Because the United States Supreme Court is destined, in four cases this year, to touch the lives of everyone involved in erotic media, this is one of those few editions of this column that will run both in AVN and in AVN Online - a reminder, by the way, that if you only read one of the two publications, you are missing much that is in the other.
This topic begins with Article III, Section 1 of the United States Constitution, adopted in 1789:
"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."
Spelling and capitalization evidence the age of this provision which, you will recall, was originally written in long-hand.
Section 2 of Article III goes on to dictate that the judicial power shall extend to all cases and controversies, which has been interpreted to mean that it is limited to cases and controversies. So, if a dispute is not ripe, or becomes moot, federal courts lose jurisdiction. (But then again, there was Erie v. Pap's A.M.... )
In the United States' first years, Supreme Court justices - who are appointed by the President upon the "advice and consent of the Senate" - were not-too-important political appointments. The federal government did not do that much back then, so decisions interpreting the Constitution and federal statutes were not that important.
But shortly thereafter, the Court secured its position as a branch of government at least as important as the other two. In Marbury v. Madison and Martin v. Hunters Lessee, the Court decided that, when faced with a conflict between the Constitution and a federal or state activity, the Constitution wins. The power to nullify legislative or executive activity of any branch of federal or state government is "awesome," as one federal judge once told the author.
The Supreme Court first began to impact our daily lives dramatically during the Depression, when it expanded the "commerce power" (Article I, Section 8) to facilitate FDR's controversial programs. Important to this industry, however, are the later decisions of the Warren Court - led by Eisenhower-appointed Chief Justice Earl Warren - that began messing with social issues such as school integration and free speech about sex. Suddenly, the Supreme Court was intensely political. It was one thing for the Court to expand the economic power of the federal government during the Depression; it was quite another for it to turn morality upside down, as was (and to a large extent, continues to be) the public's perception.
In 1968, Richard Nixon ran on a platform that he would appoint "strict constructionists" to the Court - Republicanspeak for justices that would allow the executive branch of government wide latitude in its exercise of power, and would hinder criminal defendants and non-mainstream people from garnering assistance from the Constitution.
Since Sandra Day O'Connor's appointment - a slam-dunk as the first woman justice - every Supreme Court vacancy has been a political battlefield. Do not look for that to change.
The Supreme Court operates in close quarters. Before 1935, the Supreme Court operated in a small area in the Capitol Building. At that point, presumably some combination of Congress' never-ending appetite for staff space and the notion that the Supreme Court, as an independent branch of government, should have its own building, resulted in the construction of the Supreme Court building, directly east of the Capitol and adjoining the Library of Congress. However, from the inside of the Supreme Court Building, decisions that have profoundly changed the course of our culture have emanated: Ordering school desegregation; preventing states from limiting access to birth control or information about it; abolishing, and later reinstating, the death penalty; legalizing abortion; establishing that a pauper has the same rights as others to an attorney and other resources necessary to defend a criminal case; and so on. To put this all in perspective for this industry, the Supreme Court unleashed government's power to enforce obscenity laws in the 5-4, 1973 Miller v. California decision.
The Supreme Court Building consists of the offices ("chambers") of each of the justices, as well as space for their law clerks. They have four to five clerks each, along with a remarkably small administrative staff.
The most coveted job of a law school graduate is to work as a clerk to a Supreme Court justice. The clerks are the best and the brightest. A typical clerk for a Supreme Court justice - a one-year stint - is a top graduate of one of a handful of the top law schools in the country (Harvard, Stanford, Yale, etc.) who has served as a clerk to a respected judge of one of the United States Courts of Appeals. Needless to say, after two or three years of that modestly compensated clerking, one can write his or her own ticket.
The process culminating in a Supreme Court opinion normally begins with a decision from one of the 13 United States Courts of Appeals or from the supreme court of a state. The loser files a petition for a "writ of certiorari," which in English means a petition requesting that the Supreme Court accept the case and overturn the lower court's decision because it incorrectly interpreted the United States Constitution or a federal statute. The petitioner must file 40 copies of the petition, which must be printed and bound. Oddly, a company in Nebraska seems to have cornered the market on printing briefs and petitions for the Supreme Court.
