Here, Orin Kerr has a post on, Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk, a new book by Todd C. Peppers.

ACSBlog has this post on Ceballos v. Garcetti.

BizzyBlog has this post on Kelo. Today was the deadline set by the New London City Council and the New London development Corporation (NLDC) for the Kelo holdouts to either accept their offer or face eviction and the assessment of $946,000 in back rents, taxes, and fees.

Here is the Wall Street Journal Law Blog on “Punitive Damages on the Supreme Court Docket.”

Here, on Balkinization, Kermit Roosevelt responds to Jack Balkin on Ceballos v. Garcetti.

Here and Now, a radio show hosted by WBUR in Boston, has posted this interview with Lyle Denniston on Ceballos v. Garcetti.

Jack Balkin has an extended post explaining that the Court’s public-employee-speech doctrine, culminating in this morning’s decision in Ceballos, has strayed very far from the objectives the Court sought to advance in Pickering, to the point where it’s most protective of employee speech in the cases where it’s least important to public discourse, and not very helpful at all in cases where public employees could add real value to such discourse. Jack writes:

After Ceballos, employees who do know what they are talking about will retain First Amendment protection only if they make their complaints publicly without going through internal grievance procedures. Although the Court suggests that its decision will encourage the creation and use of such internal procedures, it will probably not have that effect. Note that if employees have obligations to settle disputes and make complaints within internal grievance procedures, then they are doing something that is within their job description when they make complaints and so they have no First Amendment protections in what they say. Hence employees will have incentives not to use such procedures but to speak only in public if they want First Amendment protections (note that if they speak both privately and publicly, they can be fired for their private speech). However, if they speak only publicly, they essentially forfeit their ability to stay in their jobs, first because they become pariahs, and second, because they have refused to use the employer’s internal mechanisms for complaint (mechanisms which, if they used them, would eliminate their First Amendment rights). In short, whatever they do, they are pretty much screwed. So the effect of the Court’s decision is to create very strong incentives against whistleblowing of any kind. (Another possible result of the case is that employees will have incentives to speak anonymously or leak information to reporters and hope that the reporters don’t have to reveal their sources).

I am sympathetic to the Court’s desire to reduce the burden of ad hoc balancing by creating a bright line rule of no protection. But in this case, the Court’s decision doesn’t really create a bright line rule, because the boundaries of what is within an employee’s job description may turn out to be quite contestable, and will be contested in future cases. Perhaps more important, the Court resolves the original tension in its doctrine by creating a rule that completely undermines the doctrine’s information policy goals.

The Court issued its opinion today in Garcetti v. Ceballos, No. 04-473, originally argued in the Ocotber sitting and then reargued after Justice Alito joined the Court. Justice Alito’s was the fifth vote in favor of reversal (although we don’t know for certain whether the judgment or opinion would have been different with Justice O’Connor participating). Justice Kennedy wrote the majority opinion, which the Chief Justice and Justices Scalia, Thomas and Altio joined. As I predicted here, Justice Souter — who likely was assigned to write the majority before Justice O’Connor’s retirement — wrote a dissent, joined by Justices Stevens and Ginsburg. Justices Stevens and Breyer each also filed dissenting opinions.

The looming question in the case was not so much the outcome but the Court’s rationale — and, in particular, the question whether the Court would hold that a government employee’s speech in her “official capacity” is entitled to no constitutional protection — not even of the modest Pickering/Connick/Waters variety. The Solicitor General urged the Court to hold that “the First Amendment has nothing to say about actions based on [a] public employee’s performance of his duties.”

Today, the Court took that very signifiant step, holding that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” This apparently means that employees may be disciplined for their official capacity speech, without any First Amendment scrutiny, and without regard to whether it touches on matters of “public concern” — a very significant doctrinal development.

