Tag Archives: supreme court

William Blake in the New York Times

Supreme Court’s ‘Long Conference’: Where Appeals ‘Go to Die’

By Adam Liptak

WASHINGTON — Four weeks from now, on Sept. 28, the Supreme Court justices will gather in private for an annual ritual called the “long conference.” They will consider the roughly 2,000 petitions to hear appeals that have piled up over the summer. And they will reject almost every one.

“The summer list is where petitions go to die,” said Gregory G. Garre, a solicitor general in the George W. Bush administration who is now at Latham & Watkins.

The odds of persuading the Supreme Court to hear a case are always long. At the conferences held on many Fridays during the term, which lasts from October to June, the justices consider perhaps 200 petitions at a time and grant about 1.1 percent of them. At the long conference, the rate is roughly half of that, around 0.6 percent.

That difference is significant. “For the majority of petitioners, the most important moment is trying to get in the door,” said Jeffrey L. Fisher, a law professor at Stanford who argues frequently before the court. “Once you’re in, the statistics say, you have a two-thirds chance of winning. So the difference between a grant and a deny is truly the difference for a handful of cases on the summer list between winning and losing.”

Lawyers and scholars have various theories about why the long conference is so inhospitable. One is that the justices, who decide about 70 cases a year, do not want to grant too many petitions right away for fear of having to turn down better ones later on.

“It’s like the beginning of a long buffet,” Professor Fisher said. “You don’t want to fill your plate with too much stuff, lest you not have room for some delicious items at the end of the line.”

A new study says law clerks, rather than the justices, are to blame. New law clerks arrive over the summer, four for each justice, and they appear to be particularly reluctant to recommend granting petitions soon after they start.

That matters, because law clerks play a significant role in reviewing the appeals, which are formally called petitions for certiorari. Eight of the nine justices — the exception is Justice Samuel A. Alito Jr. — have assigned their law clerks to a shared “cert. pool.” A single clerk makes a recommendation to all of the participating justices about which cases to hear.

Justice John Paul Stevens, who retired in 2010, never joined the pool. He said it had caused “the lessening of the docket.”

“You stick your neck out as a clerk when you recommend to grant a case,” he told the journalist Tony Mauro, then with USA Today, in 1998. “The risk-averse thing to do is to recommend not to take a case.”

That is true all year long. But it is even more true, the new study found, when clerks are just getting started. “Compared to all other times in their tenure, clerks are significantly less likely to recommend a grant at the long conference,” the study concluded.

The study was prepared by William D. Blake, a political scientist at the University of Maryland, Baltimore County; Hans J. Hacker, a political scientist at Arkansas State University; and Shon R. Hopwood, a teaching fellow at Georgetown University Law Center. It analyzed clerks’ “pool memos” from 1987 to 1994, which were released as part of the papers of Justice Harry A. Blackmun.

The study found that clerks considering similar petitions were 36 percent less likely to recommend granting them during their first months on the job. The justices seemed to sense this, overriding denial recommendations at the long conference at a slightly higher rate than at other times, but not enough to make up the difference.

The bottom line, the study said, is that “litigants face an arbitrary and legally irrelevant disadvantage that is empirically attributable to the clerks’ initial hesitation to recommend grants.”

Sophisticated lawyers do what they can to dodge the long conference. “Given the numbers, as counsel, you really have to try your best to avoid the summer list, though sometimes it is unavoidable,” said Mr. Garre, the Latham & Watkins lawyer. “Fortunately, as tough as the odds are, the cream can still rise to the top.”

Irving L. Gornstein, the executive director of Georgetown’s Supreme Court Institute, listed some of the ways in which lawyers can try to work the system to avoid the long conference. After a federal appeals court issues a ruling, he said, lawyers can seek a rehearing from the full appeals court to stretch things out, or go straight to the Supreme Court to hasten them. They can file petitions right away or wait for the 90-day deadline. They can seek extensions of the deadline.

Such maneuvering may only drive down the rate of granting cases at the long conference further, Professor Fisher said.

“Precisely because the summer list has become such a known quantity among the Supreme Court bar and others, my sense is that fewer serious cases end up on the list,” he said. “So it’s a bit of a self-fulfilling prophecy.”

The study proposed additional training for law clerks to encourage them, right from the start, to recommend granting more cases. But it stopped short of suggesting that the justices reconsider whether they should review so many petitions in a single conference.

A management consultant might, for instance, urge the court to add conferences during the summer. Professor Blake, one of the study’s authors, said such a recommendation would have been presumptuous.

“I don’t think we’re going to tell the justices to cut their vacations short,” Professor Blake said.

