In the calm before next week's storm of oral arguments, we give you a rundown of new Supreme Court books worth a peek. The SG's office makes its case for more funding. Plus, meet some new Scotus podcasters—including a truck driver from Montana—who are filling the void caused by the shutdown of First Mondays. Thanks for reading, and contact us at [email protected], [email protected] and[email protected].

 

 

SCOTUS Books We're Reading & Waiting For

Former Newsweek Washington bureau chief Evan Thomas is coming out with a fascinating book First: Sandra Day O'Connor, chockful of interesting bits gleaned from the personal papers of the justice and her late husband. Thomas's book is not the only Supreme Court-related new book on the shelves or online. Here are some volumes we are looking at or looking forward to:

>> The Chief: The Life and Turbulent Times of Chief Justice John Roberts. After chronicling the lives of Sandra Day O'Connor, Antonin Scalia and Sonia Sotomayor, veteran Supreme Court biographer Joan Biskupic tackled perhaps the most difficult subject yet: the enigmatic, reserved Chief Justice John Roberts Jr.He agreed to several interviews with Biskupic for her book, mainly off the record. But she unpacks his competing interests as a conservative and an institutionalist who does not want the court to be viewed as partisan or political—a dilemma that may dominate his tenure for years to come.

>> The Company They Keep. Lawrence Baum and Neal Devins, both longtime Supreme Court scholars, examine the elite social and political environment that surrounds justices in this book. The authors make the powerful point that the growth of the Federalist Society has created a welcoming, reaffirming environment that helps keep conservative justices from drifting to the left and has contributed to the polarization of the court.

>> The Making of a Justice. Justice John Paul Stevens, age 98, offers up his 'Reflections on My First 94 Years,' giving his own inside take on some of the most important decisions in which he participated, including D.C. v. Heller, the gun rights case. The memoir is due out in May, but former National Law Journal reporter Mike Sacks got his hands on a copy and tweeted his thoughts about the book.

>> Separate. In 2011 Washington Post senior editor Steve Luxenberg embarked on writing about the “separate but equal” Supreme Court decision Plessy v. Ferguson after he canvassed other historians and found that the full story of racial separation in America during the nineteenth century had not been told. His book is not just an analysis of the decision itself, but tells the story of Plessy—one of the most reviled Supreme Court decision in history—through its key players, including justices John Marshall Harlan and Henry Billings Brown.

>> Battle for the Marble Palace. If you think that the era of tumultuous Supreme Court nominations began with Robert Bork, Clarence Thomas or Brett Kavanaugh, this book resets the clock at the Abe Fortas nomination, which ended more almost exactly 50 years ago when Fortas resigned under the cloud of scandal. Forbes columnist Michael Bobelian is the author.

>> First: Sandra Day O'Connor. Evan Thomas, the author, offers several fun insights in his new book into the justice. One of O'Connor's favorite movies: Legally Blonde. Her favorite justice: John Marshall ”because he went home every night to serve dinner to his sickly wife.” And O'Connor, as traffic cop: One day in the mid-90s, O'Connor wanted to go shopping, but as she and her driver came back to the court, there was a huge mass protest in the way. Her driver said he couldn't get through the crowd. O'Connor left the car and stopped the traffic so he could get through. “I couldn't believe it,” the driver told Thomas. “The justice is doing traffic?”

 

 

SG's Office Seeks Budget Boost

The U.S. solicitor general's office has asked for a bump up in funding and support personnel to handle an expanded role in immigration litigation and a steady increase in casework in the appellate courts.

In the Justice Department's budget proposal for the next fiscal year, the SG's office is seeking $400,000 to fund an administrative position, a paralegal and a supervisor—all non-attorney positions. The number of lawyers in the office would remain at 23.

The office, led by Solicitor General Noel Francisco (above), has been “asked by the attorney general to play a leading role in the development of complex immigration litigation,” the government said in documents posted this week.

“Attorneys in [the solicitor general's office] have also increasingly been asked to brief and argue particularly important criminal cases in the en banc stage in the appellate courts including matters involving firearms regulation, computer searches, and finance regulations.

Although it's not unusual for the office to take an active role in lower court litigation “that everyone believes will end up in the Supreme Court,” it is unusual to see the solicitor general or the deputies arguing in the federal appellate courts, said Pratik Shah, a former assistant to the solicitor general and co-head of Akin Gump'sSupreme Court and appellate practice.

