The indispensable Scotusblog "StatPack" compilation from the Supreme Court's 2008-2009 Term yields much grist for the mill. Among the numbers and corresponding questions that jump out:

The court decided 79 cases. Of these, 23 were decided on a 5-4 basis; the kind that has court reporters wearing out the "a closely divided Supreme Court" keys on the keyboard. So what does this say about Chief Justice John Roberts' famed pledge to seek, as it has been generally summarized, greater unanimity?

Most prolific justice: John Paul Stevens and Stephen Breyer tied with 29 opinions each. So what is Justice Stevens, age 89, putting in his cereal?

In 59 of the cases, or 74 percent of the time, the court reversed or vacated the lower court's decision. So what will this do to Republican arguments that nominee Sonia Sotomayor is an oft-dissed, oft-reversed judge?

The 9th Circuit was reversed 81.3 percent of the time. On the other hand, seven other circuits were reversed 100 percent of the time (on fewer cases.) So when do we get to stop chortling about the oft-dissed,  oft-reversed 9th Circuit?

The Great Dissenter: Justice Stevens, again, with 28 dissenting votes.

The Great Straddler Go-To Guy: Justice Anthony Kennedy, with only 6 dissenting votes. Kennedy also led the court by being in the majority of 5-4 decisions 18 times.

The Great Eccentric Courageously Principled Jurist: Justice Clarence Thomas, leading the court with three solo dissents in 8-1 cases.

Revised July 2

The Washington Post's Robert Barnes captures something Suits & Sentences missed, in Justice Ruth Bader Ginsburg's dissent in the case  Ricci v. DeStefano. Mr. Barnes observes there was a difference in words chosen for a script and the words chosen for a written dissent and, frankly, this is kind of bizarre.

As Suits & Sentences noted in original posting, Justice Ginsburg read from the bench Monday the following statement:

"Mr. Ricci and his fellow petitioners understandably attract the court's empathy."

This is the sentence, and the loaded word empathy, that Suits & Sentences originally noted. It was spelled out, right on the written script handed out to reporters. Which prompted the following, original posting:

Empathy is, of course, the very word President Barack Obama used in describing the quality he was looking for in a future Supreme Court justice. More to the point, though, empathy has become a code word among Obama's conservative critics including Newt Gingrich, the Washington Times' Amanda Carpenter and others who insist that empathy = liberal.

So was Justice Ginsburg using a bit of rhetorical Aikido here and turning back upon the conservatives the power of their own loaded term? Suits & Sentences believes yes, yes she was.

An unhappy reader, Scoff, insisted that Ginsburg used the word sympathy. I looked again at the script: nope, empathy.  Now the strange part: I also looked again at the  dissent itself, and 'saw' the word empathy there as well. Not sympathy; empathy, just like on Ginsburg's script that she read from.

Re-prompted by Scoff, I now re-re-read the dissent and see, sure enough, Justice Ginsburg chose a different word for her official dissent than for the script she read from. The Post's interesting story picks up on this and other matters, while Suits & Sentences is left wondering not only what Justice Ginsburg was up to with her script but also how it is that an assumption can shape perception. In this case: the word emPATHY in one sentence is, how to put this, read over the word symPATHY in another, otherwise identical sentence.

We now return you to your original post.

It appears, meanwhile, that the Heritage Foundation won the quick-reaction race Monday morning, as the conservative think tank's e-mail commentary on the court's decision arrived at 10:26 a.m. Republican Rep. Lamar Smith of Texas, a senior member of the House Judiciary Committee, weighed in with a slap at court nominee Sonia Sotomayor at 10:40, and at 10:50 Morrison & Foerster attorney Daniel Westman offered his analysis. By 11:25 a.m., the Cato Institute joined the fray.

Modified July 2

And then there was the NAACP Legal Defense Fund, which organized live commentary along with the National Women's Law Center through a call-in news conference. Problem was, the 800 telephone number originally offered on the press release directed callers to yet another number for "live talk with exciting people." 

In the interest of fully reporting the story, Suits & Sentences called the referred-to number, and heard the following message:

"Hey there, sexy guy. Welcome to an exciting new way to go live with hot, horny girls..."

