Gavel Grab

The U.S. Supreme Court has a “serious failure to communicate,” law professor Erwin Chemerinsky says. But he doesn’t stop there. Ever the teacher, Chemerinsky lays out ways the court could improve its communications in a recent law review article.

An ABA Journal article recaps the law review piece by Chemerinsky, dean of the law school at the University of California at Irvine.

Among his suggestions: That the court explain briefly its reasoning when it denies a case for review; that it include a short “plain English” explanation of each decision, that does not have legal precedential weight; that it permit cameras in the courtroom; that it not release as many as five or six rulings in the same day; and that it give advance notice by a day of what decisions will be issued; and that it set word and page limits on opinions.

“For better or worse, the Supreme Court gets the last word on so many of the issues that are among the most important and controversial in American society,” Chemerinsky wrote in the BYU Law Review. “Yet most people have far less sense of the court than other institutions of American government. In part, this is because of the court’s serious failure to communicate.”

U.S. Supreme Court Justice Sonia Sotomayor appeared on an episode of ABC’s “The View” this week to discuss her memoir, “My Beloved World.”

The justice joked that she felt as nervous coming on the show as lawyers do when they argue in front of the Supreme Court. The hosts asked Sotomayor about her childhood, and the stories she wrote about in her memoirs.

Elisabeth Hasselbeck asked Sotomayor if she had an opinion on affirmative action, and whether it had any impact on where she was today. Sotomayor replied that she could not state an opinion on affirmative action due to a pending case on the matter, but that in her memoir she had discussed what it was like to grow up in the civil rights movement. Read more

Supreme Court Justice Clarence Thomas has taken what some observers view as a poke against President Barack Obama. Here is what Justice Thomas was asked, and replied, in a CSPAN interview, according to Fox News:

Q: “Did you ever expect to see an African American president during your lifetime?

THOMAS: “Oh yeah, I guess I’ve always thought there would be black coaches, heads of universities — maybe again as I said I’m naïve but the thing I always knew is that it would have to be a black president who was approved by the elites and the media because anybody that they didn’t agree with, they would take apart.  And that will happen with virtually — you pick your person, any black person who says something that is not the prescribed things that they expect Read more

Perhaps the Supreme Court shouldn’t have taken up Bush v. Gore, retired Justice Sandra Day O’Connor told the Chicago Tribune editorial board when asked to identify the most controversial case decided during her quarter-century on the court.

“It took the case and decided it at a time when it was still a big election issue,” Justice O’Connor said, according to a Chicago Tribune news article. “Maybe the court should have said, ‘We’re not going to take it, goodbye.’ ”

The court case that decided the presidential election of 2000 ”stirred up the public” and “gave the court a less than perfect reputation,” she said.

“Obviously the court did reach a decision and thought it had to reach a decision,” she added. “It turned out the election authorities in Florida hadn’t done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day.”

Read more

On Thursday, the Obama administration urged the U.S. Supreme Court to uphold recess appointments he made to a labor agency, and strike down a lower-court ruling stating that the president overstepped constitutional boundaries when he made the appointments.

According to the Associated Press, the administration’s appeal relied on the argument that the decision undermines a presidential power that has been used for decades by presidents of both parties.

The lower court’s case stems from an appointment Obama made in January 2012 to the National Labor Relations Board (see Gavel Grab). USA Today says that the court’s decision could impact previous recess appointments from other presidents. Read more

In unusual litigation brought by a group of federal judges, the Supreme Court declined to hear an appeal of a lower-court ruling that mandated cost-of-living adjustments for the judges. The Justice Department had asked the Supreme Court to review the ruling.

The U.S. Court of Appeals for the Federal Circuit ruled in October that Congress cannot withhold cost-of-living adjustments that were promised for federal judges (see Gavel Grab). On Monday, the Supreme Court refused to hear an appeal of that ruling, according to a Reuters article.

When the appeals court handed down its decision, Chief Judge Randall Rader said the judiciary, as the “weakest of the three branches of government, must protect its independence and not place its will within the reach of the political whim.”

