ASU's Paul Bender as a bobblehead. My memory of law school professors is more head-shaking than nodding, but whatever.

ASU’s Paul Bender as a bobblehead. My memory of law school professors is more head-shaking than nodding, but whatever.

Yesterday, I spent much of the day hearing about last Term’s Supreme Court cases. The panel of lawyers and scholars was a good one, and, when it comes to the Court (and Shakespeare), it’s clear that the past is certainly prologue.

The speakers covered more than a dozen significant cases, and it’s certainly true that many issues will recur in the next or upcoming Terms.

Tomorrow, I may share a few thoughts about what works in this kind of program. For now, here are a few photos from the event. First, though, the event included a few unique elements, rarely if ever spotted at a CLE:

  • There was a magician. Yes, an actual illusionist. His name is Shawn Greer, he is quite good, and you can read more about him here. I haven’t been able to identify whose idea it was to include a magician’s skills during breaks and lunch, but I suspect it had something to do with the imaginative panel chair, Judge George Anagnost. Kudos.
Paul Bender and Hon. George Anagnost, Oct. 23, 2013.
Paul Bender and Hon. George Anagnost, Oct. 23, 2013.
  • There were bobbleheads. I suspect (but haven’t confirmed) that each panelist received a bobblehead in his own likeness. What I do know is that ASU Law Professor Paul Bender got one, and it was charming. Apparently each speaker was asked for a head-shot in advance, but they didn’t know why they were providing one. Now they know. (Professor Bender, nearly always right, so far as I can tell, muttered his cavils: The hairstyle was wrong, he doesn’t typically wear a tie, and the bobblehead was smiling. Very true, Professor. The smile was a deal-killer.)

Here are some photos:

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Supreme Court tallI wrote yesterday about a few conferences that crowd this week, all of them worth your time and attention. Today and tomorrow, I’ll share two more.

One week from today, we’ll have the opportunity to hear scholars and lawyers present on the most recent Supreme Court Term. They also plan to offer a preview of the upcoming Term’s cases.

Co-sponsored by the Peoria Municipal Court, this annual event was a great one last year. I’ve been able to attend before, and I’m always struck by the insights provided.

The event will be held on Wednesday, October 23, 2013, from 9:30 a.m. to 3 p.m., at the Rio Vista Recreation Center, 8866 W. Thunderbird, Peoria (1/4 mile West of Loop 101 and Thunderbird Exit).

The luncheon speaker will be Hon. William J. O’Neil, Arizona’s Presiding Disciplinary Judge.

As always, the seminar chair is the scholar–judge Hon. George T. Anagnost, Presiding Judge of the Peoria Municipal Court. Here is the faculty list:

  • Hon. William J. O’Neil, Presiding Disciplinary Judge, Supreme Court of Arizona
  • Prof. Paul Bender, Arizona State University
  • Prof. Dave Cole, Phoenix School of Law
  • Robert J. McWhirter, Esq.

You may register online here.

Rio Vista 1

Rio Vista Recreation Center, Peoria, Ariz.

Clarence Earl Gideon

Clarence Earl Gideon

March 18, 1963, was the date on which the United States Supreme Court ruled in favor of a petitioner who was also a Florida convict. And through that ruling in Gideon v. Wainwright, Clarence Gideon initiated a sea change in American law.

Monday, of course, will be the 50th anniversary of the ruling, and we still marvel at the change he wrought: It embedded the legal cornerstone that a criminal defendant who cannot afford to hire a lawyer must be provided with an attorney at no cost. It could be argued that no single decision has more affected the ability of defendants to achieve fairness in legal proceedings.

So impressive was the result that it received a shout-out at a Phoenix event yesterday. I will write later about the continued success of the annual Learned Hand Awards luncheon. But at Wednesday’s event, Arizona Justice Scott Bales, emcee for the festivities, took a moment to mark the Gideon anniversary and to praise public defenders and all those who represent the indigent. Exactly right.

In honor of the anniversary, the American Bar Association Section of Litigation has created a resource page exploring Gideon’s legacy. Included on the page is a reproduction of the actual hand-written petition that Clarence Gideon drafted in a Florida prison. It is worth a read.

Also included is a video capturing a January panel discussion regarding Gideon. It is quite good, and I have posted it below. But among its gems is its replaying a 1964 CBS News piece on Gideon, the man and the case. It begins at 2:40 and runs to 13:03, and you should watch every minute.