At which, having gotten the point, Suits & Sentences hung up and called the corrected number that had been subsequently sent out. Substantively, Center Co-President Marcia D. Greenberger called the court's Ricci decision "deeply disappointing" and contended it would make it "more difficult for women and minorities compete fairly" for jobs.

And, on Thursday, the NAACP Legal Defense Fund advised Suits & Sentences that it was "solely responsible for the typographical error and sincerely regrets the confusion."

Author Anthony Summers knows how to unlock secrets. His biographies of Marilyn Monroe, J. Edgar Hoover and Richard Nixon all include the word "secret" in the respective subtitles. Naturally, he's an aggressive user of the Freedom of Information Act.

On Friday, Summers lost on a FOIA front when the Court of Appeals for the District of Columbia Circuit upheld a trial judge's opinion that Summers should not receive attorneys fees from an earlier FOIA dispute.

In a nine-page ruling that bears watching by other FOIA aficionados, Judge Douglas Ginsburg wrote for the appellate panel that Summers was not eligible to recover attorneys fees because it could not be said that he had "prevailed" in the underlying FOIA dispute. Here's what happened, in Ginsburg's words:

"Summers sought from the FBI records relating to Charles Gregory (aka “Bebe”) Rebozo to aid him in writing a biography of former President Richard Nixon. When the FBI had not timely complied with his request, Summers filed this suit under the FOIA."

Ahh, yes: Bebe  Rebozo. They don't make presidental cronies pals like that any more, do they?

Ultimately, the FBI agreed to disclose three names from a single document in exchange for Summers’s voluntary dismissal of the case. The agreement included a statement that it did not amount to an admission of success on Summer's behalf. Nonetheless, he subsequently argued that a 2007 revision to FOIA rendered him eligible for reimbursement.

On their face, the 2007 FOIA amendments seem to cover a situation like Summers'. The revisions state that a plaintiff now qualifies as having “substantially prevailed” if he obtains any kind of relief following a "voluntary or unilateral change of position" by the government agency. The appellate panel, though, concluded that "there is no clear evidence" that Congress intended the revisions to apply retroactively.

Bottom line: the FOIA changes came too late for Summers. Of course, given his extensive use of FOIA, the changes could well benefit him in the future on other cases.

The Jack Abramoff corruption business may seem so last year, so Bush-league, but spin-off cases continue to be heard.

Now, a U.S. District Court judge has declined to dismiss Abramoff-related charges against former congressional staffer Kevin Ring. Mr. Ring is former legislative director to former Rep. John Doolittle of California, as well as a former lobbyist with the Washington, D.C. firm Greenberg Traurig.

In a 41-page opinion issued late-ish Thursday, U.S. District Judge Ellen Segal Huvelle rejected Mr. Ring's request to dismiss a 10-count indictment against him. Prosecutors charge the former lobbyist with providing "things of value" -- in the form of meals, sporting event tickets, golf outings, travel etc. -- to then-Rep. Robert "Freedom Fries" Ney and two other lawmakers. During the same time period, three congressmen allegedly took actions benefiting Ring and Abramoff's tribal clients.

Time check: Ney has already been released from prison after serving 17 months for his involvement in the mess.

In his request to dismiss the complaints, Mr. Ring in part attempted a wholesale attack on the very notion that a lobbyist could be charged with violating an "honest services" wire fraud statute. The statute prohibits using a "wire communication" to enter into a scheme designed to "deprive another of the intangible right of honest services." Typically, this has been used against public officials -- the guys and gals who are obliged to provide constituents with honest service.

Ring's argument, an interesting one, is that as a private citizen he had no duty to the public and therefore cannot be prosecuted for depriving the public of his honest service. But Judge Segal Huvelle, in an opinion worth perusing, countered that the service at issue in this case is that of the public officials with whom Ring was allegedly entangled.

Judicial Watch founder Larry Klayman, a litigious soul, has now failed in his long-shot effort to force a magistrate judge off of his lawsuit against, that's right, Judicial Watch.

On Thursday, U.S. District Judge Colleen Kollar-Kotelly dismissed Klayman's bid to get rid of Magistrate Judge Alan Kay. Kay has been appointed to oversee the various discovery motions and the like in the nasty Klayman v. Judicial Watch fight. Among Kay's rulings have been the ordering of monetary sanctions against Klayman for failing to produce material in response to document requests.

