Here at the Glom, we love to post about Supreme Court cases that affect the world of business and securities law.  When the Supreme Court hands down landmark opinions on such constitutional law jewels as the right to bear arms (Heller) and the death penalty (Kennedy), we generally let the blogospheric experts have the limelight for awhile.  However, we have blogged on the death penalty for rape before and I devoted an episode of Illinois Law (Illinois College of Law's biweekly television show) to the death penalty this past spring.  Therefore, I thought I had enough to cred to jump into the fray on this one sidepoint:  If you are a progressive, liberal voter who is looking for a progressive, liberal candidate who will appoint liberal, progressive judges, do you hope the candidate is happy or unhappy about Kennedy v. Louisiana (death penalty is unconstitutional punishment for rape of child)? 

In other words, should Obama applaud the opinion or bemoan it?  Obama has shown disappointment at the decision, which has left him open to criticism from both sides.  Ann Althouse asked why, if Obama really wants a justice who goes with her "heart," then shouldn't he think Kennedy went with his heart here?  But of course, couldn't going with your heart make you give the person who raped a child the highest penalty possible?  Which is the heart thing to do?

I find this an interesting question because several years ago, I was on a jury panel for a criminal case in Milwaukee in which the defendant was on trial for sexual assault of his own 4 year-old daughter.  The defendant was poor and African-American.  The claims were made by the mother, a year after the date of incident, during custody proceedings.  I was very interested to see what the prosecutor and defense attorney would do with me.  I had a 4 year-old daughter at the time.  The questions they asked about my legal background revealed that I had worked on death penalty defense cases.  I was a law professor with Birkenstocks on.  I was obviously a progressive liberal.  Would I be easy or hard on the defendant?  The case settled before the second round of voir dire began, so we'll never know.

The Kennedy case creates some strange tensions:  most legal reformers who want enhanced penalties for rape and more protection of victims probably aren't pro-death penalty.  The Venn diagram intersect of those who want the death penalty expanded and those who work to decrease sexual assault, even for children, is probably fairly small.  In addition, If you read the briefs in Kennedy v. Louisiana, you'll see it's not an easy case.  One can imagine a case in which the perpetrator is a repeat rapist and murderer who abducts a child, brutalizes and beats the child, then leaves the child for dead.  There, the fact that the perpetrator wouldn't be subject to the death penalty because the child didn't die seems fairly arbitrary.  However, in this case, the facts aren't open and shut, and there is a lot of ambiguity there. 

Patrick Kennedy has an IQ of 70.  The victim, his eight-year-old step-daughter, initially said that she was raped by someone matching the description of a boy in her neighborhood.  Twenty months later, she said that she was raped by her stepfather, who had been arrested two weeks after the rape.  In the intervening time, authorities had threatened to take the child away from her mother if the mother did not believe the state's theory of the case.  On the other hand, the defendant tried to schedule an emergency carpet cleaning the morning of the rape to get blood out of the carpet, which he claimed was the result of the victim's "becoming a young lady."  He was also found trying to clean the carpet himself when the police arrived.  What is undisputed is that the victim was savagely raped, requiring surgery.(Neither supreme court brief mentions any scientific evidence, such as DNA, or any information from a sibling, who seems to have been at home.)  Although the Supreme Court was not weighing the facts of this case to determine whether the evidence supported the verdict or the sentence, surely the facts of the case affect decisionmaking somehow.

So, does the progressive, liberal heart go out to the young girl or to the future defendants who will face the death penalty?  Hard to say.  I think Obama would have liked to say that he was relieved that the use of the death penalty, which he has criticized, would not be expanded.  That he was glad that the revival of the death penalty for rape, which has its roots in a racist Southern history, was not successful.  But then, wouldn't his critics get to pounce on him for not caring about little girls?  About children?

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I told you that standing is an obsession of far too many federal judges these days, and John Roberts, whatever his other useful qualities, is one of the worst offenders.  He kicked off the Long Family opinion today with a section on whether a bank had standing to sue in federal court because it believed an Indian court didn't have jurisdiction over it.  The Indian court had disagreed and, indeed, had imposed a $750,000 judgment against the bank.

The standing the bank had to dispute this award in federal court, which has jurisdiction over questions of tribal jurisdiction, was, of course, obvious (was it injured by the adverse Indian court judgement?  Check.  Was the injury caused by the action sued over - i.e., the decision of the tribal court?  Check.  Would a judgment finding the tribal court didn't have jurisdiction to make the award redress that injury?  Check.)  It was so obvious that the anti-standing crowd didn't even raise the bank's standing to sue until the case got to the Supreme Court.

But nonetheless, the chief justice wasted his time, my time, and now your time (you are, after all, reading this post) encouraging other litigants to make as many standing arguments as possible in the future.  Here's how he justified it: "Though the Longs raised their standing argument for the first time before this Court, we bear an independent obligation to assure ourselves that jurisdiction is proper before proceeding to the merits."  True, I suppose ... but nonetheless a waste of time, unless the chief genuinely wants part I of every opinion the Supreme Court does to be an independent assessment of standing and jurisdiction (and he just might want that - it would certainly reduce the time the Court would have to do other things).

I think that maybe other justices ought to spend a little less time patronizing standing opinions like this one ... but no dice yet.  Everybody signed on to this mysterious early bit of Roberts' opinion.

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You might think not. After all, according to the Spaeth database of Supreme Court decisions, the Court spends much of its statutory interpretation capital dealing with statutes with tangential relationships to the economy, like habeas corpus (68 decisions), section 1983 (59 decisions), and the Immigration and Nationality Act (62 decisions – and a growth stock). But the most interpreted statutes do matter to markets:

Note some incongruities. Two of the most interpreted statutes are enormous and frequently amended (the Internal Revenue Code and the Bankruptcy Code). One is short and frequently amended (Title VII). And two are short and rarely amended, one of which is almost common law (the NLRA and the Sherman Act).

