Should We Reform the Supreme Court?

Episode Notes

Transcript

00:00:00 File start

Rodriguez: Hello and welcome to Northwestern Law’s Planet Lex, podcasting from the Northwestern Pritzker School of Law here in Chicago, Illinois. I’m your host Dean Dan Rodriguez. Joining me today to discuss the present and future of the supreme court of the United States are Northwestern Law faculty members Tonja Jacobi and Sarah Schrup. Tonja Jacobi is professor of law here at Northwestern and is also an affiliated faculty member at the Kellogg School of Management’s Ford Motor Company Center for Global Citizenship. Tonja’s research focuses on judicial politics, behavior, and strategy, American governmental institutions, and constitutional law, particularly constitutional criminal procedure. She has both a law degree and a PhD in political science. Sarah O’Rourke Schrup is a clinical associate professor of law and the director and founder of the Blum Legal Clinic’s Appellate Advocacy Center which houses our supreme court clinic. In a 2004 Reuters special investigation she was named one of 66 supreme court insiders, an elite group of lawyers across the country with a high rate of success before the supreme court.

00:01:06 Schrup previously served as a law clerk in the seventh circuit and for the Honorable Ruben Castillo in the northern district of Illinois. Tonja and Sarah, thank you for joining us today to discuss the supreme court

Jacobi: Thank you for having us.

Rodriguez: specifically focusing on potential reforms. So let me, we’re going to talk about some specific reforms, both of you have written and taught about this, thought about this a good deal. But I want to raise the question to begin with that is very much on our minds, maybe always on our minds, but particularly in light of the ongoing confirmation process for Judge Brett Kavanaugh to the supreme court, that is the question of whether the court is too political. As Mr. Dooley put it famously no matter whether the Constitution follows the flag, the supreme court follows the election returns. True?

Jacobi: I think that the supreme court has always been highly political.

00:02:00 But the difference is that it’s now becoming increasingly partisan, and that is a worrying trend I think.

Rodriguez: Why, I’m intrigued by recently. What is, what’s the evidence as it for the proposition that it’s become more recently partisan and maybe you could tell us a little bit about what partisanship means in this context.

Jacobi: Well there have been various studies that have shown that the supreme court has made decisions on the basis of politics in a way that’s predictable. And that goes back long in time. So republicans appoint conservatives and those judges vote in a conservative manner and vice-versa for democrats voting liberal. So that’s been a long-standing trend. But I think what we’re seeing now is more partisanship in terms of the way that the nomination process is proceeding and the refusal to even consider Merrick Garland is the is probably the most obvious example of that. But we also see it in terms of judicial behavior. So for example I have a recent forthcoming article that looks at supreme court oral argument and shows that it’s becoming, the justices are becoming essentially more like advocates, in that they are becoming more active at oral argument.

00:03:09 But there’s also a direction to that advocacy, a direction to that activity that takes the form of advocacy in that the justices are treating each side quite differently and sort of arguing for one side and arguing against another side. And I predicted that, that trend would have emerged after the 1994 republican revolution when the whole country became more partisan. And by more partisan I mean that there’s increasing polarization between the two parties. We see that at Congress, it can be measured in various ways. Essentially the two parties are becoming much more extreme and there’s no, no one in the middle. And we see that same behavior manifesting in the community. People’s attitudes are changing, people think that people who vote for the other party are actually bad people rather than just disagreeing with them. And at the same time as those changes are happening the behavior of the justices are happen, are changing as well to be more, taking more clear sides.

00:04:03 And so that is I think a manifestation of partisanship.

Rodriguez: Tonja, can I push you, is, does your research in your experience reveal that the justices are becoming more partisan and polar, more partisan once they get to the court, or they’re selected for their partisanship and their extremism? My words, not yours but, and I understand it may not be either/or but is it more primarily the first or the second?

Jacobi: I don’t have a clear answer to that actually. What we’ve shown is a large effect but whether it’s individuals changing their behavior or the individuals who are being selected changing over time is still an open question. I think it’s probably a combination of both to be honest.

Rodriguez: Sarah let me ask you on the same theme, if we can stipulate that it’s true that the court has become more political for some of the reasons that Tonja has said based on our own research and the research of others, what if anything, although I say stipulate, I’m happy to have you push back to that.

00:05:00 But what I really want to ask you is what are the consequences for democracy? Easy question, right, what are the consequence for the democracy of the court becoming more partisan and thus more political in that sense?

Schrup: Well obviously it you know undermines the integrity of the institution. And this institution is one that you know although as a subcurrent has been viewed as political, has also had this stature of being apart. And so there is

Rodriguez: Equal justice under the law, right in the marble

Schrup: Exactly.

Rodriguez: over the supreme court building.

Schrup: Exactly and to the extent that it’s starting to impugn the institution itself a little bit I do think that, that has implications for democracy. And to the extent that the political process is bleeding into that I think that the nomination process, the gamesmanship that we’re seeing, they sort of bleed over into each other and lower people’s respect for an institution that has always been held sort of separate and better than the grueling political process that we see in Congress and in the administration.

00:06:02

Rodriguez: So let me say what a cynic might say. They might say many things, but one might be look, elections have consequences, and we’ve had since the beginning of our republic a scheme of checks and balances, an elaborate scheme of elections. And one might regard, the cynic might say what happened to Merrick Garland is terrible but the reverse is the case as well. And so we basically as long as elections happen and as long as democrats are in charge sometimes, republicans in charge others, that, that scheme of checks and balances will end up working out, that is it’s a political process but our entire constitutional system is based on the contest among political parties. And if I can just jump in and right now where there’s a fairly balanced divide between republicans/democrats, that’s okay.

Schrup: I think the problem is this, it’s that the chips have always sort of fallen where they may historically. But recently what we’re seeing is a little bit more of a monkeying with the process.

00:07:00 I mean the Merrick Garland thing is a prime example of that where people are in Congress or otherwise taking actions to sway the process in a way where it’s not, no longer oh the chips fall where they may, we have an election, we have a certain president, and whatever justices they get to appoint they get to appoint. Now it seems a little more calculated, there’s more gamesmanship involved, and I think that that’s a shift that has been troubling people.

Rodriguez: Do, I’m sorry, Tonja please.

