It’s always perilous to try and generalize about a Supreme Court Term.  Roughly 80 cases on diverse topics decided by nine different people don’t collectively produce clear themes.  When they do appear to, it’s often a mirage that reflects the coincidence of cases that happen to fall together by chance within a single term.

But that never stopped me before.

Here is what strikes me most about this Term.  The Court is moving steadily in the direction of rolling back Warren Court-era precedents that conservatives view as significant overreaching of the judicial role.  To be clear, that isn’t the Court’s principal occupation.  Most of its docket is filled with important but ordinary questions of federal law.  But it is a significant trend.

I am struck in particular by the opinions of the Chief Justice that seem to lay down markers that will be followed in later generations of cases.  NAMUDNO details constitutional objections to Section 5 of the Voting Rights Act that seem ready-made for a later decision invalidating the statute if it is not amended.  Herring contains significant language that can later be cited in favor of a broad good-faith exception to the Fourth Amendment exclusionary rule that applies to individual police mistakes.

If I’m right about the direction of the case law, the Court’s methodology is striking.  It is reinforcing its own legitimacy with opinions that later can be cited to demonstrate that it is not rapidly or radically changing the law.  This approach may be in the starkest relief if next Term the Court cites its recent decision in Wisconsin Right to Life as precedent for concluding that McConnell v. FEC and Austin v. Michigan have been significantly undermined and should be overruled.  The plurality and concurrence in Wisconsin Right to Life famously debated how aggressively the Court should go in overruling prior campaign finance precedent.  The Chief Justice urged patience – not moving more quickly than required – and the wait may not have been long.

There is nothing illegitimate about that approach.  It’s easy to demonize decisions with which you disagree as either exercises in raw judicial power (the truth of the matter is that the principal difference between McConnell and Wisconsin Right to Life is that Justice O’Connor was replaced by Justice Alito) or outright sneakiness.  Neither is accurate or fair.  Just because one set of Justices gets to a constitutional question first does not give it a greater claim to “constitutional truth.”  I disagree (sometimes substantially) with the direction of the law, but this incrementalism is rooted in a consistent vision of the law and a deep concern for the Court as an institution. 

Overgeneralizing broadly, conservatives believe that doctrines like substantive due process, the exclusionary rule, and a high wall separating church and state aren’t merely wrong but overstep the limited role of judges and endanger the legitimacy of the Supreme Court.  Turning back those decisions, in turn, is thought to (among other things) enhance respect for the Court.  The Chief’s professional life is defined by the Court — as a clerk, Principal Deputy Solicitor General, private practitioner, and now the Chief Justice — and his institutional commitment to it, including ensuring that it is regarded as an institution of integrity rather than a political football (see my earlier post on the Ricci opinion) — is profound.

But that perspective – when taken by a thoughtful judge who has the long view – also counsels in favor of moving at a measured pace.  If the Court instead were to announce in rapid succession the overruling of its prior decisions permitting regulation of campaign contributions, guaranteeing a right to an abortion, and finding affirmative action consistent with the Fourteenth Amendment, then the public would likely be left with the impression that constitutional law is nothing more than a power play between competing ideologies that reflect nothing more than the happenstance of the most recent appointments.

For the moment, there is no reason to rush.  Time permits a jurisprudence of not just originalism, or textualism, but actuarialism.  The sand running through this hourglass will not expire for eight years. 

Later in his term, President Obama will likely replace Justice Stevens with someone else on the left.  If he is reelected in 2012, he will replace Justice Ginsburg with someone on the left.  Nothing changes.

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Analysis

The cases of Frank Ricci and his 17 New Haven, Conn., firefighter colleagues — all whites except one Hispanic — now return from the Supreme Court to lower courts, with only one thing settled: their rights under a federal civil rights law were violated.

The Court’s ruling in Ricci, et al., v. DeStefano, et al. (07-1428) and a companion case with the same name (08-328) says nothing at all about a remedy for that violation, and leaves a host of questions to be answered.

Although the Court decided that city officials in New Haven violated Title VII of the federal civil rights law by failing to promote any firefighters to seven slots for captain and eight slots for lieutenant, it is not clear how many slots are open now — whether more or fewer — and it is uncertain whether the lists of promotions that were to be made from the results of the test in the fall of 2003 remain intact.

The decision does not guarantee an individual firefighter, by name, that he will become a captain or a lieutenant in New Haven.  And, while the winners of this lawsuit may very well claim that the denial of promotions entitles them to back pay, or even to money damages, the Court did not address any such claim, leaving it for further exploration by other judges.

While the Court seems to have said that, if an employer – public or private – conducts hiring or promotion tests that are legally sound, those who score highest and meet other selection factors cannot be denied a job or a promotion because of race, the decision does not say that the employer has any duty to avoid closing off jobs or the promotions so that no one is chosen (so long as it does not do so for racial reasons).