Or perhaps not quite. In order to issue such a holding, the Court would have had to distinguish or overrule Givhan v. Western Line Consol. School Dist., 439 U. S. 410 (1979), which provided First Amendment protection to an English teacher who had raised concerns to the principal about racism in her school’s employment practices. Citing Givhan, Justice Kennedy writes that “[t]he First Amendment protects some expressions related to the speaker’s job,” even when made within the workplace. But, he argues, “[t]he controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy.”.

So, it appears that if one’s duties are to expose wrongdoing in the workplace, such exposure is entitled to no constitutional protection, but that if an employee whose duties do not involve such whistleblowing makes the exact same complaint, then Pickering/Connick analysis still applies. A somewhat odd result, at least on first glance. And odder still: Under today’s opinion, if Mr. Ceballos had written a newspaper article complaining about the wrongdoing in question, rather than taking the matter to his supervisor, he would at least be entitled to whatever constitutiional protection Pickering/Connick offers. Does today’s decision therefore give employees an incentive to go outside the established channels — to take their concerns to the newspapers, instead of up the established chain to their supervisors? Justice Kennedy has two responses to this perceived “doctrinal anomaly”:

First, “[t]his objection misconceives the theoretical underpinnings of our decisions. Employees who make public statements outside the course of performing their official duties retain some possibility of First Amendment protection because that is the kind of activity engaged in by citizens who do not work for the government. The same goes for writing a letter to a local newspaper, see Pickering, 391 U. S. 563, or discussing politics with a co-worker, see Rankin, 483 U. S. 378. When a public employee speaks pursuant to employment responsibilities, however, there is no relevant analogue to speech by citizens who are not government employees.”

Second, the practical concern is overstated, according to the Court, because if “a government employer is troubled by the perceived anomaly, it has the means at hand to avoid it. A public employer that wishes to encourage its employees to voice concerns privately retains the option of instituting internal policies and procedures that are receptive to employee criticism. Giving employees an internal forum for their speech will discourage them from concluding that the safest avenue of expression is to state their views in public.”

And what does this decision portend for the constitutional rights of teachers in their classroom speech and in their scholarship? The answer is not yet clear. Here’s Justice Kennedy again: “There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.”

Here is today’s Orders List.

UPDATED 10:45 a.m.

The Supreme Court on Tuesday ruled that the First Amendment does not provide protection for comments that a public employee makes in the course of performing regular duties, even if the comments alleged public corruption or government wrongdoing. The ruling leaves supervisors free to impose on-the-job discipline for comments that are considered disruptive or in violation of work rules, so long as the employee makes those as part of a normal duty assignment. While the case involved a county-level prosecutor, the First Amendment principles laid out in the ruling would apply at all levels of public employment.

This was the only decision of the day in an argued case. Further decisions are expected next Monday.

The 5-4 decision came in the case of Garcetti v. Ceballos, 04-473.. Justice Anthony M. Kennedy wrote the majority ruling. Chief Justice John G. Roberts noted that Kennedy was delivering the opinion on the 30th anniversary of his appointment to a federal judgeship — on the 9th Circuit. He was elevated to the Supreme Court in 1988.

“Proper application of our precedents,” Kennedy wrote, “leads to the conclusion that the First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities.” The case involved a deputy prosecutor in Los Angeles County who was reassigned to a less desirable position by his superiors after he wrote an internal memo blowing the whistle on a flawed search warrant.

The majority said that the deciding factor was not that the deputy expressed his views inside the office, rather than publicly, nor that the memo covered issues that the county attorney’s office handled. The controlling factor, it said, was that his comments were made “pursuant to his official duties. That consideration distinguishes this case from those in which the First Amendment provides protection against discipline.” The deputy, Richard Ceballos, “wrote his disposition memo because that is part of what he was employed to do. He did not act as a citizen in writing it.”

The case had been argued in October, but the Court evidently was split 4-4 on it after Justice Sandra Day O’Connor retired. It was reargued March 21. O’Connor’s successor, Justice Samuel A. Alito, Jr., cast the fifth vote to make Tuesday’s majority.

