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on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
By Sebastian Bates
Sebastian Bates is a first-year law student at Keble College, Oxford University.
At some time between 1:52 p.m. and 3:39 p.m. on Wednesday, July 23, 2014, United States Supreme Court Justice Anthony M. Kennedy fielded what may have been one of the most harrowing phone calls of his life.
According to the New York Times, the phone call that Justice Kennedy received was part of a three-pronged strategy. The other two were appeals to the District Court of Arizona and a call to three members of the state’s Supreme Court. These strategies were employed by the lawyers of Joseph R. Wood III in their bid to save their client’s life. 
Kennedy was asked to halt the execution on the grounds that the nearly two-hour long procedure, during which Mr. Wood appeared to gasp repeatedly, violated the Cruel and Unusual Punishment Clause of the Eighth Amendment. Justice Kennedy refused. Mr. Wood died shortly thereafter, at about ten minutes to four. The unusual and distressing circumstances of his death will undoubtedly raise questions about capital punishment, but his lawyers’ attempts to secure a stay of execution likely will provoke curiosity in those unfamiliar with the byzantine procedures of the Supreme Court. Why, reasonable minds may ask, did Justice Kennedy handle the matter? Surely the Court as a whole ought to have been consulted?
For an answer to this question, one must look far back in the history of the American judiciary. All the way, in fact, to Article III of the Constitution, which states that “[t]he judicial power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” 
Thus, when the federal government as we know it came into existence after the ratification of the Constitution, the judicial branch consisted of only one court, the Supreme Court, and only a single judge, the Chief Justice. The position has its roots in Article I, Section 3, which provides, almost in passing, that “[w]hen the President of the United States is tried, the Chief Justice shall preside.”  Congress, however, had the power to expand the federal judiciary in order to make it workable, and it did so by passing one of the most important pieces of legislation in American history: the Judiciary Act of 1789. The Act added four associate justices to the Supreme Court, and erected two subordinate tiers of federal courts – the district courts and the courts of appeal, or circuit courts – in a structure that continues to exist largely unchanged to this day. 
One very significant difference from the modern federal court system was that the circuit courts did not have their own judges. Instead, as Justice Sandra Day O’Connor once wrote, “the Act required that Supreme Court justices sit with local district judges twice a year” in an appellate capacity. This duty “commonly referred to as ‘riding the circuits,’ was intended to keep the Justices in tune with local communities and, for that reason, was considered of paramount importance to the newly created judicial system.” 
Despite the importance attached to it, the duty of “riding circuit” was heartily disliked by most justices, and in 1869, Congress approved a reform of the judicial system and provided for the appointment of circuit court justices.  The “riding circuit” system came to a formal end in 1911.
Today, the Circuit Justices (that is, Supreme Court justices who are assigned to supervise a certain circuit) “no longer sit as judges on appellate panels…[instead], acting alone, [they] have the power to grant stays or injunctions in both civil and criminal cases, to arrange bail before and after conviction, and to provide other ancillary relief, such as extensions of time for various filings and other procedural variances.” 
In accordance with a standing Supreme Court “Allotment Order” dating from 2010, Justice Kennedy serves as Circuit Justice for the Ninth Circuit.  This is in accordance with the tradition that justices be assigned to their home circuits: before being appointed to the Supreme Court by President Reagan, Justice Kennedy served on the Court of Appeals for the Ninth Circuit, and in addition was born, raised, and largely educated in California, which is covered by that Circuit. 
Because Arizona also falls within the Ninth Circuit, it was Justice Kennedy who, of all the Supreme Court Justices, was expected to hear Mr. Wood’s lawyers’ plea for an emergency stay of execution. Had he been unavailable, the lawyers could have gone to the next justice down in the order of seniority (in this case, Justice Clarence Thomas) for a stay, and indeed they could have done so even after he turned them down. In fact, they could have gone through the entire Supreme Court bench, looking for a justice to issue the stay. It would have been unusual, however, for a justice to issue a stay after one of his or her colleagues had already refused to do so.
