Legal News

And in Other Scotus News . . .

By Ashby Jones

Given the news just reported by the AP — that President Obama has tapped Second Circuit judge Sonia Sotomayor to replace retiring Supreme Court Justice David Souter — we realize, LB readers, that you might be inclined to gloss over the Scotus coverage in today’s newspapers, feeling that those articles are already dated.

But the truth is that at least a couple are still very much worth a gander.

What a Liberal Vision Looks Like: For starters, may we recommend Jess Bravin’s piece in today’s WSJ. For now, we’re not sure if Sotomayor is going to turn out to be that “full-throated and unapologetic liberal” that many on the left were hoping to get from this appointment. But let’s say, for the sake of argument, that she is. What might her vision look like?

Two new books outline possible pathways to such a vision — The Constitution in 2020, and Keeping Faith with the Constitution.

“Keeping Faith,” for instance, lays out an alternative to the “originalist” method of Constitutional interpretation espoused by Justice Scalia. According to the book, written by Goodwin Liu, Pamela Karlan and Christopher Schroeder, the Supreme Court’s most significant decisions were made by focusing less on the way constitutional provisions originally were enforced but on their impact on contemporary generations. Referring to the court’s 1942 decision striking down an Oklahoma law authorizing forced sterilization of “habitual” criminals, “not a single justice…asked whether forced sterilization would have been permitted in 1868 when the 14th Amendment was adopted,” the authors write.

She Who Gets Asked More Questions, Loses: Does there exist a shorthand way to determine which side of a Supreme Court case is going to win, just by examining the oral arguments? The answer, according to an article by the NYT’s Adam Liptak, might be yes.

It’s a simple thing, really: The party who gets asked more questions at oral argument loses. The theory was initially proffered by a then second-year student at Georgetown Law, Sarah Levien Shullman. Chief Justice John Roberts — at the time a judge on the D.C. Circuit — heard about Shullman’s study and undertook, his own. "The most-asked-question 'rule' predicted the winner - or more accurately, the loser - in 24 of [28 cases he studied], an 86 percent prediction rate," he told the Supreme Court Historical Society in 2004.

According to Liptak, the two studies do illuminate something about the nature of questions that Supreme Court justices ask lawyers for each side. In reality, such arguments are for the most part attempts by the justices to persuade their colleagues. "Quite often the judges are debating among themselves and just using the lawyers as a backboard," Chief Justice Roberts said at Columbia Law School last year.

Full post as published by Law Blog - WSJ.com on May 26, 2009 (boomark / email).