Almost half of the justices are done hiring their law clerks for October Term 2008. The latest justice to finish up: Justice Anthony M. Kennedy.

In addition to Chris Walker (Stanford 2006 / Kozinski), whose hiring has been previously noted in these pages, congratulations to the three newest AMK clerks:

1. Ashley Keller (University of Chicago 2007 / Posner)
2. Travis Lenkner (Kansas 2005 / Kavanaugh)
3. Steven Shepard (Yale 2007 / Kozinski)

It’s unusual to have two clerks from the same feeder judge in the same justice’s chambers. But if there’s any combination that’s likely to produce such a development, it’s Kozinski —> Kennedy (just as Luttig would sometimes send two clerks to Justice Scalia in the same Term; also note Judge Garland filling three out of Justice Stevens’s four slots in OT 2008).

Ashley Keller appears to be the first Chicago clerk in OT 2008. Also note the (unsurprising) emergence of the well-connected Judge Brett Kavanaugh (D.C. Cir.), relatively new to the federal bench, as a feeder judge extraordinaire.

The current tally of OT 2008 SCOTUS clerks, with the three new Kennedy clerks added, appears after the jump.

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:

1. Nykeesha Davis and Chad Peterman

2. Deborah Bernstein and David Foster

3. Ellen Bradford and Todd McIntosh

More about these couples, after the jump.

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.

Legal academic debate with real-world ramifications? Wow. This truly is newsworthy.

Thoughtful blogospheric reactions from Jonathan Adler, Jack Balkin, Randy Barnett, and Michael Dorf, among others. We were most amused by Professor Dorf, who blog-slaps Liptak, before concluding his post in delightfully catty fashion:

Full disclosure: I spoke with Mr. Liptak last week and expressed skepticism (along the lines described above) about his causal claim. I guess I didn’t say anything quote-worthy.

HA. Hell hath no fury like a law professor not name-checked.

(Sorry, Professor Dorf — not everyone is as susceptible to your charms as Justice Kennedy. You may spend your entire life searching for a jurisprudential romance to match what you had with AMK at One First Street, back in the heady days of October Term 1991.)

A Liberal Case for the Individual Right to Own Guns Helps Sway the Federal Judiciary [New York Times]
Scholarship and the Second Amendment in the Courts [Dorf on Law]
How Liberals Saved the Second Amendment [Volokh Conspiracy]
Scholars and the Second Amendment [Volokh Conspiracy]
The Second Amendment is Embarrassing No More [Balkinization]

* 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]

And now back to a more contentious subject: the death penalty. In three opinions issued today, the Supreme Court reversed the convictions of Texas death row inmates.

Each of the cases involved a problem with the lower appellate courts’ application of prior SCOTUS rulings on special jury instructions in death penalty cases. All three decisions were 5-4, with the usual suspects (Roberts, Scalia, Thomas, Alito) in dissent. Kennedy wrote the majority opinion in Smith v. Texas; Stevens wrote the other two, Abdul-Kamir v. Quarterman and Brewer v. Quarterman, which had been orally argued together.

From SCOTUSblog:

In one of two rulings Wednesday on death penalty procedures in Texas, the Supreme Court ruled that Texas’ highest state court wrongly put up a new legal barrier to a death row inmate’s challenge to jury instructions in his sentencing. The 5-4 decision came in the case of Smith v. Texas (05-11304), a case that had been before the Court once before.. Justice Anthony M. Kennedy wrote for the majority.

The Court reversed the Texas Court of Criminal Appeals’ ruling that reinstated the death sentence of a Dallas man, LaRoyce Smith; the state court had applied a new harmless error standard under state law. That was a misinterpretation of what federal law required, the Court concluded.

In the consolidated cases of Abdul-Kabir v. Quarterman (05-11284) and Brewer v. Quarterman (05-11287), the Court in another 5-4 decision found that the Fifth Circuit Court wrongly applied prior rulings on instructions to assure that capital juries give full consideration to any factor that might suggest a death sentence should not be imposed.