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God Save This Honorable Court

From my blog on the Huffington Post 3/25/13.

Yesterday was Palm Sunday, which marked the beginning of Holy Week for Christians. Holy Week celebrates the passion, death, and resurrection of Jesus, culminating this Sunday with Easter.

This particular Holy Week is unique in American history. Tomorrow and Wednesday, the Supreme Court hears oral argument in two gay marriage cases. Also for the first time in American history, the Supreme Court does not include any Protestant justices. This Court consists of six Catholics and three Jews.

Does the current religious makeup of the Supreme Court amount to anything more than the answer to a trivia question? The answer, according to a study I conducted, is yes – to a limited extent.

The study, recently published in Political Research Quarterly, spans every non-unanimous Supreme Court decision from 1953 to 2007 in 11 different legal issues connected to religion. On seven issues, Catholic Supreme Court justices voted differently from Protestant and Jewish justices, even when taking into account underlying differences in each justice’s ideology. Each time a religious difference existed, Catholic justices were more likely to support the position of the Catholic Church.

These legal issues include some, like equality for racial minorities, on which the Catholic Church has embraced a politically liberal position, and others, like abortion, where the Church has taken a politically conservative stance.

It is crucial to understand the context of these findings. While these religious differences in voting are not a statistical fluke, they are also not nearly as powerful in predicting the Court’s decisions as other, more traditional, variables. Thus, I seriously doubt religion is, or ever has been, a conscious consideration of any Supreme Court justice, from any religious tradition. I believe Justice Scalia when he told biographer Joan Biskupic: “I have religious views on the subject [of abortion]. But they have nothing whatsoever to do with my job.”

At the same time, Supreme Court justices are not automatons. Despite Chief Justice Roberts’ insistence to the contrary, judges are not mere umpires who call balls and strikes. The Court rules on difficult legal issues, which have profound moral and social implications. In the past the Supreme Court has ruled on whether police conduct “shocks the conscience.” It is very difficult in these sorts of cases for a judge to check his or her conscience at the courthouse door.

Over the last 50 years, Catholic membership on the Supreme Court has spanned the ideological spectrum, from Justice William Brennan on the left to Justice Clarence Thomas on the right. The middle of the current Court is occupied by Justice Anthony Kennedy, also a Catholic. From 2006-2011, the Supreme Court handed down 116 decisions on a 5-4 vote. Justice Kennedy was in the majority in 94 of those cases, or 81 percent of the time.

Political scientist Frank Colucci’s biography of Justice Kennedy stresses the connection between his judicial views on liberty and the Catholic Church’s commitment to the protection of human dignity. Justice Kennedy has written two important majority opinions in support of gay rights using dignity as a concept.

In Roemer v. Evans, Kennedy viewed a Colorado constitutional amendment that prevented gays from seeking discrimination protection as a disadvantage imposed out of “animosity” to gays. In Lawrence v. Texas, the Supreme Court struck down a state law criminalizing gay sexual conduct. Justice Kennedy began his majority opinion in Lawrence with the following observation: “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”

Justice Kennedy’s record on abortion, on the other hand, is more conservative. Biographer Colucci describes some of Kennedy’s abortion opinions as containing “paternalistic and moralistic language.” In one abortion case, Justice Kennedy wrote: “Respect for human life finds an ultimate expression in the bond of love the mother has for her child. Whether to have an abortion requires a difficult and painful moral decision…[S]ome women come to regret their choice.”

Which way will Justice Kennedy come down in these two cases? The problem for social scientists is that, while our models predict large trends in human behavior fairly well, it is much more difficult to predict the behavior of one person in only one instance. The questions Justice Kennedy asks at oral arguments this week will provide greater insight into his thoughts on these cases.

As Holy Week continues, I hope my findings will make more Americans aware of how religion shapes a judge’s worldview, in a way similar to a judge’s race, ethnicity, gender, and past life experiences.

However, I hope the next nominee to the Supreme Court is not subject to a senatorial inquisition over his or her faith. Article VI of the Constitution prohibits any religious test as a qualification for holding office in the United States, but we have often fallen short of this ideal. Past Catholic nominees to the Supreme Court have been subjected to humiliating questions about whether their first allegiance would be to the Constitution or papal edict.

America was settled by people seeking freedom to worship in accordance with their consciences, and America was founded by people seeking self-governance in accordance with the Constitution. I believe the justices of the Supreme Court have balanced these sometimes-competing principles commendably.

William D. Blake is a Ph.D. candidate in Government at the University of Texas at Austin and incoming assistant professor of Political Science at Indiana University, Indianapolis (IUPUI). He is the former press secretary of the Interfaith Alliance.

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