SCOTUS News Update

As its October 2017 term continues in full swing, the Supreme Court continues to make news.

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Greg Stohr of Bloomberg recently wrote a valuable article on the dominance of free speech cases on the Court’s docket. This term the Court has either heard arguments or agreed to hear arguments in First Amendment cases involving a range of issues: a baker’s denial of service to same-sex couples, mandatory union fees, partisan gerrymandering, abortion counseling, rights regarding political clothing at the voting polls, and retaliation due to criticizing local government. Stohr quotes Harvard Law School professor Rebecca Tushnet’s noting that  “the current court interprets the First Amendment more expansively in many ways that it did in the past,” and that these free speech claims have more “charisma” than other constitutional claims. Stohr also quotes the University of Chicago’s David Strauss noting that “when it comes to free speech, pretty much everybody is an activist.”

In other news, Mark Sherman of ABC News noted that in making legal filings available online like other federal courts, “surely but slowly, the Supreme Court is entering the 21st century.” The Court has never been eager to embrace technological innovation, of course. Chief Justice John Roberts has said that the courts are “late to the harvest of American ingenuity,” because their “primary role is to resolve disputes fairly.” The justices also routinely sent notes to each other on paper, “definitely not by email.” The Court is still unlikely to allow cameras in the courtroom in the foreseeable future or to allow live audio access to oral arguments.

News reports say that President Donald Trump, who recently updated his list of potential Supreme Court nominees, predicts he will appointment three more justices to the Court. The president apparently believes that Justices Kennedy and Ginsburg are ready to retire and that Justice Sotomayor may leave the Court due to health issues. As to Justice Sotomayor, she has has suffered from diabetes since childhood, but there are no signs that she will be leaving the Court anytime soon. Vanity Fair reported that the Justice has said she is vigilant about maintaining her health. And Justice Ginsburg has repeatedly stated that she has no plans to retire. “As long as I can do the job full stream, I will do it,” she has said. ABC News reports that Justice Ginsburg refers to herself as “Rapid Ruth,” and Justice Sotomayor as “Swift Sonia,” due to their speedy opinion writing.

In late October, Chief Justice John Roberts and Justices Elena Kagan, Anthony Kennedy, Stephen Breyer, Neil Gorsuch and retired Justice David Souter attended a bicentennial celebration at Harvard Law School, their alma mater. During the event, the justices shared numerous personal stories. Justice Kagan revealed that fellow Justice Breyer was her favorite professor in law school. Justice Kennedy recalled that one of the more feared professors during his time there was nicknamed “darkness at noon.” Justice Breyer said that one of the most influential pieces of advice he received came from Senator Ted Kennedy, who once asked him, “Do you want credit or do you want the result?” Justice Gorsuch recalled that he was “scared to death” during his first day of law school, and that clerking for Justice Kennedy was one of the most important experiences of his professional career. Justice Kennedy then joked to his former clerk, “You didn’t always do what I told you to do when you were my clerk—you better start doing it.”


This post was drafted by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019, and was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and ISCOTUS Co-Director Professor Christopher Schmidt.

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