Tom (remarks beginning at 3:20) discussed the dwindling number of cert grants, noting that both the 68 cases decided after argument and the 72 total cases decided this term were modern lows for the Court. If the justices cannot fill the fall calendar for OT07, he said it should “bite the bullet” and cancel a sitting rather than call for expedited briefing of cases. Tom also noted the high percentage of 5-4 splits this term between the Court’s two main factions (after Thursday’s rulings, 19 of the 24 decisions with 5-vote majorities involved Justice Kennedy joining either the four left-leaning or four right-leaning justices), concluding “the ideological lines are sharper now than they’ve been in 20 years.” With Massachusetts v. EPA (05-1120) being the only major 5-4 victory for the liberals, he said it’s been “an extraordinarily successful term for conservatives.”

Englert (remarks beginning at 16:20) focused on the Court’s antitrust decisions this term, noting that defendants had prevailed with strong majorities in Weyerhaeuser v. Ross-Simmons Hardwood Lumber (05-381), decided 9-0; Bell Atlantic Corp. v. Twombly (05–1126), decided 7-2; and Credit Suisse Securities v. Billing (05-1157), decided 7-1. (Note: the defendant also prevailed in the Court’s final antitrust ruling, Leegin Creative Leather Products Inc. v. PSKS Inc. (06-480), though Thursday’s decision produced a 5-4 split.) Along with other business-friendly rulings this term, the Court has put “ a world of hurt on the plaintiffs’ class action bar,” Englert said. He cited Stoneridge Investment v. Scientific-Atlanta (06-43) – which examines secondary liability in securities fraud cases – as the Court’s main business case in OT07.

Brownell (remarks beginning at 24:25) focused on the Court’s environmental rulings. He called National Association of Home Builders v. Defenders of Wildlife (06-340) and Massachusetts v. EPA the most important decisions of the term, both of which were decided 5-4. Justice Alito authored the opinion in the first case, which was released last Monday, and Justice Stevens wrote the decision in the second case. In the global warming case, Brownell said the majority treated the Clean Air Act like a “living constitution.” He said the decision will spawn further cert petitions on global warming issues, and also predicted the Court will be asked to resolve disputes arising from last year’s fractured Rapanos decision on the scope of the Clean Water Act, and the extraterritorial reach of the Superfund statute.

The audience Q&A session (beginning at 50:00) included discussion of the punitive damages decision in Philip Morris USA v. Williams Estate (05-1256), the correlation between the Solicitor General’s recommendations and the Court’s declining docket, and Justice Alito’s impact on the Court, among other topics.

The podcast, available for direct download here, is approximately 9 minutes long and weighs in at 2.1 MB.

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The podcast, available for direct download here, is approximately 6 minutes long and weighs in at 1.4 MB.

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Previous podcasts are also available by clicking the “Multimedia” tab.

After the jump, Professor Kmiec has a detailed report of the discussion.

Greenburg led off the event recounting the privilege of having been given significant access to the justices themselves and her extensive use of the justices’ papers in the Library of Congress and the Reagan Library. Part of Jan’s thesis is that conservatives are disappointed in the Rehnquist Court. I followed up on that with my own perspective from my days in the office of legal counsel that those who see the Reagan and Bush efforts to remake the court as a disappointment because of the occasional unpredictability of Justices Kennedy, O’Connor, or Souter, understate the significance of the judicial selection effort as not being devoted to outcome, but a philosophy of judicial restraint or humility which in a given context might leave in place either a politically liberal or conservative result. In my view, Greenburg’s major contribution is having written a book about the Court that allows the Justices and events to speak for themselves, without a political filter of left/right or author bias. Especially compelling for me is Greenburg’s thoughtful exposition of how the justices interact with each other and respond to public and scholarly commentary.

The book did remind me of one disappointment: the failure to appoint Ken Starr to the high bench at the time of his service as solicitor general; that, as I see it, was a self-inflicted wound from intra-conservative tribal sparring. Boalt law professor, and former Dean, Jesse Choper followed with a reflection of Sandra Day O’Connor’s significant contribution as a role model. Choper nicely highlights how criticism of O’Connor from the right, understates her significant conservative rulings on presidential power, campaign finance and school choice. In making a comparison between O’Connor and Harriet Miers, Choper notes that O’Connor’s constitutional experience was not significantly greater or different than Miers at the time of nomination, and the two women had more in common than not. The difference, he notes, is 20 years time and the nature of the confirmation proceeding and the fact that O’Connor had the benefit, and the burden, of being a pioneer. Choper’s point leads later in the program to a robust discussion of the value of diversity for the high bench and the confirmation process which may or may not allow it.

