SCOTUS granted cert Friday afternoon, so there is sure to be another burst of blog coverage about the case.  If you want to get up to speed while saving yourself some clicks, go straight to this synopsis by newly minted California lawyer “Gabriel Malor” (a pseudonym, for reasons he explains here).  (Don’t be misled by the “moronlogger” label in his sidebar.  He [assuming "Gabriel" is really a "he"] frequently provides very good, concise coverage of major legal developments at his blog, Gabriel Malor.)

Simply put, on issues that are defined by ideology, the conservative position prevails in the Roberts Court except when Justice Kennedy joins with Justices Stevens, Souter, Ginsburg, and Breyer. Occasionally this term, Justice Stevens or Justice Breyer joined with the five most conservative justices to create a 6-3 or 7-2 vote for a conservative result. But never did one of the four most conservative justices — Chief Justice Roberts and Justices Scalia, Thomas and Alito — vote for a more liberal result in a case defined by ideology. The bottom line is that when the Court is divided 5-4 on issues where there are clear liberal and conservative positions, Justice Kennedy is always the swing vote.

Dean Chemerinsky never defines what constitutes an issued defined by “ideology.” I’m wondering . . . are there any that aren’t?

In his wrap up of the court’s year, I found this to be Chemerinsky’s most interesting observation:

[I]n some areas of criminal procedure — especially sentencing and the Confrontation Clauses — ideology does not predict outcomes. The conservatives on the Court, such as Justice Scalia, have taken the lead in these areas in expanding the rights of criminal defendants.

Maybe “law & order conservative” means something different than the sense with which it is usually used.

I ran across a couple of interesting posts claiming that various SCOTUS justices got the facts just plain wrong in at least three significant cases, including two very recent ones. Make of them — both the blog posts and the mistakes — what you will.

CAAFlog, a military law blog, reports that both the majority and dissenting SCOTUS justices in Kennedy v. Louisiana, case no. 07-343 (June 25, 2008), were wrong in noting that the federal government had not made child rapists eligible for the death penalty. According to CAAFlog, the Uniform Code of Military Justice makes child rapists in the military eligible for the death penalty. Get more details at CAAFlog, where a couple dozen commenters opine on the significance of the omission.

Gabriel Malor, an anonymous blogger and recent law school grad studying for the bar, notes the CAAFlog post as a follow-up to his own post last week that Justice Stevens got some facts wrong in Hamdan and Heller.

UPDATE (7/7/08):  SCOTUSBlog explains how the mistake in Kennedy may play out, and how the Department of Justice accepted responsibility for the error.

From Harmful Error:

[Tuesday] night’s episode of Boston Legal included a fairly amazing, even if a tad bit on the fantasy end of the spectrum, speech to the US Supreme Court, before actors who look very much like the real justices.

For more details and alink to the 10-minute clip on Youtube, see the post. If I run across any more blogs posting about the episode, I will link to them from this post.

A while back, I told you about a lawyer who blogs about episodes of The Office, tallying up the liability incurred in each episode. Maybe someone — someone with a lot of time on their hands, that is — ought to do that for Boston Legal.

UPDATE (4/25/08): Legal Profession Blog compares and contrasts Boston Legal with The Office.

H/T De Minimus.

He says he asks questions when he needs to.

Which reminds me of the kid who wouldn’t talk. At age 2, his parents took him to the doctor, who could find nothing physically wrong with him.

But at age 4, he still hadn’t said a word. To the doctor again. Again, nothing physically wrong.

And so it went for years, with his parents taking him to the doctor every year or so, only to be told again and again that there was no physical explanation.

Finally, one day when the boy was about 12 years old, he said during dinner, “The potatoes are cold.” His parents dropped their silverware in stunned disbelief.

“You can talk!” they shouted in unison.

“Of course I can talk,” said the boy. “So what?”

His parents made the obvious point: “You never talked before!”

“Up until now,” said the boy, “everything was fine.”

I wonder if they ever told that one in the Thomas household.

UPDATE (3/6/08): I’m curious who you readers in California or the Ninth Circuit find least likely to ask questions. Name your favorite silent California justice (Supreme Court or Court of Appeal) or Ninth Circuit judge in the comments.

It’s nice to see clear, compelling writing triumph, regardless of who presents it, especially in light of recent charges that the court tends to favor “superstar” attorneys with an established SCOTUS presence.

The catalyst for the discussion was whether a series of SCOTUS precedents dating back to the 1880s was effectively overruled by a 1990 SCOTUS decision.  The competing opinions in John R. Sand & Gravel disagree on the impact of the 1990 decision, with the majority concluding that it did not overrule the earlier cases.

