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An execution or a reprieve?

October 30, 2007 11:19 AM

At some point today, convicted killer Earl Wesley Berry will either die or get a reprieve. The Mississippi man is scheduled to be put to death at 6 p.m. CDT, but he’s asked the Supreme Court to step in and block his execution. Berry is making an argument similar to that of other death row inmates across the country: He contends the current method of lethal injection amounts to cruel and unusual punishment, in violation of the Constitution’s 8th Amendment.

The Supreme Court already has agreed to decide whether lethal injections violate the Constitution, in a case from Kentucky. But it’s unclear what that means for the 35 other states that also use lethal injections. Some states have decided to hold off until the Court rules. Others are going forward. The Court, for its part, has sent mixed signals. It has blocked two and allowed one. And Justice Antonin Scalia suggested two weeks ago it was not imposing a moratorium.

Berry’s case is important, because it could signal whether the justices do, in fact, want a moratorium on lethal injections until they decide whether the procedure is unconstitutional. We'll know by 6 p.m. CDT today.

October 30, 2007 | Permalink | User Comments (36) | TrackBack (0)

Overtime

October 10, 2007 6:35 PM

Much has been made about Justice Thomas’ near-refusal to ask questions at argument and why he chooses to sit silently. I’d often wondered why that is, and I’ve seen him offer a few different explanations for it over the years. He has said he thinks the other justices talk too much, and he’s suggested that his childhood dialect made him self-conscious as a speaker.

But it’s more than that, as I posted yesterday. Thomas told me he considers oral argument “really not a critical part of the process” and “almost an afterthought” to deciding a case. When he takes his seat at the bench, he’s read all the submissions and relevant decisions, and has already all but made up his mind about the case. I just cut-and-pasted his remarks from the transcript of my interview, so you could see the context and recognize that his statements were direct quotes.

Thomas’ remarks explain a lot about his posture during arguments and why he so often seems disengaged on the bench. As the interview made clear, Thomas doesn’t think the hour is time particularly well spent.

Today’s arguments in Medellin v. Texas, a critically important test of executive power, made another thing clear. On that point, Thomas is a lone dissenter once again.

This Supreme Court, headed by perhaps the finest oral advocate of his generation, believes strongly in the value of argument—so strongly that the Court today went a good 20 minutes past the hour it had set aside to hear the case.

The case is of enormous significance:  It asks whether the President, acting alone, can order state courts to follow a decision by the International Court of Justice that 51 Mexican nationals on death row were entitled to another round of judicial review. And it asks whether the ICJ decision—when coupled with that executive order—essentially creates a federal law that overrules state laws that specifically bar that additional review.

But the Court often hears enormously significant cases, and it always sticks to the time allotted. I’ve covered the Court for 13 years and have never seen it grant extensions of time on the fly, as it did today. Afterward, I sought out Lyle Denniston, the resident dean of the press corps, to see if he could recall it during his lengthy tenure reporting on the Supreme Court. He said he could not.

In the old days, Chief Justice William Rehnquist famously cut lawyers off mid-syllable when the red light came on, indicating their time had expired. Today, Chief Justice John Roberts offered the first lawyer, representing convicted killer Jose Medellin, extra time to continue his argument. “Why don’t you take five extra minutes,” Roberts told attorney Donald Donovan.

And then Roberts gave Paul Clement, Solicitor General for the Bush Administration, extra time, too. And when Ted Cruz, the lawyer for the state of Texas, stepped up, Roberts tacked on a whopping 10 minutes to his scheduled half hour.

So for a solid 80 minutes today, you got a good indicator of how every justice on the Court besides Thomas views oral argument.

They probed and pushed the three lawyers before them. They posed tricky, almost deadly, hypotheticals. They sought out weaknesses and explored the ramifications of potential rulings. They used the lawyers in front of them to make points of their own. And when one of the lawyers struggled over a particularly hard question by a skeptical justice, another justice sympathetic to his position would step in with an assist.

That’s not to say they don’t have frustrations with the constant barrage of questions, as Justice John Paul Stevens made clear when he pointedly asked Solicitor General Ted Cruz to make his points “without interruption from my colleagues.” But they demonstrated why they think arguments are valuable.

