Inmates have been put on death row for. That was my thinking. As this illustrates, there is no perfect, ideal way to do it. Things are going to be slightly different. Most of us are in the same place. When i look at my story davids story, my story, they look alarmingly similar. You might think we colluded. They often have a very similar lead, a similar first quote. Newspaper work is, in a way a fairly narrow kraft. Wouldnt you concerned, though if we actually differed on the outcome, who won and who lost . The thing is, they are both wrong. What you really found from that that there are seven justices who didnt question the constitutionality of the Death Penalty. What i thought was stirring was that it was a narrow but i thought the end of my lead was unequivocal directive that states could experiment with ways to execute people and the court wasnt going to get in the way of that. Obviously, as you said i this i i put it in the fourth graph that the two of them dissented. I thought it was interesting that the other two liberals didnt. I was specially interested and i dont have a good answer for Justice Sotomayor, who i think of all of the justices is the most questioning of the Death Penalty and whether it is fairly carried out. Maybe it means that it is going to mean more later if she does that. Maybe that would show some sort of momentum rather than the justices that feel that way. I thought that was an interesting part. Now that i hear your reasonings, i would soon put my head in a paper bag than write that piece. I was going to respond to something that bob said. He said, i leave it to the audience to see how different they really are. He was suggesting they might be on the same side. I should mention. I dont write our daily stories the way these reporters do. Lawrence hurley did uz thatoes that for us. I will often write a sub bar or some sort of analysis piece. I did a separate on the senior liberals calling for a reexamination of the Death Penalty. I had to be aware how long i had been covering this. I arer in 1994 that Harry Blackman said, i will no longer tinker with the death. And i was around in the late 80s when thurgood martial and William Brennan dissenting from Capital Punishment saying they categorically were against the that. Thats the last time we have had that. The fact that ginsburg and briar were hinting that they would go that way. They werent saying they were. They said we would like to review it. Justice stephens said in the last lethal injection, case two. It wasnt until he got off the bench that he called for it stronger. Some suggestion an answer to bobs question why not sotomayor and ken began. For 20 years, you are reviewing lastminute requests for stays of execution on vacation, pulled of the opera and having to vote on these things. The liberals would say, there is no rhyme or reason to who lives and who dies. At some point, you would probably get a queasy feeling in the pit of your stomach. I agree with that. Orrin warren kur wrote a piece on that. I thought there was one other thing thatch your attention. Suppose year after year you have been had to approve a lastminute request on some sort of question about an appeal in a Death Penalty case. If you said, there are no grounds for further appeal and then you learn maybe reading in a newspaper or whatever that that fellow was innocent. I speak for myself. I would find it, wow, i sort of feel as a justice, it is our responsibility to get these right. Imagine if you have then learned that you have turned down a lot of appeals for somebody who said we need more money to investigate this or look into that and you said there are no grounds for that sort of appeal he looked at it, read it and turned it down and then learned the person was innocent. If that happened once and then again, i would think, i cant trust the system. Do you want to clear the way to somebody to be actually executed at 11 00 at night when you have had this experience last year and the year before and the year before that that these people were innocent. Thats one of the things that might change your view over time. So speaking, bob, to your question of why Justice Sotomayor didnt join. I wonder. She wrote how what was going to be done to the risprisoners was burning them at the stake. She 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 why 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. It was really nasty and there were really you saw, how deep the divisions are among the justices in this issue. This is the one where they answered each other and kagan brought up the burning from the inside. Alito answered her. They werent waiting for the advocates to say anything. The chief justices findly gave more time to the advocates to a degree thats unusual even for this court. We havent let you talk. So he gave them more time. I think there were some real bad feelings about this case, drug, and issue. I think we will see that more and more. This was a really unusual situation. In january, four of these oklahoma murderers had this appeal there raising this question. One of them a guy named warner, was about to be executed. So on a thursday night they allowed warner to be executed with four dissents. Then, the next week, they essentially granted his case. They granted the case of the three remaining i thought, there is the way to have an unhappy work place. Five allowed the guy to get executed and four granted the case. 