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COURT REPORTER
The Next Doorman [by James Kilpatrick] When the Senate confirms John Roberts’ nomination to the Supreme Court — as it surely will confirm him next month — the high court will have acquired a handsome, literate and well-mannered, ah, doorkeeper. Welcome to the club!
Among the court’s cherished traditions is an
sin. Thomas wrote for a unanimous court. He
unwritten rule: When the justices meet pri-
began with an electrifying lead:
vately after oral argument, the newest justice
restrict the act’s application?” I was sojourning in Sarasota when Justice
minds the door. Justices Clarence Thomas
“This case requires us to determine the
Breyer thus wowed the courtroom crowd,
and Ruth Bader Ginsburg have served admi-
scope of the statutory prohibition on awards
and cannot report the reaction. It probably
rably in times past. Justice Stephen Breyer
of ‘punitive damages’ in cases brought
amounted to wild acclamation.
has held the unpaid post for the past 11
against the United States under the Federal
years. It’s time for a change.
Tort Claims Act, 28 U.S.C. 2671-2680.”
For John Roberts, now a judge on the Court
Kind of grabs you, right?
he will have a hand in building landmarks of
of Appeals for the District of Columbia, el-
In December 1993, Justice Ginsburg an-
the law. For example, he will join in decid-
evation to the Supreme Court will be less of
nounced her maiden opinion in John Hancock
ing Illinois Tool Works v. Independent Ink
a change than most observers imagine. He’s
Mutual, etc., v. Harris Trust & Savings. She read her opening paragraph aloud. Everyone in the courtroom, including Clerk Bill Souter, fell fast asleep. She explained:
Ah, well. During the coming term, when Roberts moves up from judgeship to justiceship,
already been a drudge. There is a popular misconception that the high court sits on Olympus and hears only Olympian cases — abortion, free speech, eminent domain, Ten Commandments and stuff like that.
Inc. The question is, under the Sherman Act, must a plaintiff prove as part of its affirmative case that defendant possessed market power in a relevant market for a tying product?
“This case presents an issue of statutory construction — whether the fiduciary stan-
Then the newcomer must stay awake for
Au contraire! During the term that begins in
dards stated in the Employees Retirement
argument in Unitherm Food Systems Inc.
October and ends in June, the court will hear
Income Security Act of 1974 (ERISA) govern
v. Swift-Eckrich Inc. Here he will be called
argument in about 80 cases. Ten of these will
an insurance company’s conduct in rela-
upon to decide, “To what extent, if any, may
command huge public interest. Another 10 or
tion to certain annuity contracts. ... Our task
a court of appeals review sufficiency of evi-
15 will draw a crowd to First Street. And the
is to determine the bounds of a statutory
dence supporting civil jury verdict when party
rest? Except for the lawyers, their clients,
exclusion from ‘plan asset’ categorization, an
requesting review made motion for judgment
assorted functionaries and we ink-stained
exclusion Congress provided for ‘guaranteed
as matter of law before submission to jury,
wretches of the press, the place belongs to
benefit policies.’”
but neither renewed that motion under Rule 50(b) after jury’s verdict, nor moved for new
the tourists. In January 1995, Justice Breyer made his The newest justice will have to endure the
trial under Rule 59?”
debut with the court’s 7-2 decision in Allied
same kind of high-toned hazing endured by
Bruce Terminix Corp. v. Dobson. He began
Hey, John! Are you sure you really want this
those who have gone before. That is, as long
with a rousing summation:
job?
court’s opinion in cases best identified as
“This case concerns the reach of Section 2
(Letters to Mr. Kilpatrick should be sent by
dogs.
of the Federal Arbitration Act. That section
e-mail to kilpatjj@aol.com.)
as he’s No. 9 he will be assigned to write the
makes enforceable a written arbitration proThree months after he joined the court as
vision in ‘a contract evidencing a transaction
COPYRIGHT 2005 UNIVERSAL PRESS SYN-
its most junior member, Justice Clarence
involving commerce.’ Should we read this
DICATE
Thomas wrote his first opinion. The case
phrase broadly, extending the act’s reach to
This feature may not be reproduced or dis-
was Shirley M. Molzof, etc., v. United States.
the limits of Congress’ Commerce Clause
tributed electronically, in print or otherwise
It involved a veteran who died of careless
power? Or, do the two underscored words
without the written permission of uclick and
treatment at a veterans’ hospital in Wiscon-
— ‘involving’ and ‘evidencing’ — significantly
Universal Press Syndicate.
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