Interview: Carrie Johnson

Carrie Johnson is a Justice Correspondent for NPR. She began her career at the Legal Times, where she wrote about the courts. She then worked at the Washington Post for ten years, reporting on the FBI, Justice Department, and criminal trials. More recently, she spent a few weeks covering Paul Manafort’s trial for NPR. I had never talked with a radio journalist before, so I learned a lot from this conversation. Without further ado… 

When you were in high school, what were you passionate about?

I was passionate about writing and reading. I was also interested in sports, although not very athletic. When I was a freshman in high school, I joined the school newspaper and started covering sports. It turned into a job for money with my local newspaper. I got twenty dollars a week to write about high school teams that I covered, and I did that job through most of high school. In fact, when the sports editor of the local paper went on vacation, I would fill in for him. So I really have been reporting for money ever since I was fourteen or fifteen years old. 

Did you want to become a sports reporter when you grew up?

I really, really wanted to become a sports reporter when I grew up. I watched a show on ESPN called “The Sports Reporters,” and those were my heroes. I read all the sports coverage I could find, and watched sports on television, and went to games. But in that era, it seemed kind of difficult to be a woman reporting sports. There were things happening all over the country that made it seem like women were not welcome in locker rooms. I had an experience or two like that; not in the high school teams that I covered, but other ones. I didn’t want to do that for the rest of my life. So instead I decided to cover law and lawyers, where there were fewer such incidents in locker rooms. [laughs]

When did you pivot to law?

I was interested in law by the end of high school, and I was reading a lot about it in college as well. But I didn’t think I ever wanted to go to law school. Writing about the law and covering court proceedings was as far as I wanted to go.

What turned you off from law school?

I wasn’t sure that I ever wanted to practice law in a big firm. And I’m pretty happy with that decision. I’ve covered lawyers in Washington now for about twenty-two years, and while I’ve seen many achieve great success, I don’t know that a lot of people are happy practicing law in some of those big firms. People who are in smaller law firms and people who are in the government seem to have more control over their schedules, and more control over the kinds of cases that they are taking – more satisfaction, really.

Who has played the biggest role in teaching you how to write? Did that happen at your local newspaper, or a little later?

I feel like it was maybe a little bit later. When I was very young, I got my hands on a paperback copy of columns by a writer named Jimmy Breslin. He was a famous columnist in New York City, and he’s considered one of the founders of narrative journalism. He was ingenious at talking to people, getting details out of them, and then finding new ways into stories that everybody else was covering. I read that book so many times. It had such an influence on me in that era.

Once I got to Washington, I got some really tough editing at a paper called Legal Times, where I was an intern in the summer of 1996. It turned out that instead of spending a summer in Washington, I wound up spending the next twenty-two years there. And I had really, really terrific editing from people like Tom Watson, who went on to be an editor at Newsweek.

When I went to the Washington Post in 2000, I had a number of amazing editors. That process can be tough, where someone is being very hard on your work and your approach to reporting. But hopefully you learn how to do this job through experience. If you have a bad day, the good news about reporting is that the next morning you wake up and it’s Day One all over again.

How do you think your writing improved?

I feel as if you’re most successful as a beat reporter if you’re breaking news about things that are really important, but you’re also explaining to people why something matters. One of the things that I try to do is to have sources from all different perspectives; not just the Attorney General or the Deputy Attorney General, but people who occupy more day-to-day, lower jobs in the Justice Department. People who square off against the Justice Department in court. People who may work for a courthouse. You can be more confident in your writing once you have a real sense of what’s going on, and use all of those sources to help build a picture of what’s happening and why it’s happening.

How long did it take to develop a network of sources?

When I started at Legal Times, I was doing the most basic of tasks. I was basically re-writing press releases about lawyers who left the government and joined law firms or went from one law firm to the other. Through talking to each of those people, confirming details, and making sure their names were spelled right, I came into contact with a number of people who went on to occupy big roles in the Justice Department or FBI. Most of them I’ve been lucky enough to stay in touch with and rely on for information.

When I began covering the Justice Department itself in 2007, it took a good year or two to wrap my arms around that institution. It’s a very, very hard beat to cover because there’s so much going on, both in Washington and in the U.S. Attorneys’ offices. There’s so much assertive litigation of DOJ priorities, and then there’s what we call “defensive litigation” – defending against lawsuits filed by people outside the government against the federal government. It’s an enormous set of issues. I’m not sure I’ve quite mastered it yet, but I keep trying every day.

When you started covering the Justice Department, you also began doing radio work with NPR. How hard was that adjustment?

It’s been a long process. I’ve been at NPR now for eight years, and I did not realize how much of a newspaper person I was until I joined NPR. The writing is very different. The architecture of a story is very different. On the radio, you’re speaking with an audience that’s very smart, but they may be doing something else at the time; they may be cooking dinner or driving their car, and they may have ambient noise. Their kids may be hollering at them in the backseat. So you really need to grab their attention and meet the listener where they are. That requires a different kind of writing than a newspaper style, where you’re packing lots and lots of information into the first three paragraphs. You kind of have to ease into a radio piece in a way that you don’t in a newspaper story.

I’ve also changed, somewhat, the kinds of stories I do. When I worked for the Post and Legal Times, sometimes I would use anonymous sources to criticize one institution. Say, the Justice Department and the White House were fighting, or the Justice Department and Homeland Security were fighting. On the radio, we don’t like to use anonymous sources because of course they’re not talking on tape, and we like to use recordings of people’s voices. So I’ve turned away from those inside-Washington stories. Instead, I try to do more stories about how the justice system touches the lives of individual people around the country. Those stories work well on the radio because folks can make their own case for why an issue matters and why it impacts them. It’s really compelling for listeners to hear the voices of other human beings making their case.

When you’re on air, how much of what you’re saying is scripted?

We do reported pieces with lots of tape from other people. Those are almost always pre-recorded, if not that day or a couple hours before, then sometimes if it’s a long feature, the day before. We also do things called two-ways, which are interviews between a reporter and host. Those are semi-scripted. Usually you know the questions in advance, and maybe you’ve jotted down some notes. But I can tell you, for instance, when Rod Rosenstein selected Robert Mueller to be the special counsel investigating Russian election interference, that came as a bit of a surprise. I think I was already at home and had just finished walking the dog. I had to go on the air and talk for several minutes about Bob Mueller, whom I had covered when he was the director of the FBI. And that was entirely unscripted. [laughs] So sometimes one makes room for surprise, and you hope you don’t make any mistakes. You hope you get all the important points in.

Do you remember your first radio broadcast, and how nervous were you?

I don’t remember the first one. I remember being unbelievably nervous, in a way that I was never nervous at the newspaper. I do remember starting at the Post and writing a story, and then that Sunday the story was in the paper. I thought, “Gee, a lot of people are going to see this.” But radio was different for me. It was more intimate; you can hear people’s emotions through their voice. You can convey a lot of things aside from the substance of what you’re saying, and it feels more personal than typing. I think that made me more nervous than I had been.

Now that I’ve been doing this for eight years, I’m less nervous. Although every once in a while, something really big is happening, and you can tell I’m excited about it by the tone of my voice. [laughs]

When you’re talking, do you have a specific listener in mind like your aunt or your neighbor?

They actually tell you that in the training. You’re supposed to imagine talking to one person. They tell you not to imagine a loved one, because that may impact your tone of voice in a way you don’t want. But, you know, a friend or a neighbor. You’re always supposed to think of that person when you’re talking. In fact, some people bring a photo into the studio with them to imagine they’re talking to that person. It really does make a difference. You can tell when someone’s reading and when they’re just talking, and it sounds a lot better when they’re talking.

Who do you imagine?