I credit Kennedy not so much because he wrote one of the majority opinions, but because he was surely once again the swing vote in what is becoming a heavy trend of 5-4 opinions. So much for Roberts’ goal of a unified court.

How Appealing has links to the opinions here.

This just in from One First Street. The Associated Press reports:

The Supreme Court upheld the nationwide ban on a controversial abortion procedure Wednesday, handing abortion opponents the long- awaited victory they expected from a more conservative bench.

The 5-4 ruling said the Partial Birth Abortion Ban Act that Congress passed and President Bush signed into law in 2003 does not violate a woman’s constitutional right to an abortion.

The opponents of the act “have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases,” Justice Anthony Kennedy wrote in the majority opinion.

The decision pitted the court’s conservatives against its liberals, with President Bush’s two appointees, Chief Justice John Roberts and Justice Samuel Alito, siding with the majority.

This ruling lends support to those who predict — like Jan Crawford Greenburg, in Supreme Conflict — that Chief Justice John Roberts and Justice Samuel Alito will move the Court significantly to the right in the years ahead. Before Justice Alito replaced Justice Sandra Day O’Connor, a decision like this one would have required the conservatives to secure TWO swing votes, AMK and SOC, instead of just one. That frequently doomed the conservatives to defeat in the big-ticket cases.

So Justice Alito, appointed to the Court by President Bush, probably made all the difference here. As Senatrix Barbara Boxer recently observed: “Elections have consequences.”

Update: For more detailed commentary, check out Lyle Denniston’s SCOTUSblog post, which quotes extensively from Justice Kennedy’s majority opinion and Justice Ruth Bader Ginsburg’s dissent. To read the opinion itself, click here (PDF).

Court Backs Ban on Abortion Procedure [Associated Press]
Court upholds federal abortion ban [SCOTUSblog]
Gonzales v. Carhart (PDF) [SCOTUSblog]
Senator Boxer: Elections Have Consequences [YouTube]

Some of you have inquired into the rest of our coverage of last week’s Trial of Hamlet, presided over by Justice Anthony M. Kennedy. Thanks for the reminder.

Well, here it is. It’s ridiculously late, and it’s probably of interest only to folks who also attended the event.

If you feel like it, you can check it out after the jump.

OOPS!!! Sorry about that.

The Court’s order vacating its December grant of review explains that it was “advised by Justice Kennedy that he now realizes that he should have recused himself from participation in this case, and does now recuse himself.”

Justice Kennedy contemplated, but ultimately decided against, issuing a separate order explaining his belated recusal, calling his son Gregory Kennedy (at right) “very handsome,” and declaring his intention “to hug him no matter how old he gets.”

Kennedy Recuses From Antitrust Case Involving Son’s Company [Legal Times]
Greg Kennedy bio [Credit Suisse]

Earlier: The Michigan Supreme Sandbox: We Left Out the Best Part

We thoroughly enjoyed ourselves at last night’s Kennedy Center event, The Trial of Hamlet, presided over by Justice Anthony M. Kennedy. It was highly entertaining and quite educational, on a number of subjects: Hamlet, literary criticism, psychiatry, and the art of advocacy, among others.

We’re planning to write more about the evening later. For now, we’ll give you the bottom line: Who won?

The prosecution team consisted of Miles Ehrlich, a former federal prosecutor (and law clerk to Justice Kennedy), and Cristina Arguedas, a California criminal defense attorney. Hamlet was represented by Abbe Lowell, the prominent D.C. defense lawyer, and Catherine Crier, a Court TV host and former Texas state judge. The defense argued that Hamlet should not be held criminally responsible for the killing of Polonius by reason of insanity.

After testimony from psychiatric experts and arguments from counsel, the jury of 12 retired to deliberate. In the end, they emerged deadlocked, voting 6-6 in the case. After receiving the jury’s verdict, Justice Kennedy, without missing a beat, said something like, “Hamlet, please rise. I hereby remand you to the pages of literature, where you will continue to intrigue us for centuries to come….”

