On Kennedy’s Retirement

Justice Anthony Kennedy announced his retirement from the Supreme Court on Wednesday, effective July 31. His announcement sent deep shockwaves throughout  the country. As the swing vote in many 5-4 opinion, Justice Kennedy was perhaps the most influential justice of the last century. Many called him “the decider” because of his tendency to swing a case either way. His retirement means that the next appointed justice will significantly impact the ideological direction of the Court.

Appointed by President Reagan in 1988 after two previous nominees failed (Robert Bork and Douglas Ginsburg), Kennedy was grilled at his confirmation hearing. Many thought that he joined the Court as a firm conservative. But over time, he became the swing vote in many landmark cases. In Roper v. Simmons, he was the tiebreaking vote to block the execution of minors, stating that “the death penalty is disproportionate punishment for offenders under 18.” In Citizens United v. FEC, Kennedy joined the conservative members of the Court in allowing corporate donations to PACs for political candidates. And in Obergefell v. Hodges, he was the deciding vote and author of the opinion legalizing same-sex marriage nationwide. His tenure has been nothing short of momentous, and his absence on the Court will radically impact the direction of American jurisprudence.

In fashion with the retirement of former justices, Kennedy wrote a short letter to the President expressing his gratitude and sense of honor for being able to serve on the Court. While his notice of retirement may be cordial, his retirement comes at a contentious moment in politics. With midterms around the corner and heated debate on all matter of policy, the Justice’s departure adds another sticking point for Democrats and Republicans in already fierce disagreements. Republicans, for the most part, feel as though the President and Senate should act with all haste to confirm a new nominee so as not to politicize the process (as if it is not already entrenched in politics) while Democrats (hoping to gain seats in November) insist the confirmation hearings should take place after Americans vote, invoking Senate Majority Leader McConnell’s past claim that “The American people should have a voice in the selection of their next Supreme Court Justice” (tweeted by him to justify his decision to block the nomination of Judge Merrick Garland to the Court after the death of Justice Scalia). Whatever the outcome-immediate or delayed confirmation-the next nominee to the Supreme Court is sure to face intense scrutiny from one, if not both sides of the aisle.

So what exactly could this opening mean for the Court? Most immediately, it will have a new member that is almost certain to be appointed by Donald Trump (unless something akin to the blockage of Garland occurs throughout Trumps time as President, but that is extremely unlikely) but further on, more dramatic shifts could occur. Depending on the ideological standing of the next appointee, the Court could remain as it is today (“conservative” but with standout “liberal” decisions) or experience a major shift right. If the next nominee is a hard and fast “conservative” the Court is likely to review past issues that it has been unable to do with the relatively balanced ideology of current members. Abortion, affirmative action, gay marriage, and more could be reviewed and possibly overturned. However, the current Court is heavily precedent directed (they are hesitant to overturn past decisions) and dramatic sudden reversals would seem unlikely. The leanings of current members must also be reexamined. As we have seen in the past, the retirement or death of a member results in changes of the whole Court. Historically, Justices become more “liberal” the longer they sit on the bench. Justices Douglas, O’connor, and Kennedy all grew increasingly “liberal” further into their time of service with slight deviances (Justice Kennedy’s “conservative” streak this term).

Justices O’connor and Kennedy became swing votes as the composition of the Court changed in their respective tenures. Will there be a new “swing vote?” It has yet to be seen, but some suspect Chief Justice Roberts will grow more centrist and become the next Kennedy in terms of voting patterns. He has, on some occasions, allied with the “liberal” bloc of the Court. Most notably in National Federation of Independent Business v. Sebelius, Chief Justice Roberts decided with Justices Ginsburg, Breyer, Sotomayor, and Kagan that the Affordable Care Act could expand Medicaid and enforce the individual mandate through the Constitution’s Taxes and Spending clause; in Carpenter v. United States the Chief sided again with the democratic appointees and ruled that warrantless gathering of “cell-site” records is in violation of the Fourth Amendment.

There are a plethora of uncertainties surrounding Justice Kennedy’s departure, but one thing is for sure: it is the end of an era and whoever steps in to fill the empty seat will be a major part of American history.

-Joe Hanlon

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Thursday, June 28, 2018

Kennedy’s Replacement

Justice Kennedy looms larger than life. He was the Decider for more than thirty years, and his opinions left an indelible impact on constitutional law. It’s hard to imagine a Court where “What will Kennedy do?” no longer matters.

For better or worse, that Court is rapidly approaching. President Trump will select a nominee from the conservative Federalist Society’s pre-approved list, and he appears to have three frontrunners. They are all young and impeccably pedigreed conservative judges.