Did it change any of their minds? That’s impossible to know. Some of the questions obviously were designed to make points and persuade the other justices. But will it enrich the Court’s final product—the majority and the dissents? That seems highly likely.

October 10, 2007 | Permalink | User Comments (5) | TrackBack (0)

Thomas and Oral Argument

October 09, 2007 4:50 PM

Justice Thomas is known for his silence on the bench, and he’s talked over the years about why he rarely asks questions. He has explained that he thinks his colleagues talk too much and that he’d rather let the lawyers have their say. When he does ask questions, it’s almost always at the end of an argument, when it becomes clear his point wasn’t going to be otherwise addressed.

In recent interviews at the Court, Thomas explained that he pretty much makes up his mind about a case before oral argument--after he's read the briefs, the opinions below and the record. Arguments, he says, are “really not a critical part of the process” and are “almost an afterthought.”

I'd asked him how he approaches a case. Here's what he had to say.

THOMAS: There's a way that we do business and it is very methodical, and it's something that I've done over the past 16 years.

I have four law clerks.  We work through the case, as I read the briefs, I read what they've written, I read all of the cases underlying, the court of appeals, the district court. There might be something from the magistrate judge or the bankruptcy judge. You read the record.

And then we sit and we discuss it, that's with my law clerks. So by the time I go on the bench, we have an outline of our thinking on the case. So I know what I think without having heard argument or anything else. Argument is really not a critical part of the process, the oral argument. 

The real work is in the documents, the submissions that we get from counsel.  And when you do your work in going through that, it makes the oral argument sort of almost an afterthought.

(So is that why you don’t ask questions?)

THOMAS: I think when people are invited in to make their case, we should listen. It's not a debate society. This is not a seminar.

And when I first came on the Court, there were far fewer questions, and there were so many more opportunities to have a conversation with a lawyer, not the sort of family feud type environment that we have now.

I think that that's not as productive as actually having a conversation, and I do think it's important that we listen to people.  You know, I think it's wonderful, what a great country.  You can have a case, you can come all the way to the Supreme Court, and you can say your piece.

There are times I've gone across the country, and I'll meet a small town lawyer who says, "You know, I was up at your Court and they never let me say what I wanted to say." 

That isn't what I want to hear. I prefer to hear, "I made it all the way to Court and I got to tell you what I really thought." 

Now, it may not change my mind, it may not change my colleagues' minds, but you have the satisfaction of having come and said your piece, and I think we should listen.

(Is that why you generally save your questions, when you ask them, until the end?)

THOMAS: Well, usually, there's such a seamless series of questions that you can't get in unless you elbow your way in, and I don't think that's necessary.  I don't think we need all those questions, and I think it's unseemly to have to elbow my way in, interrupt counsel or interrupt my colleagues to get a question in.

October 9, 2007 | Permalink | User Comments (17) | TrackBack (0)

Thomas on Precedent

October 08, 2007 11:05 AM

Clarence Thomas is blunt when asked how he is “similar” to fellow conservative Antonin Scalia. “Oh no, no,” he says. “How I ‘followed’ Justice Scalia.”

It was the storyline when Thomas first joined the Court back in 1991. Critics and more than a few journalists immediately portrayed him as a “puppet” of brilliant white conservative Scalia. Thomas reflexively did “Scalia’s bidding,” they said, without a thought of his own. Scalia was the “mentor” who pulled the strings.

The storyline is false—and was from his very first week on the Court--but Thomas says that point should be “something that goes without saying.” The assumption he followed Scalia is bigoted, he said, and driven by racial stereotypes. “You know, the black guy is supposed to follow somebody white,” he says.

“There’s no need to tip-toe around that,” Thomas says. “The story line was, well, I couldn’t be doing this myself, he must be doing it for me because I’m black.”

“Again, I go back to my point. Who were the real bigots?” he asks. “It’s obvious.”

