For all the talk of Chief Justice John Roberts Jr. slowly guiding it rightward, the Supreme Court still belongs to Justice Anthony Kennedy.
That was the consensus this afternoon among a panel of the country's top Supreme Court advocates, hosted at the Georgetown University Law Center by Legal Times and The National Law Journal.
The panel, moderated by the NLJ's own Tony Mauro, touched on topics ranging from life at the Solicitor General’s Office, where panel member Neal Katyal recently became deputy solicitor general, to the departure of Justice David Souter.
When it came to the topic of which justice dominated the court this term, the group was totally in concert.
Roberts and his fellow conservatives are "going just as far to the right, and just as fast, as Justice Kennedy will let them," said Pamela Harris, executive director of Georgetown’s Supreme Court Institute, who while of counsel at O'Melveny & Myers this year argued the First Amendment case Pleasant Grove City v. Summum.
Gregory Coleman, partner at Austin, Texas’ Yetter, Warden & Coleman, noted that the justices were still catering to Kennedy’s vote, sometimes blatantly. Once during oral arguments, he said he has noticed Justice Stephen Breyer asking hypothetical questions lifted straight from an earlier opinion by Kennedy. .
Panel members also commented on the evolving relationship between Kennedy and Justice Samuel Alito Jr. The two have joined their opinions in cases including District Attorney’s Office v. Osborne, where the Court ruled that criminal defendants did not have the right to DNA testing, and Arizona v. Gant, in which it found that police had unconstitutionally searched a suspect’s car.
“There seems to me to be something going on there that’s very interesting to watch,” said Kellogg, Huber, Hansen, Todd, Evans & Figel partner David Frederick, who won major pre-emption cases in Altria Group Inc. v. Good and Wyeth v. Levine.
Alito also seems to be coming into his own as a force in the realm of criminal procedure cases, Harris said. She said the former U.S. Attorney turned judge has a greater depth of knowledge and interest in the subject than many of his colleagues.
Katyal, who argued against Coleman in the Voting Rights Act Case, prefaced his remarks by commenting that, as a government lawyer, it was his job “to make as little news as possible.” He said the transition from Georgetown, where as a professor he argued the landmark Guantanamo Detainee case Hamdan v. Rumsfeld, to the SG’s office was “frankly pretty rough.”
He said he has gone from having months to prepare for a case, to first seeing briefs a week beforehand. But he added that the “quality of work product is literally breathtaking,” especially given that the office operates on a little more than $10 million a year.
The full panel also paid tribute to Justice David Souter, who they described as an "incisive" questioner, whose unfailingly polite tone could often land lawyers into trouble.
“One of the problems advocates had is that his questions sounded so nice that they wanted to agree,” Coleman said, earning laughs from the crowd.
The panel members also listed off a number of cases they were keeping their eye on for the coming term. Frederick highlighted two cases in which he is involved, Jones v. Harris Associates and Merck & Co. v. Reynolds, which involve the rules governing of mutual funds and the way companies are alerted when they violate Securities and Exchange Commission rules. Katyal pointed to U.S. v. Stevens, a case which deals with the sale of videos depicting animal cruelty. Cases involving Miranda rights and material support of terrorism also came up.