Fair Courts E-lert: Supreme Court Candidate Considering Legal Options after Public Funding Halted

July 23, 2012
Supreme Court

1.       Writing in Politico, Darren Samuelsohn and Josh Gerstein detail the ways in which the Supreme Court—and the likelihood that the winner of November’s presidential election will set the direction of the Court for years to come—have become an important political issue on the campaign trail.  They note that, because “[f]our Supreme Court justices enter the next term in their 70s, and any changes during the next presidential term could tip the balance of the court on some of the nation’s hottest social issues, including same-sex marriage, civil rights and abortion,” “the nation’s highest court . . . serves as one of Obama’s best tools for raising money and waking up his base . . . [a]nd as Mitt Romney is discovering, invoking the Supreme Court can fire up conservatives, too.”  Meanwhile, in other Supreme-Court-politics news, the Texas Tribune reports that Texas Senate Candidate Ted Cruz has made his numerous arguments in front of the U.S. Supreme Court while serving as Texas Solicitor General a campaign centerpiece, repeatedly mentioning the Court in his campaign speeches.

Darren Samuelsohn and Josh Gerstein, Election of Supreme Importance to Court's Future, Politico, July 22, 2012; Aman Batheja, For Cruz, Supreme Court Work at Heart of Campaign, Texas Tribune, July 23, 2012.

2.       Nina Totenberg writes on Justice Scalia’s dissents for NPR, chronicling his most contentious dissents, including his widely criticized dissent in the Arizona immigration case. Totenburg notes that, over time, many of Scalia’s dissents have eventually garnered majority support, as happened with the theory of his 1990 dissent in a campaign finance case, which was embraced by the majority in Citizens United.  As to the tone of Scalia’s dissent, Totenberg quotes Tom Goldstein, the publisher of SCOTUSblog:  "Justice Scalia, by the end of the term, was apoplectic," Goldstein noted, "But that is his wont. . . .  Justice Scalia cares so passionately about these issues that he wears his heart on his sleeve and the blood runs through his pen."  Meanwhile, there was widespread coverage of Justice Scalia’s public statement that there was no falling out with Chief Justice John Roberts over their differing conclusions in the landmark health care case.  The AP reported that, “[i]n an interview that aired Wednesday on CNN’s ‘Piers Morgan Tonight,’ [Scalia] said that, despite reports that he and Roberts had clashed, there is not a personal feud going on between the court’s two leading conservatives.”

Nina Totenberg, Even Scalia's Dissenting Opinions Get Major Scrutiny, NPR, July 16, 2012; Associated Press, Feuding with Roberts over health care decision? Not me, says Scalia, July 19, 2012.

3.       Wisconsin Supreme Court Chief Justice Shirley Abrahamson discusses the judicial principles that Chief Justice John Roberts laid out as a basis for his decision in the recent Affordable Care Act case.  She writes:   “I can say that a deliberative process is the best way to develop sound, well-reasoned, understandable, fair and thorough decisions. It is not a flaw but a strength that our process allows us to create, discuss, rethink, argue about, edit, discard, add and subtract until an opinion is just right.” Chief Justice Abrahamson goes on to connect such principles to the current Wisconsin debate over the election of judges. She states “Wisconsinites also have a long and proud history of seeking and finding common ground, and I believe we can join together in supporting the principles at work in the introductory pages of the chief justice’s health care decision.”

Shirley Abrahamson, Chief Justice Shirley S. Abrahamson: Chief Justice Roberts’ Key Message Lost on Many Critics, The Cap Times, July 17, 2012.

State Judicial Elections

4.       In West Virginia on Wednesday, “Charleston lawyer and former state Democratic Party chairman Michael Callaghan filed a petition in U.S. District Court asking the court to strike down the rescue funding provisions” in the State’s judicial public financing law on the grounds that they are unconstitutional under a U.S. Supreme Court decision involving Arizona’s public financing system for non-judicial offices.  Allen Loughry, a Republican candidate for Supreme Court and the only one of four general election candidates to participate in the public financing option, has indicated that he seeks to defend the rescue funding provisions, and stated that he intends “to file a response in that case.”

Phil Kabler, Supreme Court candidate considering legal options after public funding halted, Charleston Gazette, July 18, 2012.

5.       In the Seattle Times, Steve Miletich offers a profile of the four candidates vying to fill the open Washington State Supreme Court seat of retiring Justice Tom Chambers.  In addition to a lower court judge and two attorneys, the field includes former Justice Richard Sanders, who is running again in a crowded primary field “[t]wo years after narrowly losing his state Supreme Court seat in the wake of controversial comments about race and crime.”

Steve Miletich, Richard Sanders faces 3 rivals in Supreme Court comeback bid, Seattle Times, July 22, 2012.

Judicial Ethics

6.       On Thursday, the New York Times editorialized on the contentious dispute over who will be the next Chief Justice of the Louisiana Supreme Court.  The Times described the controversy as  an “ugly fight” and called it “an unsettling example of how power can trample voting rights even where they should be sacrosanct.”  According to the Times, the position of Chief Justice is supposed to be held by the member of the court with seniority, which would mean Justice Bernette J. Johnson, the second African-American justice on the court, who would be the first African-American Chief Justice.  But, as noted in the Times-Picayune, the other six justices are challenging Johnson’s seniority,  claiming that the time she served on the court between 1992 and 2000, after being elected to the Fourth Circuit Court of Appeals and not the Supreme Court, should not count toward calculating her tenure.  (Johnson served on the Supreme Court after being elected to the Court of Appeals as the result of a lawsuit challenging selection of Justices; in the lawsuit, “the state of Louisiana . . . agreed to give Orleans Parish its own district beginning in 2000. But between 1992 and 2000, voters in Orleans would get to send a justice to the Supreme Court by way of the Fourth Circuit Court of Appeal.”   Johnson joined the Supreme Court through this process.)  Bernette J. Johnson is suing to prevent a vote that could prevent her placement as Chief Justice.

Bayou Blues, New York Times, July 19, 2012; Jarvis DeBerry, In Attempting to Block Justice Bernette Johnson, Louisiana Supreme Court Alters History, Times-Picayune, July 15, 2012; Michael Kunzelman, Suit Filed Over Naming Louisiana Supreme Court Chief Justice, Shreveport Times, July 5, 2012.

Diversity on the Bench

7.       A recent study released by the Center for Women in Government & Civil Society at the State University of New York-Albany says that, while the number of women as state court judges has increased, it is a small change from previous years. The study finds “At last count, women occupied 27.5 percent of state court judgeships, up slightly from 26.8 percent in 2011. By contrast, the percentage of women on the federal bench declined by 0.1 percent, to 24.1 percent.” The Center’s director, Dina Refki, summarizes the findings in the article by saying "The good news is that there is movement, at least at the state level. But the bad news is that the rate of change is so slow — and, in the case of the federal benches, we are experiencing a setback.

Karen Sloan, Scant Improvement for Women's Representation on Bench, National Law Journal, July 17, 2012.