On November 12, 2025, Rep. Adelita Grijalva (D-AZ) was sworn into office, fifty days after she won a special election to fill the seat of her late father, Raúl Grijalva (D), who had died earlier in the year. In this Congress Report, Deborah Kalb examines the fifty-day period between Grijalva’s election on September 23 and her swearing-in by House Speaker Mike Johnson (R-LA), which marked a modern-day record. During much of that time, from October 1 through November 12, the federal government was shut down, and Johnson opted to keep the House—already in recess since September 19—out of session. Swearing-In Traditions The swearing-in of new members of Congress is a tradition dating back to the early days of the United States. Initially, according to the House historical office, the founders were divided over whether taking an oath—something officials had done during colonial times when they swore allegiance to the British king—was appropriate for their new country or whether it was unnecessary and should be jettisoned. The founders ultimately opted to include an oath for federal and state officials in the Constitution, specifying the exact wording of the presidential oath. The first Congress produced the exact wording for the oath for other officeholders, under which they swore allegiance to the Constitution. The wording of the oath of office went through some changes over the centuries, including in the post-Civil War period, but a version enacted in 1966 is still in effect today. Most members of the House are sworn in as a group, at the start of a new Congress in January, following their election in November. The Speaker of the House performs the swearing-in. For many years, members were sworn in by House delegation, but Speaker Nicholas Longworth (R-OH) decided to institute a House-wide swearing-in ceremony in 1929. The delegation method returned after that, but Speaker William Bankhead (D-AL) reverted to Longworth’s method in 1937, and that system has remained in place. Since the late 1940s, members also sign a written oath. Members who win special elections are sworn in individually, generally soon after they win election. According to an analysis by Ballotpedia.org, there were sixty-six special elections from the 113th to 118th Congresses (January 2013 through January 2025), and the median length of time between election and swearing-in was seven days. The longest lapse of time during this period, thirty-five days, involved the election of Rep. Jimmy Gomez (D-CA) in 2017. Gomez’s camp cited a “family conflict” for the delay, while Republicans claimed Gomez might be delaying for political reasons. Grijalva’s Delayed Entry For her part, Grijalva, who became the first Latina congresswoman from Arizona, was eager to be sworn in. Her father had served in Congress since 2003, and in 2024 announced that he had been diagnosed with lung cancer. He won reelection that year, but died on March 13, 2025. Adelita Grijalva, a Pima County supervisor, won the Democratic primary on July 15, and then won the special election on September 23, taking close to 69 percent of the vote. The district, Arizona-7, stretches across the U.S.-Mexico border and leans Democratic, but Grijalva’s performance bested that of Democratic presidential nominee Kamala Harris the year before. At the time of Adelita Grijalva’s election victory, the district had already been without a congressional representative for more than six months. Just over a week after Grijalva’s election victory, the federal government shut down amid partisan gridlock; one of the key sticking points was whether to extend subsidies for Affordable Care Act (ACA) health insurance. The Democrats wanted to extend them; the Republicans—never fans of the ACA—did not. Also on Congress’s agenda was a petition that would force the release of documents relating to the late convicted sex offender Jeffrey Epstein. Grijalva had vowed to sign the petition, thus becoming the crucial 218th vote and mandating a House vote on the matter. Johnson’s decision to delay Grijalva’s swearing in, as well as his decision to close House business during the shutdown, allowed the Epstein matter to remain in limbo, to the satisfaction of the Trump administration; the president did not want the material released. By a week and a half into the shutdown, Grijalva’s situation began to capture more attention. Democrats questioned why Johnson was refusing to seat her, while Johnson blamed the shutdown for the delay, indicating he would swear her in once the House was back in session. On October 9, Grijalva told the Associated Press, “I think it’s great to be able to be in a room with those who will be my colleagues, but then you very quickly realize that you are not part of the club yet.” She added, “If I had big money to bet, I would bet that if I were a Republican representative waiting in the wings, I would have already been sworn in by now.” Indeed, Johnson had quickly sworn in two GOP special election winners earlier in the year during a time when the House was out of session. While winners of House special elections are generally sworn in during regular House business, Johnson swore in Reps. Jimmy Patronis and Randy Fine, two Florida Republicans during a pro forma session April 2, according to PBS, less than 24 hours after they won their elections. Explaining his decision, Johnson told C-SPAN October 9 that the two members had already made plans for their families to be present, and he had sworn them in at that time “as a courtesy.” Arizona’s two Democratic senators, Mark Kelly and Ruben Gallego, even approached Johnson near his office to inquire about Grijalva’s status. House Minority Leader Hakeem Jeffries (D-NY) spoke out on Grijalva’s behalf, and Arizona’s attorney general, Democrat Kris Mayes, along with Grijalva, filed a lawsuit October 21 against the House over the congresswoman-elect’s situation, a move Johnson criticized as “patently absurd.” Johnson argued that he was following a pattern set by former House Speaker Nancy Pelosi (D-CA); under the “Pelosi precedent” he cited, Pelosi waited for the House to return to session before having a swearing-in ceremony for someone winning a special election during a recess. He also maintained that the delay in swearing Grijalva in had nothing to do with the Epstein matter. When Grijalva was finally sworn in, her district had been without a representative for eight months, from March to November. In remarks the day of her swearing-in, Grijalva, 55, said, “It’s past time for Congress to restore its role as a check and balance on this administration.” She added, “That is why I will sign the discharge petition right now to release the Epstein files — justice cannot wait another day.” Sure enough, Grijalva immediately signed the Epstein discharge petition as the deciding 218th member, and the logjam subsequently burst as lawmakers, including former Republican opponents of the idea, voted to release the Epstein files. Within a week, the House voted 427–1 to force the Justice Department to make the files publicly available, the Senate passed the legislation by unanimous consent, and Trump—who had inveighed for months against releasing the files—saw the writing on the wall and signed the bill into law. In an ironic coda, Republican Matt Van Epps won a special election in a Tennessee congressional district on December 2. Johnson swore him into office two days later, on December 4. —Deborah Kalb

Document Outline Firefighters Case An “Incremental” Term The Partisan Divide Sotomayor: An Auspicious Debut? Stevens: A Possible Departure? From the start, Sonia Sotomayor’s admirers and detractors agreed that her life and career embodied an American success story: a rise from humble beginnings to the top of the legal profession. But her opponents’ recognition of Sotomayor’s accomplishments did not stop them from fighting to the end against her confirmation on August 6, 2009, to be the first Latina, and the third woman, to serve as an associate justice of the Supreme Court of the United States. Sotomayor grew up in a housing project in the South Bronx, the only daughter of working-class parents who moved to New York from Puerto Rico during World War II. Her father, a factory worker with a third-grade education, died when Sonia was eight; her mother, Celina, supported Sonia and her brother, Juan, by working six days a week as a nurse. Sonia read Nancy Drew mysteries as a girl. After being diagnosed with diabetes at age eight, however, her doctor told her to give up the idea of working in law enforcement. Instead, Sotomayor formed the ambition to be a judge. With her mother strongly encouraging her education, Sonia excelled at a middle-class Catholic high school. She won admission to Princeton University in 1972 as a self-described “affirmative action baby” despite somewhat subpar test scores. Women had been admitted only three years earlier; she was one of the few Latinos on campus. Terrified at first, she went on to graduate summa cum laude and to win the university’s highest undergraduate award. From Princeton, she went to Yale Law School; she decided against Harvard because of what she regarded as a condescending question from an admissions officer. She was an editor of the Yale Law Journal: she won her place with a note on Puerto Rican statehood. From Yale, Sotomayor returned to New York as a prosecutor under the city’s legendary district attorney Robert Morgenthau, thanks to a recommendation from one of her professors, Jose Cabranes, a fellow Puerto Rican and later a colleague on a federal appeals court. Again, Sotomayor excelled, graduating from misdemeanor to felony cases in six months, well ahead of the other new hires. In a magazine interview in 1984, she described having problems as a liberal with prosecuting some poverty-driven crimes, such as shoplifting, but was outraged by the more serious crimes of violence she prosecuted. After five years, Sotomayor left to join a boutique commercial law firm in Manhattan. Her work included litigation against counterfeiters of imported goods, work reflected in her later interest as a judge in intellectual property cases. She also continued as an active board member of the Puerto Rican Legal Defense and Education Fund (later renamed LatinoJustice PRLDEF). Sotomayor had worked for affirmative action at Princeton; at Yale, she won an apology from a law firm interviewer for asking her whether she would have been admitted if she were not Puerto Rican. She served on PRLDEF’s board for twelve years, including several years as head of the litigation committee. The group’s