ON Justice Ginsburg…

Slobogin on Justice Ginsburg’s Gradualism in Criminal Procedure
Christopher Slobogin (Vanderbilt University – School of Law) has posted Justice Ginsburg’s Gradualism in Criminal Procedure (Ohio State Law Journal, Vol. 70, No. 4, p. 870, 2009) on SSRN. Here is the abstract:

This article, written for a symposium analyzing Justice Ginsburg’s jurisprudence on the 15th anniversary of her tenure on the Supreme Court, is the first sustained look at her views on criminal procedure issues (search and seizure, interrogation, the right to counsel, trial rights, sentencing procedures, and the criminal appeals and collateral review processes). Not surprisingly, given her ACLU background, she tends to vote in favor of criminal defendants’ positions more often than most other justices, and she is the most likely to do so since Chief Justice Roberts joined the Court. At the same time, the gradualist tendencies that she has exhibited in other areas of the law – involving incremental steps rather than sweeping pronouncements – is apparent in this area as well. After describing in some detail the major trends in Justice Ginsburg’s voting patterns in criminal procedure cases, the article investigates the effects of this gradualist approach in the Fourth Amendment area, focusing in particular on her decision-making in drug testing and car stop cases.

Supreme Court Justice John Paul Stevens retiring
Associated Press Writer

WASHINGTON (AP) — Supreme Court Justice John Paul Stevens, the court’s oldest member and leader of its liberal bloc, is retiring. President Barack Obama now has his second high court opening to fill.
Stevens said Friday he will step down when the court finishes its work for the summer in late June or early July. He said he hopes his successor is confirmed “well in advance of the commencement of the court’s next term.”

Stevens’ announcement leaves ample time for the White House to settle on a successor and for Senate Democrats, who control a 59-vote majority, to hold confirmation hearings and a vote before the court’s next term begins in October. Republicans have not ruled out attempts to delay confirmation.

Stevens’ announcement had been hinted at for months. It comes 11 days before his 90th birthday.

Throughout his tenure, which began after President Gerald Ford nominated him in 1975, Stevens usually sided with the court’s liberal bloc in the most contentious cases – those involving abortion, criminal law, civil rights and church-state relations. He led the dissenters as well in the case of Bush v. Gore that sealed President George W. Bush’s election in 2000.

Stevens began signaling a possible retirement last summer when he hired just one of his usual complement of four law clerks for the next court term. He acknowledged in several interviews that he was contemplating stepping down and would certainly do so during Obama’s presidency.

Obama planned to address Stevens’ retirement with a 1:20 p.m. EDT statement in the Rose Garden.

Chief Justice John Roberts said in a written statement that Stevens “has enriched the lives of everyone at the Court through his intellect, independence, and warm grace.”

Senate confirmations of Supreme Court justices have increasingly become political battles and this one will come amid the added heat of congressional election campaigns.

Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, appealed for civility. “I hope that senators on both sides of the aisle will make this process a thoughtful and civil discourse,” Leahy said.

Looking toward those hearings, Senate Republican Leader Mitch McConnell of Kentucky said, “Americans can expect Senate Republicans to make a sustained and vigorous case for judicial restraint and the fundamental importance of an evenhanded reading of the law.”

Stevens informed Obama in a one-paragraph letter addressed to “My dear Mr. President.” It was delivered to the White House by court messenger at 10:30 a.m. EDT, two minutes before the court’s public announcement. The news came on a day when the court wasn’t in session.

White House counsel Bob Bauer telephoned the news to Obama on Air Force One, as he returned from a trip to Prague.

The leading candidates to replace Stevens are Solicitor General Elena Kagan, 49, and federal appellate Judges Merrick Garland, 57, in Washington and Diane Wood, 59, in Chicago.

Stevens’ departure will not change the court’s conservative-liberal split because Obama is certain to name a liberal-leaning replacement, as he did with his first nominee, Justice Sonia Sotomayor. But the new justice is not likely to be able to match Stevens’ ability to marshal narrow majorities in big cases.