With very few exceptions, the Supreme Court hears only cases that it wants to hear. Convincing the Court to accept a case for a full briefing, argument, and decision ("plenary review") is best accomplished not by urging that the lower court's decision was wrong, but rather encouraging the justices to "realize" that it is in the national interest for judges, lawyers, and everyone else to know the answer to what is called "the question presented."
Every term, thousands of petitions for certiorari are filed. (A "term," incidentally, begins on the first Monday in October - remember the movie with the same name, starring Walter Matthau and Jill Clayburgh? - and lasts one year.) Of the thousands of petitions filed each year, typically less than 100 receive the four votes needed for the Court to fully consider the case. If your petition for certiorari fails, as most do, to garner the votes of four justices, you lose; no briefs; no argument; no day in the Supreme Court. As a practical matter, because of the avalanche of petitions that are filed every term, the decision as to whether to accept a case is largely influenced by a committee of law clerks that makes a recommendation in each case.
When something about a case piques the interest of four or more of the justices, a one-sentence order is issued: "The petition for certiorari is granted." The law firms involved always learn of this order long before it arrives in the mail. Supreme Court orders are announced at 9 a.m. Eastern time, and the lawyers invariably find their phones ringing off the hook within an hour, due to news reporters wanting a comment. This is disquieting to those of us on the West Coast; the phone rings at 6:45 a.m..
Lawyers who have filed petitions for certiorari, or have had petitions filed against them, never really plan to go to the Supreme Court, any more than you really plan to win the lottery when you purchase a ticket. The odds are just against you. But when the news arrives that you will be briefing and arguing a case in the Supreme Court - in other words, that you are about to become part of history - your entire life changes. Everything else goes to the back burner.
A brief is due a month or two after certiorari is granted. But this is not just another brief; this is the Super Bowl of briefs! In ordinary briefs on constitutional issues, the lawyer's job is to explain why the court must rule a certain way because of governing Supreme Court precedent. In the Supreme Court, normally the case is there to resolve an issue that the Court has never before decided. You, indeed, are making history. Every word in the brief must be just right. Even though you know this case like the back of your hand - having been through a trial and one or two appeals - this is the Supreme Court. It is not uncommon to be faxing last-minute changes in the brief to Nebraska at 3 in the morning.
Preparing for oral argument is no different. You must anticipate every possible defense, every question any justice might ask, no matter how obscure. The lawyer who will argue the case likely will cloister himself or herself for a week prior to argument, along with a committee of expert lawyers.
There now typically are two arguments scheduled for each argument day; the Court scheduled three per day back when the Court was accepting significantly more cases. Each side is ordinarily allowed 30 minutes per argument - and not a second longer. Only one lawyer is ever permitted to speak for each side. The Court's rule is simple: If a side (which often consists of several parties with several attorneys) cannot decide which lawyer will argue the case for it, it cannot present argument at all. Each arguing lawyer is allowed two "assistant lawyers" at counsel table.
Early in the morning, the lawyers check in with the Clerk of the Court, and thereafter convene in a sort of "argument ready" room, where they are instructed on the Court rules. You can cut the tension in there with a knife.
Shortly before 10 a.m., the lawyers assigned to argue the first case are seated at the counsel tables on either side of the podium. The lawyers assigned the second case are seated at a parallel system of counsel tables directly behind, ready to swiftly move to argument position immediately after the first case ends.
Promptly at 10 a.m., Court is called to order exactly as it has been for centuries: "Oyez, oyez, oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court."
The Justices file out from behind a curtain, assume their magnificently upholstered thrones, and the Chief Justice calls the first case. Incidentally, this is not the "Chief Justice of the Supreme Court"; the correct title is "Chief Justice of the United States."
Each litigant invariably consumes the entire allotted 30 minutes, and most have reported that the time seems to go by in seconds, with the attorneys usually unable to get all of their prepared remarks in edgewise because the entire time is consumed by the Justices peppering questions, often simultaneously.