Jacobi: I just wanted to add I think that the way that the system has worked before, the idea behind checks and balances is not just oh the republicans get there turn to appoint extremists and then the democrats get their turn to appoint extremists. It’s meant to be a system of compromise and coordination working together. And so it’s not just oh well as long as it swings back and forth then it’s okay because then you’ve got swings between extremism, then you’re going to have less respect for stereo decisis, lower legitimacy of the court, etcetera. Whereas what we used to have is norms where there were the two parties were forced to work together because of the various ways in which power was split.

00:08:00 And when we had this change in the parties to be increased party discipline and we, whenever we had unified government now we had the parties voting completely along one line and no room for compromise whatsoever. And I also wanted to push back against the idea that oh the Merrick Garland example is just the latest example. I mean that was unprecedented to go a whole year without even considering a nominee. That had never happened before. There had been nominees who were rejected or balked as the term sometimes is, but this was quite different to not even consider just on the basis of the president’s party.

Rodriguez: Let me ask you about the nomination process, we’re going to talk about supreme court reforms and all of hat but just on the nomination process. There has been the criticism, particularly from the left, that President Trump has more or less outsourced the role and the function of suggesting nominees to the federal courts, including the supreme court, to the federal society.

00:09:00 And the accusation that there is something noxious about that, that basically there’s an outside interest group that has an outside influence over the nomination of judges and in this case justices to the supreme court. And we’re recording, this will come out during the heat of the battle over the Kavanaugh nomination. But whether it’s about Brett Kavanaugh or generally, do you think there’s anything to that criticism. Sarah?

Schrup: So this is not something that I know that much about but what I do understand, I don’t think it’s so problematic that he goes to the federal society to identify people. What I do think is happening and maybe you know more about this, Tonja, but it’s the again absence of cooperation and coordination, going through for example the senators in a given state. It’s sort of the co-opting of the entire process. So no of course he’s going to go and get, look for names from organizations and people’s, people he trusts. And maybe he is less involved than other presidents have been.

Rodriguez: He’s not a lawyer for one thing.

Schrup: Well he’s not a lawyer for one thing.

Rodriguez: Among many things he’s not a lawyer.

00:10:00

Schrup: So well that’s true and maybe that’s another reason why he would delegate more of that to lawyers. However, regardless of the degree to which he is delegating it’s not so much about going to people that you trust to get names, it’s about co-opting the process entirely and not having it be a joint process where for example the senators from the states are weighing in and so on and so forth.

Jacobi: I think there’s always been the influence of sort of various groups. I think the federalist society is a bit unusual in that it’s so substantive in its focus. It’s not just based on qualifications as some other groups tend to focus more on. But also it is, it’s been very effective in accruing power, not just for supreme court nominations, but for all of the federal court nominations. And in terms of judges are selecting clerks that are going through this process like it’s coming into every level of the process and it’s sort of a conservative generating machine which has I think really increased the power of conservative jurisprudence generally.

00:11:07 And so I think where sort of people are having a strong reaction to that, but it’s partly because they’re being more effective at doing what other groups have tried to do over time. But I think what people push back against a little bit is that there’s a perception, and with Donald Trump it’s quite explicit, that you can, you have to go through the federalist society and that they have a sort of veto and power of agenda-setting which is very unusual. And I think partly that’s because President Trump doesn’t have the same level of substantive policy interests that most other presidents have. But the power of the federalist society preceded Donald Trump definitely.

Rodriguez: Let’s shift the focus to some of the reforms that one hears in the press. Many of you have written about this and certainly some of our colleagues have as well. So let’s begin with the argument for term limits. One of our colleagues, Jim Lindgren, penned something in the LA Times recently that called explicitly for term limits.

00:12:03 I think his recommendation which echoes the recommendations of another, a number of others is 18 years, what would be basically three senatorial terms. And you hear different years described to it but the basic idea is to upend, and it would require an amendment of the Constitution, right, to basically put term limits on supreme court justices. What do you think of that, would that help solve some of the problems that we’re talking about. Sarah?

Schrup: Well I’m not against term limits per se but I, in thinking about this, I think that there’s a mismatch between the solution and the reasons given for the problem. There’s these four reasons usually given, I think Jim’s article, his op-ed identified them. And I can talk about those a little bit in a second, but the real problem which we’ve been touching on a little bit so far is gamesmanship in the nomination process. For a lot of people it smacks of unfairness and it leads people to behave badly. And that’s really what needs addressing, not necessarily the length of tenure on the court in my opinion.

00:13:02

Rodriguez: Okay.

Jacobi: I agree with Sarah that it doesn’t solve the problem of how do you actually ensure that a person is considered and somebody is eventually confirmed every two years. So you’d have to think about the processes that are associated, if you still have the senate giving advice and consent then you can’t force them to consent to any nominee. But you could have procedural rules as to the timeliness in which a nominee has to be considered for example. But it doesn’t necessarily solve those problems. But I think it solves a lot of other problems. It solves the problem of individuals being on the court for an extremely long time. it solves the gamesmanship of wanting to appoint very young people such that they can serve, in the words of the resident for 40 or 45 years, which we haven’t seen yet but it is conceivable. And I also think it solves the problem of a handful of individuals who are often quite old and out of touch with certain issues. I mean if you hear the justices talk about technology issues, considering patent issues, considering you know or even in criminal procedure when they’re talking about privacy being affected by technology, it’s a little scary how out of touch they are with modern technology and the implications that that has.

00:14:13 So I think it would solve that problem. But also I think the sort of the individualization of such intense power. I mean we have nine people in the country who have so much disproportionate power within the judiciary and there’s also the sort of reification of certain individuals. So Scalia on the right and Justice Ginsberg on the left sort of, there’s this sort of cult of personality around them. But I don’t think it’s particularly healthy. I think the court is meant to be a little bit more independent than that, the judges’ personalities is not meant to be so important. And I don’t think any one person should be so influential over literally decades and decades of time.

Rodriguez: So it’s interesting you put your finger on the, one of the arguments is that it would reduce the stakes in some important way of the supreme court.

00:15:00 So let me pivot a little bit on that beyond term limits. Jurisdiction stripping. There’s an oldie but a goodie, right. The argument for reducing the jurisdiction of the federal courts and the supreme court has bounced around since we were in law school and many, many years before that. But it’s also been renewed and what’s particularly interesting to me is it’s been an argument that’s been renewed not only on the right but on the left. You see many more distinguished constitutional scholars, legal scholars, pundits on the left arguing that maybe the supreme court’s jurisdiction has gotten out of hand, and the fact that they’re dealing with all of the big blockbuster issues of the time is a systemic problem. Is, will there be a heyday I guess for efforts to limit the scope of the jurisdiction of the federal courts, maybe also including the supreme court or is that, has that ship sailed? Either one of you.

