The following is an essay for our Race and the Supreme Court program by Abigail Thernstrom,  vice-chair of the U.S. Commission on Civil Rights and adjunct scholar at the American Enterprise Institute.  Ms. Thernstrom is the author, most recently, of the book Voting Rights — and Wrongs: The Elusive Quest for Racially Fair Elections.

Northwest Austin Municipal Utility District No. 1 v. Holder (NAMUDNO) was one of the most anticipated cases of the 2008-2009 term. Civil rights advocates had been in a state of panic, fearing a majority would declare the most radical provision in the 1965 Voting Rights Act unconstitutional – no longer justified in the context of a racially changed nation. But the Court declined to decide the complex constitutional question hanging over the nation’s most sacred civil rights law. Eight justices agreed: Right question, perhaps, but wrong case.

The issue was the continuing constitutional legitimacy of section 5. The provision had put southern states, long committed to black disfranchisement, under the equivalent of federal receivership in the conduct of their elections. That receivership had several parts, the most well known being the obligation of the “covered” jurisdictions to submit all proposed changes in their methods of election to the Justice Department or the seldom-used D.C. district court for pre-approval—“preclearance.” The provision prevented states from acting to exercise traditional constitutional prerogatives without prior federal permission, and was unique in American law.

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Above the Law reports that Justice Thomas, discussing clerk hiring at his Thursday talk at the University of Florida, contrasted his views with those of his colleagues, whom he says mainly hire clerks from Ivy League schools.  “I don’t believe they [Ivy League schools] have a monopoly on intelligence,” said Thomas. “I also don’t believe they have a monopoly on the best kids to clerk.”  Tony Mauro reports that Thomas also praised  Silvia Ibanez, an advocate from Florida who represented herself, and, according to Thomas, persuaded the Court to rule in her favor in a 1994 case.  The Foundry also weighs in, focusing on Thomas’ remarks on the State of the Union speech.  The University of Florida’s campus newspaper measures student reactions to the discussion.

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The Court’s recess continues until February 19, when the Justices will meet for their next private conference.  The next oral arguments are scheduled for February 22.

As we posted on Friday, the Washington Legal Foundation holds its mid-Term evaluation of the Court this Wednesday at 9:30 a.m in Washington, D.C.

The schedule of merits briefs due this week follows the jump.

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In a move that might head off another major Supreme Court ruling on detention policy, the Justice Department on Friday suggested that the Court consider dismissing the pending case of Kiyemba v. Obama (08-1234) as one that should never have been granted in the first place.  In its merits brief, the Department said that all seven Chinese Muslim (Uighur) detainees remaining in the case have been offered opportunities to re-settle in countries other than China, so the Court should not even consider ordering their transfer to live in the U.S. as an alternative re-settlement.

As an alternative, the Department urged the Court to uphold a D.C. Circuit Court ruling that denied federal judges any authority to order the transfer of Guantanamo prisoners to the U.S. itself.

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This week, we introduced a new feature on our sister site, SCOTUSwiki: we have created case pages for each “CVSG” case – cases in which the Supreme Court invited the Solicitor General to submit a brief expressing the views of the United States.  Each new case page includes the question presented and the filings in the case to date.  You can see an index of the CVSG cases here; you’ll also see a link to it on the SCOTUSwiki homepage.

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Last month I interviewed Jerry Goldman, Professor of Political Science. Goldman is the creator and director of the Oyez Project, a publicly-accessible archive of all Supreme Court oral audio recorded since 1955 and a vast collection of Court-related images and other media. His other projects include the Spoken Word Project, a database of media and audio sources, and IDEAlog, a program that analyzes political values.  See Part I here.

6.  Has the Court changed its technology as you have suggested solutions or pointed out potential improvements?

They have recently tried new strategies, and for a few years, experimented with reel-to-reel recordings and CD recordings.  The CDs would be much better quality, but the Court makes it almost impossible to access them.  The Court also considered using a proprietary system from Australia, but later reconsidered, and finally moved a to a full digital recording environment.  Even still, the Court chose a low bit rate and an inappropriate recording standard, which means we lose data in the recording, and overall the quality is well below where it should be.

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UPDATE, Monday, Feb. 8: The original post said this event would occur on February 10, but it has been rescheduled to the 18th.