Stevens was able to draw the support of the court’s swing votes, now-retired Justice Sandra Day O’Connor and Justice Anthony Kennedy, to rein in or block some Bush administration policies, including the detention of suspected terrorists following the Sept. 11, 2001, attacks, its tilt toward protecting businesses from some lawsuits and its refusal to act against global warming.

But after the arrival of Roberts and Justice Samuel Alito, President George W. Bush’s appointees, Stevens more often was among the four liberal justices in dissent.

Stevens’ recent dissent in a major case involving campaign finance laws showed both the eloquence of his writing and, in his stumbling reading of his opinion in the courtroom, signs that his age might at long last be affecting him, though he remains an active tennis player and swimmer.

He is the court’s last World War II veteran and that experience sometimes finds its way into his writings, recently in a reference to Tokyo Rose, the English-speaking Japanese radio announcer who addressed U.S. soldiers in the Pacific.

Stevens had a reputation as a bright and independent federal appeals court judge when Ford, acting on a recommendation by Attorney General Edward Levi, nominated him to the Supreme Court.

His friendly manner of questioning lawyers who appeared before the court could not hide Stevens’ keen mind. His questions often zero in on the most telling weaknesses of a lawyer’s argument and the case’s practical effect on everyday people.

A pleasant, unassuming man, Stevens has been a prolific and lucid writer. For many years, he wrote more opinions each court term than any other justice.

Most justices let their law clerks write the first drafts of opinions, but Stevens has used his clerks as editors.

He’d write the first draft and submit it to the clerks for comment. “That’s when the real fun begins,” Stevens once told a visitor. “The give and take can get pretty fierce.”

As a result, his opinions have reflected his personal writing style – a conversational one that contrasted sharply with the dry, dull efforts of some other justices.

He had said that one sign of his time to retire would be an inability to churn out those first drafts. But he insisted in recent days that he was still writing them.

A member of a prominent and wealthy Chicago family, Stevens spoke proudly of being a Cubs fan who was at Wrigley Field for the 1932 World Series game when Babe Ruth supposedly pointed to the spot where he would hit a home run. He met many celebrities of the day when they stayed at his family’s hotel in Chicago, including aviation pioneer Amelia Earhart.

Stevens graduated from the University of Chicago. After serving in the Navy during World War II, he earned a law degree from Northwestern University, finishing first in his class. He later taught antitrust law at both schools.

In 1979, Stevens became only the second justice to divorce while serving on the court. Stevens and his first wife, Elizabeth Jane Sheeren, had four children. He later married a former Chicago neighbor, Maryan Mulholland Simon.

An avid bridge and tennis player, Stevens also is a licensed pilot. From autumn through spring, he and his wife routinely travel to his condominium in Fort Lauderdale, Fla.

“I lead an average life, just like anybody else,” Stevens once told an acquaintance. “I play bridge, play tennis, try to play better golf. I’m very comfortable here.”

Even in his late 80s, Stevens said he swam every day and continued playing tennis several times a week. He described reading legal briefs on the beach, noting his colleagues’ jealousy when in court one day he opened a brief and grains of sand spilled out.

Latest from the Supremes…..

opinion in fair-cross-section case
The opinion in Berghuis v. Smith is here. Here is the syllabus:

Criminal defendants have a Sixth Amendment right to trial by an impartial jury drawn from a fair cross section of the community. See Taylor v. Louisiana, 419 U. S. 522. To establish a prima facie violation of the fair-cross-section requirement, a defendant must prove that: (1) a group qualifying as “distinctive” (2) is not fairly and reasonably represented in jury venires, and (3) “systematic exclusion” in the jury-selection process accounts for the underrepresentation. Duren v. Missouri, 439 U. S. 357, 364.