Jacobi: I mean I find it a difficult question to answer because I disagree with a lot of the court’s jurisprudence on jurisdiction stripping and the deference with which it gives Congress to the extent it gives quite a lot of deference.

00:16:05 You know for example recent cases where the court said oh yes it’s okay for legislatures to come along and essentially reverse an individual case. I just think that you know through jurisdiction stripping, I think the court is far too deferential, so I’m probably up one extreme of this view that I think there should be strong limits on the, on jurisdiction stripping rather than an expansion of it so

Rodriguez: And just so I understand you, when you say strong limits, you mean limits, constitutional limits on Congress’s power to limit the jurisdiction of the courts as distinguished from you know that we’re hair-splitting a little bit here or I am, but it’s distinguished from the court maybe being more hesitant and reluctant to wade into political issues, the political question debate or the you know what Alexander Bickel so many years ago talked about the passive virtues of the court being more deferential. That’s a wholly different point I take than your point about Congress as a power over the courts.

Jacobi: That’s, that is a different point.

00:17:00 But I think I’m probably up one extreme on that issue as well because I think a lot of the issues that the court considers potentially political questions are exactly the sort of questions that it should be answering. I’m very much in the John Hart Ely mold that there are key questions of making the electoral system work properly that the court needs to address and everything else is secondary to that. If you can’t, if the court can’t for example control gerrymandering and make sure that the electoral system works properly then everything else is, can just go by the wayside because the democratic system can fall apart. And so to say that those questions are political questions I think is to really miss the key issue and the role of the court that’s central to enabling the Constitution to work properly.

Rodriguez: Sarah let me ask you about another proposal that’s very much in the news of late, and that is court packing, to use the famous phrase that was popularized during the last effort to pack the court under FDR in the 1930s.

00:18:02 But it’s also been renewed, this debate about expanding the supreme, let’s just focus on the supreme court, expanding the number of supreme court justices. Is that a non-starter or what’s your view about the impact of that?

Schrup: I think it’s a dangerous road to go down. I think it you know it seems enticing to the people that are not being successful in placing their justices right now. But it comes back I think to bite people, those very same people. And I also think to get to my earlier point, it sort of implicates the very gamesmanship that we’re trying to get rid of. And then in turn that harms the integrity of the institution. So no I don’t, I mean I think it’s maybe a short-term answer, but I don’t think that it’s something that will ultimately serve the interests of the institution. One article I read said you know it’s the toolkit of authoritarians as well. You know that just doesn’t sound like a road we want to go down.

Rodriguez: Toolkit for authoritarians yes.

Schrup: Yeah.

00:19:00

Rodriguez: I think we could stipulate that’s not a road.

Schrup: Right but when it has been used it has been used in a way to further efforts by authoritarians to take control over a government. And so you know it makes me a little uncomfortable to go down that road.

Rodriguez: Well there’s a baseline issue, right I mean any court packing has to begin somewhere and the question of where it begins, since we’re not writing on a blank slate, is to empower the president and Congress, right to act at one particular point in time.

Jacobi: And also I mean if one side does it then the other side does it, and we get this constantly expanding

Rodriguez: Tit for tat.

Jacobi: how many justices do we want on the supreme court. Do we want to have, you know we’ve seen courts around the world that have you know 25 justices or what have you and I don’t think that particularly functions

Rodriguez: That doesn’t work out that well.

Jacobi: But I mean more importantly I think is that it undermines the rule of law, it undermines the idea of judicial independence which once again is central to the constitutional and democratic system. If, the more that every time power changes in the political sphere you just change the court essentially by adding people, then the court really isn’t any different from the legislature.

00:20:06 It undermines its role, it undermines its legitimacy, it really will be, I mean when we talk about the court being political that will be nothing compared to how it would be if we allowed this. And so I think it’s very short-sighted. I also think to the extent that democrats and liberals are talking about doing this as a way to get back at republicans for what they did to Merrick Garland, I think that’s extremely short-sighted. It’s even worse for democrats than it is for republicans because there is a strong wing of conservatism that wants to see a very limited role for the court. And there’s not that view within liberals. And so to the extent that this whole package would undermine the power of the court and undermine the legitimacy of the court, it’s particularly a bad for liberals, though I think it’s generally very bad for conservatives as well. But at least there is a group within conservatism that would like to see the court have much less power.

Rodriguez: Let me, I’m intrigued by the short-sighted and bad for liberals, let me ask you about what has also been regarded as maybe an unintended consequence of the democrats politics recently.

00:21:05 And that’s debate over the filibuster. So Harry Reid, leader of the senate, a number of years ago got rid of, not single-handedly of course, but led the effort to get rid of the filibuster for lower court federal judges. That probably to no one’s great surprise morphed under republican leadership to get rid, to getting rid of the filibuster for supreme court nominees. Is it fair to say that, that was a sort of was set in motion by the democrats and now they’re being hoisted by their own petard?

Jacobi: Actually I don’t think so because prior to that, remember the republicans had power and they’re essentially talking about the nuclear option, and the democrats essentially folded on a bunch of nominees so as to prevent the filibuster being abolished. And so they essentially just agreed to these nominees that were highly controversial instead. And it was clear that the whole process was unraveling, that, that particular norm had reached its limits and it was going to go and it was just a question of whether the democrats are either going to do it or the democrats were just rolling over and letting the republicans effectively do it without having to be the one to take responsibility.

00:22:07 So I think the mistake the democrats made was rolling over under I think it was Frist rather than actually get, doing away with it. It was clear that republicans were never going to respect democrats’ exercise of the filibuster anymore anyway.

Rodriguez: So we’ve been talking up to now a lot about the nomination process and appointment of justices. I want to get a little more in the weeds about supreme court process. And Sarah you’ve been very involved in the leadership of our supreme court clinic and your own work in supreme court cases in advocacy really from beginning to end or cradle to grave as it were, right from the, from getting the supreme court, urging the supreme court to hear cases in their certiorari power to organizing for oral arguments and brief writing all of that. So from your vantage point as a seasoned supreme court litigator, what are some of the flaws that you’d like to see addressed in let’s begin with the process for the hearing of cases, deciding which cases to take.

