Guarding Gun Rights | SCOTUS First | Souter, Spotted

NATIONAL LAW JOURNAL Supreme Court Brief POWERED BY LAW.COM

Tony Mauro Marcia Coyle Feb 21, 2018

Good morning SCOTUS watchers! Today we're watching for decisions in argued cases. Let us know what grabs your attention at tmauro@alm.com or mcoyle@alm.com. So far this week: The justices were back on the bench Tuesday, but it was an off-the-bench opinion that brought the drama—Justice Clarence Thomas minced few words in expressing his displeasure with his colleagues' refusal to take on a Second Amendment challenge. No surprise, Justice Ruth Bader Ginsburg gave no quarter to her three former clerks appearing before her in a criminal case Tuesday morning. Tony sat down with Gabe Roth of Fix The Court who had smart things to say about judges' financial disclosures and judicial misconduct. Oh, and a Justice Souter blast from the past—fun!

Through the Years: Thomas in Defense of Gun Rights Justice Clarence Thomas may be silent on the bench but his voice is loud and clear when Second Amendment petitions are rejected by his colleagues. His dissent Tuesday in the case Silvester v. Becerra—a challenge to California’s 10-day waiting period for gun purchases—echoed some of his other dissents but was also his most biting and accusatory one to date. Thomas has been steadfast in his defense of a broad reading of the Second Amendment guarantee. The timing of the court's action and his dissent, was undoubtedly coincidental. It came while the country was still reeling from the Florida high school shooting—violence that has ignited, once again, the debate over gun regulations. As Thomas made plain in his dissent, the justices are not ready or willing to step back into the Second Amendment crucible. Only four votes are needed to grant review and there appears to be only two for now. The late Justice Antonin Scalia, author of the court’s 5-4 landmark Second Amendment decision District of Columbia v. Heller, joined Thomas’s dissents when he was on the bench. The court’s newest justice, Neil Gorsuch, has joined one. Here are some of Thomas’s comments in firearms-related dissents: Silvester v. Becerra (2018) “If this case involved one of the court’s more favored rights, I sincerely doubt we would have denied certiorari. The right to keep and bear arms is apparently this court’s constitutional orphan. And the lower courts seem to have gotten the message." Peruta v. California (2017) "As we explained in Heller, to 'bear arms' means to 'wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.' The most natural reading of this definition encompasses public carry. I find it extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen." Friedman v. City of Highland Park (2015) "The Seventh Circuit ultimately upheld a ban on many common semiautomatic firearms based on speculation about the law's potential policy benefits. This case illustrates why, if a broad ban on firearms can be upheld based on conjecture that the public might feel safer (while being no safer at all), then the Second Amendment guarantees nothing." Jackson v. City and County of San Francisco (2015) "We warned in Heller that '[a] constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.' The court of appeals in this case recognized that San Francisco’s law burdened the core component of the Second Amendment guarantee, yet upheld the law."

RBG Clerk Trifecta Minutes after Toby Heytens, a former law clerk to U.S. Supreme Court Justice Ruth Bader Ginsburg, rose to argue in a case on Tuesday, he ran into the toughest question of his time at the lectern. The questioner was none other than Ginsburg, his former boss. Heytens, a University of Virginia School of Law professor represented a Kansas town in City of Hays, Kansas v. Vogt, an important test of the Fifth Amendment’s protection against forced self-incrimination. He argued that the right was limited to statements used in trials, not in pre-trial probable cause hearings. But Ginsburg said Heytens' stance would reduce the self-incrimination clause "almost to a vanishing point," because "there aren't many trials these days. Upwards of 95 percent of cases are disposed by plea bargaining." The exchange proved a point that most former law clerks who argue before their onetime bosses make; their justice usually does not give them favored treatment at oral argument. As we told you yesterday, Heytens was not the only Ginsburg clerk to argue in the Vogt case on Tuesday. Elizabeth Prelogar, assistant to the U.S. Solicitor General, argued as amicus on the side of the Kansas city, while Kelsi Corkran, a partner at Orrick, Herrington & Sutcliffe, argued represented the defendant Matthew Vogt. Ginsburg asked Prelogar two less challenging questions, and had no questions for Corkran, which is not that unusual. In short, it was an RBG trifecta, and it does appear to be the only time in court history that three former clerks of a single justice argued in the same case. ➤➤ We asked readers Tuesday to confirm or refute that superlative, and sure enough we heard from Michigan State University political scientist Ryan Black. Black and colleague Ryan Owens from the University of Wisconsin, Madison, are in the midst of studying the influence of former Supreme Court clerks on the court's decision-making. "The operating belief has been that you are getting bang for the buck, added value, when you hire a former law clerk," Black said, and they aim to find out empirically if that is the case. As part of the research, they tallied all the Supreme Court cases between 1979 and 2014 in which former law clerks argued, with an eye toward determining if former clerks win the cases more often than non-clerks. To answer our question, Black separated out the cases in which three former clerks argued, finding that there have been 45. In none of those cases have all three clerks been alums of a single justice, Black said. So the Tuesday argument indeed seems to be a first.

Cleaning Up the Court Tony Mauro sat down yesterday with Gabe Roth of the advocacy group Fix the Court to discuss judicial accountability, including gripes about the steps Chief Justice John Roberts has taken to address allegations of sexual misconduct in the courts. Click here to watch their conversation.

Cleaning Up the Court—Literally Earlier this year, we asked for your everyday encounters with Supreme Court justices. Karen Selden, metadata services librarian at the University of Colorado law school, offers this fun sighting from the past involving the enigmatic Justice David Souter. "I worked in Concord, N.H. from 1984 to 1998. As I headed toward the CVS Pharmacy on Main Street one mid-December lunch hour in the early to mid-1990s, a man walking in the opposite direction reached the door first and held it open for me. As I thanked him, I recognized him as Justice David Souter, despite an unshaven face. As it happened, we approached the checkout line at about the same time, and he motioned me ahead of him, while cradling about 8 or 9 bars of pear glycerin soap in his arms. As I recounted this to my husband that evening, we speculated about the soap. While it could be that Justice Souter just really likes pear glycerin soap, we did have to wonder if, true to Justice Souter’s frugal, Yankee New Englander habits, the soaps were meant as holiday gifts for his fellow justices—one per justice."

Kudos for Kennedy Chief Justice John Roberts Jr. began Tuesday's session by offering "heartfelt congratulations" for Justice Anthony Kennedy, who marked his 30th year as a Supreme Court justice. Roberts said the anniversary was a "very happy occasion" for the entire court. Kennedy thanked the chief, and regular business resumed. Looking for commentary on Kennedy's tenure? Here's an assessment by longtime court-watcher and blogger Kenneth Jost, and another in the conservative National Review, suggesting that there's value in Kennedy's role as a swing justice.