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 cases. Did that disappear this year tony . I even remember when it was called the gentlemans fifth. That was before there were any women on the court. Yes, it would be since you need four justices to grant cert and five to grand a stay, if there werent enough votes for a stay someone would come over so that the person wouldnt be executed while his case was going to be heard. You are right. That seems to have disappeared. We dont know why this happened in this case. Some said that maybe the cert papers werent before them. It does. It is not it is not pretty to have somebody executed. Given the green light to the execution and a few days later, they grant cert. Let me ask a slightly more substantive question. Do you think it made any sense for brian and ginsburg to call for people to bring challenges to the Death Penalty to this court . I suppose they know Anthony Kennedy better than any of us. Hasnt he been a complete hard liner on criminal punishment issues since he got to the court. On the Death Penalty, he has been in the lead in cutting back on categories of people and crimes that are Death Penalty eligible. It goes a little to the point that joan made a while ago. Putting this on the agenda is not going to make it any worse. If you can get four votes to put something on the agenda, maybe you pick up the fifth vote, maybe you dont. You probably dont make life ors for ir side. What if your view is, art, that this is a legal challenge four or five years in the making. Who knows who is going to be on the court four or five years from now. It is not going to be something that is going to change in six months. Briar was saying there should be a broader, wellthought out challenge to Capital Punishment across the board. I suppose the question for antiDeath Penalty advocates is, how do you stop some lawyer from somewhere in the country from filing that tomorrow who wants to go to Supreme Court and has a client on death row and feels his obligation to get that up there. I think the answer is probably you cant. That seems like a question for you, art. Yes. There are thoses of lawyers around the country with cases that dont listen to me. Sort of responding to my own question about Justice Kennedy, one thing he did this term that surprised, i think, everyone, was his concurring opinion sort of out of the blue on solitary confinement. Did any of you pick that up and write about it . It is not out of the blue, actually. He has talked about that before. But it was out of the blue in the particular case. It was unusual for the case but it has been a concern of his. Actually, he it might be his interest a little bit in some internationale issues that he has stepped back from some big issues to call attention to some problems. There is an issue where someone ought to bring a case. There is a case in virginia or South Carolina where an aclu attorney told me art 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 kennedy quoted all literary figures saying this is in a fate worse than death. So many people writing separate opinions concurrences, dissents taking some big view thats speaking to a broader legal audience and sort of setting the stage for future cases. Then, it gave rise to a response from Justice Thomas. This wasnt one of his 35 page attacks on the administrative state. It was a paragraph in which he said, these peoples living quarters are much more spacious than their victims. Right. Which struck me as verging on inappropriate. Did any of you express directly or sort of indirectly by quoting someone else opinions about that . I certainly would not judge it inappropriate. He wrote several opinions dissents or concurrences in the Death Penalty case where he went to great length and told story of the victim and what the victims family the devastation of this murder. Thomas view was were deciding here a very abstract sort of ethereal question of an appeal 20 years down the road. Weve sort of scrubbed away the victim and the impact of this horrible murder. I would be the last one to say it is inappropriate to write that. I thought it was a different, important perspective. He included a picture of the victim in one of the cases too, as part of the opinion, which was a departure. Again, i think we are seeing different ways that the justices have decided they are not just speaking to each other but also speaking to the public calling attention to things that are important to them. To your question, art, this is not some piece of legal reasoning that needs an outside perspective. I think the average reader can draw his or own conclusion about the appropriateness of the remark. You wrote a story about ten days ago about the justices styles when they announced decisions. You said, for some, it is an art form. Can you tell us a little more about what you wrote and why that was a worthwhile story . Well when you are up there, the nine of them have a distinctive approach to how they want to read their opinion. Actually Justice Thomas doesnt speak from the bench. Sometimes he will make a couple of jokes. So you get a little bit of his personality in it. The justices are a group that have really traveled a long way from the days of Justice Byron white who used to read like a sentence and then say, and you can find it in the opinion when you read it. They tell more of a tail. Justice kagan likes to talk about the facts we have in the case. Both she and the chief swrus it is have sort of a nice come here and listen to my story way