“In many ways, if you want to know what moves the Court to decide cases, listen to oral argument, which is much more like the Supreme Court’s Id. Opinions are like the Supreme Court’s Super Ego.”

Walter Dellinger is the Douglas B. Maggs Professor of Law at Duke University and a Partner in the Washington, DC, office of O’Melveny & Myers LLP, where he is a member of the Appellate Practice Group. Dellinger advised President William J. Clinton on constitutional issues in 1993 and then served in the Department of Justice as Assistant Attorney General and head of the Office of Legal Counsel from 1993 to 1996. He was Acting Solicitor General for the 1996-97 Term of the Supreme Court. He graduated with Honors in Political Science from the University of North Carolina and from Yale Law School, where he was an editor of the Yale Law Journal. He served as law clerk to Justice Hugo L. Black for the Court’s 1968-69 Term.

In this five-part interview, Mr. Dellinger discusses his background, including his emerging awareness of the civil rights movement growing up in North Carolina and talking his way into Yale Law School; his clerkship for Supreme Court Justice Hugo Black; how the Court has changed since the Warren Court years; the importance of a Court made up of Justices with diverse experiences; the importance and experience of oral argument; life in the White House and in the Justice Department, as head of the Office of Legal Counsel and as Solicitor General; nominating a Supreme Court Justice; and the relationship between the media’s coverage of the Court and public understanding of the Court.

Part One: Elemental

“When I read Hugo Black’s decision in the school prayer case, Engel v. Vitale, I was in college at the time, I was wowed with what this southern Baptist thought about keeping government out of religion.”

Growing up in North Carolina; an early awareness of the civil rights movement; talking one’s way into Yale Law School; teaching at Ole Miss after desegregation; and clerking for Supreme Court Justice Hugo Black, an “elemental force.”

Posted in Everything Else

Tuesday round-up

By on Aug 4, 2015 at 8:07 am


  • Jeremy Jacobs of Greenwire reports that “[a]t least one change U.S. EPA made to its Clean Power Plan before finalizing it was clearly aimed at a specific audience: the Supreme Court’s nine justices.”
  • In an op-ed for The Washington Post, David Kravitz argues that “[w]e would do ourselves a favor by giving [Justice Antonin] Scalia’s clever, but pointless and ultimately harmful, zingers the attention they deserve: none.”
  • Writing for this blog, Andrew Hamm reports on a recent speaking appearance by Justice Ruth Bader Ginsburg; Ginsburg noted, among other things, that the Court “is still ‘the most collegial’ place she has ever worked.”

If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up when we come back, please send it to roundup [at]

Posted in Round-up

Round-up of recent news

By on Aug 3, 2015 at 2:29 pm

Although the Court is in recess, coverage of and commentary on the recently ended Term continue.  Sullivan & Cromwell LLP reviewed the Court’s business cases, providing “concise summaries of key cases in the commercial sphere” for the Term.  For Bloomberg BNA, Kimberly Robinson reports on Jay Wexler’s tracking of how many laughs each Justice garnered with his or her jokes this past Term.  And in a post at The WLF Legal Pulse, Mark Chenoweth argues that “the fact that free enterprise did not fare well this term had comparatively little to do with the decisions the Supreme Court issued”; “[r]ather, business civil liberties suffered more overall from the various state supreme court and federal courts of appeals cases that the high court left on the cutting-room floor.”

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Posted in Everything Else

On Wednesday, Justice Ruth Bader Ginsburg spoke with one of her former clerks, Neil S. Siegel, before Duke Law alumni and participants in Duke’s DC Summer Institute on Law and Policy, which Siegel directs. Ginsburg offered general comments the law and her career, as well as specific insights into several key cases from the recently concluded Term.

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Posted in Everything Else

Nathaniel Persily is the James B. McClatchy Professor of Law at Stanford University Law School. (For a more developed version of the argument presented here, please see Nathaniel Persily, The Law of the Census: How to Count, What to Count, Whom to Count, and Where to Count Them, 32 Cardozo L. Rev. 755, 775-81 (2011).)

