Holy Hullabaloos, The Blog

More on Utah Hullabaloo

Hi there folks.  I've been quiet here today, but I've posted some quick thoughts about the Summum case from Utah over at Religion Dispatches, a cool website devoted to, well, religion.  At some point soon I believe they will also be posting something they call "10 Questions" with me, which involves me responding to 10 questions about Holy Hullabaloos, mostly.  So, look for that.  Yay, Religion Dispatches.

Supreme Court Decides Utah Hullabaloo, Doesn't Totally Screw Up My Book

Back in November, I did a three-part series of posts on the one case involving religion that the Supreme Court considered this term (here's the first post).  The question was whether the small Utah town that had displayed a Ten Commandments monument in a public park for thirty or so years also had to accept for display a monument donated by a religious group called the Summum, which believes in mummification.  Well, yesterday, the Supreme Court decided, unanimously and unsurprisingly, that the town did not have to display the Summum's monument.  It basically found that the Ten Commandments monument is government speech rather than private speech and therefore that the government need not give the Summum a public forum for displaying their own religious viewpoint.  The opinion is here.

The best thing about the opinion is that it relied on existing principles to decide the case and made no radical change in current first amendment law regarding religion.  In other words, it didn't totally screw up my book.  One of the risks of writing a book about Supreme Court legal doctrine in an an area of law that is constantly changing is that the Court might totally change the law before the book gets published.  I was a little afraid that this might happen here.  I have a whole chapter in the book about religious monuments and the endorsement test that the Court uses to evaluate them, and although it was unlikely, it was certainly possible that the Court could have chosen to use the Summum case to totally rewrite Establishment Clause law and get rid of the endorsement test altogether and replace it with something new.  This would have made me look like a total doofie-doof.  Why, the readers and reviewers would ask, is this supposed expert in law and religion going on and on and on about a test that no longer exists? 

In other words, phew.

Clerkin' for RBG, Part 3

Part 2 here.

    What is it exactly that the clerks do?  Well, besides giving endless tours to friends and family of the Court’s inner recesses—the courtroom, library, basketball court, tanning salon, IMAX theater, mid-sized trout hatchery, etc. etc.—they do basically three things.  First, most write what are called “cert memos,” which summarize the petitions for certiorari (about 7,000 petitions come in each year; the Court grants about 100 of them) and recommend either granting or denying each one.  The Justices generally look for cases that present important issues of federal law upon which lower courts have disagreed.  A decision that is either “factbound,” meaning that the result turned on the lower court’s application of facts to law rather than its resolution of a legal issue, or “splitless,” meaning that there is no disagreement among the lower courts, is unlikely to be reviewed.   

Even if a case is neither factbound nor splitless, the Court will also deny the case if there is some procedural hurdle that would prevent it from actually addressing the important legal issue, or if there is some other hidden “vehicle problem,” unless, of course, the clerk screws up and recommends granting a case without having figured out that such a problem exists.  Most years, the Court will mistakenly grant at least one case.  When it “dismisses” the case as “improvidently granted” (commonly known as “DIGging the case”), the clerk at fault will feel like a total jackass, and everyone will look funny at the clerk and say things behind the clerk’s back like “that clerk is bad” or “that clerk sucks” or “have you noticed how ugly Wexler is?”  This is, as you might imagine, the clerk’s worst nightmare, which probably explains why my entire year I didn’t recommend that the Court grant a single one of the 250 or so petitions I worked on, except for the one I fucked up and recommended the Court grant despite a massive and fairly obvious vehicle problem, which luckily one of my colleagues pointed out before the Court could consider the petition.

 

The second thing that clerks do is help the Justices prepare for oral argument.  All the Justices use their clerks differently for this purpose.  Most require their clerks to prepare “bench memos,” papers that range anywhere from three to fifty pages long, which summarize the parties’ arguments and offer the clerk’s own analysis of the relevant legal issues.  Some Justices discuss the cases intensely with their clerks; RBG tended to do relatively little of that (clerks generally refer to the Justices by their initials).  In fact, one of the great things about my job was that, being generally brilliant and having been on the bench for twenty years already, RBG basically knew everything already and could make up her mind about a case without much help from her clerks at all.  This made the job fairly easy.  Some Ginsburg clerks have been known to work sixteen hour days, but I honestly can’t imagine what they spent their time doing.  As for me, I generally worked from 9 to 6 and spent my lunch hours at home in my rat-infested Capitol Hill apartment watching reruns of Good Times.  Dy-no-mite! 

