants’ conduct in the meantime.

Prosecutors had said that Jason Pepper’s heroic efforts to rehabilitate himself — kicking drugs, attending college, earning straight A’s, getting married and obtaining a good job — should count for nothing. An appeals court agreed. But when the case reached the Supreme Court, the government reversed course and endorsed what the judge had done.

It thus fell to Mr. Ciongoli to present the argument that judges should consider only information available at the time of the first sentencing. Should the court accept his argument, Mr. Pepper, who completed a two-year sentence on drug charges in 2005, could be sent back to prison for three more years.

In an interview a few days before the argument, Mr. Ciongoli, a former Justice Department official and law clerk to Justice Samuel A. Alito Jr., said the assignment was “an incredible honor and not something you say no to.”

Though he has a demanding day job as general counsel of Willis Group Holdings, he said he had prepared for the argument relentlessly. “From July to Dec. 6,” he said, referring to the argument date, “it’s probably going to be a couple of hundred hours, almost entirely nights and weekends.” He was paid solely in prestige.

Mr. Ciongoli appears to be the first in-house lawyer appointed to argue an orphan position in the Supreme Court.

The practice started in 1954, with the appointment of Erwin Griswold, then dean of Harvard Law School, in a divorce case. The latest appointment was announced last month, in what some call the case of the poisoned paramour.

In between, a host of prominent lawyers have made their way to the lectern to argue for proposition rather than a client. One was a 33-year-old lawyer named John G. Roberts Jr., who is now chief justice of the United States.

He may have done his job a little too well, convincing the court in 1989 to rule unanimously that the Constitution’s double jeopardy clause applies not only to criminal penalties but also to some civil fines. The court overruled that decision in 1997.

Chief Justice Roberts wrote last year that he considered that shift in the court’s position “a cautionary tale” about “yielding to the desire to correct the extreme case, rather than adhering to the legal principle.” He did not mention his own role in persuading the court to take a wrong turn.

At his own argument last week, Mr. Ciongoli made his points gamely. To allow judges to consider a criminal defendant’s conduct between an initial sentencing and a resentencing could, he said, create “a procedural merry-go-round.”

A day later, Mr. Ciongoli said he was still replaying every question and answer in his head. “There’s nothing that I wanted to get out that I didn’t get out,” he said.

At the end of the argument, Chief Justice Roberts thanked him for having “ably discharged your responsibility.”

That bit of gratitude “took me a little by surprise,” Mr. Ciongoli said.

“I’m honored and thrilled to have had an opportunity to do it,” he said. “I’m still a little wired.”

    Court Chooses Guardians for Orphaned Arguments, NYT, 13.12.2010, http://www.nytimes.com/2010/12/14/us/14bar.html

Ex-Justice Criticizes Death Penalty

November 27, 2010
The New York Times
By ADAM LIPTAK

WASHINGTON — In 1976, just six months after he joined the Supreme Court, Justice John Paul Stevens voted to reinstate capital punishment after a four-year moratorium. With the right procedures, he wrote, it is possible to ensure “evenhanded, rational and consistent imposition of death sentences under law.”

In 2008, two years before he announced his retirement, Justice Stevens reversed course and in a concurrence said that he now believed the death penalty to be unconstitutional.

But the reason for that change of heart, after more than three decades on the court and some 1,100 executions, has in many ways remained a mystery, and now Justice Stevens has provided an explanation.

In a detailed, candid and critical essay to be published this week in The New York Review of Books, he wrote that personnel changes on the court, coupled with “regrettable judicial activism,” had created a system of capital punishment that is shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.

The essay is remarkable in itself. But it is also a sign that at 90, Justice Stevens is intent on speaking his mind on issues that may have been off limits while he was on the court.

In the process, he is forging a new model of what to expect from Supreme Court justices after they leave the bench, one that includes high-profile interviews and provocative speeches.

He will be on “60 Minutes” on Sunday night.