Is your agency, firm or organization recognizing Gideon in any way on the 50th anniversary? Let me know.

In late February, UC-Irvine Law School Dean Erwin Chemerinsky came to Tempe to deliver the annual John Frank Lecture at Arizona State University. In that evening, he sought to give us some insight into our nation’s highest Court.

In advance of his Lecture, I published an interview I did with the Dean; it appeared in the February Arizona Attorney Magazine.

Erwin Chemerinsky apeaks at ASU, Feb. 20, 2012

His presentation was masterful—well written, well delivered, zero notes—and the questions that followed were well put.

However, as I sat in ASU’s Neeb Hall, I thought that some of the questions were pretty lawyerly. They involved intricate details of specific cases, and his prognosis of whether the Court might take up this or that historical remnant in order to decide a case.

Our Q&A opening, February 2012 Arizona Attorney

All of those things are fascinating, and Chemerinsky was able to speak amiably about each of them.

But I wondered—and then asked—about something different. He had spoken that evening about the Court’s likely approach in regard to the Affordable Care Act, a hot-button topic on both sides of the political aisle. However, Americans wondered whether all of the legal details would matter to the Court. It seemed to me that many people have come to see the Supreme Court as a largely partisan battleground. Therefore, even though most commentators, including Chemerinsky, believe the Court will ultimately uphold the law, many lay people—and even lawyers—don’t expect it will get a fair shake at SCOTUS.

As I recall, Dean Chemerinsky answered that it’s unfortunate that many people, especially since Bush v. Gore, hold the view that the Court is overly political. And then he took another question.


Well, in today’s Wall Street Journal Law Blog, the question is addressed head-on. In it, writer Sam Favate examines a recent poll that shows—yep—that most Americans believe that politics will influence the Court’s health care insurance ruling.

Although an ABA poll showed that 85 percent of lawyers, judges and legal journalists believe the law will be upheld, “Three-quarters of Americans say the Supreme Court will be influenced by politics when it rules on the constitutionality of the 2010 Affordable Care Act, according to a Bloomberg National Poll.”

That’s a huge number of people.

In a related matter, I came across this opinion piece in Politico last week titled “Scuttle SCOTUS’s Life Tenure.” The writer opens:

“Life tenure for Supreme Court justices does not belong in a democracy. It gives an unelected public official immense power for decades over the lives of hundreds of millions of people without any accountability. It should be abolished and replaced with a single, nonrenewable term of approximately 15 years.”

Such a thing may be unlikely. But given the discontent with a perceived political bent on the Supreme Court—more than a decade after Bush v. Gore—such positions may be stated more and more.

What do you think about the Court’s current approach, and about life tenure?

And I must give a hat tip to The Ohio State University’s Douglas Berman, who alerted me to the Politico story here.

This morning, the U.S. Supreme Court announced its decision in two combined Arizona cases, which together comprise what we’d call the Clean Elections case.

As SCOTUSBlog originally announced (and the ABA Journal passed on), the 5–4 decision found the Arizona law an unconstitutional infringement of free speech.

Here are the opinion and dissent (in PDF).

I have not yet read the opinion, so I cannot tell if it relied on any of the arguments stated in a pro–con on the topic we ran in the November 2010 Arizona Attorney Magazine.

But I would be curious about one thing: How many of the Court’s opinions or dissents through history have used the word “chutzpah,” as Justice Kagan did in her dissent:

This suit … may merit less attention than any challenge to a speech subsidy ever seen in this Court. In the usual First Amendment subsidy case, a person complains that the government declined to finance his speech, while bankrolling someone else’s. … But the candidates bringing this challenge do not make that claim—because they were never denied a subsidy. Arizona, remember, offers to support any person running for state office. Petitioners here refused that assistance. So they are making a novel argument: that Arizona violated their First Amendment rights by disbursing funds to other speakers even though they could have received (but chose to spurn) the same financial assistance. Some people might call that chutzpah.

This case, and the Court’s other recent campaign-funding jurisprudence, means one thing for sure: We will be covering the topic in future issues.

Lawyers, even those who are unlikely to appear at the Supreme Court, enjoy hearing from those who have done just that.

I count myself in that group of interested onlookers. In the past, Arizona Attorney Magazine has published the war stories of many lawyers who have stood at that podium and sought justice in their cases. Read the stories here and here.

