A stunning announcement from retired Justice Sandra Day O'Connor Tuesdayshook the Supreme Court world. At age 88, facing dementia, O'Connor said she had to curtail her public activities. We have it covered from several angles. Plus, items about the new lineup of circuit justices and reports on an unusual First Amendment case attracting big law attention as well as some long-pending death penalty cases. Feedback welcomed at [email protected] and [email protected].

Sandra Day O'Connor's Letter to the Nation

“I hope that I have inspired young people about civic engagement and helped pave the pathway for women who may have faced obstacles pursuing their careers,” retired Justice Sandra Day O'Connor, revealing her dementia diagnosis, wrote in an extraordinary letter to the public that was released Tuesday.

O'Connor, who said she is no longer able to participate in public life, recounted her commitment to advancing civics learning and engagement. O'Connor began iCivics eight years ago as an online program for middle and high school students who can access free interactive games and curriculum.

“I feel so strongly about the topic because I've seen first-hand how vital it is for all citizens to understand our Constitution and unique system of government, and participate actively in their communities,” O'Connor wrote.

The justices issued statements Tuesday—read them all here—about O'Connor's letter:

>> Chief Justice John Roberts Jr.: “Justice O'Connor is of course a towering figure in the history of the United States and indeed the world. She broke down barriers for women in the legal profession to the betterment of that profession and the country as a whole. She serves as a role model not only for girls and women, but for all those committed to equal justice under law. Although she has announced that she is withdrawing from public life, no illness or condition can take away the inspiration she provides for those who will follow the many paths she has blazed.”

>> Justice Sonia Sotomayor: “Just as she helped spark so many legal careers, including my own, Sandra has kindled in me and many others a renewed devotion to civic education and participation. The organization that she founded, iCivics, continues her legacy of transforming civic education for American youth, and its board of directors, of which I am a member, will continue to support and expand its work.”

>> Justice Ruth Bader Ginsburg: “Justice O'Connor made a surprise appearance one night in the Shakespeare Theatre's production of Henry the Fifth. Playing the part of Isabel, Queen of France, she spoke the famous line: 'Hap'ly, a woman's voice may do some good.' Sandra Day O'Connor's voice has done enormous good in the pursuit of justice for all in our land and world.”

And praise poured in on social media. “As a native Arizonan, Justice O'Connor has long been a hero of mine. My prayers and best wishes to her and her family,” Michael Huston, an assistant to the U.S. solicitor general, said in a tweet Tuesday. Kate Shaw, a law professor at Benjamin N. Cardozo School of Law, called O'Connor's letter “incredibly moving.”

> More reading: O'Connor, Stepping Back from Public Life, Gave Her Chambers to Kennedy

Big Lawyering in Prison News Pro Bono Case

When former Bush solicitor general Paul Clement of Kirkland & Ellis teams up for a cert petition with Dechert partner Michael McGinley, a recent alum of the Trump White House counsel's office, you might think they'd be advancing a conservative client's conservative cause.

Not exactly, in the case of Prison Legal News v. Secretary, Florida Department of Communications, filed with the Supreme Court in September. Clement, who is counsel of record, is advocating for the monthly prison newspaper that has up to 9,000 subscribers, most of whom read it behind bars.

The newspaper is challenging, on First Amendment grounds, Florida's policy of banning the newspaper in Florida prisons because of the advertising it carries. “The FDOC's censorship is a national outlier,” Clement wrote. “Neither the federal Bureau of Prisons nor any other state or county prison system bans Prison Legal News based on its advertisements.”

Florida claims the newspaper's ads enable inmates to skirt prison rules regarding outside communications and solicitations, a position the U.S. Court of Appeals for the Eleventh Circuit supported in a ruling in May.

So it shapes up as a classic First Amendment case not unlike some of the cases in which the Roberts Court has favored the free speech claim, no matter how objectionable the speech might be. (See Snyder v. Phelps, U.S. v. Stevens.) But still, why did Prison Legal News, a project of the nonprofit Human Rights Defense Center, pick Paul Clement to represent it?

>> Clement has a history with Prison Legal News.

The publication's editor Paul Wright recruited Clement for a cert petition in a Freedom of Information Act case from Colorado involving the newspaper in 2011. At the time, Wright said he had seen an article in The National Law Journal detailing Clement's pro bono work challenging prosecutorial immunity in the wrongful conviction case Pottawattamie County v. McGhee. Clement took on the FOIA case pro bono. The high court denied cert, but Clement has maintained contact with the organization for years as the Florida First Amendment case made its way through the courts.

“From the first time we discussed this case, it seemed like a great First Amendment case that might appeal to judges and justices across the spectrum,” Clement said this week.

Wright, the newspaper's editor, agreed. “We're non-partisan. I don't pay attention to labels. I look for where lawyers stand on human rights and free speech. A lot of lawyers with big firms are really committed to the rule of law.”

Wright has also been impressed with the flood of pro bono amicus assistance at the cert stage, including a Covington & Burling brief on behalf of former corrections officials, and one on behalf of 18 free-press organizations. (Disclosure: One of the organizations in that brief is The Reporters Committee for Freedom of the Press, where Tony Mauro serves on the steering committee.)