You know, first it was a friend of mine who lives in Canada. Then it became one of my neighbors. And now I’m in the strange position of sitting on my stoop in Washington, D.C., and a new neighbor will walk by. Then I find out that they are, actually, an NPR listener. So now I actually think of some of those people when I’m talking. It’s so funny.

How much time and care do you put into maintaining your voice?

When I started here, I had this essential question: “What if you get a head cold? What is the secret remedy to make yourself feel better and sound good?” It turns out that everyone has their own remedy, but there is no magic bullet. So I try to avoid at all times being around people who have head colds, or shaking hands with people who have colds. This has been a challenge. People who are not talking for a living don’t appreciate that.

If I am on early in the morning, I also wait to have my coffee until I’m done talking. This means that I have a real headache if I’m not on until nine. [laughs] But it’s just better for me. Some people don’t like to drink milk or have dairy before they go on the air. I try to remind myself not to eat potato chips, because that has a bad impact on my voice. Sometimes I forget, or I’ll eat chips and then something big happens at DOJ and I have to talk anyway.

Have you ever worked with a voice coach?

We have someone on staff here named Jessica Hansen, and she’s really wonderful. She does one-on-one sessions with people. When I started at NPR, I also had the great benefit of learning from three masters. One is named Paul Brown. He used to work for NPR Newscast; he’s now a retired musician in North Carolina. Another guy who really helped me was Jonathan Kern, who literally wrote the book on sound reporting and audio reporting. He is retired from NPR. A third person who was enormously helpful is a guy named David Candow. He was instrumental in the Canadian Broadcasting Corporation and did a lot of work with NPR. He died a few years ago, but I still remember a lot of the things that he taught me.

What’s one major thing that he taught you?

David Candow always preached about talking to people as if they were people. He didn’t like the word “citizens” – he thought we should use the word “people.” He didn’t really love the word “children” – he thought that we should use the word “boy” or “girl,” because they evoked an image in listeners. And just the way you say those words is different from “children” or “citizen.”

Candow also taught me a lot about writing short sentences and writing to my voice. I try to avoid writing with lots of clauses and interruptions; it’s better for me if I stick to subject-verb-object. Some people here who have true instruments with their voice can really do a lot. I try to keep it simple.

You said that there weren’t a lot of successful female sports reporters you could look up to in high school. Are there any women in radio you’ve particularly admired?

I have the great fortune of working with Nina Totenberg, who’s one of the best reporters of her generation in any medium. She is so smart and so funny and so tough, and she’s been a great colleague to me.

At NPR, we’re very lucky to have a number of women. We have a culture of founding mothers instead of founding fathers. And those people, aside from Nina, include Susan Stamberg and Linda Wertheimer. They certainly are masters of this art, and truly amazing to watch. I also have been able to watch Mara Liasson in action; she’s the former Congressional and White House reporter for NPR. Now she’s our national political correspondent, and she’s a force of nature.

That’s awesome. I’ve grown up worshipping Terry Gross, who’s out in Philly.

She’s a genius. And the notion that so many people… I hate to say it in this way. I don’t mean to be morbid. But if you look at the obituaries in the newspaper, look at how many times they quote that person’s interview with Terry Gross. Because she manages to extract information out of people that is essential and new, and so essential that it follows them to their obituary. I can’t imagine a better testament to someone’s interviewing skill than that. Once you start looking for that, you’re going to see it everywhere you look.

I haven’t seen that before, but I’m going to start.

Yeah, take a look. It really happens a lot with people in the arts and entertainment.

I actually just watched this documentary called “Obit,” which is about the New York Times’ obituary desk. The process for writing them is really eye-opening. I was curious about how they worked, what with the huge Aretha Franklin and John McCain obituaries in the last few weeks.

I saw that movie on a plane, and I fell in love with it. I was so sad to hear that one of the lead characters in that movie, Margalit Fox, actually just retired from writing obits. Anything with her byline, I want to read. I don’t care what it’s about; I know I’m going to like it.

That’s such a great movie. Anyway… What is a helpful criticism that you’ve gotten?

I think being as specific and as detailed as possible is a great approach, but not when it comes to numbers. People can get very lost in numbers on the radio. So if you use them, you need to be careful. I just finished covering the Paul Manafort trial, and having that in mind influenced my trial coverage. Of course it was a trial about tax fraud and bank fraud, and every day was filled with numbers and financial details. The key to covering that trial was picking the right details; if you could only choose one or two numbers in a piece, to use them really wisely. And instead, you could talk about what prosecutors were doing by introducing all that evidence, or what they were intending to prove, rather than getting lost in the numbers.

For instance, Manafort’s main defense in that trial was that Rick Gates, his business partner, was truly the culprit. And the government introduced a bunch of evidence about how much each of those guys made. I think Gates made something like $240,000 a year, and in some years, Manafort made $2 million a year. So I used that number by way of saying that the government is trying to show that Paul Manafort is driving the car – not Rick Gates.

Do you remember when you received that criticism?

Probably when I first started covering the Justice Department. I can’t quite remember, although I know I did a few pieces over the years about the Justice Department and the grants that it makes to state and local law enforcement. All those stories are filled with pitfalls about numbers. It must have been one of those situations.

Where did you sit in the courtroom?

This is controversial, Anna. [laughs] Because in Virginia, the judge did not give the media a separate place to sit. And since that trial was near a number of buildings where a lot of people came to see the trial — just regular people, which is fantastic — it was hard for reporters to get seats and maintain their seats during breaks. On occasion, members of the public would move the reporters’ notebooks and sit down. [laughs] So if you left the courtroom, you might lose your seat. Which was very frustrating! And stressful. I tried not to leave the courtroom very much.

When I get my way, I like to sit in the second row of almost every courtroom I attend. That way, I get a look at the jury box, I can see the judge, and I can usually see the defendant. I look at all of those things while I’m writing down my notes, because it gives a good picture of how the evidence is coming in and how the defendant’s responding. But on a few occasions, it was so crazy in the Alexandria courthouse that we couldn’t get or keep our seats. I was happy to have any seat on certain days.

Do most courtrooms have a separate place for the media to sit?

In high-profile matters, most courthouses do set aside seats for reporters. You still need to get there promptly, but you don’t have to fend off members of the public in order to see.

Reporters had an interesting process for storing their phones during the Manafort trial. You guys went to a cafe across the street, right?

Yes. I have been doing that for most of the time that I’ve covered anything in that building. There’s a place called “The Cafe Gallery and Market,” and that’s right near the courthouse.

Before the trial started, there was a pretrial proceeding, and I was trying to record something from inside that cafe. But I couldn’t record in there because they had the radio on. So I asked to use the restroom, and I went in their restroom to try to record where it was quiet – except when you turned the light on in there, there was a very loud AC and vent. I couldn’t record there. So I turned off the light, and I had to record something in the bathroom of the cafe with no lights on. [laughs] That was not going to work very well for the trial.

That’s crazy.

I know. I was too old to do that for a long stretch. Happily, happily, my wonderful editors at NPR decided that we needed to get a hotel room across the street from the courthouse. We set up a little bureau where we had a line to headquarters, a microphone, and some headphones and a laptop. We were able to record almost everything from the trial across the street from the courthouse – and leave our phones in that hotel room.

Would a dark cafe bathroom be the strangest place that you’ve ever recorded?

You know what, I think so. I don’t think recording in a car is really that bad a thing compared to recording in a cafe bathroom with the lights off. [laughs] That was so low.

Did you do anything else to circumvent the electronics ban? I heard there were some payphones in the courthouse.