That exchange, during a recent interview in his chambers at the Court, triggered a wide-ranging discussion about Thomas’ views on the law, the justices he admires and why he insists that the Constitution must be interpreted as “colorblind.” He talked about why he believes a judge must always put aside his personal views—even when his heart says otherwise. He spoke at length about Justice Harlan’s dissent in Plessy v. Ferguson, the infamous case that upheld segregation, and how he sees that dissent as an inspiration—the very model of judging.

He has a lot to say, and I’m going to spend this week writing about it.

Let’s start first with Scalia. I think we can all agree (as Harry Blackmun’s papers make clear) Thomas doesn’t “follow” anyone—as some of my colleagues in the press have been pointing out for years, Tony Mauro being among the first.

Thomas, to be sure, admires Scalia. In his book, Thomas says he told the Bush White House “Scalia,” when lawyers asked him, as a prospective nominee, the standard question: “Which Justice do you most admire?” (Sam Alito, when asked that question, said “Rehnquist.”) Thomas told me he’d been impressed by Scalia’s opinion in Morrison v. Olson, which the Court had decided when he at EEOC. It had divided the Court 7-1, and Scalia’s dissent is a classic exposition on separation of powers.

“In the Olson case, he had been the lone voice that the independent counsel law actually violated the whole notion of separation of powers, and it turns out now—when the interest changed—that people agree with him. But I just thought it was fascinating,” Thomas said. “He was not going along with something simply because, at that time, it was fairly popular. He was going back to that document, going back to the history and the tradition of that document, and then explaining it in a very rational and well-written way.”

But Thomas parts ways with Scalia on significant issues—especially, as most of you know, on the issue of stare decisis, which is Latin for “let the decision stand.” That principle maintains stability in the law and acts as a restraint on judges. All justices say they believe in stare decisis—and they testify to that effect in their confirmation hearings--but all of them also are willing to set it aside when they think the Court got it wrong in the past.

Thomas and Scalia, for example, have voted to overturn Roe v. Wade because they don’t think a right to an abortion is in the Constitution. This past term, they also would have overturned other decisions, including a recent one that had upheld the landmark McCain-Feingold campaign finance reform law. But other conservatives—John Roberts and Sam Alito--instead took a more cautious approach and held the Court back.

Liberal justices walk away from the principle, too. In recent years they overturned cases, for example, that had allowed the death penalty for the mentally retarded and for juveniles. They also overturned a 1986 decision that allowed states to prosecute homosexuals for private, consensual sex. And they have indicated that some of the Court’s recent decisions will not have staying power—that they will overturn those cases the moment the Court’s membership changes.

But of all the justices, Thomas is the one most willing to rethink old cases. In Ken Foskett’s insightful book, Judging Thomas, Scalia said Thomas “doesn't believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, ‘let’s get it right.’"

Thomas says Scalia’s claim is an overstatement. He suggests he sees real limits on the kind of cases he would seek to overturn--even if he believed they were wrongly decided under the Constitution. 

But there’s no question, he says, he’s much more willing to go back to the precedent and reexamine it.

“When you get a case, you have the last decision in the line. That’s what’s on your desk,” Thomas says. “The last decision in the line is like a caboose on a train. Let’s go from the caboose all the way up to the engine, and see what really went on, and let’s think it all through.

“You might get up to the caboose and find out: Oh, there’s nobody in the engine,” Thomas continues. “You say, ‘There’s nobody driving the train. What happened? Where did we go wrong? Maybe we’re headed in the wrong direction. Let’s think it through.’”

That willingness to “think it through” separates Thomas from Scalia in a number of cases.

“Maybe you can’t change it, but at least let’s make it coherent as to what happened. You can accept the precedent, but you should at least try to see what went on,” he says. “You go back to the document. You go back to the language of the Constitution, to the history, to the tradition. You go through it all, and then you compare that with the precedent.”

And at what point does a judge deviate from the precedent?

“That’s an individual decision on the part of judges. The judges to whom--or for whom--stare decisis applies most are the judges on the courts below us: the courts of appeals, the district courts, the magistrate judges, the bankruptcy judges, etc.