No duty, whatsoever, to keep slots open is imposed, although it may be doubted whether many employers would alter their payrolls to eliminate job opportunities just to keep from losing a lawsuit.

The decision did make some things clear, and that will influence what can happen next in the New Haven case, in particular.  And there are conclusions in the ruling that definitely will apply to other cases, in court now or in the future, involving claims of racial bias in job placement.

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Justice Kennedy’s opinion in Ricci will inevitably be put under the microscope for what it tells us about the Justices’ views of how the Second Circuit panel that included Judge Sotomayor handled the case. The Justices themselves were certainly aware of the political context of Ricci in the days running up to the confirmation hearings.

I am struck by the extent to which the majority opinion largely treats the court of appeals’ ruling as a non-event. To the contrary, Justice Kennedy almost seemingly goes out of his way not to criticize the decision below, notwithstanding that the Supreme Court takes a dramatically different view of the legal question. The Court indicates that the state of the law before today’s ruling was “a difficult inquiry,” and that its “holding today clarifies how Title VII applies.” It rejects the plaintiffs’ outright attack on the Second Circuit’s decision as “overly simplistic and too restrictive.”

Justice Ginsburg’s dissent in passing takes the view that the panel’s opinion followed prior Second Circuit precedent. Then the dissenters (in a footnote noted by Jonathan Adler that cites the district court’s discussion of existing Second Circuit precedent) elect not to remand — which would have made the reversal 9-0 — and instead explain why the city should prevail, albeit on a slightly different ground. But they avoid making their disagreement with the court of appeals particularly explicit (the difference is the thin one between whether the city reasonably believed it would be engaging in disparate impact discrimination and whether a court would agree with that belief), and they clearly agree with the bottom line of the Second Circuit, though they disagree with the standard seemingly set by prior Second Circuit precedent.

By contrast, Judge Alito’s concurring opinion comes much closer to an overt criticism of the rulings of the district court and court of appeals. I found it notable that the Chief Justice - who seems to place a priority on not interjecting the Court into political disputes unnecessarily - does not join the concurrence.

In the end, it seems to me that the Supreme Court’s decision in Ricci is an outright rejection of the lower courts’ analysis of the case, including by Judge Sotomayor. But on the other hand, the Court recognizes that the issue was unsettled. The fact that the Court’s four more liberal members would affirm the Second Circuit shows that Judge Sotomayor’s views were far from outlandish and put her in line with Judge Souter, who she will replace.

Analysis

Expressing a heavy dose of skepticism that crime lab reports are so reliable as to be beyond question, the Supreme Court on Thursday cleared the way for chemists and other scientists who prepare such reports to be summoned to the witness stand in criminal trials to defend their analyses.  The 5-4 ruling in Melendez-Diaz v. Massachusetts (07-591) resulted from some unusual alliances among the Justices, and continued the deep division within the Court over how to interpret the Constitution’s guarantee that an individual on trial for a crime has a right to face and challenge the witnesses for the prosecution.

Justice Antonin Scalia, the Confrontation Clause’s most devoted defender on the Court, wrote for the majority: “There is little reason to believe that confrontation will be useless in testing analysts’ honesty, proficiency, and methodology — the features that are commonly the focus in the cross-examination of experts.”

The ruling will provide for an added layer of challenge by defense lawyers to such criminal evidence as illegal drugs, fingerprints, blood spatter patterns and blood chemistry, guns and bullets, and other forms of physical evidence subjected to lab analyses, at least when the resulting reports are prepared for use as evidence in criminal trials.

Now, if prosecutors want to offer a crime lab report as evidence, and the report was prepared with the aim that it would be used at trial, the prosecution has to bring along the author or scientist and make them available for questioining by the defense — if the defense insists on the right to confront the analyst.  It is not up to defense lawyers to summon them to the stand, but they must assert the right to confront the analyst, the Court indicated.

The opinion recited a good deal of information from published reports about how defective crime labs and their results are, and said that claims that lab reports are the product of “neutral scientific testing” are open to challenge because such reports are not “as neutral or as reliable” as advertised.  “Forensic evidence,” Scalia wrote, “is not uniquely immune from the risk of manipulation.”

He cited one report, for example, that said “there is wide variabiility across forensic science disciplines with regard to techniques, methodologies, reliability, types and numbers of potential errors, research, general acceptability, and published material.”

Putting the chemist or lab technician on the stand to be tested by cross-examination, the majority said, will help “weed out not only the fraudulent analyst, but the incompetent one as well.”

Still, Scalia said, the decision to compel the reports’ expert authors to testify is based ultimately on the right of confrontation, not the quality of the reports or the credibility of the chemist.   “We would reach the same conclusion,” he wrote in a footnote, “if all analysts possessed the scientific acumen of Mme. Curie and the veracity of Mother Theresa.”

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Analysis

Sending new constitutional instructions to public school officials on how far they may go to search students for drugs or other harmful items, the Supreme Court has set two limits: one mostly unchanged from before, and one new.  The new rule is that searching students’ inner clothing, resulting in exposure of their bodies, will be extremely difficult — though not impossible — to justify under the Constitution.