We did use the payphones. There were two of them on the second floor. One didn’t work; it took your money, but it didn’t work. The other phone did work, but there were long lines. We would sometimes communicate with our editors using that payphone. The challenge was that, for some of the younger producers and reporters, they didn’t even know what a payphone was. Which made me laugh very hard, and almost fall off the bench in the courthouse at one point. I was like, “You’ve never used a payphone in your entire life?” But people haven’t. They’re obsolete unless you’re at the courthouse in Alexandria, Virginia, I guess.

I have no right to laugh at them, because I haven’t used a payphone either.

Of course you haven’t! And I hope you never have to. It’s really weird.

What was the atmosphere like in the courtroom?

I’ve covered a lot of trials, and they all sort of lull people into this sense of community. Obviously someone’s liberty is at stake, and that’s as serious as it gets. But the defense lawyers and the prosecutors joke around. The reporters joke around. Depending on the case, sometimes the family members of the defendant will get involved. You’ll develop a community in that way, since you’re sort of forced to be in the same room for hours on end.

I can tell you that when I was still at the Post, I covered a couple of different trials in Houston, Texas, including the trial of the former leaders of Enron. In that trial, the family members of the defendants were quite open and talked to you all the time. Some of the other people involved in the trial would talk with me during court breaks. It just became a very collegial environment.

Did you take notes during the Manafort trial? And if so, how were they organized?

No laptops or phones were allowed in that building, so I took a lot of notes. I had one of those long, thin reporter notebooks for each day of the case. I still have them, and I’m looking at them right now. I have my own little system of scratching out things that matter a lot and pulling down the pages. I made my own little jury verdict form. I’m going to keep that stuff for a long time, because this was quite an interesting trial to cover – I think I’m going to remember it for a while.

As soon as you left the courtroom on a typical day, what did you do?

I would usually be on the air around 5:00 or 5:30 every night, and court was not always done for the day. So I would have to leave the courthouse around 4:30 or 5:00 and run across the street to our hotel room. I’d check in with one of our producers – either Miles Parks or Barbara Sprunt – and find out exactly how much time I had to talk. And then I’d read the questions they were going to ask me, maybe jot down a few notes, and that was it. Not a lot of time to prepare.

Wow. I would be so nervous.

Well, the challenge is packing all the information you’ve heard that day into just three or four minutes. After you do it awhile, you get more comfortable.

What advice would you give to a young reporter covering a trial for the first time?

Read all of the briefs beforehand. You cannot cover court proceedings properly if you have not read all of the briefs. They’re a roadmap to where each side intends to go, particularly the government. And the list of witnesses and the list of exhibits and some of the arguments they make – all of that you need to know before you ever walk into the courtroom.

And then you need to keep an open mind, just as the jury does. Remember that in cases involving a jury trial, the jurors may not have heard or read everything that’s in the press about a matter. They’re evaluating a case just on the evidence that’s put before them. Try to keep an open mind about how that’s playing with these jurors.

What is a common mistake that a reporter might make while covering a trial?

I think you need to wait at least several days to get a sense of whether the strategies of one side or another is working. The Manafort trial was only sixteen days long, and that was very speedy. But I’ve covered trials that have been three or four months. There, it may take a while to understand what the government is up to and whether the defense is successful in taking a battering ram to the government’s witnesses and evidences – and creating that reasonable doubt that they need to win an acquittal. As a reporter, you need to keep an open mind about that.

When did you realize this in your career?

Every case is different. Most of the trials I’ve covered happen to be white collar fraud cases, although not all of them. Remember, something like 97% of cases in the federal system end short of a trial; they end in a guilty plea. So trials are kind of rare now. When you have one that has captured the public imagination, you need to enjoy the experience and do as good a job as you can. We don’t have that many trials anymore, which is kind of a sad thing both for the system and for people in my business.

How many trials do you cover in a given year?

The Manafort case that I just did was one of the first wall-to-wall trials that I’ve covered for NPR in eight years. It’s very rare that, in this environment of diminishing resources in newsrooms, a reporter will be allowed to do one thing and only one thing for a few weeks. Normally, news organizations like ours will cover the opening statement, maybe a key witness, and then the closing of the case and the verdict. That would be it. You wouldn’t be there every day, because there’s too much going on and not enough resources to cover everything else. I’m very appreciative to NPR for letting me take those two and a half weeks to really dig into this experience. It also was a function of how interested the audience was in Manafort’s case.

Are you busier on a normal day during the Trump presidency than you were on a normal day during the Obama presidency?

I have been busy almost nonstop since July 2016. From the shooting at the Pulse nightclub in Orlando, which was in June, to Jim Comey’s press conference in July… Then I covered the Hillary Clinton email investigation, and I also worked on election night. I came in thinking I was going to write a story about Hillary Clinton and ended up writing something very different. I also wrote the story of Trump’s inauguration speech, which, as you may remember, was intentionally unorthodox. I haven’t had a quiet day since. [laughs]

Except when I’ve been on vacation. Even then, it’s been wild. But it’s been wild for a lot of people. You’re friendly with Ben Wittes, who has been as busy as I have known him in more than twenty years. He’s working every single day of the week for Lawfare, or doing television, or organizing conferences. This administration has gotten us busy in ways we never expected.

Compared to other judges you’ve covered, how much did Judge Ellis stand out? Was he as unusual as the media made him out to be?

He did stand out. I have covered trials where judges have been involved, and sometimes tough on one side or the other or both. There are big cases where that has happened. But this judge, I think, was unusually active. He has said that he had reasons for that, and he has pointed out that appeals courts don’t really like judges talking that much. They also don’t do much about it.

I do feel as if by the end of the case, when the jury was outside the courtroom, or at bench conferences with the lawyers, the judge did acknowledge that perhaps he had miscalculated the public interest in this case. That’s certainly true. We had people lining up at 4:00 in the morning to get into that courthouse, which didn’t open until 8:00 am. We had wall-to-wall coverage from every major newspaper and television network. The notion that the judge didn’t quite get that the trial of the president’s former campaign chairman would attract so much public attention was a little puzzling to me. But I’m glad that, by the end of the case, he acknowledged his misjudgement.

When Manafort’s defense opted not to call any witnesses, that was also a major news headline. But many people on Twitter didn’t think it was a big deal. What’s your stance on that?

I was not surprised at all. The essence of their case was that Rick Gates, Manafort’s former business partner, was the main culprit. And they thought they did enough damage to Rick Gates in their cross examination that they would let things stand there. It’s not unusual for a defendant to decide not to testify, and it’s not unusual for a defendant not to put on a case. In fact, that’s actually a smart decision in a lot of cases. Had Manafort taken the stand, he could’ve done a lot of damage to himself. And remember, he has a second trial coming up in D.C. in September. There were lots of reasons why the defense didn’t put on an affirmative case of its own, and it wasn’t at all unusual to make that choice.

Were there any other widely spread misconceptions during the trial?

I think it can be a mistake for people to run in and outside the courtroom before a witness’s direct examination is done and before a cross-examination is underway. You don’t get the full picture of what the witness is testifying about, or whether the witness has credibility problems.

If you run out, you might report something that seems like a very big deal, but later in the witness’s testimony, or in cross-examination, it becomes much less of a big deal – or maybe even contradicted. So I think I would preach context, and taking the time to understand the full picture before running out of the courtroom.

If you run out, your chair might be stolen too!

That’s exactly true!

That’s a valuable currency in the courtroom.

People were getting quite hostile about it.

Yeah. I read a cool PBS article about what it’s like to cover the Manafort trial. I don’t know if this is directly connected to the chairs, but it said that reporters had to kill time while waiting for the jury’s verdict. How did you occupy yourself?

I actually read the physical newspaper – two of them, every morning, which made me super happy. Then I prepared for whatever verdict might be coming, and I read a book.