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I recently had a look at Richard Posner's and William David Landes's new statistical analysis of judicial ideology.  Basically, the paper:

1: Corrects the liberal-conservative ratings of the well-known Songer and Spaeth databases on judicial voting in the Supreme Court and courts of appeals in ways that I can't believe passed muster up to this point.  A real service, and it sets up the potential excitement of competing versions of the database being used by different authors, etc, etc.  A taste:

Commercial speech cases (301) had been coded so that a vote for the broadest interpretation of First Amendment protection was liberal. We changed this to “other” because businesses typically assert claims of commercial speech. ... We made a similar change for all votes in categories 710–713, which cover copyrights, patents, trademarks, trade secrets, and personal intellectual property. All votes for the plaintiffs in such cases had been coded liberal. Yet an intellectual property case often is brought by a large firm against a small firm or an individual, as when a giant pharmaceutical company sues the manufacturer of a generic drug or a large record company sues a file-sharing college student to make an example of him.

2: Runs straightforward, but still interesting, statistical analyses on a number of usual metrics on the corrected data.  Landes and Posner find some interesting stuff that was new to me (polarized voting works differently in Supreme Court and courts of appeals, liberal appellate judges tend to have "conservative" voting records in criminal and employment discrimination matters, and so on).

3: But perhaps most of note, pronounces the "politics is a particularly good predictor of judicial voting" established by their analysis.  Since one of the authors is a sitting federal judge, both know how to slice doctrinal salami, and neither has done a lot of statistical work in the past (as far as I know, and I don't know Landes's work well), this is a conclusion from a striking quarter - one that I can't imagine, say, Harry Edwards or even Stephen Breyer drawing.  I predict a big splash in law school faculty offices - and possibly also in the popular media.  And, though I liked the paper, I also predict some exasperation by political scientists who think they did this work already, only using complex Bayesian analyses that epitomize accuracy, if not readability (said political scientists are going to need to explain why it doesn't matter that they based their analyses on data that coded broad protection of IP as "liberal" and strict construction of commercial speech as "conservative," though).

Here's Brian Tamanaha with another early analysis.  Net-net, you should definitely download this while it is hot.

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After the Times's article claiming that the Supreme Court has become more pro-business, Rick Hills gives us a fascinating take on what might be going on:

We are in the midst of a second Gilded Age, in which appointees of either pro-business Democrats (Clinton now, Grover Cleveland then) or pro-business Republicans, dominate the Court. The central thrust of this judicial majority is that judicial creativity in the service of a national market is entirely legitimate. Thus, this Court has crafted a set of doctrines regulating punitive damages and preempting state laws that seem anomalous if one believed that the Court should respect popular democracy. But these doctrines form a principled doctrine entirely consistent with the older Federalist-Whig-Republican tradition of jurocracy. If one sees the courts through Gilded Age lenses, as bulwarks of the national market against parochial and populist local democracy, then we’ve entered a second Gilded Age.

Hills thinks that the elistist, pro-business turn away from populism might be a bad thing, but I'll mildly note that a Court that put the bulk of its work into solving national market problems would be a Court that wouldn't be spending so much time on cases whose consequences are purely symbolic, like flag-burning (though, to be sure, this Court is about to do something about the Second Amendment that won't changes any facts on the ground, but will result in a lot of angsty writing by constitutional law scholars).  The empirical question, I suppose, is whether that is really what this Court is doing.  Amanda Frost thinks the Court spends a lot of time on very technical, all but meaningless circuit splits, and she's got a point.  So I'd say that while it's still unclear that the docket reflects a pro-business turn, Hills has a plausible account of what the justices might be thinking when they do address a case with economic consequences.

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Jeffrey Rosen has turned his attention to the Supreme Court's business docket. Looking at business cases from last term, Rosen sees "surprising" unity among the Justices: 22 of 30 (73.3%) business cases were decided unanimously or with only one or two dissenting votes. And most of these cases favored "business interests," though it's not always clear to me which outcome would be so classified.

How do business cases compare with other cases? Of the 69 cases on which the justices voted during the 2006 Term, 41 (59.4%) were decided unanimously or with only one or two dissenting votes. So the justices exhibit a stronger tendency to agree on business cases than on their overall docket, of which business cases are a substantial part. And assuming the accuracy of Rosen's numbers, the justices are much more united on business cases than on non-business cases (19/39 or 48.7%).

Is this surprising? Rosen contends that the surprising part is that even the liberal wing of the Court sides with the business interests:

In opinions last term, Ruth Bader Ginsburg, Stephen Breyer and David Souter each went out of his or her way to question the use of lawsuits to challenge corporate wrongdoing — a strategy championed by progressive groups like Public Citizen but routinely denounced by conservatives as "regulation by litigation." [Robin Conrad, who heads the litigation effort at the U.S. Chamber of Commerce,] reeled off some of her favorite moments: "Justice Ginsburg talked about how 'private-securities fraud actions, if not adequately contained, can be employed abusively.' Justice Breyer had a wonderful quote about how Congress was trying to 'weed out unmeritorious securities lawsuits.' Justice Souter talked about how the threat of litigation 'will push cost-conscious defendants to settle.' "

According to Rosen, these examples -- including two from the same case (Tellabs) -- "point to an ideological sea change on the Supreme Court." Rosen wonders: "What should we make of the Supreme Court's transformation?" Rosen's hypothesis:

With their pro-business jurisprudence, the justices may be capturing an emerging spirit of agreement among liberal and conservative elites about the value of free markets. Among the professional classes, many Democrats and Republicans, whatever their other disagreements, have come to share a relatively laissez-faire, technocratic vision of the economy and are suspicious of excessive regulation and reflexive efforts to vilify big business. Judges, lawyers and law professors (such as myself) drilled in cost-benefit analysis over the past three decades, are no exception. It should come as little surprise that John Roberts and Stephen Breyer, both of whom studied the economic analysis of law at Harvard, have similar instincts in business cases.