At voir dire in the Kent County Circuit Court trial of respondent Smith, an African-American, the venire panel included between 60 and 100 individuals, only 3 of whom, at most, were African-American. At that time, African-Americans constituted 7.28% of the County’s jury-eligible population, and 6% of the pool from which potential jurors were drawn. The court rejected Smith’s objection to the panel’s racial composition, an all-white jury convicted him of second-degree murder and felony firearm possession, and the court sentenced him to life in prison with the possibility of parole.

On order of the Michigan Court of Appeals, the trial court conducted an evidentiary hearing on Smith’s fair-cross-section claim.The evidence at the hearing showed, inter alia, that under the juror-assignment order in effect when Smith’s jury was empaneled, the County assigned prospective jurors first to local district courts, and,only after filling local needs, made remaining persons available to the countywide Circuit Court, which heard felony cases like Smith’s.Smith calls this procedure “siphoning.” The month after Smith’s voir dire, however, the County reversed course and adopted a Circuit-Court-first assignment order. It did so based on the belief that the district courts took most of the minority jurors, leaving the Circuit Court with a jury pool that did not represent the entire County. The trial court noted two means of measuring the underrepresentation of African-Americans on Circuit Court venires. First, the court de-scribed the “absolute disparity” test, under which the percentage of African-Americans in the jury pool (6%) is subtracted from the percentage of African-Americans in the local, jury-eligible population (7.28%). According to this measure, African-Americans were under-represented by 1.28%. Next, the court set out the “comparative disparity” test, under which the absolute disparity (1.28%) is divided by the percentage of African-Americans in the jury-eligible population (7.28%). The quotient (18%) indicated that, on average, African-Americans were 18% less likely, when compared to the overall jury-eligible population, to be on the jury-service list. In the 11 months after Kent County discontinued the district-court-first assignment policy, the comparative disparity, on average, dropped from 18% to15.1%. The hearing convinced the trial court that African-Americans were underrepresented on Circuit Court venires. But Smith’s evidence, the trial court held, was insufficient to prove that the juror-assignment order, or any other part of the jury-selection process, had systematically excluded African-Americans. The court therefore rejected Smith’s fair-cross-section claim.

The state intermediate appellate court reversed and ordered a newmtrial with jurors selected under the Circuit-Court-first assignment order. Reversing in turn, the Michigan Supreme Court concluded that Smith had not established a prima facie Sixth Amendment violation. This Court, the state High Court observed, has specified no preferred method for measuring whether representation of a distinctive group in the jury pool is fair and reasonable. The court noted that lower federal courts had applied three tests: the absolute and comparative disparity tests and a standard deviation test. Adopting a case-by-case approach allowing consideration of all three means of measuring underrepresentation, the court found that Smith had failed to establish a legally significant disparity under any measurement. Nevertheless giving Smith the benefit of the doubt on under-representation, the court determined that he had not shown systematic exclusion.

Smith then filed a federal habeas petition. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) prohibits federal habeas relief unless the state court’s adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of,clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U. S. C. §2254(d)(1), or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” §2254(d)(2). Finding no infirmity in the Michigan Supreme Court’s decision when assessed under AEDPA’s standards, the District Court dismissed Smith’s petition. The Sixth Circuit reversed. The Court of Appeals ruled, first, that courts should use the comparative disparity test to measure underrepresentation where, as here, the allegedly excluded group is small. The court then held that Smith’s comparative disparity statistics demonstrated that African-Americans’ representation in County Circuit Court venires was unfair and unreasonable.It next stated that Smith had shown systematic exclusion. In accord with the Michigan intermediate appellate court, the Sixth Circuit believed that the district-court-first assignment order significantly reduced the number of African-Americans available for Circuit Court venires. Smith was entitled to relief, the Sixth Circuit concluded, because no important state interest supported the district-court-first allocation system.