That is the meaning of the somewhat opaque language that Justice David H. Souter, writing for an 8-1 majority, used to deal with the constitutionality of “strip searches” of students in public schools.  The ruling in Safford United School District v. Redding (08-479) made clear that, while the Court seriously frowns on strip searches of students, those have not been forbidden totally; it depends, in other words.

The other constitutional rule is that searches of public school students’ backpacks, notebooks, other belongings, outer clothing and pockets are generally allowed if they are based on “reasonable   suspicion.”  That remains as it has for a quarter-century, but with a small amount of refinement, the exact scope of which is not quite clear.

Justice Clarence Thomas, who cast the lone dissenting vote on the constitutional rules, denounced them as “vague and amorphous.”  Whether they actually lack specificity to that degree, school officials very likely will need some legal sophistication to know just what they mean in practice.

Another part of the ruling — disappointing to students who have already been subjected to strip searches — is that Thursday’s decision only applies to future searches, so the Constitution does not provide them a remedy.  By a vote of 7-2, the Court said there has been enough confusion about what the Constitution meant for strip searches that school officials could not have been expected to know that they were invalid, so they have immunity.  Justices Ruth Bader Ginsburg and John Paul Stevens dissented on that point, saying school officials have been on notice since 1985 (the Court’s decision in New Jersey v. T.L.O.) that they could not go as far as requiring a strip search.

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Though the Supreme Court by a wide margin today formally declined to resolve a challenge to the constitutionality of Section 5, the reality is far different.  The decision unambiguously served notice that the Justices are prepared to invalidate the statute as it stands.  Congress is now effectively on the clock:  it has the period between now and the date that it decides a follow-on challenge by a covered jurisdiction that is not permitted to “bail out” of the statutory scheme to amend Section 5.  If the statute remains the same by the time the next case arrives, the Court will invalidate the statute.

Today’s ruling is thus as much subtext as text.  An entire section of the opinion is devoted to the constitutional infirmities of Section 5.  There is no counter-point.  Nor do any of the Court’s more liberal members issue a reassuring concurring opinion indicating that Section 5 would survive a constitutional challenge - though some surely believe it.

The Court’s opinion will go down in history I think as among the Chief Justice’s most significant, and a model for his philosophy of judicial minimalism, which plays out in this case in two separate respects.  First, the Court gives Congress in the first instance the opportunity to exercise its constitutional responsibility to apply the Constitution.  Second, the opinion brings together a wide majority of eight Justices for a result with which they can all agree.

Congress’s response will dictate whether the Court next acts more decisively and divisively.  The model of judicial decision making suggests that a majority of the Supreme Court is willing to give Congress some measure of breathing room in exercising its authority to enforce the Fifteenth Amendment.  The opinion does not resolve the debate over the breadth of that power.  But today’s opinion is in effect one paragraph in a larger conversation between the legislative and judicial branches over how to confront the modern legacy of the nation’s ugly history of racial discrimination in voting.  A majority of the Court could have imposed its own will in dictating the answer to that question, but more modestly - to use the Chief Justice’s phrase - left it to Congress to attempt to address the Justices’ concerns.

A failure by Congress to respond to the Court’s opinion will be fatal to Section 5.  If a jurisdiction that is unable to “bail out” from the statute’s coverage yet does not have a reasonably recent history brings a challenge to the statute as currently enacted, it will succeed.  The model here is arguably Bush v. Palm Beach County Canvassing Board, which unanimously set forth the Court’s concerns with the Florida recount.  When the Florida Supreme Court failed to respond appropriately - indeed, at all - the U.S. Supreme Court halted the recount outright by a narrow, ideologically divided majority in Bush v. Gore.

The interesting question, in fact, is how the next challenge will arrive before the Justices.  The arguable logic of today’s ruling is that a jurisdiction must attempt to bail out before challenging the constitutionality of Section 5.  But there is no such requirement.  And the next plaintiff may skip that steps and directly challenge the application of the preclearance regime.

How then could Congress amend Section 5 in order to sustain it?  The statute operates on three relevant axes.  First, it has a geographic scope that defines the covered jurisdictions that must preclear changes to their voting systems.  Second, it has a trigger, which currently requires preclearance for any voting change, however minor.  Third, it has an escape hatch - the “bail out” provision that allows covered jurisdictions to prove that they should no longer be subject to preclearance.

Modifications to any of the three would alleviate the Justices’ concerns with Section 5 to some extent.  But today’s opinion puts considerable focus on the geographic scope of the statute, and in particular the base-line date for determining whether a jurisdiction will be covered.  An amendment updating those measures is the surest way to garner at least a fifth vote for the statute’s constitutionality.