 

Third, the clerks usually write a first draft of the opinions that their Justice has been assigned to write.  Some people find this shocking, but it really is not that big a deal.  At least in Justice Ginsburg’s chambers, the boss would give us a detailed outline to work from and then, once we turned in our drafts, totally rewrite them.  The best you could really hope for as a clerk is to get a little pet phrase or goofy word or other quirky something-or-other into the final opinion.  For example, there may or may not be one Ginsburg opinion from our term which, when read backwards, will summon the demon Beelzebub from the seventh level of hell to earth where he will horribly murder the entire human race.  On a more innocuous note, when Justice Kennedy was assigned to write an opinion concerning the import tariffs applicable to permanent press pants baked in giant pants ovens in Mexico, my co-clerk Bill and I worked very hard to convince the Kennedy clerk working on the case to get the words “trousers” and “slacks” into the final opinion.  “Trousers” made it into the U.S. Reports, but “slacks” is absent, although whether this is because the clerk failed to put it in his draft or because Justice Kennedy took it out we cannot be sure.

 

Next and final installment: What about RBG herself?

 

Why You Should Live in the Leather District, Reason #32

As I think I've mentioned before, my family and I live in Boston's so-called "Leather District," a tiny but great little neighborhood nestled between South Station on the East; Chinatown on the West; and the Financial District on the North.  Sometimes when people learn that I live here, they say, "what do you do for grocery shopping?" and then they tend to dance around and sing triumphantly as they celebrate how they live in some crappy ass suburb like Newton. 

The fact is that although it's a pain to bring groceries up from a car to an apartment because there's no driveway, getting groceries in the LD is no harder than getting them anywhere else.  If you want to do one of those giant Stop and Shop grocery trips, which we do once or maybe twice a month, you just drive 10 minutes to South Bay (where there's also a Target and Home Depot).  Big deal.  There's also several Chinatown markets which have incredibly cheap produce and which are very fun to shop in.  Sagarino's on South Street is maybe the best neighborhood convenience store/wine shop I've ever been to.  We go in there for bread and wine and soda and beer probably ten times a week.  If you need gourmet food, Savenor's is two stops away on the Red Line, which is in South Station, a five minute walk at the most.

And then there's James Hook, the 80 year-old lobster company that ships tons of lobsters all over the country and which has a terrific retail shop where you can pick your lobsters out of giant tubs or choose from all sorts of reasonably priced, incredibly fresh, and insanely delicious fish from the seafood case (they also have crabs and lobster rolls and clam chowder and lobster pies and stuffed clams and everything else seafoody you'd ever want).  We've started going there on Saturday mornings to get whatever looks good.  It's maybe a ten minute walk from South Station.  This weekend we got a pound of striped bass for thirteen dollars and cooked it with wine and lemon juice and garlic and ate it with a bottle of wine.  And we didn't have to get into a car for one single second or see a single soccer mom. Yay, Leather District.

Survey Says: Holy Hullabaloos is Irreverent and Probing, Not Obnoxious or Arrogant

If you remember, the first (and so far only) review of Holy Hullabaloos called it "by turns irreverent, obnoxious, arrogant, silly, and probing."  In response to this review, which I kind of liked, I created a survey that asked readers to choose which one of these adjectives they thought probably best described the book, conceding of course that since almost nobody (including my wife, who appears to be interminably stalled on page 115 of the bound galley) has read the book, most voters will pretty much just be guessing.  Well, the results are in, and they are looking pretty sweet for the book.  Forty-two percent of voters chose "probing"; another forty-two percent chose "irreverent."  Only 15% chose "silly," and zero and zero percent chose "obnoxious" and "arrogant," respectively.  So, put that in your pipe and smoke it, Mister Reviewer Man.

Here's Something I Hate: The "Wind Chill Factor"

You know how sometimes the incompetent meterologist will tell you that the weather right now is 20 degrees, but that because of the "wind chill factor" it "feels like" 5?  What the hell is that supposed to mean?  What does it mean to "feel like" 5?  So, am I supposed to think about what it felt like on the day that it was 5 to figure out how cold it really is out right now?  But what if the "wind chill factor" on the day that it was 5 made it feel like it was actually 2?  Thinking about the day that it was 5 wouldn't help me at all; indeed, it would be misleading.  Instead, I'd have to think about some other day where the wind chill factor made it feel like 5 regardless of what the actual temperature was if I want to know what it feels like now.  And if that's the case, why not just report the one number?  I mean, who cares what the temperature is in some sort of abstract, Platonic sense, if how I really experience is it is different?  God, I hate meterologists.

I mean, we don't report other numbers like this?  What if in the NFL a team got the number of points that it actually got, and then also the number of points that it sort of seemed like it got?  Or if a transcript reported not just what the student got on the exam, but what she felt like she got on the exam?  How much do these weather people get paid, anyway?  Boy, I really really hope it's less than a public school teacher,  but how come I sort of doubt it?

Clerkin' for RBG, Part 2

First Part here.  (I should note that since this first post, I remembered that I had written another version of this piece that was a little shorter and funnier; this new version substituted a different paragraph for the last paragraph of the First Part that I posted last week--I include the substituted paragraph here).