Held: The Sixth Circuit erred in ruling that the Michigan Supreme Court’s decision “involv[ed] an unreasonable application o[f] clearly established Federal law,” §2254(d)(1). Duren hardly establishes—no less “clearly” so—that Smith was denied his Sixth Amendment right to an impartial jury drawn from a fair cross section of the community. Pp. 10–16.

(a) The Duren defendant readily met all three parts of the Court’s prima facie test when he complained of the dearth of women in a county’s jury pool. First, he showed that women in the county were both “numerous and distinct from men.” 439 U. S., at 364. Second, to establish underrepresentation, he proved that women were 54% of the jury-eligible population, but accounted for only 26.7% of those summoned for jury service, and only 14.5% of those on the postsummons weekly venires from which jurors were drawn. Id., at 364–366. Finally, to show the “systematic” cause of the underrepresentation, he pointed to Missouri’s law permitting any woman to opt out of jury service and to the manner in which the county administered that law. This Court noted that “appropriately tailored” hardship exemptions would likely survive a fair-cross-section challenge if justified by an important state interest, id., at 370, but concluded that no such interest could justify the exemption for each and every woman, id., at 369–370. Pp. 10–11.

(b) Neither Duren nor any other decision of this Court specifies the method or test courts must use to measure underrepresentation.Each of the three methods employed or identified by the courts below—absolute disparity, comparative disparity, and standard deviation—is imperfect. Absolute disparity and comparative disparity measurements can be misleading where, as here, members of the distinctive group compose only a small percentage of the community’s jury-eligible population. And it appears that no court has relied exclusively on a standard deviation analysis. Even absent AEDPA’s constraint, this Court would have no cause to take sides here on the appropriate method or methods for measuring underrepresentation.Although the Michigan Supreme Court concluded that Smith’s statistical evidence failed to establish a legally significant disparity under either the absolute or comparative disparity tests, the court nevertheless gave Smith the benefit of the doubt on underrepresentation in order to reach the issue ultimately dispositive in Duren: To the extent underrepresentation existed, was it due to “systematic exclusion”? See Duren, 439 U. S., at 364. Pp. 11–13.

(c) Smith’s evidence gave the Michigan Supreme Court little reason to conclude that the district-court-first assignment order had any significant effect on the representation of African-Americans on Circuit Court venires. Although the record established that some County officials believed that the assignment order created racia ldisparities, and the County reversed the order in response, the belief was not substantiated by Smith’s evidence. He introduced no evidence that African-Americans were underrepresented on the Circuit Court’s venires in significantly higher percentages than on the District Court for Grand Rapids, which had the County’s largest African-American population. He did not address whether Grand Rapids had more need for jurors per capita than any other district in Kent County. And he did not compare the African-American representation levels on Circuit Court venires with those on the Federal District Court venires for the same region. See Duren, n. 25. Smith’s best evidence of systematic exclusion was the decline in comparative underrepresentation, from 18 to 15.1%, after Kent County reversed its assignment order. But that evidence indicated no large change and was, in any event, insufficient to prove that the original assignment order had a significantly adverse impact on the representation of African-Americans on Circuit Court venires. Pp.13–14.

(d) In addition to renewing his “siphoning” argument, Smith urges that a laundry list of factors—e.g., the County’s practice of excusing prospective jurors without adequate proof of alleged hardship, and the refusal of County police to enforce orders for prospective jurors to appear—combined to reduce systematically the number of African-Americans appearing on jury lists. No “clearly established” precedent of this Court supports Smith’s claim. Smith urges that one sentence in Duren, 439 U. S., at 368–369, places the burden of proving causation on the State. But Smith clipped that sentence from its context: The sentence does not concern the demonstration of a prima face case; instead, it speaks to what the State might show to rebut the defendant’s prima facie case. The Michigan Supreme Court was therefore far from “unreasonable,” §2254(d)(1), in concluding that Duren first and foremost required Smith himself to show that the underrepresentation complained of was due to systematic exclusion. This Court, furthermore, has never “clearly established” that jury-selection-process features of the kind on Smith’s list can give rise to a fair-cross-section claim. Rather, the Taylor Court “recognized broad discretion in the States” to “prescribe relevant qualifications for their jurors and to provide reasonable exemptions.” 419 U. S., at 537–538. And in Duren, the Court understood that hardship exemptions resembling those Smith assails might well “survive a fair-cross-section challenge.” 439 U. S., at 370. Pp. 14–16.