Earlier this month, he weighed in on the controversy over the proposed Islamic center near ground zero in a speech to the National Japanese American Memorial Foundation.

During World War II, Justice Stevens served as a Navy cryptographer at Pearl Harbor for more than two years. On returning to Hawaii in 1994, he said he had an emotional reaction to seeing Japanese tourists at a memorial there. “We shouldn’t allow them to celebrate their attack on Pearl Harbor,” he remembered thinking.

He added that he understood why some New Yorkers would have a similar reaction to the proposed Islamic center near ground zero.

“But then, after a period of reflection, some of those New Yorkers may have second thoughts, just as I did,” he went on. “The Japanese tourists were not responsible for what some of their countrymen did decades ago; the Muslims planning to build the mosque are not responsible for what an entirely different group of Muslims did on 9/11.”

The two other retired justices have been active, too, but they have largely limited their public comments to more traditional matters like judicial independence and constitutional interpretation. Justice Sandra Day O’Connor, who is 80, speaks frequently on what she says are the problems inherent in electing state court judges.

Justice David H. Souter, 71, in a commencement address in May at Harvard, gave a detailed critique of the mode of constitutional interpretation associated with Justices Antonin Scalia and Clarence Thomas, who rely on the text and original meaning of the Constitution.

Justice Souter said those tools are inadequate given the “open-ended language” in the Constitution, which, moreover, “contains values that may well exist in tension with each other.”

But that sort of abstract discussion is nothing like the blow-by-blow critique in Justice Stevens’s death penalty essay, which will be published in The New York Review’s Dec. 23 issue and will be available on its Web site on Sunday evening.

The essay is actually a review of the book “Peculiar Institution: America’s Death Penalty in an Age of Abolition,” by David Garland, a professor of law and sociology at New York University. The book compares American and European approaches to the death penalty, and Justice Stevens appears to accept its major conclusions.

Professor Garland attributes American enthusiasm for capital punishment to politics and a cultural fascination with violence and death.

In discussing the book, Justice Stevens defended the promise of the Supreme Court’s 1976 decisions reinstating the death penalty even as he detailed the ways in which he said that promise had been betrayed.

With the right procedural safeguards, Justice Stevens wrote, it would be possible to isolate the extremely serious crimes for which death is warranted. But he said the Supreme Court had instead systematically dismantled those safeguards.

Justice Stevens said the court took wrong turns in deciding how juries in death penalty cases are chosen and what evidence they may hear, in not looking closely enough at racial disparities in the capital justice system, and in failing to police the role politics can play in decisions to seek and impose the death penalty.

In Payne v. Tennessee in 1991, for instance, the court overruled a 1987 decision, Booth v. Maryland, that had banned statements from victims at sentencing because of their tendency to inflame juries.

“I have no doubt that Justice Lewis Powell, who wrote the Booth opinion, and Justice William Brennan, who joined it, would have adhered to its reasoning in 1991 had they remained on the court,” Justice Stevens wrote. “That the justices who replaced them did not do so was regrettable judicial activism and a disappointing departure from the ideal that the court, notwithstanding changes in membership, upholds its prior decisions.”

Justice Stevens did not name those new justices. One was Justice Anthony M. Kennedy, lately the court’s swing justice, who replaced Justice Powell.

The other was Justice Souter, who replaced Justice Brennan and in other cases generally voted with Justice Stevens and the rest of the court’s more liberal wing.

Justice Stevens also had harsh words for the 5-to-4 decision in 1987 in McCleskey v. Kemp, which ruled that even solid statistical evidence of racial disparities in the administration of the death penalty did not violate the Constitution. He said the decision effectively allowed “race-based prosecutorial decisions.”

“That the murder of black victims is treated as less culpable than the murder of white victims provides a haunting reminder of once-prevalent Southern lynchings,” Justice Stevens wrote.

Here, too, Justice Stevens wrote, the decision turned on changes in the court’s membership. Justice Potter Stewart “surely would have voted with the four dissenters,” Justice Stevens said. Justice Stewart was replaced by Justice O’Connor, who voted with the majority.