I also did a lot of chatting with other reporters. As you would imagine, reporters are super social animals. They all wanted to talk about what might be happening next, or where they wanted to go on vacation. We also spent a lot of time looking over the courtroom artists’ shoulders. Art Lien – who you’ve interviewed, I think – was there. He’s a wonderful, marvelous person. The other guy was Bill Hennessey, who’s also been in D.C. for a long time. We were looking at their work a lot and bothering them, probably, while they were trying to do their jobs.

Cool! Did the court artists stay in one place, or were they bouncing around to get different perspectives?

They were mixed in with all of us, depending on where you wanted to sit. But they usually got their own row because they needed to spread out a little bit with their materials.

It must have been strange to read about the Manafort trial in the newspaper while hanging out at the courthouse.

Yes, it was. It was. Before there’s a verdict, it was something to pass the time.

Are you reading any good books right now?

I just finished reading a new book by Kate Atkinson called “Transcription,” which is about a woman during World War II who did some espionage and then went to work for the BBC. It was terrific, and I read that in the courtroom while we were waiting for the verdict. I’m about to crack open something new this weekend, but I haven’t decided what yet.

Does your reading usually pertain to law or national security, or do you branch out more?
I wish I could say that I read a lot of nonfiction. I used to read a lot of it, but I have been so overwhelmed with news since 2016 that when I’m home at night, I like to read fiction to take me somewhere else. So I have big, big stacks of books to get through at home. But it’s hard to finish a book given the pace of news.

Are there any books you’d recommend about courts or the trial process?

When I started covering white collar crime for the Post, I read two books by a guy named James Stewart. He now writes a business column for The New York Times. One book was on the insider trading scandal in the 1980s, and it’s called “Den of Thieves.” The other book that he wrote, that I read before I covered the Enron trial, is called “The Prosecutors.”

I guess I could give you one more book while we’re at it. It’s not just about trials, but it’s about the Justice Department. This came out in the Clinton administration, and it’s called “Main Justice.” It remains a really great primer for what the Justice Department does and how it uses its resources. I still have that book on my shelf and look at it time to time for inspiration.

My last question is: If you could cover any trial in American history, which would you choose and why?

That’s really hard. You know what, I’m going to for an oldie but a goodie. When I go to conferences with criminal defense lawyers – or professors who believe in the adversarial system of justice – they all talk about John Adams defending people early on in America. He mounted a really zealous defense. So I would go back to the beginning and cover the Boston Massacre trials, which, in some ways, remains a high point in our system.

Other interviews conducted by Anna Salvatore: Lawfare editor-in-chief Benjamin Wittes, former Solicitor General Neal Katyal, New York Times Supreme Court correspondent Adam Liptak, former Court writer Linda Greenhouse, SCOTUS court artist Art Lien, UCI Law Professor Leah Litman, IU Maurer Law Professor Ian Samuel, Fix the Court Director Gabe Roth, and litigant extraordinaire Fane Lozman. 

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Monday, August 13, 2018

The Roberts Court Going Forward

by Caleb Horn

Just over three years ago, Chief Justice Roberts wrote a 29-page dissent in response to Justice Kennedy’s majority opinion in Obergefell v. Hodges. It marked the first time the Chief read a dissent from the bench, and he wasted no time in defining the judiciary’s proper role. “But this Court is not a legislature,” he writes on the second page. “Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.”

The forces that motivate John Roberts are not a mystery. He is obviously conservative; the above quote might as well have been ripped from the Federalist Society website. Most empirical analyses have placed John Roberts in the same cluster as Alito, Thomas, and Gorsuch. The cases in which he has sided with the liberals, such as the Affordable Care Act, are the exception that proves the rule. Roberts is not the “swing justice,” but the Court’s ideological median. 

The Chief Justice cares deeply about the Court as an institution and works hard to preserve its perceived legitimacy. This was clear in Gill v. Whitford, when he worried about what the “intelligent man on the street” would think if the Court ruled for one party. He has also expressed concern about partisan confirmation battles and their effect on the public’s view of the Court.

Notably, John Roberts seems willing to defend previous rulings even if he disagrees with the outcome. One clear example is Pavan v. Smith, a summary reversal, where the justices held that Arkansas must issue birth certificates to married same-sex couples under Obergefell. This probably signals that Roberts respects Obergefell as settled law. At least within this context, Roberts values precedent more highly than what he believes is the correct ruling. So is Obergefell in danger? Probably not.

These core beliefs should serve as a rough guide of what to expect in a Court without Justice Kennedy. The upcoming term will be less exciting than anyone predicts. Liberals hoping Chief Justice Roberts will shift to the left with Kavanaugh’s nomination shouldn’t hold their breath. Roberts’ core beliefs about the law make that nearly impossible. Conservatives hoping that he will overrule Roe, Casey, Obergefell and more are in for disappointment. His respect for precedent makes that nearly impossible. In short, John Roberts will continue to live up to his greatest legacy: leaving all parties disappointed.

 

Sunday, August 12, 2018

Our newest contributor is Kai Franks, a high schooler from New York City. Kai grew interested in the Supreme Court because of their favorite professor, Steven Mazie, who is also the Court correspondent for The Economist. Their dream is to become a federal judge. 

Thoughts on Justice Kennedy’s Retirement and its Impact for Teenagers

by Kai Franks

It has been over a month since Justice Kennedy announced his retirement, and in that time it’s been difficult for me to find motivation to sit down and write; after the announcement, I took a week’s break from the news cycle to refocus. I think to many young people who follow politics, particularly those of us who care about the Court, this seems like a moment of despair. Justice Kennedy was not always on our side, but he gave us hope, especially on hot-button issues, that the Court wasn’t biased.

However, as I have reflected on his retirement, I hope this can be an opportunity for change and renewed energy. At a moment when young people are more politically aware than ever, we must start educating ourselves on the courts and the legal goings-on throughout the country. The Supreme Court hears 60-80 cases a year, but only a few of them make the front pages. And lower courts hear even more cases that scarcely get the attention they deserve.

If young people want to see long-term change, simply telling our senators to oppose a nomination isn’t enough. We must question the decades-long rightward shift of the Court, and be aware of issues in the judiciary that not only halt progress, but peel it back. As we protest gun violence, we should consider the soundness of D.C. v. Heller and Mcdonald v. Chicago. As we take a harder look at police brutality, we need to be concerned about the lack of legal accountability for police, including qualified immunity (whenever I tell other young people about qualified immunity, they are shocked). We should question why the Court equates money with speech and fiercely protects speech rights for highly privileged groups, when under Hazelwood v. Kuhlmeier school administrators are allowed to censor students’ speech.

The day Justice Kennedy announced his retirement, I sent an email to my professor, Steven Mazie, who is also The Economist’s Supreme Court correspondent. The subject line was “AMK,” with the body text simply “I don’t know what to do.” A few hours later he responded, “Keep at it.” My friends had been trying to tell me this all day, but it took his words to refresh any sense of optimism I had. I hope that all of us can “keep at it” going forward; if the law isn’t serving the interests of future generations, we need to become involved in the law, and it will shift with the coming generations of litigators, judges, and justices.

I present this as a mostly introductory piece, but I plan on writing several more pieces about jurisprudential and judicial issues I think that young people should care about and focus on changing. I befriended Anna over Twitter several months ago, when High School SCOTUS was much smaller, and am thrilled to finally join it.

You can find me @kai_franks on Twitter. Please let me know if you have any cases or issues I should explore. 

