So i think that analysis is why. My piece is sort of in the same order. Its a significant enough question can they use a particular execution drug. It did give rise to a very interesting and bitter dispute between the five jusseses. But the fact that we have as we do periodically have senior more liberal justices say im not doing this any more, im not going to tinker with the machinery of zets any more is the more lasting piece of this particular decision. So i think thats something you want to put up why. And then why i endd with alito. I think the weight of the beast has to acknowledge what the majority is doing. In this case he said something quite succinct that moved off of description of the crimes for which these oklahoma inmates have been put on death row for. But as this illustrates theres no perfect ideal way to do it. Things are going to be slightly different. And most of us are in pretty much the same place. When i look at my story in the morning and davids story and bobs story for most stories, they look alarmingly similar. They often have a very similar lead, similar first quote. Newspaper work is in a way a fairly narrow craft. Wouldnt you be concerned if we actually differed on the outcome who won and who lost . The thing is theyre both wrong. Because what you really found from that is there are seven justices who didnt question the constitutionality of the Death Penalty. What i thought was stirring in this was it was a narrow but i think the end of my lead was unequivocal directive that states could experiment with ways to excute people and the court wasnt going to get in the way of that. I do think obviously as you said i think i put it in the fourth graph that two of them dissented. I thought it was interesting that the other two liberals didnt. I was especially i want rested and i dont have a good answer for Justice Sotamayor who i think is the most questioning of the Death Penalty and whether its fairly carried out. Maybe it means that its going to mean more later if she does that. Maybe that would show some sort of momentum rather than its just a minority of the justice whose feel that way. But i thought that was an interesting part of it, too. Now that i hear your reason ing sooner put my head in a paper bag. I was going to go back to something bob said. He made a point about the difference between what they were saying and what sotamayor was saying. He says i leave it to the audience to see how different they really are. I should mention that i dont write our daily stories the way these reporters do. I will often write a side bar or some sort of analysis piece. I did a separate on just these two senior liberals calling for a reexamination of the Death Penalty. I did have to be aware of how long ive been covering this thing because i remember when Harry Blackman said i shall no longer tinker with the machinery of death. I was around in the late 80s when it was justices marshall and brennan just alone always dissenting from Capital Punishment saying that they were against that. And thats the last time weve had Something Like that. So the fact that ginsberg and prier were hinting they would go that way. They didnt say they were. They were saying we would like to review it. But Justice Stevens said it in the last case, too. But it wasnt until he got off the bench that he called for it more stronger. But some of that suggests an answer to bobs question. I think some of it is that if for 20 years youre reviewing all the time last minute requests for stays of execution on vacation, pulled out of the opera, having to vote on these things and seeing that the liberals would say theres no rhyme or reason to who lives and who dies. At some point you probably get a queasy feeling in the pit of your stomach. I agree with that. Orerin kerr vote a really good piece about the sort of wereieness. I thought there was one other thing that would catch your attention. Its the issue i raised earlier. Supposed year after year you have had to approve lastminute requests or some sort of question about an appeal in a Death Penalty case and you said theres no grounds. And then you learn maybe reading in a newspaper whatever that that fellow was innocent. I would be i think, just to speak for myself, i would find it wow. Because i feel as a justice its our responsibility to get these right. Imagine if you then learned that youve turned down a lot of appeals for somebody who said we need more money to investigate this and you said theres no grounds for that sort of appeal. Youve turned it down and then you learned the person was innocent. I would have thought i cant if that happened once and then again i think i cant trust the system. Do you want to clear the way to somebody to be actually excuted at 11 00 at night when youve actually had the experience last year and the year before that that some of these people were innocent . So i think thats one of the things that might change your view over time. To your question of why Justice Sotamayor didnt join, i wonder she wrote such a strong dissent on the marriage about how what was going to be done to these prisoners with more or less burning them at the stake. That she maybe didnt want to distract attention from that message by putting her voice with the other two on this broader question. Does that make any sense . It could be. I dont know she wouldnt. This issue was the oral argument in this case was the most contentious ive seen in my short relative to everyone else time at the court, was really nasty. And there were really you saw how deep the divisions are among the justices on this issue. This is the one where they answered each other and kagen brought up the burning from the inside and alito answered her. They werent waiting for the advocates to say anything. And the chief justice finally gave more time to the advocates saying to a degree that its unusual even for this court we havent let you talk. And so he gave them some more time to talk. And so i think there was