"Your time is up," snaps the Chief Justice, too often just as the responding attorney in the first case is trying to get in one more seemingly crucial point. The first group of litigants vacates the counsel tables and the lawyers for the next argument scramble into the pilot seats as the Chief Justice announces that next case.
After the argument, months pass before the decision. Then the phone rings; it's a reporter. You have won or lost, but it is over; you are a part of history.
The current lineup of Supreme Court justices is a study in contrast: Seven men and two women, born in eight different states - only California has produced two of the current crop of justices. Five law schools produced them all: Five Harvards (Scalia, Kennedy, Souter, Ginsburg, and Breyer); two Stanfords (Rehnquist and O'Connor); one Yale (Thomas); one Northwestern (Stevens); and one Columbia (Ginsburg). (There is no mistake here; Justice Ginsburg attended both Harvard and Columbia.)
As we go to press, the justices range in age from 53 to 81, with the average age just over 67. As you would imagine, communicating with a crop of individuals of whom six are past what most would consider retirement age can prove difficult. Having said that, however, the oldest, Justice Stevens, is as receptive as any member of the Court to arguments advancing the First Amendment right to engage in erotic expression.
Seniority is important on the Court. The Chief Justice is always senior, even if the most recently appointed. As it happens, Chief Justice Rehnquist is both the member with the most years of service and Chief Justice.
The justices sit according to seniority, with the Chief Justice in the center of the nine with the most junior of the associate justices on the ends. After arguments, they vote according to seniority, the most junior justice first and the Chief Justice last. The most senior justice who sides with the majority assigns the duty of writing the opinion. That is presently important because, after the Chief Justice, Justice Stevens, a liberal, is senior of the associate justices. Thus, in order of seniority, the nine individuals deciding the extent of your First Amendment rights to engage in erotic speech are:
Chief Justice William H. Rehnquist. A 77-year-old Lutheran, the Chief Justice was born and raised in suburban Milwaukee; he is Stanford- and Harvard-educated, and was a clerk to Justice Robert H. Jackson. After a 16-year career as a civil-litigation attorney in Phoenix, he came to Washington to work under President Nixon for three years until 1972, when he was sworn in as an associate justice. A product of President Nixon's promise to appoint "strict constructionists" to the Court, then-associate Justice Rehnquist's consistent, hard-line, conservative rulings were rewarded in 1986, when President Reagan elevated him to Chief Justice. As such, he has continued to push the Court to the right.
Associate Justice John Paul Stevens. The Court"s only octogenarian, the 81-year-old justice was a lifetime Chicagoan until Pres-ident Ford appointed him to the Supreme Court in 1975. He was educated at the University of Chicago and Northwestern Uni-versity Law, and was a clerk to Justice Wiley Rutledge. He practiced law in Chicago for 20 years, specializing in antitrust, before being appointed to the Court of Appeals there in 1970, where he served for five years. Although the oldest member of the Court and appointed by a Republican, Justice Stevens' opinions have strongly endorsed individual liberties.
Associate Justice Sandra Day O'Connor. Born in El Paso, Texas, the 71-year-old justice received her undergraduate and legal education at Stanford. After graduation, she stayed in the neighborhood, becoming a deputy county attorney for San Mateo County. She moved to Germany for a couple of years and then to Phoenix. With the exception of a couple of years of private practice in Phoenix, her entire career has been as a public servant of some variety, first as an assistant attorney general in Arizona, then as an Arizona state senator, and then as a judge - first a Phoenix trial court, and then the Arizona Court of Appeals. In 1981, she was appointed by President Reagan as the first woman to serve as a justice on the United States Supreme Court. Although she was toward the conservative side of the court when appointed, she now is in the center, almost never on the losing side.
Associate Justice Antonin Scalia. A 65-year-old native of Trenton, New Jersey, Justice Scalia initially was educated at Georgetown University, as well as in Switzerland. A graduate of Harvard Law, he spent the first six years of his career in the Cleveland, Ohio office of a huge national law firm. He taught law at several institutions, including the University of Virginia, Georgetown, the University of Chicago, and Stanford, until 1982 when President Reagan appointed him to the United States Court of Appeals for the District of Columbia, a classic "holding place" for Supreme Court candidates. Four years later, President Reagan appointed him to fill the vacancy created by the elevation of Justice Rehnquist to the Chief Justice position. He has consistently been an outspoken conservative member of the Court. His teaching background often surfaces in oral arguments, where he aggressively spars with the litigants.