Justice Kennedy’s “remand” speech was so eloquent that it sounded scripted. Many audience members were left wondering whether the outcome was rigged — whether the jury was going to be a hung jury no matter what, in order to demonstrate the complexity, ambiguity, and richness of Hamlet as a literary text.

As it turns out, however, the jury vote was NOT rigged. They truly were deadlocked, by the end of their deliberation time (which, due to the schedule for the evening, was admittedly not that long).

And don’t blame Justice Kennedy for their indecision! While the jury was deliberating, AMK was moderating a discussion about the play with the participants in the trial, in front of the Kennedy Center audience.

Despite the frustratingly ambiguous verdict — we must admit, we like our entertainment with closure — we had a good time. More discussion will follow later. If you attended and have thoughts to share, please feel free to email us.

Sane or not, Hamlet a hit in Washington trial [Reuters]

Earlier: Justice Kennedy and The Trial of Hamlet

Justice Anthony M. Kennedy has been described by many — e.g., Jeffrey Rosen — as a Hamlet-like justice, who agonizes over every decision. And later this week — perhaps this was his therapist’s idea? — Justice Kennedy will preside over the trial of his dramatic alter ego.

From the NYT:

[Hamlet’s] criminal responsibility — whether he was sane at the time of [the] killing [of Polonius] — is the central question of “The Trial of Hamlet,” to be heard here on Thursday at the John F. Kennedy Center for the Performing Arts. The mock trial is a Washington wonk’s dream, stacked with Shakespeare-loving luminaries. Justice Anthony M. Kennedy of the United States Supreme Court, an enthusiastic Shakespeare aficionado who conceived of the idea, will preside over the trial.

“What you realize is that you know Hamlet better than you know some real people, because he tells you exactly what he is thinking,” said Justice Kennedy in a telephone interview. “The trial provides a fascinating, oblique way in which to examine Hamlet, the legal process and the intellect of Shakespeare, who continues to speak to us in our own time.”

It should be a great event, especially if one goes by ticket sales. It sold out, got moved to a larger venue, and sold out again.

We’d love to attend; alas, it’s sold out. If you have an extra ticket that you’re looking to sell, please email us. Thanks!

Was Dane’s Madness Just Method? Jury to Decide [New York Times]
The Supreme Court Hears the Trial of Hamlet [Kennedy Center]

* Lawyer was grand jury leak in BALCO case. [MSNBC]

* Justice Kennedy: Pay the judges! [Law.com]

* Notre Dame’s Coach Weis testifies in gastric bypass malpractice case. Tom Brady may testify. [CBS Sportsline]

* Judge allows burial of Anna Nicole Smith. [MSNBC]

* Should you marry a lawyer? [WSJ Law Blog]

Yesterday the Supreme Court heard oral arguments in two cases concerning the use of race as a factor in assigning students to public schools: Parents Involved in Community Schools v. Seattle School District #1, out of the Ninth Circuit, and Meredith v. Jefferson County Board of Education, out of the Sixth Circuit.

It appears that SCOTUS virgin Teddy Gordon, representing the petitioners in Meredith, did just as badly as many members of the snooty SCOTUS bar expected. For a blow-by-blow account of his ill-fated argument, see this reader comment.

Our commentary on the arguments, plus links to audio-casts and written transcripts, after the jump.

This post has nothing to do with the gastrointestinal tract of a certain Supreme Court reporter. Rather, it’s about Massachusetts v. EPA, the greenhouse gases/global warming case, argued before the Supreme Court yesterday.

We’re relatively late in covering this — you’ve probably read about it already elsewhere — so we’ll be brief.

Questions Presented:

(1) Can the EPA (read: Bush Administration) get away with refusing to regulate carbon dioxide in automobile emissions, even though a bunch of states, cities, and environmental groups want it to?

(2) Do these entities have standing to object to the refusal?

(3) Has President Bush been reading too much Michael Crichton?

Money Quote(s): Eh, there weren’t any. This argument was no KSR v. Teleflex.

And are you really surprised? It’s an administrative law/environmental law case, concerning the proper construction of the Clean Air Act, with a big threshold question about standing. Not exactly a barrel of laughs.