There are two other cases that the Court had reargued, and those decisions are expected over the next month. One involves the constitutionality of Kansas’ death penalty procedure, the other involves a major question of what becomes of evidence that police gather after they entered a home without a warrant and without knocking and announcing themselves beforehand.

UPDATE 11:10 a.m.

The Supreme Court on Tuesday agreed to clarify or reinforce its 2003 decision laying down guidelines on the amount of punitive damages that juries may award for corporate wrongdoing. The Justices agreed to so in a case appealed by tobacco giant Philip Morris. This was the only case granted review Tuesday.

The Court said it would rule on two issues raised in Philip Morris USA v. Williams (05-1256). The first: if a court finds that a company’s misconduct was outrageous, does that override the constitutional limit that holds punitive damages closely to the actual harm done — the so-called “ratio” issue. The second is whether the Constitution forbids juries to provide damages to punish a company for the effects of its conduct on others, not directly before the court.

A third issue raised by the appeal, challenging the appeals court’s deference to the factual claims made by the plaintiff, was not granted review.

The case involves two rulings by the Oregon Supreme Court — one decided after the Supreme Court had ordered the state tribunal to reconsider its earlier ruling in the wake of constitutional standards laid down by the Justices in their 2003 decision in State Farm v. Campbell. In both of its decisions, the Oregon court upheld a $79.5 million punitive damages award to a woman whose husband had died of lung cancer. The punitive award far exceeded the $521,485.40 ordered in compensatory damages. The widow’s lawsuit was a wide-ranging attack on 50 years of Philip Morris’ conduct in marketing cigarettes, and the Oregon court ruled that the punitive damages could be based in part upon injuries it found had been done to many Oregon smokers, not involved in the case.

The company’s appeal said that each of the issues raised in the case arises regularly in punitive damages cases, and those questions have resulted in widely varying lower court rulings.

Once again, the Court took no action on a pair of cases seeking to test whether the Court’s affirmative action rulings in 2003 apply to K-12 public schools. The Court has examined cases from Seattle and Louisville, Ky., five times without taking action. The cases are Parents Involved v. Seattle School District (05-908) and Meredith v. Jefferson County School Board of Education (05-915).

The Court also did not act, again, on a pair of appeals by journalists seeking protecfion from forced disclosure during a civil lawsuit of their confidential news sources. Those cases, however, are likely to be affected by ongoing settlement discussions on the underlying civil lawsuit, and the Court may simply be holding them awaiting developments. The cases are Drogin v. Lee (05-969) and Thomas v. Lee (05-11140.

The Court denied review in a number of significant cases. Among them were tests of prison officials’ authority to deny inmates who have been convicted of child sex abuse the right to have children visitors and to bar inmates from using hostile or abusive language when they file complaints or grievances, and a case seeking to have the Boy Scouts of America treated as a “state actor” and thus subject to constitutional limits on its membership policies when it teams up with public schools to foster Scouting in the schools.

There hasn’t yet been any discussion on this blog — or on many others, as far as I know — about the two newly published studies of Supreme Court clerks: Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk, by Todd C. Peppers, and Sorcerers’ Apprentices: 100 Years of Law Clerks at the United States Supreme Court, by Artemus Ward and David L. Weiden. [UPDATE: Important exception: Orin Kerr, who has a distinction preference for the Peppers volume. See also his earlier post here.] I, for one, have not yet read them. If anyone has, reactions in the comments section would be welcomed.