opposition to capital punishment and support for public funding of abortions would become issues in Sotomayor’s confirmation. Sotomayor’s appointment as a federal district court judge in 1992 by a Republican president, George H. W. Bush, came on the recommendation of New York Democratic senator Daniel Patrick Moynihan as part of a power-sharing deal with his Republican colleague Alfonse D’Amato. Five years later, President Bill Clinton nominated her in September 1997 to serve on the Second U.S. Circuit Court of Appeals. Seeing her as a potential future Supreme Court nominee, Republican senators delayed her nomination for more than a year, but she eventually won confirmation on October 2, 1998, by a 67-29 vote. On the appeals court, Sotomayor gained a reputation as a left-of-center mainstream judge. She was described as sometimes tough on lawyers from the bench; her opinions were dense with factual detail, thin on legal vision. She also continued to speak and write often about the role of ethnicity and gender in the judiciary. In one speech that would come back to haunt her, she told an audience at the University of California in Berkeley in 2001, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” With Barack Obama’s inauguration as president midway through the Supreme Court’s 2008—2009 term, Court watchers began speculating about the possibility of an early vacancy for the new Democratic president to fill. Unbeknownst at the time, Justice David H. Souter had passed word in March to a fellow New Englander, Senate Judiciary Committee chairman Patrick J. Leahy of Vermont, that he would retire at the end of the term. Souter much preferred the ascetic life in his native New Hampshire to the Washington scene. In nineteen terms, Souter had become—to the dismay of Republican conservatives—a mainstay of the Court’s bloc of four liberal justices. He typically voted with his fellow Republican appointee, John Paul Stevens, and the two Clinton-nominated justices, Ruth Bader Ginsburg and Stephen G. Breyer. President George W. Bush had fortified the conservative bloc in 2005 and 2006 with his appointments of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.; they joined two other GOP-appointed conservatives, Antonin Scalia and Clarence Thomas. In the middle sat Justice Anthony M. Kennedy, a moderate conservative appointed by President Ronald Reagan who voted with the liberal bloc often enough to give them significant victories and disconcert conservative advocacy groups. Souter’s retirement, leaked to news media in late April, was seen as unlikely to change the ideological balance on the Court. Obama had voted against Roberts and Alito as a senator and criticized the Roberts Court’s conservative tilt during the 2008 campaign; it was universally assumed he would choose a liberal to succeed Souter. If evidence was needed, conservatives found it in Obama’s remarks on May 1 as he personally confirmed the news of Souter’s retirement to the White House press corps: Obama said he would look for a nominee who understood the real-world consequences of Supreme Court decisions. “I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes,” Obama said. Court watchers also universally assumed that Obama would appoint a woman if at all possible. With Justice Sandra Day O’Connor’s retirement in 2006, Ginsburg had been left as the only woman on the Court; she publicly complained that the Court was unrepresentative and her position somewhat lonely without a female colleague. Obama had previously emphasized the importance of diversity on the Court, and observers agreed the political pressure to choose a woman would be impossible to ignore. Sotomayor was at the top of the list of potential nominees from the start. Among more than a dozen hopefuls who received consideration—almost all of them women—Obama ended up interviewing four, all women. The other three included another federal judge, Diane Wood, a liberal on the Seventh U.S. Circuit Court of Appeals in Chicago; Elena Kagan, a former Harvard Law School dean newly appointed by Obama as U.S. solicitor general; and Janet Napolitano, a former Arizona governor and attorney general serving in Obama’s cabinet as secretary of homeland security. Obama met with Sotomayor for about an hour on Thursday, May 21. He was impressed. Aides reassured the president about concerns involving Sotomayor’s temperament and her health. Chief of staff Rahm Emmanuel was among those touting the political benefits of naming the first Hispanic to the Court. (Justice Benjamin Cardozo, a Sephardic Jew whose ancestors came from Portugal, was not considered Hispanic in his time or later.) By Friday, Obama was leaning toward Sotomayor; he came to a decision over Memorial Day weekend and called Sotomayor on Monday night, May 25, to tell her she was his choice. Announcing his decision at the White House on Tuesday, May 26, Obama described Sotomayor as an “inspiring woman” who had “lived out the American dream” but “never lost touch with the community that supported her.” He predicted Sotomayor would be “a great justice” and urged the Senate to vote on her confirmation before the August recess. In her turn, Sotomayor paid tribute to her mother, seated in the audience. “I am all I am because of her,” she said. Then she recalled her tour of the White House eleven years earlier as a nominee to the federal appeals court. “It was an overwhelming experience for a kid from the South Bronx,” Sotomayor said. “Yet never in my wildest childhood imaginings did I ever envision that moment, let alone did I ever dream that I would live this moment.” Firefighters Case By coincidence, the Supreme Court was preparing to end its 2008—2009 term by reviewing one of Sotomayor’s recent, and one of her most controversial, decisions. Sotomayor and two colleagues had issued an unsigned opinion on February 15, 2008, upholding the dismissal of a reverse discrimination suit by white firefighters in New Haven, Connecticut. The eighteen firefighters, including one Hispanic, claimed that the city’s civil service board had illegally discriminated against them when it scrapped the results of an exam after no African Americans scored high enough to be immediately eligible for promotions. The case, Ricci v. DeStefano, drew its name from a white firefighter, Frank Ricci, a dyslexic who told of studying long hours to prepare for the exam to qualify for promotion to lieutenant, and the city’s mayor, John DeStefano, who counted New Haven’s substantial African American population as a major constituency. The events in early 2004 that led to the suit made big news in New Haven, but the case attracted little attention elsewhere even after the ruling by the appellate panel. White firefighters scored significantly higher than blacks on the exams, given in November and December 2003. The city’s counsel warned the civil service board that certifying the results could expose the city to a possible suit for unintentional “disparate impact” racial discrimination under a line of Supreme Court decisions starting with Griggs v. Duke Power Co. (1971). In Griggs, the Court held that an ostensibly neutral job requirement could violate the federal job discrimination law—Title VII of the Civil Rights Act of 1964—if it had a disproportionate racial impact and no proven business necessity. The New Haven civil service board conducted a series of contentious hearings on the exam in early 2004. The predominantly white firefighters union urged approval of the results and threatened a “reverse discrimination” suit if not. A black firefighters group and some African American leaders questioned the test’s validity and called for a new exam. In the end, a motion to approve the results failed on a 2-2 vote. As warned, a group of firefighters that originally numbered twenty—nineteen whites and one Hispanic—filed a federal court suit charging the city with violating Title VII as well as the Equal Protection Clause. The city responded by saying it had a good faith belief that certifying the results would have violated Title VII. In a forty-eight-page opinion issued on September 20, 2006, U.S. district court judge Janet Bond Arterton sided with the city. Arterton said the reasons for the racially disparate scores were “elusive,” but she concluded the plaintiffs had failed to prove either a Title VII or equal protection violation. The civil service board’s decision was “racially neutral,” Arterton said, because white and black firefighters alike would have a chance to participate in the new promotions process. The case went to the Second U.S. Circuit Court of Appeals and was assigned to a randomly selected panel of three judges: Sotomayor and two other Clinton appointees, Rosemary Pooler and Robert Sack. On December 10, 2007, Sotomayor and Pooler heard hour-long arguments—unusually lengthy in Second Circuit practice; Sack listened to arguments later. Lawyers for the plaintiffs thought the judges unsympathetic. Barely two months later, the panel issued a one-paragraph, per curiam opinion upholding the ruling in the city’s favor on the basis of Arterton’s lower court opinion but acknowledging sympathy for the plaintiffs’ “frustration.” The panel marked the opinion “not for publication,” meaning that it would not be treated as precedent and would not be circulated to the other Second Circuit judges. As reported later, Judge Cabranes read of the decision in the New Haven newspaper and circulated it to the court’s thirteen judges with the suggestion that the case be reheard by the full court. In June 2008, the court voted 7-6 against rehearing. In a dissent, Cabranes criticized the truncated procedures for ruling on a case that he said presented “questions of exceptional importance.” He said he hoped the Supreme Court would grant review. The Supreme Court agreed to hear the firefighters’ appeal on January 9, 2009. On the same day, the justices added another race-related dispute to their agenda: a constitutional challenge by a tiny municipality in Texas to the landmark Voting Rights Act of 1965, the civil rights—era law credited with enfranchising African Americans in the Deep South. In effect, the Supreme Court was setting up pivotal showdowns on two major laws aimed at benefiting racial minorities just as the nation was preparing for an African American to take office as president of the United States. The arguments in both cases in April did not bode well for traditional civil rights advocates. In the Voting Rights Act case, Roberts and the other conservatives openly doubted the present-day need for the provision, section 5, requiring states