  1. Brett Kavanaugh (age 53)
  2. Raymond Kethledge (51)
  3. Amy Coney Barrett (46)

I’ve written a blurb about each potential justice, including information about their ideology and distinctive characteristics. I hope it’s useful.

Brett Kavanaugh

Judge Kavanaugh is the frontrunner for the nomination. He currently serves on the Court of Appeals for the D.C. Circuit, which is a common stepping stone to the Supreme Court. His record on the bench will please many conservatives. In 2014, he wrote for a divided panel that President Obama’s Clean Air Act regulation was unconstitutional. He also dissented when a D.C. Circuit panel upheld key provisions of Obamacare, arguing that all judges on the Court should hear the case. After analyzing 300 of his rulings, Empirical SCOTUS writer Adam Feldman says that “He has written almost entirely in favor of big businesses, employers in employment disputes, and against defendants in criminal cases.” Kavanaugh is no David Souter, who was appointed by President George H.W. Bush and consistently voted with the liberals. No sir.

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Before serving on the D.C. Circuit, Kavanaugh ran in elite Republican circles. He earned a one-year fellowship with Special Counsel Ken Starr after attending Yale Law School, helping to draft grounds of impeachment against President Clinton. He also investigated Vince Foster’s suicide. Kavanaugh then clerked for Judge Alex Kozinski, an outspoken conservative, and moved on to clerk for Justice Kennedy at the Supreme Court.

Some have criticized Kavanaugh’s service in the Bush White House. Starting in 2001, he handled controversial legal issues such as torture and domestic surveillance as Senior Associate Counsel to the President. Advancing to Staff Secretary in 2003, he handled the flow of documents going to and from the president. These positions, while certainly prestigious, may suggest that Kavanaugh is too partisan to be a fair judge. Indeed, his D.C. Circuit nomination stalled in the Senate for almost three years. “You could not think of a nomination, given Mr. Kavanaugh’s record, more designed to divide us,” said Democratic Minority Leader Chuck Schumer.

I’ve already mentioned Empirical SCOTUS, but I highly encourage you to check out this article. Here, Feldman describes Kavanaugh’s textualist judicial philosophy. Textualism means that you interpret the law based on the words’ original meaning, where little consideration is given to non-textual concepts like intention.

“Compared to the recent addition of Justice Gorsuch to the Supreme Court, Judge Kavanaugh differs along several dimensions.  Judge Kavanaugh uses less originalist and textualist language in his opinions although he is well-versed in statutory interpretation. While he has taken limited opportunities to defer to originalist principles, we see such these motivations in a handful of occasions.  One example is from his opinion in We the People Foundation, Inc. v. U.S., where he wrote,

“As they suggest, moreover, the Framers and Ratifiers did not intend to incorporate every historical practice of British or colonial governments into the text of the Constitution.”

Although not a textualist to the same extent as other strong proponents of this interpretive method, several of his opinions have textualist features.

Fun Fact: Both Judge Kavanaugh and Justice Gorsuch attended Georgetown Prep, an elite boarding school outside of Washington, D.C.

Notable Fact: Notoriously well-sourced reporter Maggie Haberman says that Trump is wary of “Bushies,” so he may hesitate to nominate Kavanaugh.

Raymond Kethledge

Judge Kethledge serves on the United States Court of Appeals for the Sixth Circuit. A Michigan native, Kethledge graduated magna cum laude from the University of Michigan Law School. He is also a former Kennedy clerk.

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Kethledge isn’t as blatantly partisan as Kavanaugh, but his Sixth Circuit nomination stalled for over a year. President Bush eventually negotiated out of the logjam, and Kethledge was confirmed in April 2008. He has since established a solid conservative record. Similarly to Kavanaugh, who ruled against the Clean Air Act, Kethledge held that private citizens can’t sue Ohio for its failure to enforce an antipollution plan. Additionally, this Yale Journal of Regulation article describes his strong commitment to separation of powers. In United States v. Hughes, he “wrote a majority opinion defending the fundamental principle that legislative power belongs to Congress, rather than the Courts.” He rejected the idea of a wishy-washy sentencing principle, instead saying that statutes are meaningfully bounded by the words Congress crafted them with.

Kethledge has criticized the Chevron Doctrine, a pillar of administrative law. Chevron says that when federal statues are ambiguous, courts should defer to government agencies’ interpretations if they are reasonable. “Deference brings latitude,” Kethledge said in a recent speech, “which can bring a sense that one is less accountable, which can bring a temptation to cut corners.” He shares this sentiment with the conservative justices, who may overturn Chevron if the right case arises.