00:23:00

Schrup: I think that reforming the cert process is really important. That was when this question was sort of floated before the podcast that was the thing that came top of mind to me. And you know the cert process is done by the clerks for the most part. It’s

Rodriguez: It’s a rule of four, right so our listeners understand it takes four justices to hear a case.

Schrup: Exactly but a justice never sees a cert petition. They’re only seen by the clerks. And there are a number of really important, significant, impactful cases that are brought before the court with legitimate splits on issues that either the clerks don’t, I’m not sure what is driving exactly the clerks and in their decision-making process to recommend a grant or deny. I think one part of it is they’re relatively inexperienced and they don’t want to go out on a limb recommending a case that might ultimately be digged, which is dismissed as improvidently granted.

00:24:02 They want to be really secure and not lose face in that way. So delegating the entire process to the clerks leads to I think them taking only sort of blockbuster cases and a handful of less controversial cases. But there are a whole, there’s a whole universe of more impactful cases on which I really believe there could be a lot of consensus from the court if they were to take them. I mean they only take 75 or 80 cases a year. That’s another thing that I would suggest is that we start taking more cases, cases that are not sort of very small but discrete splits that maybe aren’t as impactful and these blockbuster cases. But really start resolving some things in the middle.

Rodriguez: Splits among the circuits, right.

Schrup: Splits among the circuits.

Rodriguez: We all learned in law school is supposed to be one of the key if not the key role of the supreme court is to resolve disputes in law. You see fewer and fewer of cases that may seem mundane, they’re not gerrymandering, they’re not abortion, they’re not affirmative action, but they’re important cases.

Schrup: Well and it’s not, I think maybe I’m even saying this a bit wrong.

00:25:00 I mean I think that the cases they take generally almost uniformly still involve a split. But the decision-making process by the clerks is a lot more guarded. And so there are, and they’re not willing to go out on a limb, to take several other cases that I think could be emblematic of consensus for our court and more cases, so that they’re churning out more decisions that show, because otherwise what I think the view is, is there’s a bunch of decisions that maybe aren’t that impactful. They’re very maybe interesting but narrow, esoteric pieces of the law where they’re solving just snapshot problems. And then there’s big blockbuster cases. And so the effectiveness of the court is not really coming across. I mean they don’t, the court for example does not like to take sentencing issues for the most part because they

Rodriguez: Criminal sentencing.

Schrup: Uh huh, because those are usually handled by the sentencing commission. However you know there are loads and loads of really important and impactful sentencing questions on which the courts are split that the Commission will never reach.

00:26:05 And those kinds of cases I think you know if you actually look at them, they sort of lend themselves to a certain just you know decision Maybe there is some dissenting point of view. But again to increase the caseload and increase a caseload that shows how the court can function effectively as a whole in a consensus driving ways is one reform that I think is important.

Rodriguez: Let me ask you about the rise of what we might call the professionalism of the supreme court bar. You sit atop a wonderful supreme court clinic here at Northwestern. There are many other supreme court clinics. Certainly the rise of those at some of our nation’s distinguished law schools, specialization of lawyers advocates,. Our alum Carter Phillips argued dozens and dozens of cases before the supreme court, many as well. Has that, I guess I want to connect that to your earlier point has the rise of a much more professionalized supreme court bar improved the practice before the court.

00:27:00 And I’m here talking not only about the vetting of the cases they might consider, but the quality of the briefs, the quality of the oral arguments?

Schrup: Absolutely I mean you know I’m a little bit biased because I participate in one of those clinics but we have talked to the justices. Many, many justices have met with our students and have said yes, the clinics and the law firms with supreme court practices who pitch in and help on the brief writing have monumentally improved the advocacy before the court. What I think is still maybe hanging out there is the oral advocacy piece of it. And I think that we’ll probably get to we’ll talk about this a little bit more but

Rodriguez: That will be my next question.

Schrup: Yeah so I’ll say

Rodriguez: I’m looking at Tonja to tee this up because I want to

Schrup: I’ll save it because I do have some thoughts about the specialized bar and their role in oral argument and how oral argument can be changed. But that’s one place where I think that it contributes to the fact that the justices are sort of taking over the questioning a little bit. And we can talk a little bit more about that.

Rodriguez: So I want to get to that question.

00:28:01 Tonja, you have done such you know amazing and impactful research on oral advocacy before the supreme court among other topics, but of late your research in the pattern of oral arguments, oral advocacy, and in particular what you’ve studied, not only you’ve observed but what you’ve studied which is the substantial rate of interruption of other justices, and in particular female justices, to be more specific Justice Sotomayor, Justice Ginsburg, Justice Kagan as well. And so could you talk about that research, sort of what led you to that as a topic, what you found, and how it bears on, how we ought to think about oral advocacy before the court?

Jacobi: Well I think in general in terms of looking at oral arguments I think there’s a real advantage because the justices are much more relaxed and at ease. So for example if you want to look at judicial behavior which is my area of interest then looking at opinions or looking at votes is not as informative I don’t think as compared to how the justices are in this forum, where they can sort of throw in questions, they can try out ideas.

00:29:06 So I think that is interesting of itself. In terms of the gendered interruptions study how I started working on that, I teach a class here at Northwestern on oral arguments essentially where we look at cases before the supreme court at the moment in any given term. And it just really stood out to me that there were these particularly it started actually with the male advocates would interrupt the female justices at astonishing rates. And particularly it struck me that the most experienced male advocates were allowed to get away with this even though the rule says do not speak when a justice is speaking.

Rodriguez: So they’re asked, I don’t mean to interrupt, but just so I understand, so our listeners do, that the justices, the female justices, women justices are asking questions of the advocate. We all learn, one of the very first things, right we learn in law school in these advocacy ones is shut up at that point and let them ask the question. But you’re saying that they barge ahead and

Jacobi: They continue on with their point, they’ll not, the justice will go to start a question and they’ll just continue speaking or they’ll actually be like oh yes, yes I know what you’re asking and start answering the question.

00:30:08 And so

Rodriguez: Mansplain it to them as it were.

Jacobi: Yeah they would mansplain as well. And so I wanted to see whether I was right that this was an actual pattern over time and found that yes, there was a very strong pattern, that between the justices, the male justices would interrupt the female justices, the male advocates would interrupt the female justices, and the female advocates wouldn’t interrupt anyone. So essentially the rules are being followed by the female advocates and that might be, that’s sort of an interesting question that’s hard to probe as to why is there that difference in behavior. And I suspect because that women would, it wouldn’t be tolerated as much that the women would be, people, there have been studies showing that people notice when women interrupt much more than they notice when men interrupt. So I suspect the female advocates would get walloped by the chief justice or by the justices much more. I don’t actually know that but that’s my feeling.