some real bad feelings among the justices about this case, about this drug. And about this issue. And i think well see that come up more and more. And do you remember how it came up. You know this, bob. This was a really unusual situation. Because in january four of these murderers had this appeal there raising this question. One of them, a guy named warner, was about to be excuted. So on the, whatever, thursday night, they allowed warner to be excuted with four dissents. Them, a guy named then the next week they essentially granted his case. They granted the case of the three remaining murderers. I thought, boy, theres a way to have an unhappy workplace when five of you let the guy get excuted and four of you then want to granted the case. So you could tell from the beginning there was a real divide on this one. Didnt there used to be a custom of a courtesy fifth vote for a stay in these Death Penalty cases . They used to call actually i even remember when it was called the gentlemans fifth. That was before there were any women on the court. But, yes, it would be since you need four justices to grant sert and five to grant a stay, if there werent enough votes for a stay somebody would come over so that the person wouldnt be excuted while his case was going to be heard. And youre right, that seems to have disappeared. We dont know exactly why this happened in this case. Some people have said that maybe the papers werent properly before the sert papers werent before them. But it does, its not its not pretty to have somebody excuted while you know, them giving the green light to the execution and then a few days later they grant sert. Used to let me ask a slightly more subtantive question. Do you think it made any sense for breyer and ginsberg to essentially call for people to bring challenges to the Death Penalty to let me . I suppose they know Anthony Kennedy better than any of us but hasnt he been a complete hard liner on criminal punishment issues . On the Death Penalty hes been in the lead on categories of people and categories of crimes that are Death Penalty eligible. It also goes a little bit to the point joan made a wile ago that the status quo is we have the Death Penalty. Putting this question on the agenda is not going to make that any worse from a liberal perspective. So if you can get four votes to put something on the agenda maybe you pick up the fifth vote, maybe dont. A liberal but you probably dont make life worse for your side. But what of the view that this is a legal challenge that would be four, five years in the making, that who knows who is going to be on the court four or five years from now . So its not something that changes in six months but breyer was basically saying there should be a broader wellthought out challenge to Capital Punishment across the board. I suppose the question for ants Death Penalty advocates is how do you stop some lawyer somewhere in the country from filing that challenge tomorrow who wants to go to the Supreme Court and has a client on death row and feels its an obligation to get that issue up there . I think the answer is probably you cant. It seems like a question for you, art. Yes. Well we tried. But theres thousands of lawyers around the country and they dont listen to me. But sort of responding to my own question about Justice Kennedy, one thing he did this term that surprised i think everyone was his concurning opinion sort of out of the blue on solitary confinement. Did any of you pick that up and write about it . Its not out of the blue, actually. Hes talked about that before. But it was out of the blue in the particular case. Actually it might be his issue a little bit that he has stepped back some to call attention to problems. I thought that was an example of that even though it might not have been the best case for it. And it did get attention in the media beyond just the case itself. Because theres an issue where someone really ought to bring a case. If you know kennedy is leaning your way there may be five votes. There is apparently a case somewhere in virginia or South Carolina and one of the aclu attorneys told me is that in a lot of these states people are automatically sentenced to solitary confinement on death row. In other words, you dont have to do anything bad or you dont have to be particularly judged to be particularly dangerous. Its just like an automatic matter. And kennedy quoted all sorts of literary figures as saying this is in effect a fate worth than death. So i thought it was a really interesting that is one of the things about this term that i dont recall any like so many people writing separate opinions concurrences dissents taking some big view that speaking really to a broader legal audience. And sort of setting the stage for future cases. And then it gave rise to a response from Justice Thomas and this wasnt one of his 35 page attacks. It was a paragraph that said these peoples living quarters are much more spacious than their victims. Which struck me as verging on inappropriate. But did anybody, did any of you express directly or sort of indirectly by quoting someone else opinions about that rejoineder . He wrote several opinions where he went at great length to told the story of the victim and what the victims family, the devastation of this murder. Thomas view was were deciding here a very abtract sort of etheerl question of an appeal 20 years down the road and weve sort of scrubbed away the victim and the impact of this horrible murder. I thought it is a different important perspective. He include add picture of the victim in one of the cases, too, as part of the opinion. Which was a departure. But its, again, i think were seeing different way that is the justices have decided theyre not just speaking to each other but also to the public calling attention to things that are important to them. To your question this is not some piece of legal reasoning that needs an outside perspective. I think the average reader can draw