“Up here, this is the end of the line, and the only people who could revisit—in particular—constitutional cases are the members of this Court,” Thomas says. “In the statutory cases, Congress can revisit that. So you are less apt to change a precedent—because it can be corrected in the legislature, as opposed to this being the sole place that it can be changed.”

Thomas says he believes in stare decisis, especially in the statutory cases. If it’s a choice between precedent and what he considers a correct reading of the Constitution, though, he’s more willing to go to the Constitution. That’s not “radical,” he says, but necessary. If the Court has deviated from the text of the Constitution, subsequent cases adhering to the precedent only magnify the error.

He points out that a rigid adherence to precedent would mean Plessy v. Ferguson still would be on the books. Plessy was established doctrine, 58 years old, when it was overturned in Brown v. Board of Education.

That’s not to say Thomas would throw out the administrative state or tackle the very existence of some independent federal agencies, as many have suggested. Thomas seems to indicate some cases are simply too settled--that so many institutions have grown out of the precedents--it could be too disruptive to go back.

In those cases, Thomas sees precedent is an anchor—a way of mooring the Court to say “no more.” He suggested as much in his concurring opinion in United States v. Lopez, when the Court in 1995 struck down part of the Gun-Free School Zones Act as exceeding Congress’ power under the Commerce Clause.

Although Thomas suggested the Court should reconsider its approach under the Commerce Clause—which he believes is inconsistent with the Constitution and is a relatively recent innovation—he also stressed that “this extended discussion of the original understanding and our first century and a half of case law does not necessarily require a wholesale abandonment of our more recent opinions.”

The analysis does suggest, he wrote in his concurrence in Lopez, “that we ought to temper our Commerce Clause jurisprudence.”

Thomas sees precedent as the engine--or, in a different analogy, the bedrock. When you build a house or a barn, you have to get to solid ground to lay the foundation. So you dig. If you hit water, you keep digging. If you hit mud, you keep digging. Thomas wouldn’t stop until he hit the firm footing of solid ground.

October 8, 2007 | Permalink | User Comments (34) | TrackBack (0)

Being a Justice

October 04, 2007 12:48 PM

Justice Thomas’s memoir spans his life up until 1991, ending when he was sworn in and heading into his first conference with his new colleagues. Sixteen years have passed since then, and although Thomas chose not to write about those years, he did talk with me about his thoughts on the law, the Court and what those early days were like.

I’m going to spend the next week or so writing about those conversations, but I thought we’d start by first looking back to those first weeks when Thomas, exhausted and nearly broken by his brutal confirmation hearings, joined the Supreme Court.

Thomas had missed the first month of arguments because of hearings, and he faced a crushing amount of work just to catch up. Other justices have talked about what it’s like to suddenly become “Justice” and feel unsure of where to even begin. Sandra Day O’Connor told me in a 2005 interview, “there’s no how-to-do-it manual for a Supreme Court justice,” and said she figured out some things by trial and error.

“One of the things you learn in this business is when you show up, everyone sort of assumes that if you were nominated to come here, you can figure out your job,” Thomas said, laughing. “They offer to help, but they sort of look at you in a way, ‘Now, I’m going to be kind enough to offer; you should be kind enough not to take me up.’”

Thomas had been on the D.C. Circuit for 19 months, so his transition was in some ways easier than for judges who’d come from state courts, like O’Connor. But it was an adjustment nonetheless, and Thomas wanted to meet with each of his new colleagues individually.

In those early weeks, he spent two and a half hours talking with newly retired Justice Thurgood Marshall. Thomas, of course, had taken the seat of Marshall--to the outrage of civil rights groups who believed Thomas was not a worthy successor.

I asked Thomas how he felt about that the criticism. He bristled—then said it was only because he was black. And he said Marshall himself encouraged him to go his own way.

“Justice Ginsburg replaced Justice White. Did anybody say she was unworthy to replace Justice White? They were different. They’re quite different,” Thomas said of the liberal Ruth Bade Ginsburg taking the place of the more conservative Byron White. “So why do you ask that question about black people? You see what I’m saying? That’s absurd.