The Court’s opinion (at page 8) explains that Section 5 “imposes current burdens and must be justified by current needs” (emphases added).  It continues on the same page:  “The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions.”   The Court describes its prior opinion in Katzenbach upholding Section 5 as “conclud[ing] that ‘exceptional conditions’ prevailing in certain parts of the country justified extraordinary legislation otherwise unfamiliar to our federal system. . . .  Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today.”  Id. at 16 (emphasis added).

The opinion thus (at 4-5) traces the history of extensions of Section 5, which was originally enacted as a temporary measure but was reauthorized “in 1970 (for 5 years), 1975 (for 7 years), and 1982 (for 25 years).”  It notes (at 5) that the “coverage formula remained the same, based on the use of voting eligibility tests and the rate of registration and turnout among all voters, but the pertinent dates for assessing these criteria moved from 1964 to include 1968 and eventually 1972.”  But the 2006 reauthorization “retained 1972 as the last baseline year for triggering coverage under §5.”  Ibid.  With respect to the plaintiff in particular, the opinion twice notes (at 1 & 5) that “there has never been any evidence of racial discrimination in voting in the district.”

A more modest amendment to Section 5 would have a less-certain future.  Congress could direct that any preclearance objection first give the covered jurisdiction the opportunity to request that it be permitted to “bail out.”  In effect, Congress would deprive would-be challengers to the Section 5 regime of the opportunity to directly contest the statute’s constitutionality if they have a claim that they have not recently engaged in discrimination.

Section 5’s preclearance regime as it stands — with its triggers not updated sufficiently in the Justices’ views – thus is best regarded as unconstitutional in the opinion of a majority of the Supreme Court.  That will not be so, if at all, only if it becomes exceedingly clear that the “bail out” mechanism works in a fashion that freely permits covered jurisdictions to avoid coverage under Section 5.  If not, the Court is willing in the first instance to defer to some extent to Congress’s judgment about how to address the constitutional challenges to the statute, so long as it takes concrete steps to address the perceived disconnect between the statute’s current application and the historical data that is used to trigger the preclearance regime.  The ball is in the legislature’s court, and the clock is ticking.

Analysis

Under the Voting Rights Act as it now stands, its Section 5 — the part that requires a number of states and many local governments to get approval in Washington to change their election laws — is due to last until 2032.  But the Supreme Court, in its ruling Monday avoiding the issue of Section 5’s constitutionality, has not guaranteed that it will last that long.

In the next few years, either a local government that tries but fails to get out from under Section 5’s controls, or a state government covered by the law but convinced it should not be any more, would have quite a good chance of renewing the constitutional controversy that the Court did not decide.  The main opinion, in fact, provides what could easily be read as a roadmap for such a future constitutional complaint.

Perhaps one of the main ways to read the Court’s ruling, then, is that it it a warning to Congress that it needs to reconsider Section 5, and shore it up, if it can, with a new formula for coverage, and provide some assurance that it will no longer single out some states to bear Section 5’s obligations in ways that the Court suggested were now unequal.

Those are the vulnerable aspects of Section 5, and they were freely acknowledged in the Court’s opinion.

Congress, of course, could take the gamble that, the next time Section 5’s constitutionality reached the Court, new Justices on the Court might bolster the provision’s support on that bench.  But that would be a high-stakes gamble.

Although the ruling was issued on an 8-1 vote, the nearly undeniable reality is that five members of the Court were very strongly tempted to strike down Section 5, and, perhaps realizing the enormity of doing so, found a way to put their temptation aside and resolve the case.  There is nothing in the opinion that suggests that the five members of the Court who were skeptics about Section 5 have changed their minds. (And none of those five is thinking of leaving the Court.)

It is pure speculation, but it is very likely that a decision to nullify Section 5 simply “would not write,” in the vernacular of judging,when it came down to that.  And it is also speculation, but it may well be that Chief Justice John G. Roberts, Jr., took — or was given — the assignment of crafting a spare 17-page opinion that did as little as necessary to get a result.  An opinion of that dimension can be put together quickly when the Court wants to move away from a sharp internal debate and decide just the single case before it.

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Analysis

On the eve of the Supreme Court’s planned look at the most significant sequel to its year-ago ruling in Boumediene v. Bush, Congress has moved to take control of the fate of Guantanamo Bay detainees in ways that could cut back sharply on the power of the courts, and also could limit the President’s powers.

On Thursday, the Justices are scheduled to examine in their private Conference the case of Kiyemba, et al., v. Obama, et al. (08-1234), according to the Court’s electronic docket. Lawyers for 13 Chinese Muslim (Uighur) detainees at Guantanamo are seeking to test the scope of the Court’s constitutional mandate in Boumediene that the detainees at the U.S. military prison in Cuba have a right to challenge their captivity, including a possible right to be released.

Soon, however, President Obama is expected to sign into law a new war budget bill sent to him by Congress last Thursday (the detainee provisions are reproduced here). Congress flatly barred the release of any Guantanamo prisoner into the U.S. — the issue that is the core of the Kiyemba case — and surrounded with conditions the President’s power to transfer any detainee anywhere in the world.