543 F. 3d 326, reversed and remanded.

GINSBURG, J., delivered the opinion for a unanimous Court. THOMAS, J., filed a concurring opinion.

The Next Justice……

March 25, 2010
In Possible Retirement, the Likelihood of an Election-Year Confrontation
WASHINGTON — No announcement has been made, but the widely anticipated retirement of Justice John Paul Stevens in coming weeks has the White House, Senate and lobbying groups bracing for an election-year confrontation over the future of the Supreme Court.

Although Justice Stevens has not disclosed his intentions, he has suggested he may announce as soon as next month plans to step down after 35 years on the bench, providing President Obama his second opportunity to shape the nation’s highest court. A new nomination could set off another charged ideological battle heading into the fall midterm campaign.

Wary of appearing presumptuous, the White House has avoided overt moves to prepare, but it already has long dossiers on a host of candidates after last year’s nomination of Sonia Sotomayor. If Justice Stevens retires, Democrats close to the White House said, the leading contenders will be three runners-up from last year: Elena Kagan, the solicitor general; Diane P. Wood, an appeals court judge in Chicago; and Merrick B. Garland, an appeals court judge in Washington.

The choice would depend in part on what kind of fight Mr. Obama is willing to wage amid other tough legislative battles. Energized if bruised from his campaign to overhaul the nation’s health system, Mr. Obama this year wants to push through energy, education and financial regulation measures, ratify an arms control treaty and make progress on immigration legislation.

A confirmation battle could not only provoke fresh skirmishing on longstanding issues like guns, abortion, race and terrorism; it might also generate new divisions stemming from constitutional challenges to Mr. Obama’s new health care program and a recent Supreme Court ruling guaranteeing the right of corporations and unions to spend unlimited amounts of money in candidate elections.

Mr. Obama may feel empowered to take on a fight. “The president now has health care behind him,” said Walter E. Dellinger III, acting solicitor general in the Clinton administration. “Though there are other major initiatives, there’s nothing comparable with health care to compete with this for expenditure of the president’s political capital.”

But he may still want to avoid conflict. “The wise way to do this would be to find someone who would be hard to be defeated,” said Senator Charles E. Schumer, a New York Democrat who shepherded Justice Sotomayor’s confirmation.

Justice Stevens, appointed by President Gerald R. Ford in 1975, turns 90 next month and is already the fourth-longest-serving justice in history. Leader of the liberal wing, he signaled his possible retirement last fall by hiring only one clerk for the term that starts this October, instead of the usual four.

He told The New Yorker on March 8 that he would decide within a month. He said three current clerks had volunteered to stay if needed. “So I have my options still,” he said. “And then I’ll have to decide soon.” Either way, he made it clear he wanted Mr. Obama to choose his successor: “You can say I will retire within the next three years. I’m sure of that.”

While a replacement for Justice Stevens most likely would not shift the ideological balance on the court, it could secure the seat for the liberal faction for years. But not all liberals are alike. The president’s base hopes he will name a full-throated champion to counter Justice Antonin Scalia, the most forceful conservative on the bench.

“In the Sotomayor case, they weren’t willing to take it on,” said Geoffrey R. Stone, a University of Chicago law school professor and former colleague of Mr. Obama’s who joined a group letter to the president last month urging more assertive judicial appointments. “I hope they’re willing to take it on now. In light of the health care vote, they have some momentum now.”