Likely Outcome: Who knows? We agree with Tony Mauro and Lyle Denniston: It all comes down to Justice Kennedy.

Roberts may be the Chief, but it’s Kennedy’s Court. And everyone else is just sitting on it.

Massachusetts v. EPA, No. 05-1120 [On the Docket / Medill]
Justices’ First Brush With Global Warming [New York Times]
Massachusetts v. EPA oral argument transcript [Supreme Court (PDF)]
Eyes on Kennedy as Supreme Court Debates Global Warming Case [Legal Times]
EPA argument 11/29/06: Major precedent looms? Maybe not [SCOTUSblog]
Analysis: Kennedy key to global warming challenge [SCOTUSblog]
Today at the Supreme Court: Preemption and Global Warming [WSJ Law Blog]

Last week, an investiture ceremony was held for Judge Neil Gorsuch, recently confirmed to the U.S. Court of Appeals for the Tenth Circuit. And it was a star-studded affair. From the Denver Post:

Seven-year-old Emma and 5-year-old Belinda helped their father, Neil Gorsuch, into his judge’s robes Monday after the newly appointed 10th Circuit Court judge was sworn in.

Munching on cookies after the formal ceremony, Emma said she thought it “was nice.”

Supreme Court Justice Anthony M. Kennedy, who was in Denver to administer the oath, spoke directly to the little girls before Gorsuch raised his right hand. “He’s doing it to remind all of us that the first obligation any American has is to defend and protect the Constitution of the United States,” he said.

Justice Kennedy’s pedagogical impulse is admirable. We suspect, however, that Emma and Belinda were thinking more about cookies than the Constitution.

Some supplementary coverage, from an ATL tipster:

The entire en banc 10th Circuit was present. Justice Kennedy administered the oath. Attorney General Gonzales read the commission. Both Colorado Senators made remarks, as did Mark Hansen of Kellogg Huber (the insanely prestigious appellate shop from which Gorsuch rose). Half of the Justice Department was there: Rachel Brand, Elisebeth Collins Cook, Brett Gerry, Wan Kim, Gregory Katsas, among others.

The Gorsuch clerks showed everyone around Denver and got trashed on consecutive nights. Good times were had by all.

Article III groupies, Judge Neil Gorsuch is one to watch. He’s brilliant, he’s young, and he’s incredibly well-connected. Look for him to rise through the ranks of Supreme Court feeder judges in the years to come — and, perhaps, to be nominated to the Court himself someday.

(Judge Gorsuch is taking the seat of Judge David Ebel, who has been the Tenth Circuit’s resident feeder judge for quite some time now. Guess that’s the 10th Circuit’s designated “feeder seat.”)

Update: Would someone be able to locate and/or send us a good photo of Judge Gorsuch for our files? Our quick Googling didn’t produce anything useful.

10th Circuit judge’s oath a family affair [Denver Post]

At the risk of seeming Harvard-centric — yesterday we wrote about Larry Tribe’s dog — we bring you this brief report on the Ames Moot Court finals, held last week at Harvard Law School. From the Boston Globe:

Every year, the Ames Moot Court finals at Harvard Law School are a pretty amazing affair, bringing together a dozen third-year law students who have already beaten out a couple hundred of their classmates, in front of high-ranking real-life judges. But this year, the cast of characters seemed particularly interesting.

On one team was Erika Harold (at right), the 2003 Miss America. The other team included Kevin Terrazas, who started law school after serving in Iraq with the 101st Airborne Division.

The bench for the competition was similarly distinguished. It’s traditional for a Supreme Court justice to preside over the Ames Moot Court finals, and this year was no exception: Justice Anthony M. Kennedy, the Court’s increasingly influential swing vote, wielded the gavel. He was joined on the bench by two of the most brilliant members of the federal judiciary: Judge Diana Gribbon Motz, of the Fourth Circuit, and (super-feeder) Judge Merrick B. Garland, of the legenday D.C. Circuit. Both Judge Motz and Judge Garland have been mentioned as possible Supreme Court picks in a Democratic administration.*

The case presented was a fictional one, captioned Adam’s Apple Markets v. Aphrodite Cosmetics. The team representing Aphrodite, which featured veteran Kevin Terrazas as an oralist, won best overall case. Beauty queen Erika Harold and her teammates won the prize for Most Congenial best written legal briefs. Tian Tian Mayimin, who argued for defendant Aphrodite Cosmetics, won for best oral presentation. (But in announcing the oralist award, Justice Kennedy “noted the judges emphasized substance over style.” Does that mean that Mayimin’s style left something to be desired?)