Once Mr. Wood’s defense team contacted Justice Kennedy, he did have a few options. He could, of course, have granted the stay – but typically, justices will do so only if they believe that Supreme Court will eventually intervene in the petitioner’s favor. As Mr. Wood’s appeal had only recently been rejected by the Court, this possibility was remote. He could have referred the appeal to the whole Court for a decision, as is common in capital cases. Most likely, Justice Kennedy understood that time was limited and therefore chose to make a ruling himself (though, confusingly, the full Court issued an order denying certiorari in Wood’s case on Wednesday, which suggests that the Times may have been incorrect in implying that Justice Kennedy acted alone.) Finally, having decided to turn down the request, Justice Kennedy could have issued an opinion explaining his reasoning.
These opinions, known as “in-chambers opinions,” have a long and somewhat confused history. It is difficult to ascertain when they first began to be issued, and they were not regularly reported until well into the latter half of the twentieth century. It was not until 2001 that a concerted effort, put forth primarily by Cynthia Rapp, an attorney in the Supreme Court Clerk’s office, was made to collect and organize these opinions. Nevertheless, they are an interesting and relevant resource for advocates and students of the Supreme Court alike.
Consider, for instance, the 1961 case of Board of Education of New Rochelle v. Taylor.  Though little-remembered, this case was historic in that it was the first “to impose a constitutional responsibility on a northern school district to desegregate its schools.”  The New Rochelle school district had segregated black elementary students by sending the vast majority of them to a single school, Lincoln Elementary – a move which left the surrounding schools predominantly white.  The school district appealed, and petitioned for a stay of the desegregation order until the appeal could be heard. The case came from the Second Circuit, and thus Justice John Marshall Harlan II was responsible for considering the request; because he away for the summer, the case instead fell to Justice William J. Brennan, Jr., his immediate junior. 
Justice Brennan took the unusual step of ordering an in-chambers oral argument. As his one-time clerk, Professor Frank Michelman of Harvard Law School, later recalled, Justice Brennan welcomed the lawyers into his chambers himself, listened cordially and attentively, and then “effortlessly” wrote an order denying the appeal for a stay.  This surprised the lead counsel for the respondent, Thurgood Marshall, who had misinterpreted Justice Brennan’s politeness towards his opponent as sympathy for the school district’s views. The full Court then denied the district’s appeal in short order, and Marshall quickly thereafter became Justice Marshall: in fact, that oral argument was his last in his long career with the NAACP. 
In this past Term, only one in-chambers opinion was issued. Authored by Chief Justice John G. Roberts, the opinion “on application to recall and stay mandate” in Teva Pharmaceuticals USA, Inc., v. Sandoz, Inc. is only a page long. It is, nevertheless, interesting.
The case, which was heard in October 2014, involves patent protection for Copaxone, a drug used to reduce the frequency of relapse in patients suffering a relapsing-remitting course of multiple sclerosis.  The question before the Court is 
[w]hether a district court’s factual finding in support of its construction of a patent claim term may be
reviewed de novo, as the Federal Circuit requires (and as the panel explicitly did in this case), or only for
clear error, as Federal Rule of Civil Procedure 52(a) requires.
Chief Justice Roberts’ ruling was made, and his opinion issued, in response to an attempt by Teva Pharmaceuticals USA to have him (or the Court, if the Chief Justice chose to refer the issue to the full bench) bring back into force a district court injunction preventing the launch of a generic version of Copaxone.  The Chief Justice refused to do this, writing that while Teva had fulfilled two of his requirements to “obtain such relief” – by convincing the full Court to grant certiorari and by demonstrating that there is a “‘fair prospect’ that the Court will reverse the decision below” – he is “not convinced that [Teva] has shown a likelihood of irreparable harm from denial of stay.” Pointing out that Teva will be able to recover damages from Sandoz if the Court rules in its favor next Term (and thus revives the key Copaxone patent), Chief Justice Roberts found that the “extraordinary relief” Teva sought was “unwarranted,” and denied the application.  Teva did, in fact, receive patent protection for Copaxone, as its appeal was successful in the Court’s January 2015 ruling.