Last, but definitely not least, Kethledge is a great writer. The Green Bag Almanac has twice recognized his “exemplary legal writing” in Bennett v. State Farm Mutual Insurance and Wayside Church v. Van Buren County. His writing has a down-to-earth tone, and he frequently starts sentences with “And” or “But.” For an extracurricular sample, check out Kethledge’s article on appellate brief-writing.

Amy Coney Barrett

Judge Barrett serves on the Court of Appeals for the Seventh Circuit. At Notre Dame Law School, she earned her degree summa cum laude. She was the executive editor of the law review and earned the Hoynes Prize, her law school’s highest honor. Barrett then clerked for Judge Laurence Silberman of the D.C. Circuit and Justice Antonin Scalia of the Supreme Court. At age 46, she is the youngest person on the shortlist.

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During Barrett’s confirmation hearing last year, senators suggested that her religious views would affect her legal judgment. Senator Feinstein famously said, “[Your] dogma lives loudly within you.” Barrett responded that her Roman Catholic faith would not affect her judicial decisions, earning a large amount of media spotlight.

There are many reasons why President Trump might pick Barrett. Her age is the biggest factor, as she could plausibly serve on the Court for decades. She would also add diversity to the Court. For one thing, she would become the only current justice to attend a law school other than Harvard or Yale. She would also be the only female conservative since Justice O’Connor.

Any one of these judges may be nominated in the coming weeks. I left off a couple names — Judges Amul Thapar and Thomas Hardiman — who are under consideration as well. If nothing else, I hope this piece gave you enough information to develop a rooting interest.

-Anna Salvatore

Wednesday, June 27, 2018

Understanding Gerrymandering

by Joe Hanlon 

What’s all the buzz about gerrymandering? It seems like we hear about gerrymandering from a variety of news outlets, both conservative and liberal, and its ripple effects into other political areas. It is one of the most polarizing and far reaching issues in modern politics and law. To understand the Court’s recent decisions regarding gerrymandering, it’s important to define the term. Gerrymandering is, pardon the cliche, defined by Merriam Webster as: “to divide (an area) into political units to give special advantages to one group.”

Gerrymandering is rampant in America. Gerrymandered districts vary widely by party — both Democrats and Republicans are guilty — as well as size, and severity. In the past few years, several cases have reached the Supreme Court regarding the constitutionality of gerrymandering. Perhaps the most high profile of these is Gill v. Whitford — a case arising from the Republican-drawn legislative maps in Wisconsin. Challengers claimed that the Republican majority legislature intentionally drew maps to dilute Democratic votes. They formed districts so tailored to Republican success that, even when Democratic candidates garnered more votes, they still won less seats than Republicans.

Last week, the Court unanimously said that the challengers in Gill v. Whitford did not possess Article Three standing. In other words, they couldn’t prove that they were directly injured by the gerrymandered map. This means that the Supreme Court cannot resolve their claims. The Court also ruled in Abbot v. Perez, where it determined that several of Texas’ maps were constitutional, and only one possessed an “impermissible gerrymander.” It then sent a North Carolina gerrymandering case to the lower courts for further consideration.

A pattern emerges when we analyze gerrymandering cases. There are two distinct types: racial and partisan. The Court has deemed racial gerrymandering unconstitutional in cases such as Thornburg v. Gingles and Cooper v. Harris (both North Carolina cases) and has provided remedies to adjust racially drawn maps. But the Court has been more reluctant to firmly rule on partisan gerrymandering. In Gill v. Whitford and Benisek v. Lamone, the Court decided both cases without ruling on the core issues: partisan gerrymandering. Some see this as the Court avoiding politics, and others think it’s just a bump in the road on the way to an eventual firm ruling. Whatever the reason, the Court has avoided a direct answer to the question.

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Gerry’s district (Boston Centinel, 1812)

Let’s be clear — gerrymandering isn’t new. The practice has existed as long as legislative districts have. In America, gerrymandering got its name from Elbridge Gerry, governor of Massachusetts and later Vice President in 1813. During his tenure, the Massachusetts legislature created new districts to favor Democratic Republicans. A rival newspaper compared one of these mangled districts to a salamander. Gerry being the governor and the district being salamander-shaped, the practice of strategically tailoring maps to favor one party was dubbed “Gerrymandering.”

Gerrymandering has persisted through American history, and while some see it as normal to the political arena, others see it as a direct affront to democracy. For now, the jury is out on this one.

