Chief Justice John G. Roberts, Jr., in his first formal action on his first day on the job, on Friday adopted the policy followed for years by most of his new colleagues on when he would take himself out of pending cases — in other words, his recusal policy. The Supreme Court noted in a statement that he had adopted a declaration that seven members of the Court had made nearly 12 years ago on the subject.

The policy deals with recusal when a Justice has a spouse, children or other near-relative who are or may become practicing attorneys. The new Chief Justice’s wife, Jane Sullivan Roberts, is a partner at the Washington offices of Pillsbury Winthrop Shaw and Pittman. It may be a little too early to anticipate whether either of his two young children would someday become lawyers, but that issue could arise at some point during his service.

The recusal policy specifies that, if a covered relative is an associate in a law firm involved in a case before the Court, but has not taken part in it at the Court or previously, the Justice will be free to participate.

The policy deals separately with situations when a lawyer in the family has taken part in a case at an earlier stage, or is a partner in a firm appearing before the Court. If the family members falls into either of those two categories, recusal would occur if the Justice knows the relative that has “an interest that could be substantially affected by the outcome” of the case, or when a Justice’s “impartiality might reasonably be questioned.”

In other words, mere status as a partner, or as an attorney previously involved, does not dictate automatic recusal. But the policy goes on to outline special situations that would result in recusal when a relative was in either of those broad categories, which are found in the federal recusal law, 28 U.S.C. 455.

It specifies that if the relative is a partner in a firm appearing before the Court, the Justice would recuse in any case involving that firm “unless we have received from the firm written assurance that income from Supreme Court litiation is, on a permanent basis, excluded from our relatives’ partnership shares.”

In addition, it provides that if the relative was the lead counsel in a case at an earlier stage, recusal would occur, on the theory that the outcome of the case even at a later stage “might reasonably be thought capable of substantially enhancing or damaging his or her professional reputation.”

Two of the present Justices have not adopted that policy statement: Justice David H. Souter, who was on the Court in 1993 when the policy was written but who had no relatives covered by its terms, and Justice Stephen G. Breyer, not then on the Court but also currently without any relatives covered by it.

Chief Justice Roberts had told the Senate Judiciary Committee that he would recuse himself from any case on which he had participated as a judge on the D.C. Circuit. He has not said publicly what policy he would follow with regard to cases in which he or his family may have financial investments, but most Justices have remained out of such cases.

Justice O’Connor is the only current Justice who has ever been an elected official. (Indeed, for a short while, she was Majority Leader of the Arizona Senate.) In this article in the New Republic Online, Akiba Covitz and Mark Tushnet argue (sensibly, in my view) that Presidents ought to appoint more politicians and “high-level executive officials” to the Court, beginning now.

They mention, as examples of current possibilities, Senators Cornyn and Kyl, and Judge Gonzales. The latter has never held elective office, but has served as Texas Secretary of State, Counsel to the President, and Attorney General. (For what it’s worth — not much, in all likelihood — I’m stickin’ to my longstanding prediction that the President will nominate Judge Gonzales, notwithstanding that the “smart money” is shifting elsewhere, and that he’ll do so in large part because of Judge Gonzales’ Executive Branch experience and perspective.)

An excerpt from Covitz and Tushnet’s article:

What’s lost when the Court is made up exclusively of distinguished appellate lawyers with limited political experience? Two things: an understanding of the way the law works in everyday life; and an understanding of the way politics works in Congress, the executive branch, and state legislatures.

Without a feel for how the law works in people’s lives, justices tend to treat constitutional law as a desiccated legacy from generations ago that, for some peculiar reason, matters today. Without a feel for how politics works, justices may be more likely to impose theory-driven constitutional interpretations that have no relation to how governments function. Even worse, justices might imagine that they are hard-headed and sensible people who really do want to make government work well–and then hand down “pragmatic” solutions that have nothing to do with the real world.

