SCOTUS Decisions in Haiku

Houston, Texas IP attorney Keith Jaasma has an entertaining blog, Supreme Court Haiku, where he creates wonderful haiku poems featuring the decisions, past and present of the Supreme Court of the U.S.  He also has haiku about the Constitution and various justices. However you feel about haiku poetry, the very condensed, three line poems that Japanese poets write, usually about nature, you will certainly enjoy his self-deprecatory, very funny FAQ movie.

Rockin' out lawyer-geek style.  :-)  You can also follow Jaasma on Twitter and Facebook.

Many thanks to my sister, Barrett Hansen, a Texas lawyer, who alerted me to this great site!

Justice Sotomayor Comes to Town

It's not every day that a law school plays host to an Associate Justice of the United States Supreme Court, and this is why Pace Law School pulled out all the stops for Justice Sonia Sotomayor today. Fresh from her appearance on Sesame Street on November 9, Justice Sotomayor spent the day at Pace, meeting with students, faculty, staff, and other members of our community.  Justice Sotomayor had a lengthy question-and-answer session with over 200 students this morning in the moot court room (there were a number of other locations on campus where the event was being broadcast).  All of the students' questions had been prescreened, and certain subjects were off limits, including anything to do with cases currently before the Court and cases that might come before the Court.  This is an understandable restriction which most Justices seem to follow.  When asked about her judicial philosophy, she said she really didn't have one; however, she believes strongly in process, that everyone has the right to be heard. 

During lunch with the faculty, Justice Sotomayor answered more questions, but our questions had not been prescreened.  She told us that her day is spent "Researching, thinking, and writing," and lamented the poor writing skills she sees in many attorneys; this is not much of a problem at the Supreme Court because the attorneys who appear before the Court tend to be a small, elite group, but it was an issue at the Second Circuit.  She said law schools need to do a much better job training students in legal writing, and should focus less on teaching the "law and" curriculum and more on teaching the law and practical skills.  One writing course is not enough; students need as many opportunities to write and to get feedback on their writing as possible.  I don't know anyone who would disagree with that statement; the problem is, of course, that working with students on writing is labor intensive and can usually not be done effectively through large-enrollment courses.  I was also interested to hear her say in response to a question about the future of legal education that no one school can be great at everything.  Law schools should collaborate to diversify their curricula rather than build new programs; schools with specialized curricula should team up with schools that specialize in other areas to enrich both schools' course offerings for the lowest cost.  This is hardly a new idea, but it is one whose time may have come.

Turning to the Court, when asked about the proliferation of concurrences in recent terms of the Court, Justice Sotomayor stated that they resulted from the concurring judges' sense that while the correct result had been reached, the majority had not considered other approaches to achieving the same result.  It is important for the concurring judges to put their views on the record, for the benefit of their colleagues and the public.  When asked about the length of today's Supreme Court opinions, Justice Sotomayor agreed that they tend to be longer than those of the past, but she pointed out that earlier opinions were often marked by a paucity of analysis which makes it difficult for later Justices to interpret them and use them as precedent.  In response to a question about the value of legal scholarship, specifically law review articles, which Chief Justice John Roberts has criticized, Justice Sotomayor said she disagreed; the briefs she receives often include references to law review articles, but the most useful are those that trace the growth and development of an area of the law, in other words, the traditional law review article.  The farther afield legal scholarship goes, the less useful it is to sitting judges who must decide real cases. 

Everyone who met with Justice Sotomayor noted her warmth, intelligence, and engagement with those to whom she spoke.  These are the same qualities the Pace community noted during her visit in 2003 when she was our commencement speaker.  Her goal today was to get to know Pace Law School better, and I think she did. 

The Fine Art of Writing Supreme Court Opinions

With so much attention justifiably focused on the Supreme Court this week, it is worth considering how Supreme Court opinions are drafted.  The public assumes that the justices write their opinions themselves, but most lawyers know that what actually happens is very different.  Forrest Wickman's column in Slate sheds some light on the inner workings of the Court, and might be worth sharing with students in Advanced Legal Research courses.   