Florida has not yet responded to the petition.

Meanwhile… Musical Circuit Assignments

With Senate confirmation of Justice Brett Kavanaugh to succeed retired Justice Anthony Kennedy, it was time for the traditional shuffling of circuit court assignments, or what is officially known as circuit allotments.

The practice of appointing circuit court justices was part of a reform of the judicial system enacted by Congress in 1869. The “riding the circuit” system did not formally end until 1911.

Until his retirement, Kennedy handled matters from the U.S. Court of Appeals for the Ninth Circuit. Under the new allotment order, that duty now falls to Justice Elena Kagan. Kavanaugh takes on Kagan's former assignment—the Seventh Circuit.

Here are the assignments for the other justices: Chief Justice John Roberts Jr.: D.C. Circuit, Fourth Circuit, Federal Circuit; Justice Clarence Thomas: Eleventh Circuit; Justice Ruth Bader Ginsburg: Second Circuit; Justice Stephen Breyer: First Circuit; Justice Samuel Alito Jr.: Third Circuit, Fifth Circuit; Justice Sonia Sotomayor: Sixth Circuit, Tenth Circuit; and Justice Neil Gorsuch: Eighth Circuit.

Stalking the Death Penalty

Supreme Court advocates are not surprised if their petitions are rescheduled once or twice for the justices' conference. But hope fades fast when a petition has been distributed for conference 17 times.

That's the situation in which two Oklahoma death row inmates and their lawyers find themselves. The result likely is a denial of review with a lengthy dissenting opinion. But there is something noteworthy about these two petitions. Their fate is playing out under the shadow of the Washington Supreme Court's decisionthis month striking down that state's death penalty as racially biased and arbitrary under the state constitution.

What that ruling and the Oklahoma petitions have in common is reliance on studies showing the racial disparity in charging and imposing the death penalty. The Washington study reported, among other findings, that black defendants were four and a half times more likely to be sentenced to death than similarly situated white defendants. The state supreme court said it afforded “great weight” to the study's analysis and conclusions.

In Jones v. Oklahoma and Wood v. Oklahoma, the inmates' lawyers—Arizona Assistant Federal Public Defenders Jessica Felker for Tremane Wood, Dale Baich for Julius Jones—are relying on a complex statistical study that shows nonwhites are nearly three times more likely to receive a sentence of death where the victim is white than if the victim is nonwhite; and, minorities like Wood are two times more likely to receive a death sentence where their alleged victim is white than are white defendants accused of killing white victims.

Thirty-one years ago, in McCleskey v. Kemp, the Supreme Court rejected a similar statistical study as a basis for striking down the penalty. The Baldus study showed a Georgia defendant like Warren McCleskey who killed a white person during a robbery was more than twice as likely to get the death penalty as a defendant who killed an African-American victim, everything else being equal.

The justices, in an opinion by Justice Lewis Powell, ruled against McCleskey. After Powell retired, his biographer asked him if he regretted any of his decisions. Powell said McCleskey, and he also believed capital punishment was unworkable and he would vote against it.

In a recent op-ed for the National Law Journal, former Florida Supreme Court Chief Justice Gerald Kogan wrote that the Jones case “presents an important opportunity” for the justices to address racism in the criminal justice system and in Oklahoma's death penalty. Kogan added, “The court should insist, at the very least, that Jones receives a hearing where all the evidence, including that of racial bias, can be heard. Fairness requires it.”

The Roberts Court's conservative majority has shown little interest in revisiting the constitutionality of the death penalty, despite Justice Stephen Breyer's continued urging.

More SCOTUS Reading: Former Thomas Clerks Lead the Pack | Ending 'Auer Deference'?

>> “If the newly entrenched conservative majority is looking for an opportunity to undo Auer, Judge Amul Thapar of the 6th U.S. Circuit Court of Appeals—who is considered a short-lister for any additional Supreme Court seat that opens up during the Trump presidency—flagged a hot prospect on Monday.” Reuters has more, and read the decision here.

>> Seventeen of 41 federal appeals nominees from the Trump administration were U.S. Supreme Court clerks, Bloomberg reports. Justice Clarence Thomas's former clerks lead the pack. One of those former Thomas clerks, Eric Miller, a Perkins Coie partner, heads to Senate Judiciary on Wednesday morning for his confirmation hearing for the Ninth Circuit, our colleague Ellis Kim reports.

>> “DOJ has been seeking extraordinary relief in the Supreme Court much more often during the Trump administration than in the past—as the sheer number of cases and filings makes clear,” Gibson, Dunn & Crutcher partner Nicole Saharsky tells The Washington Post.

>> The Wall Street Journal raised questions about closed-door remarks by Justice Neil Gorsuch to a Catholic group.

>> The justices blocked the deposition of Commerce Secretary Wilbur Ross in a suit over the 2020 census, but the issue could likely to return to the court soon.

>> “U.S. Solicitor General Noel Francisco chose an obscure and technical issue to argue in front of the justices this sitting, but court watchers tell Bloomberg Law there was likely a good reason for that.” More here.

>> Justice Sonia Sotomayor, asked about her new colleague Brett Kavanaugh, told Univision: 'We are going to let these times pass.”

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