What’s needed at the Supreme Court is an infusion of an elusive characteristic: common sense. And one good technique for locating people with common sense is to look for people who have already demonstrated it, by managing a large bureaucracy well or by getting the endorsement of voters in election after election. Unfortunately, we’ve moved away from a system of judicial appointment in which political experience, public accountability, and demonstrated common sense mattered a fair amount. Now our system focuses on narrow professional qualifications, giving us justices who are cloistered smart people (one reason, incidentally, not to be taken in by the fawning of law professors who want people just like themselves to become justices)

The government and the tobacco industry appear likely to learn as soon as Oct. 17 the fate of the campaign by the Justice Department to force the surrender of profits from an alleged decades-long campaign of deception about smoking hazards. The Court’s electronic docket now shows that the Justices will consider the Department appeal on Friday, Oct. 14 — thus, if the Court makes up its mind then for or against review, an announcement may come three days later.

The case reaches the Court in an unusual posture: it is a dispute over a remedy for a violation of the RICO anti-racketeering law, but no violation has yet been found in District Court, where the case continues on a separate track. That is the point the industry drives hardest in urging the Court not to hear U.S. v. Philip Morris USA (docket 05-92). The Justice Department has countered that argument by reminding the Court that the disgorgement issue was taken to the D.C. Circuit even while the case proceeded in trial, and Supreme Court intervention at this stage would make it possible for the District Court to move quickly toward a final ruling with all potential RICO remedies left on the table.

At the time the government appeal was filed on July 18, the case was continuing to move at a most deliberate pace in District Court. Now, final briefing in the case has just been completed on the liability issue, and on remedies other than disgorgement. (The case had its sixth anniversary in District Court a week ago; as of Thursday, there had been 5,687 docket entries. District Judge Gladys Kessler has managed the mammoth case from the beginning. Early on, she had thought the case might go to trial as early as 2003. Lately, she has shown some impatience to move the case to a conclusion; she bluntly refused early this month, for example, to give the industry more time to file their post-trial papers, saying the industry had “virtually unlimited resources” to deploy in the case.)

The government had been seeking surrender of $280 billion in industry profits — what it has repeatedly called “ill-gotten gains.” After the D.C. Circuit barred the disgorgement remedy, the government called for alternative remedies that would cost at least $10 billion over five years for a campaign to try to persuade smokers to quit, and $4 billion over ten years for public education and for advertising campaigns against smoking.

Although lawyers close to the defense team for the industry have predicted publicly that the Court was likely to deny review, they also have conceded that the Justices might be attracted to the case because the stakes are huge, and because it is a government appeal — a factor that usually gives an appeal a better chance of review.

One unknown at this point is whether the new Chief Justice, John G. Roberts, Jr., will take part in Supreme Court action on the case. When the D.C. Circuit denied rehearing en banc, Roberts, then a member of that Court, was recused. As usual, no reason was given, so it is unclear whether that reason is still present. If he does not take part, the prospect of a 4-4 split might loom — and that might be another deterrent to Court review.

The First Amendment Center has posted this article by Tony Mauro on the Court’s decision to revisit the campaign finance debate.

Here is Underneath Their Robes on the speculation that Judge Danny J. Boggs, of the Sixth Circuit will be nominated to replace Justice O’Connor.

ACSBlog asks, “Who is Janice Rogers Brown?” Judge Brown has been suggested as a potential high Court nominee.

The faculty at the University of Chicago has started their own blog.

Eugene Volokh has this post on the Supreme Court, federalism and consistency.

Election Law Blog has this post on the New York Times, Chief Justice Roberts, and the Vermont Campaign Finance Limits Case.

Sentencing Law & Policy asks, “Now that we have Chief Justice Roberts, who’s next?”

Ann Althouse has this post on a debate yesterday between Justices Breyer and Scalia at Harvard Law School.

Jack Balkin tells us that the future of the Constitution is now.

The pretty consistent word at this point is that the President is unlikely to announce a nomination tomorrow. Look for Monday or Tuesday.

Yesterday, we filed a reply brief in Hadfield v. McDonough, No. 05-214, a cert. petition that seeks review of a question involving the interplay between the Supreme Court’s decision in Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985) and the so-called “Parratt-Hudson” doctrine.