00:31:00

Rodriguez: Can I ask, just jump in and ask how much of this would be what we might call the Scalia effect? There’s this idea that Justice Scalia when he joined the court was, asked so many questions, interrupted everyone to make his points. Is some of your research indicate that it’s basically justice, the late Justice Scalia interrupting everyone including women?

Jacobi: Justice Scalia did interrupt a lot but mostly Justice Breyer. The two of them interrupted each other, they were constantly at odds. And they actually really dampen our results in that you have two men interrupting each other in terms of the justice to justice interruptions. If you take out that idiosyncratic pairing, then, so we find essentially that the female justices are interrupted almost three times as much as the male justices. And that’s despite the fact that Justice Scalia and Justice Breyer are off the charts just in relation to one another. And so but in terms of this Scalia effect, I think a lot of people say oh Justice Scalia transformed oral argument. And there’s just not a lot of evidence for that at all. So in the most recent article that I mentioned, The New Oral Argument, we look at this and did the court change in 1986 when Justice Scalia joined the court or did it change much later?

00:32:08 And we show it changed much later. The only thing that significantly increased in 1986 were there were more comments made by the justices. So one of the things we show in terms of showing this advocacy is that even though the justices are taking up almost a quarter more of the oral argument than previously, the number of questions does not increase at all. The number of comments increases immensely.

Rodriguez: Signal, are those comments effectuate sort of signals to the advocates and to the world about how the justices might decide cases?

Jacobi: Partly I think they’re arguing with the advocates and sort of trying to convince perhaps you know the median justice or other justices that you know this argument is really weak. And so the justices not only make more comments but they make more comments during the time of the advocate they ultimately vote against. So you can, not only can you sort of predict cases by looking at supreme court oral arguments, but you can look at, you can see that the justices are sort of antagonistic towards certain advocates and they’re making comments to them whereas they’re asking more questions of the side that they actually rule in favor of.

00:33:08 And so that is the only change that occurred in 1986 where that really started increasing. So Justice Scalia’s contribution was to make more comments. There were other things happening in 1986. Rehnquist became chief justice, the professionalization of the supreme court bar was really taking of then. So that might not be Scalia, but to the extent there’s a Scalia effect that’s the extent. It’s not, he’s not responsible for that many more interruptions. He didn’t start asking more questions. That is a real Scalia myth and it’s part of this sort of mythology that I was talking about you know Scalia, he came and changed everything, and there’s just not a lot of evidence for it, other than anecdotal.

Rodriguez: So my understanding is at least one justice, Justice Sotomayor, there might have been a second, maybe Justice Ginsburg, noticed your research and commented on it, has publicly commented on it. It’s way too soon to tell but what’s your intuition about whether that is going to change the dynamic within the court?

00:34:04

Jacobi: I get asked this question a lot so I actually just did a blog post on this. I’ve just started a website called SCOTUSOA which stands for SCOTUS oral arguments and it’s a website devoted to empirical analysis just of supreme court oral arguments. And we tried to look at this question. Justice Sotomayor said that it had really changed the court, not only in internal ways in that some of the male justices had apologized to her, but also that she thought the chief justice was doing more refereeing which is one of the things we called for in the article and that maybe there’s a lowered level of interruption as well. And Justice Ginsburg said that she hoped that it would change the court but that was an earlier statement. She was aware of it but she didn’t actually say it had changed the court. So we tried to test this and looking at the last couple of years of data since the article which is a little self-referential but nonetheless when a supreme court justice says there’s this effect here you have sort of got leeway to have a look. And we don’t see a lot of evidence for it unfortunately. So the last term was the second highest rate of justice to justice interruptions, second only to the previous year.

00:35:06 And the chief justice is definitely stepping in more to referee, but it seems to be a trend that’s gradually increased over time. And so I think that’s much more about becoming a experienced chief justice than it is in response to our study. Now it’s early days so it might have changed the culture and it just takes a little while to have an effect. And so that’s looking at justice to justice interruptions. Our most recent blog post is on advocate behavior as well and where that’s sort of a trend we’re looking at more over time as well. So hopefully you know when a supreme court justice says that your work has changed things

Rodriguez: That’s great.

Jacobi: you certainly want to find evidence of it but so far the evidence is thin.

Rodriguez: So Sarah let me take what we’ve been talking about in Tonja’s research and ask how, as someone who supervises advocates and works on advocacy, how that translates into what advice you would give in leading students and faculty members in arguing before the supreme court.

00:36:05

Schrup: Well a couple of things just based, I’m just going to piggy back a little bit on what Tonja said because I think there is a couple of other things at play and it sort of sparked a couple of ideas. First of all you know one problem with oral argument is that when the judge, justices go back to conference, the junior justices speak last. And those junior justices right now, well until recently, have been women. And so you see women or you see the junior justices speaking up because they want to get their points heard before they go all the way around the table and they’re the last to speak. So if there’s a point that needs to be made I think that’s one reason why we see increased activity during oral argument. Another reason we see increased activity is maybe in cases, and this is the idea that I just thought of while you were speaking, but where justices will jump in and help less experienced advocates. I think you mentioned the Dean case maybe.

00:37:01 So in criminal cases especially we have really great, a lot of the time, really great federal defenders that we work with. And in our program we don’t require them to give the oral argument to us. We’re happy to just write the briefs and help them prepare. But many of them have not argued before the court before. In commercial cases, in civil cases you have often supreme court specialists on both sides. But in criminal cases still there’s a little bit of an uneven playing field, I mean with the solicitor general on one side or a state solicitor general and you have perhaps less experienced attorneys actually up at the podium.

Rodriguez: And it may be the one time in their lifetime they’re arguing before the supreme court so they’re not going to give up that argument.

Schrup: Exactly, well that’s exactly right. And we know that. But we also know that the briefs are more influential in helping the justices decide the case which is why we are happy to just work on the briefs with them and not require them to give up the oral argument.