The plaintiffs in Evenwel v. Abbott deserve credit for highlighting an unappreciated feature of our system of representation and exposing a gap in the jurisprudence of one person, one vote. Their constitutional argument, however, is academic, at best, and at worst, dangerous and destabilizing for the redistricting process and the U.S. Census. Leaving aside the weighty and contested philosophical arguments concerning the proper basis for legislative representation, a constitutional rule of redistricting based on citizenship or eligible voters presents insurmountable logistical difficulties. These difficulties are of constitutional import because no national database of citizenship exists at the level of granularity necessary to draw legislative districts that comply with one person, one vote. Continue reading »

Richard L. Hasen is a Chancellor’s Professor of Law at the University of California, Irvine School of Law. He blogs at Election Law Blog.

It is tempting to think of the plaintiffs in Evenwel v. Abbott as conservatives. After all, the brainchild behind this new “one person, one vote” lawsuit, Ed Blum and his Project on Fair Representation, brought us the demise of a key provision of the Voting Rights Act in the Supreme Court’s Shelby County v. Holder case and continued attacks on affirmative action in the second coming of the Fisher case. But the theory the Evenwel plaintiffs pursue is anything but conservative: it is about taking power away from the states and having the Supreme Court overturn precedent by imposing through judicial fiat a one-size-fits-all version of democratic theory unsupported by the text of the Constitution or historical practice. Evenwel should be seen for what it is: not a conservative case but an attempted Republican power grab in Texas and other jurisdictions with large Latino populations.

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UPDATED Monday 6:14 p.m.   This case has been docketed as 15-137.


Seeking to overturn a major setback in its power to punish trading of stocks based on insider tips, the Obama administration on Thursday asked the Supreme Court to revive one of the highest-profile prosecutions in years on Wall Street.  The petition in the case of United States v. Newman was sent to the Court just days before a filing deadline.  (Attached to the government’s petition is the December ruling by the U.S. Court of Appeals for the Second Circuit.   That court refused a government rehearing plea in April.)

The case grew out of federal prosecutors’ broad investigation into suspected insider trading at hedge funds.  In the specific case now at the Court, two hedge fund managers, Todd Newman and Anthony Chiasson, were convicted of securities fraud after their trades in technology company stocks — allegedly based on a chain of tips containing insider information — resulted in gains totaling about $72 million for their funds.  The Second Circuit overturned their convictions, wiping out the charges against them.  Prosecutors in New York reportedly have been pressing Justice Department leaders to seek review in the Supreme Court.

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Richard H. Pildes is the Sudler Family Professor of Constitutional Law at NYU.

As soon as the Court decided to hear Evenwel, a barely suppressed anger emerged in many quarters, on grounds of both process and substance. On process: how dare the Court address this issue, when a 1966 precedent seemingly settled the issue, and no conflict existed in the lower courts, to boot. On substance: how disturbing for the Court to consider any change in the legal status quo, in which states are perfectly free to define the “one person, one vote” baseline (total population or eligible voters) for themselves. But on both process and substance, these complaints and anxieties are misplaced and misguided.

The Court is right to confront this issue. And more importantly, the most likely outcome is that the Court will either re-affirm the status quo or conclude that equal protection requires states to use population, not voters, as the measure of political equality – a possibility almost none of the commentary, thus far, seems to recognize.   Continue reading »

October arguments, day by day

By on Jul 29, 2015 at 1:15 pm

The Supreme Court on Wednesday released the schedule of oral arguments for the opening session of its next Term, beginning on Monday, October 5.   The daily schedule, with a brief description of the issues involved in each hearing, follows the jump.

Arguments begin each morning at 10 a.m.   No afternoon arguments are scheduled for this sitting.

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Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute. He filed an amicus brief supporting the jurisdictional statement in Evenwel and will be filing another at the merits stage. Shapiro became a U.S. citizen just last year. Like most immigrants, he does a job few native-born Americans will: defending the Constitution.

The issue in a nutshell

The “one person, one vote” standard (OPOV) has become an axiomatic part of election law: Whatever mischief happens during the decennial redistricting process, states can’t draw districts with wildly disproportionate populations, such that a vote in lightly populated districts is worth much more than a vote in heavily populated districts.

It’s an easy principle to understand. You can avoid getting tied into knots determining whether a given regulation is “congruent and proportional” to the problem it addresses – and you can stay out of the thicket of “undue burdens” and other jurisprudential monstrosities. Continue reading »

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