Rosen dates the supposed transformation of the Court to the nomination of Lewis Powell in 1971, and reserves a special place in the story for Rex Lee, founding dean of BYU's Law School:

Until the mid-'80s, there wasn’t an organized group of law firms that specialized in arguing business cases before the Supreme Court. But in 1985, Rex Lee, the solicitor general under Reagan, left the government to start a Supreme Court appellate practice at the firm Sidley Austin. Lee’s goal was to offer business clients the same level of expert representation before the Supreme Court that the solicitor general’s office provides to federal agencies. Lee's success prompted other law firms to hire former Supreme Court clerks and former members of the solicitor general’s office to start business practices. The Chamber of Commerce, for its part, began to coordinate the strategy of these lawyers in the most important business cases.

All of this makes for fascinating reading. Especially the part where Ralph Nader "all but conceded defeat in the battle for the Supreme Court." You really need to read the whole thing.

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I'm running off to a workshop and then to class, but I just received an alert that the Supreme Court's opnion in Stoneridge Investor Partners v. Scientific Atlanta, Inc. has been released.  Story here.  As expected, the Court has held that the plaintiffs there could not maintain a securities lawsuit against "secondary actors."  More later, but here is the opinion.

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Chief Justice Roberts visited BYU today. His Forum talk will be posted here fairly soon, though I suspect most law students, law professors, and laywers would find that talk rather boring. The President of BYU has labeled this "The Year of the Constitution," so Chief Justice Roberts offered a survey of the Constitution. Which is fine, though I had hoped for more personal insights.

Things improved markedly this afternoon as the Chief Justice spent an hour at the Law School in a Q&A with law students. My sense is that most people went away very impressed. He is comfortable in front of a crowd, and he didn't punt on any questions. The snippet that forms the title to this post was an aside, and I suspect that most people didn't notice the remark. At the time, he was talking about how he decides cases -- including this comforting insight: "If the case involves a statute, I start by reading the statute" -- and I happened to be wondering about the influence of legal scholarship on his views. Just then he said, "I don't keep up with constitutional scholarship."

In response to a student's complaint about the length of the Supreme Court's opinions, the Chief Justice expressed some sympathy, but said that there wasn't much to be done about it. Except, as an afterthought, the possibility of taking more cases. The Court has been second-guessed about reducing its caseload (quite dramatically) over the past decades, and I suspect that he is right about opinions expanding to fill the space alloted.

I was also intrigued by his explanation for how he assigns cases. He said that if one justice could write an opinion that would yield only one dissent while another would write the opinion in a manner that would yield multiple dissents, he would assign the opinion to the "unifying" justice. And if two justices have been at odds in one case, he might assign an opinion to a justice would would bring them together on another case. Nothing shocking in any of this, I suppose, but I hadn't put much thought into these aspects of the matter.

His biggest surprise in being Chief Justice? The diplomatic role of the Court. He noted that judicial officers from other countries often stop at the Court, and the Chief Justice serves as the head diplomatic officer.

Finally, he mentioned the link between judicial pay and judicial independence. Again, nothing new, but this seems to be a problem that will not go away. He worries about the temptation faced by judges -- even judges with life tenure -- to craft their opinions for future gain. His predecessor (William Rehnquist) was active on this issue, too, calling "the need to increase judicial salaries to be the most pressing issue facing the federal judiciary today." Our new Chief Justice seems to agree.

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If you didn't see it, you can get it here and here. Scooped on the Thomas interview, NBC opted for Anita Hill. (When asked about Thomas as a Supreme Court Justice, Hill began her response, "I can't pretend to be objective about Clarence Thomas ..." But "from my reading of the cases, I don't think he has been a particularly convincing Justice.")

The 60 Minutes interview portrays Thomas as a sympathetic and nuanced figure with a complex intellectual history, not as the caricature who usually comes across in discussions of the Court. Thomas was very impressive, and the poll at Volokh suggests that Thomas changed some perceptions with that interview.

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Rudy is trying to convince conservatives that he is the genuine article by appointing a Justice Advisory Committee. According the press release, "Members will advise Rudy Giuliani on a wide range of legal and policy issues including judicial appointments, tort reform and reducing frivolous lawsuits in our country."

About those judicial appointments ... candidates want to precommit, so why don't they just do it? Why not say, "If elected, my first nominee to the Supreme Court would be Judge X"? Or, if that is too daring, how about providing a short list of candidates?

Well, I can think of a number of potential problems with these strategies, but as a voter, I would find this sort of disclosure much more valuable than a Justice Advisory Committee or a promise to look into an unnamed nominee's heart.

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Many have weighed in on the school desegregation cases, and their resolution, of course, is not a business subject. But it is worth remembering that these cases have never solely been disputed on substantive values, but also on slightly more anodyne questions of judicial competence. This is because the remedies for desegregating school districts depended on judicial supervision – and in some ways they required judges and lawyers to play the roles of administrators of ad hoc agencies. Parts of two opinions in the cases reminded me of that debate, which isn’t just about school desegregation, but applies to all receiverships, structural reform injunctions, and other places where what some have called destabilization rights might come into play.

Justice Breyer, in dissent, lauded the accomplishments of this brand of litigation-driven administration. In his view, “the extensive and ongoing efforts of two school districts to bring about greater racial integration” were directly related to their eras of either real or threatened judicial supervision. “Louisville began its integration efforts in earnest when a federal court in 1975 entered a school desegregation order. Seattle undertook its integration efforts in response to the filing of a federal lawsuit and as a result of its settlement of a segregation complaint filed with the federal OCR.”

Justice Thomas’s views hearken back to the concern that judicial oversight in these areas became overweening and never-ending, or an “inflated role for the Federal Judiciary” conferring “on judges the power to say what sorts of discrimination are benign and which are invidious.” Perhaps for this reason, “remedial measures geared toward such broad and unrelated societal ills have no logical stopping point, and threaten to become ageless in their reach into the past, and timeless in their ability to affect the future.”