 

 

Interview: Linda Greenhouse

Linda Greenhouse was the Supreme Court correspondent for The New York Times for nearly three decades. In 1998, she won the Pulitzer Prize “for her consistently illuminating coverage of the United States Supreme Court.” She has written four books, including a biography of Justice Blackmun and a memoir called “Just a Journalist.” She currently teaches at Yale Law School.

What kind of a teenager were you, and what were your interests?

I guess I was a kid who basically followed rules. I wasn’t a troublemaker-type teenager. I was editor of the high school newspaper, and my teachers liked me. I was interested in politics and public affairs, the Beatles, who were just coming along when I was in high school, and pop music. I also was into the cast albums of the great Broadway shows at that time.

When you were younger, were there any writers you tried to emulate?

By the time I was in college, there certainly were. I read the New York Times every day, and I noticed bylines. I even once wrote a fan letter to a New York Times reporter. So before college, I was reading books and so on, but I don’t think I was paying that much attention to bylines in the journalism that I read.

Which writers do you admire right now?

For fiction, I very much like Michael Chabon. In fact, I’m just now reading a recent novel of his. I like Barbara Kingsolver — I think I’ve read most of hers. I read the New Yorker every week, and I read the New York Review of Books. There are a lot of writers in those publications whom I admire.

Who did you a write a fan letter to?

It was Robert Lipsyte, who’s still around. He was a sportswriter, and his copy was just so engaging and colorful. This is when I was in college and I was interested in sports. And I just wrote a letter. He wrote back to me, and he told me that being a sportswriter was a very good thing to be because you got a lot of fresh air. [laughs] That’s what he told me.

After college, you interned for James Reston at the New York Times. How did you get that internship?

He had a kind of personal internship program, and the idea was that he’d hire someone right from a college newspaper. I was coming from the Harvard Crimson, so this was known. I applied, and he actually had not previously ever hired a woman. There were very few women in big-time journalism in those days. But the Vietnam War draft was on, and a couple of the guys he hired were drafted. There was no draft exemption working for James Reston. I think that opened him to hiring a woman, and he invited me down to Washington for an interview and hired me.

Being one of the only women, did you experience some imposter syndrome when you began working there?

No, I don’t think so. I wasn’t given anything to do that required any more heavy lifting than I had done working seven days a week for the Harvard Crimson. I was actually pretty well prepared. I didn’t know what would become of it — it was just a job for a year. I was hoping I would get to stay at the Times, but it didn’t come with any assurance of that. So I tried very hard to do a lot of outside writing so I would build up a portfolio of clips. It was kind of a pleasant surprise when the Times asked me to stay on as a junior metro reporter, and have more or less an official tryout for a real job. That’s how that happened.

Eventually the Times asked you to write about the Supreme Court, and they sent you to Yale Law School to take all the first-year classes. Were you heavily incentivized to get good grades that year? I mean, was your job offer dependent on getting straight As?

Well, yes. But what incentivized me more was that every time there was a Supreme Court decision, the Yale Law School library posted the New York Times’ story about it on a bulletin board outside. So I looked at that and said to myself, I’d better do well here in law school. Assuming I do go down to Washington and take this job, I don’t want people to see my stories posted on the bulletin board and say, “Oh yeah, we remember that dumb young woman who didn’t do very well in class.” [laughs] That was, I would say, more of an incentive.  

What were your favorite classes?

To my surprise, I liked a required course called Civil Procedure. I expected it to be really boring, and I was just taking it because I had to take it, but what you learn is how the legal system works. That was very interesting. And then I took a course that was not required but had been recommended to me, a course called Administrative Law. That is really about where the citizen meets the government. It’s the law of federal agencies and federal rules, and a lot of stuff that is front and center today in the age of Trump. I found that very eye-opening, and I urge my students to take it because it really gives an important foundation for understanding the federal system.

How steep was your learning curve at the Supreme Court after undergoing that year of law school? Was it any easier or harder than you expected?

Yeah, I would say it was harder than I expected. It was a steep learning curve because in law school, you don’t really learn about the Supreme Court as an institution — how it works on a day-to-day basis. So I was really pretty clueless. I had some knowledge of legal doctrines, but my first obligation was simply to understand what the court was doing on a day-to-day basis.

There was a lot of self-education, but the Supreme Court press room was also a very collegial place. My colleagues there were helpful, because there’s not the kind of competition in the Supreme Court press corps that there might be on other beats. Nobody really has sources. We all get the same information at the same time — the decision handed down, the order coming out or something like that. So it’s not a cutthroat, competitive place. They were helpful in kind of showing me the ropes.

What was the most valuable lesson you learned from another member of the press corps?

I don’t know if I have a good answer to that. I really didn’t have a clue as to the sort of week in and week out flow of work at the Court. It was basically just learning the ropes from my colleagues.

 Who helped helped you learn the ropes?

There was a guy who’s still in the game, even though he’s approaching 90, named Lyle Denniston, and at that time he wrote for the Washington Evening Star. He eventually ended up as an online reporter for the SCOTUSblog website, where he was very influential. So Lyle was very helpful. A guy who covered the Court for the Associated Press, Dick Carelli, was also helpful. Those two really stand out. People from the Washington Post were also helpful, Wall Street Journal reporters… It’s not a large press corps at all, and it’s kind of a tight-knit, friendly one. Many of us would go to lunch together on a pretty regular basis and talk over what was happening at the Court. It was like a little floating seminar, and that was a lot of fun.

 When I spoke with Adam Liptak, he said that you gave him one piece of important advice: to read the dissent before the majority opinion. When did you figure this out, and why was it so helpful?

I don’t know exactly when I figured it out — somewhere along the line. And it’s helpful because, when you read the dissent, it points you to the path the majority didn’t take, even though maybe they should have. Here’s the path they took, even though maybe nobody really asked them to and maybe they shouldn’t have. You know, here are the missing pieces. I’m not saying that you read it with the notion that the dissent is correct and the majority is not correct. But you just want to make sure that when you do read the majority opinion, you know if there are any missing pieces. And that’s what the dissent will point you to. It’s a helpful rule of thumb.

Can you think of any other rules of thumb that you developed over the years?

A number of my practices are kind of outdated, I guess, because of the internet. [laughs] I mean, Adam has to write a bunch of his stories in advance and then just put a new top on it. The Court did A or the Court did B, and the the background is all written in advance. I didn’t do that — I didn’t have to do that. The way I worked would seem extremely old-fashioned to people today, but I would just sit and read the opinion. I mean, just read every page and make little notes and little checkmarks on it. Before I reached a conclusion as to how I would package it, I kept very close track of everything.

 The person who had the New York Times beat before I did — a guy named Warren Weaver — kept charts of his own devising. These had every case, every vote, and little notations about the case and so on. You could look at these these charts and, if you knew how to translate the chicken scratches, see patterns. I modified those a bit to my own taste, but I started doing it right away. And I still do it. I keep the same charts as a kind of discipline so that I know I have looked at… I won’t say “read.” These days, I don’t have to read every page of every opinion if it’s not something I’m really interested in. But I at least read enough of it so I can record the vote and the holding on my little charts. Maybe there’s no particular reason to do that, but it’s a personal self-discipline that I’ve done all these years.

Compared to when the Supreme Court was your full-time job, how closely do you follow the Court now? I’m guessing that you don’t sift through cert petitions anymore.

I don’t read cert petitions, because what people outside the building don’t have access to is the conference list, which is a list of cases that are ready to go to the justices for that week’s conference. And they’re going to announce which they’re taking and which they’re not taking. People today think they don’t need the conference list because the SCOTUSblog website will put up a post every week saying “Petitions To Watch.” And people just read those petitions that have been pre-digested by the SCOTUSblog editors, so they don’t have to do their own work. I don’t regard that as cheating — I think they’re cheating themselves by doing that.