 

Massachusetts Gerrymandering under Governor Elbridge Gerry

 

Monday, June 25, 2018

My grandma recently gave me “Scalia Speaks,” a collection of Justice Scalia’s speeches on law, religion, and the arts. The book is really entertaining. It mixes sober wisdom with characteristically silly stories about turkey hunting. I’m serious — Justice Scalia twice spoke at the National Wild Turkey Federation’s conference. He was even awarded the coveted “Grand Slam” for hunting all four species of American wild turkey: Eastern, Osceola, Merriam’s, and Rio Grande.

“One of my most humbling moments came while turkey hunting,” he said. “I took a shot at a gobbler and he went right down — flapped a little and went down. I was so excited, I jumped out of the box stand hurried to him. I got about five feet away and he lifted his head, looked up at me, and ran way. And I had left my gun in the box stand.”

As for sober wisdom, I especially liked Justice Scalia’s speech at his son Paul’s high school graduation. He argued that many graduation aphorisms are not only boring and overused, but plain wrong. He offered “follow your star” as an example.

“It is a belief that seems particularly to beset modern society that believing deeply in something, and following that belief, is the most important thing a person can do. Get out there and picket, or boycott, or electioneer, or whatever, show yourself to be a ‘committed person…”

I am here to tell you that it is much less important how committed you are than what you are committed to. If I have to choose, I will undoubtedly take the less dynamic, indeed even the lazy person, who knows what’s right, than the zealot in the cause of error. He may move slower, but he’s headed in the right direction. Movement is not necessarily progress. More important than your obligation to follow conscience — or at least prior to it — is your obligation to form your conscience correctly…

In short, it is your responsibility, men and women of the Class of ’88, not just to be zealous in the pursuit of your ideals, but to be sure that your ideals are right ones — not merely in their ends but in their means.

This passage reminded me of Chief Justice Roberts’s now-famous speech at his son’s 9th grade graduation, where he also bestowed some unusual advice. I highly, highly recommend that you take the time to watch it. Here’s a brief excerpt:

Now the commencement speakers will typically also wish you good luck and extend good wishes to you. I will not do that, and I’ll tell you why. From time to time in the years to come, I hope you will be treated unfairly, so that you will come to know the value of justice. I hope that you will suffer betrayal because that will teach you the importance of loyalty. Sorry to say, but I hope you will be lonely from time to time so that you don’t take friends for granted. I wish you bad luck, again, from time to time so that you will be conscious of the role of chance in life and understand that your success is not completely deserved and that the failure of others is not completely deserved either. And when you lose, as you will from time to time, I hope every now and then, your opponent will gloat over your failure. It is a way for you to understand the importance of sportsmanship.I hope you’ll be ignored so you know the importance of listening to others, and I hope you will have just enough pain to learn compassion.Whether I wish these things or not, they’re going to happen. And whether you benefit from them or not will depend upon your ability to see the message in your misfortunes.

Other highlights from “Scalia Speaks”:

  • In response to Thomas Aquinas, who suggested that written laws aren’t binding when they violate natural law, Scalia said, “Horrors! A sentiment worthy of Chief Justice Warren!”
  • He explained that his most crushing professional disappointments were blessings in disguise. “Princeton turned me down. A major disappointment. So I came to Georgetown instead, and I am sure that I am a different person (and a better person) than I would have been if my will had been done.” Scalia was also overlooked to be Reagan’s Solicitor General. “But had I become SG,” he said, “I have little doubt that I would not be on the Supreme Court today.”
  • Scalia was both appalled and optimistic about the state of American civic engagement. Back when he taught at the University of Chicago Law School, he asked how many of his students had read the Federalist Papers from cover to cover. No more than 5% raised their hands, and these were some of the best, brightest, and most engaged students in the country — with a particular interest in government! Yet he concluded his 2014 address by quoting Alexander Tocqueville:
    • “For besides this republican condition of society, the early settlers bequeathed to their descendants the customs, manners and opinions that contribute most to the success of a republic. When I reflect up on the consequences of this primary fact, I think I see the destiny of America embodied in the first Puritan who landed on those shores, just as the whole human race was represented by the first man.” Scalia agreed with Tocqueville. He thought that America’s success could be attributed to the passing down of virtue and intellect through the generations, and he hoped that it would continue.
  • Scalia spoke at length about how dissents can improve the majority opinion’s reasoning. “The draft of a dissent,” he said, “often causes the majority to refine its opinion, eliminating the more vulnerable assertions and narrowing the announced legal rule. When I have been assigned the opinion for the Court in a divided case, nothing gives me as much assurance tat I have written it well as the fact that I am able to respond satisfactorily (in my judgment) to all the onslaughts of the dissent or separate concurrence.”