00:38:00 But in those instances what you will see is probably if you were to study this maybe you’ll see justices advocating a bit more and stepping in to either suggest, did you mean, you’ll see it in a lot of oral arguments did you, you must mean this. Or as Justice Sotomayor said in one of our cases you can’t honestly mean that. She said something along the lines of

Rodriguez: I’m sure she was trying to be helpful in saying that but

Schrup: Yeah, she was, she was like you can’t honestly mean that. You actually mean this. And so when you see a lot of advocacy I think that is in part coming, I bet if you look, it’s more in criminal cases and it’s more for the defendant, the advocate for the defendant. Because those among all of the advocates are probably the least experienced. And so that would be something interesting to look at.

Jacobi: I would love to look at that. The difficulty is differentiating helpful comments from challenging comments. I think it’s possible like maybe we’re, I’m moving more into sort of text-based analysis and using some machine-based learning to look at different types of the nature of comments and questions.

00:39:04 At the moment I think that, that is I’ve written down what you were saying, I think it’s a great idea. I have to think more about how you can get at that sort of, so because a lot of comments are made when you’re trying not to help the person and you’re sort of debating them. So you want to differentiate the helpful comments and I think that’s, I think it’s a really interesting idea. I think you’re right anecdotally, impressionistically I’ve seen what you’re talking about.

Rodriguez: I just want to make this observation you know Tonja, your research focuses a like a laser beam on oral arguments and that process in no small part, right thanks to the ready availability of the tape recordings of that. But I was thinking when Sarah you were mentioning the conference, supreme court conferences, we can’t really study that right because there’s not information there. So just reflecting back it seems to me that maybe the oral arguments and Tonja I’d be interested in what you think of, both of you what you think of this, is maybe the canary in the coal mine, maybe there’s a gendered effect that runs throughout the supreme court process that includes not only oral arguments.

00:40:01 One wonders about female justices being interrupted in conference or the deference to which they get or don’t get in the opinion assignments or in the writing. So I’m speculating here but there’s just so much we don’t know, right about the black box of the supreme court and the impact of male-female dynamics within the supreme court. If there’s anything to what I’m saying I guess let me ask you this question Tonja, is there any hope for doing research or studying those kinds of processes? Because of course this is such a central issue.

Jacobi: Well I don’t think we’re going to be able to study what goes on in conference because they’re never going to let us know except for you know 20, 30 years later when we get their notes. But I would say, one point that you made, I don’t think there would be a lot of interruption at conference because it’s very formally run. I mean there’s not a lot of back and forth. There used to be and people felt I think bullied by Frankfurter so there was sort of this formalization, there are other reasons for it. But one study that could be done that I’ve thought about doing, but I’ll just put it out there for general consumption if somebody else wants to do it.

00:41:04 So in Australia there was a similar phenomenon in terms of people trying to make their case at oral argument. There was a perception that the judges were sort of talking too much during oral argument. And there’s just two or three years ago we had a new chief justice and one of the other, one of the associate justices pushed to have a pre-conference for, partly for this reason. And so it’ll be interesting to look at the sort of the effect of that shock and whether it stops the justices monopolizing the time at oral argument at the Australian high court. And now obviously that’s a different institution but if there’s a perception that there’s the same problem going on then maybe that’s, that would be one area that

Rodriguez: And there’s no constitutional bar to the, to our supreme court engaging in that kind of reform to deal with these issues.

Jacobi: Absolutely. Yeah.

Schrup: Or even, one other thing that you know, you know they have their questions as they come in They’ve prepared their questions coming in.

Rodriguez: Sure.

Schrup: And another idea might be to, I mean I’m not sure they would ever do this, but if oral argument or problems within oral argument or the inability of advocates to make their case is really something we want to talk about, you know the justices could issue an order directing answers to their questions that they have ahead of time.

00:42:17 And the upside of that of course then you can have a reasoned response in writing by the people that are hopefully experts in the case who have written the briefs. And then more of oral argument can be devoted to advocacy by the people who are arguing.

Jacobi: Or you could have post appearance briefings so

Schrup: Exactly.

Jacobi: any question that you didn’t feel that you were able to fully answer because somebody else came along and interrupted, you could provide additional information.

Schrup: You certainly can do that in the seventh circuit. I’ve had to do that, the post argument memorandum. And but it doesn’t stop the lobbying during the argument necessarily. But certainly you could clarify a point after the argument.

Jacobi: I’m a little bit hesitant to support the sort of idea of it being very structured, though.

00:43:00 I love the give-and-take of oral argument, the sort of the, it’s, I think it’s very interesting. If you listen to old oral arguments they’re very boring. They’re much more sedate affairs, there’s not the same sort of jumping around. You don’t see the justices playing with ideas so much. And I feel like as much as it’s sort of, it is a little chaotic, and there are problems in terms of you know it exacerbates things like power differentials and so on. But at the same time it does give us this great insight into how the justices are thinking about questions and some of the questions, some of which are not necessarily decided yet.

W: Well there’s so much we could talk about and I really appreciate having this opportunity to talk about various reforms for the supreme court, really beginning with the confirmation process, nomination process, and into the supreme court process. I want to again congratulate both of you on your work and your accomplishments, but also thank you for your contribution of this podcast. There’s much food for thought. Tonja had the opportunity, I’m glad she took it, to plug her blog. Sarah, could you, while we’re on the plugging part, could you say a word about this book that you and your colleagues wrote about advocacy.

00:44:05 You might as well get a plug in to join along with Tonja’s book.

Schrup: Well thank you very much, Dan. I will take the opportunity to plug. My colleagues that run the supreme court clinic and I and another colleague here at the law school, Sue Provenzano, and I decided that in terms of teaching excellent oral and written advocacy to law students, that there was a real gap. And so we got together based on all of our many now decades of experience and wrote a textbook that’s really designed for upper-level law students, second but for sure third years and for practicing lawyers as well who want to improve their writing and their oral advocacy. And it’s called Advanced Appellate Advocacy and it came out in 2016.

Rodriguez: Great thank you.

Schrup: Yeah, thanks for having us.

Rodriguez: You bet.

Jacobi: Yeah thanks for the opportunity, this is a great discussion.

Rodriguez: Thank you very much. This is Dan Rodriguez. Sorry I forgot, I didn’t have that last, the

Jacobi: There was, Dan you said that we could maybe add something else in.

Rodriguez: Of course, absolutely.

00:45:01

Jacobi: I just thought that

Rodriguez: Before you do that let me just, keep that thought, I just want to do the out part so what’s the, what is it? Dan Rodriguez signing off.

Male: Signing off from Northwestern’s Pritzker School of Law.

Rodriguez: Yeah then well come back to that.