with a history of racial discrimination in voting to submit any change in election procedure to authorities in Washington for approval. In the firefighters case, Roberts similarly led the other conservatives in questioning the city’s decision to discard the test results to protect against a potential charge of discrimination by black firefighters. “Isn’t that kind of a blank check to discriminate” against the white firefighters? he asked. The Court’s end-of-term decisions represented a partial victory in one case and a more complete victory in the other for the challengers and for other opponents of race-conscious policies. In the Voting Rights Act case, Northwest Austin Municipal Utility District No. 1 v. Holder, Roberts wrote for a nearly unanimous Court on June 22 in upholding section 5 but narrowing it by allowing small governmental units to take advantage of a “bailout” provision to gain exemption from the preclearance requirement. A week later, the Court ruled for the white firefighters in a 5-4 decision split along ideological lines. For the majority, Kennedy said that an employer could justify race-conscious decisions to avoid a disparate impact charge only if the employer had a “strong basis in evidence” for believing that it would be held liable otherwise. Table 1-1: CQ Press’s Major Cases: U.S. Supreme Court, 2008—2009 Term CQ Press each term selects the major cases for the Supreme Court’s term. The selection is based on such factors as the rulings' practical impact; their significance as legal precedent; the degree of division on the Court; and the level of attention among interest groups, experts, and news media. Name of Case Vote Holding Ricci v. DeStefano 5-4 Requires employers to have a “substantial basis” to fear disparate-impact liability before adopting race-conscious policies to avoid liability Northwest Austin Municipal Utility District No. 1 v. Holder 8-1 Expands eligibility for municipalities to “bail out” of preclearance requirement in Voting Rights Act; constitutional challenge left unresolved Gross v. FBL Financial Services, Inc. 5-4 Requires plaintiff in age discrimination cases to show age was “but-for” cause of action Wyeth v. Levine 6-3 Allows failure-to-warn suits in state court against drugmakers despite federal regulation Caperton v. A.T. Massey Coal Co. 5-4 Requires recusal by elected judge in case involving major campaign supporter Federal Communications Comm’n v. Fox Television Stations, Inc. 5-4 Upholds ban on “fleeting expletives”; First Amendment challenge remanded Melendez-Diaz v. Massachusetts 5-4 Requires crime lab technicians to testify in court, not through written report, unless defendant waives confrontation right United States v. Herring 5-4 Limits use of exclusionary rule to reckless/intentional mistakes by police Safford Unified School District v. Redding 8-1, 7-2 Requires special justification to strip-search students; school officials granted qualified immunity in instant case Ashcroft v. Iqbal 5-4 Requires more specific allegations in suits charging government officials with unconstitutional discrimination; ruling seen as applying to all civil suits in federal courts Here are some other especially noteworthy cases: Altria Group, Inc. v. Good (allows state court suits against tobacco makers for false advertising); Cuomo v. The Clearing House Association, L.L.C. (allows state enforcement of fair-lending laws against national banks despite federal regulation); Bartlett v. Strickland (rejects need to create “minority-influence” legislative districts); Pleasant Grove City v. Sumuum (rejects First Amendment right to erect fixed monument in public space); Montejo v. Louisiana (overrules ban on interrogation of defendant after counsel is retained); District Attorney’s Office v. Osborne (rejects due process to DNA testing); Arizona v. Gant (narrows police right to search automobile after all occupants are outside vehicle). The firefighters ruling strengthened the end-of-term impression of a Court tilted to the right in the most divisive cases. “Term Saw High Court Move to the Right,” the Washington Post announced in its wrap-up. There were several significant exceptions: two rulings favoring injured consumers in federal preemption disputes, a decision limiting “strip searches” by public school officials, and a ruling to require elected judges to recuse themselves in cases involving major campaign contributors or supporters. The Court continued, however, to side with law enforcement in most criminal cases; in one, the Court seemed to create a broad exception to the use of the exclusionary rule to bar evidence illegally obtained by police. On balance, the Court’s rulings seemed to be a setback for individual rights and access to courts. (See “CQ Press’s Major Cases.”) Meanwhile, with Sotomayor’s confirmation hearing due to begin before the Senate Judiciary Committee two weeks later, the firefighters decision became a major talking point for skeptics and opponents of the nomination. “Supreme Court Overturns Sotomayor Decision,” trumpeted a press release from the Republican Study Conference, a group of House conservatives. The conservative Committee for Justice called the ruling “bad news for Sotomayor.” The White House, Democratic senators, and liberal advocacy groups sought to contain the damage. They stressed that the Supreme Court was closely divided, that Sotomayor had been one of three judges on the appeals court panel, and that the panel was ostensibly following Second Circuit precedent in analogous cases. Despite the spin, the ruling tarnished the image of an experienced, mainstream judge. Along with Sotomayor’s speeches on ethnic diversity, the ruling gave ammunition to critics to depict the first-ever nomination of a Latina to the Supreme Court as recognition less for merit than for what they derisively labeled “identity politics.” An “Incremental” Term With the Court’s final decisions still being digested, a common theme emerged in the wrap-ups from experts and advocates across the ideological spectrum. The Court was moving to the right, most agreed, but gradually, incrementally, by issuing narrow decisions that gave the conservative majority building blocks for the future without unduly jeopardizing the Court’s standing with the public. In his wrap-up, the Washington Post’s Robert Barnes described the term as “the year of living on the verge”—sending signals but stopping short of major changes in the law. In the New York Times, Adam Liptak credited Roberts with “laying the groundwork for bold changes” with “incremental steps.” Kathleen Sullivan, a liberal Stanford law professor, similarly described the Court as “laying the ground for future incrementalism.” Ilya Shapiro, a senior fellow in constitutional studies at the libertarian Cato Institute, agreed, telling Barnes that the incrementalism reflected Roberts’s desire not to “get out on a limb in front of public opinion.” Barnes was among the majority of Court watchers who saw, in his words, “a patient and steady move to the right” led by Roberts. Conservatives tended either to minimize or deny any rightward tilt. “This Court may be more-likely-than-not to decide any given case in a ‘rightward’ direction, but it is not particularly likely to move the law to the right,” wrote Jonathan Adler, a conservative professor at Case Western Reserve University School of Law in Cleveland. Adler described opinions rejecting new individual rights as maintaining a status quo instead of moving to the right, and he stressed that the Court was continuing to issue liberal rulings, such as the decision to require elected judges to recuse themselves from cases involving major campaign supporters. Roberts was a key figure in all of the speculation about the Court’s direction. At fifty-four, he would remain the Court’s youngest member even after Sotomayor’s confirmation. For the term, his control seemed to slip somewhat. He dissented in fourteen cases—double his average for the previous terms. (See “Justices in Dissent, 2008—2009 Term. ”) But the Court’s conservatives continued to hold together in most cases even as the liberal bloc fragmented slightly. (See “Justices Alignment, 2008—2009 Term. ”) With none of the other conservatives nearing retirement, Thomas Goldstein, a lawyer and founder of SCOTUSBlog, suggested that the conservative majority was likely to remain in place even through a possible second term for Obama. “This Court can afford to be quite patient in the areas where it is trying to move the law,” Goldstein remarked. For the conservatives, he said, there was “no reason to rush.” Goldstein cited two of Roberts’s eight majority opinions from the term as reflecting the pattern of laying down markers for future cases. In the decision that narrowed the Voting Rights Act but left it on the books, Roberts laid out but stopped short of endorsing the arguments for striking the law down. “Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today,” Roberts wrote in the concluding paragraph. Earlier in the term, Roberts seemed to broaden the basis for allowing the use of evidence found after an illegal search. “To trigger the exclusionary rule,” he wrote, “police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Roberts displayed his aversion to constitutionalizing due process claims in two of his other major opinions: one for the majority and one in dissent. He wrote the 5-4 decision that rejected a post-conviction due process right for DNA testing of evidence. “We are reluctant to enlist the Federal Judiciary in creating a new constitutional code of rules for handling DNA,” he wrote. Roberts also led the four dissenters from the decision requiring state judges to recuse themselves in cases involving major campaign contributors or supporters under some circumstances. The new rule, he wrote, “provides no guidance to judges and litigants about when recusal will be constitutionally required.” Of all the justices, Scalia had the most majority opinions—eleven—and most of them reflected his strong conservative leanings. He wrote the 5-4 decision overturning a two-decades old precedent that barred police from initiating interrogation of a suspect after appointment of counsel except through the lawyer. In an important statutory case, he also led a 5-4 majority in ruling that the Environmental Protection Agency could consider cost-benefit analyses in regulating utility plants’ water-intake structures used for cooling. And he wrote the 5-4 decision in the so-called fleeting expletives case that upheld the Federal Communications Commission’s tightened policy on broadcast