You get the idea. It’s a different thing for a court to exercise ongoing supervision over anything – and it looks startlingly different from what you do on the other days of the week if you’re an appellate judge and you’re asked to review that sort of supervision. But this isn’t to say that judicial administration can’t point to a signal series of accomplishments as well. It’s my suspicion that the memories of the costs and benefits of the judicial supervision era of schools contributed something to the way the judges analyzed the post-supervision plans yesterday.

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Yesterday, the Supreme Grant decided to consider a case posing questions about aider and abettor liability under Section 10(b) during OT 2007.  The case, Stoneridge Investment Partners LLC v. Scientific-Atlanta, Inc., presents the following question presented:

Whether the Court's decision in Central Bank, N.A. v. First Interstate Bank, N.A., 511 U.S. 164 (1994), forecloses claims for deceptive conduct under 10(b) of the Securities Exchange Act of 1934. . . ., where Respondents engaged in transactions with a public corporation with no legitimiate business or economic purpose except to inflate artifically the public corporation's financial statements, but where Respondents themsleves made no public statements concerning these transactions.

In the case below, In re Charter Communications, Inc. Securities Litigation, 443 F.3d 987 (8th Cir. 2006)shareholders of Charter, a cable television provider that sold cable service through TV-top boxes provided by vendors Scientific-Atlanta and Motorola, alleged securities fraud by the two vendors for entering into sham transactions with Charter amounting to $17 million to inflate the stock price. Obviously, neither Motorola or Scientific-Atlanta prepared disclosure documents for Charter shareholders with false statements or were under a duty to speak to them but kept silent. However, shareholders alleged that the defendants were otherwise primary violators because they were necessary to the sham under 10b-5(a) and (c). Neither the district court nor the Eighth Circuit agreed with them (the appellate opinion is a brisk 7 pages, with headnotes.)

So, the Supreme Court will hear this case next term.  Law.com mentions that the Ninth Circuit has held that an "aider and abettor" can be liable under some circumstances, such as "creating a false appearance of fact."  The district court in the Southern District of Texas in the Enron litigation had also held that many stereotypical "aiders and abettors" such as outside banks, a law firm and an accounting firm, could be held liable under Section 10(b), although that ruling was muddied by the Fifth Circuit's refusal of class certification last week due to the fact that the defendants were mere aiders and abettors.  So, lots of people will be watching this case, including law firms, accounting firms, and commercial and investment banks.  Of course, the case could do several things:  (1) keep the status quo; (2) broaden the definition of primary violator to include a broader range of persons; or (3) reverse Central Bank (the least likely scenario, I would think).

Interestingly, Chief Justice Roberts and Justice Breyer took no part in the review or granting of cert, almost certainly due to their personal stock holdings.  However, Roberts divested himself of certain stock holdings to be able to participate in the Credit Suisse case today, and those in the know (not me) predict that he will do the same in order to ensure that this case, with its potential for wide-ranging consequences for several industries, will not be heard by only seven justices.

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Blogs have been going crazy over Dahlia Lithwick's article on Supreme Court clerk bonuses.  I think Orin Kerr's response is particularly reasoned:  $200k is not much when you think of how much large firms spend per recruit in a given summer season, and these recruits are harder to land than the average top ten-percenter.  An interesting comparison would be to attorneys who leave firm practice to go to "the administration" for a few years and then return to private practice at the next election or whenever.  It is my understanding that these attorneys return either to their old firm or a new firm at a completely new pay scale, which may over time far outshine the one-time Supreme Clerk bonus.  (Or think about the DOJ attorneys prosecuting corporate law cases that have gone into lucrative private practice.)  These are extremely small cohorts of individuals who obtain very specialized knowledge and prestige that firms value.  (You can also consider that the starting salary at the largest firms is now $160k, although the median starting salary is either $80k (according to Altman Weil) or $100k (according to NALP).  So, top-performing students at top-performing schools are getting a long-term increase that has a present value of at least $200k.)  Perhaps what galls critics of the Supreme Court bonuses is that they are given to people so young in a lump sum, but that criticism is not entirely convincing. 

On a related note, I am a few days behind in blogging about a different article on Supreme Court Clinics.  My brother-in-law, Mark Stancil (coincidentally, a former Rehnquist clerk), is mentioned in the article as both an appellate attorney at the boutique firm Robbins Russell and one of the supervistors of the Supreme Court clinic at the University of Virginia.

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For those of you who keep up with the goings on at the U.S. Supreme Court, you may have at one time been a subscriber to the Supreme Court Updates, an email newsletter service of the former clerks who reside at Baker Botts LLP.  Baker Botts assumed this obligation when it gobbled up Miller Cassidy, a firm whose former clerk (John Elwood) had brought fame to the Updates.  You may remember that for a time these Updates were extremely funny and occasionally analytical and insightful.  That's because they were penned by Mark Stancil.  Mark is now at Robbins, Russell, Englert, Orseck & Untereiner in D.C., so the Baker Botts Updates are written by someone else.

If you want to continue your path dependency and read the Updates, then you can get to them through Dan Markel.  However, if you're ripe for some old school Supreme Court dish, then let Mark know because he has reprised his humor in a new email newsletter, the Supreme Court Underground, sent from his new desk at Robbins Russell.  (I guess fancy pants appellate lawyers don't know how to write a noncompete.)  Anyway, the new guy at the Updates is not related to me and I still have to see Mark at family holidays and such, so I'm plugging for the new Supreme Court Underground.  To subscribe, email Mark at mstancil@robbinsrussell.com.  As Larry S. says, here's a taste of today's email missive:

Welcome to the inaugural edition of Supreme Court Underground, in which I will attempt to chronicle the goings on in the Marble Palace in a manner that is highly readable, emotionally compelling, and (whenever possible) substantively accurate. . . . The rules are simple enough:

(1) I will try to keep you up to date when the Court grants certiorari, decides argued cases, or takes other action that is interesting to me.