their conclusion about the appropriateness of the remark. Joan you wrote a story about ten days ago about the justices styles when they announce decisions. For some its an art form. Tell us a little more about what you wrote and why that was a worthwhile story. Well, when youre up there, the nine of them have a distinct approach to how they want to read their opinion. And actually Justice Thomas, who you observed earlier, doesnt speak from the bench. Sometimes hell make a couple jokes. So you get a little of his personality in it. And the justices as a group have traveled a long way from the days of justin byron widen would read from a sentence and say you could read it. Justice kagen really likes to talk about the facts behind the case and both she and the chief justice have sort of a nice come here and listen to me, listen to my story, way of approaching it. Justice ginsberg takes a lot of time with her reading. Shes another one that hands out the rendition of what she says from the bench so we can quote directly from it. It adds to just think of the sort of suspense. We dont know what opinions are coming on what day. So when the chief says justice spitzer will now announce the opinion in 4 42 youre like oh my gosh. Are we going to see what direction will it take just by virtue of who is going to read it . That happened in the texas housing case when we knew the chief says its going to be Justice Kennedy. Hes right in the middle it could have gone anyway. But the suspense was heightened. That was an unusual reading for him to say im going to side with the liberals and uphold this expansive reading. So its they kind of some of these justices sort of play along to make it sort of a tale getting to the climb max at the end with whether theyve said yes or no. Just a post script to what joan was saying about the opinion announcements. From what she said i think we could all agree that it wulled sure be nice for the public to be able to hear them or those opinion announcements. But the court has a special disdain for that because they sometimes allow the audio of the oral argument to be released fairly soon afterwards but the aud yo of opinion announcements they send to siberia and theyre not public until months later. When the National Archives processes them. And the reason for that is fairly clear. Past justices and current justices have said that sometimes they hear a fellow justice announce an opinion that they were part of and they think gee whiz, i didnt agree to all that stuff that this person is the opinion announcements are not distributed to the other justices in the majority. So that sometimes justices will sort of put their own spin on their majority opinion and they will go off script sometimes. And justices then end up afterwards saying that if i had known what he or she was going to say, i wouldnt have joined the majority. So i think for that reason they dont want opinion announcement audio to be out there quickly as and be treated by us as the sort of official summary of what the opinion is. I was just going to say that sometimes there is no suspense whether they announce them as Justice Alito began one this time i cant remember the defendants name. But he said that the defendant said that he would take care of his girlfriends two children when he sent her to be a prostitute in washington, d. C. It doesnt take a blood hound to know how that ones going to come out, i dont think. Actually, whenever the announcement Justice Alito has an opinion in a criminal case. That was certainly clear in the Death Penalty cases. There are even instances, tony was saying that some justice is listening to the announcement and thinks i didnt sign on to that. There was an instance where Justice Thomas was announcing his own opinion and he came across a line that he wasnt sure he signed on to. It was about synthetic drugs and he said i have no idea what that sentence means. So tony at the National Law Journal you write for an audience of lawyers. How does that affect, how does that make a difference in how you cover the court from the others . How does that affect what you cover and how . Not as much as you might think. My previous newspaper was u. S. A. Today so there is sort of a dramatic difference between it and the coverage there and where i am now. Mostly in terms of length. When i first started at u. S. A. Today, this is even before joan went there 600 word story was really long. That was so you would summarize a Supreme Court decision in 6700 words or 400 words or and thats a challenge. But still, even now that my audience is mainly lawyers at the National Law Journal, not every real estate lawyer knows about Securities Law or criminal defense lawyers dont know about erissa. So you still have to use plain english as much as you can. And although i can sort of i can use habeas corpus and not have to define it in every story, so there are some advantages. What was the other story you had a chance to write this year . I think it was the saga of howard shiply, a lawyer with foley and lard anywhere. It was the first time in years where the court threatened to discipline a lawyer for the sert petition that he wrote. And to make a long story short, this is howard shiply filed a petition in a patent case which thats already a challenge to make understandable. But it turns out that his client his client, a german industrialist who was not an english speaker, insisted on writing the petition himself. And when the lawyer said, you know, we really need to change this he said no. And the lawyer decided to go ahead and file the petition anyway. And it was complete jib risch. It was almost it almost ill legible of acronyms and all sorts of things you would never want to subject a generalist court to. And the court threatened to discipline him for it. Make a long story short, he hired paul clement who was able to fend off the discipline and the Supreme Court discharged the show cause order and but they did issue a warning that th