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In the wake of recent high-profile decisions by grand juries not to indict, I have seen chatter about the notion of grand jury nullification. That is, grand juries decide that a prosecution is unfair or unjust, and vote not to indict. Historically, this had been one of the functions of the grand jury, and the petit jury as well, to serve as a check on illegitimate prosecutions. Though, prosecutors fight the notion of nullification, and refuse to allow a nullification instruction to be provided to jurors.

I have also seen chatter about the related concept that the prosecutors threw the indictment, by presenting far too much evidence in favor of the defendant, in hopes that the grand jury will not issue a true bill. The phrase “prosecutorial nullification” has been used to refer to a decision by a prosecutor not to even seek an indictment. Though, perhaps a species of that decision is to present a case where the prosecutor knows the jury will not issue a true bill, under the auspices of presenting all the evidence. Both may be described as attributes of the ever-present “prosecutorial discretion.”

These two types of “prosecutorial nullification” have a lot of salience to contemporary debates over the failure of Attorneys General to defend laws in court. One approach, would be for the AG to defend the law half-heartedly, knowing that his defense will lose. Or, the AG can flat-out not defend the law at all. I have been really critical of the latter approach, but I acknowledge the former approach would be even worse. At least let someone give the law a good defense.

But, the inevitable problem arises in the context of defending the constitutionality of statutes–usually no one but the government has standing to defend it. In states where the Governor (who arguably may or may not have standing) agrees with the AG’s prosecutorial nullification, the law will fall without any defense. (Such as the case with the Pennsylvania AG, who previously did not defend the state’s marriage law, refusing to defend a gun law).

Perhaps this recognition of prosecutorial nullification, as understood in the context of grand juries, should change the way we look at standing for purposes of defending unwanted laws.

Something is up with Alderson Reporting Company. Already this term they have referred to the senior associate Justice as “Judge Scalia” and “Mr. Scalia.”

Now we have “Justice Ginsberg.” From Department of Transportation v. Association of American Railroads:

R.B.G is perhaps not as notorious she she thinks!

H/T Daniel Rice.

Joan Biskupic and her team at Reuters have compiled a fascinating and detailed analysis into the elite Supreme Court Bar.

A Reuters examination of nine years of cases shows that 66 of the 17,000 lawyers who petitioned the Supreme Court succeeded at getting their clients’ appeals heard at a remarkable rate. Their appeals were at least six times more likely to be accepted by the court than were all others filed by private lawyers during that period. …

They are the elite of the elite: Although they account for far less than 1 percent of lawyers who filed appeals to the Supreme Court, these attorneys were involved in 43 percent of the cases the high court chose to decide from 2004 through 2012. …

Of the 66 most successful lawyers, 51 worked for law firms that primarily represented corporate interests. In cases pitting the interests of customers, employees or other individuals against those of companies, a leading attorney was three times more likely to launch an appeal for business than for an individual, Reuters found.

Joan was able to talk with 8 of the 9 Justices. With the exception, al of the Justices “embraced” the specialty bar.

Chief Justice John Roberts declined to comment on the Reuters analysis. But exclusive interviews with eight of the nine sitting justices indicate that most embrace the specialty Supreme Court bar. To them, having experienced lawyers handling cases helps the court and comes without any significant cost. Effective representation, not broad diversity among counsel, best serves the interests of justice, they say.

Scalia:

Justice Antonin Scalia, also a conservative, acknowledged that in some instances he will vote against hearing a case if he fears it will be presented poorly and he expects another opportunity to rule on the issues the case presents. “I have never voted to take a case only because a good lawyer was on it,” Scalia said. “But I have voted against what would be a marginally granted petition when it was not well presented…. where the petition demonstrates that the lawyer is not going to argue it well.”

Kennedy:

“They basically are just a step ahead of us in identifying the cases that we’ll take a look at,” said Justice Anthony Kennedy. “They are on the front lines and they apply the same standards” as the justices do. …

A lawyer’s arguments can affect the outcome – not often, but often enough, said Justice Anthony Kennedy. The swing vote in many high-profile cases, Kennedy said a lawyer can change minds by framing a case or issue in ways the justices hadn’t considered.

“I go in with an inclination, underscore inclination,” Kennedy said. “Not a two-week sitting goes by that a justice doesn’t say, ‘I went in with this idea,’” and then heads in a different direction.

 

Thomas:

“Any number of people will vote against a cert petition if they think the lawyering is bad,” said Justice Clarence Thomas, a conservative. He said such decisions stem from the justices’ desires to ensure that both sides have strong representation. …

“The problem is when you have a tough case, you need really good lawyers to tee it up, to make the best arguments,” said Justice Clarence Thomas. “That’s what you are looking for.”  …

So familiar is Olson that justices referred to him by his first name in interviews. As Thomas put it, “You want to hear what Ted has to say.”