indecency. In two cases, however, Scalia led cross-ideological coalitions to produce outcomes that expanded defendants’ rights and backed state regulation of national banks. Along with fellow conservative Thomas, Scalia joined three liberals in the 5-4 ruling that gave defendants the right under the Confrontation Clause to insist on in-court testimony instead of a written certificate from lab technicians in drug cases or other cases using chemical analyses as evidence. At the end of the term, Scalia joined with four liberals in rejecting the banking industry’s effort to bar states from enforcing state fair lending laws against national banks. Table 1-2: Justices' Alignment, 2008—2009 Term This table shows the percentage of decisions in which each justice agreed with each of the other members of the Court. Out of seventy-four decisions on the merits after argument, twenty-three (or 31 percent) were unanimous. For the first time since Roberts became chief justice, none of the justices was recused in any of the decisions on the merits. The voting pattern in the third full term with both Roberts and Alito on the Court showed a continuing conservative majority and Kennedy again somewhat more closely aligned with the conservative bloc than in some years before Roberts’s appointment. Each of the five conservatives agreed with each of the others in more than 80 percent of the cases except for Scalia and Kennedy, who were aligned 78 percent of the time. Among conservatives, Roberts and Alito were for the second year the most closely aligned pair of justices: they disagreed in six rulings, including one 5-4 decision. Scalia and Thomas, previously the most closely aligned conservative pair, disagreed in nine cases. Three of the four liberal justices—Stevens, Souter, and Ginsburg—agreed with each of the other three in at least 80 percent of the cases. Stevens and Souter had the closest alignment, agreeing in 87 percent of the cases. Breyer was somewhat less closely aligned with the liberal bloc than in previous terms; he disagreed with each of his three liberal colleagues in at least fifteen cases. Stevens remained at the liberal end of the ideological spectrum. He and Scalia were the furthest apart during the term; they agreed in only ten of the fifty-one divided cases. Stevens agreed with Thomas in eleven divided cases, the same alignment as between Souter and Alito. Scalia, Thomas, and Alito were closely bunched at the conservative end of the ideological spectrum, while Roberts agreed with liberal justices slightly more often.   Roberts Stevens Scalia Kennedy Souter Thomas Ginsburg Breyer Alito Roberts   25.5 82.4 78.4 29.4 72.5 27.5 43.1 88.2     48.6 87.8 85.1 51.4 81.1 50.0 60.8 91.9 Stevens 25.5   19.6 35.3 80.4 21.6 74.5 70.6 25.5   48.6   44.6 55.4 86.5 45.9 82.4 79.7 48.6 Scalia 82.4 19.6   68.6 27.5 82.4 29.4 33.3 82.4   87.8 44.6   78.4 50.0 87.8 51.4 54.1 87.8 Kennedy 78.4 35.3 68.6   45.1 66.7 49.0 56.9 76.5   85.1 55.4 78.4   62.2 77.0 64.9 70.3 83.8 Souter 29.4 80.4 27.5 45.1   29.4 78.4 62.7 21.6   51.4 86.5 50.0 62.2   51.4 85.1 74.3 45.9 Thomas 72.5 21.6 82.4 66.7 29.4   27.5 35.3 76.5   81.1 45.9 87.8 77.0 51.4   50.0 55.4 83.8 Ginsburg 27.5 74.5 29.4 49.0 78.4 27.5   68.3 27.5   50.0 82.4 51.4 64.9 85.1 50.0   78.4 50.0 Breyer 43.1 70.6 33.3 56.9 62.7 35.3 68.3   43.1   60.8 79.7 54.1 70.3 74.3 55.4 78.4   60.8 Alito 88.2 25.5 82.4 76.5 21.6 76.5 27.5 43.1     91.9 48.6 87.8 83.8 45.9 83.8 50.0 60.8   Note. The first number in each block (shaded) represents the percentage of agreement in divided decisions. The second number (unshaded) represents the percentage of agreement in all signed opinions. Scalia’s eleven separate opinions included a significant concurrence in the New Haven firefighters case. He argued that laws requiring employers to avoid disparate impact discrimination effectively “place a racial thumb on the scales” by forcing employers in some cases to make decisions based on racial outcomes. For public employers, Scalia suggested, that requirement was “in tension” with the Equal Protection Clause’s prohibition against government race-based decision making. Among his nine majority opinions, Thomas wrote two 5-4 rulings, each of which narrowed protections under the federal Age Discrimination in Employment Act in the face of seemingly contradictory precedents. The first ruling enforced an arbitration clause in a collective bargaining agreement to prevent union members from taking age-bias complaints to court. In his opinion, Thomas questioned the logic of a 1974 decision that had allowed union members to take a race discrimination case to court after losing in arbitration. In the second case, the Court held that an age discrimination plaintiff must prove tha age was the “but for” cause of an adverse personnel action, not merely one factor. Thomas rejected using the same, less-demanding standard that Congress had specified for job discrimination suits under Title VII. Thomas’s most notable other opinions came in lone dissents. He dissented alone in the ruling that generally prohibited school officials from strip-searching pupils in drug investigations. Thomas argued, as he had done before, that school officials should be given virtually complete discretion in disciplinary affairs. Thomas was also the only justice to vote to strike down the Voting Rights Act. He argued that the law was no longer a proper enforcement of the Fifteenth Amendment because of “the lack of current evidence of intentional discrimination with respect to voting.” Alito wrote seven majority opinions, but only one in a closely divided case. He led the 5-4 majority in giving the state of Arizona a chance to get out from under a federal court injunction requiring more funding for bilingual education in public schools. The ruling, potentially applicable to other “institutional reform litigation,” required lower courts to give greater consideration to the state’s arguments that the injunction was no longer needed. Alito also wrote the unanimous decision in a significant free speech case that blocked a heterodox religious sect from erecting a permanent monument in a public park. The placement of a permanent monument is a form of government speech, Alito said, and not subject to challenge under the Free Speech Clause. Alito also wrote a significant concurrence in the New Haven firefighters case that depicted the decision to scrap the results of the promotion exam as motivated by “the desire to placate a politically important racial constituency.” He also led conservative dissenters in two closely divided rulings. In a drug suit preemption case, he said that the Food and Drug Administration was better suited than juries to determine the adequacy of warning labels, and in a car search case, he said a new rule limiting searches after driver and passengers are out of a vehicle would put officers’ safety at risk. Kennedy wrote six majority opinions and one plurality; all seven were in divided cases, four for conservative and three for liberal majorities. In the most important, Kennedy upheld the New Haven firefighters’ reverse discrimination suit in a decision that makes it harder for public or private employers to take race-conscious steps to avoid unintentional “disparate impact” discrimination. Invalidating test results after the fact without a “strong basis in evidence” to question its fairness amounts to a “racial preference” that is “antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race.” In a second race-related case, Kennedy wrote the main opinion limiting court-ordered redistricting to create so-called crossover districts in which minorities could join with white voters to elect their candidate of choice. Kennedy refused, however, to go along with conservatives Scalia and Thomas in barring any race-conscious districting. Kennedy also led a conservative majority in the decision that rejected a Pakistani Muslim’s civil suit against Justice Department officials for mistreatment following the post-9/11 roundup of immigrants. Along with a ruling two years earlier in an antitrust case, the decision required plaintiffs to include more specific allegations in complaints to survive early motions to dismiss. Kennedy led a liberal majority in the judicial recusal case, however, requiring judges to step out of a case if it involves someone who had “a significant and disproportionate influence in placing the judge on the case.” He led a liberal majority in another procedural decision that allowed military courts to reopen and set aside convictions because of fundamental legal errors in the trial. Kennedy wrote fourteen opinions in all, fewest of any of the justices. His separate opinions included the dissent in the Confrontation Clause case, in which he argued that requiring lab technicians to appear in court served no useful purpose but would amount to a “windfall for defendants.” As the senior liberal justice, Stevens used his power to assign a case when Roberts was in the minority to give himself many of the most important liberal victories for the term. His nine majority opinions included the two rulings for state court plaintiffs on federal preemption issues in “lite cigarette” and drug warning label suits. Both decisions vindicated Stevens’s position in earlier decisions preserving traditional state tort remedies in product liability suits despite federal regulation. Among criminal cases, Stevens wrote the 5-4 decision that restricted the ability of police to search a car immediately after an arrest if the occupants are outside the vehicle. The dissenters charged but Stevens denied that the decision directly overturned a 1981 precedent. He also wrote decisions that gave a Tennessee death row inmate a new hearing on claims of prosecutorial misconduct in his trial and in a separate Tennessee case guaranteed death row inmates appointed counsel in state clemency proceedings. Stevens wrote the term’s only decision striking down a state law on constitutional grounds; the 5-4 ruling invalidated a New York law preventing state courts from hearing federal civil rights claims against corrections employees. Overall, Stevens wrote twenty-nine opinions, tying him with Breyer for the most during the term. Stevens’s fourteen dissents included many in major rulings of the term. He wrote the lead dissents in the decision to allow police to bypass a suspect’s lawyer to initiate interrogation and to reject a post-conviction right to DNA testing. He also wrote the main dissents in the decision raising the burden of proof in federal age discrimination suits and allowing cost-benefit