Other activists said Mr. Obama should not be deterred by the coming Congressional elections. “No matter who he chooses, the Republicans will use the issue to mobilize their base for the midterms,” said Nan Aron, president of the Alliance for Justice, a liberal advocacy group.

The candidates who would most excite the left include the constitutional scholars Harold Hongju Koh, Cass R. Sunstein and Pamela S. Karlan. Mr. Koh and Mr. Sunstein now work in the Obama administration while Ms. Karlan teaches at Stanford Law School. But none were finalists last year, and insiders doubt Mr. Obama would pick any of them now.

“If it were a Sunstein or a Koh, you would have all-out war,” said Curt Levey, executive director of the Committee for Justice, a conservative advocacy group.

The front-runner with the most support among liberals would be Judge Wood, who has opposed some abortion restrictions and is respected for standing firm against strong, conservative judges on the Court of Appeals for the Seventh Circuit. She and Mr. Obama were colleagues at the University of Chicago.

With no judicial record, Ms. Kagan is less known. As dean at Harvard Law School, she hired conservative professors to expand academic diversity and has supported assertions of executive power. But she stirred a furor by barring military recruiters because of the ban on gays and lesbians serving openly.

Judge Garland might be the safest choice. A former federal prosecutor now on the Court of Appeals for the District of Columbia Circuit, he is well regarded by Democrats as well as influential Republican senators like Orrin G. Hatch of Utah. But his careful jurisprudence stirs less enthusiasm among liberal activists.

All three were vetted last year, and Judge Wood and Ms. Kagan were interviewed by the president along with Justice Sotomayor. The fourth candidate interviewed was Janet Napolitano, the homeland security secretary, but her prospects may be marred by her comment after the attempted Christmas bombing of an American airliner that “the system worked.” She later explained she meant the system’s response after the attack, and she remains a favorite of Mr. Obama’s who has not been ruled out, a top official said.

The search, being led by the new White House counsel, Robert F. Bauer, may reach beyond the typical pool of appellate judges for a politician, Democrats said. Gov. Jennifer M. Granholm of Michigan was vetted last year, and Gov. Deval Patrick of Massachusetts is a political ally. On Capitol Hill, there is talk of Senators Richard J. Durbin of Illinois and Claire McCaskill of Missouri.

Thomas C. Goldstein, a Supreme Court litigator at Akin Gump Strauss Hauer & Feld and founder of the Scotusblog Web site, said the White House wanted to duplicate the success of the Sotomayor confirmation.

“There’s no diversity imperative here,” Mr. Goldstein said. “They can push whoever they want. But that doesn’t mean there aren’t diversity advantages. Appointing two women in a row I think they would view as a plus.”

“Victory for U.S. on detainees”

ScotusBlog has the story here:

The Supreme Court voted on Monday to leave intact a lower court ruling that took away almost all of the power of federal judges to block, even temporarily, the transfer of detainees out of Guantanamo Bay. The Court, in a brief order, denied review of the D.C. Circuit Court’s ruling in April in Kiyemba v. Obama (Supreme Court docket 09-581), now informally known as “Kiyemba II.” This marked a significant victory for the federal government, enhancing its authority to decide when and where to send detainees that are cleared for release from confinement without interference by federal judges and without challenge by detainees’ lawyers.

March 22, 2010 | Permalink

Judicial Conflict?

Clarence Thomas’ Wife Joins Tea Party

Virginia Thomas is no ordinary activist. In fact, she’s the wife of Supreme Court Justice Clarence Thomas and she has founded a Tea Party-linked group, which could stretch the court’s traditional sense of impartiality. Thomas’ new group is called Liberty Central Inc. It’s a nonprofit lobbying group set to issue score cards for Congress members during the November election. The group and work doesn’t violate ethical rules for judges, but it could potentially be grounds for conflict of interest for her husband. Liberty Central may be a nonpartisan group, but it leans toward conservative principles and its nonprofit title allows it to raise unlimited amounts of corporate money without disclosing its donors. The group is set to launch fully in May.