of approaching it for the spectators in the courtroom. Justice guns Justice Ginsburg takes a lot of time with her reading. She hands out the rendition for what she says to those of us that are reporters so we can quote directly from it. It adds to think of the sort of suspense that is in the room. We dont know what opinions are coming on what day. When the chief says justice spitzer will now announce the opinion in 1442. We are like oh my gosh, are we going to see what direction it will take by virtue of who is going to read it . That happened in the texas housing case when the chief said, it is going to be justice Anthony Kennedy. He is right in the middle. It could have gone either way. The suspense was heightened by which side he would take. That was an unusual reading for him to say, im going to essentially site with the liberals and uphold this expansive reading of the fair housing law. Some of these justices play along to make it more of a tale getting to the culmination, the climax at the end with whether they have 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 would 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 audio of opinion announcements they send to siberia. They are not public until months later. When the National Archives processes them. The reason for that is fairly clear. Past and current justices have said that sometimes, they hear a fellow justice announce an opinion that they were a part of and they think gee whiz, i didnt agree to all that stuff. 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 you know 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 the audio, to be out there quickly 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 of when they announce them as Justice Alito began one. I cant remember the defendants name. He said, the defendant said 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 bloodhound to know how that one is going to come out, i dont think. There are even instances that tony was saying that some justice who was listening to the announcement said, 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 had signed on to. It was about synthetic drugs called bath salts. He said Something Like, 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 effect what you cover and how you cover it . Well not as much as you might think. My previous newspaper was usa today. So there is sort of a dramatic difference between the coverage there and where i am now, mostly in terms of length. When i first started at usa today, even before john went there, a 600 word story was really long. That was so you would summarize a Supreme Court decision in 600 words or 400 words. 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 securitys law or criminal defense lawyers dont know about arissa. So you still have to use plain english as much as you can. I can use habeas corpus and not have to define it in every story. So there are some advantages. What was the oddest story you had a chance to write this year . I think it was the saga of Howard Shipley, a lawyer with fully and laudner the first time in years when the court threatened to discipline a lawyer for the cert petition that he wrote. To make a long story short Howard Shipley filed a petition in a patent case which thats already a challenge to make it understandable. It turned out that his client, a german industrialist, who was not an english speaker, insisted on writing the brief, the petition himself, when the lawyer said, we really need to change this, he said no. The lawyer decided to go ahead and file the petition anyway. It was complete gibberish. It was almost illegible. There were acronyms and all sorts of things you would never want to subject a generalist court to. The court threatened to discipline him for it. To make a long story short Howard Shipley hired paul clement who was able to fend off the discipline and the Supreme Court discharged the show cause order but they did issue a warning to lawyers that they really have to use plain english in their petitions and they also cant delegate the tasks to their client. It seemed like an incredible story of a nightmare client telling the lawyer you must do it this way. Other lawyers said the client doesnt rule. The lawyer has to ethically file the petition or file whatever document is understandable and you cant just let the client rule. I also had the chance to interview the client. I emailed him on the off chance he might be willing to talk to me. We met in person at nashville airport. He was on his way to skrerm any. He said how terribly sorry he was, he was never going to write another brief again. I dont remember this happening before but it happened this term was the Court Granted a cert petition for a guy named chen suing the city of baltimore. They are very proud of the fact that they have someone to go over all the cert petitions and check them out. They grant less than 1 out of 100. So they grant chen and no one was able to find mr. Chen for months. They couldnt find him. I would have thought wup clue was. He said he bought his house in baltimore for 900 and they knocked it down without telling him. I know prices are not high in baltimore but 900 . To make a long story short, they couldnt find him. By the time the argument came they let go the case. They werent having mr. Chen back after all that. I talked to a lawyer for one of the legal clinics who said we should have just said,we were representing him and taken the case. The guy was gone.