Dean Starr commented on the failed nomination of Robert Bork, indicating that Bork had a built-in following from the time of the Nixon administration on-ward. As for his own fate, Starr graciously declined to speculate, other than that he believed those who found him “unacceptable,” did so as “people of goodwill.” Again, in one of the more disturbing chronicles in her book, Greenburg recounts how Starr had been at the top of White House lists for the seat vacated by the late William Brennan. The seat went to David Souter. Former UCLA Dean Jon Varat found Greenburg’s book extremely accessible and well-written. He concurred with Professor Kmiec that a good deal of what defeated or
misdirected conservative thinking had to do with intra-conservative disagreement among different strains of conservatism anchored in, respectively, judicial modesty, libertarianism, respect for precedent, and those who simply want conservative political outcomes. Speculating on the impact of Chief Justice Roberts and Justice Alito, Varat anticipates more openness to religious reference on the establishment clause and perhaps a rethinking of the free exercise jurisprudence as well. Varat is puzzled by conservative defense of the unitary executive or strong presidential authority, and wonders if it is inconsistent with the principle of limited government.

The event concludes with interesting questions and speculations among the panelists and audience, including Greenburg’s prediction that President Bush is not likely to
have another opportunity to fill a vacancy on the Supreme Court.

The podcast, available for direct download here, is approximately 12 minutes long and weighs in at 2.9 MB.

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Previous podcasts are also available by clicking the “Multimedia” tab.

The podcast, available for direct download here, is approximately 11 minutes long and weighs in at 2.6 MB.

To automatically receive the newest episodes of the podcast, you can subscribe to our feed in iTunes by clicking here (or simply search for “SCOTUSblog” in the iTunes Store); to use other podcasting or RSS software, you can subscribe to the podcast’s XML feed directly here.

Previous podcasts are also available by clicking the “Multimedia” tab.

The podcast, available for direct download here, is approximately 16 minutes long and weighs in at 3.5 MB.

To automatically receive the newest episodes of the podcast, you can subscribe to our feed in iTunes by clicking here (or simply search for “SCOTUSblog” in the iTunes Store); to use other podcasting or RSS software, you can subscribe to the podcast’s XML feed directly here.

Previous podcasts are also available by clicking the “Multimedia” tab.

The podcast, available for direct download here, is approximately 11 minutes long and weighs in at 2.5 MB.

To automatically receive the newest episodes of the podcast, you can subscribe to our feed in iTunes by clicking here (or simply search for “SCOTUSblog” in the iTunes Store); to use other podcasting or RSS software, you can subscribe to the podcast’s XML feed directly here.

Previous podcasts are also available by clicking the “Multimedia” tab.

To automatically receive the newest episodes of the podcast, you can subscribe to our feed in iTunes by clicking here (or simply search for “SCOTUSblog” in the iTunes Store); to use other podcasting or RSS software, you can subscribe to the podcast’s XML feed directly here.

Previous podcasts, including the first two episodes in the “Practice Pointers” series, are also available by clicking the “Multimedia” tab.

To automatically receive the newest episodes of the podcast, you can subscribe to our feed in iTunes by clicking here (or simply search for “SCOTUSblog” in the iTunes Store); to use other podcasting or RSS software, you can subscribe to the podcast’s XML feed directly here.

Previous podcasts are also available by clicking the “Multimedia” tab.

To automatically receive the newest episodes of the podcast, you can subscribe to our feed in iTunes from the new link at the top of the homepage, next to the RSS feed, or by clicking here; to use other podcasting or RSS software, you can subscribe to the podcast’s XML feed directly here.

Previous podcasts are available here and here.

Amy uses examples from the “Questions Presented” page of three recently submitted petitions; if you would like to follow along, you can download the relevant pages of the three cases here.

You can subscribe to the podcast in iTunes from the new link at the top of the homepage, next to the RSS feed link; to use other podcasting or RSS software, you can subscribe to the podcast’s XML feed directly from a link there as well. Alternatively, the second episode is available for download as a stand-alone mp3 here.

In this first podcast, which lasts approximately 7 minutes, I give an overview of the factors that the Justices consider in granting cert.

You can subscribe to the podcast in iTunes from this link, or, if you have other podcasting or RSS software, you can subscribe to our feed directly here. Alternatively, the premiere episode is available for download as a stand-alone mp3 here.