The problems with the administration of capital punishment extend beyond the courthouse and into the voting booth, Justice Stevens said.

“Local elections affect decisions of state prosecutors to seek the death penalty and of state judges to impose it,” he wrote.

He was also critical of decisions allowing prosecutors to exclude jurors with qualms about the death penalty, tilting the legal playing field toward conviction. The better approach, he said, is one in which “a jury composed of 12 local citizens selected with less regard to their death penalty views than occurs today — in that respect, a truer cross-section of the community — would determine individual defendants’ fates.”

Robert B. Silvers, the editor of The New York Review of Books, said the idea of asking Justice Stevens to contribute occurred to him after he read passages from the justice’s dissent in Citizens United, the January decision that lifted restrictions on campaign spending.

“It was clear that he was a very strong writer,” Mr. Silvers said. “We simply sent him the book, and we got back a letter saying he’d be delighted to review it.”

    Ex-Justice Criticizes Death Penalty, NYT, 27.11.2010, http://www.nytimes.com/2010/11/28/us/28memo.html

Judging Whether to Be the Judge

November 15, 2010
The New York Times
By ADAM LIPTAK

WASHINGTON

The Supreme Court has heard 25 arguments so far this term, but the court’s newest member, Justice Elena Kagan, has been on the bench for just 10 of them.

Her empty chair is an emblem of the Supreme Court’s sometimes rigorous, sometimes idiosyncratic and often quite mysterious recusal practices.

Justice Kagan’s absences were rooted in her résumé. She was until recently the United States solicitor general, the federal government’s top appellate lawyer, and she worked on many cases that are now before the court.

In her confirmation hearings, Justice Kagan said she would recuse herself “from any case in which I served as counsel of record” and “any case in which I played a substantial role.” Her participation in the court’s work will rise as the term progresses and the aftereffects of her last job start to recede.

Last week, she gave some strong hints about how she would apply that standard in cases concerning two major social issues.

The hints came in two terse and routine orders from the court saying only that the justices would not intervene in proceedings under way in the lower courts.

One concerned the recent health care legislation. There Justice Kagan indicated that she would not recuse herself.

The other was about the military’s “don’t ask, don’t tell” policy restricting openly gay, lesbian and bisexual people from serving in the military. There she stepped aside.

How do we know this? The order in the second case but not the first said: “Justice Kagan took no part in the consideration or decision of this application.”

That is the court’s stock formula. Justices Stephen G. Breyer and Sonia Sotomayor used essentially the same language in noting their own recusals from other cases last week. None of them explained why.

That is both routine and in its way quite odd. In other parts of the justice system, there is general agreement on a couple of points. One is that you should not be a judge in your own case. The other is that courts gain legitimacy by explaining the reasoning for their decisions.

We do have an inkling about Justice Kagan’s thinking about cases on the health care law. In responses to a letter from Republican senators during the confirmation process this summer, she said she had had almost nothing to do with the law or a lawsuit filed in Florida seeking to strike it down.

“I attended at least one meeting where the existence of the litigation was briefly mentioned,” she wrote, “but none where any substantive discussion of the litigation occurred.”

On the rare occasions when justices address recusal standards, they often say they should avoid stepping aside for fear of a 4-to-4 tie that automatically affirms the decision under review in a one-line order with no reasoning.

But those deadlocks are quite unusual. According to a 2005 analysis by Ryan Black and Lee Epstein in The Journal of Appellate Practice and Process, the court decided 6,815 cases from October 1946 to the summer of 2004. For various reasons including recusals, ties were theoretically possible in 1,319 of them. But there were deadlocks only 74 times.

Lower court judges model their behavior on that of Supreme Court justices. In 2008, for instance, Chief Justice Brent D. Benjamin of the West Virginia Supreme Court declined to step aside in a case involving a campaign supporter who had spent $3 million to help elect him.

