SCOTUS Interruptus; June 4, 2007

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Welcome to the second installment of Subrosa’s SCOTUS Interruptus, a quasi-weekly column dedicated to keeping the SuicideGirls.com community abreast (hey-o!) of the Court’s important decisions, argument schedule and whatever else is relevant for that particular week. As always, a record of the opinions published by the Court can be found on their website here.


Justice Ginsberg is Every Woman. It’s All in Her.

Ruth Bader Ginsberg is a very distinguished jurist who has made a long history of staunchly left-leaning votes mixed in with a genteel aura. Always polite, never combative even with her polar opposites on the bench. Heck, I’ve even heard tales about subtle flirtations that go on between her and “Nino” Scalia. She’s a powerful arbiter of our rights and a dogged defender of personal freedoms, but she’s also a lady, dammit.

Until this term, that is. Girlfriend’s on a rampage, yo.
Whatever else may be said about the Supreme Court’s current term, which ends in about a month, it will be remembered as the time when Justice Ruth Bader Ginsburg found her voice, and used it.

Both in the abortion case the court decided last month and the discrimination ruling it issued on Tuesday, Justice Ginsburg read forceful dissents from the bench. In each case, she spoke not only for herself but also for three other dissenting colleagues, Justices John Paul Stevens, David H. Souter and Stephen G. Breyer.

But the words were clearly her own, and they were both passionate and pointed. In the abortion case, in which the court upheld the federal Partial-Birth Abortion Ban Act seven years after having struck down a similar state law, she noted that the court was now “differently composed than it was when we last considered a restrictive abortion regulation.” In the latest case, she summoned Congress to overturn what she called the majority’s “parsimonious reading” of the federal law against discrimination in the workplace.

To read a dissent aloud is an act of theater that justices use to convey their view that the majority is not only mistaken, but profoundly wrong. It happens just a handful of times a year… The oral dissent has not been, until now, Justice Ginsburg’s style. She has gone years without delivering one, and never before in her 15 years on the court has she delivered two in one term.
Some say can thank the sterling attitudes of our two newest Justices for this little burst of Girl Power.
Some might say her dissents are an expression of sour grapes over being in the minority more often than not. But there may be strategic judgment, as well as frustration, behind Justice Ginsburg’s new style. She may have concluded that quiet collegiality has proved futile and that her new colleagues, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., are not open to persuasion on the issues that matter most to her.

Justice Alito, of course, took the place of Justice Sandra Day O’Connor, with whom Justice Ginsburg formed a deep emotional bond, although they differed on a variety of issues. And Chief Justice Roberts succeeded Chief Justice William H. Rehnquist, with whom Justice Ginsburg often disagreed but maintained a relationship that was at times surprisingly productive.

For example, in 1996, over Justice Scalia’s vigorous dissent, the chief justice gave Justice Ginsburg his vote in a decision holding that the Virginia Military Institute’s men-only admissions policy was unconstitutional. In 2003, they made common cause in a case that strengthened the Family and Medical Leave Act. When Justice Ginsburg criticized a Rehnquist opinion, she did so gently; today’s adversary could be tomorrow’s ally.

If there has been any such meeting of the minds between Justice Ginsburg and her new colleagues, it has not been evident. She may have concluded that her side’s interests are better served by appealing not to the court’s majority but to the public. “She’s sounding an alarm and wants people to take notice,” said Debra L. Ness, president of the National Partnership for Women and Families, an advocacy group that focuses on the workplace.
Good. Give ‘em Hell, sister.


Case of the Living Dead?
Claiborne v. United States

Mario Claiborne was a small-time career crack dealer who was busted selling rocks to an undercover agent. Federal sentencing guidelines provided a range of 36 to 47 months in prison. The trial judge looked at the facts and the attenuating circumstances and gave him 15 months. US federal prosecutors appealed the sentence, arguing that the judge should not have the discretion to go beneath federal guidelines in determining the length of a sentence. The Supreme Court granted certiorari. Claiborne’s case was briefed and argued in front of the Court in February of this year.