regulation of utility plants’ water-intake towers. In some cases, Stevens also wrote significant secondary dissents. In the fleeting expletives case, for example, he opined that the Court that originally upheld the power of the Federal Communications Commission to punish broadcast indecency would not have extended the policy to cover a single, nonliteral use of a vulgar term; Stevens wrote the plurality opinion in that case. In his final term, Souter wrote eight majority opinions, including the closely watched ruling to limit strip searches by public school officials. Privacy considerations required “distinct elements of justification” for a strip search, Souter explained, including the dangerousness of the drug or medication supposedly being carried and some basis for believing the contraband was secreted in the student’s underclothes; Thomas dissented. Nevertheless, Souter said the school principal was entitled to qualified immunity because the student’s right to be protected from strip searches had not been clearly established earlier; liberals Stevens and Ginsburg dissented from that part of the ruling. Among other majority opinions, Souter led a liberal majority in an important 5-4 decision reaffirming the rule in federal courts to bar voluntary confessions if a suspect is not brought before a magistrate within six hours of arrest. In two civil cases, however, Souter spoke for predominantly conservative majorities in barring state court suits against insurers involved in the asbestos litigation settlement in the 1980s and in rejecting women employees’ right to claim retroactive credit for pregnancy leaves taken before employers were required to count the time off for seniority purposes. Souter also wrote eleven dissenting opinions, including the lead dissents in the 5-4 rulings to enforce union-agreed arbitration of age complaints and to tighten pleading standards in civil suits. The new rule on pleading standards, Souter said, “misapplied” the decision two years earlier in an antitrust case; Souter wrote that decision. Table 1-3: Justices in Dissent, 2008–2009 Term Division on Court Justice 8-1 7-2 6-3 5-4 Total Percentage               Roberts — 1 2 11 14 18.9 Stevens — 7 8 13 28 37.8 Scalia — 3 3 7 13 17.6 Kennedy — — 1 4 5 6.8 Souter — 3 10 13 26 35.1 Thomas 2 2 3 7 14 18.9 Ginsburg 1 3 7 12 23 31.1 Breyer — 3 3 15 21 28.4 Alito — 2 2 10 14 18.9 Note: Totals reflect cases where the justice dissented or disagreed in whole or in part from the result or the major legal holding. There were seven-four decisions on the merits after argument during the 2008–2009 term. Ginsburg’s seven majority opinions included only two in closely divided decisions. In one, she led a cross-ideological, 5-4 majority in ruling that state judges can make factual findings needed to determine whether a defendant should be sentenced to consecutive instead of concurrent terms. Ginsburg had been in the majority in earlier decisions to require jury instead of judge fact-finding in sentencing, but she had also cast the pivotal vote in a 2003 decision that allowed federal judges to make factual findings if they treated federal sentencing guidelines as advisory instead of mandatory. Her other 5-4 decision barred a credit card issuer from requiring arbitration of a consumer’s complaint charging violations of state consumer protection laws. Ginsburg led the liberal dissenters in the New Haven firefighters case and emphasized her opinion by reading portions from the bench. Ginsburg sharply criticized the majority for ignoring the history of racial discrimination by the New Haven fire department and the availability of more racially neutral promotion procedures than used in this case. The city’s decision to discard the test results and devise a new exam, she said, was an “unfortunate situation” but did not amount to “race-based discrimination.” Ginsburg also wrote a heartfelt dissent from the decision to allow lowered pension benefits for women who took pregnancy leaves before Congress passed the Pregnancy Discrimination Act to require credit for that time off. The law did not require retroactive compensation, Ginsburg acknowledged, but she argued, it should be construed to require counting the pregnancy leaves for current calculation of pension benefits. Breyer wrote seven majority opinions, four of them unanimous and none of them in a major case. The divided decisions included a 7-2 ruling striking down a property tax imposed on large oil tankers by the city of Valdez, the endpoint of the Trans-Alaska Pipeline. The tax, Breyer said, violated the Constitution’s Tonnage Clause, which prohibits any levy on “tonnage” without consent of Congress. Among Breyer’s unanimous rulings was one that extended the immunity for trial prosecutors to suits blaming supervisors for rights violations because of allegedly inadequate training or oversight. Breyer wrote the main dissent from the ruling in the Arizona bilingual education case and read portions of the forty-seven-page opinion from the bench. The ruling, Breyer said, created “special, strict, pro-defendant” rules for institutional reform litigation and thwarted Congress’s statutory command to help non-English-speaking students overcome language barriers. While Breyer spoke for all four liberals in the case, he separated himself from liberal colleagues in some of his other separate opinions. In the EPA regulation case, for example, Breyer joined the conservative-led holding that the agency could consider cost-benefit analysis, but voted to send the case back to the agency for a better explanation. The Partisan Divide As the Senate Judiciary Committee opened confirmation hearings for Sotomayor on July 13, senators on both sides of the aisle agreed that her confirmation was all but assured barring some major gaffe on her part. Sotomayor prepared for the hearing with private visits to a record eighty-nine senators and a series of rehearsals before so-called murder boards arranged by White House handlers. On the eve of the hearings, Democrats were praising Sotomayor’s personal background and her judicial record. Most Republicans were taking a wait-and-see attitude: five had announced support; only three vowed to oppose her. Beyond Capitol Hill, some conservative commentators had sharply attacked Sotomayor because of her “wise Latina” speech. Talk show host Rush Limbaugh and former House Speaker Newt Gingrich both called her a racist; Gingrich later withdrew his description. Meanwhile, conservative advocacy groups were denouncing her as a judicial activist and mining Sotomayor’s record for decisions to support the charge. In opening the hearings, Judiciary Committee chairman Leahy denounced “ideological pressure groups” for opposing Sotomayor within days of the nomination. Sen. Jeff Sessions of Alabama, the panel’s ranking Republican, laid down a standard that foretold his eventual opposition. Sessions sharply criticized what he called Obama’s “empathy standard” as a code word for judicial activism. He went on to say that he would not vote for any nominee who was not “fully committed to fairness and impartiality” toward all litigants or who believed it was “acceptable” to allow a judge’s personal background to influence rulings for or against the parties to a case. Sotomayor confronted the issue head-on in a seven-minute opening statement. After tracing her personal background and her legal career from prosecutor to commercial litigator to federal judge, Sotomayor described her judicial philosophy as “simple: fidelity to the law.” “The task of a judge,” she continued, “is not to make the law; it is to apply the law.” Her record on the bench, Sotomayor told the senators, reflected her “rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and Congress's intent; and hewing faithfully to precedents established by the Supreme Court and my Circuit Court.” With the New Haven firefighters case fresh in mind, Leahy opened questioning the next day by giving Sotomayor the chance to answer criticisms of the substance and the procedure of the appeals court decision. The ruling was dictated by Second Circuit precedent, she insisted, and the panel’s decision to rule on the basis of the “very thoughtful, very thorough” district court opinion completely proper. Over the next three days, Republican senators repeatedly challenged Sotomayor’s defense, questioning the precedents relied on and sharply criticizing the appellate panel’s failure to write its own legal analysis of the issues. Republicans focused on two of Sotomayor’s other decisions, both of them unsigned rulings by unanimous three-judge panels. In one, the appeals court in 2006 rejected a landowner’s claim that the village of Port Chester, New York, took his land for urban renewal after he rebuffed a demand by the designated developer for the project to go into partnership with him. Republicans said the ruling reflected insensitivity to property rights; Sotomayor noted that the decision held in part that the suit was filed too late. In the other, the appeals court in 2009 declined to extend to state and local governments the Supreme Court’s recent decision recognizing an individual right to possess firearms. Again, GOP senators said the ruling showed an insensitivity to constitutional rights; Sotomayor said the ruling was based on Supreme Court precedent that only the Court could change. The most persistent line of attack from Republicans, however, focused on Sotomayor’s speeches. They faulted her for telling a law school audience that appeals courts are “where policy is made.” She said she was contrasting for potential judicial clerks the appeals courts’ role with that of trial-level district courts. To greater effect, the GOP senators kept hammering Sotomayor for the “wise Latina” speech and other writings or remarks about the role of gender and ethnicity in the judiciary. Sotomayor acknowledged that her words—preferring a hypothetical ruling by a “wise Latina” to that of a “white male”—had created “a misunderstanding.” She said they should not be taken literally. Eventually, she went so far as to dissociate herself from Obama’s “empathy” standard. “It is very clear,” she said, “that I don’t base my judgments on my personal views, my experiences, or my feelings or my biases.” Republican senators remained unsatisfied. For their part, Democratic senators were confounded somewhat by Sotomayor’s refusal even under friendly questioning to give clues about her views on legal issues. With no record directly on abortion rights issues, Sotomayor was pressed in one exchange to distance herself from the Roberts