In this week’s New Republic, Judge Richard Posner, a Clerk to Justice Brennan in the 1960’s, reviews the two books. Posner opines that the dramatic modern increase in the number of clerks, and in the degree to which they are responsibile for cert. decisions and for drafting opinions, has probably neither helped nor harmed the Court’s output. Although Posner clearly would prefer that Justices draft their own opinions (something that reportedly only Justice Stevens now does with regularity — although some of Chief Justice Roberts’s recent opinions appear to reflect a great deal of his own pen), it’s interesting that he does not argue that there would then be an improvement in the quality of writing or reasoning. To be sure, Posner states that “there is . . . a loss when opinions are ghostwritten,” but he doesn’t try to explain in what way this might be so, except to hint that Justice-penned opinions might be shorter and less “scholarly” (the quotation marks are Posner’s own — he obviously is no fan of the sort of “scholarship” found in clerk-drafted opinions).

Two interesting things about the Posner review:

First, he addresses the question of why clerks are much more numerous and influential today than they were before the Second World War. The principal reason, in Posner’s view, appears to be that delegation is “irresistable.” (But why wasn’t that the case in earlier eras, especially where opinions were drafted by hand, without the aid of computers, Westlaw, Shepard’s, etc.?) There’s also this: “In 1947, in another change that enlarged the clerks’ role, Chief Justice Vinson decided that each justice should be assigned the same number of majority opinions to write. Until then, faster justices had been given more assignments. The slower justices, now more heavily burdened with writing assignments, began delegating opinion-drafting to their law clerks.”

Second, Posner uses his review as an opportunity to harshly criticize the Court’s modern obsession with preserving the secrecy of its proceedings:

The standard argument is that secrecy is necessary for candid communications among the justices and between the justices and their clerks. But judicial decisions, unlike business and political and military decisions, are supposed to be based, and rightly so, on reasons that can be stated publicly without embarrassment. Sorcerers’ Apprentices quotes some disreputably partisan clerks’ memos in “hot” cases, for example involving abortion. If publicity deterred clerks from writing such memos, the nation would not be the loser.

Of course clerks must not leak information about cases not yet decided; but this is the only secret-keeping that should be required of them. As for deliberations among the justices, they are by all reports stilted and brief. Were transcripts of their deliberations to be published, the only embarrassment would be that the American public would realize that the Supreme Court of the United States is at bottom merely a committee of able lawyers. A bit more of the mystique of judging would be chipped away. It would be a further step toward the disenchantment of the world that Weber foresaw with prescience and regret, but it might not be a bad thing.

I think this is a question that warrants a good deal more discussion. Is there any really compelling reason why the inner workings of the Judicial branch should be less transparent than those of the Executive branch? There appears to be a well-accepted practice of Justices and their clerks writing about internal deliberations many years after the events in question. But why shouldn’t such openness be encouraged at an even earlier stage? Some Justices are reported to have been very upset that the Blackmun papers were released while some of the Justices with whom he served were still on the Court. But those papers — and those of other Justices — have been invaluable to academics, journalists and litigants before the Court. And I, for one, am skeptical of the claims that discussions in internal memos would be unduly “chilled” by the prospect of publication.

I can, however, understand why Justices would not want their clerks to be the ones competing to write the “histories” of the Court. And if clerks do, in fact, accept their jobs only upon a promise of strict confidentiality, surely there’s something wrong with a breach of such promises. But should such promises be extracted in the first place? (Posner asserts that there was no such understanding of strict confidentiality in his day.) After all, presidential advisers seem to publish “tell-alls” mere weeks after leaving office, despite an arguably greater need for Executive branch confidentiality. If that practice is acceptable, and has not caused great harm to the quality of deliberations in the Oval Office, is there any persuasive argument that the rules should be stricter in the Supreme Court? [UPDATE: For a different perspective, see ohwilleke's excellent post in the comments section.]

