As state legislatures have increasingly used sophisticated computers to draw voting maps configured to their political interests, districts have taken on odder shapes and prompted cracks about Rorschach ink blots. Friday’s Supreme Court decision in the Texas voting rights case offered its own kind of Rorschach test.
They may be known by their 5-4 decisions, but when it comes to outside criticism, the nine justices of the Supreme Court close ranks. Chief Justice John Roberts made headlines this weekend by defending his colleagues’ recusal choices, implicitly decisions by Justice Elena Kagan and Justice Clarence Thomas to participate in the health-care litigation. See story.
Roberts’s endorsement of his fellow justices came in the annual report on the federal judiciary, a typically dreary document that rarely draws much press or public attention. (I do remember, however, Chief Justice William Rehnquist making similar headlines in the late 1990s when he blasted the Senate for delaying judicial nominations.)
Chief Justice John Roberts opened the term Monday with a salute to Scalia on the 25th anniversary of his appointment. “The place has not been the same since,” Roberts said. (See story)
And as the week went on, it was all Scalia all the time. During three days of oral arguments, he cracked wise and showed himself, as often happens, particularly skeptical of claims (story) by a Death Row defendant and of lawyers’ arguments (story) in a church- state controversy.
Tuesday’s case of condemned prisoner Cory Maples, who was blocked from an appeal because of a missed deadline that was no fault of his own, drew sympathetic comments from a majority of the justices. Maples’ lawyers had left their firm without telling him, and when a court clerk sent relevant appeal papers to their office, the firm’s mailroom returned them unopened.
Expressing no surprise or outrage at the misconduct, Scalia took more of a “get over it” stance. He asked whether sanctions ever fall on lawyers deemed “inadequate” in a death penalty case: “Have you ever heard of anything happening to them? Other than they are getting another capital case?”
Then on Wednesday afternoon, in testimony with Justice Stephen Breyer before the Senate Judiciary Committee, Scalia got off another set of caustic lines and drew most attention (story): “I’m hopeful that the ‘living’ Constitution will die,” he said, referring to Breyer’s view that the Constitution should be broadly interpreted to adapt to changing times.
Scalia brushed off questions related to public complaints about a dysfunctional Washington and legislative gridlock. He said it should be difficult to pass legislation that may not be embraced by a majority. “Americans should appreciate that,” Scalia said. “They should learn to love the gridlock.”
And so it goes, 25 years and counting.
The Supreme Court decided a little reported dispute this week involving a California prisoner’s claim of deficient legal representation. It revealed justices’ competing views of when a state prisoner merits a federal hearing and how bad a childhood might have to be to make a difference in a death sentence.
By a 5-4 vote, the Court ruled against Scott Pinholster, convicted in 1984 of the brutal murders of two men, and reinstated the death sentence a lower U.S. appeals court had set aside. The issue was whether Pinholster’s trial lawyers had wrongly neglected to investigate his troubled childhood and psychiatric problems that, if related to the jury, might have gotten him a life sentence, rather than death.
The Supreme Court case of Snyder v. Phelps, brought by a bereaved father against anti-gay demonstrators who protested the funeral of his Marine Corps son, was heard the first week of the term, on October 6, and we still don’t have a decision. So a recurring question as I visited law schools this February recess was: What’s holding up Snyder v. Phelps?
When he dissented, Supreme Court Justice David Souter, who served 1990-2009, tended to do it quietly. He rarely read a dissenting opinion from the bench, as fellow liberal Stephen Breyer increasingly does. He never engaged in hyperbole, as conservative Antonin Scalia has (e.g., Scalia said the 2009 Boumediene decision “will almost certainly cause more Americans to be killed”). Yet several of Souter’s dissents endure, notably his 2007 protest in Bowles v. Russell, which will be back before the justices this week.
Among the first judicial nominees I ever tracked was Vaughn Walker, when I was working for Congressional Quarterly’s weekly magazine and covering the Judiciary Committees on the Hill. In 1989, key Democratic senators, led by California Sen. Alan Cranston, along with several liberal interest groups, opposed President George H.W. Bush’s nomination of Walker to a U.S. district court in San Francisco. It was primarily because of Walker’s membership in a men-only private club.