Today at lunch, we get another opportunity to hear from someone who has advocated at the highest levels of our court system. Mary O’Grady, former Arizona Solicitor General, will speak on the topic of “Defending Arizona’s Controversial Laws in the Nation’s Highest Court.”

The event will be the monthly luncheon of the Arizona Women Lawyers Association. Here is their press release:

Regardless of your position on Arizona’s employer sanctions law, you won’t want to miss hearing from the woman who defended its constitutionality before the U.S. Supreme Court last December.  As Solicitor General for the State of Arizona for nine years, from 2002 until last March, Mary O’Grady was responsible for leading Arizona’s defense in lawsuits challenging the constitutionality of some of the most controversial laws in the country.  She has defended the constitutionality of state laws on such subjects as same-sex marriage, school choice, campaign finance, school finance and immigration.

Mary will discuss her approach to dealing with this type of litigation, including her experiences overseeing the work on 10 cases on the merits before the U.S. Supreme Court.  Most recently, last December, Mary argued before the nation’s highest court the case of Chamber of Commerce v. Whiting, the lawsuit challenging the state’s employer sanctions law as unconstitutional.  That law allows for the suspension or revocation of business licenses of companies that knowingly hire undocumented workers. It also requires Arizona employers to use the federal E-Verify system to validate Social Security numbers and the immigration status of new hires.  It has been upheld by the U.S. District Court and the Ninth Circuit Court of Appeals.

Mary now works as an attorney at Osborn Maledon.  She began her legal career at Lewis and Roca, and she also worked as an attorney in the Arizona House of Representatives before joining the Solicitor General’s Office in 1999. She has three children.

In the December issue of Arizona Attorney Magazine, we will run another essay in our new series titled “Law’s Attic”—a feature that examines the legacy of significant legal cases or events whose anniversary is this year.

That month’s essay is on the lingering effect of Bush v. Gore, which—I can’t believe it—is 10 years old this year. Written by ASU Law Professor Andy Hessick, it explores an opinion that changed much, but that states explicitly it is not to be used for precedential authority.

Prohibiting precedent might have caused Andy some heartburn. But he agreed that the case had significant meaning, even beyond whether it could be cited in other cases.

ASU Law Professor Andy Hessick

As we talked, I recalled surveys about the Supreme Court from a few years ago. Immediately after the Bush v. Gore decision, Americans’ views of the Court were pretty bad. The numbers for the highest tribunal were extremely bleak.

But the real news was that within about six months, Americans again had a high regard for the Court. Concerns among most people that the Court was growing more political and partisan had almost evaporated.

Can we attribute that to Americans’ short memory? That’s unlikely, for we never tend to forget the shortcomings of the Executive and Legislative branches, whose numbers often remain low. Instead, this probably says something about the Court’s typical silence and absence from the headlines—as well as wish-fulfillment and idealism on our part as citizens.

This past week, another Harris Poll looked at Americans’ attitudes toward the Court we call Supreme. Like most surveys, it probably says more about the respondents than about the topic at hand. A primary finding: There is an increasingly partisan split among parties in how they view the Court.

What follows are a few of the fascinating findings on the kind of justice we prefer.

The complete findings are here.

Type of Supreme Court Justice

When asked what type of person Americans would most like to see on the Supreme Court, half (51%) said someone who keeps their personal opinions of “right” and “wrong” to themselves and makes decisions strictly based on the letter of the law and the Constitution. One-third of Americans say they would prefer an independent thinker who uses creativity and an understanding of modern circumstances to inform their legal rulings (32%), just 6% say they would want someone who uses their own values or moral compass to guide their decisions, and one in ten are not at all sure what type of person they prefer (11%).

Looking by political party, a clear majority of Republicans (67%) prefer justices who make decisions based strictly on the letter of the law and the Constitution. Democrats are more split—45% say they prefer an independent thinker who uses creativity and an understanding of modern circumstances, while 38% say they prefer someone who makes decisions based strictly on the letter of the law.

Although all Americans don’t agree about all Supreme Court practices, they do say that the Court is a crucial governing body for the success of the United States (69%). In a sometimes rare show of similar opinion concerning policy, Republicans (71%), Democrats (74%), and Independents (70%) all agree on this point. Interestingly, women show more uncertainty on this, as 65% say that the Supreme Court is a crucial governing body for the success of the United States, compared to three-quarters of men (75%) who say the same. Just one in ten (10%) women say that the Supreme Court is not necessary-decision making power should lay within the state courts, and over one-quarter of women are not at all sure (26%).