    Lazarus published his controversial book right before I was about to start clerking, so coming in I had visions of a year filled with ideological tension, backbiting intrigue, and wild gun battles on the Court’s spiral staircase.  As it turned out, though, very little of the sort ever took place.  Perhaps it was because our term was conspicuously devoid of any cases involving hot button issues like abortion or affirmative action (the two cases I worked hardest on dealt with insurance fraud and the statute governing removal of cases from state to federal court), or maybe it was because the thirty-six of us who clerked that year were a friendly bunch, but the term was exceedingly quiet from an ideological perspective and involved few, if any, actual shootouts. 

            Before turning to my specific experiences, a few facts about clerking at the Court.  Although the main character of Brad Meltzer’s best-selling 1997 thriller The Tenth Justice may have walked up the marble steps to enter the Court through its majestic bronze doors on his first day of work as a law clerk, the fact is that nobody who works at the Court ever, ever walks up those steps.  It might be a nice idea, but do you know how many steps are out there?  Somewhere in the universe of a fuckload, I would guess.  The side door is much easier to use, as it has only four or five steps to climb at most, and the steps are small. Meltzer’s account turns out to have other errors as well.  For instance, although the novel’s protagonist might have worn his “lucky boxers” to work on that first day, the fact is that nobody who works at the Court ever, ever wears underpants.

            Almost all the Justices hire four law clerks.  Most of the clerks come from a handful of top law schools.  People are always asking me, “how did you get that job?”  I tell them that the one thing in the world I’m actually very good at is taking law school exams.  Indeed, I can write an essay about a complicated set of totally made up facts under extreme time pressure as good as just about anybody.  It turns out that this ability has no relationship whatsoever to being a good lawyer, being a good law clerk, being generally smart, or anything else, but it did go a long way to getting me my job at the Court.  That and the fact that two of the professors I bribed happened to include Justice Ginsburg’s former constitutional law professor and a guy who was her husband’s roommate at Cornell. 

             Clerking at the Court was an intimidating experience.  Part of it, of course, is that the clerks suddenly find themselves working on the nation’s most important cases only a year or two after graduating from law school.  But one can easily make too much of this, since clerks do not render any decisions or write anything that does not get completely rewritten by the Justices.  The real intimidating thing about working at the Court for me was being surrounded by thirty-five peers who were also excellent law school exam takers but who, unlike me, were genuinely brilliant and extraordinarily talented.  Several of my colleagues are already famous.  One helped draft the new Iraqi constitution; another has argued several cases in front of the Court and basically rewritten American criminal law.  One is the three-time winner of the World Stratego Championship and recently sung the national anthem at the Pittsburgh Pirates’ home opener.  That last bit’s a lie, but you get the idea.

 

Next installment: What do the clerks actually do?

Mike Newdow to Write and Perform Holy Hullabaloos Theme Song!

I am delighted and proud to announce that Mike Newdow--lawyer, doctor, and musician--has agreed to write and perform a theme song for Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church-State Wars.  Newdow, of course, is the California man who has sued to remove the words "under God" from the Pledge of Allegiance.  He was temporarily successful, convincing the 9th Circuit Court of Appeals that those words violated the Establishment Clause of the First Amendment.  The Supreme Court reversed on procedural grounds, and the case is now back in the lower courts.   

I've met Mike a couple of times, and am a big fan.  As I explain in my book, Newdow is brilliant and courageous and not at all the crazy nutjob that some paint him to be.  I write:

He doesn't want to turn the United States into an atheist country or stop people from practicing their religion.  He just wants the government to stop telling him his beliefs are wrong and making his daughter declare a set of beliefs that are completely different from his own.  He says that, from the perspective of an atheist, the government's statement that his nation is "under God" is infuriatingly offensive to him.  Just as a religious person probably wouldn't want a Pledge that said "under no God" or a Christian wouldn't want a Pledge that said "under Confucius," he too doesn't want the Pledge to affirm something that he does not believe in.  All he wants is for the government to respect atheism as a legitimate perspective and treat him like it treats everyone else.  Indeed, he's so reasonable about this that the two times I've heard him talk, I can't believe anyone actually disagrees with him.

If you have a contrary impression, I urge you to take a look at his website and see what you think.  And while you're there, you can order up one of his CDs and check out some of his hilarious music, including the one song in which he intersperses various inane, hateful, and horrible phone messages that he received in the wake of his 9th Circuit victory.

Mike says that he will have the song completed by April 1, when he is scheduled to speak on his efforts at West Point.  Thank you, Mike.  I can't wait to hear what you come up with.