 

Ginsburg:

“Business can pay for the best counsel money can buy. The average citizen cannot,” Ginsburg said. “That’s just a reality.”

“If you know you have a solid beginning, two people making the best argument on both sides, that makes it less anxious for you,” said Ginsburg, the senior liberal on the court.

Breyer:

Justice Stephen Breyer values their understanding of how the high court operates. “The Supreme Court is not the CIA,” Breyer said. “I want people to know how the court works.”

Alito:

Measuring the impact of these elite attorneys on how the court ultimately rules is difficult. Many factors affect how justices interpret the Constitution and federal statutes. “It’s not like we’re judging a moot court: Which lawyer is better?” said Justice Samuel Alito. “It’s the case, not the lawyer.”

Kagan and Sotomayor:

The rise of the Supreme Court specialty bar is not universally embraced by the profession. But it is by the justices. Two, in particular, lamented the refusal of some criminal defense lawyers to turn over high court cases to specialists.

“It is as if they are arguing with one hand tied behind their back,” Kagan said.

Said Justice Sonia Sotomayor: “I think it’s malpractice for any lawyer who thinks this is my one shot before the Supreme Court and I have to take it.”

 

Stevens:

As retired Justice John Paul Stevens explained, “They earn respect by their performances. And because they have respect, they are more successful. I am not aware of any downside.”

The makeup of the elite bar is quite homogenous:

Among the 66 leading lawyers, 31 worked as a clerk for a Supreme Court justice; in that role, they wrote memos for the justices that summarized petitions and highlighted cases that might be worth hearing. Twenty-five worked in top posts in the U.S. Office of the Solicitor General, whose lawyers represent the federal government before the court.

We do learn this bit about Neal Katyal, who was not selected as SG:

Katyal later joined the Obama administration as the principal deputy solicitor general in 2009 – the same title, he notes, that Roberts had in the George H.W. Bush administration. After Kagan left as solicitor general to become a justice in 2010, Katyal tried for the top job but lost to the more experienced Donald Verrilli.

“It was probably the hardest professional thing that I have gone through,” Katyal said. Still, he said, he quickly realized the opportunities that a Supreme Court specialty afforded.

“I had calls from a bunch of law firms,” he said. “So many sweet things happened.”

Attorney General Eric Holder hosted a farewell party for him, he said, and Justices Roberts, Breyer and Kagan attended.

Now, I want to visit RBG’s new years party:

When Olson married in 2006, Justice Kennedy and retired Justice Sandra Day O’Connor were among the guests at the ceremony in Napa Valley, California. Olson and Scalia regularly attend an intimate New Year’s Eve dinner. The location: Justice Ruth Bader Ginsburg’s apartment at the Watergate complex. Last year, Kagan went, too.

 

Today’s orders had a 1-2 punch for a case with a complicated name. First, the Court denied the petition filed by Shipley in Sigram Schindler Beteiligungsgesellschaft MBH v. Lee, Acting Director, Patent & Trademark Office, 14-424. The Court had previously announced it would be distributed for the 11/25 conference, but then a few days before rescheduled it for the 12/5 conference. Today it was formally denied.

But, the second punch came at the end of the order’s list.  The Court sua sponte ordered the counsel of record to show cause why he shouldn’t be sanctioned for his just-denied cert petition!

D-2827       IN THE MATTER OF DISCIPLINE OF HOWARD NEIL SHIPLEY
                 Howard Neil Shipley, of Washington, D.C., is ordered to show cause, within 40 days, why he should not be sanctioned for his conduct as a member of the Bar of this Court in connection with the petition for a writ of certiorari in No. 14-424, Sigram Schindler Beteiligungsgesellschaft MBH v. Lee.

Judge Posner explains to Ron Collins what we knew all along:  the rules of professional responsibility aren’t that important for him.

Question: Insofar as the teaching of legal ethics is concerned, is teaching the rules of professional responsibility and the cases interpreting them enough in your opinion? Or should some significantattention be devoted to familiarizing law students with some of the great works of the Western Philosophical tradition? – say, to Plato’s Gorgias or Aristotle’s Rhetoric (see here at p. 1924)

Posner: I don’t consider instruction in legal ethics an important part of legal education. Aristotle’s Rhetoric is pertinent to the rhetorical dimension of legal practice, rather than to legal ethics. Gorgiascan be read as critical of lawyers’ tricks, though there were no lawyers as such in fourth century b.c. Athens.