Male: Let me give you a countdown, five, four, three.

Rodriguez: This is Dan Rodriguez for Planet Lex signing off from Northwestern University Pritzker School of Law, thank you. I’ll do it again.

Male: Five, four, three, two.

Rodriguez: This is Dan Rodriguez signing off from Northwestern University Pritzker School of Law. Tonja.

Jacobi: So one thing we just, we didn’t talk about was when we talked about term limits, what is the argument against. And I just I’m in favor of term limits but I think it’s important to consider what the problem is. And I think that part of it

Rodriguez: Don’t, save your best stuff for the tape.

Jacobi: Oh okay. Oh we’re not recording.

00:46:00

Rodriguez: I’ll say what’s the argument, no it’s great.

Jacobi: Okay.

Rodriguez: So I’ll do that, we’ll do the drop in. Great, thank you for that.

Male: Agreed. I’ll give you the countdown again to ask the question in five, four, three.

Rodriguez: So we focused on the case for term limits such as it is. So Tonja could you tell us what the argument against having term limits for supreme court justices would be?

Jacobi: Well the theoretical concern any time you have term limits is that people will be looking ahead and thinking what am I going to do when I’m no longer a supreme court justice. So we see this problem in Congress for example, the revolving door where members of Congress become lobbyists. There’s the very token I think now two-year limit on lobbying but there are sort of ways to get around that. And so people are sort of monetizing their experience in Congress and perhaps even monetizing their time while they’re in Congress in anticipation of that. Now there’s never been any evidence of that in countries that have term limits on their highest court. But it’s always been a theoretical concern. But the concern that does actually play out, so for example in Australia there are, there is a set retirement age of 70.

00:47:05 And so people talk about the ghosts of the high court hanging around. So there are people, very successful, smart people who are forced to retire at 70 when they have more than a decade of productive time available to them. And so the concern is it’s this waste and then also they’re sort of hanging around and you know sort of not going away. They can’t really go into a different job and so is that a bad thing. I personally don’t think that’s such a problem. I think it’s unfortunate for the person that they don’t get to have another decade of one of the greatest jobs you can imagine having. But somebody else gets to have that job as well. But we also have, I mean we have Justice O’Connor, we have Justice Souter who each retired for, earlier for idiosyncratic reasons. And they’re still around sort of contributing I think in different ways. Sometimes they sit on lower courts, they give speeches, and they sort of act as ambassadors for the retired justices.

00:48:01 And so I don’t think that’s necessarily a bad thing. I think it’s worth considering you know what is the effect of forcing people to stop doing this. And you know can that affect them during their job or after. But I think that it doesn’t nearly counteract the harm of having you know 80-year olds on the court for 30 years being out of touch and having that individualized power but it’s worth considering.

Rodriguez: So I want to ask you, you’ve mentioned a couple times this idea of the older justices being out of touch, older, and some of the advantages maybe associated with term limits as you bring in younger voices. So let me offer this as a devil’s advocate position, that’s come up very much in the context of President Trump’s nominations and this was true in the Obama administration, the idea that make sure that you don’t consider justice, potential justices who are too old, right. Make sure that they’re young enough to potentially serve on the court. What about the idea that what it’s done is created a generation as it were of judges that have aged out, right.

00:49:01 So if you’re a political party, the president is in office for eight years before it turns over to the next party. During that eight-year period you have these wonderfully distinguished appellate judges who simply become too old to be considered for the supreme court afterward. And we could think of many examples of that. It’s probably if you’re in your mid-50s, and maybe I’m a little sensitive to this, by the time you get to your mid-50s, it’s like well that person’s sort of long in the tooth to be considered for the supreme court. So do we lose out on good judges because of our emphasis on just appointing the young? Sarah?

Jacobi: I’m sure president will make an exception for you, Dan.

Rodriguez: Yes exactly I’m waiting by the telephone.

Schrup: We do lose out on great people by this new emphasis on appointing 40-somethings that can serve for 30 years. And it’s a shame. It’s a shame. You know I think the pendulum will ultimately swing back however we, however this plays out. We’re just in a really acute time right now.

00:50:00 But yes, I do think that we have lost some really great justices who could in their 60s and 70s, I mean you could get, I mean even into their 80s. Justice Stevens was writing great stuff all the way until he retired. Justice Ginsburg is not really missing a beat in her opinions in her 80s. So you know I don’t necessarily agree with Tonja that they’re out of touch simply because they’re older. I mean they have young clerks, they have lots of different briefs with lots of different perspectives. So yeah I think we do lose some good people.

Rodriguez: If I could mention an anecdote and we’re here at Northwestern so a shout out to our alum Justice Stevens is always appropriate who is 97 years young. I had the opportunity to interview him a little over a year ago. He was exorcised as you can imagine about the Heller opinion, the gun opinion. What he knew and was opining about firearms technology in the 97s, 97-years old I thought was rather impressive.

00:51:00 And something that you wouldn’t have expected to see in somebody so, somebody 97.

Jacobi: I want, I would say it’s not just the fact that they’re old. I think that inevitably, well usually I should say, people who are older don’t have the same feel for technology. And I mean I see the difference between me and my students on certain platforms. So it’s not, I’m not sort of just saying oh you get to a certain old age and whatever happens. But I also think it’s being older after spending decades in the very artificial atmosphere of the supreme court. If you

Rodriguez: A cloister as it were of the court.

Jacobi: Exactly. So if you’re put on the court you know in your late 40s and then 35 years later you’re still there and you, you know the justices do their best to stay out of certain roles and yeah to cloister themselves, then I think that just by virtue of sort of cohort time rather than age you will become sort of out of touch that way by necessity of the nature of what it means to be independent and sort of separate from various political shenanigans.

00:52:04 But I do think there is an age effect as well. And I’m sure that there are examples. I’m sure that these older justices can you know learn about guns and ammunition and what-have-you. But there’s not the same feel for, there’s not the same anticipation of technology as well. So for example in criminal procedure, Chief Justice Roberts has now written a couple of opinions about cell phones. And it’s great, he’s finally realized that there is this sort of really significant change that’s happened in terms of what we carry around on us in the form of a phone and has all of our information. Okay but if he was a younger person might think okay so what’s the next thing that’s going to be like that. Should I craft a rule that’s broader and so it doesn’t just apply to cell phones. Should I think ahead a little bit about what other technology is coming down the pipeline. And so even when the judges, justices catch up, which usually takes some time. I remember Chief Justice Roberts bragging about wearing a Fitbit and understanding what that was, like I think when the company was going under. So you know they are

00:53:00

Rodriguez: And on the other hand there’s Justice Souter who you can imagine in, when he was 25 was probably not engaged with technology.