Reuters reported that the judges who sued will get some back pay, but the amount was uncertain.

Supreme Court Justice Antonin Scalia has elaborated in public remarks to university students on statements he made inside the courtroom during February oral arguments over a challenge to a key section of the federal Voting Rights Act (see Gavel Grab).

Justice Scalia said the act’s key provisions, enacted as an emergency response to race bias, have become an “embedded” type of “racial preferment” and likely would stay in effect indefinitely unless struck down by the court, according to a Wall Street Journal article.

The law’s Section 5 requires primarily Southern states and localities to receive approval for any changes to voting rules or electoral districts. “Section 5 functions as a racial entitlement because the federal government doesn’t take a similar interest in protecting the voting rights of white people from racial discrimination, Justice Scalia said” on Monday, according to reporter Jess Bravin’s Wall Street Journal article.

With an eye on maintaining at least an appearance of impartiality, many judges decline to discuss publicly legal issues in cases pending before them Read more

Hundreds of people from across the country gathered at the Supreme Court this week as the justices heard oral arguments Tuesday and Wednesday on the constitutionality of same-sex marriage. No more than a small handful of them were able to gain tickets to listen to the arguments.

The justices had an opportunity this week to educate the public on the inner workings of the court, and stream video of the arguments live. Instead, the justices remained “camera-shy,” releasing only an audio version of the arguments, says a Des Moines Register editorial.

Oral arguments are the only chance for Americans to get a glimpse into the court’s operations, but those are still restricted to the few people who manage to get a seat inside. The justices should take heed of the Iowa Supreme Court’s practice of live streaming oral arguments online, the editorial argues.

In 2008 when the Iowa Supreme Court heard the Varnum v. Brien case on same-sex marriage, the court allowed for extra public seating during arguments and distributed the video online. The U.S. Supreme Court should embrace this transparency, it states. Read more

“Doomsday” for DOMA? Supreme clout for Justice Anthony Kennedy? These were just a few common themes arising from a tsunami of media and blogosphere coverage after two days of marriage case oral arguments at the Supreme Court.

It’s hard to imagine that any tea leaf remains unread, or any justice’s remark during the oral arguments uncovered. Eager readers can now fill hours and hours learning about the court, the advocates who appeared before it and the constitutional and procedural arguments they made. Because Gavel Grab can’t aggregate better than others that have already done so, why not check out the How Appealing law blog or SCOTUSblog for scores of links to articles, analysis and commentary.

The historic arguments this week involved challenges to Proposition 8, a California law barring same-sex couples from marrying, and to a part of the federal Defense of Marriage Act (DOMA) that denies federal benefits to gay or lesbian couples who are married (see Gavel Grab).

A section of the federal Defense of Marriage Act that denies federal benefits to same-sex couples who are married came under skeptical questioning from a five-person majority of the Supreme Court’s nine justices on Wednesday.

“The question is whether or not the federal government under a federalism system has the authority to regulate marriage,” said Justice Anthony Kennedy, believed to be the decisive vote on the divided court, according to the New York Times.

Justice Kennedy suggested there are “risks” that DOMA, as the federal statute is called, interferes with the traditional authority of the states to define marriage, Reuters reported.

Justice Ruth Bader Ginsburg said a two-tiered kind of marriage system exists under DOMA. There is “full marriage” for some couples under it and “skim-milk marriage” for others, she said, according to the Los Angeles Times.

Early news media reports speculated heavily that if the court reaches a decision on the merits of the case, the challenged part of DOMA would be struck down, given the questions raised by Justice Kennedy and the court’s four liberal justices.

When the court heard oral arguments on Wednesday in United States v. Windsor, it was the second day of emotional and nationally watched cases involving the constitutionality of marriage for gay men and for lesbians. On Tuesday, the court heard a challenge to California’s Proposition 8, barring marriages for couples of the same sex (see Gavel Grab). Read more