If you can only name one Supreme Court Justice, let’s hope that it’s Anthony Kennedy. It’s his world now, we’re all just along for the ride.
Today’s big Supreme Court ruling was the case of Berghuis v. Thompkins. At issue was whether a suspect’s silence constituted a waiver of his right to remain silent.
Yes, you read that correctly. There was actually an open question as to whether remaining silent waives your right to do so. More importantly, it does! One must speak in order to be protected by a right guaranteed to you in the Constitution.
Justice Kennedy wrote the opinion for the 5-4 majority…
That’s the question the Supreme Court answered in the negative today, in Graham v. Florida. The Court’s opinion was by Justice Kennedy, whose vote usually controls on Eighth Amendment issues, and it was joined by the four liberal justices.
The case generated oodles and oodles of pages and a welter of separate opinions. Thankfully, the AP has a fairly clear and concise summary:
The Supreme Court has ruled that teenagers may not be locked up for life without chance of parole if they haven’t killed anyone.
By a 5-4 vote Monday, the court says the Constitution requires that young people serving life sentences must at least be considered for release.
The court ruled in the case of Terrance Graham, who was implicated in armed robberies when he was 16 and 17. Graham, now 22, is in prison in Florida, which holds more than 70 percent of juvenile defendants locked up for life for crimes other than homicide.
Florida: where it’s good to be an old person.
Interestingly enough, Chief Justice John Roberts — not known as a bleeding heart — agreed with the majority as to Terrance Graham specifically. Because he concurred in the judgment, the vote on the disposition of the case was actually 6-3.
The back-and-forth between the majority and the dissent gets quite heated at times. Justice Thomas wrote the main dissent, which Robert Barnes of the Washington Post described as “stinging.” But given the power that Justice Kennedy wields at One First Street, it’s generally unwise to attack him too harshly.
So the most snarky exchange did not involve Justice Kennedy, but took place between Justice Thomas and his soon-to-be-former colleague, Justice Stevens….
Oh, to be old and powerful. SCOTUS Justice Anthony Kennedy must be living the good life. He’s got a lifelong job in the middle of a global recession, and oh yeah, he’s the swing vote on the Supreme Court. I bet he doesn’t even drive a Toyota.
Justice Kennedy gave a talk at Pepperdine School of Law. The ABA Journal reports:
Kennedy’s “courtly and humorous” address at Pepperdine University’s School of Law included criticism of harsh sentences in the United States. He also responded to questions, including this one: “Does Justice Kennedy feel scolded?”
“He doesn’t,” Kennedy replied.
And why would he? As we noted after the State of the Union, the President Obama can talk all he wants, the Court does not have to listen. As the Ventura County Star reports:
His response when asked about President Barack Obama’s comment that the ruling invited special-interest money into politics:
“I’ve got a lifetime job,” Kennedy said. “He doesn’t.”
Properly buoyant with that sense of unelected, inscrutable power, Justice Kennedy took a couple of lighthearted shots at the other branches of government.
Ed. note: ATL has teamed up with FantasySCOTUS, the premier Supreme Court fantasy league. (For more background, check out this WSJ Law Blog post.) On Fridays, the 10th Justice will analyze league voting to predict how the Supreme Court may decide upcoming cases.
Welcome to the second installment of Predictions of the 10th Justice, brought to you by FantasySCOTUS.net. The league has over 1,800 members, who have made predictions on all cases currently pending before the Supreme Court. Recently, Justice Stephen G. Breyer was asked in an interview about FantasySCOTUS.net. His response, “I don’t think I will bet on it.”
In this feature, we try to predict the votes of the decisive swing-vote on the court, Justice Kennedy. We will look at four important cases where Justice Kennedy is likely to cast the deciding fifth swing vote, and compare the predictions of the FantasySCOTUS.net faithful to the mathematically precise predictions of Yale Professor Ian Ayres’s “Predict Justice Kennedy’s Vote” Program.
In October 2006, when LEWW reviewed her wedding, we wrote of Aileen McGrath (at right, with handsome hubby Jason Gillenwater):
Aileen is the President of the Harvard Law Review. HELLO!!! And this isn’t mentioned in the announcement, but we’ve learned that she’ll be clerking next year for Chief Judge Michael Boudin, of the First Circuit — feeder judge extraordinaire.
So, Aileen, have you picked which Supreme Court justice you’d like to clerk for?
She has. We’ve learned that Aileen McGrath (Harvard 2007 / Boudin) has accepted an offer to clerk for Justice Stephen G. Breyer in October Term 2008. One source tells us: “[S]he’s universally recognized as brilliant. She was president of the law review and a Sears Prize winner.”
We also hear that the fourth clerk to Justice Clarence Thomas for OT 2008 is a D.C. Circuit clerk (believed to be clerking for Judge David Sentelle). Will someone please give up the name? Update: Her name is Claire Evans. She’s a 2002 graduate of Rutgers School of Law – Camden, and she’s the first alum of the school to score a SCOTUS clerkship. She clerked for Judge Jerome Simandle (D.N.J.) in 2003, and then for Michael Chertoff, back when he was still on the Third Circuit. Reports our source:
“Chertoff liked Claire so much that he took her to the Department of Homeland Security when he left the bench for Washington. Apparently, Claire continues to amaze and has now secured the most coveted of credentials — a U.S. Supreme Court clerkship.”