“The amazing thing to me is that people don’t see the absurdity of it—that a white can replace a white, and there’s no question,” Thomas continued. “They’re quite different. But you never say, ‘Are they worthy to replace this particular person?’ You can say, well, these views are going to change, is the Court line-up going to change, etc. That’s all fair game.”

The Court did change when Ginsburg took the place of White, who had opposed abortion rights and generally voted with conservatives. When Thomas replaced Marshall, Court watchers believed it wouldn’t tip the balance—the Court appeared firmly conservative at that point.

“I am grateful that I had the opportunity to sit down with Justice Marshall himself for quite some time,” Thomas said. “His attitude was that it was up to me to do in my time what I have to do—as he did in his time what he had to do. Those were his words to me.”

Thomas also got some advice from retired Justice Lewis Powell, who had been so helpful to O’Connor when she first arrived at the Court.

“One thing he told me was that when you reach a point when you think you belong here, it’s time for you to leave,” Thomas said of his conversation with Powell. “In other words, there’s a humility you have to have about your role. And if you start having this expansive view of yourself and your role…you cease being a judge. It is a requirement that you be quite humble about what your role is.”

Thomas seems to think no Justice has better filled that role that Byron White. He developed a friendship with White, and it’s clear he holds him in enormously high regard—he referred to him several times during our talk. He called him “just an outstanding human being,” and he ticked off some of his accomplishments: “He was one of the greatest athletes this country’s ever seen. He’s a Rhodes Scholar, as was his brother. He went to Yale Law School, and he was as unassuming a person as you would ever meet.”

“He did his job honestly. He didn’t worry about what was reported about it. He didn’t have an agenda,” Thomas said of White. “He didn’t worry about a legacy. He just did his job. He did it as best he could.”

And White’s words to Thomas in their first meeting have remained with him for 16 years.

“What he said to me was, when I got here, was that, ‘It doesn’t matter how you got here. What matters now is what you do here,’” Thomas recalled.

“And I’ve always sort of thought of that,” Thomas said. “You have to do your job in a particular way. What matters is what you do here, not what happened on the way here.”

When ABC News producer Howard Rosenberg and I followed Thomas and his wife Virginia to her home state of Nebraska for a football game between the Cornhuskers and the USC Trojans, Thomas returned to his own view of “legacy.”  If you saw our Nightline pieces (you can see Part one here and Part two here), you know Thomas is a huge fan of Nebraska football and has developed close relationships with the players. He spoke to the team at mid-field the day before the game.

“From time to time,” Thomas told the players kneeling around him in rapt attention, “I’m asked by people—they love to ask members of the Supreme Court—‘what’s your legacy?  What do you hope to do?  How do you hope to be remembered?’

“I have a simple answer. All I want to be remembered as is a person who tried to do his best,” Thomas told the players. “Nothing more, nothing less. A person who’s tried to do his best.”

That’s not far from what Marshall himself had to say in 1991, when a reporter asked him how he wanted to be remembered: “He did the best he could with what he had,” Marshall said.

And that’s a pretty good way to turn the conversation to what Thomas has done on the Court—and why he takes some of the positions he does. But first up tomorrow: what Thomas really thinks about oral arguments.

October 4, 2007 | Permalink | User Comments (2) | TrackBack (0)

Clarence Thomas Unplugged

October 03, 2007 11:21 PM

Please click here to link directly to part one of the "Director's Cut" version of my Clarence Thomas report for Nightline.  Then click here for part two. It's a special extended version and adds some extraordinary material we had to trim from the broadcast Monday night, including Thomas' thoughts on being cast as a "follower" of Justice Antonin Scalia and his response to those who said he was not a worthy successor to Thurgood Marshall.

You can also click here to read an intriguing review of Thomas' book by ABC News consultant Monica Dolin, a former clerk to Sam Alito and University of Chicago Law School graduate.

Over the next few days, I'll be posting additional segments that explore Thomas as a Justice, including his thoughts on the usefulness of oral argument, why he believes the Constitution is "color-blind," and how he really feels about stare decisis.

October 3, 2007 | Permalink | User Comments (4) | TrackBack (0)