Wickman speaks in mostly general terms about the opinion-writing process because there is a "code of secrecy" that governs it and most of the other internal workings of the Court.  (We certainly know that the code of secrecy is alive and well based on the fact that there were few or no leaks about how the Court would rule today in the Affordable Care Act case.  The only leak that I heard was that Chief Justice John Roberts would write the opinion, which turned out to be true.  I think most commentators believed the Court would find the Act unconstitutional in whole or in part.)  What we know is that "justices are responsible for the substance of their opinions in each case, [but] their clerks usually do the majority of the writing."  Wickman refers to the Sorcerers' Apprentices, a recent book that

found that about 30 percent of the opinions issued by the Supreme Court are almost entirely the work of law clerks, with clerks responsible for the majority of the court's output.  This is a relatively recent development:  The Supreme Court began to institute clerks only in the 1890s, but by the mid-20th century they were already playing a significant role in drafting opinions. 

Once a case has been argued and an initial vote taken by the Court, one of the justices is selected to be responsible for the opinion, and Wickman discusses how this decision is made.  Justice Scalia sometimes writes decisions himself, but most of the other justices assign one of their four clerks to write the first draft of the opinion.  (Chief Justice Roberts has five clerks by virtue of his office).  The justice will direct the clerk to a greater or lesser extent, and then the clerk will begin the drafting process, which "may involve painstaking research and working nights and weekends."  The clerks arrive at the Supreme Court expecting to work hard and they do; after their clerkships, however, they are much in demand at law schools and law firms and their hard work pays off.  Another intangible benefit must be the opportunity for clerks to have a lot of influence on our legal system so early in their careers.  It must be a very heady experience.

After the clerk submits the first draft, the justice reads it and may request small revisions or wholesale rewriting.  Once it passes the justice's muster, it is transmitted to the other justices, and this may lead to more revisions.  If there are concurrences and/or dissents, they too are circulated.  Eventually each opinion gets one last proofreading from the staff of the Court, citations are checked, and a syllabus is prepared for the majority opinion (also reviewed by the justices and clerks).  The opinion is posted on the Supreme Court's website and printed as a slip opinion.  Further corrections and changes may be caught before the official United States Reports volume is printed.  Some commentators feel that the clerks "have contributed to a decline in the quality of the court's writing," but it's hard to be sure whether that observation is true.

The illustration is a fragment of Chief Justice John Marshall's handwritten opinion in Marbury v. Madison, 5 U.S. 137 (1803).  It comes from the Exploring Constitutional Law website, which is a service of the University of Missouri-Kansas City Law School.

Justice Kagan's First Year

Hearing Dahlia Lithwick speak about the Supreme Court at last summer's AALL conference was the high point of the meeting for me. She was insightful, funny, erudite, and entertaining. In a recent issue of New York, Lithwick turns her attention to the newest Supreme Court justice--Elena Kagan--and offers a review of her first year on the bench. Entitled "Her Honor," the article describes the controversy over whether Justice Kagan (as well as Justice Clarence Thomas, whose wife is affiliated with a group that has openly opposed the Patient Protection and Affordable Care Act) should recuse herself from the challenge to the Act when it comes before the Court. The argument in favor of Justice Kagan's recusal is that when she served as Solicitor General, Justice Kagan "both strategized about and advised the administration on the law, and also expressed opinions on its consitutional merits, in violation of the recusal rules." For another view, also largely positive, of Justice Kagan's first year on the Court, see this article from the Washington Post.

Lithwick portrays Justice Kagan as anything but the "frothing ideologue" her opponents tried to make her out to be before her confirmation. Nor is she a "self-serving careerist and party hack." Justice Kagan is a good listener who pays careful attention during oral argument both to the attorneys and to her colleagues. She does ask questions (fewer than Justice Sonia Sotomayor, who asks a lot of questions), but tends to be deferential to the other justices, some of whom ask lengthy, tortuous questions. Lithwick also points out that Kagan has earned high marks for her writing:

Like Scalia and Roberts, she uses short, crisp sentences. Jargon at a minimum. Memorable metaphors that make complicated ideas accessible. It's as if half of her is writing to influence her colleagues while the rest of her is writing to sway everyone else. ... Kagan has repeatedly used the words imagine and you and writes directly to the reader, ... a technique that instantly "draws the audience into the process of decision-making."

But it also signals something about the way Justice Kagan thinks. She's interested in working through the argument--both sides fully credited--and appealing to readers to weigh in, instead of beating them down with a doctrinal worldview.

Lithwick believes that ultimately Justice Kagan will not recuse herself from the health-care case any more than Justice Thomas will. "She will decide it as a member of a larger body, triangulating against the words of the Constitution and the constraints of prior precedent."