On Thursday, February 18, the Washington Legal Foundation will hold its annual media briefing evaluating the Court halfway through the Term.  The speakers scheduled are:

• Hon. Dick Thornburgh (host)
• Gregory Garre, former Solicitor General and current partner at Latham & Watkins
• Patricia Millett, Akin Gump partner
• Noel Francisco, Jones Day

The briefing begins at 9:30 a.m. at the WLF headquarters in Washington, D.C.  It can also be viewed live online at www.wlf.org.

The invitation with more details can be viewed here (though please note that the date is incorrect; it should be Feb. 18).  Free online registration and an RSVP to glammi@wlf.org is requested for attendance.

As Tony Mauro reports at the BLT, Justice Thomas answered questions yesterday from students at the University of Florida, after speaking on Wednesday at Stetson University College of Law.  Justice Thomas touched on a range of issues, including his preference for hiring non-Ivy League law clerks and his opinion that Supreme Court justices are just “second guessers” whose work is not as hard as that of district court judges.  The AP discusses the Justice’s remark that some commentary about the Court is “irresponsible.” The local Gainesville Sun and the CBS News blog also have coverage of the event, and you can read Josh Blackman’s LiveBlog of the event here.  After Justice Thomas’s earlier remark at Stetson that he no longer attends State of the Union addresses because he finds them uncomfortable, Ben Smith of Politico briefly summarized his recent attendance record.

Yesterday Ariane de Vogue of ABCNews reported that the White House may be gearing up to fill two Court vacancies this summer, which would be created if both Justice Stevens and Justice Ginsburg decided to step down.

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Last month I interviewed Jerry Goldman, Professor of Political Science. Goldman is the creator and director of the Oyez Project, a publicly-accessible archive of all Supreme Court oral audio recorded since 1955 and a vast collection of Court-related images and other media. His other projects include the Spoken Word Project, a database of media and audio sources, and IDEAlog, a program that analyzes political values.  Part II comes tomorrow.

1. Your scholarly research focuses on audio and media instruction, government, and information technology, so the Oyez Project seems to be a natural fit for your interests. What, in particular, drew you to the Supreme Court, and to want to make arguments and opinions available?

Some time ago, a legal historian named Linda Kerber played an audiocassette from a Supreme Court oral argument during a talk at Northwestern. I was stunned, as I hadn’t realized that Supreme Court audio was available for scholars, and I started poking around for more information. My interest in organizing audio recordings developed soon after, when I saw an English professor demonstrate how he had linked the text of a Shakespeare play to a video laser disc. He could highlight a portion of Macbeth, and immediately play the corresponding audio segment. He suggested that you could develop a program to allow you total control of any available media. The environment he was working in, HyperCard, stores information on “cards,” then organizes them into stacks. Again, I was stunned, and HyperCard gave me an opportunity to pursue my newfound interest in the Supreme Court.

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Below is an essay for our Race and the Supreme Court program by Harvard Law School professor Kenneth W. Mack.  Professor Mack writes extensively on the history and politics of civil rights law; his book Representing the Race: Creating the Civil Rights Lawyer, 1920-1955 will be published by Harvard University Press this year.

Although political scientists are fond of presenting it as a novel idea, the idea that the Supreme Court is a political institution has long been fairly obvious to African Americans and their constitutional advocates.  The proposition that the Court is an institution embedded in the larger politics of the world around it was self-evident to those who had noticed the curious convergence between the narrowing of their constitutional rights and the onset of the Jim Crow era.  Los Angeles civil rights lawyer Loren Miller stated a strong version of the thesis when he wrote, in the mid-1930s, that “I know that behind the scenes . . . public opinion exerts the determining role in law,” but he captured the general thrust of what had become conventional wisdom.  Sometimes even the Justices have to be reminded of it, as the exchange between President Obama and Justice Alito during this year’s State of the Union attests, but to those who have had perhaps the largest stakes in the question, its answer has been clear for quite some time.  The first two African Americans to sit on the Court, Justices Thurgood Marshall and Clarence Thomas, were keenly aware of this issue.  Each man approached it in a different way, as will, no doubt, the newest Justice, Sonia Sotomayor.