The most fascinating aspect of an in-chambers opinion is that it “offer[s] a unique opportunity to study the reasoning of an individual justice sans input from the rest of the Court.”  It is, admittedly, unlikely that much can be gleaned from Chief Justice Roberts’ single paragraph. That said, we can perhaps draw a few conclusions. For instance, many (including the man himself) identify Chief Justice Roberts as a judicial minimalist. In this light, his order in this case makes sense: rather than interfere with the mandate of the Court of Appeals for the Federal Circuit (which invalidated the district court’s injunction), the Chief Justice allowed the status quo to remain, pending the Court’s eventual resolution of the case. One might say he also showed respect for precedent: about half of the brief opinion was taken up in reciting the standards for relief set in an in-chamber opinion issued in Maryland v. King (an opinion authored, perhaps unsurprising, by Chief Justice Roberts).  A glance at that opinion reveals, interestingly, that Chief Justice Roberts originally adapted his three-pronged test from an opinion by Justice Ruth Bader Ginsburg, who herself cited another of Justice Brennan’s in-chambers opinions.  That Chief Justice Roberts is willing to rely on the reasoning of Justice Brennan – the architect of some of the Warren Court’s greatest victories, and of much of the liberal resistance under Chief Justice Burger – says something about his pragmatism: ultimately, Justice Brennan’s reasoning is used because it works, by clearly and cogently setting out a standard that applicants must meet.
Ultimately, this brief opinion has been forgotten in the tumult of a contentious term. It will not be long remembered – nor should it be. As a brief, even inconsequential piece of legal reasoning emanating from an institution that deals with some of the most important legal issues of our time, it is deservedly set to the side. Nevertheless, this single page allows us a small glimpse into the mind of the Chief Justice of the United States, and hints at a long tradition of Supreme Court administration: a tradition that dates back to 1789 and which was brought to mind, in horrific circumstances, when Justice Kennedy picked up the phone in the early afternoon and was called upon to make what must have been a truly painful decision.
 Erik Eckholm, “Arizona Takes Nearly 2 Hours to Execute Inmate,” New York Times, July 23, 2014, accessed July 26, 2014, http://www.nytimes.com/2014/07/24/us/arizona-takes-nearly-2-hours-to-execute-inmate.html.
 U.S. Const., art. III, sec. 1.
 U.S. Const., art. I, sec. 3, cl. 6.
 An Act to establish the Judicial Courts of the United States. Public Law 73, U.S. Statutes at Large 1 (1789).
 Sandra Day O’Connor, “Foreword: The Changing Role of the Circuit Justice,” Toledo Law Review 17 (1985): 521.
 O’Connor, “The Changing Role,” 523.
 O’Connor “The Changing Role,” 523 – 524.
 Supreme Court of the United States, “Allotment Order,” effective September 28, 2010, accessed July 26, 2014, http://www.supremecourt.gov/orders/courtorders/ALLOTMENTORDER9-28-10.pdf
 “Biographies of Current Justices of the Supreme Court,” Supreme Court of the United States, accessed July 26, 2014, http://www.supremecourt.gov/about/biographies.aspx.
 Board of Education of New Rochelle v. Taylor, 82 S. Ct. 10 (1961) (Brennan, J., in-chambers)
 Frank I. Michelman, Brennan and Democracy (Princeton: Princeton University Press, 1999), 139.
 Seth Stern and Stephen Wermiel, Justice Brennan: Liberal Champion (New York: Houghton Mifflin Harcourt, 2010), 211.
 Michelman, Brennan, 143.
 Stern and Wermiel, Liberal Champion, 213.
 The National Multiple Sclerosis Society, “Copaxone,” accessed July 26, 2014, http://www.nationalmssociety.org/Treating-MS/Medications/Copaxone.
 Petition for a Writ of Certiorari, Teva Pharmaceuticals USA, Inc., v. Sandoz, Inc., No. 13-854
 Application to Recall and Stay the Federal Circuit’s Mandate Pending This Court’s Judgment in No. 13-854, Teva Pharmaceuticals USA, Inc., v. Sandoz, Inc., No. 13-854.
 572 U.S. __ (2014) (Roberts, C.J., in chambers)
 Cynthia Rapp, “Introduction,” A Collection of In Chambers Opinions by the Justices of the Supreme Court, volume I (Washington, DC: Green Bag Press, 2001), v.
 Maryland v. King, 567 U.S. __ (2012) (Roberts, C.J., in-chambers)
 Conkright v. Frommert, 556 U.S. __ (2009) (Ginsburg, J., in-chambers)
Photo credit: Flickr user Supermac1961
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