In justifying his decision, Chief Justice Benjamin cited a 2004 memorandum from Justice Antonin Scalia explaining why he would not recuse himself from a case involving a hunting companion, Vice President Dick Cheney.

In the end, the United States Supreme Court last year took Chief Justice Benjamin off the West Virginia case, saying that $3 million in campaign spending was just too much money.

Justice Anthony M. Kennedy, writing for the majority, also noted that the judicial process had been compromised. “The sole trier of fact,” Justice Kennedy wrote of Chief Justice Benjamin, was “the one accused of bias.”

But Justice Kennedy did not explore the implication of that point for himself and his colleagues.

In a recent article in The Syracuse Law Review, Steven Lubet, a law professor specializing in legal ethics at Northwestern, wrote that Justice Kennedy “failed to draw the most obvious lesson from this contretemps.” The lesson, Professor Lubet said, is that the full court should review recusal motions.

Chief Justice William H. Rehnquist was dismissive of the idea in 2004 when senators asked him about Justice Scalia’s duck-hunting trip.

“While a member of the court will often consult with colleagues as to whether to recuse in a case, there is no formal procedure for court review of a justice in an individual case,” Chief Justice Rehnquist wrote. “This is because it has long been settled that each justice must decide such a question for himself.”

You could call that second sentence reasoning, but you would be being generous.

    Judging Whether to Be the Judge, NYT, 15.11.2010, http://www.nytimes.com/2010/11/16/us/16bar.html

A Crack in the Wall

November 4, 2010
The New York Times

When the Supreme Court took up a case about a school choice program in Arizona this week, Justice Elena Kagan said she had been “puzzling and puzzling” over it. Why, she asked the state’s lawyer, instead of providing families with vouchers, is Arizona’s program “so much more complicated and complex and unusual”?

The short answer is that the state’s Constitution prohibits direct aid to private schools. A more important one is that the convolutions hide a problem we’re not supposed to see. The program appears to be unconstitutional. As the United States Court of Appeals for the Ninth Circuit ruled, it appears to violate the First Amendment’s establishment clause by disbursing state funds on the basis of religion.

Last year in Arizona, $52.1 million in scholarships helped support more than 27,500 students at private and parochial schools. The money came from letting people who owe state income taxes take a credit, up to $500. They can contribute the amount to 50 or so nonprofit tuition organizations that give money to parents who want to send their children to schools they serve.

Arizona boasts that it gives taxpayers an incentive to take part in the program, and why not? It’s a use-it-or-lose-it, free-money scheme. They can give up to $500 to a school tuition organization or add exactly that amount to their tax payment. What the state calls voluntary cash contributions are really redirected tax payments. They have to be made when a taxpayer files a state tax return.

In the first year of the program in 1998, 85 percent of the scholarship money went to students attending religious schools. By last year, when the program had grown much bigger, an estimated 70 percent went for that sectarian purpose.

The choice offered parents and children through the program sounds great but is often restricted. Most scholarships are awarded by school tuition organizations that choose students on the basis of religion, to go to religious schools. Handing out the funds on the basis of religion is unconstitutional. It is a government spending program directed by tens of thousands of taxpayers.

When Paul Bender, the lawyer for the program’s challengers and a former dean at Arizona State University’s law school, presented his argument, Justice Anthony Kennedy said dryly, “I have some difficulty that any money that the government doesn’t take from me is still the government’s money.” Justice Antonin Scalia made the point with exasperation. Justice Samuel Alito did so impatiently, as if Mr. Bender didn’t fully grasp the issue.

At 77, Mr. Bender has been around the court for more than 50 years, since the days he was a law clerk to Justice Felix Frankfurter. He is among the country’s experts on the tax-credit issue at the heart of the case.

If the court resolves the case on the merits, a split along ideological lines will not be surprising. But Mr. Bender ably exposed the Arizona program as a crack in the wall between church and state. The court should mend it by calling for the program to stop discriminating on the basis of religion.

A Crack in the Wall, NYT, 4.11.2010, http://www.nytimes.com/2010/11/05/opinion/05fri1.html