Center Court

• Author: Mark Walsh
• Pages: 20-21

Supreme

Court

Report

The Docket

20 || ABA JOURNAL SEPTEMBER 2018

Oklahoma’s solicitor general, Mithun

Mansinghani, did t he same.)

All of these agencies have be en

meeting to discuss t he potential

change. Grayless, the Tulsa County

prosecutor, says his o ce ha s met

with Trent Shores, U.S. attorney for

the Northern Distr ict of Oklahoma,

as well as the governments of a ll

Five Tribes. Those discussions have

focused on how to work together,

both to prepare and in ca se the

Supreme Court upholds the ruling.

Both cross-deputizat ion, in which

jurisdictions ag ree to honor the

authority of each other’s law enforce-

ment o cers, and more hir ing have

been discussed. In s ome cases, the

collaboration is alrea dy happening;

a tribal prosecutor in D owell’s o ce

is a special assi stant U.S. attorney,

and U.S. attorneys’ o ces are

supposed to have tribal lia isons.

A bigger problem for Grayless’

o ce could be jur isdictional chal-

lenges to old convictions—just like

Murphy’s. Because jurisdic tion is

never waived in Oklahoma , defen-

dants may be able to challenge their

convictions in stat e court even if

they’ve exhaust ed other appeals. For

older cases, this creat es evidentiary

problems—witnesses may have died,

case fi les thrown away.

And then there’s the problem

of who is considered an America n

Indian. Because some tr ibes make

eligibility contingent on ances try

rather than blood quantum, a rrest-

ing o cers may not real ize that a

crime involved an Indian. Gr ayless

is also concerned about what hap -

pens if someone obtains triba l

citizenship aft er the fact.

“Your obvious ones are currently

enrolled tribal members who a re

still in prison, when the c ase clearly

occurred in the h istorical bound-

aries of the Creek Nation,” he says.

“Everything else i s going to be

litigated.”

As with civ il jurisdiction, Royster

advises ca lm regardless of how the

Supreme Court rules. “It’s going to

take a period of adjustment ,” she

says. “But the fact is, outside of the

Five Tribes in Oklahoma, e very other

state and every ot her Indian tribe

works this out just fi ne. Oklahoma

can too.” Q

Center Court

The chief justice slides into the high court’s

ideological middle w ith the retirement

of Justice Kennedy By Mark Walsh

Just two days after

Justice Anthony M.

Kennedy announced

his retirement June

27, Chief Justice

John G. Roberts Jr. made his way,

as he has done for many years,

to the Judicial Conference of the

4th U.S. Circuit Cour t of Appeals

at Richmond, Virgi nia, for which

Roberts is circu it justice.

“There’s been some news lately,”

Circuit Judge J. Harvie Wil kinson

III told Roberts in an underst ated

reference to Kennedy ’s retirement

announcement .

The chief justice smiled and t hen

lauded Kennedy as “an extra ordinary

man” and “extraordina ry jurist” who

was “deeply committed to colleg ial-

ity and civil d iscourse.” The amiable

conversation be tween Wilkin son and

Roberts continued for about 40 min-

utes, with Wil kinson asking about

an academic study of int erruptions

on the bench, about which books the

chief justice planned to re ad over

the summer, and about how well the

justices get along with e ach other.

“Relations among the justices are

very collegial,” Rober ts said. “We

have sharp disag reements on matters

that are quite import ant. … However

direct the disa greements may seem,

we do know that we are all in it

together.”

One matter Wilk inson didn’t ask

about, and Roberts d id not bring up,

was the new role the chief justice w ill

assume when the court re turns for

a new term Oct. 1—median just ice.

That’s the court member at its ideo-

logical center, as measur ed by politi-

cal scientists who st udy the court.

“Roberts is going to be in a po si-

tion of great power on the court ,”

says Lee Epstein, a profess or at the

Washington University School of

Law in St. Louis who spec ializes in

law and political science.

Kennedy has been the media n

justice since Justice Sandr a Day

O’Connor’s 2006 retirement. And

when they served together, they of ten

traded spots at the cour t’s center.

Although Kennedy did not like

the term swing justice, he could

not escape being referred to by t hat

appellation by many court obser vers,

based on his position as the jus tice

who often joined the court ’s four

conservatives but sometime s cast his

vote with the libera l bloc on issues

such as LGBTQ rights, abor tion

rights and a rmative action.

Roberts was in t he minority in

recent decisions in those area s but

has been successf ul in pushing the

court to the right on na rrowing the

scope of the Voting Rights Act of

1965, sharply limiti ng when K-12

schools may consider race in assig n-

ing students to a partic ular school,

and in considering many cri minal

matters.

“Roberts is not Kennedy,” Epstein

says.

MOVING TO THE RIGHT

Epstein was the co -author of a

seminal 2005 ar ticle in the North

Carolina Law Revie w, “The Median

Justice on the United States Supreme

Court.” The median justic e “is essen-

tial to secure a major ity” on the

court, Epstei n and her co-authors,

Andrew D. Marti n and Kevin M.

Quinn, wrote . The article introduced

the “Martin- Quinn score,” a method

of classify ing each justice on an

ideological scale that doe sn’t rely

exclusively on past votes.

Epstein and Mart in joined two

other scholars in a 2007 art icle, “The

Judicial Common Space,” discussi ng

another way for classify ing judges

based on the part y of their political

patrons. These scores place cu rrent

court members from lef t (most

liberal) to right (most conservat ive)

in this order: Sonia Sotomayor,

Ruth Bader Ginsburg, Elena Ka gan,