Last week in plain English, part I

Below, Professor Lisa McElroy of Drexel University’s law school summarizes the activity on the blog and at the Court last week in terms understandable by non-lawyers.  This post covers part of Monday; a second post will follow shortly with coverage of the rest of the week.

From staying the television broadcast of the Prop 8 trial to hearing big cases to trying an original action to handing down opinions, the Justices have been working hard.

On Monday, the Court engaged in one of its less-known and less-exercised responsibilities: to hear controversies between the states – also known as “original jurisdiction,” which we discussed in this post. On Monday, Josh Friedman explained the case in detail here.  Several southern states entered into a “compact” to dispose of their low-level radioactive waste at a facility to be located in North Carolina.  As you can imagine, most states don’t want such a facility (a classic case of NIMBY – Not In My BackYard), so the other states agreed to give North Carolina $80 million.  North Carolina later withdrew from the compact, but it kept the $80 million.  The states (led by Alabama) and the Commission decided to sue North Carolina in the Supreme Court to get the money back, as well as to force North Carolina pay $90 million more.

The Special Master appointed by the Court decided that North Carolina could be sued, but that the case would require a trial.  The Justices heard oral argument to consider those rulings.  On Thursday, Josh recapped Monday’s oral argument in the case.  SCOTUS watchers often try to discern which way the Court might be leading from the tenor of the questions, and Josh did a great job of helping us make predictions about which way the case might go.  According to Josh, it looks like the Court might be pretty skeptical about Alabama’s arguments, especially because of the contractual language that said that North Carolina could withdraw from the compact at any time.  Of course, the Chief Justice did ask Walter Dellinger where the $80 million had gone – prompting giggles from the gallery, which had also laughed appreciatively when Dellinger began his argument with a reference to his grandson’s skepticism about the case.

One incredibly interesting thing about this argument was the wealth of experience at the podium.  Last week, I explained that the “Supreme Court bar” is a term used to describe those advocates who have argued regularly before the Court.  In fact, just as baseball players keep a running tally of their career homeruns, SCOTUS advocates keep track of the number of arguments they’ve had.  In this case, three incredibly experienced advocates – Carter Phillips, Deputy Solicitor General Edwin Kneedler, and Walter Dellinger – were all at the podium.

Also on Monday, Erin noted that “[t]he Court has asked for the views of the United States in two cases: Triple-S Management v. Municipal Revenue Collection (09-233) and Janus Capital Group v. First Derivative Traders (09-525).”  Roughly ten times a year, the Supreme Court asks the Solicitor General for her views on whether it should hear a particular case.  That’s unusual:  usually, while a court will often hear from the parties to a lawsuit as well as others with an interest in the proceedings (so-called “amici curiae,” Latin for “friends of the court”), it generally will not actively solicit views from others.  But the Solicitor General – who is sometimes referred to as the “Tenth Justice” – has a special role at the Supreme Court.

On Monday, Erin also reported that the Court had “summarily decided” a case, McDaniel v. Brown, in a per curiam opinion.  That means that the Court issued an “unsigned” opinion “for the Court” rather than crediting the opinion to a Justice.  The Court had granted certiorari and the parties had filed briefs on the merits of the case, but the Court never heard oral argument.  That is an unusual procedure.  In his post-opinion post here, Lyle explained that the Court ruled that “flaws in presenting DNA evidence during a criminal trial do not necessarily undermine the value of a conviction based in part on that evidence.”  In other words, the Court ruled that when the prosecution does not present its DNA evidence perfectly, a conviction can still stand as long as other evidence supports the conviction.

Also on Monday, Tom wrote about the pace of O.T. 2009.  “O.T.” stands for “October Term,” so called because the Supreme Court’s Term begins on the First Monday of October, as required by statute.  The “2009” refers to the October in which the Term begins.  Although many have observed that the Court seems to be behind in its workload as compared to other Terms, Tom pointed out that is inaccurate.  Actually, the Court is ahead of its usual pace in terms of grants of certiorari, in large part because the Court granted cert. in a number of cases last spring and early summer, and those cases are being argued this Term.  However, noted Tom, the first Conference in January produced fewer grants than usual.

Tom also noted that the “Roberts Court” – so-called because John G. Roberts, Jr., is the Chief Justice – is sticking to its usual pace in terms of issuing opinions.  Tom used a bunch of nifty graphs, which might be of aid to those of you not intimately familiar with previous Terms.