Gavel Grab

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Far-Reaching Impact of Supreme Court Draws Attention Again

washington-supreme-court-building-washington-d-c-dc169The blockbuster decisions that the Supreme Court typically issues at the end of its term are drawing attention to the court and its far-reaching impact.

After the Supreme Court said on Wednesday that in most cases police should “Get a warrant” before searching the cellphones of people they arrest (see Gavel Grab), there was widespread media attention to the ruling’s implications and also to what it tells us about the court’s individual justices.

“Supreme Court cellphone ruling hints at broader curbs on surveillance,” declared a Washington Post headline. Applauded a New York Times editorial, “The Supreme Court Saves Cellphone Privacy.” Dahlia Lithwick wrote at Slate, “In the cellphone cases, the justices prove they are not Luddites.” Read more

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Court: Warrant Needed to Search Cellphone of Arrested Person

US Supreme CourtTo search the cellphone of a person who is arrested, the police generally must get a warrant first, the Supreme Court ruled 9-0 on Wednesday in a major decision about privacy rights in the digital era.

“Modern cellphones aren’t a technological convenience,” Chief Justice Roberts wrote, according to the Wall Street Journal. “With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’”

“The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought,” Chief Justice Roberts added.


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Roberts Court Delivers ‘Uncertain Justice,’ Tribe Writes

A general view of the U.S. Supreme Court in WashingtonIt’s not just oversimplified, it’s potentially dangerous to view the Supreme Court through the lens of 5-4 splits along ideological lines, Harvard constitutional law professor Laurence Tribe writes about a new book he has co-authored.

At The Volokh Conspiracy blog, Tribe plugs “Uncertain Justice: The Roberts Court and The Constitution,” a book he has written with Joshua Matz. Tribe says the book goes beyond frequent analyses written to vilify or oversimplify, in order to inform readers about the “amazing tales” and back stories of leading decisions of the Roberts Court:

“The 5-4 view isn’t merely inadequate; it can also be dangerous. When a generation of young lawyers is raised to see law as nothing but politics by other means, and when even some justices start repeating the view in public, it may prove self-fulfilling.” Read more

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In Oil Spill Litigation, Concerns About Justices and Sons

News media in Louisiana are reporting that two U.S. Supreme Court justices have sons who work at Gibson Dunn, the law firm representing BP in litigation over the Gulf of Mexico oil spill. One outlet, The Times-Picayune, says there are some calls for the justices to step aside from hearing any related proceedings in order to prevent an appearance of partiality.

GOMSpill_Hdr_ArtLast week, a federal appeals court ordered that business claims against BP may proceed while BP awaits action by the high court on its appeal of Fifth U.S. Circuit Court of Appeals ruling. The appeals court had said that to win payment, it is not necessary for claimants to prove the oil spill harmed them directly. BP is asking reversal of the appeals court ruling.

Justices Samuel Alito and Antonin Scalia each has a son who works at Gibson Dunn, reported.

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Greenhouse: Is High Court Itself an ‘Engine of Polarization’?

11LIPTAKSUB-videoSixteenByNine1050Legal analyst Linda Greenhouse is adding her voice to those recently lamenting the extreme polarization of the U.S. Supreme Court (see Gavel Grab). In a New York Times op-ed, Greenhouse suggests the court’s polarization is more than a reflection of polarized politics in the United States:

“[I]t occurs to me to wonder if the flow might also be running in the other direction. I wonder whether the Supreme Court itself has become an engine of polarization, keeping old culture-war battles alive and forcing to the surface old conflicts that people were managing to live with. Suppose, in other words, that instead of blaming our politics for giving us the court we have, we should place on the court at least some of the blame for our politics.” Read more

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Ornstein Advocates Term Limits for Supreme Court Justices

US Supreme CourtWith the Supreme Court polarized in what some analysts say is an unprecedented way, one of Washington’s best-known political scientists is arguing for term limits for the court’s justices.

In the National Journal, scholar Norm Ornstein of the American Enterprise Institute says the court “is polarized along partisan lines in a way that parallels other political institutions and the rest of society, in a fashion we have never seen. A couple of years ago, David Paul Kuhn, writing in The Atlantic, noted that the percentage of rulings by one-vote margins is higher under [Chief Justice John] Roberts than any previous chief justice in American history. Of course, many decisions are unanimous—but it is the tough, divisive, and most important ones that end up with the one-vote margins.” Read more

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Analyst: If Court is Profoundly Paralyzed, Whither Justice?

Can “justice for all” exist when the U.S. Supreme Court is profoundly polarized? Analyst Dahlia Lithwick poses this question in a Slate essay about sharp recent dissents that accused the majority of a kind of blindness.

“[I]t strikes me that when three jurists accuse their colleagues of either shutting their eyes or being willfully blind in the course of three weeks, something new is going on. Particularly when in each instance, the dissenter is describing a world that is amply obvious to them: [Justice Sonia] Sotomayor’s world of racial discrimination, [Justice Elena] Kagan’s world of religious sectarianism, and [Justice Antonin] Scalia’s world of unchecked federal agency power grabs.”

These claims of blindness, she writes, “come from a sense at each side of the court that aspects of life as the justices themselves live it, doesn’t even exist for the other side. This profound polarization raises real questions, not just about the future of the court and the possibility of justice divorced from politics, but about the deeper possibility of ever achieving ‘justice for all.’”

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Essays: On Rescuing the Supreme Court From Politics

Are the justices of the U.S. Supreme Court politically partisan; totally independent; or somewhere in between? Debate on the topic has been renewed lately, in light of a New York Times article that reported on an academic study, and also new polling.

In the Los Angeles Times, editorial board member Michael McGough has a column that draws on an analogy with a prelate of the Church of England who is called a “party bishop” because he is overly identified with one faction of the Church and focuses on communing with that faction. It seems that the high court’s justices are becoming “party judges,” he writes. McGough concludes:

“Both liberal and conservative justices reject the idea that they are robotically pursuing a partisan agenda, and point to decisions where liberals and conservatives all agree, or form unfamiliar alliances. They would insist that they are not party judges.  But if they want to be believed, they should expand their horizons, their hiring and their social calendars. If the bishops can do it, so can they.” Read more

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Law Professor: Consider Fixed Terms for Supreme Court Justices

In an ongoing debate over the appropriateness of life tenure for U.S. Supreme Court justices, a law professor cites recent popular opinion polling critical of the court and calls for fixed terms plus a lifetime salary for the justices.

Eric Segall of the Georgia State University College of Law called in a CNN commentary for cameras in the Supreme Court and for a constitutional amendment for fixed terms and a lifetime salary. “This type of system,” he wrote about the latter proposal, “provides much-needed judicial independence without the downsides of life tenure.” Read more

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Danger Signs From a Court Polarized Along Partisan Lines?

us_supreme_courtThe U.S. Supreme Court is closely divided along partisan lines as it never has been before. While this mirrors divisions among intellectuals elsewhere in our society, it is “a recipe for dysfunction” and could ultimately affect public confidence in the courts.

Adam Liptak of the New York Times offers this analysis in a commentary. He warns, “The perception that partisan politics has infected the court’s work may do lasting damage to its prestige and authority and to Americans’ faith in the rule of law.”

“An undesirable consequence of the court’s partisan divide,” said Justin Driver, who teaches law at the University of Texas, “is that it becomes increasingly difficult to contend with a straight face that constitutional law is not simply politics by other means, and that justices are not merely politicians clad in fine robes. If that perception becomes pervasive Read more

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