(2) To keep us all awake, I will not infrequently poke fun at the Court, its esteemed members, and those otherwise in the line of fire.

(3) Don't talk about Fight Club.

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What to make of this story: Michael Luttig has resigned from the Fourth Circuit Court of Appeals to become Boeing's General Counsel. The story doesn't say why, but let's brainstorm.

Hmm. Well, there's money.

And then there's ... ? Well, he may have other reasons. I will be interested to find out.

Is he essentially dropping his name from consideration for the next Supreme Court opening? Not that nomineess have to be judges, but is this a signal that he is not interested in the judicial life?

UPDATE: Ann thinks it's about money. She links to Luttig's "gushing" (about Boeing) resignation letter.

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For those of you have may not have watching this development closely, Federal Rule of Appellate Procedure 32.1 has been amended, and that amendment approved by the Supreme Court that will allow unpublished federal opinions to be used as persuasive authority in federal courts.  Currently, only four circuits allow unpublished opinions to be cited.  This changed was proposed by the Advisory Committee on Appellate Rules, passed by the Committee on Rules and Practice of U.S. Courts and the Judicial Conference of the United States.  This rule change may have a sweeping impact on how cases are decided and opinions written in the federal district courts.  For more on the background of these cases, see these two law review articles:  David Vladeck & Mitu Gulati, Judicial Triage:  Reflections on the Debate over Unpublished Opinions  and Penelope Pether, Inequitable Injunctions:  The Scandal of Private Judging in the U.S. Courts, 56 Stan. L. Rev. 1435 (2004).

Interestingly, when Justice Alito and Justice Roberts were being confirmed, no one mentioned how their confirmations would affect this outcome!  Both judges were on the Advisory Committee that proposed the rule change, and Justice Alito was the Chair.

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Our family is very interested in the Supreme Court oral arguments tomorrow, but not because we have eBay stock (we don't).  The first case that will be heard tomorrow morning is Moises Sanchez-Llamas v. Oregon.  Counsel for one of the petitioners in the consolidated case is Mark T. Stancil, Paul's brother.  Paul will be in the gallery, so I'll get a first-hand report.  Now, we understand that this is Mr. Sanchez-Llamas' and Mr. Bustillo's day in court, and not Mark's, but we are very proud of Mark and wish him well. 

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I usually don't join in and bash the NYT for perceived bias, but I have to point one thing out about today's article about Justice Alito's thank-you letter to Dr. James Dobson, founder of Focus on the Family.  Here is the opening paragraph of the article:

In his first weeks on the Supreme Court, Justice Samuel A. Alito Jr. sent a note to Dr. James C. Dobson, the influential Christian conservative, thanking him for his support and vowing that "as long as I serve on the Supreme Court, I will keep in mind the trust that has been placed in me," Dr. Dobson said Wednesday in a radio broadcast.

That sounded sort of ominous to me -- thanking a leader of a consitutency with a strong idological agenda and acknowledging that he must remember his support when he is on the court. However, the actual text of the letter puts these two concepts in different parts of the letter. From WSJ blog, here's the actual text:

Dear Dr. Dobson:

This is just a short note to express my heartfelt thanks to you and the entire staff of Focus on the Family for your help and support during the past few challenging months. I would also greatly appreciate it if you would convey my appreciation to the good people from all parts of the country who wrote to tell me that they were praying for me and for my family during this period. As I said when I spoke at my formal investiture at the White House last week, the prayers of so many people from around the country were a palpable and powerful force.

As long as I serve on the Supreme Court I will keep in mind the trust that has been placed in me. I hope that we will have the opportunity to meet personally at some point in the future. In the meantime my entire family and I hope that you and the Focus on the Family staff know how much we appreciate all that you have done.

Sincerely yours, Samuel Alito

Read in context, the statement doesn't seem that ominous, and seems like it might be part of a "form" second paragraph. At least it didn't have hearts or exclamation points!

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Months later, I'm still confused as to why anyone would support the Kelo decision, including liberals.  I consider myself a liberal, and I hate Kelo.  What's liberal about a forced sale of low-income producing properties to allow for development by a private third party?  Today, Peter Lattman at the WSJ Blog calls eminent domain "Business Law's Angelina Jolie."  I hope Angelina's people call to complain.  From a distance, Ms. Jolie seems like a thoughtful person of substance.  I can't see her partnering up with Pfizer to jazz up the neighborhood a little at the expense of others.

Spurring this thread today is a NYT article on current uses of eminent domain power and the threat of such power.  Todd Zywicki posts on the vulnerability of entities that do not generate tax revenues, such as churches, to eminent domain. 

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The top story at the NYT on Saturday morning remains the battle over Judge Alito's confirmation. As I predicted, opposition groups are expected to kick up some dust about abortion rights, among other issues:

Despite growing certainty about the ultimate conclusion after five days of hearings, interest groups on both sides announced plans on Friday to spend hundreds of thousands of dollars on television commercials intended to influence the outcome.

...

Officials of liberal groups insisted that they still held hope of blocking confirmation. Conservative organizers, on the other hand, said privately that their advertisements were partly a victory lap to call attention to a fight the president was winning after a spate of setbacks.

Contrast this coverage with WaPo, where the front page on Saturday morning looks like this (click the link to see the full page):

Washington Post: Saturday, January 14, 2006 | 1:26 a.m. ET

You need to look waaaaay down at the bottom of the page to find any mention of the confirmation, and that's a box with stale links (of the three links, two are "A TV Guide to the Hearings" and "Suggestions for Cross Examination"). I guess WaPo is just ready to move on?

UPDATE: If you are still interested in reading about Judge Alito, Larry Ribstein has a new column in Forbes entitled "Justice Alito on Business."