Thanks for reading. If you have any suggested topics for future High School SCOTUS posts, please let me know. I would love to hear them!

-Anna Salvatore

 

Interview: Edith Roberts

Edith Roberts is the Editor of SCOTUSblog, the definitive website for Supreme Court coverage, where she compiles weekly news roundups. She previously attended Harvard Law School and served as Supreme Court editor of the Harvard Law Review. Following law school, she clerked for Judge Ruth Bader Ginsburg on the U.S. Court of Appeals for the District of Columbia Circuit. Below is her interview with Joe Hanlon. 

How did your choices in high school influence your career path?

Oh my goodness; it’s such a long time ago, and difficult to remember. I certainly didn’t put myself on a trajectory to being a lawyer or covering the Supreme Court in high school, but I guess the main interests that I had were English, language, and literature. It was always my favorite thing to study, it’s what I majored in in college, and I have an MA in it as well. It just has been incredibly useful to me throughout my life to know how to write clearly, make distinct arguments, and read complicated material to get to the heart of things and analyze complicated ideas.

I would add that I was involved in my high school newspaper. I was editor, which has been another useful thing. I guess that shows that I was interested in writing, because one way you obviously get better at it is by doing a lot of it. That really helped with things. Both of my kids, actually, were very involved in their high school newspapers. They, like you, were really interested in the Supreme Court during high school. They also did this thing called the Harvard Model Congress. It’s kind of like Model UN, but it’s focused on the doings of government in the United States. You do a simulation where some people are legislators and some people are cabinet members. They also have a Supreme Court section where you can do oral arguments based on actual cases. They loved that; it was pretty cool. I think it’s probably something you might be interested in.

How did you first decide you wanted to go to law school? What made you choose Harvard?

Ahh [laughs]. I had kind of a circuitous route, so my experience is not representative of many people’s experience. After college, I was a paralegal for a year, because I thought I might want to go to law school. After I was a paralegal for a year, I decided I did not want to go to law school. I ended up taking seven years off in between college and law school — which was not very common back then. I ended up working in local government here in DC for the legal counsel to the mayor, and I found that pretty interesting. To tell you the honest truth, I didn’t exactly want to be a lawyer, but I knew I was good at going to school and that I would be able to get into a good law school. It seemed like if I went to LS, I would probably be able to have a reasonably fulfilling career and have a useful skill. And so that’s why I went to law school.

I picked Harvard because…  well, I think I just applied to a few places. I didn’t want to go to Yale or Stanford, because they were too small. I went to Yale undergrad anyway, and I didn’t want to go back to New Haven because it was a dump. I think it may be a little different now. Harvard was bigger, and I kind of thought it would be better for me. As an older student, I might find more people in my circumstances, and I’d be more likely to find peers there because there was a bigger pool of people. That is why. I was never on this path to becoming a lawyer; I didn’t have a love of the law or any of that. I really just went for practical reasons, and mostly because I couldn’t figure out what else to do. I do not recommend that as a reason to go to law school.

Did you find a love of the law?

I didn’t end up practicing law for very long. Honestly, probably what I should have done from the very beginning — and I kinda ended up there in what I’m doing now — is I should’ve been an editor. Because that’s really what I’m more interested in. I didn’t want to litigate, and I didn’t want to do corporate law. I loved clerking, and that was great. But then after that was over and I had to actually go and do law, it wasn’t something that I really had that much of a calling for.

I think more and more people go to law school with the thought of not wanting to be a litigator or a traditional lawyer — to explore different careers that maybe haven’t been available in the past. It’s kind of a springboard, I think, for some people.

Yes, that is true, but you have to know where to spring to. And my problem was always figuring out where I wanted to spring to. I didn’t ever really figure that out satisfactorily, until I ended up working at SCOTUSblog.

While there, did any one professor or class stand out to you? Why?

I did not love law school, but I really liked property — and I don’t know why exactly. I just found the concept fascinating, and it made me think about things in a different way. I can’t really describe it. It was just this feeling of opening up the doors and looking at the way life works on a basic level, the way that people interact with each other and their rights and relationships. It gave you an understanding of the way things worked that I don’t think I had ever understood before.