Associate Justice Anthony Kennedy. Also 65, Justice Kennedy was a Californian until his 1987 appointment to the High Court. Educated at Stanford, with a stint at the London School of Economics between undergraduate and law school, he was in private practice in Sacramento for 15 years, until he was appointed by President Ford to the Court of Appeals for the Ninth Circuit. He also taught constitutional law for more than 20 years until 1988, when he joined the Court. He often, but not always, votes on the conservative side of the Court. Notably, Justice Kennedy was appointed after the firestorm of controversy over President Reagan's nomination of off-the-wall, arch-conservative Robert Bork, whose nomination was killed by the Senate.
Associate Justice David Souter. A surprise 1990 nominee of the first President Bush, 62-year-old Justice Souter was a scholar - Harvard, Phi Beta Kappa, Rhodes Scholar, Harvard Law - from Massachusetts. He was in private practice in Concord, New Hampshire for a couple of years, moving on to the New Hampshire Attorney General's office, finally serving as that state's attorney general from 1976-'78. From there, he became a New Hampshire trial judge, justice of the New Hampshire Supreme Court, followed by his 1983 appointment by President Reagan to the First Circuit Court of Appeals. He finds himself in the middle of the Court, in more ways than one.
Associate Justice Clarence Thomas. The youngest member of the Court at 53 and the only African-American member of the Court, Justice Thomas went from a seminary to Holy Cross University to Yale Law School. He was admitted to the Missouri Bar in 1974, where he went to work for the Missouri Attorney General's office, alongside John Ashcroft. After about three years of that and a couple of years as an in-house corporate counsel, he went to work for Sen. John Danforth for a couple of years and then to the United States Department of Education for a short time, followed by eight years as Chairman of the United States Equal Opportunity Commission. When then-President Bush nominated him to the Supreme Court, Justice Thomas was confronted by former associate Anita Hill, who testified before the Senate in opposition to his appointment, accusing him of sexual harassment during his tenure as EEOC Chair. Many saw his nomination, to replace the retiring (liberal) Justice Thurgood Marshall, as a slap in the face to Marshall's stalwart defense of individual rights and rights of minorities for a quarter century, and it was feared that he would be unsympathetic to the plight of minorities. Indeed, he regularly sides with Justice Scalia at the most conservative end of the continuum.
Associate Justice Ruth Bader Ginsburg. A 68-year-old Brooklyn native, Justice Ginsburg stayed near home to attend Cornell University and, after two years at Harvard Law, returned to New York to graduate from Colum-bia Law School, concluding a very impressive academic career. After clerking for a district judge in New York City, she embarked upon an outstanding teaching career, along with a wide array of activities with organizations including the American Bar Association and the American Civil Liberties Union. Appointed by President Carter to the United States Court of Appeals for the District of Columbia in 1980, she remained there until elevated to the Supreme Court by President Clinton in 1993. Her ACLU experience often surfaces in her positions on issues of individual liberties.
Associate Justice Steven Breyer. A 63-year-old native of San Francisco, Justice Breyer went one county south to Stanford, beginning a superb academic career that included posts at Oxford and Harvard Law. After clerking for Justice Arthur Goldberg, he spent two years in the Department of Justice, followed by a 13-year teaching career at Harvard, ending in 1980 when President Carter appointed him to the United States Court of Appeals for the First Circuit. President Clinton appointed him to the High Court in 1994. Notably, Justice Breyer took some time from his teaching assignments in 1973 to serve as an assistant special prosecutor in the Watergate Special Prosecution Task Force.
Clyde DeWitt is a partner in the Los Angeles office of the law firm of Weston, Garrou & DeWitt. He can be reached through AVN Online's offices, at his office at 12121 Wilshire Boulevard, Suite 900 Los Angeles, CA 90025, or by email at [email protected]. Readers are considered a valuable source of court decisions, legal gossip, and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases, and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.