Shah recalled how then Solicitor General Paul Clement (Kirkland & Ellis) and his deputy and later solicitor general Gregory Garre (Latham & Watkins) argued national security cases in the appellate courts, such as Hamdi v. Rumsfeld and Munaf v. Geren before they reached the high court.

“It happens once or twice a term but it is unusual,” Shah said. “In a normal year, there may not be any, but we're living in unusual times.”

Under Francisco's leadership, the solicitor general's office has advocated aggressively in defense of the Trump administration's immigration policies—taking disputes quickly to the Supreme Court.

As acting solicitor general, Jeffrey Wall, now principal deputy solicitor general, argued Hawaii v. Trump in the Ninth Circuit in defense of the so-called travel ban. The government won its arguments in the Supreme Court, but the department lost its bid to stop a nationwide injunction against the new restrictions on asylum.

The Supreme Court hasn't yet acted on petitions challenging rulings that have blocked the Trump administration from rescinding a program benefitting certain immigrants who arrived in the U.S. as minors.

 

 

SCOTUS Pods: What We're Listening To

A while back, we surveyed the landscape of Supreme Court podcasts to see what might fill the void caused by the shutdown of First Mondays. We named several but have since learned of a couple of others: >> Supreme Court Decision Syllabus: Launched last year, this podcast has a simple goal of letting the public hear, without spin, the syllabus or official summary of every Supreme Court opinion as they are issued. “It kind of bothered me that you could listen to the arguments, but you couldn't listen to the decision without a lot of personal opinion,” said founder RJ Dieken.

Dieken is neither a lawyer nor a journalist but a long-haul truck driver, based in Missoula, Montana. While on the road, he would listen to Supreme Court oral arguments.

“That kind of stuff actually keeps me awake instead of vice-versa,” he said. Friends told him he has a radio voice, so he thought he'd give the syllabus podcast a try. He is gaining a following, but Dieken is not looking to monetize the enterprise. “It's just for fun,” he said, but added, “if it goes well it could open some doors for me in the future. I'm hoping to actually take a 2020 run at going to law school.”

>> SCOTUStalk: SCOTUSblog, which co-hosted First Mondays, came up with a home-grown replacement called SCOTUStalk just last week.

The first episode, moderated by Amy Howe, the blog's independent contractor and reporter, lasted a succinct 16 minutes or so, with NPR's Nina Totenberg as the guest, discussing last month's oral argument in the 'Peace Cross' cases.

“Our goal in launching is a 'plain English' take on recent oral arguments, using the argument audio, and—in weeks when there aren't arguments—other timely topics relating to the Supreme Court.”

 

Supreme Court Headlines

>> 'We Are Doing Better' Now on Minority Law Clerk Hiring, Kagan Says. Justice Elena Kagan, speaking at a rare congressional hearing, said law clerk diversity is being taken “very seriously by the court as a whole.” Recalling her own time as a law clerk in 1987 and 1988, Kagan said, “I think we are doing better” now, noting that for the first time ever, more than half of this term's law clerks are female. [NLJ]

>> 'Laughter Is a Blood Sport' at the Supreme Court, Scholars Say in New Study. “We believe that laughter at Supreme Court oral arguments tends to be an indication not of lighthearted, good-natured jesting by a superior to an inferior, but of a rhetorical weapon being used by a superior against an inferior.” [NLJ]

>> How the Supreme Court Could Bring More Guns to New York City. ”A case before the Supreme Court this term could significantly affect whether densely populated cities like New York have the right to set their own gun policies.” [NYT]

>> $50M Gift to Scalia Law School Will Fund 13 New Faculty Members. The gift is a bequest from the estate of the late Judge Allison M. Rouse in California and his wife Dorothy B. Rouse. Allison Rouse was an appointee of President Ronald Reagan, who also appointed Antonin Scalia to the U.S. Court of Appeals for the D.C. Circuit and later to the U.S. Supreme Court. [NLJ]

>> 'Court Packing' Ideas Get Attention from Democrats. “The once-remote idea of adding more justices to the Supreme Court to change its ideological bent is prompting growing discussion within the Democratic Party, creating a new frontier for presidential candidates looking to display their liberal credentials.” [The Washington Post]