In those provisions, Congress, apparently deeply upset at the prospect not only of release of detainees into the U.S., but their release to live in any other country, moved to take a significant degree of control over transfers, further detention, and even, to a degree, criminal prosecution of any Guantanamo captive.

While the new limits on transfers or release of detainees are written in terms of denial of federal funds (under Congress’s Article I Spending Clause powers), their actual practical effect is to restrict in major ways the President’s use of his powers under Article II.  The bill makes no attempt to curb directly the Article III authority of the courts, but they clearly would have a direct impact.

Some of the provisions, indeed, would appear to have such an impact on the Kiyemba case, whether or not the Court agrees to review the D.C. Circuit Court decision that is being tested in the Uighurs’ petition.  (When the petition was filed, 17 Uighurs were involved; 13 remain at Guantanamo and in the case, since four have just been transferred to live in Bermuda — a move that might at least have been complicated, and might not have occurred at all, if the new congressional limits had been in place.)

It seems likely that the Obama Administration will notify the Court, perhaps before Thursday, about the new legislation, perhaps to reinforce its earlier argument that the Court should deny review of the Kiyemba case.  Solicitor General Elena Kagan promptly told the Court of the four Uighurs’ move to Bermuda.

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Analysis

Amid competing essays on the courts’ role in declaring constitutional meaning, a Supreme Court majority has handed off — as essentially a question for the political branches of government — the issue of when a convicted individual can get access to genetic evidence to try to prove innocence of the crime.

Testing of such evidence, to detect whose DNA may be present, has become a highly sophisticated chemical process that, the Court acknowledged Thursday, can — all by itself — make a difference between guilt and innocence.

Access to evidence for DNA testing, however, is not guaranteed by anything in the Constitution, the Court majority concluded – at least when the individual has had a fair trial, and is seeking the evidence after the fact, to try to undo a conviction.

“We are reluctant,” Chief Justice John G. Roberts, Jr., wrote for a 5-4 majority, “to enlist the Federal Judiciary in creating a new constitutional code of rules for handling DNA.”

The majority opinion in District Attorney’s Office v. Osborne (08-6) should not be misunderstood: it does not rule out entirely any access, in a criminal case, to genetic evidence for DNA testing.  What it does do is narrow any legal foundation for such access, primarily by leaving it up to 50 state legislatures and Congress to craft rules to control access.

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LA Akin Gump associate Scott Street analyzes Monday’s decision in Eisenstein.  More of Scott’s writing on the case is available on SCOTUSwiki, here.

When the Supreme Court heard oral argument in Eisenstein on April 21, only Justice Ginsburg seemed inclined to adopt a strict reading of Federal Rule of Appellate Procedure 4(a)(1) and provide a sixty-day window to appeal only when the United States actually intervenes in a qui tam action under the False Claims Act.  After all, although they emphasized intervention during oral argument, even the City of New York and the Solicitor General argued that, because of the unique nature of the FCA, the sixty-day limit should apply when the government does not formally intervene but asserts “particular rights” or “actively participates” in the action.

But the Court nevertheless took the narrow route, holding unanimously that the sixty-day window for filing a notice of appeal only applies when the United States has formally intervened in the action.  I suspect that neither the City nor the Solicitor General expected the Court to go that far.

On the one hand, it is not surprising that the Court avoided the “active participation” test that the Second Circuit applied in Eisenstein.  That standard would have been too difficult and time-consuming to apply in this procedural context.  But given the unique nature of the FCA—a distinction that the City and the Solicitor General also stressed before the Court—and the goal of making procedural rules easy to understand, the Court easily could have adopted the sixty-day rule, which – as the Chief Justice noted during oral argument – would have caused the least amount of prejudice to the parties.  Instead, the Court focused on dictionary and statutory definitions of the terms “party” and “intervention” and largely minimized the unique rights that the federal government possesses in these qui tam actions. 

Here, the Court’s decision was a blow to the relator, Eisenstein, who filed his notice of appeal fifty-four days after the entry of judgment.  The Court has dismissed his appeal.  But, ironically, the Court’s decision may put a greater burden on the United States than relators in the future.  Now, relators know to file their notices of appeal within thirty days of the entry of judgment no matter who is involved in the litigation.  The federal government, on the other hand, will have to think more carefully and more quickly about whether it wants to intervene in a qui tam action.  Putting aside the intellectual question of what interpretation of FRAP 4(a)(1) is “correct,” I have always wondered why the government wanted the thirty-day time period to apply.  It may have to ask itself the same question now.

Commentary

In what may have been an excess of exuberance, the White House issued a statement about the Chrysler deal Tuesday night. Attributed to an unnamed White House official, it included this assertion: “We are gratified that not a single court that reviewed this matter, including the U.S. Supreme Court, found any fault whatsoever with the handling of this matter by either Chrysler or the U.S. Government….” There are some problems with that, and they are not mere legal technicalities.