Court’s decision to uphold a federal ban on one abortion procedure without an exception for a woman’s health. Sotomayor said only that a woman’s health “must be a compelling consideration.” With Sotomayor’s testimony over shortly around 1 o’clock on July 16, Leahy began rushing through more than thirty public witnesses to wind up the hearing by early evening. The anticipated highlight was New Haven firefighter Ricci and a colleague, Benjamin Vargas, the lone Hispanic among the plaintiffs. Both detailed their frustration with the city’s decision to discard the results of the promotions exam and with the appeals court’s disposition of their suit, but they begged off making any overall evaluation of Sotomayor’s nomination. As the hearing ended, Sessions said Republicans would not seek to delay the vote past the scheduled start of the Senate’s recess on August 7. The National Rifle Association upped the stakes, for GOP senators in particular, by opposing Sotomayor and announcing that it would include the Sotomayor vote in its influential scorecard on senators’ gun rights record. The committee reconvened on July 21, but Republicans exercised their prerogative to defer the vote for a week. Over the next seven days, all but one of the GOP members came out in opposition to Sotomayor, including two—John Cornyn of Texas and Jon Kyl of Arizona—with substantial Hispanic constituencies in their states. Only South Carolina’s Lindsey Graham broke GOP ranks, saying he wanted to depoliticize the judicial confirmation process. The committee’s 13-6 vote in favor of Sotomayor’s confirmation on July 28 set the stage for the Senate to take up the nomination the next week. The only question remaining was how many Republicans would vote for confirmation. Democrats and Republicans recapitulated now familiar arguments about Sotomayor’s record over four days of desultory debate. The final vote came on August 6: the margin, 68-31, with nine Republicans crossing party lines to vote for confirmation along with fifty-seven Democrats and two independents who caucused with Democrats. Only Democrat Edward M. Kennedy of Massachusetts, ailing with cancer of the brain, was absent. At the White House, Obama hailed the vote as “breaking yet another barrier and moving us yet another step closer to a more perfect union.” Some conservatives took encouragement from the opposition by thirty-one Republicans, the most against a Democratic nominee since the 1890s; they saw the vote as a warning to Obama against picking a more liberal nominee in the event of another vacancy during his term. Sotomayor herself had no comment on the confirmation vote, which she watched with friends in her chambers at the federal courthouse in New York City. To get to work quickly, she arranged with her new chief, Roberts, to be sworn in only two days later, on Saturday, August 8. Roberts administered the constitutionally required judicial oath in a private ceremony in the justices’ conference room, with Kennedy the only other justice in attendance. They then moved to the Court’s larger, ceremonial East Conference Room to take the statutory oath for federal judges. For the first time, the ceremony was televised. With Sotomayor’s mother holding the Bible, Roberts read and Sotomayor recited the sixty-four-word oath with its promise to “administer justice without respect to persons, and do equal right to the poor and the rich.” As she finished, Roberts extended his hand and said, “Congratulations and welcome to the Court.” Sotomayor: An Auspicious Debut? Justice Sotomayor took her place on the far right of the bench on September 9 as her new colleagues cut short their summer recess for a rare reargument in a pivotal campaign finance case. The justices had first heard arguments in the case, Citizens United v. Federal Election Commission, on March 24. They then raised the stakes in the case with an end-of-term order on June 29 asking the lawyers to return to directly address the constitutionality of state and federal laws prohibiting corporations from spending money from their own treasuries to campaign for or against candidates in federal or state elections. Citizens United, a conservative advocacy group organized as a not-for-profit corporation, was asking the justices to block an enforcement action initiated by the FEC over its financing of a sharply critical documentary about Sen. Hillary Clinton of New York during her 2008 presidential campaign. The FEC argued that the group’s role in financing and promoting the ninety-minute documentary, Hillary: The Movie, fell under provisions of the Bipartisan Campaign Reform Act (BCRA) aimed at limiting corporate or union spending to influence federal elections. Specifically, the 2003 law—also known as the McCain-Feingold Act, after its principal Senate sponsors—prohibited corporations or unions from directly financing what the law defined as “electioneering communications”: radio or television advertising mentioning a federal candidate shortly before a primary or general election. Congress included the provision to curtail the growth of thinly veiled “issue advertising” that corporations and unions had designed to skirt a century-old ban on direct spending on federal campaigns. Citizens United planned to make the documentary available as video-on-demand and to air some broadcast commercials to promote it. The FEC said those plans fell within the scope of the law and invoked its provisions to require Citizens United to disclose major contributors for the film. The group refused and sued in federal court to block any enforcement. The government’s case took a bad turn during Supreme Court arguments on March 24 when deputy solicitor general Malcolm Stewart said in response to questions that the law could constitutionally be extended to a book paid for with corporate funds. Chief Justice Roberts responded with evident incredulity, “If it's a 500-page book, and at the end it says, and so vote for X, the government could ban that?” Stewart gamely pointed out that the law as written did not cover books. In any event, he stressed, the law allowed corporations or unions to form political action committees to finance campaign activities. But the damage to the government’s position was palpable in the courtroom. Still, the Court had several ways to rule on the case without inflicting much damage on the law, which the Court had upheld in a 2003 decision, McConnell v. Federal Election Commission. As one example, the Court could have ruled simply that BCRA did not apply to video-on-demand. After keeping the case under advisement for three months, however, the Court issued an order on June 29 asking for new briefs on whether the justices should overrule their 2003 decision upholding the law as well as an earlier decision, Austin v. Michigan Chamber of Commerce (1990), upholding state laws prohibiting corporate or union spending on state campaigns. A new round of arguments was set for September 9, in advance of the traditional start of the new term on the first Monday in October. In an expanded argument session—which eventually ran past ninety minutes—Roberts and the other conservatives clearly indicated doubts about the constitutionality of limiting corporations’ First Amendment rights to political speech. Roberts openly challenged newly appointed solicitor general Elena Kagan in her efforts to explain the government’s interest in barring corporate-financed campaign advocacy. Roberts was even more hostile when Kagan sought to undo the damage from the previous session by saying that the FEC was unlikely ever to regulate campaign-related books. “We don’t put our First Amendment rights in the hands of FEC bureaucrats,” Roberts said. As the only justice new to the case, Sotomayor appeared to pay close attention to the arguments and twice intervened with questions well framed to help the liberal bloc try to limit the impact of a ruling against the government. After Citizens United attorney Theodore Olson had spent twenty minutes arguing for a broad constitutional ruling, Sotomayor asked whether he was “giving up” on earlier arguments that there were statutory interpretations “that would avoid the constitutional question.” Later, Sotomayor pointed to the number of state laws prohibiting corporate-financed campaigning as an argument for narrowing the scope of any ruling. “Wouldn’t we be doing some more harm than good by a broad ruling . . .?” she asked of First Amendment expert Floyd Abrams, who was representing Sen. Mitch McConnell, the Kentucky Republican and named plaintiff in the previous, unsuccessful attempt to invalidate the law. Sotomayor’s questions impressed one experienced Court watcher in the audience for the arguments. “It doesn’t sound as though she’s going to be shy at all,” Harvard Law School professor Laurence Tribe remarked afterward to a group of reporters. Sotomayor seemed unlikely, however, to play a pivotal role in the case. As Justice Souter’s successor, she appeared from her questions likely to be favorably inclined, just as he had been, toward upholding campaign finance regulations. Instead, Roberts and Alito appeared to hold the keys to the decision. Three of the conservative justices—Scalia, Kennedy, and Thomas—had already voted to scrap prohibitions on corporate political spending when they dissented in the 2003 decision. Roberts and Alito were evidently disposed toward that view too; they provided the key votes in a 2007 decision, Federal Election Commission v. Wisconsin Right to Life, Inc., that narrowed the “electioneering communications” provision. But after a spirited argument in the new case, it remained to be seen whether Roberts and Alito were willing to vote in a single case to invalidate a major part of a recently enacted federal law, overturn one or two recent Supreme Court precedents, and cast doubt on the constitutionality of laws on the books in roughly half the states. The Court gave no indication when it would decide the case. Stevens: A Possible Departure? Justice Sotomayor had not even had a chance to participate in her first case before a tantalizing clue emerged about another potential change in the Court’s membership. Justice Stevens confirmed a September 2 report by the Associated Press that for the 2010—2011 term he had hired only one clerk—the number allotted to a retired justice—instead of the four clerks allowed sitting justices. In confirming the report, Stevens’s chambers declined to comment on the justice’s reason for departing from the customary practice of hiring a full complement of law clerks one year in advance. Court watchers immediately