Were any of you in attendance at this august event? If so, and if you have any funny or interesting tidbits to add, please do so in the comments.

* Does anyone remember those TV commercials for Motts applesauce cups, in which a little kid says to his co-conspirator, “I got the Motts”? If Judge Motz is ever nominated to the Supreme Court, we’d like the president to announce her nomination by exclaiming, “I got the Motz!”

Shirin Shakir Memorial Team Wins 95th Ames Moot Court Finals [Harvard Law Record via How Appealing]
Miss America Loses Harvard’s Moot Court Competition [WSJ Law Blog]
Ames Moot Court Final video [Harvard Law School via How Appealing]
Moot Court Finals Rule at HLS [Harvard Law School]

* It’s finally here: Ohio State vs. Michigan. And the respective law school deans are getting in on the wagering. Dean Nancy Hardin Rogers of Ohio State and Dean Evan Caminker of Michigan cleverly weave law with the age-old rivalry. Dean Rogers asks: “A burning question among the national media is whether the outcome in Columbus on Saturday will have res judicata effect between these two teams, or whether the loser will be able to appeal for a trial de novo at the National Championship game in January.” [WSJ Law Blog]

[Ed. note: Dean Caminker (pictured at right) is no stranger to the pages of Above the Law. ATL readers recently voted him the Hottest Law School Dean in America, an award that he accepted graciously.]

* Law students help uncover more possible violations at Gitmo. [MSNBC]

* Church and state are at it again. [Opinion Journal via How Appealing]

* John Dean chimes in on the re-nominations controversy. [FindLaw]

* Bobbleheads of Justices Kennedy and Stevens are up for bidding on eBay, with proceeds going to chairty. [SCOTUS Blog]

We meant to write about this yesterday: Ayers v. Belmontes, the death penalty case in which a closely divided Supreme Court reversed the Ninth Circuit. The opinion was handed down on Monday. It was the first opinion of the Term, and it was an unusual first opinion.

The typical first opinion of the Term is some unanimous, per curiam opinion about some soporific statutory issue (often written by Justice Ginsburg). But Ayers v. Belmontes was a signed opinion (by Justice Kennedy), in a death penalty case, reflecting a 5-4 vote. Interesting.

A possible explanation, from the Queen Bee of the SCOTUS Press Corps, Linda Greenhouse:

No one at the court on Monday could remember a term that began with a 5-to-4 decision. But while this decision might, on the surface, suggest that the current court is on the way toward setting a record for internal division, that is not necessarily the case. A more likely explanation is that much of the majority opinion was in fact drafted last spring, before the court agreed to hear California’s appeal.

The entry on the court’s public docket shows that while the state’s appeal was pending the justices discussed it nine times at closed-door conferences. With cases typically being discussed only once or twice, if at all, nine is an unusually high number. It suggests that a group of justices was trying to win majority support for an opinion that would decide the case summarily, without argument or further briefing.

The failure of such an effort typically results in a compromise decision to accept the case for argument, with much of the opinion already having been drafted.

In other words: Ayers v. Belmontes could have been a standard-issue, summary reversal of the Ninth Circuit; but the votes weren’t there. So the benchslap-in-the-making was quickly converted into a majority opinion for a divided Court. (But props to Justice Stevens for cranking out his dissent with such speed.)

Also, the case features the coolest name ever for a jury member: “Juror Hailstone.”

Justices Uphold a Death Sentence Twice Overturned [New York Times]
Ayers v. Belmontes [Legal Information Institute, Cornell Law School]