U.S. Supreme Court

SCOTUS Insiders Discuss Changing Court Dynamics as Souter Exits #ABAChicago


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Tom Goldstein. Photo by REP3

The U.S. Supreme Court in the Obama era may be more conservative than under President George W. Bush because retiring Justice David H. Souter was the only one who could sweet-talk Justice Anthony M. Kennedy into voting toward the left.

That’s one of the many insider tidbits to emerge Saturday from a vibrant panel discussion at the ABA Annual Meeting about the past and future Supreme Court.

Kennedy was a crucial swing vote on two of the court’s more controversial recent decisions. He concurred, in District Attorney’s Office v. Osborne, with a ruling that someone convicted of a crime has no constitutional right to perform DNA tests on the prosecution’s evidence. In Caperton v. Massey, Kennedy also agreed with the ruling that a $3 million contribution to a West Virginia judge’s campaign created “a serious, objective risk of actual bias” that required the judge’s recusal.

“Justice Kennedy was less comfortable with excessive campaign contributions than whether someone could be wrongly executed,” quipped SCOTUSblog founder Tom Goldstein, a Washington, D.C., lawyer who co-chairs the litigation practice at Akin Gump Strauss Hauer & Feld.

The packed room whooped with laughter.

Ricci v. DeStefano was the court’s most important decision this year, the panel agreed. In Ricci, the court ruled that the city of New Haven, Conn., was wrong to toss out a firefighters test for fear it had the disparate impact of eliminating all black applicants. The panel agreed with John Payton, counsel for the NAACP Legal Defense and Educational Fund, who predicted the fallout: Employers will wait to be sued rather than jettison hiring practices that seem biased. The case was one of several that prompted University of Notre Dame law professor Barbara Fick to note the court’s habit of “revisiting lost battles.”

Yet Goldstein and Pepperdine constitutional law professor Douglas Kmiec wondered whether the case was a snapshot of a mood rather than a case with lasting impact. Kmiec observed that the left and right always seem to line up on opposite sides when debating whether the equal protection clause applies to groups or individuals. Goldstein noted that Republicans like Ricci because it can be reduced to a bumper sticker or sound bite.

Interestingly, Goldstein and Kmiec’s remarks seemed to echo those of Yale law professor and civil rights trailblazer Drew Days, who shared a Supreme Court panel on Friday with Kenneth Starr, a former U.S. solicitor general. Days was the Justice Department’s first African-American assistant attorney general for civil rights and, later, U.S. solicitor general. He wondered whether the facts of the case were too particular to New Haven for the case to have wide application. Days reminded the audience of Frank Ricci’s hard work (he overcame dyslexia to score high on the exam) and New Haven’s messy politics. In the decision, Justice Samuel A. Alito Jr. had even pondered whether New Haven junked the firefighters exam not because it was prejudiced but because everyone was scared of a politically powerful black minister who was the mayor’s close ally.

Looking ahead, the high court has slated a potentially landmark campaign finance case for reargument this September. In Citizens United v. Federal Election Commission, conservative activists produced a documentary that questioned whether “Hillary Clinton was the Antichrist or merely evil,” said moderator Edward Adams, editor and publisher of the ABA Journal .

CU was ready to pay more than $1 million to a cable consortium to air the anti-Hillary documentary on a video-on-demand channel during the presidential campaign. The court must decide whether such expenditures are limited by campaign contribution restrictions.

President Barack Obama has nominated Kmiec to be ambassador to Malta, so Secretary of State Hillary Clinton may soon be his boss. He thought the court might “use the case as a vehicle for pushing back campaign contribution limits.”

The good news is that Kmiec anticipates a lively debate over an array of crucial questions, such as whether wealthy individuals should be restricted from spending on their own campaigns.

More on the Annual Meeting ‘09 here:

Why is #ABAChicago in our Annual Meeting headlines? Check out our hashtags post: “ABA Annual Meeting 2009 on Twitter

ABA Journal’s Annual Meeting coverage at this link.

Flickr Slideshow: ABA Journal snapshots from Annual Meeting.

ABA Annual Meeting site.

Interactive updates on the Annual Meeting from ABA Media Relations at ABANow.org.

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