The state of what might be called “bailout” law has not been reviewed at all by the Supreme Court, except at a somewhat speculative level of whether there was a chance the Court would rule against the deal if it did rule on the merits. It was not convinced, at this stage, that it would do so if that time came.

Fundamental constitutional issues surround the use of federal funds in the Chrysler bailout, as do a host of questions about using the bankruptcy laws as they were in this case.  They were raised in the papers filed at the Court this week, but they were not answered in any final way.

The White House was close to right, it seems, about the lower courts.  A federal bankruptcy judge in New York City found no “fault,” with Chrysler or the U.S. Treasury, on the issues he did decide (which was not all of those presented), and apparently the same was true of three judges of the Second Circuit Court (although they have not yet issued an opinion to say just exactly they had found beyond a generalized agreement with the bankruptcy judge).

But the Supreme Court did not do that.  It did not rule on “fault” because that would involve “the merits of the underlying legal issues” and the Tuesday order explicitly denied reaching the merits.

 Whether the Court will now do so, at any point, depends on a few things.

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Sometimes, it is a mystery how a prior Supreme Court decision — not well known except to real insiders — is dug up, perhaps by a law clerk, and given new notoriety.  Such has been the fate of U.S. v. Halper, a constitutional ruling that stood for less than nine years until it was largely cast aside as “ill considered” and had ”proven unworkable.”

Chief Justice John G. Roberts, Jr., used Halper in dissent on Monday to flay a majority for another ruling that he clearly deemed ill considered and unworkable.  Halper’s fate, he said, was “a cautionary tale,” and added: “I believe we will come to regret this decision as well.”  He was writing for the dissenters in Caperton v. A.T. Massey Co. (08-22), in which the majority sought to lay down a variable standard on when an elected judge is constitutionally obliged to disqualify from participating in a case involving a political benefactor.

The jurisprudential linkage between Halper and Caperton, however, was not obvious.  In fact, Halper is not mentioned in the briefs in Caperton.

Someone in the courthouse must have remembered it, though.  And it may well have been not a current law clerk, but a former one.  Indeed, it may well have been John G. Roberts, Jr., the onetime Rehnquist clerk and now, of course, the Chief Justice (and the main dissent’s author in Caperton).

On Jan. 17, 1989, just days before his 34th birthday, Roberts, specially appointed by the Court to represent Irwin Halper because Halper had no lawyer of his own, stood up at the Court’s lectern to make his very first oral argument before the Justices.  And he won, unanimously.  (He defeated another lawyer making his first argument, Michael R. Dreeben, with the U.S. Solicitor General’s office,then and now.)

How could Roberts possibly forget?  And, it appears, he did not.

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It is remarkable how much ink has been spilled on Sonia Sotomayor’s ethnic background rather than her legal background.

From the moment the nomination was announced, talking heads have called the President’s choice one based on “pandering to Hispanics” or “checking the box” for minorities. Some have suggested that a white man with her resume would not be so highly praised or that her academic successes were nothing more than affirmative action. Innumerable news features on Sotomayor have described her nomination in terms of identity politics or a symbol of rapprochement to the Hispanic community.

In the rush the find Sotomayor’s “biases,” media personalities and conservative opponents latched onto her Berkeley speech on “A Latina Judge’s Voice,” which provoked Rush Limbaugh’s accusations that she is a “reverse racist” and Newt Gingrich’s now-infamous “tweets” calling for her to withdraw. Instead of looking to the legal precedent in the Second Circuit’s Ricci opinion, the Judicial Confirmation Network said “[Sotomayor] reads racial preferences and quotas into the Constitution, even to the point of dishonoring those who preserve our public safety.”

Anything “ethnic,” from the food she eats to the way she pronounces her last name, has been discussed as possibly influencing her jurisprudence. The mainstream media has highlighted her group affiliations,  college comments, and a law school discrimination complaint as evidence of her racial preference possibly trumping pragmatism. And then there’s been the blatant race baiting: most shockingly,  Rep. Tom Tancredo today called the civil rights advocacy group La Raza, of which she is a member, “a Latino KKK without the hoods or the nooses.”

It seems to me that there is an infinitely simpler and more accurate way of figuring out whether Judge Sotomayor decides cases involving race fairly and dispassionately - read her decisions.  So I did:  I am in the midst of reviewing every single race-related case on which she sat on the Second Circuit.

There are roughly 100.  They cover the gamut from employment discrimination to racial bias in jury selection.  I decided that I would stop and write an interim report once I got through her 50 most recent race-related cases other than Ricci because the numbers are sufficiently striking and decisive.  Here is what I found.

In those 50 cases, the panel accepted the claim of race discrimination only three times.  In all three cases, the panel was unanimous; in all three, it included a Republican appointee.  In roughly 45, the claim was rejected.  (Two were procedural dispositions.)