My Speech on Evolution and Intelligent Design at West Virginia University

This previous Monday I was honored to have the opportunity to give the Edward Donley Memorial Lecture at West Virginia University as part of its university-wide celebration of Darwin's 200th birthday.  I hung out in Morgantown for a few days, and I have to say that the faculty of the WVU law school is the nicest, most fun, and friendliest group of legal academics I've ever met.  My speech was entitled "Two Errors About the Evolution Controversy (or What I Learned From My Visit to the Creation Museum)."  I thought the speech went well, and it was a pleasure taking questions from the audience and talking to students afterward.  The speech was webcast, and if you'd like to watch some or all of it, you can take a look here.

If you're interested, there's a brief reference to my "black and white zoo" idea at 28:20 in the speech.

I'm also kind of curious if anyone has any opinions on my shirt-tie-suit combo.  The tie and shirt are a little bit of a mismatch, but I think it kind of works.  Could be wrong on that though.

Clerkin' for RBG, Part I

As everyone who follows the news knows by now, Justice Ginsburg recently had surgery for pancreatic cancer.  This has sparked speculation about whether she might retire soon.  I don't know anything about the details of her illness; although I clerked for her during the 1998-1999 term, and although we got along very well, we do not keep in touch.  I do know that she is about the toughest person you will ever meet, and if anyone can beat pancreatic cancer, it's her.  I definitely wish her and her family all the best.

 

The news reminded me of a piece I wrote a couple of years back called "Clerkin' for RBG," which related some of my memories from my clerkship.  I thought it was a good piece, but nobody seemed interested in publishing it.  I thought this would be a good time to put it on the blog.  It's long, though, so I'll have to post it in installments.  Here's installment #1:

   

     When former Supreme Court law clerk Edward Lazarus published Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court in May of 1998, curious readers bought the book in droves to find out what really happens behind the scenes at the nation’s highest court.  The law clerk community, however, flipped out.  Claiming that Lazarus had breached his confidentiality obligations to the Court, critics called his actions  “wrong,” “offensive,” and a “betrayal.”  One prominent sitting judge who previously clerked at the Court argued that Lazarus had violated several canons of the Supreme Court Clerk Code of Conduct as well as “the bond of loyalty to his Justice, the other Justices, and his fellow clerks.”  Charges like this are enough to make any former law clerk hesitate to say just about anything about his or her time working at the marble palace.

 

            On the other hand, the temptation to talk is strong.  Whenever anyone finds out that I clerked for Justice Ruth Bader Ginsburg during the 1998-1999 term—whether it be a student, a newly made friend, or just some random stranger that I’ve accosted on the street or in the men’s room—they inevitably want to hear about my experiences.  What was it like working there?  Was Justice Ginsburg nice?  Is it true that Justice O’Connor made her clerks do aerobics?   Does Felix Frankfurter’s ghost really haunt the Great Hall?  What does it feel like to sit shirtless in the Chief Justice’s chair screeching “Order in the Court” after four margaritas?   Because I get tired of talking about the only other interesting experience I’ve ever had (side note: do not plan vacations on the web while drunk, or you too might decide that spending a frozen night in a Quebec Ice Hotel sounds like a good idea), I often feel the urge to mention a few tidbits from that year.  And although I always refrain from divulging any confidential secrets, I generally say something, usually before the guy even comes out of the stall.

 

            In this Essay, I will try to walk the same precarious line that I tiptoe whenever I talk about the twelve months that I worked for Justice Ginsburg.  I will reveal nothing that would shed light upon the inner workings of the Court, at least nothing that has not already been prominently divulged (the fact that clerks take part in a “cert pool,” for example, to help the Justices decide which cases to hear, is an example of a piece of purportedly inside information that is already widely known).  I will discuss no specifics about the particular cases decided when I was there, and I will not talk about any substantive conversation that Justice Ginsburg had with me, or with anyone else, in the event that I happened to overhear such a conversation through the plastic cup I regularly held between my ear and the door to her office.

 

            Lazarus published his controversial book right before I was about to start clerking, so coming in I had visions of a year filled with ideological tension, backbiting intrigue, and wild shootouts on the Court’s spiral staircase.  As it turned out, though, nothing of the sort ever took place.  Perhaps it was because our term was conspicuously devoid of any cases involving hot button issues like abortion or affirmative action (the two cases I worked hardest on dealt with insurance fraud and the statute governing removal of cases from state to federal court), or maybe it was because the thirty-six of us who clerked that year were a friendly bunch, but the term was exceedingly quiet from an ideological perspective.  One liberal colleague observed toward the beginning of our tenure that he thought one of our conservative colleagues wanted to start a right-wing cabal among the clerks but that the guy simply lacked the charisma to pull it off.  Other than that, though, there was very little of the conservative-liberal infighting that Lazarus claims took place when he worked at the Court.

Next Installment: How many steps are there leading up to the front doors of the Marble Palace?