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Friend of F1@1F Ryan Malphurs in WaPo

Posted in F1@1F Friends, Supreme Court Side Walk by Mike Sacks on January 17, 2011

In this morning’s Washington Post, Bob Barnes features Ryan Malphurs’s newly-published study on the effects of laughter in the Supreme Court:

The Texas litigation consultant studied all the notations of laughter during the court’s 2006-2007 term, and discovered a few more himself while listening to tapes.

He found that fewer than half the comments were directed to the lawyer in front of the justices, or even to the argument he or she was making.

The rest were self-referential, or about the court, or about some third party, such as Congress or government in general.

In scholarly fashion, Malphurs – who studied the court for his communications dissertation at Texas A&M – looked for deeper meaning:

“The justices’ laughter diminishes formal control and power barriers, facilitating communication amongst themselves, between the justices and advocates, and with the audience members as well.”

I met Ryan on the Supreme Court sidewalk before the first day of the term, where he gave me a preview of this study as we paced in front of the Court trying to keep warm.  He stayed in line for the rest of that first week and later, in a post for F1@1F, reflected on his night with the crowd for Snyder v. Phelps.

Congratulations on the great press, Dr. Malphurs, and keep up the great work!

UPDATE (1/24/11): Adam Liptak of the New York Times gives Malphurs’s study a look.

Retired Justices as Recusal Subs, Redux

Posted in Law and Politics by Mike Sacks on August 9, 2010

Bob Barnes of the Washington Post revisits the possibility of rotating retired justices onto the Court when an active one recuses him- or herself:

Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) is pondering whether a change is needed. He’s considering legislation that would allow a retired member of the Supreme Court to replace a justice who has recused himself — or herself — in a particular case.

This would avoid the court potentially splitting 4 to 4 on a case and, Leahy hopes, encourage justices to recuse themselves more often when there is an appearance of partiality.

This idea was first publicized by the National Law Journal soon after Justice Stevens, upon announcing his retirement, suggested the idea to Leahy.  I wrote then about the possible political motivations and jurisprudential consequences:

This seems to me a politically loaded suggestion.  There has already been much talk about Kagan’s potentially high recusal rate over the next few terms as the Court continues to hear cases that her office had briefed in the lower courts.  On divisive issues, Kagan’s absence would lead to 5-3 victories for conservatives or ideological deadlocks at 4-4.

I cannot imagine that the GOP members of the Judiciary Committee will agree to this plan.  If Kagan does not recuse herself on a case in which a conservative may be obligated to do so, two of the substitutes–Souter and Stevens–would be a fifth vote on the left.  It is not inconceivable that these two retired ringers could cut away at the Roberts Court’s business-friendly precedents, as the Court sometimes goes shorthanded on cases concerning corporations in which justices may own stock.

O’Connor, too, exited the Court to the left of Anthony Kennedy on campaign financechurch-and-stateabortion, andaffirmative action cases – all issues that have been cut back since Alito succeeded her.  However, recusals on these cases are less likely.  That is, unless some advocacy group somehow finds a not-too-distant relative of Justice Scalia who is an abortion doctor in Nebraska that is willing to be a named plaintiff in a federal case.

Barnes’s article today echoes my sentiments:

at some point, theory steps aside and reality sets in. “It’s an interesting idea,” said James Sample, a Hofstra law professor who has specialized in studying judicial recusals. “The challenge is that it’s so difficult to divorce discussion of the proposal from the individual justices who might end up replacing the recused justices.”

In other words, the bench currently consists of Stevens, O’Connor and retired justice David H. Souter, all of whom are to the left of the court’s dominant conservatives.

It is as unlikely to think Republicans would think it is a good idea to put them back in the lineup, Sample said, as it is to think Leahy would be as keen on the idea if the available replacements were, say, former chief justices William H. Rehnquist or Warren E. Burger.

SCOTUSReligion

Posted in Clairvoyance, Law and Politics by Mike Sacks on March 8, 2010

Bob Barnes at the Washington Post has a column today that discusses whether the days of the Court’s religiously-reserved seats are over:

Here’s the kind of question that might violate the rules you learned about proper dinner conversation: Does President Obama’s next Supreme Court nominee need to be a Protestant?

If Justice John Paul Stevens decides to call it a career after he turns 90 next month, the Supreme Court would for the first time in its history be without a justice belonging to America’s largest religious affiliations.

Turns out I’ve violated dinner conversation etiquette several times since I started F1@1F in December.

As I stated on F1@1F’s first day, I believe Obama will nominate Judge Diane Wood to preserve what has now become “the W.A.S.P. seat” when Stevens retires.   For this reason (though not only this reason) I disagree with Tom Goldstein’s prediction at SCOTUSBlog that Solicitor General Elena Kagan will be Stevens’s successor.

In fact, Kagan may have time yet before she gets her much-expected nomination to the bench.  I think Justice Ginsburg’s successor will be a person of color from a yet-to-be represented ethnic group.  Only when Justice Breyer retires will the President seek to preserve the Jewish seat.

By then, however, Kagan’s window may be closed by age or the President’s party affiliation.  And no amount of goodwill Kagan built up among the conservative legal professoriate during her Harvard Law deanship will compel a GOP President to nominate her.

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