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Yesterday evening, after I wrote my post on the Alito confirmation hearings, some of the MSM coverage changed quite dramatically. At WaPo, the Kennedy-Specter tiff became a side story, and the focus turned to Alito's refusal to proclaim that Roe v. Wade was "settled" law. I missed this part of the live broadcast and didn't focus on it until reading the WaPo headline and lead paragraph from this morning:

Is this a fair characterization of what happened? Did he really "signal" that he might be "willing to revisit" Roe? Maybe. Here is the relevant part of the transcript:

DURBIN: But let me just ask you this: John Roberts said that Roe v. Wade is the settled law of the land. Do you believe it is the settled law of the land?

ALITO: Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973. So it's been on the books for a long time. It has been challenged on a number of occasions. And I discussed those yesterday.

And it is my -- and the Supreme Court has reaffirmed the decision; sometimes on the merits; sometimes -- in Casey -- based on stare decisis.

And I think that when a decision is challenged and it is reaffirmed, that strengthens its value as stare decisis for at least two reasons.

First of all, the more often a decision is reaffirmed, the more people tend to rely on it. Secondly, I think stare decisis reflects the view that there is wisdom embedded in decisions that have been made by prior justices who take the same oath and are scholars and are conscientious.

And when they examine a question and they reach a conclusion, I think that's entitled to considerable respect.

And, of course, the more times that happens, the more respect the decision is entitled to. And that's my view of that.

So it's a very important precedent...

DURBIN: Is it the settled law of the land?

ALITO: If "settled" means that it can't be reexamined, then that's one thing. If "settled" means that it is a precedent that is entitled to respect as stare decisis and all of the factors that I've mentioned come into play, including the reaffirmation and all of that, then it is a precedent that is protected, entitled to respect under the doctrine of stare decisis in that way.

DURBIN: How do you see it?

ALITO: I have explained, Senator, as best I can how I see it.

It a precedent that has now been on the books for several decades. It has been challenged. It has been reaffirmed.

But it is an issue that is involved in litigation now at all levels. There is an abortion case before the Supreme Court this term. There are abortion cases in the lower courts. I've sat on three of them on the Court of Appeals for the 3rd Circuit. I'm sure there are others in other courts of appeals or working their way toward the courts of appeals right now.

So it's an issue that is involved in a considerable amount of litigation that is going on.

There are two ways to read this exchange. On the one hand, Judge Alito may be making the fairly obvious point that Roe v. Wade is a Supreme Court decision and, thus, subject to reconsideration or interpretation. Under this view of the exchange, Judge Alito might have been speaking about any Supreme Court decision, albeit one that has been the focus of much more intense scrutiny than any other.

On the other hand -- and this is what will worry supporters of Roe -- this discussion followed on the heels of a discussion of Brown and Griswold, which Judge Alito treated differently from Roe. Each of those other cases, according to Judge Alito, could be tied to specific provisions of the Constitution.

ALITO: Brown v. Board of Education, as you pointed out, is based on the equal protection clause of the 14th Amendment. And the 14th Amendment, of course, was adopted and ratified after the Civil War. It talks about equality. It talks about equal protection of the law.

...

Griswold concerned the marital right to privacy. And when the decision was handed down, it was written by Justice Douglas. And he based that on his theories of his theory of emanations and penumbras from various constitutional provisions: the Ninth Amendment and the Fourth Amendment and a variety of others.

But it has been understood in later cases, as based on the due process clause of the Fourteenth Amendment, which says that no persons shall be denied due process -- shall be denied liberty without due process of law. And that's my understanding of it.

Judge Alito was unwilling to characterize Roe v. Wade in this same way. For Judge Alito, Roe is "settled law" only to the extent that it has value as a prior decision of the Supreme Court, not because it emanates from particular provisions in the Constitution. While this does not suggest that Alito is intent on overruling Roe, when considered in light of his 1985 memo, I can see why it would concern Roe's supporters.

It's surprising to me that this angle did not receive more prominence in other coverage of the hearings. The coverage in the NYT, for example, sounds much more like my original post:

Also, much was made of Mrs. Alito leaving the hearing room in tears. According to the W$J, this was a mark against the Democrats:

Democrats may have lost points, however, when Judge Alito's wife, Martha, left the hearing room in tears after Republican Sen. Lindsey Graham of South Carolina apologized for the treatment of her husband. She later returned. Alito supporters sent emails about the incident, blaming Democrats for going too far.

For all of the heat generated by the CAP issue, it seems like a non-starter to me, and I suspect that it's prominence will fade over the next few days. By contrast, I expect Democrats to focus the public's attention on Roe v. Wade. This could get ugly.

UPDATE: Everyone is commenting on the calmer tone in today's hearing, and suggesting that Mrs. Alito's tears had an effect. Perhaps, but the Democrats also must realize that they have gotten as much ammunition as they are likely to get from Judge Alito.

I noticed that Senator Biden questioned Judge Alito about the effect of stare decisis on the Supreme Court. "Stare decisis doesn't apply, does it?" Well, of course, Biden knows that it applies, but he wanted to hear Judge Alito say that the Supreme Court could overrule prior decisions. More groundwork for the abortion discussion to come.

Just to be clear, although I expect Democrats to kick up some dust on the abortion issue, I think Judge Alito will be confirmed without a filibuster. As Peggy Noonan rightly observes in today's W$J, the hearings have been a "low-affect tour de force."

UPDATE2: Jack Balkin has an interesting post entitled "The Constitutional Catechism," which discusses what nominees must say about Roe v. Wade to be confirmed. This is the punchline:

What is remarkable about the Roberts and Alito hearings is not that both nominees have resisted supporting Roe but how far they feel they must be willing to go in disguising their actual views about it.

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While the Alito hearings are taking center stage, the Supreme Court is actually working.  Yesterday, the court heard oral argument in Texaco v. Daugher, an antitrust case in which gas distributors claim that two joint ventures between Shell and Texaco to sell gas downstream violated the Sherman Act.  From what we hear about the oral argument from friends who were there, the justice weren't buying it.  I'm sure my perception is colored by the fact that my husband represented Shell in cases brought by gas distributors and dealers/lessees, and sometimes dealt with the JVs in question.