Chief Justice John G. Roberts, Jr., will take another oath of office on Monday, but that is a mere formality: he is now a fully functioning Chief Justice with all the authority of the office, after taking two oaths at the White House Thursday afternoon. He will go to work at the Court for the first time on Friday.

New members of the Court take what is called a Constitutional Oath and a separate Judicial Oath. Both were administered to the new Chief Justice at the White House: the first in a public ceremony, and the second in private with only the other eight Justices and Roberts’ family attending. The senior Associate Justice, John Paul Stevens, swore him in. On Monday, Roberts will again take the Judicial Oath in an invitation-only “investiture” ceremony in the Courtroom, starting at 9:15 a.m.

The Court said that Roberts took both oaths Thursday so that he “could begin work immediately in preparation for the opening of the Court’s Term on Monday.”

Hearings on granted cases will begin at 10:30 a.m., a half-hour later than the usual starting time. The Court is also expected to issue a lengthy list of orders on new cases — primarily, if not exclusively, denying review of new appeals. Presumably, the orders will be issued when the Justices go to the bench, and their release will be Roberts’ first official public act as Chief Justice.

At the White House ceremony, Roberts said he will start work Friday. Although Senate approval of his nomination to be Chief Justice has been a virtual certainty for weeks, Roberts has not been at the Court to do any work pending final Senate approval. The Senate voted 78-22 to confirm him shortly before noon Thursday. All of the No votes were cast by Democrats.

(The transcript of remarks by Roberts and by President Bush at the White House can be found here.)

By a vote of 78-22, John Roberts has been confirmed as the new Chief Justice.

This morning the American Constitution Society hosted a Supreme Court preview. A video of the event can be found here. The event featured:
Beth Brinkman, Morrison & Foerster; former Assistant to the U.S. Solicitor General;
Walter Dellinger, III, O’Melveny & Meyers; former Acting U.S. Solicitor General;
James Liebman, Professor of Law, Columbia University School of Law;
Theodore Olsen, Gibson, Dunn & Crutcher; former U.S. Solicitor General; and
Teresa Roseborough, Sutherland, Asbill & Brennan; Chair, ACS Board of Directors.

On Tuesday, Senator Reed gave this speech in opposition to the nomination of Judge Roberts to the Supreme Court.

Underneath Their Robes has this post on the speculation that Maureen Mahoney will be nominated to replace Justice O’Connor.

PrawfsBlawg has this post on Roberts and a Man’s right to choose an abortion.

(This is another in a continuing series of reports on the aftermath of Supreme Court rulings — in this case, a decision last May not to decide. That was the outcome in the case of Medellin v. Dretke. The case, though, seems sure to return to the Justices as a major constitutional controversy over Executive power.)

One of Texas’ two highest state courts, the Court of Criminal Appeals, is wading through weighty arguments on an issue of fundamental importance to the Presidency: the Chief Executive’s authority to order states to obey an international court’s ruling based on a global treaty signed by 166 nations. The Bush Administration, faced with a fundamental challenge to a sweeping claim of constitutional authority in the field of foreign affairs, has fought back with an aggressive defense of that authority. It is now up to the Texas court to resolve that dispute, but probably only as a preliminary to a return to the Supreme Court.

Two weeks ago, in a rare scene in a state criminal case in state court, a deputy U.S. Solicitor General, Michael R. Dreeben, took part in a 75-minute hearing before the Court of Criminal Appeals in Austin in Ex parte Jose Ernesto Medellin (docket AP-75,207), along with attorneys for that death row inmate and for the state of Texas. Dreeben was there primarily to make the case that state courts have no choice but to obey the President’s command that Medellin get a new hearing in his murder case, even though Texas’ court rules expressly forbid it. (An account of the oral argument, published in Texas Lawyer, is reprinted here.)

Medellin, a Mexican national, is awaiting execution for his role in the gang rape and murder of two girls in Houston 12 years ago. As a citizen of another nation, he was entitled by an international treaty, the Vienna Convention on Consular Relations, to meet with a representative of his home country government after he was arrested. He never had such an encounter before being convicted and sentenced to death.

