Barkow, Friedman, Paul Clement, and Jeffrey Toobin examine Supreme Court's current docket (VIDEO)

The October 21 installment of the NYU Law Forum, “The Supreme Court’s New Term (and New Justice),” convened a panel of experts to speculate on the Supreme Court’s 2009-10 term and the High Court jurisprudence of Sonia Sotomayor, former NYU School of Law adjunct professor and the newest justice.

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Adjunct Professor Paul Clement, a partner at King & Spalding in Washington, D.C., and former U.S. solicitor general, gave his rundown of the most significant cases this term, including the campaign finance case Citizens United v. Federal Election Commission; McDonald v. City of Chicago, which involves the application of the Second Amendment at the local and state levels; and Kiyemba v. Obama, the first case involving the war on terror to reach the Court since the advent of the current administration.

Clement mentioned as “sleeper” cases United States v. Comstock, which concerns a federal law allowing sex offenders deemed dangerous to be confined beyond their set prison terms, and a trio of cases involving convictions for “honest services fraud,” a doctrine within the federal mail- and wire-fraud statute that has been interpreted broadly by prosecutors. He also touched on a case he had just argued, Perdue v. Kenny A., in which the Court’s determination concerning the availability of enhanced attorneys’ fees in civil rights cases could have implications for the number of such cases brought in the future.

Professor Rachel Barkow agreed on the underappreciated importance of the honest services fraud cases, pointing out that Justice Antonin Scalia had issued a sharp dissent when the Court denied an appeal of an honest services fraud conviction earlier this year, writing that the doctrine’s “expansive” language “invites abuse by headline-grabbing prosecutors.” Mentioning two cases out of Florida involving juvenile offenders sentenced to life for non-homicide convictions, she said, “If the Court doesn’t find a problem here, I think that it’s a pretty safe prediction that the Court is not going to be at all robust in its review of Eighth Amendment claims outside the capital context.”

The panelists engaged in a bit of speculation about Sotomayor, with Barkow wondering how the new justice would come down on the Sixth Amendment’s confrontation clause and sentencing. Clement also mentioned Sixth Amendment cases: “As a former prosecutor, [Sotomayor] may look at these just a little bit differently than Justice Souter.”

New Yorker writer and CNN senior legal analyst Jeffrey Toobin brought the conversation to the macro level as he discussed the criticism journalists receive for dwelling on the influence of politics on the Supreme Court. “I think if anything, we don’t focus enough on how political the Court is,” Toobin said. “This is a deeply political institution. Justices are put on the Court for political reasons, they rule for political reasons, but they don’t say that they do.” That denial, he argued, results in “perfectly ridiculous” confirmation testimony from judges who claim to simply follow the law. “When you are debating questions like, does the Constitution protect a woman’s right to choose an abortion, may a university use race in admissions, the law doesn’t tell you the answer.” Referring to a “conservative ascendancy” with a particular agenda at the Court, Toobin pointed to Anthony Kennedy as the wild-card justice who “is running this court on a lot of the big cases.... I don’t say out of criticism that the Court is a deeply ideological body. I don’t think there is any other way to decide these cases except ideologically. I just wish they’d be honest about it.”

Vice Dean Barry Friedman talked about external forces that influence the Court, arguing that it is susceptible to public opinion and political control, and in modern times has often come into line with public opinion over time. While conservative, he said, the Roberts Court has been checked by a presidency and Congress controlled by an opposing party. Friedman pointed to last term’s Voting Rights Act case, Northwest Austin Municipal Utility District Number One v. Holder, as an example of the Court’s pulling its punches by ruling narrowly when it could have tried to effect a sea change. And Kennedy himself, Friedman argued, was his own external force, figuring in as a factor when the justices are deciding whether to grant review and trying to predict on which side the fifth vote will fall. “What I expect is a continuing rightward-moving Court, but death by a thousand cuts,” Friedman said. “Things are going to be done slowly within the doctrine internally that will gradually move the law to the right.”


Video
Watch the full recording of the event (1 hr, 15 min):

Posted on October 26, 2009

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