Although the plaintiffs believe that these JVs gave Texaco and Shell the power to set above-market prices, the FTC approved the creation of these ventures.  Also, during this time large oil companies were merging without much fuss, such as the ExxonMobil merger and many smaller mergers.  In fact, the ventures came to an end when Texaco merged with Chevron and had to divest them.  I would posit that had Texaco and Shell wanted to merge in 1998, that they eventually would have been allowed to do so by the FTC with only some cosmetic divestitures.  (Shell would have had no interest in merging with Texaco.)  Therefore, if Shell and Texaco could have achieved the same result by merging legally, the theory that by creating a joint venture (approved by the FTC) that set a uniform price is illegal is somewhat strained.

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I have been watching the Alito confirmation hearings on C-SPAN, as time permits, and reading reports, listening to callers, etc. It's hard to think of a better example of "you see what you want to see." Just compare PowerLine and Daily Kos. If it weren't for the names, you'd swear that they were talking about different events altogether.

Understanding this potential for bias, I venture my own brief analysis: the Democrats are scoring a few points, but Alito is winning by a landslide. Two bits of evidence seem particularly important in evaluating the likelihood of confirmation:

(1) The coverage by MSM is going Alito's way. Notice that the focus of almost all of the major stories is on Democratic attempts to trip Alito.

W$J: "Senate Democrats to Press Alito Harder on Key Issues"

NYT: "Democrats Press Alito for Specifics on Abortion"

WaPo: "For Democrats, A Most Tender Roast of Alito."

Democrats seem frustrated. We get quotations like this from Chuck Schumer: "It should not be a situation that unless he says something wrong he is confirmed." Well, you can say that all you want, but Alito entered the hearings with a presumption that he should be confirmed. That presumption was based on his long and distinguished record, and Schumer knows very well that Alito would be rejected only if he slipped spectacularly. He didn't slip.

(2) What is the big story of the day? Kennedy and Specter are fighting about whether Specter received what Kennedy sent. When we look back on these hearings, this may be the moment when we knew it was over. After all, they were bickering about control of the committee, not about the merits of the nomination.

We will watch with interest for other developments, but you might as well get used to saying "Justice Alito."

UPDATE: Drudge is reporting that Mrs. Alito left the hearing room in tears. It must be tough to see a loved one's integrity challenged, especially if you are not accustomed to that sort of environment. Mrs. Alito might do well to remember that her husband is merely the present symbol of a set of policies that the Democrats hate. It's not personal, it's politics.

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Law professors are fond of referring to the Supreme Court by the name of the Chief Justice, then attempting to find some distinguishing features by which they can caricature the Court. Here's one early possibility for the Roberts Court: joviality. Following up on the work of Boston University law professor Jay Wexler -- who counted  "[laughter]" notations in transcripts of the Supreme Court's oral arguments -- the New York Times compared laughter in this term with last term:

The mood under Chief Justice Roberts has brightened, the analysis found, with the average number of justice-generated laughs per argument rising to 2.9 from 2.6 the previous term.

In the current term, the Times analysis found, there has also been movement in the funniness-of-individual-justices department. Justice Breyer has taken the lead, at 28 laughs, edging out Justice Scalia, with 25. They also tied in the largest-number-of-jokes-in-a-single-argument category, each squeezing five into a single hour.

Chief Justice Roberts made a strong early showing, coming in third, with 13.

Of course, laughter in the Court probably says more about which justices think they are funny than about how funny they actually are. If a justice makes an attempt at humor, people laugh. It's one of the prerogatives of power.

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NYT: "by most accounts, Ms. Miers is now back at work with her chin up and head down."

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I was traveling to Baltimore today, so I am catching up. This article in the NYT caught my eye. It discusses Alito's dissents. I have not read most of the cases discussed, but this paragraph made me laugh:

Federal courts hear relatively few personal injury cases, but Judge Alito dissented in four of them. In two, he voted against the injured plaintiff.

And in two of them he voted for the injured plaintiff.

The article also stated that he dissented in four cases that later were decided by the Supreme Court. Three of his dissenting positions became the prevailing position at the Supreme Court. (The one exception was Casey.) That is an amazing record for an appellate judge. Indeed,

Frank B. Cross, a law professor at the University of Texas who has compiled a database tracking how the Supreme Court reviews appellate decisions, said: "This is the highest of anyone in the database."

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The main debate over Harriet Miers' nomination was about qualifications. Intellectual heft. Experience with constitutional law. That sort of thing. The Alito nomination makes all of that talk irrelevant, and the focus of the debate has turned to the merits of Alito's positions. More specifically, people are wondering whether Alito is "mainstream." (How wide is the mainstream? Like many western rivers, the mainstream may be completely dry or may be a raging torrent. In the context of Supreme Court nominations, the size of the mainstream depends on one's view of the nominee's politics.)

This is going to sound elitist, but the problem with the merits is that they are complicated. Ann Althouse offers a nice example regarding the Family Medical Leave Act and the Chittister case. (We have our own discussion of Chittister below.) To what extent does Alito need to make his points at the confirmation hearings using words and concepts that lay people can understand? My sense is that this is imperitive, and the challenge of capturing difficult concepts with simple language is not to be underestimated.

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The W$J:  Judge Alito has an "extensive track record on business and regulatory issues."

ContractsProf Blog: "Does he know anything about contract and commercial law? There's reason to be dubious -- he’s a career government employee, with stints as a deputy solicitor general, deputy attorney general, and U.S. Attorney.  That’s all fine, perhaps, if you need to figure out whether, say, lap dancing is 'speech' for purposes of the first amendment, but it’s not going to be of much use in interpreting the Carriage of Goods by Sea Act or the CISG.