Harvard is not the most cozy, touchy feely, ‘develop a warm relationship with your professors’ type of place. Maybe it’s a little more that way now, but it wasn’t then. I never really sought out teachers for mentorships, so I would have to say not really. It just wasn’t that kind of atmosphere then. If you’ve ever seen The Paper Chase or anything, or read 1L, there are a bunch of books and movies about Harvard Law School from the sixties or seventies. It sounds just horrible. People were more approachable and it was more of a humane place when I went there.

You worked on the Harvard Law Review and were the Supreme Court editor. What was this like?

The law review for me was a great experience because given that Harvard was so big, it was a small group of people — 40 or 50 people — which I enjoyed. We did a lot of work on different articles people would submit, notes that students would like, and fact checking. Back then you actually had to go and look things up in books! It wasn’t very glamorous work, but I liked it because it involved editing. So I actually liked the work quite a bit, and I liked the social connections that I made there. It was useful for clerkships and career advancements, and I guess I enjoyed that aspect too because it made my next step after law school easier.

When Supreme Court opinions came out, we would get copies of the slip opinions. I guess they mailed them to us, I don’t know how else we would have gotten them. Before we laid hands on them, I suppose we learned about them from the newspapers. You know, it’s hard to remember really; the world has changed so much. I do remember reading the slip opinions. We would keep them in binders. I was responsible for the Supreme Court statistics, which is what I did as editor. There were two of us: one would edit an article a professor wrote, and one would do statistics for the Court. We flipped a coin to see who would do which. I lost and had to do statistics, which is not the kind of thing I really enjoy or am very good at. I had to compile a bunch of information about who voted and which Justices joined other Justices. I think in the old days, people actually relied on Harvard Law Review’s Supreme Court statistics quite a bit to get information. Now people look to SCOTUSblog and Adam Feldman, and all kinds of people can do it at home. In those days, it was a relatively important thing to be in charge of. It wasn’t my favorite thing.

After law school, when did you decide you wanted to clerk for a federal judge? What made you choose the D.C. Circuit and then Judge Ginsburg?

It actually happened during law school. In those days, I believe it happened some point in your second year. There’s been a lot of controversy in the judicial clerkship selection. You might have read about that. I think what they’re doing now is hiring people based on their first year grades, which is ridiculous. It’s just not really enough information and puts a lot of pressure on 1Ls; it seems unhealthy to me.

Back then, it was towards the end of second year, so I was already on the law review. I wanted to clerk because I knew I would enjoy it and I would learn a lot. And I knew I wanted to clerk for an appellate judge because I didn’t find trial litigation as interesting as appellate stuff. I liked the idea of distilling everything down into the argument. I knew I wanted to have an appellate clerkship, and it was very, very competitive. Judge Ginsburg was very early to make offers. I applied to the DC Circuit because I was born here [Washington D.C], my parents lived here, and I liked the idea of coming home. It’s also thought of as one of the more prestigious clerkships, so I thought there may be some particularly interesting cases. Ginsburg interviewed me early in the season and offered me the job, and I took it.

What was the clerkship application and interview process like?

It was very quick; it was just a question of sending a cover letter. They were most interested in your grades, I think, and maybe a recommendation or two. But, as I mentioned, I did not have any super close relationships with any professors. I’m pretty sure I asked for recommendations from professors whose class I did particularly well in. You basically wrote a brief cover letter, included your grades, figured out where you wanted to be, and sent out a bunch of these letters. And then people started calling you for interviews. But it didn’t last that long for me, because as I said, she pretty much hired me right away. I hadn’t even interviewed with anybody else yet.

Any tips for those hoping to clerk someday?

Well, I think you have to get really good grades in law school! It just boils down to that, unfortunately. It would be nice if they cared if you had a lot of clinical work helping homeless people, but I don’t think they care about anything except how well you do in law school, which is indicative of whether you’ll be a good clerk.

As a law clerk what did your day normally look like?

I guess it depended on the sitting. The way it worked was there would be arguments every month, something like September through May, and your judge would be assigned to a specific panel for that month. She’ll know what cases she has and she’ll assign different cases to the different law clerks. So you’ll split up the cases for each sitting, and usually what you would have to do is read all of the briefs and then write what they call a “bench memo” to the judge. This is where you summarize the arguments of each side and include a tentative conclusion of which way you think.

Was that hard to do at first? It seems like a weighty assignment to go through briefs and synthesize it for the judge.

It could be challenging; it depended on the case. Some were straightforward, and some had tons of briefs and were complicated factually and sometimes legally. Or they would be dry — there’s a lot of administrative law in that circuit. If you don’t like what an administrative agency does, you have to appeal it to the DC Circuit. So it would depend on the case. First it was kind of intimidating, but it got easier. I think by the end of the year it was less so because you figured out how to be efficient. Then, when the arguments happened you would go and listen, and afterward she would sometimes want to talk to you about it — not always. She would tell you how she would vote.