interpreted its meaning as all but inescapable: Stevens was either planning or at least contemplating leaving the Court sometime in the summer of 2010. Stevens, who was to turn ninety in April 2010, had already become the second oldest justice in history, surpassed only by Oliver Wendell Holmes Jr., who retired in 1932 three months shy of his ninety-first birthday. Holmes, evidently frail, was pushed into retirement by his colleagues. By contrast, Stevens appeared physically strong and as mentally sharp as ever; he continued to ask perceptive questions during arguments and regularly wrote the most opinions of any of the justices even though he was reported to be the only one of the nine to write first drafts instead of delegating the task to clerks. Stevens’s eventual departure would deprive the liberal bloc of its senior member and key strategist. Like Souter’s retirement, however, Stevens’s exit was seen as unlikely to affect the liberal-conservative balance on the Court. Despite the partisan divide on Sotomayor’s confirmation, Obama seemed likely again to choose a judge or lawyer inclined to liberal views on key legal issues. One of Stevens’s former clerks speculated that the long-time justice, a Chicago native, would have Obama in mind in timing his retirement. “Justice Stevens would have to be pleased at the thought that his successor would be appointed by Barack Obama, an African-American lawyer from the city of Chicago,” Christopher Eigruber, Princeton University provost, told the New York Times. No other changes in the Court’s membership seemed imminent. Ginsburg had stirred speculation about her longevity in February when she disclosed that she had been diagnosed with pancreatic cancer one month shy of her seventy-sixth birthday. Pancreatic cancer is a particularly lethal disease, with a one-year survival rate of about 20 percent, but Ginsburg’s prognosis appeared favorable after what she described in a March 17 press release as “a complete, successful surgical removal” of the early-stage cancer. According to earlier releases from her chambers, Ginsburg had undergone a CAT scan at the National Institutes of Health in Bethesda, Maryland, in late January following a routine checkup. The scan detected a lesion in the pancreas. Doctors removed the one-centimeter abnormality on February 5 and found it to be benign; in searching the entire pancreas, however, doctors discovered a smaller lesion, which proved to be malignant. Doctors removed Ginsburg’s spleen and a portion of the pancreas. She was back on the bench when the Court resumed oral arguments on February 23; ten years earlier, she did not miss a Court session in the 1999—2000 term during treatment for colon cancer. In her March 17 release, Ginsburg said she planned to undergo a “precautionary” course of chemotherapy in late March, which she said would not affect her schedule at the Court. “Thereafter,” Ginsburg concluded, “it is anticipated that I will require only routine examinations to assure my continuing good health.” None of the other justices had any known health problems that would interfere with their work or continued service on the Court. Sotomayor is a diabetic, but White House officials said doctors had given assurances that the condition would not affect her work on the Court. Of the other justices, three were in their early seventies: Scalia and Kennedy, both 73, and Breyer, 71. Thomas turned 61 in June; Alito marked his 59th birthday in April. At 54, Roberts remained the youngest member of the Court even after Sotomayor’s appointment; she turned 55 in late June. Roberts appeared in excellent health; he went for a second year with no known recurrence of the mild epileptic seizure that he suffered in July 2007. With Stevens’s departure only a future contingency, Court watchers turned to studying the issues the justices had already teed up for the coming term and speculating about Sotomayor’s potential impact. Many recalled Justice Byron R. White’s oft-quoted observation: “Every time a new justice comes to the Supreme Court, it’s a different Court.” New justices, however, make their mark only slowly on a Court whose members measure their tenure not in years but in decades.

Document Outline Stare Decisis Precedent in Action Legal precedent is a foundational concept in the U.S. justice system. Supreme Court reporter Kenneth Jost examines the ways in which the justices invoke, and on occasion, overrule a precedent. He does this while analyzing Fernandez v. California, a Fourth Amendment case argued in November 2013. Suppose you share a house with a friend. Police suspect you of doing drugs, but they don't have enough evidence for a search warrant. Cops come to your door and ask you and your housemate for permission to search. Your housemate says OK, but you know your rights, and you say no. Can police come in? The Supreme Court said no in a 5–3 decision in 2006, Georgia v. Randolph . But does that same rule apply if the police arrest you on some other charge and, with you in jail, come back the next day and ask your housemate again for permission to search the house? That was the issue that the Court considered in a new case, Fernandez v. California, that was argued before the justices on November 13, 2013 (click here http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=12-7822&TY=2013 for a recording of oral arguments). The justices' spirited questioning that day provides a useful lesson on the important but sometimes inconclusive role of precedents in Supreme Court jurisprudence. Stare Decisis In a common law system, such as the United States, today's judicial decisions are supposed to be followed tomorrow when other courts confront the same issue. That principle of following precedent is known by the Latin phrase stare decisis (“let the decision stand”). The Supreme Court routinely invokes this principle in its decisions. But the Court sometimes violates stare decisis by explicitly overruling a precedent. By one count, the Court has done so at least 233 times in its history: on average, at least once a year in recent decades. Some of those reversals are fairly technical, but sometimes they are very important. In one recent example, the Court overturned a century-old precedent in 2010 when it held, on a 5–4 vote, that corporations and labor unions can spend unlimited sums on political campaigns ( Citizens United v. Federal Election Commission ). Precedent in Action As the oral arguments in the Fernandez case illustrate, however, the justices can also disagree even when all of them are ostensibly trying to follow, not to overrule, a prior decision. In the earlier case, Randolph, the justices divided along conservative-liberal lines. Justice Anthony M. Kennedy cast a pivotal vote to produce a five-vote majority for refusing police permission to search a house if one of the co-occupants, physically present, objects. (Justice Samuel A. Alito Jr. did not participate in the case; he joined the Court in 2006 after arguments but before the decision.) Both Randolph and Fernandez involved estranged couples. In the earlier case, police searched the Randolph home after Scott's wife Janet said it was OK even though Scott objected. The Supreme Court said that was a mistake. Los Angeles police followed that rule in 2009 when a gang-related robbery suspect, Walter Fernandez, objected to a search of the house that he shared with his girlfriend, Roxanne Rojas. Fernandez's case turned out differently, however, because police arrested him on the robbery charge and returned the next day to ask Rojas again for permission to search. After Rojas agreed, police found weapons and other evidence that were used later to convict Fernandez of robbery. California courts decided that the Randolph rule did not apply because Fernandez was not physically present to object to the search. At the Supreme Court, Kennedy emphatically agreed during oral arguments. "This is not Randolph," Kennedy said from the bench as Fernandez's lawyer argued for throwing out the evidence. "This is a vast extension of Randolph." Chief Justice John G. Roberts Jr. and Justice Antonin Scalia, who had dissented in Randolph, made similar comments suggesting that the precedent did not apply. So did Justice Stephen G. Breyer, who sometimes sides with conservatives on Fourth Amendment search issues. The two justices who joined the Court after 2006—Sonia Sotomayor and Elena Kagan—both appeared ready, however, to follow the Randolph rule in the new case. Kagan voiced concern that police could circumvent the rule by finding a pretext to arrest the co-occupant who objects to a search. "The police have taken the objector away," Kagan remarked at one point. And Sotomayor said police had enough evidence to get a warrant to search Fernandez's house. She argued that Randolph gave police "a clear rule" to follow. After arguments, Court watchers were predicting a ruling in favor of police. But the decision is likely to feature a spirited debate about precedent. Justices in the majority will argue they are following but not extending the earlier precedent, while the dissenters will complain about retreating from the previous rule. The Court will face a similar question about precedent when the issue of gay marriage returns, probably in the 2014-2015 term. Gay marriage advocates will argue that the Court's ruling in United States v. Windsor (2013) to strike down the federal Defense of Marriage Act shows that laws discriminating against same-sex couples are unconstitutional. Opponents will note that the ruling explicitly recognizes the states' traditional authority over marriage. As in many cases, precedent will shape the debate, but not determine the outcome.