He was one of 51 Mexican nationals who took their claim of Vienna Convention violations to the World Court in The Hague, and won. The Mexicans, that Court said, are entitled to a review of the denial of access to a Mexican consular officer, to see if their rights were prejudiced. President Bush, in a now-celebrated “memorandum” last February, sided with the World Court decision and ordered Texas courts to provide that hearing, in the face of a state procedural bar. No American court has ever determined whether the President has that authority.

Medellin now seeks to rely both on the World Court ruling, and on the Bush memorandum.

The presence of the U.S. government in his case is a rarity. But so is the impressive array of other participants: the European Union, Mexico and 12 other nations, a host of former U.S. officials and diplomats, including ex-Secretary of State Madeleine K. Albright, and dueling teams of international law experts.

The state of Texas, with sturdy support from four other U.S. states, is raising alarms about the threat to the states’ control over their own criminal justice systems. “The Supreme Court,” Texas argued in its brief, “has never recognized that the President’s ‘independent authority to act’ in foreign affairs allows for a unilateral power to preempt state law, based on a unilateral assertion that the pre-emption serves the United States’ foreign-policy interests…” If this memorandum controls, the state said, any state law that might be linked to foreign policy — such as a state’s enforcement of its death penalty — would be at risk of being scuttled.

Read the rest of this entry »

Via How Appealing, the A.P. article is available here.

For those who are considering heading down to the Court on Monday, here is our current understanding of the logistics.

First, there will be an investiture ceremony at 9:15 a.m. It is by invitation only. Those with invitations should arrive at the Court at 8:30 a.m.

Second, arguments will begin at 10:30 a.m. rather than 10:00 a.m. The bar line will start at 7:30 a.m., as usual. Guests should arrive at 10 a.m., rather than 9 a.m. Arguing counsel should arrive at 10 a.m. as well.

Law Dork has this post on the new Court and the Commerce Clause.

Indiana Barriser reports here on a new bill S. 1786, authored by Sen. Arlen Specter, which would allow the televising of United States Supreme Court proceedings.

The Nation has this article on Judge Roberts’ 1985 “AIDS Memo” written for President Reagan, which declared that “we should assume AIDS can be transmitted through casual or routine contact, as is true with many viruses, until it is demonstrated that it cannot be.” The authors of the article contend that by 1983 scientists had identified a retrovirus as the cause of AIDS which was known to infect only upon entering the bloodstream, directly or through mucosal membranes–not through intact skin.

On October 7th the University of Minnesota Law School
and The Federalist Socity for Law and Public Policy Studies will be hosting:

A TAX POLICY CONFERENCE: STATE TAX INCENTIVES FOR ECONOMIC DEVELOPMENT

at the the University of Minnesota Law School.

Participants will include Peter Enrich who is on the brief for Charlotte Cuno in DaimlerChrysler v. Cuno and Wilkins v. Cuno. Last fall, in Cuno v. DaimlerChrysler, a federal appeals court declared that an Ohio incentive tax credit provision is unconstitutional as an impermissible, discriminatory interference with interstate commerce. This morning the Supreme Court agreed to hear the case. More information on the conference can be found here.

Here is Rick Hasen on the Court’s decision this morning to grant cert in two campaign finance cases. Election Law Blog discusses the cases further here.

The First Amendment Center has posted this article by Tony Mauro on the First Amendment cases on the fall docket.

Here is a live blog of a debate on Kelo between Professors Thomas Merrill and Nicole Garnett.

Sentencing Law & Policy has this post on Attorney General Gonzales’ support for a legislative response to Booker.

UPDATE:

Tax Prof Blog has this post on the Court’s decision to grant cert in Cuno v. DaimlerChrysler.

Here is the Volokh Conspiracy on the Court’s decision to consider the constitutionality of anticipatory search warrants, granting certiorari to review the Ninth Circuit’s 2004 decision in United States v. Grubbs.