The following post is our first by Professor Lisa McElroy, of Drexel University’s law school. Lisa has agreed to write Plain English posts for us on occasion that will recap the blog’s recent activity in terms understandable by non-lawyers.
It has been quiet at the Supreme Court this and last week, because the Court is on its Winter break. Nothing official will be happening at the Court until January 8, when the Justices will meet for their private “Conference†to discuss pending petitions. When we next hear from the Court will depend on its plans for those petitions. If they intend to hear argument in those cases this Term, they may issue an Orders List that afternoon listing the granted cases. Otherwise, they will announce the Orders on Monday the 11th.
One interesting detail about Conference: The most junior justice sits nearest the exit and is responsible for answering the door, sending messages out, and so on. Justice Breyer held this unenvied post for longer than almost any other Justice in history – over eleven years. (He missed setting the record by only twenty-nine days but was saved by Justice Alito’s appointment).
Usually, we do not hear much about the Justices when they are not at the Court. In fact, most people usually do not even recognize them when they pass the Justices on the streets – even if those streets are in the vicinity of the Court. Chief Justice Roberts loves to tell the story of how he took many walks with then-Associate Justice Rehnquist, for whom he clerked. Rehnquist liked to process ideas while walking, so he often asked the clerks out for a stroll. Tourists, says Roberts, would often ask passers-by to take their photo in front of the Court – and guess which passer-by fielded many of these requests? The Chief says that dozens of family scrapbooks contain photos taken by none other than William Rehnquist.
But Sonia Sotomayor is pretty recognizable these days. Justice Sotomayor just visited Puerto Rico, where she saw her image everywhere, especially on souvenirs. She has expressed some concern about the commercialization of her image.
On Monday, Matt wrote about a study finding a decline in death sentences. Why have fewer people been sentenced to death? Well, in part because in recent years, the Court has said that it would be unconstitutional to sentence people to death when they are mentally retarded or committed the crimes at issue when they were under eighteen. See Roper v. Simmons (2005) and Atkins v. Virginia (2002).
Matt also wrote about an article explaining the significance of a case to be argued in January, Briscoe v. Virginia. In Briscoe, the defendant argues that the Constitution requires the prosecution in criminal drug cases to call lab analysts as witnesses. The case is also notable because it marks one of the very few times that we see the Court potentially reconsidering one of its own decisions in a very short time. How short? Well, only four days after the Court decided Melendez-Diaz v. Massachusetts, holding that the prosecution must call the author/analyst of a lab drug analysis report, it agreed to decide in Briscoe whether it’s OK for the defense to be required to call the witness, an issue that many thought Melendez-Diaz had already decided. Why? Well, some think it is because Justice Souter was in the majority in Melendez-Diaz but Justice Sotomayor would vote the other way. We will see by the end of the Term, sometime in June, but we may get an indication of which way she is leaning at oral arguments on January 11.
Briscoe is a great opportunity to explain the concept of stare decisis, a Latin term that means “let the decision stand.â€Â Stare decisis is a bedrock of the rule of law. It ensures consistency, predictability, and fairness in the law, as all cases with the same facts will be decided the same way. The defendant in Briscoe will argue that the Court should follow Melendez-Diaz on the basis of stare decisis.
On Tuesday, Erin and Lyle wrote about Michigan’s filing of an original action against Illinois. An original action is one that begins in the Supreme Court instead of in some lower state or federal court. There are not many of these – the Constitution limits these cases to ones involving states or foreign dignitaries. Michigan wants Illinois to close shipping locks to keep carp out of Lake Michigan. The Justices will have to decide whether to accept Michigan’s complaint, a document outlining the state’s grievances. As Lyle explained, “Michigan is one of several upper Midwest states that have returned to the Court several times to challenge the state of Illinois’ and Chicago’s dealings with sewage problems in waterways in and around the city.  Michigan’s [first] lawsuit was in 1922.â€Â As the Court has allowed the parties to return to court on several previous occasions, it may also do so in this instance, especially because Michigan calls its case an ongoing dispute over a decree the Court previously issued.
Erin also wrote about recent speculation on law clerk employment after their work at the Court. Some are saying that clerks are going to work for organizations that reflect the ideology of their Justice. Supreme Court law clerks are living out a dream – they get to work closely with a Justice and with other really, really smart recent law graduates for a year, helping to decide some of the most difficult cases in the country. The job is heavily sought after not only because of the cool work the clerks get to do, but also because of the almost limitless job opportunities post-clerkship. Law clerks often have their pick of working in academia, at big law firms, at think tanks, and so on.
Also on Tuesday, Lyle wrote about the lower courts’ difficulty with implementing the Court’s 2007 decision in Boumediene v. Bush, a case involving prisoners at Guantanamo Bay. The Court held that these prisoners had a constitutional right to go to court to challenge their captivity, but said that the lower federal courts would have to handle such lawsuits on a case-by-case basis. Judge Hogan of the U.S. District Court for the District of Columbia (the federal trial court for the District of Columbia) said that the trial process was incredibly hard and commented that we need a new process, or perhaps even an entirely new specialty court, to deal with these cases. He said that Congress and the executive branch had not provided enough guidance in terms of rules and procedures for handling these cases, leading to different outcomes in similar cases. Also of concern, said Judge Hogan, was the very long time frame for getting these cases through the courts, a delay that can be unfair to prisoners, many of whom have been in detention for a very long time without the opportunity to assert their rights in court.
On Wednesday, Amy commented on an unusual situation in Rhine v. Deaton, a case involving a  “challenge to a Texas statute that provides court-appointed counsel to parents facing the termination of their parental rights in proceedings initiated by the state, but not in proceedings initiated by private parties. “ In other words, the law says that parents get a lawyer if the state is trying to take away their kids, but not if private individuals are trying to do so. What’s unusual? Well, the Court has asked the Texas Solicitor General – the lawyer who represents the state’s interests before the Supreme Court – to file a brief explaining what the state thinks about how the case should be resolved and why. Although the Court has occasionally asked state attorneys general to file such briefs (and even then, it has not done that for a long time), it has never before asked a state solicitor general to do so.  This may not be a big deal, but it may be that the Court is acknowledging the important role of the state solicitors general at the Supreme Court.
Happy New Year to all!
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