But anyway, I don’t do that. I do read all the blogs about the Supreme Court, and I keep track about what’s going on there. I read transcripts of arguments and briefs in cases that interest me, and obviously the opinions. It’s not my day job — I teach full-time. I don’t have the luxury of spending my full time pondering the Supreme Court. But it does take a chunk of my time, and I teach this material. So I am highly incentivized to keep up with it.

What are some common mistakes that a new Supreme Court reporter might make?

Well, I think a couple things come to mind. One is not to pay enough attention to the cert process, to the docket-setting function of the Court — what cases they’re granting, what cases they’re not. That’s the Court in action, setting the country’s legal agenda, and you want to have some understanding as to why they might have taken this case. They don’t tell you why — they just say “granted.” I think a lot of people, not only new reporters but more experienced ones, are of course heavily weighted towards the cases that are actually decided. But I think you need to understand the intake process in order to put the decisions in some kind of context.

And then another mistake — well, something that’s not to my taste — is when reporters write stories about a decision with no center of gravity. It simply quotes various stakeholders as saying, you know, “On the one hand, this is good,” and “On the other, hand this is bad.” “This is important,” and “No, it’s not really important.” And so readers are left scratching their heads. Okay, a lot of people are quoted, but who are these people and what am I supposed to think? So I don’t think it’s the reporter’s job to to tell readers what to think, but to empower the readers to think for themselves. To give them the information they need, not just a bunch of quotes about “on the one hand” and “on the other hand.” The reporter has to find her own center of gravity in the case. This decision was important. Here’s why, here are the implications, here’s where it comes from, and here’s what the next case is likely to be. All that kind of stuff in the reporter’s own voice, authoritatively, so that readers can understand it. If you don’t feel authoritative about that particular case, then say it’s the unclear what the implications are. We don’t know what the next case is. Just be honest with the reader, and I think it’s a lot better than putting up a smokescreen of a bunch of quotes from other people.

How long did it take you to develop an authoritative voice?

I think I caught on pretty quickly, because I was not completely inexperienced when I took the job. I mean, I was the bureau chief for the last two of the four years when I covered the Albany legislature. I did a fair amount of high-profile, tight-deadline, analytical writing, where I thought it was my job to tell the readers, “Here’s what happened and here’s why you should care about it.” Not “here’s why you should think it’s terrible.” So I think for people that read my Supreme Court coverage side-by-side with other good Supreme Court coverage, one thing that would jump out at them is the absence of quotes in my stories.

How often did you interact with the justices outside the courtroom?

Very little. I mean, random bumping into them at functions or something like that. Basically not, I would say.

This is kind of a funky question: Which justice that you’ve covered would make the best Supreme Court reporter?

Oh, I think Ruth Ginsburg. She’s a good, clean writer, she’s very attentive to detail — she’s very careful with words — and she would do her homework.  

You’ve seen a lot of oral arguments over the years. Are there any advocates who’ve especially impressed you, and what are they doing differently?

One who really was very good, and still is, is Paul Clement. He was the Solicitor General in the second Bush administration, and he was a very skilled oral advocate. If you’re the petitioner, you can save time for rebuttal after the other side goes. He made the best use of the rebuttal time, which is just three or four minutes out of the half hour that you’re allotted. He would have a way of wrapping it up in his closing minutes at just the point where it should have wrapped up. I would analogize it in my mind to — if you know figure skating — landing a triple axel at the minute your music ends. Synchronizing it perfectly.

I also thought Seth Waxman was very good. He had a way of interacting with the justices on the bench that was kind of informal and conversational. He was certainly not disrespectful, not breezy, but so unstuffy. You could tell they respected him and appreciated being able to get answers without a lot of jargon or posing. It was very conversational, and I thought that was a skill that not everybody has.

 I’ve heard that the real purpose of oral argument is for the justices to persuade each other. Do you think that’s true?

Yeah, I think it is true. It’s the first time, in the life of a case, when all nine of them are focused on exactly the same thing. It’s very important where they can bounce ideas off each other by asking the question, and then seeing if the lawyer’s response generates some kind of response from the justice on the other side of the bench. It is important for that.

If you could be a fly on the wall during any of the justices’ conferences — say, when they were discussing Bush v. Gore or Obergefell — which would you choose?

I think NFIB, the first Obamacare case — the one where surprisingly the Chief Justice ended up upholding Obamacare. I would love to know what the process was there, because I don’t think it started out that way. That would’ve been a very interesting conference to eavesdrop on.

Chief Justice Roberts tries very hard to preserve the Court’s image, like when he joined the liberals to uphold Obamacare and when he mentioned the “intelligent man on the street” in Gill v. Whitford. Do you see this as a principled way of protecting the institution, an unprincipled way of interpreting cases, or a little bit of both?

I wouldn’t throw the word “principled” or “unprincipled” into it. As Chief Justice, he’s a kind of guardian of the Court’s public image, and I think that’s very traditional, very typical. And so, to me, it doesn’t sit on the kind of principled/unprincipled dichotomy that your question suggests.  

If you could have had any other beat — Congress, the White House, national security, etc. — what would it be and why?

Well, I did cover Congress for a few years, actually. I found it totally fascinating and engaging. Personally, it was pretty tough because I had a new baby at home. So you’re never sure when you walk into the Capitol when you’re going to walk out, and that was hard. I gave that up after about two years. Just to be clear on this trajectory — not that it matters — I covered the Court for seven years, and then I decided to have a baby. I figured, “seven years is probably enough, and then I can come back and do something else.” There was somebody else in the office who wanted the Supreme Court beat and was highly qualified. He took the Court beat, and I said that I’d like to cover Congress.  

And then, this other guy — his name was Stuart Taylor — decided to leave the Court beat. He didn’t actually like it. And so they asked me to take it back, which I did. It was a little bit of a fortuity that I ended up doing it for thirty years, because had Stuart stayed and liked it, seven years would have been the time when I did it. Life is full of contingencies and unexpected turns in the road. I tell my daughter and my students, “You can’t plan everything out.” You just don’t know how things are going to happen. You have to make yourself available and be open to opportunities, and that’s what happened in my case.

Do you think you would’ve liked covering the Court now, where things are more fast-paced and reliant on technology?

No, I would’ve been quite unhappy. I left at just the right time for me. It was perfect timing, so I loved it when I did it and I’m happy not to be doing it.  

Both you and your husband have made your careers in the law. Did you encourage your daughter to pursue a legal career, and if not, why?

I did not, because I don’t actually believe that parents should try to…  What I always told her was simply, find your passion. You’ll be the luckiest person in the world if you find something to do that makes you want to get out of bed every morning and do it. No matter what it is. She was very much into the visual arts, and her passion was film. Now she’s in Hollywood writing and directing movies. She got elected at age 29 to the Motion Picture Academy, and she’s living her dream. I’m thrilled for her and deeply proud of her. I never told her what to do — I just told her we would be there for her no matter what it turned out to be.

I saw in my own extended family — not my nuclear family — that when parents tried to push their children into something, it doesn’t end well. It really doesn’t. And there’s no point in doing that. I kind of had negative examples around me, so I decided I was not going to be a parent like that.

What are some of your interests and hobbies that have nothing to do with the law?

My husband and I go to a lot of theatre. We travel a lot. I guess in the past year, I’ve had four trips out of the country. And I kind of follow horse racing, which is my favorite sport. Stuff like that.

How often do you experiment by writing in different genres, like fiction or poetry?
Oh, I tried it in high school. Poetry as well. It never struck me that that’s where my talents lay, so I didn’t really go there. I was just more drawn to writing nonfiction or, I guess what today you would call long-form nonfiction.