One further note on transparency. Posner endorses a specific proposal made in one of the books:

Sorcerers’ Apprentices endorses a proposal that has no chance of being adopted, though it seems as sensible as it is provocative. It is that the Supreme Court publish the pool cert. memos. There is no published statement of the reasons for denials of certiorari, and this deprives the bar of valuable information concerning the Court’s work. The reasons given by a law clerk for wanting to deny certiorari in a case will sometimes differ from the reasons that persuade six justices to deny (six because only four votes are required to grant it). But there would be fewer futile petitions–the Court grants only a little more than 1 percent of the petitions–if the bar had a better sense of the reasons that the Court’s key staffers give for turning petitions down. There might also be fewer denials.

What do folks think of this? Does the established Supreme Court bar genuinely need more information about the reasons that cert. is denied? Would we learn anything that isn’t already common knowledge (at least among those who regularly practice before the Court), and that isn’t in, e.g., Stern & Gressman?

Here is an article by Tony Mauro titled, “High Court Clerks: Still White, Still Male.”

PrawsBlawg has this post on unanimity at the Court.

On this C-SPAN page, you can access the video of Justice Roberts’ commencement speech at Georgetown University Law Center.

Here Sentencing Law & Policy gives us some background on the lethal injection debate.

Concurring Opinions has this post on Supreme Court minimalism and its effect on the lower courts.

Let’s see who can best predict how the Term will end.

1. On what day will the Term end (in the sense of the last merits opinion being issued before the summer recess) (5 points)?
2. How many cases will be decided that day (3 points), by how many opinions (2 points), and in how many total pages (1 point)?
3. How many 5-4 (or 5-3) decisions will there be for the Term (5 points)?

Please send your entries to Ruth Mitchell, ramitchell@akingump.com by June 1. One entry per person. The Justices and their families are disqualified.

The winner gets eternal glory and some other thing I’ll think up.

Yale law professor Paul Gewirtz has provided “a preliminary sketch of [Justice Stephen] Breyer’s distinctive place in American law today” in an article in The Yale Law Journal, “The Pragmatic Passion of Stephen Breyer.”

The full PDF version is available at this link.

The SG today filed an invitation brief today recommending that cert. be granted in No. 05-381, Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., which deals with what a plaintiff alleging predatory bidding must prove. Unless the SG files an invitation brief in No. 05-853, McGowan v. NJR Service Corporation (which is far from a certainty given that the Court only issued the CVSG in late March), this is likely to be the final invitation brief filed this Term.

(Many thanks to those of you who sent us an electronic copy of the brief, which is not yet available on the SG’s website.)

The Solicitor General has filed another invitation brief, this time recommending that cert. be granted, in No. 04-1350, KSR International v. Teleflex, which deals with patent obviousness. The six invitation briefs previously filed by the Solicitor General this month had all recommended that cert. be denied. (Disclosure: Goldstein & Howe, P.C. represented Teleflex in proceedings before the Solicitor General.)

UPDATE 3:40 p.m. President Bush on Thursday ordered that the documents seized in the search of a sitting congressman’s office be sealed for 45 days. No one involved in the investigation, he said, would have accesss to the materials. Presumably, that will provide time for the White House and Congress to try to find some compromise to ease the developing constitutional conflict. Noting the interbranch dispute, Bush said that “it is clear these differences will require more time to be worked out.” In the meantime, the documents will be in the custody of the U.S. Solicitor General, whose office is not involved in the investigation. The President’s statement can be found here.

The constitutional challenge to the FBI’s unprecedented search of the office files of a sitting member of Congress is taking a more definite shape, based on court documents that have now become available. Rep. William Jefferson, the Louisiana Democrat whose offices were scoured for 18 hours by FBI criminal investigation agents last weekend, has opened the challenge with filings in U.S. District Court in Washington. The documents indicate some of the issues that would be before the Supreme Court, in the event — which seems increasingly likely — that the dispute reaches the Justices.

Jefferson has filed a motion asking Chief Judge Thomas F. Hogan to “order the return of all items seized from the congressional offices.” The motion claims a violation of the Fourth Amendment search clause, a violation of the doctrine of separation of powers, a violation of the congressman’s “absolute immunity” under the speech and debate clause of the Constitution, and a violation of federal criminal rules of procedure. The motion can be found here, and the memorandum in support can be found here. The memorandum lays out the claims in detail.