If she were writing the opinion, you would write a draft opinion and then she would edit it extremely heavily. She was a very rigorous editor. She had this pair of scissors, and you would send in your draft opinion all printed out, and she would literally cut and paste. She would cut out little bits and stick them on yellow legal paper, and she would make her edits in long hand pencil. You get this thing back that looks like some collage, with little bits of your drafts interspersed with parts she had written. She didn’t always do that, but she did it relatively frequently. It was a goal to get to less of that happening and get our drafts back more or less intact.

Did that help you in your legal writing and understanding of language?

Yeah definitely. Some of it was language, and some of it was organization. She would cut and paste by moving things you had written into different orders. So both of those things — the actual writing and also the way to organize thoughts.”

What would you say was special about clerking for Ruth Bader Ginsburg?

I think the thing I said already — how she made us better thinkers and writers. I don’t know that all judges would teach you much about those things. It is hard to say because I don’t have anything to compare it with, but that was special. Another thing that was special is… she comes off as quiet and reserved (maybe not now with this whole Notorious RBG thing). When she speaks to you, she speaks very quietly, and she pauses for a long time between her sentences. This can be a bit off putting, as it was in my clerkship interview. She would ask me something and I would respond, and then she would say something else. Or she might be in the middle of a question. There would be this pause, and it was kind of confusing because you thought someone should be saying something. So you would start to blurt something out, and then she would continue with what she had started to say. You would feel like a fool because you had kind of interrupted her. She must have been used to it, because it probably happened all the time, but it was a little off-putting. You had to get used to that.

She seems to be very reserved and soft spoken, like she might not want to necessarily develop personal bonds with her clerks. But on the contrary, she was extremely warm and very interested in us and our lives. Her husband would bring in these homemade cakes and a bottle of wine anytime somebody had a birthday, and we would have a celebration. She took us on different outings, some of which were supposed to be educational. She took us — I thought this was fascinating — to the DC jail, and to this prison that used to be not that far from DC. And we did this whole tour of the jail and prison so we could see what conditions were like for people there — which I had never seen in my life. We went to a juvenile detention facility too. It was very eye-opening for me, and I really appreciated her doing that. She would also take us to cultural events; I think she took us to the theater and a concert.

She also was a kind of a romantic. She loved the idea that Matt (my husband now) and I were romantically involved; she thought that was really sweet. A year or two after the clerkship, she had this Valentine’s Day dinner at this restaurant in DC where she invited us, and other couples who had clerked for her and gotten married, to a Valentine’s Day dinner at an Asian restaurant. She had these fortune cookies made with fortunes for us inside — special little romantic fortunes. These cookies appeared for dessert, we opened them up, and hey had lovely little predictions about our happy lives together. It was sweet, something I had not expected from the clerkship, and was memorable and lovely.

I love her. She’s my favorite!

One more thing about her that was special to me; she also was very nice to me after the clerkship, when I didn’t end up doing a Supreme Court clerkship and didn’t end up working that long. Because after a couple of years, I had my first child. I ended up working part time for years and years after that and didn’t really pursue my law career. She continued to give me opportunities, and she invited me several times to speak at events where she was being honored in some way. She also asked me to write her biography for the Supreme Court Historical Society, which I thought was really supportive — because I wasn’t exactly showering myself with glory professionally or doing anything to enhance her reputation. She still wanted to give me opportunities to do the things she knew I liked to do, the writing and whatnot. I was touched and impressed by that.

How did you get involved with SCOTUSblog?

I have only been doing it for a couple of years. I got involved because after I had my first child, I was working part time for a long time. Then both kids went to college and I was looking to do something full time. I happened to know someone who was the editor before me, and it happened to be a time when they needed a new editor. So that’s how that happened. It has been an absolute godsend for me because it combines legal training with my interest in editing, and writing to a lesser extent.

Thursday, June 21, 2018

#ContractionRevolution

Elena Kagan and Neil Gorsuch are the youngest justices on the Supreme Court. From the looks of it, they’ll engage in heated debates over partisan gerrymandering, religious freedom, and other hot-button issues for decades. Yet there is one area where the youngsters find common ground: contractions. They are both comfortable using “don’t,” “doesn’t,” and “it’s” in formal writing.