Do you like John McPhee?

Yes, I do.  

I love him.

When he was writing those long pieces in the New Yorker, I just gobbled those up. Yes, absolutely.  

I really liked “A Sense of Where You Are,” the one about Bill Bradley.

Oh, yes. My favorite is — if you haven’t encountered it, I recommend it — “Coming Into the Country.” It’s about Alaska, and the strange motivation of people who decide they’re going to spend the rest of their lives in what’s left of the wild frontier. I found that very fascinating.

Thirteen years ago, you wrote your first book: “Becoming Justice Blackmun.” Writing is already difficult, and it seems like writing a book for the first time is especially difficult. What was your experience like?

Oh, it was an amazing experience because I only had three months to do it in. I really just had the summer, once the Court finished, until the Court came back. So I spent all my weekdays in the Library of Congress going through these papers and taking notes. During the weekends, I wrote all day. It was kind of an out-of-body experience. It’s one of these things you remember as being sort of in a trance. I had a wonderful editor, Paul Golob, and he totally got the project. It was actually his idea. So there was someone on the other end of the phone who was helpful, because I didn’t know anything about writing a book. In retrospect, it was a great experience.

Why was Justice Blackmun such a compelling subject for you?

It was bit of a fortuity, like so much in life. Before he died, he gave his papers to the Library of Congress with the stipulation that they be closed for five years after his death and then totally opened to the public. He lived for five years after he retired, so the papers came out ten years after he left the bench. And in that time, no one else had retired. So his papers were a window on the current Supreme Court — all the same people — and they were very extensive notes, memos, and copies of everything. It was a window  that had very, very rarely if ever been available to the public. And that’s what made it compelling. It wasn’t necessarily him as a person, but in having to craft a narrative out of this huge array of stuff, I needed to find a through-line. A story. And so the story became his own evolution on the bench, as suggested by the title: “Becoming Justice Blackmun.” He became something quite different from what he had been at the beginning. Shaping the material into a narrative was the challenge of it and also the reward of doing it.  

What was the most surprising thing you learned about him?

Oh, I guess maybe how insecure he was. Also, his stance towards the death penalty was very interesting. He had papers from the earlier court that he had been on, the Eighth Circuit, where he obviously had very strong doubts about the death penalty. But yet, when he came onto the Supreme Court, he voted to uphold it. He thought that his role as a judge didn’t allow him to impose his personal policy preference on the Constitution. By the end of his career, he came to the opposite conclusion; he decided the death penalty was unconstitutional. So that was an interesting story. Everybody focuses on Blackmun and abortion — which, of course, is interesting too. But the death penalty story I thought was particularly compelling.

 In the beginning of the book, you said that Justice Blackmun left a “great gift” by releasing his papers early. Do you think justices should be allowed to destroy their papers?

I think it’s a shame when they do. But I’m not sure there should be a rule about it. The convention is that they decide what they’re going to do, and most of them do keep their papers. I think very few of them keep what Blackmun kept — every little thing, every little note, everything. Most people don’t do that. A little OCD, you might say.  

He kept an astonishing amount of material, including a lot of journals from when he was younger. I think you said it was the mark of an ambitious person…

You know, I wouldn’t say it was ambition. In fact, I’d be surprised if that’s what I wrote. I think he wanted to persuade himself that he mattered. That his life mattered. He was fundamentally quite insecure. By writing things down and saving them, it was a statement — “I’m here. Here’s my stuff.” It was more kind of the internal psychology like that then, “I’m a figure of history, and I’m keeping my papers.”

Why do you think he chose to release them so early?

I think he had no expectation that within that time period the Court would not undergo any further changes. He probably just thought that was a reasonable window of time. That length of time without a change at the Court was the longest length of time since, I believe, the 1820s. So it was not really foreseeable that it would turn out that way.

 You said that you were sort of in a trance writing that book. In the books you’ve written since then, have you had similar out-of-body experiences?

No, I don’t go through a trance because I haven’t had that kind of time pressure. The book I did with my colleague, Michael Graetz, about the Burger Court, we spent probably a year and a half on it. So no, I was not in a trance for a year and a half.  

What is it about the time pressure that’s so wonderful for you?
I was the first person to go through these papers, and I was the one who was putting the stamp of history on this material. You know, it was just kind of exciting.

Other interviews conducted by Anna Salvatore: Lawfare editor-in-chief Benjamin Wittes, former Solicitor General Neal Katyal, New York Times Supreme Court correspondent Adam Liptak, SCOTUS court artist Art Lien, UCI Law Professor Leah Litman, IU Maurer Law Professor Ian Samuel, Fix the Court Director Gabe Roth, and litigant extraordinaire Fane Lozman. 

 

 

Wednesday, August 8, 2018

by Anna Salvatore

Supreme Court conferences are notoriously secretive. With this in mind, I really enjoyed Chapter Three of Linda Greenhouse’s “Becoming Justice Blackmun.” Drawing from a treasure trove of Blackmun’s papers, which were released only five years after his death, she describes his thoughts on conference and his idiosyncratic way of recording votes. A brief excerpt:

“As the junior justice, [Blackmun] was the official doorkeeper, responsible for getting up from his seat to deal with the not infrequent interruptions as law clerks or other employees came to deliver messages. ‘Sometimes you’re in the middle of expounding your views when you have to get up and answer that door, and your views evaporate and are lost in the confusion,’ Blackmun would recall.

As the discussion moved down the line, Blackmun took notes on a sheet of paper divided into four squares on the front and another four on the back, one for each of his colleagues. He would note his own vote inside a square belonging to the justice whose position he agreed with. He referred to the justices by their initials and to himself as X.”

Justice Blackmun surely would have sympathized with Justice Breyer. Since Breyer had the misfortune of sitting on an unusually stable Court, he was the junior justice (and doorkeeper) for eleven years.

An irrelevant side-note: Did you know that Blackmun was close childhood friends with Warren Burger? They lived in Dayton’s Bluff, a suburb of St. Paul, and met each other in kindergarten. Over the next few years, they double-dated in high school and frequently embarked on fishing trips. When Burger married Elvera Stromberg in 1933, Blackmun was his best man. The odds seem pretty crazy that two future justices befriended each other in a working-class Minnesota town.

The Library of Congress has compiled the highlights of Blackmun’s papers. 

Here are the full papers. 

Sunday, August 5, 2018

Catholicism and Capital Punishment

by Jackson Foster

With Brett Kavanaugh’s nomination, the Supreme Court will shift rightward on abortion, religious freedom, and the “weaponized First Amendment.” But there’s one hot-button issue where the five conservative justices may disagree with the President’s base: the death penalty. At the moment, 72% of Republicans and 71% of white evangelical Protestants favor capital punishment. Yet these numbers poorly reflect the division within the Catholic Church (and the country) on this issue.

On Thursday, Pope Francis announced a change in the catechism of the Catholic Church. He said that capital punishment is wrong in all cases, and the church will work “with determination” to abolish it.

This may significantly change the Court’s approach to the death penalty. It directly implicates the five Catholic justices, who must now be comfortable with directly disregarding their Church’s teachings should they uphold the constitutionality of capital punishment.

What does this mean in the context of recusals? Rulings? Who will lead a renewed charge for the abolishment of capital punishment? And what case might catalyze it? Finally, is this an instance— like Obergefell v. Hodges— in which the Court chooses to preempt an already shifting public opinion?

Recusals are exceedingly unlikely, but it’s not unreasonable to entertain the notion.  Justices Breyer and Ginsburg have already ruled on death penalty cases — notably, Atkins v. Virginia — despite every Jewish denomination calling for its abolishment. Nobody called for their recusals. Similarly, there are no calls for Justices Kagan and Gorsuch to recuse on matters of capital punishment although their respective religions— conservative Judaism and Episcopalian Christian— call for its abolishment as well.