Jacobi: That’s true, too. There’s probably a selection problem as well. But so I do think that there are sort of pressing legal concerns as to why we should be concerned about you know having older people who just tend to be less in touch with the technology.

Rodriguez: I remember a couple years ago Justice Kagan was visiting with us here, here at Northwestern law school and she was meeting with the faculty. And someone asked this question everyone expected to be one answer and she gave a different one which is do you read the blogs and do you pay attention to what folks say on the blogs about the supreme court. And much to everyone’s shock she says yes I do. I mean I do read the blogs. I mean she didn’t say that they influence her outcomes or her decisions but I would imagine she was probably a minority of one among the justices of actually engaging with blogs about the supreme court.

Jacobi: Well my counter anecdote to that is I was just looking through some transcripts looking for something the other day and I came across Justice Sotomayor just a couple of years ago talking. I can’t remember what the, something like the interwebs or something.

00:54:00 Something that really made us oh

Rodriguez: Information superhighway.

Jacobi: yeah exactly and that was what I expected to be written next so

Rodriguez: Great thanks. Good. Awesome, we got a lot of, yeah it’s good.

Schrup: Yeah you said 2004. 2014.

Rodriguez: Woops.

Schrup: Yeah I wrote that down, too I heard that.

Rodriguez: Goo catch.

Schrup: And the other thing that you may want to, I don’t know if you want to touch on this but reform, if you’re going to do, if we’re going to do one more question reforms not just I mean we look we’re looking at the supreme court because it’s the supreme court. But if there are going to be reforms the court of appeals are, I mean they impact, they only, you know the supreme court only takes 75, 80 cases. But here we have judges serving I mean in our, I’m not going to call out the seventh circuit but you know I mean if we’re going to look at it, the impact is really in the courts of appeals.

Rodriguez: I think that’s great. Let’s definitely do a drop-in to that. I don’t even think that needs a question. You set it up in exactly that way.

Schrup: Okay.

Rodriguez: We just said if we’re going to look at the supreme court so you could say that and then we’ll figure out because yeah, that’s awesome.

00:55:02 But after she does that let me fix the yeah the screw-up that I did on, and if there’s anything, by the way if there’s anything that I omit, I missed, I cut down the intros, but if there’s something you want me to add. I don’t know if you wanted me to add about the I mean I did say about you have a JD and a PhD in political science. I assume that was okay, I just wrote that yeah okay good. So but we’re going to do Sarah’s drop-in yeah.

Male: All right, Sarah you’re up. I’ll give you a countdown. Three, two.

Schrup: I think it’s important to note as well, we’re really focusing on the supreme court probably because they you know really do decide the big issues. But whatever term limits or reforms that we consider for the supreme court should also be in place for the courts of appeals. Because that’s where the action is most, I mean there’s thousands and thousands of people who are impacted by decisions within a circuit. The ninth circuit is huge, the seventh circuit is big and has millions of people who are impacted by it. And because the supreme court only takes 75 or 80 cases a year, there are many important legal issues on which the country is split that will never be addressed by the court.

00:56:08 So to the extent that we have the same concerns about what’s animating term limits or age limits in the supreme court should definitely get as much if not more scrutiny about the lower courts, the courts of appeals.

Rodriguez: Well having opened up that can of worms, do you have any suggestions or ideas about some reform that are pressing or pertinent with respect to the courts of appeals?

Schrup: Well I was only talking basically about the idea that the rationales that apply in the supreme court apply to the courts of appeals.

Rodriguez: Sure.

Schrup: Because the judges there stay you know they have life tenure as well. And they stay but my point is in a way, those decisions are more immediately impactful on people in a way that will last for decades.

Rodriguez: Sure.

Schrup: Because the decisions that are made in a circuit may not ever be visited by the supreme court.

00:57:02

Rodriguez: Well let me follow up on that if I can. We were talking about court packing before and the idea, the disadvantages I think both of you shared the view, skepticism, right about court packing in the supreme court level, wouldn’t happen, shouldn’t happen, etcetera. But there’s been quite a spirited debate over a number of years about addition, additional judges on the courts of appeal, often that is styled as what we needed in order to address the caseload. And that in fact may be the case. But it is a political third rail, right about adding additional judges to the courts of appeal. So let me come back to the court packing issue and see is that, does that have some traction at the lower court, federal level, and should it?

Schrup: I still am not in favor of court packing whether it’s at the supreme court level or at the intermediate court of appeals. I mean one upside of the intermediate court of appeals is you can have district court judges sitting by designation. Appeals are down. I mean I can speak in the seventh circuit anyway.

00:58:00 So I don’t think, we can’t use the excuse that you need more judges to decide the cases. The number of appeals filed is, has gone down steadily over the past several years. I don’t know what the reason for that is but so it’s not about needing more bodies, it’s just about getting at the same concerns that animate why you might want term limits in a supreme court.

Rodriguez: Thanks. All right so I said ’04 and this is about the Reuters

Schrup: The Reuters thing was I think ’14 wasn’t it, yeah?

Rodriguez: ’14, good. What you didn’t have it, you weren’t named in 2004, what were you doing in ’04?

Schrup: I was having babies.

Rodriguez: Okay I’ll make sure I don’t mention that.

Schrup: Don’t mention that.

Rodriguez: Probably not a good, okay. Now would you prefer me to start the intro from her altogether or should I drop in a 2014?

Male: A bigger chunk is always easier to edit in.

Rodriguez: Okay. You want the O’Rourke in or not?

Schrup: No you don’t have to, it’s just my middle name.

Rodriguez: Okay, good.

00:59:00 Got any other maiden names that I should be familiar with or nicknames or something like that?

Schrup: Schruppy.

Rodriguez: Yeah I think I’m not going to go there, but

Schrup: Don’t, yeah don’t go there.

Male: I’ll give you a countdown and a beep. Stand by, five, four, three, two.

Rodriguez: Sarah Schrup is a clinical associate professor of law and the director and founder of the Blum Legal Clinics appellate advocacy center which houses our supreme court clinic. In a 2014 Reuters special investigation, she was named as one of 66 supreme court insiders, an elite group of lawyers across the country with a high rate of success before the court.

00:59:41 File end

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