For many years, four states have kicked off the presidential nomination process: Iowa, New Hampshire, Nevada, and South Carolina. But that starting order is set to change in 2024, as the Democrats have voted to overhaul their primary calendar. In this Election Report, voting and elections expert Rhodes Cook describes the reasoning behind this change and explores various implications of the new starting lines. Document Outline No Slam Dunk Democrats Demote Iowa For years now, the presidential nomination process has begun in Iowa, followed by New Hampshire, Nevada, and South Carolina (or on occasion, South Carolina and Nevada, by the Republicans). Not surprisingly, there has been an ongoing clamor for change from other states wishing to join the "elite four." Yet for one election cycle after another, nothing has changed. That is, until now. In February 2023, the Democratic National Committee (DNC), at the urging of Joe Biden's White House, voted to adopt a new order of states at the beginning of its 2024 presidential primary calendar. The revised Democratic arrangement would start with South Carolina, voting first on February 3, followed by Nevada and New Hampshire on February 6, Georgia on February 13, and Michigan on February 27, with all five states holding primary elections. The rest of the states could begin holding their primaries or caucuses in early March, including the long-time lead-off state for both parties, Iowa. Whether it will all turn out the way the Democrats have planned is another matter. South Carolina, Nevada, and Michigan are on board with the new DNC plan. But Georgia and New Hampshire are not. The latter is committed to retaining its first-in-the-nation primary, while the Republican state government in Georgia has fixed its 2024 primary for March. Still, in concept, the Democratic line-up of early states marks a big change in the presidential nomination process. The old order, which is being retained by the Republicans in 2024, may begin as early as next January, and features four relatively small states atop the calendar. Demographically, the first two-Iowa and New Hampshire-are overwhelmingly white. Not until Nevada votes, with its large Hispanic population, and South Carolina, with its sizable pro-Democratic African American population, do minority voters begin to have a say. For Biden and the Democrats, that is not good enough. The party's brand is increasingly tied to the idea of racial diversity. Hence, South Carolina is scheduled to lead off the party's presidential primary voting next year. Three days later, Nevada would vote along with New Hampshire. For the first time, the Democrats have scheduled two populous battleground states to hold primaries after that, Georgia and Michigan, which are racially and ethnically diverse and possess far more electoral clout in November than either Iowa, New Hampshire, Nevada, or South Carolina. Biden carried both Georgia and Michigan easily in the 2020 presidential primaries and narrowly in the fall's general election. No Slam Dunk To many Democrats, now was the time to make major changes in their nomination process. Biden seems to be cruising to easy renomination in 2024, freeing the party's rules makers from needing to balance the desires of competing candidates. The question now is whether the Democrats will be able to institute their bold new early-state calendar. It is not a slam dunk. As mentioned, Democrats in South Carolina, Nevada, and Michigan are on board with the February 2024 dates assigned by the DNC (with Nevada jettisoning its long-time caucuses in favor of a presidential primary next year). But Georgia and New Hampshire have not signed on to the Democratic plan. In Republican-controlled Georgia, Secretary of State Brad Raffensperger announced earlier this spring that the Peach State would be holding its presidential primary on March 12 (not February 13) of 2024. In New Hampshire, leaders in both parties have reacted in defiance to efforts to make the state give up its first-in-the-nation primary, a staple in presidential politics since 1952. In revolt, the Granite State could end up scheduling its presidential primary for January 2024, before South Carolina's primary. How long the uncertainty will last is an open question. The DNC had set June 3, 2023, as the deadline for Democratic parties in the two states to inform the national party as to whether they will comply with the new primary dates. A "wrong" answer could trigger penalties from the DNC, including a reduction in the number of convention delegates the state will receive. Yet no announcement has been forthcoming as to how the Georgia-New Hampshire situation will be resolved. In reality, Democrats in the two states do have an alternative. They could create separate party-run primaries to circumvent the state-run contests. That way, they could hold their events on the date that the DNC has reserved for them. The downside is that party-run primaries tend to have fewer polling places and shorter polling hours than their state-run counterparts, and consequently draw fewer participants. Also, the state party must pay for such a primary, often hundreds of thousands of dollars that they can ill afford to spend. Still, with so much on the line, the DNC might weigh in with some financial help. Response to the Democrats' overhaul of the early state calendar has been mixed but emphatic. A Wall Street Journal editorial on February 6, 2023, was headlined, "Rigging the Primaries for Biden," and defended the role of Iowa and New Hampshire over the years in vetting the field of presidential candidates. The Boston Globe weighed in on April 25, 2023, with a strongly worded editorial of its own: "Dems Shouldn't Let N.H. and Iowa Start Nominating Process." The editorial argued that Iowa and New Hampshire no longer deserved their "exalted status" in a nation that was constantly evolving demographically. Yet the idea of a new Democratic "starting five" has other aims besides racial and ethnic diversity. Clearly, one is the desire of Biden and his allies to reward states that were critical to his nomination as well as reduce in stature those that were not. In 2020, Biden finished a distant fourth and fifth, respectively, in Iowa and New Hampshire. He ran better in Nevada, where he ran a distant second. The erstwhile Democratic front-runner, Biden entered South Carolina needing a lifeline to keep his candidacy afloat. He got one in the form of a primary-eve endorsement from Rep. Jim Clyburn, number three in the House leadership (as the Democratic majority whip at the time) and South Carolina's most powerful Democrat. With Clyburn's support, Biden scored a landslide victory in the Palmetto State that overnight changed the complexion of the Democratic race in Biden's favor. Another key factor in the new Democratic order is to tie some of the high-profile early-voting primary states to the fall's Electoral College map, with the idea that any organizing and campaigning for the primary will benefit Biden in the fall. Newcomers Georgia and Michigan are both battleground states with substantial electoral vote totals (Georgia, 16; Michigan, 15.) Republican Donald Trump carried them both in his successful 2016 general election campaign; Biden swept them both narrowly in 2020. And while New Hampshire and Nevada are smaller prizes (Nevada, 6 electoral votes; New Hampshire, 4), both are also battleground states whose electoral votes could be critical if the 2024 election is very close. South Carolina is the only one of the projected Democratic "starting five" next year that is not a battleground state. Jimmy Carter, a son of the rural South, was the last Democratic presidential nominee to win its electoral votes back in 1976. Trump won South Carolina by 12 percentage points in the 2020 general election. Democrats Demote Iowa Once a battleground state but arguably not any more is Iowa, which by and large has been the first state to vote in both the Democratic and Republican presidential nominating contests since the 1970s. For much of the half century since then, it was a battleground state that leaned Democratic in presidential elections. In six of seven contests from 1988 through 2012, the Democratic nominee carried Iowa (the exception being 2004, when Republican incumbent George W. Bush won it by seven-tenths-0.7-of a percentage point). But since 2012, Trump has swept Iowa twice by a margin approaching 10 points each time. As a consequence, the Hawkeye State is looking more and more like other ruby-red states in the nation's rural heartland, and likely will be off the list of battleground states altogether in 2024. There is also little doubt that Iowa has worn out its welcome with national Democrats. Over the years, both parties in the state have held precinct caucuses on a winter evening, requiring voters to demonstrate more effort and commitment than if the state had held a straightforward, higher turnout primary with polls open all day. Complicating the situation, Iowa Democrats have long employed an exotic method of counting the vote that can be complex and difficult to comprehend. In 2020, there were actually three caucus night counts taken by the Iowa Democratic Party: first, a non-binding entrance poll as voters arrived for the caucuses (Bernie Sanders led Pete Buttigieg in this category by more than 6,000 votes); second, a non-binding vote after voters had arranged themselves into viable candidate groupings (Sanders led Buttigieg by more than 2,500 votes in this tally); and third, the vote that actually mattered in determining the allocation of delegates, which has used a measurement called "delegate equivalents." Buttigieg won the latter, 562,954 to Sanders' 562,021, a margin of less than 1 delegate equivalent in an ostensibly complete tally by the Iowa Democratic Party. The razor-thin result raised questions as to which candidate actually won, although Buttigieg received credit for doing so. If all this was not enough, Iowa Democrats suffered the additional embarrassment on caucus night in 2020 of seeing the new technology they were unveiling to tally the vote actually break down. With media from around the world encamped in Iowa to broadcast the results, there were no votes to analyze until the next day. Quickly, a loud chorus arose throughout the Democratic Party: Begone Iowa caucuses! The state's Republican Party largely escaped the nearly universal condemnation that befell its Democratic counterparts because the GOP has traditionally employed a simple way of counting the vote that uses primary-like ballots. As a result, Iowa remains number one on the 2024 Republican presidential nomination calendar, and the widening field of GOP candidates is scheduling repeated stops in the state. Encouraging those not named Trump is the fact that Iowa was the only one of the four early states that Trump failed to win in 2016, losing by 4 percentage points to Ted Cruz. In New Hampshire, South Carolina, and Nevada, Trump defeated the primary or caucus runner-up in each state by 19, 11, and 22 points, respectively. Those upset by the Democrats' new opening calendar next year need not be. It is being viewed by the national party as a one-time experiment. After the 2024 election, party leaders will either tweak their handiwork or do a wholesale revision once again. But it is hard to see them going back to their old order, with Iowa and New Hampshire atop the primary calendar. That Gordian knot has been cut. Rhodes Cook June 19, 2023