The Next Doorman

Page 1

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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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