Klayman originally forced his way into the public consciousness with his aggressive legal attacks on then-President Bill Clinton. His claim against Kay was, in part, centered on the belief that, as he put it in a court filing, "Magistrate Judge Kaye [sic] [] is quite liberal and a Democrat."

Yes, that always leaves a good impression of solid judicial scholarship to misspell the name of the judge you are trying to get rid of.

Judge Kollar-Kotelly determined:

"It is clear that, even if true, the mere fact that Magistrate Judge Kay may be a Democrat and/or have a
liberal political background does not warrant or require recusal."

Moreover, Judge Kollar-Kotelly appears fed up with Klayman's drive-by shooting approach toward litigation, as she notes that Klayman "has made various  unsupported, unsubstantiated, and highly insulting allegations accusing this Court and Magistrate Judge Kay of colluding together to intentionally deny Klayman his fair day in court." Consequently, the judge is now putting Klayman on notice that will "not tolerate an inappropriate and uncivil tone in the future."

The impending departure of David "Over My Dead Body" Souter from the Supreme Court raises anew the question of whether television cameras might be admitted to cover oral arguments.

The almost-certain answer is: not anytime soon. Nonetheless, on Thursday Republican-turned-Democratic Sen. Arlen Specter said he was pressing court nominee Sonia Sotomayor to let cameras in. Said Specter:

"In an electronic era where the public obtains much, if not most, of its news and information from television, there is a strong case in my judgment that the Supreme Court of the United States should have its public proceedings televised just as the United States House of Representatives and United States Senate are televised."

Check out Specter's full Senate comments here on C-SPAN, which has been a long-time proponent of bringing televisions into the court.

In a new letter sent to Sotomayor, Specter usefully includes a summary of where other justices have been on the television issue. He cites Justice John Paul Stevens as saying in 1989 that televised court hearings were "worth a try," Justice Ruth Bader Ginsburg as saying she supported "gavel-to-gavel" coverage, Justice Anthony Kennedy as saying in 1990 that television was "inevitable" and Chief Justice John Roberts as saying during his 2005 confirmation hearings that he would keep an open mind.

Specter currently has only five co-sponsors of his latest bill, S. 446,  regarding televised coverage of the Supreme Court.

In truth, the next step in modernizing media access to the court will come in getting same-day release of the audio recordings of all oral arguments. Right now, the court picks and chooses, releasing same-day audio recordings of those cases deemed particularly significant. This inherently subjective criteria leaves out most cases, and for no particularly good reason.

Suits & Sentences says: Free the tapes! At the least, this will provide a useful educational purpose; potentially, as well, it can be a confidence-building measure that sets the foundation for the next step.

Senate Republicans scrambling for a foothold in their uphill battle against Supreme Court nominee Sonia Sotomayor hope gun rights can do the trick.

At 2:15 p.m. Wednesday in the Senate Radio/TV Gallery, Republican Sen. Jeff Sessions of Alabama and three of his conservative colleagues gather to, as they put it, "discuss" Sotomayor and the Second Amendment. "Concern" will be voiced, one can be sure.

Sotomayor hasn't given the gun guys a lot to work with, save the 2009 opinion in Maloney v. Cuomo. Sotomayor was part of a three-member panel that produced an unsigned opinion upholding New York's ban on nunchuks. Also known as: nunchaku.

Yes, Suits & Sentences looks forward to Sen. Orrin Hatch et. al. delivering an impassioned defense of how the Founding Fathers wanted us all to have a set of whirling wooden sticks connected by a chain. Or, as the weapon is described in the New York statute:

"Any device designed primarily as a weapon, consisting of two or more lengths of a rigid material joined together by a thong, rope or chain in such a manner as to allow free movement of a portion of the device while held in the hand and capable of being rotated in such a manner as to inflict serious injury upon a person by striking or choking."

No, wait, that isn't the issue. Rather, conservatives will opine about the Maloney v. Cuomo statement that:

"It is settled law that the Second Amendment applies only to limitations the federal government seeks to impose on this right."