“[S]he holds the highest cumulative grade point average in the history of Rutgers School of Law – Camden. And, because of a grading change implemented the year after Claire graduated, it is now mathematically impossible for Claire’s epic GPA to ever be topped.”
Finally, expect more SCOTUS clerk hires in the near future. From an in-the-know tipster:
There’s movement among the justices now. At least Alito, Roberts, Kennedy & Breyer have scheduled interviews in the last few days. Kennedy has scheduled pre-screen interviews, at least some of which are with Judge Kozinski.
The current tally of OT 2008 Supreme Court clerks, with Aileen McGrath and Claire Evans added, appears after the jump.
Apart from our three finalist couples, there isn’t much to highlight for you this week: just some minor WGWAG action, and, in the Vows column, a nice shout-out to LEWW’s temporary home city.
So without further ado, we bring you our fabulous finalists:
Some helpful tipsters reminded us: today is the birthday of [swing] Justice Anthony M. Kennedy. Happy Birthday, Justice Kennedy!
We asked one reader, aspiring lawyer Andrew Cohen,* for thoughts on writing up a short post. His response:
“You don’t. You write a ridiculously long post that both praises and denigrates him, pretending to come out clearly one way or another, but writing so murkily that no one can tell how you actually feel.”
And let’s throw in some flowery rhetoric, too. Considering that it’s AMK’s birthday, a shout-out to the “mystery of life” would be quite apropos. Update: Thanks for the reminder. Birthday wishes also go out to Justice Kennedy’s most famous former clerk: Judge Alex Kozinski! Justice Kennedy Turns 71 [How Appealing]
* We include Mr. Cohen’s name with his permission (and wish him good luck on the bar exam tomorrow). But our default rule at ATL is anonymity for all correspondents.
David Souter is signing Ruth Bader Ginsburg’s yearbook. Sam Alito is hoping he’ll get a better locker next year. Nino Scalia is mapping out which European restaurants he’s going to hit this summer. Yes, that’s right: today is the last scheduled day of the Supreme Court’s Term.
The justices are handing down opinions as we type. We’ll have coverage and links pertaining to today’s decisions in a subsequent post.
Will there be any surprises? Or will the paramount importance of Justice Kennedy simply be further confirmed — as if this fact, noted by the astute Jim Ho, wasn’t revealing enough?
Check back soon for more. Update / correction: Today was, according to the Court’s OT 2006 calendar (PDF), the last scheduled non-argument session. But because the justices didn’t hand down all of the Term’s opinions today, they will issue more decisions on Thursday. Batting 1.000 [Volokh Conspiracy]
Liberal law professors can be pretty predictable in their tastes. Volvo stationwagons. Fair trade coffee. Guns.
Guns? Yes, guns. No, not gunners — guns. Firearms. Bang bang. The good ol’ Second Amendment.
According to a very interesting NYT article, by Adam Liptak:
In March, for the first time in the nation’s history, a federal appeals court struck down a gun control law on Second Amendment grounds. Only a few decades ago, the decision would have been unimaginable.
There used to be an almost complete scholarly and judicial consensus that the Second Amendment protects only a collective right of the states to maintain militias. That consensus no longer exists — thanks largely to the work over the last 20 years of several leading liberal law professors, who have come to embrace the view that the Second Amendment protects an individual right to own guns.
In those two decades, breakneck speed by the standards of constitutional law, they have helped to reshape the debate over gun rights in the United States. Their work culminated in the March decision, Parker v. District of Columbia, and it will doubtless play a major role should the case reach the United States Supreme Court.
* Justice Kennedy profile: “The Sphinx of Sacramento.” [Slate]
* NBA refs give a new meaning to DWB. [SI]
* Imus plans lawsuit based on contractual language that acknowledged irreverence. [MSNBC]
* Trans fat lawsuit against KFC deep fried, disposed of properly. [CNN]
* Indian judge who issued Gere warrant transferred. “Routine”? [MSNBC]
Ed. note: The Asia Chronicles column is authored by Kinney Recruiting. Kinney has made more placements of U.S. associates, counsels and partners in Asia than any other recruiting firm in each of the past seven years. You can reach them by email: email@example.com.
It’s that time of year again when JDs are starting to apply for 2L summer jobs and 2L summers are deciding which practice area to focus on.
For those JDs with an interest in potentially lateraling to or transferring to Asia in the future, please feel free to reach out to Kinney for advice on firm choices, interviewing and practice choices, relating to future marketability in Asia, or for a general discussion on your particular Asia markets of interest. This is of course a free of cost service for those who some years in the future may be our future industry contacts or perhaps even clients.
For some years now Kinney’s Asia head, Evan Jowers, has been formally advising Harvard Law students with such questions, as the Asia expert in Harvard Law’s “Ask The Experts Market Program” each summer and fall, with podcasts and scheduled phone calls. This has been an enjoyable and productive experience for all involved.
Whether you’re fresh off the bar exam or hitting your stride after hanging a shingle a few years ago, one thing’s for certain: independent attorneys who start a solo or small-law practice live with a certain amount of stress.
Non-attorneys would think the stress comes from preparing for a big trial, deposing a hostile witness, or crafting the perfect contract for a picky client.
But that’s nothing compared to the constant, nagging, real-life kind, the kind you get from the day-to-day grind of being a law-abiding attorney.
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