On the other hand, she twice was on panels reversing district court decisions agreeing with race-related claims - i.e., reversing a finding of impermissible race-based decisions.  Both were criminal cases involving jury selection.

In the 50 cases, the panel was unanimous in every one.  There was a Republican appointee in 38, and these panels were all obviously unanimous as well.  Thus, in the roughly 45 panel opinions rejecting claims of discrimination, Judge Sotomayor never dissented.

It seems to me that these numbers decisively disprove the claim that she decides cases with any sort of racial bias.

I also looked at whether there was anything nefarious in the failure of the Ricci panel to publish a substantial opinion.  From the pool of 50, the panel affirmed a district court’s decision rejecting a claim of employment discrimination or retaliation (as in Ricci) 28 times; it did so by unpublished order in 24.  Whatever one thinks of the argument that the issues in Ricci deserved more attention than the panel gave them, the decision not to publish an opinion seems to have been pretty commonplace.

When I’m done with the study, I will update the numbers and publish a database with all of the decisions.

Continuing our examination of the “shortlist” candidates to replace Justice David H. Souter, below is a profile of Seventh Circuit Judge Diane P. Wood and brief analysis of how her opinions have intersected with the Supreme Court’s decisions. [Embedded links direct to document files and relevant news articles.]

Articulating her understanding of constitutional interpretation in a lecture entitled, “Our 18th Century Constitution in the 21st Century World,” Seventh Circuit Judge Diane P. Wood laid out her view that judges should not confine their interpretation of the Constitution to the narrowest reading of the text. Rather, the Framers understood that courts would find “unwritten” law that allowed the text to adapt to contemporary needs: “[t]here is no more reason to think that they expected the world to remain static than there is to think that any of us holds a crystal ball. The only way to create a foundational document that could stand the test of time was to build in enough flexibility that later generations would be able to adapt it to their own needs and uses.”

As an articulate proponent for a dynamic Constitution, Wood could provide the Supreme Court with a counterpoint to conservative jurisprudence of the right. In her 14 years on the Seventh Circuit, Wood has often played that role with respect to her conservative colleagues Justices Richard Posner and Frank Easterbrook.  She has written over 50 dissents and concurrences and joined dozens more.

Wood, 58, was appointed by President Clinton in 1995 and became the second woman on the Seventh Circuit. She was recommended for the bench by late Illinois Senator Paul Simon and received a “well qualified” rating by the ABA Standing Committee on the Federal Judiciary. A transcript of her nomination hearing and her nomination questionnaire can be found here.

Wood’s nomination would maintain a Supreme Court composed entirely of former federal judges. But she came to the appellate court from academic roots: she has taught at University of Chicago Law School since 1981, served as its the associate dean for three years, and was for a time the only woman on the faculty. Her tenure at Chicago overlapped with President Obama’s lecturer position there. With an academic background primarily in antitrust law and international finance, she might assist the Court as it answers legal questions emerging from the global economic crisis and the Department of Justice’s increased efforts at antitrust enforcement.

Wood would bring some geographic and educational diversity to the bench: eight of the nine current Justices attended Harvard or Yale and seven of the nine served on East Coast circuits. Calling Texas her “adoptive home state” (she moved at age 16), Wood received her undergraduate and law degrees from University of Texas, Austin, graduating from the law school with high honors in 1975. She clerked for the Attorney General of Texas during law school and for Judge Irving L. Goldberg of the Fifth Circuit upon graduating. She then clerked for Supreme Court Justice Harry A. Blackmun in the 1976 term.

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As part of our continuing examination into Judge Sotomayor’s opinions in civil cases, below are a handful of additional decisions on a variety of topics.  Most do not involve resolution of controversial or momentous legal questions — as illustrated by the fact that most were decided unanimously — but rather give some insight into the Judge’s day-to-day work on cases of some factual or other interest.

Brissett v. Ashcroft, 363 F.3d 130 (2004), concerned the application of a federal statute that governs the citizenship status of the children of individuals who become naturalized citizens.  The statute provides that ordinarily the child automatically becomes a U.S. citizen only if both his parents naturalize.  However, if the parents  have undergone a “legal separation,” then the child becomes a citizen so long as the parent who has custody has naturalized, even if the other parent has not.  In Brissett, a child of separated parents claimed he had become a U.S. citizen (and thus could not be deported after having committed an aggravated felony) when his mother naturalized.  Under the statute, that claim turned on his assertion that his parents were legally separated.  His Jamican parents were living separately but had not gotten a court order approving a separation.  However, his mother had obtained a protective order against the father, and an order for child support.  Writing for a unanimous panel, Judge Sotomayor held that this was not enough.  Judge Sotomayor deferred to the INS’s interpretation of the statute as requiring official proceedings resulting in either a divorce or legal separation of the parties to the marriage.   She rejected the conclusion, adopted by another court, that this meant that there must be a judicial decree, given the diversity of family law practices around the world.  But she required some kind of “formal act” and concluded that a restraining order or order of support would not suffice because the support order did not require or contemplate the separation of the couple, nor did the restraining order (which simply prohibited the husband from threatening, assaulting, or harassing his wife).  As a result, the court affirmed the deportation order.