This is unusual, since most justices avoid casual language. Take Justice Scalia as an example. According to Bryan Garner, his co-author on multiple projects, Scalia found contractions “intellectually abominable, but commercially reasonable.” He refused to use them in Supreme Court opinions, and he reportedly gave Justice Kagan grief for using them in dissents. He thought they were the equivalent of wearing Bermuda shorts to oral argument.

Justice Kagan explained her views on contractions in a 2015 interview. She doesn’t use them in majorities “in part because some of my colleagues don’t like them, and in part just because when you’re writing in a majority, you’re writing more for the Court. And I try to write it a little bit more formally — still in a way that I hope everybody can understand.” At the time, she joined Chief Justice Roberts and Justice Alito in sparingly using contractions. Now that Gorsuch has replaced Scalia, though, the pro-contractions group has increased by one.

This is big news! The Court’s most virulent contraction-hater has been replaced by the most prolific contraction-user in SCOTUS history.

It would be interesting enough if Justice Gorsuch used contractions exclusively in dissents. This would reflect an important (and, in my view, positive) trend towards more accessible Supreme Court rulings. But he’s taking it to another level by including them in majority opinions, and I’m psyched about it.

Check out this example from SAS Institute Inc. v. IANCU (source: Bryan Garner on Twitter).

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Just this morning, Justice Gorsuch also used “it’s” in Wisconsin Central LTD v. United States (source: Leah Litman on Twitter).

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We’ve never seen this before, and it raises a number of questions.

  1. Will other justices follow Justice Gorsuch’s lead?
  2. Is he aware that he’s setting a new precedent, and if so, does he care?
  3. Are other justices annoyed that he’s de-formalizing opinions, or was Justice Scalia the only vocal opponent of contractions?

Keep an eye out for contractions over the next few years. I have a feeling that they’ll become more popular, especially when some of the older Justices leave the court. We may never know the answers to #2 and #3, though.

Useful reads:

  • A “Cheat Sheet” for Justice Gorsuch’s writing habits.
  • good piece about contractions in legal writing.

-Anna Salvatore

Fun case spotlight

Lozman v. City of Riviera Beach is my favorite case of the term, and it’s not even close.

Let’s step back to 2006. Fane “Gadfly” Lozman, a former Marine and day trader, moved to Riviera Beach, Florida to live a quiet life on his floating home. He soon discovered that local officials were going to privatize the marina. Lozman was miffed, and he grew even angrier when he learned that the marina was originally donated to the public. So he did what any of us would have done. He waged a yearslong legal battle, dragging Riviera Beach through the lower courts until his case became one of the 0.01% granted by the Supreme Court each year. It unanimously ruled in his favor.

You’re wrong if you assumed that Lozman’s victory ended his contentious relationship with the city. On November 15, he was granted permission to speak at a local council meeting. He began railing about corrupt local officials, which the nearby council members weren’t happy about. They repeatedly asked him to yield the podium. He refused, saying “I’m informing the citizens,” and was taken away by a city police officer after several more refusals.

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(Meghan McCarthy / The Palm Beach Post)

Lozman sued Riviera Beach in 2008, arguing that the existence of probable cause didn’t defeat his claim of retaliatory arrest under the First Amendment.

Probable cause means that the policeman had reasonable grounds for arresting him –and he did, since Lozman was charged with disturbing an assembly. But this charge “has multiple flaws in it,” Lozman recently told me. 

Meanwhile, retaliatory arrest means that city officials arrested Lozman because they hated his guts, not because he legitimately violated the law. This is reflected in the transcript of one of their closed-door meetings. Councilwoman Elizabeth Wade suggested that “it would help to intimidate” Lozman, and that he should feel “unwarranted heat.”

Under previous law, the existence of probable cause was all-important. Did the police officer have reasonable grounds to arrest Fane Lozman? Okay, cool, end of story; the retaliatory arrest claim was automatically cancelled. Lozman fought for ten years to change this conception. He believed that even if probable cause existed, he should still be allowed to sue the city for its vengeful actions.

Eight justices agreed. In an extremely narrow decision, Justice Anthony Kennedy noted that the facts of the case were unusual. Most retaliatory arrest claims involve on the spot judgements by police officers, but Lozman claimed that Riviera Beach had an “official municipal policy” of intimidation. He also sued the city rather than the security guard. Given the uniqueness of this case, and the essential liberties at stake, “Lozman need not prove the absence of probable cause of maintain a claim of retaliatory arrest against the City.” He walked away with his second Supreme Court victory. 

Interested in learning more about this case?

-Anna Salvatore

P.S. Finals are over, so I’ll have more time to post over the next few months.