In addition to seeking the return of paper files and a computer hard drive taken by FBI agents, Jefferson asked the judge to issue an immediate order barring the FBI and the Justice Department from any further review or inspection of the items seized, requiring the sequestration and securing of the seized items, and requiring a report to the judge “detailing which documents have been reviewed and what steps have been taken to sequester the documents from further review pending further order of the court.”

The warrant signed by Judge Hogan authorizing the search, including the supporting affidavit, can be found here. It is a lengthy document, and in the form that appears, substantial parts are redacted. But of unusual interest in the paper are pages 74 to the middle of 82, laying out the “special search procedures” the FBI agents planned to follow in order to filter out “information that may fall within the purview of the Speech or Debate Clause privilege,” and to “minimize the likelihood that any potentially political sensitive” items, not responsive to the search parameters, would get into the hands of the prosecuting team. Rep. Jefferson has challenged this Executive Branch review of a privilege that he contends only a member of Congress can understand and exercise.

Here is Sentencing Law & Policy on the Supreme Court criminal cases from this term that have not yet been decided.

Here is ACSBlog on Brigham City, Utah v. Stuart.

Here is Orin Kerr with a post titled, “Justice Hecht Admonished for Promoting Miers: But Are The Charges Fair?” Here is the Wall Street Journal Law Blog on the same issue.

As I settle in at Akin Gump, I wanted to mention that the firm is hiring in a variety of practices. I am most familiar with the litigation practice, which has been growing and is understaffed at multiple seniority levels in several offices. There is a good deal of very interesting work. And there definitely are opportunities to get involved in projects at the Supreme Court. Each office of course has a recruiting coordinator, and if you think that I should be aware of an application, you can certainly email it to me as well at tgoldstein@akingump.com.

(NOTE: The following brief post is provided for readers of the blog as an invitation to offer comments on the issues that it may suggest. The hope is to stimulate a serious but lively exchange.)

UPDATE 5:00 p.m. The Speaker and Minority Leader of the House on Wednesday demanded that the Justice Department return records seized from Rep. Jefferson’s office. They also demanded that the Department move in court to nullify the search warrant. Their joint statement can be found here.

UPDATE 6:55 P.M. News organizations are reporting that Rep. Jefferson filed a motion with Chief U.S. District Judge Thomas Hogan seeking the return of his files. Hogan, according to the reports, issued the warrant for the Capitol Hill search last Thursday.

The Federal Bureau of Investigation spent last Saturday night and much of Sunday going through the files of a member of Congress, in his Capitol Hill office. The member, Louisiana Democrat William J. Jefferson, is under criminal investigation by the FBI for possible bribery offenses. The “Saturday night raid,” as House Speaker Dennis Hastert called it, has stirred a serious constitutional conflict over separation of powers.

On Tuesday, the Republican leader of the House, Rep. John A. Boehner of Ohio, told reporters: “I have got to believe, at the end of the day, it is going to end up across the street at the Supreme Court. I don’t see anything short of that.”

If the issue eventually does reach the Court, it is being suggested, the Justices perhaps would make a searching new examination of the Constitution’s Speech or Debate Clause, which reads in part (Article I, Section 6): “…for any speech or debate in either House, [the Senators and Represenatives] shall not be questioned in any other place.”

Does that embody a broader concept of legislative independence than the specific wording suggests? Does it imply some protection from an FBI raid on a congressional office? What impact does it have on a court’s authority to approve a warrant for searching a congressman’s files?

Speaker Hastert has said: “The actions of the Justice Department in seeking and executing this warrant raise important constitutional issues that go well beyond the specifics of this case.”

The Speaker’s full statement on the incident, issued on Monday, can be found here. It provides a starting point for discussing the potential issues.