Then while awaiting the Court’s opinion, Claiborne died. Bad news for him, but also bad news for his attorneys. Normally, when a criminal defendant dies while his case is on appeal, the appeal is dismissed for constitutional reasons and reasons of judicial economy. In this case, it could leave a lot of folks with a lot of unanswered questions.
Michael Dwyer, assistant federal public defender in the Eastern District of Missouri, on Friday filed a motion asking the Court either to go ahead and decide the Claiborne case as presented, or to grant expedited review of another case from Dwyer's office involving the same Guidelines question. The alternative case suggested is Beal v. U.S. (docket 06-8498) -- like Claiborne, from the Eighth Circuit Court. The Supreme Court considered the Beal case at a Conference in February, but took no action on it, apparently intending to hold it until after it had decided Claiborne. Mario Claiborne's death in a shooting incident in St. Louis on Wednesday has raised the question of what the Court would do with the case, and the issue.

Dwyer contended in his motion that "the close similarity of the facts and decisions of the districts courts and appellate panels in Claiborne and Beal makes the latter case an efficient and effective vehicle to resolve the urgent issues presented in Claiborne. Because of his representation of Claiborne, the Federal Public Defender for the Eastern District of Missouri could expeditiously prepare Beal for briefing and argument."
Most commentators seem to think that Dwyer’s motion to convince the court to decide Claiborne has little chance of success, but they might buy his argument to substitute another case in its stead. Dwyer’s motion can be found here and the Solicitor General’s response can be found here.


Smile, Justice Souter! You’re On Candid Camera!

If you’re like me, you’ve always wanted to be inside the Supreme Court while a case was being argued. Maybe I’m over-romanticizing it, but it would seem to me that there could be no more dramatic setting in American government than one where rulings that will shape our nation’s laws for years to come. It would be riveting. Like Law and Order or Boston Legal, but for real.

I dunno. Maybe I’m just a law geek, but I know I’m not the only one who feels this way. Senator Arlen Specter agrees with me enough that he’s introduced a bill that would open the Supreme Court’s oral arguments to television cameras. The bill is receiving widespread support by watchdog groups and government accountability organizations. Unfortunately, the Justices themselves are not such big fans of the idea.
By way of background, the current Justices have widely opposed televising their public proceedings over the years, perhaps none more famously than David H. Souter, who testified before Congress that any cameras entering the Court would have to “roll over my dead body.”…In general, opponents offer four main arguments against televised coverage. First, they fear the media’s obsession with sound bites will lead to snippets from oral argument being taken out of context and unreflective of the true issues before the court. Second, opponents say the presence of cameras could lead to grandstanding by the advocates or even the Justices themselves. Third, opponents say televising oral arguments would demean the legal problems – if not jeopardize the due process rights – of parties before the court. Fourth, they say increased visual exposure could jeopardize the Justices’ safety.
Not mentioned above is a fifth reason why they don’t like this idea: Justice Scalia is worried that the camera will add ten pounds.

Interestingly enough, the problem with the Justices’ arguments is that there doesn’t seem to be enough actual law to them. Until now, perhaps.
The blogosphere has been treated in recent days to a group of law professors of varying ideological preferences pronouncing it within Congress' constitutional powers (some even said "well within") to compel the Supreme Court to allow television coverage of oral arguments. Despite diligent searching, none of those academics has located a precedent that settles the matter, although a few cases have been mentioned suggestively. There is a brand-new lower court precedent, though, that makes the point that inter-branch modesty remains a virtue -- that is, there is a public good in avoiding meddling in another branch's inner workings.

The ruling came in Public Citizen v. U.S. District Court, released on Tuesday by the D.C. Circuit Court in Washington (docket 06-5232). It has to do with the avoidance of judicial meddline with legislative prerogative, and thus is not directly on point in the current debate about Congress' power to tell the Justices how to run their public sessions. But there is a constitutional principle here, and that may well have some relevance.
The Circuit court opinion in Public Citizen can be found here.

Subrosa would like thank KUNGFOO for the column-name suggestion.

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