The start of the Term in Plain English

By Lisa Tucker
on Oct 9, 2010 at 3:34 pm

We looked forward to it all summer long – and now it is hard to believe that it is actually over.  Yes, the first week of October Term 2010 is a thing of the past, with seven oral arguments (including those in some of the most interesting cases we’ll see this Term), Justice Kagan taking her seat on the far left side of the bench, the absence of Justice Stevens (who had smiled down on advocates for thirty-five years), and – for the first time ever – the same-week release of audio recordings of all oral arguments.

Before the Term even started, the Court generated lots of interest, not only for the cases that it would hear but also for the cases that Justice Kagan would not hear.  As Tom commented on Sunday here, many Justices find themselves in positions where they have to “recuse” themselves from (that is, excuse themselves from participating in) a case.  This usually happens when a Justice has some personal interest in the case – such as owning stock in a company that is involved in the case; it could also happen if the Justice has some prior involvement in the case that might lead others to regard her as biased.  Note, though, that I say “others might believe her to be;” to act ethically, judges usually try to err on the side of caution, even when they are not actually biased.  In short, judges want the public, the litigants, and their colleagues to trust in their decision-making, so they take themselves out of situations where others might question it.  In fact, recusal was the topic of an important case before the Court a couple of years ago, involving a West Virginia judge who voted in favor of a former big campaign contributor (with the Court holding that the judge should have recused himself).

So why did Kagan recuse herself?  Well, as Tom explained, before she was nominated by the President to replace Justice Stevens on the Supreme Court, Justice Kagan was the Solicitor General – the lawyer responsible for representing the United States before the Supreme Court.  As the Solicitor General (also known as the “SG”), Elena Kagan was involved in a large number of the cases that the Court will hear this Term, either because she signed a brief on behalf of the United States or because she was otherwise involved in discussions regarding the case.  As a result, she will not participate in any aspect of those cases at the Court.  However, in years to come, as the cases in which she was involved as the SG work their way through the system, her recusals will likely taper off sharply and eventually drop to zero.

Still, it’s an ongoing issue for the Justices, who serve for life.  In fact, Chief Justice Roberts recently sold some stock in a company with a case before the Court, which will allow him to participate in the case although he had recused himself during earlier stages of the case.  And remember that recusal is up to the Justices themselves:  no one can make them recuse; instead, they use their own best judgment about when recusal is appropriate.

One other interesting wrinkle in the recusal cloth?  Well, if one Justice recuses, then there are an even number of Justices deciding a case.  In closely divided cases, this might mean that the lower court decision is affirmed – that is, it is allowed to stand – not because the Justices vote to keep it in place, but because a four-four tie (or any other tie vote) results in an affirmance.  Therefore, the Senate is considering a bill that would allow a retired Justice to take the place of the recused Justice for that case only.  With three retired Justices alive right now, there would certainly be the people power to take on the task (and indeed, both Justices O’Connor and Souter occasionally sit as judges on federal courts of appeals), but of course there are good reasons why such a system could be less than optimal.  If the bill takes on any traction, we’ll discuss those reasons in a future post.

Interested in reading more about recusal?  The New York Times has a great editorial today on that very subject.  Check it out here.

Now, on to this week’s cases.  The big case was Snyder v. Phelps, a case weighing the free speech rights of protesters against a family’s right to hold a private funeral for a soldier killed in Iraq.  Snyder is a great example of a case in which both sides can legitimately claim to have good arguments, with the Snyder family suffering from emotional distress from the speech but the Phelps family arguing that they have a constitutional right to speak (even if that speech might be, as the lower court put it in ruling in favor of the Phelps family, “utterly distasteful”).  But Supreme Court decision-making is often about weighing whose legitimate rights trump whose – and that is certainly the case in Snyder.

At the oral argument, the different points of view came out both in the advocates’ arguments and in the Justices’ questions.  Justice Ginsburg, for example, stated that “[t]his is a case about exploiting a family’s grief.”  Other Justices noted that the First Amendment protects even very offensive speech.  In the end, for the Court, it will come down to a balancing of the interests involved – and, in a case of this magnitude, we Court watchers are likely to be debating the issue amongst ourselves for several months until there’s an opinion (or many opinions) in the case.

In other cases, the Court considered a wide variety of questions:  Whether prosecutors should be required to undergo training on constitutional rules for dealing with evidence in criminal trials, and whether defendants can sue them if they violate those rules; whether government background checks asking employees questions about past counseling violates a right of “informational privacy”; and whether parents who were wrongly placed on a state list of child abusers properly received attorneys’ fees against the county when it did not take them off the list.

Welcome to OT10!