In United States v. Reimer, 356 F.3d 456 (2004), Judge Sotomayor and her colleagues  unanimously affirmed the revocation of citizenship for a man accused of assisting the Nazi’s in persecuting Jews during World War II.  The defendant was of German descent but born in Ukraine and was drafted into the Russian army when Germany invaded that country.   He was captured by the Germans and sent to a camp in Poland, where he was trained to work as a guard in the “Wachmannschaften,” which assisted in guarding concentration camps and clearing Poland’s Jewish ghettos.  After the war, he emigrated to the U.S. and was given citizenship.  The case before Judge Sotomayor arose when the U.S. Government sought to strip him of his citizenship based on a statute that precluded Reimer from receiving citizenship if he had “assisted in the persecution of any person because of race, religion, or national origin.”  Reimer argued that he did not fit this description because his participation in the Wachmannschaften was coerced and ministerial.  But the Second Circuit affirmed the trial court’s finding that he had participated sufficiently in the persecution of Polish Jews to be ineligible for citizenship.  Judge Sotomayor found especially relevant that Reimer had admitted to standing guard over a pit into which dead and dying Jews had been thrown and had complied with an order to shoot at moving victim in the pit (although he claimed that he had deliberately missed).

Anthony v. City of NY, 339 F.3d 129 (2003), was a civil rights suit by the family of a woman with Down Syndrome against New York City Police officers and others arising from an incident in which the police responded to a 911 call coming from the woman’s house.  Finding her alone and incoherent, the police brought her in handcuffs to a hospital psychiatric ward, where she was kept overnight, tested for drugs, and given psychiatric medicines.  Writing for a unanimous panel, Judge Sotomayor affirmed the dismissal of the complaint.  First, she concluded that the police did not violate the Fourth Amendment by entering the woman’s home without a warrant because exigent circumstances existed in light of the 911 call.  Judge Sotomayor distinguished prior circuit precedent which had held that an anonymous tip about an emergency in a neighbor’s house did not excuse the failure to secure a warrant.  This case, she wrote, was different because the 911 call came from the same house that the police had entered.  The panel further concluded that the police had acted reasonably in taking the woman to the hospital and did not violate her rights under the Constitution or the Americans with Disabilities Act.In

King v. American Airlines, 284 F.3d 352 (2002), Judge Sotomayor held that the civil rights claims of two African-American airline passengers were pre-empted by the Warsaw Convention, a treaty dealing with international air travel.  The plaintiffs alleged that they had been involuntarily bumped off a flight because of their race.  Judge Sotomayor, writing for a unanimous panel, held that their claim under 42 U.S.C. § 1981 was pre-empted by the Warsaw Convention even though the Convention itself provides no remedy for race discrimination.  The Supreme Court, Judge Sotomayor explained, had been clear that U.S. statutory claims would be preempted so long as they fall within the “substantive scope” of the treaty, even if the treaty provides no remedy.  And in this case, Article 17 of the treaty addressed injuries that take place “in the course of any operations of embarking or disembarking.”  Because the plaintiff’s claims arose while they were attempting the board the plane, Judge Sotomayor reasoned, their injuries fell within the scope of Article 17 and therefore were pre-empted.  She recognized that this meant that there is no federal civil rights action that can be brought to address race discrimination in the course of international air transportation.  But she noted that FAA regulation prohibit such discrimination and the FAA can bring administrative actions to enforce that requirement.

In re Visa Check, 280 F.3d 124 (2001), was a massive antitrust class action brought by retailers against Visa and Mastercard, challenging the fees they charge merchants who use their debit and credit cards.  The issue before Judge Sotomayor and her colleagues was the propriety of class certification.  She and a district court judge, sitting by designation, voted to affirm the grant of class certification, over the dissent of Judge Jacobs.  Of particular significance, Judge Sotomayor wrote that in ruling on a certification motion, although the district court must “conduct a ‘rigorous analysis’ to ensure that the prerequisites of Rule 23 have been satisfied . . . ‘a motion for class certification is not an occasion for examination of the merits of the case.’”  As a result, she held, the trial judge should not “weigh conflicting expert evidence” but instead determine only whether the plaintiff’s expert testimony was “fatally flawed” and “thus inadmissible.”  Applying that standard, she affirmed class certification in the case before her.  The Second Circuit subsequently overruled this standard in In re IPO, 471 F.3d 24 (2006).  In that later decision, the court ruled that the trial court may resolve factual disputes that go to the elements required for class certification, even if the issues overlap somewhat with the merits of the claim.  And, the court specifically “disavow[ed] the suggestion in Visa Check that an expert’s testimony may establish a component of a Rule 23 requirement simply by being not fatally flawed.”