In other words: the states aren't covered. Recall: the Supreme Court's landmark Heller decision finding an individual right to gun ownership, outside of the strictures of a militia, covered the federal jurisdiction of the District of Columbia. Its applicability to states remains unclear. The Republican stage thrusts Wednesday will set Sotomayor up for what is, in fact, a reasonable question: Judge Sotomayor, do you believe the Second Amendment extends to the states?

The International Union of Operating Engineers requires candidates for union offices to keep most of their campaign websites behind a virtual wall. The only way in is by having a password, given union members.

Is that OK under the rules designed to guarantee union free speech? On Tuesday, the Circuit Court of Appeals for the D.C. Circuit said yes.

The union represents some 396,000 members nationwide, and union leaders say they have good reason to insist on the password-protected requirement. Reasons the union:

"There have been instances where employers have misused information obtained from candidates’ websites to the detriment of . . . Local Unions in organizing campaigns and contract negotiations.”

But Michael Quigley and his allies in seeking some union offices maintain the password requirements crimp their ability to communicate. They argued, according to the appellate court ruling authored by Karen LeCraft Henderson:

"Internet search engines cannot access password protected pages, which, Quigley asserts, will limit a Union member’s ability to find a campaign website using search engines....Moreover, Quigley asserts that Union members will be unable to receive automatic updates regarding changes to campaign websites using Real Simple Syndication (RSS) feeds."

Interesting, hmm? We're starting to enter into the unmapped terrain where old speech rules meet new technology.

The appellate panel concluded that the union's password rules, designed to protect bargaining positions and the like, were reasonable and served a legitimate purpose. "The (requirement),
vote in union elections. Henderson reasoned, "simply establishes a members-only forum for those who are eligible to vote in union elections."

Summer is here, which means it's time for Supreme Court justices to hit the road. The first schedules are now arriving and, as always, gorgeous Austria is proving a popular choice.

St. Mary's University, which runs a summer law program in Innsbruck, reports that Justice Samuel Alito "will join the faculty of the 2009 Institute on World Legal Problems as Distinguished Visiting Jurist. Justice Alito's course, The Supreme Court, the Constitution, and Problems of Crime and Terrorism, will be offered during the first half of the program and enrollment in the course will be open to all students. Students will also be invited to attend a grand reception honoring Justice Alito."

Justice Anthony Kennedy, of course, will be in Salzburg, teaching a course on Fundamental Rights in Europe and the United States for a McGeorge School of Law program.

Chief Justice John Roberts will be in lovely Galway, Ireland, teaching a course through New England Law/Boston. The law school reports that "Justice Roberts’s class, “The United States Supreme Court in Historical Perspective,” will examine changes in the Supreme Court since the nation’s founding, with particular emphasis on the role of the chief justice and how several of them, from John Marshall to William Rehnquist, have influenced the Court’s role."

Justice Ruth Bader Ginsburg will be in Rome, teaching through the Loyola University of Chicago in mid-July.

Justice Stephen Breyer will be in mountainous Aspen, with the Aspen Ideas Festival from June 29 to July 5.

Suits & Sentences thinks it's great for the justices to enjoy themselves, and the colleges involved certainly get a great deal. Is it asking too much to wonder if the justices might some day pick a clerk or two from the non-elite law schools that provide them such a wonderful summer teaching opportunity?



 

Meet Robert Post, the new Harold Koh.

Yale Law School announced Monday that Post, currently the Dean and Sol and Lillian Goldman Professor of Law, will take over as law school dean effective July 1. He replaces Kate Stith, who has been acting dean since Koh moved to the State Department as chief legal adviser.

The law school notes:

Professor Post earned both a BA (summa cum laude) and a Ph.D. (History of American Civilization) from Harvard, but between the two he received his law degree at Yale, where he was Note Editor of the Yale Law Journal and won the Michael Egger Prize. Immediately after graduating, he served as a Law Clerk to Chief Judge David L. Bazelon, United States Court of Appeals for the District of Columbia Circuit, following that year with a clerkship for Justice William J. Brennan, Jr. of the United States Supreme Court. He worked for nearly three years as an Associate at Williams & Connolly, and, in January 1983 moved to California to become Acting Professor of Law at Boalt Hall, University of California, Berkeley.  He remained at Boalt Hall for twenty years, serving for the last nine years as the Alexander F. and May T. Morrison Professor of Law.

Credit where credit is due: Above the Law has been calling this one for a time.