I remember my legal writing professor emphasizing the importance of citing recent precedent.  But sometimes, the only case you have directly on point is quite old.  I’m pretty sure I have cited cases from the 1800s.  John R. Sand & Gravel proves that old — very old — cases can serve as effective precedent.

UPDATE (10/24/07): Legal Profession Blog has the abstract of Professor Lazarus’s paper and a link to it on SSRN.

UPDATE (10/26/07):  If you want more detail without actually downloading the paper, see Appealing in Nevada.

I got the link from Prawfsblawg. Who got it from GWU Law Professor Orin Kerr at The Volokh Conspiracy (who gives some especially good reasons to peruse them). Who got it from How Appealing. Who got it from . . . aw, who knows?

What’s a wiki, you ask?

I posted this several months ago about the growth of legal wikis and the potential for court citations to wikis. A wiki with the stature of SCOTUSblog behind it makes that even more likely.

It first notes the justification for not disclosing reasons for recusals:

Justices have traditionally declined to elaborate on why they’ve stepped aside. One reason: a legitimate concern that revealing the cause for a recusal could empower future litigants to manufacture conflicts — such as hiring the spouse or child of a justice as a lawyer on the case — to force the removal of a justice who appears philosophically hostile to their arguments.

It then argues that the most recent recusals of Justice Roberts and Justice Breyer from a pending securities suit were likely due to their ownership of stock in the parent corporation of a party.  Justice Roberts is since back on the case, likely because he sold his stock.

The editorial argues that since such financial stakes are eventually revealed in the justices’ annual financial disclosure statements, there is no harm in revealing stock ownership as a reason for recusal.  But it never explains how that translates into an argument for disclosing the reasons for all recusals.

Its more convincing point is that the lawyers in the case can generally figure out the reason for the recusal anyway, so why keep the public in the dark?

Thanks to ABA Journal for the link.

Technorati Tags: recusal, SCOTUS

Professor Smith gives a recitation of past changes in the authorized number of justices, with very brief detail on why some of them were made, and concludes:

If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two. Chief Justice John Roberts and his conservative colleagues might do well to bear in mind that the roll call of presidents who have used this option includes not just Roosevelt but also Adams, Jefferson, Jackson, Lincoln and Grant.

But as a commenter on the WSJ post notes about the piece (lots of comments there, by the way),

It’s a nice history lesson, but every change to the number of justices happened over 150 years ago, and both in times of true national upheaval–the new nation and then the civil war. Even the depression wasn’t sufficient for FDR to change the number.

I wonder if Professor Smith’s piece is a serious enough argument for SCOTUSBlog to chime in with something substantive. Right now, they only link to it in a “Round-Up” post, but you might want to check it out for its links to several other articles regarding distress over the Court’s direction.

Lots of discussion over at The Volokh Conspiracy, too, including this one:

Among a great many other questions, I was hoping [Smith] would explain why a series of controversial 6-5 decisions would be clearer or more persuasive than a series of controversial 5-4 decisions. But nope. Oh well.

Court packing could even become popular. Once the initial resistance is overcome, there will be more packing with each change of power as citizens not only get used to it but demand it as a perk of winning the last election. A hundred years from now, maybe we’ll see an article in the New York Times begin with “A bitterly divided U.S. Supreme Court, in a 76-75 decision . . .”

OK, that’s a little cynical.

I suspect there’s going to be a lot more posted about this.

UPDATE (7/27/07): And there is.

University of Wisconsin Law Professor Ann Althouse has lots to say and tons of comments from readers.

Prawfsblog has a few comments.

The Blog of Legal Times notes a sense of “buyer’s remorse” in the senate over the confirmation of Justice Alito and Chief Justice Roberts. Senator Specter is said to be examining their testimony before the Senate to see if their conduct on the bench squares with what they testified to as their views on stare decisis. According to BLT:

The review is designed to improve the confirmation hearing process, in particular what may be done to goose nominees into giving more substantive answers to questions. In recent years the hearings have largely become a process of avoidance, with nominees seeking to say as little as possible without scuttling their prospects for confirmation. Specter and fellow Judiciary Committee member Dick Durbin (D-Ill.) are searching for ways to make the hearings more probative.

Columbia law professor Michael Dorf uses the Claiborne case as a starting point for a short Findlaw article on the wider subject of the role of the Supreme Court and tensions in justiciability doctrine, A Mootness Dismissal Illustrates the Supreme Court’s Split Personality: Is it a Constitutional Court or a Court of Error? The article describes the underlying issue in Claiborne, examines whether other rules might have saved the Claiborne case, argues that the Supreme Court should not be subject to the same strict justiciability standards of lower federal courts, and compares the more liberal justiciability standards of courts of last resort in some other countries.  All this in a very readable 1900 or so words.