However, the distinction between the Catholic justices and their counterparts is perfectly legitimate. To Catholics, the Catechism of the Catholic Church is God’s behavioural directive to his followers, and the Pope’s word carries the authority of Christ himself. He is known as the “Vicar of the Christ,” meaning he is Christ’s representative on Earth. This means that a doctrinal change of the Catechism, as articulated by the Pope, carries far more sway to Catholics than the directorial bodies of the Episcopal Church or Conservative Judaism would to their adherents. Notable Catholic jurists like Amy Coney Barrett have already argued that Catholics should recuse in certain death penalty cases.

The Court’s abortion jurisprudence shows why we will see more than four justices ruling on the next capital punishment case. In Planned Parenthood v. Casey, Justices Kennedy, Scalia, and Thomas all ruled on a matter that the Catechism addressed strongly:

“Since the first century the Church has affirmed the moral evil of every procured abortion. This teaching has not changed and remains unchangeable. Direct abortion, that is to say, abortion willed either as an end or a means, is gravely contrary to the moral law… Formal cooperation in an abortion constitutes a grave offense. The Church attaches the canonical penalty of excommunication to this crime against human life.”

Justice Kennedy, who was greatly troubled by the case, ruled for Planned Parenthood and directly contradicted his sincerely held beliefs.

Justices are appointed to rule on matters that quite often tease personal bias and sincere beliefs, but they are expected to hold the Constitution above these sentiments. The justices regard their capacity for impartiality highly enough to at least hear the case, regardless of how their presuppositions might affect their rulings.

As for rulings in capital cases, I think that they will change greatly, and that this great change will come quicker than one might think.

Its catalyst? Stephen Breyer. His weapon? Madison v. Alabama.

Stephen Breyer has long been calling for a “full briefing” on the constitutionality of the death penalty. In his dissent in Glossip v. Gross, he discussed the three reasons by which the Eighth Amendment categorically bars capital punishment. One, there is a notable discrepancy between those who are executed and those who are actually guilty of the crime for which they are punished, and this phenomenon occurs with a greater frequency than that of non-capital cases. Two, the death penalty is arbitrarily imposed based on factors such as race, gender, and prosecutorial discretion, and it doesn’t adequately differentiate the most vile criminals. Three, “unconscionably long delays… undermine the death penalty’s penological purpose” of retribution and deterrence. In addition to his constitutional argument for the “cruelty” of the death penalty, Breyer goes to great lengths to highlight how truly “unusual” it is. The vast majority of states, along with the United Nations, have abolished capital punishment.

Onto Madison v. Alabama— Breyer’s weapon of choice. Madison is an incredibly unique capital case in that the tradition penological argument, that the death penalty is designed as retribution for and deterrence against particularly heinous behaviour, is entirely irrelevant. The petitioner, Madison, suffered numerous strokes in prison that rendered him unable to remember his crime. Breyer will undoubtedly use this case to rail against the death penalty, but this time, he may have the Court’s backing. Kagan, Sotomayor, and Ginsburg will all assuredly join rank, making a sure four. Alito, Thomas, and Gorsuch will hardly be influenced by his papacy (or by anything, really) on this matter. But Kavanaugh, and Roberts especially, will be troubled greatly by the movements of the Church and the country.

Often, as in Obergefell, the Court recognizes shifting public opinion and brings it to its final iteration: unanimity. This may be the case for capital punishment. Consider that the death penalty is less popular than ever before, and that the United States government agrees with the dictatorial governments of Iran, Iraq, and Afghanistan by preserving it.

Imagine a 5-4 majority opinion in Madison authored by the Chief, who is ever concerned about the Court’s image and the will of people, in which the Court declares capital punishment unconstitutional when it serves no penological interests. That would be a severe blow to the death penalty’s constitutional muster.

Actually, don’t imagine it; expect it. And congratulate Stephen Breyer.

Thursday, August 2, 2018

Blockbuster Preview: Gamble v. United States

by Anna Salvatore

In 2008, Terance Gamble was convicted of second-degree robbery in Mobile, Alabama. Since that’s a felony, both federal and state laws prevented him from ever owning a gun. Fast-forward seven years. A police officer pulled Gamble over for a broken taillight, and then he smelled marijuana emanating from the car. The officer searched the driver’s area, discovering two baggies of marijuana, a digital scale, and a 9mm handgun. Alabama prosecuted Gamble for illegally owning a firearm, and he served one year in prison.

I mentioned that both federal and state laws barred convicted felons from owning guns. Indeed, after Gamble served time for violating Alabama’s law, the federal government charged him for the same crime.

Gamble asked the U.S. District Court to dismiss the indictment, arguing that it violated his Fifth Amendment Double Jeopardy rights. It didn’t matter whether the District Court was truly persuaded by his argument — like every lower court, it must follow the Supreme Court’s precedent. So it said that Gamble’s indictment was acceptable under the dual-sovereignty exception, which allows you to be prosecuted for the same offense by different sovereigns. “Unless and until the Supreme Court overturns [this exception], Gamble’s Double Jeopardy claim must fail,” wrote the court.

The Eleventh Circuit issued a per curiam opinion affirming the District Court’s decision. Gamble threw a Hail Mary to the Supreme Court, and his petition was granted on June 28th, 2018. If he loses, he’ll stay imprisoned until February 2020.

But there’s a reasonable chance that Gamble will win. At least four justices agreed to hear his case, meaning that they’re inclined to revisit — and perhaps overturn — this doctrine.

Gamble argues that the dual-sovereigns exception is inconsistent with the Constitution’s original meaning and plain text. He cites English common law, which largely inspired the American legal system. “This universal maxim of the common law of England,” wrote 18th century jurist William Blackstone, “that no man is to be brought into jeopardy of his life, more than once, for the same offence.”

His cert petition also examines the purpose of Double Jeopardy. According to United States v. Jorn, it’s meant to give the defendant finality. The state should not be allowed to “make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense, and ordeal and compelling him to live in a continuing state of anxiety and insecurity” (Green v. US). If double punishment is so feared, he says, citing Butkus, “it hurts no less for two sovereigns to inflict it than for one.”

Finally, he claims that the exception’s “doctrinal and factual underpinnings have eroded.” Remember that the Double Jeopardy clause used to apply only to the federal government. There was no reason to bar duplicative state and federal convictions, as the Clause was “exclusively a restriction upon federal power.” This changed in 1969, when the Court held in Benton v. Maryland that it also applied to the states. Gamble, and constitutional law scholars like Akhil Reed Amar, think the law is due for an update.

The U.S. government isn’t as receptive to these ideas. In its opposition brief, it says that the Supreme Court has been applying the dual-sovereignty exception for more than 150 years and “has already considered and rejected many of petitioner’s arguments.” But that’s just an appeal to precedent; it doesn’t contain any real counterpoints. In my view, the government’s main substantive point is that Gamble was not convicted of the same offense. A state law and a federal law may have similar elements, it claims, but those two statutes cannot and should not be treated as one.

Then the government starts worrying about the implications for federalism. Citing Abbate v. United States, it warns that “undesirable consequences will follow” if one sovereign’s prosecution automatically bars the other. If states have free reign, the federal government’s law enforcement will be hindered — and if the feds take over, states will lose their “historical police powers.” Closing out the brief, it fires some shots at Gamble’s citation of Blackstone. Apparently the Court has called that citation “irrelevant” due to the distinctive differences between American and English law.

All in all, Gamble v. United States is a really big case — a blockbuster! I hope this preview helps you understand the key arguments on both sides.