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Plans for a legislative response to the Court’s decision in Citizens United v. FEC were much in the news yesterday. Ryan Grim of The Huffington Post reports that “House Democrats are forming a Citizens United task force to decide on the best set of legislative push back[s].” The BLT has a post on yesterday’s House Judiciary subcommittee hearing on the issue, headlined by Harvard’s Laurence Tribe as a witness. In a separate post, the BLT’s David Ingram writes that the idea of banning books looms over the debate: “In two congressional hearings today, advocates for corporate and union spending in campaigns ridiculed the idea that the federal government can ban books, suggesting that they plan to use the specter of extreme censorship to try to block any new legislation.” NPR has a report on yesterday’s hearings, and Yale’s Heather Gerken—author of yesterday’s post on this blog about Justice Kennedy and race—links to her submitted testimony at Balkinization (which is also highlighted at ACSblog).

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FURTHER UPDATED 1:10 a.m. Friday.  The Justice Department’s brief on the merits in this case is due to be filed later Friday, according to the Supreme Court’s electronic docket.  The blog will post a report on the brief when it is filed.  A key issue is how the government will respond to the latest development in the case — the planned re-settlement of two of the detainees to Switzerland, including whether it will now seek to have the case dismissed.

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The government of Switzerland has agreed to accept two of the seven Chinese Muslim (Uighur) detainees remaining at Guantanamo Bay, but their lawyers insisted that the case scheduled for review by the Supreme Court will go on.  In a letter sent to the Court Tuesday, the attorneys noted the agreement of Swiss authorities, in a humanitarian gesture, to accept two brothers — one of whom has been offered no resettlement opportunity by any country.  They are among the seven whose legal fate the Justices will examine in Kiyemba v. Obama (08-1234), now scheduled for oral argument on March 23.

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Because many SCOTUSblog readers closely follow “CVSG” cases – those in which the Court has invited the Solicitor General to submit a brief expressing the views of the United States – we have added to our companion site SCOTUSwiki a database of all such cases for this Term, with a separate page for each case.  In the index for these pages, we list (or will list) for each CVSG its date, the date on which the Solicitor General filed her brief, and whether the Court ultimately granted or denied the petition.  Links to the briefs filed by the United States are also included.  We will continue to update and expand the database throughout the Term.

The following is an essay for our Race and the Supreme Court program by Heather Gerken, J. Skelly Wright Professor of Law at Yale Law School, an expert in constitutional law, and a blogger at Balkinization.  Professor Gerken has written extensively on Supreme Court cases involving race, and she is currently working on a book on the concept of “second-order diversity” in American public law.

Now that Justice Kennedy has taken Justice O’Connor’s place as the swing vote on the Supreme Court, anyone interested in the future of equal protection needs to think hard about Justice Kennedy’s views on race.  Interestingly enough, they seem to be evolving.  Take Kennedy’s opinion in the recent school desegregation case, possibly the most important race case the Court has had in a decade.  As many have observed, his position there departed substantially from what he said in prior opinions.

Many people think that Kennedy’s new position on race stems from his new position on the Court.  Like his swing-vote predecessors, Justices Powell and O’Connor, Kennedy is feeling the pressure associated with being the middle Justice on a divided Court.  The deep logic of this middle kingdom, so the story goes, pushes for the kind of compromise that each of these Justices has endorsed – use race, but don’t be obvious about it.  And, indeed, Justice Kennedy’s settlement on race in the school desegregation case resembles that of his predecessors.  He deemed obvious and straightforward uses of race illegitimate but left room for schools to pursue their goals through indirect and general means.  He shunned racial balancing while lauding the idea that race contributes to diversity.  The conventional view, in short, is that the story of Justice Kennedy’s concurrence is the same story we tell about Justices Powell and O’Connor in earlier cases.

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Last month’s Supreme Court ruling in Citizens United v. FEC is still making headlines.  In an opinion piece for Politico, Nan Aron discusses the case in the context of judicial nominations, arguing that the decision reflects the strong influence of the Court’s conservative Justices.  Based on the “politically driven” records and confirmation-hearing performances of Chief Justice John Roberts and Justice Samuel Alito, Aron posits, Democrats should not be surprised at the ruling in Citizens, and they should further be mindful of GOP attempts to stall the confirmations of more politically moderate judicial nominees.  Also looking forward, David Schenck writes for the Texas Tribune that Citizens will almost certainly contribute to the end of direct elections for state judges: in combination with the Court’s decisions in Republican Party v. White and Caperton v. Massey, Citizens will bring corporate influence over judicial elections into full public view, contributing to a profound loss of voter confidence in the judicial electoral process.  At the Christian Science Monitor, Warren Richey and Linda Feldmann have an informative piece on Citizens, clarifying a number of the issues that have arisen in the recent controversy over the case.

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