"He also seems to have authored remarkably few contract opinions in his fifteen years on the bench - only half a dozen or so where the predominant issue is contractual."

Ribstein: "In the wake of the Alito nomination, there's been fairly widespread recognition of Alito's business credentials."

I don't see any evidence of business experience in his record, and there is no reason to suspect that he will become enamored with business law once he is on the Court. On the other hand, business law doesn't give him hives. I was never beating the drum for a business law nominee, so clearing the hives standard works for me.

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The following is from Mark Tushnet:

We already know some of the dynamics of President Bush’s nomination of Judge Samuel Alito: the president’s low approval ratings, driven lower by defections from his base during the Harriet Miers episode, and his need to recapture some political ground by shifting attention from corruption and incompetence to a Supreme Court nominee who can’t be challenged as an incompetent crony.

One element in the political dynamics, though, may have been overlooked. The president is taking advantage of what might be merely a moment of unified government to consolidate conservative control of the Supreme Court. Facing the possibility (though hardly a certainty) of a Democratic majority in the Senate after next year’s elections, and even of a Democratic president after 2008, Bush is following the tradition established by John Adams in 1800: If you think you might lose control of the political branches, try to plant your allies on the Supreme Court so they can as check the excesses (as you see them) of your political opponents.

The Alito nomination is not a new strategy hatched in the throes of scandal, but the fulfillment of a campaign promise. It was a promise worth making, regardless of who wields control in the other two branches, because the Supreme Court is its own power base. This is not just about controlling a future Congress or White House.

Over the past few days, I have heard more than one learned commentator proclaim that Alito will push the Court to the right as if this were a shocking and original insight. Of course he will push the Court to the right! That's exactly why many of us voted for George Bush. If you want to nominate more liberal Supreme Court justices, win the presidential election!

And if you want to defeat the Alito nomination you should have some substantial reasons, not facile analysis about how the nominee is "too conservative." (Note: I am not referring to Tushnet here. He offers some analysis that suggests Alito is far out of the judicial mainstream, and I plan to address in a separate post, but many commentators on this nomination have not been as engaged with Alito's jurisprudence.) Ann Althouse offers words of wisdom on this point in today's New York Times:

Those Democrats who are already insisting that Judge Alito's record on the bench makes him unacceptable should keep in mind that someday they, too, will have a president with a Supreme Court seat to fill, and it would serve the country well if that president wasn't forced to choose only among candidates with no paper trail. To oppose Judge Alito because his record is conservative is to condemn us to a succession of bland nominees and to deprive future presidents of the opportunity to choose from the men and women who have dedicated long years to judicial work.

In other words, if you win the White House, you can have your Ginsburgs and Breyers. I didn't begrudge you that then, and I wouldn't now.

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Although I became fairly embroiled in the Harriet Miers controversy over here, I will probably be a mere spectator in the Samuel Alito confirmation process.  Any critics of Judge Alito will be bypassing the qualifications argument and going straight to the constitutional ideology arguments.  There, we will witness all kinds of people throwing around words like "textualist," "orginialist," "strict constructionist," and "super-precedent":  words that sort of make me sleepy and yearn for a good Delaware Chancery Court opinion.

The hearings will probably be very similar to the Roberts hearings:  senators asking well-worded questions designed to elicit answers reflecting whether Alito would overturn Roe v. Wade.  In turn, Alito will give even better-worded answers designed to have the exact amount of ambiguity so that conservative senators can silently be convinced of a "yes" answer but be able to argue to liberal senators that Alito did not give a "yes" answer.  Overall, just not as exciting as the Gong Show that Larry R. had predicted a few weeks ago.

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"Two senior Republican officials" are reporting that Samuel Alito is President Bush's next nominee for the Supreme Court. The announcement is expected this morning. [And it's now official.]

Senators on both sides of the aisle already are mentioning the "F" word: filibuster. Nobody is talking specifics yet, but if it comes to a decision to filibuster, the central focus will likely be Alito's dissent in Casey in 1991, in which Alito would have allowed a spousal notification requirement for women seeking an abortion.

Alito has the flashy credentials (Princeton, Yale) that Harriet Miers did not have, but more importantly, he has both experience as a practicing lawyer (prosecutor) and as a judge. Larry Ribstein looked at his business law opinions, but I see no business experience in his bios. His work as a prosecutor and his tough-on-crime reputation is likely to ruffle some feathers, but he also seems to have a reputation for fairness. Alito looks solid and is a strong departure from stealth mode.

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Larry Ribstein is getting a jump on Alito analysis, looking at some of his business law opinions and concluding:

Alito has displayed a marked tendency to enforce contracts as written, specifically including choice of law/forum and arbitration provisions that are intended to mitigate litigation costs. He's also obviously aware of the problems that can be caused by lax proof standards and open-ended liability.

Meanwhile, Doug Berman and UTR are wondering whether Alito is a misdirection, a la  Edith Brown Clement. I never understood the reason for the Clement misdirection, so I am not sure why the White House would try that again here. If it turns out to be Luttig, however, I am wondering whether these charges of intellectual mediocrity and cronyism are true.

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Here is a strange tidbit from the Miers story (W$J):

Even as Miers was in the process of withdrawing, she kept her word to the Senate Judiciary Committee that she would respond more fully to their written questions. At 11:40 last night, Miers delivered her second questionnaire submission, just making a midnight deadline. By that time, Miers had already spoken with Bush about her intention to withdraw. The White House said that conversation took place around 8:30 p.m. "Eight large boxes are in the committee's possession but now there is no reason to read or analyze those responses," Senate Judiciary Chairman Arlen Specter (R., Pa.) said. The 59-page document goes into more detail on several questions senators identified as particularly important for her to answer fully. For example, she lists 14 areas of constitutional law she has covered while working for the White House.

Prediction: someday someone will read that document for a history of the Harriet Miers nomination, and they will find something that will surprise us.

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