Sandra Day O'Conner speaks at Pomona. Photo Courtesy of Stephannie Herrick.

By: Stephanie Herrick, 2L

Former United States Supreme Court Justice Sandra Day O’Connor spoke about the importance of judicial independence and education during the Distinguished Speakers Lecture at Bridges Auditorium at Pomona College on Tuesday, March 30.

An audience of roughly 1,000 people enthusiastically greeted the retired justice, who served on the U.S. Supreme Court from 1981 to 2006.

“When I retired from the U.S. Supreme Court, I had become aware of a serious problem in the United States that affects our nation’s courts, both state and federal,” O’Connor began. “There are a great many people in the U.S. today who think that judges are just politicians in robes.”

She said that the general view among Americans is that judges are “activist, secular, godless humanists trying to impose their will on the rest of us.” As a retiree of the court, O’Connor said she felt she should discuss this issue. She said that the courts play a vital role in our country. “It’s clear to me that we have to care about the judicial branch,” she said.

“Having your day in court in this country means standing before an impartial judge or panel of judges, and having the merits of the case decided without passion or prejudice. It means that there is at least one safe place, where being right is more important than being popular. And where fairness trumps strength,” O’Connor said.

“I worry that this ideal of having one’s day in court is being eroded by the ever increasing threats to judicial independence across the country.”

O’Connor then discussed the importance of judicial independence, the modern day threats to it and how she believes people might better defend against those threats. She stated that these problems should concern not only state but also federal judges since people see judges as a group, and do not separate them by city, state, appellate and federal. She said one major problem is how to choose judges.

“Should our judges face recurring elections, or do their jobs require a higher degree of insulation from popular reprisal? Should judges have a life term or specific term limits?”

She said that these problems are not easy to answer, but we might look to how our founding fathers decided to choose Supreme Court justices as a guideline.

“Many Americans today do not even see the need for independent judges. Many tell us they prefer a judiciary that merely acts as a reflex of popular will,” said O’Connor. “A great majority of our state court judges are elected. California still elects some of its judges. No other nation in the world has chosen to elect their judges.”

“This system has had a harmful effect on how the public perceives judges and their role.” O’Connor stated that a system that relies on popular elections to select judges destroys the respect people have for judges.

She said that if she could do just one thing to improve the reputation of this country’s judiciary, it would be to convince states to stop having elections and instead switch to merits selection or some other appointment system.

“The single greatest threat to judicial independence is fairly modern and uniquely American,” she said. “And that is the flood of money that is coming into our courtrooms by way of increasingly expensive and volatile judicial campaigns. One reason for this is well-organized special interest groups who have strong preferences in the outcome of certain kinds of cases.”

“Campaigning for a state judicial office is often as expensive as campaigning for a seat in the United States Senate,” she said.

O’Connor discussed a case where a single donor contributed more than $3 million for a judicial campaign – and how the judge elected voted in favor of the donor, who was also a party to a case pending before the court. She said that judicial campaigns and cases like this breed distrust in citizens.

“The mere appearance of such a gross impropriety drastically undercuts the public respect for the judiciary,” she said.

“Voters in states that elect judges are more cynical about the courts, and . . . are less likely to believe that judges are fair and impartial.” She said that some studies show that judges are, in fact, influenced by campaign contributions.

“An independent judiciary is critical for all citizens, and unregulated judicial campaigns threaten Americans’ trust in the process.”

O’Connor went on with her next main point, which was that ignorance about the role of the judiciary is a big problem in this country. She said that the long-term solution to this problem is education.

“We have to bring real and meaningful civics education back into our classrooms. Knowledge of our system of government is not handed down through the gene pool,” O’Connor said.

“According to the Annenberg Public Policy Institute, two-thirds of Americans know at least one of the judges on American Idol, but only 15 percent can identify the chief justice of the United States,” she said.

To help combat this problem, she launched the website www.ourcourts.org, which features free interactive online games about civics targeted to middle school students. In one of the games, students play a law clerk to a Supreme Court justice and help decide a case, and then students can help write the majority opinion. In another game students help run a Constitutional Rights law firm, advising clients of their rights. The website also has resources for teachers, online videos and information, and a forum to discuss civics topics.

After her lecture student audience members were given the chance to ask questions directly to O’Connor. She made the audience laugh many times throughout the question-and-answer period.

“I thought it was great, I was surprised how much I laughed. She was funny. I love her wittiness and quick comebacks,” said Caroline “Tina” Morales, who graduated from Southwestern in 2003.

Later this year, the U.S. Supreme Court will rule in American Needle v. NFL, a case some have described as the “Super Bowl of sports litigation” and a possible “Armageddon” for the business, marketing and structure of sports in America. Put simply, American Needle is the most significant court case in modern U.S. sports history, with far-reaching ramifications for the marketing, business, and structure of the NFL, NBA, MLB, and the rest of the nation’s professional leagues.

In December 2004, American Needle, Inc., a manufacturer of NFL-licensed hats, caps, and merchandise, filed an antitrust case against the NFL, claiming that the league illegally deprived the company of its market share through an illegal, monopolistic restraint on competition. American Needle, along with several other licensees, had produced hats, T-shirts, and other apparel containing NFL trademarks and logos for decades. However, in response to declines in merchandising revenue during the 1990s, the NFL granted Reebok the exclusive right to manufacture NFL-licensed merchandise, eliminating American Needle and its fellow licensees. Faced with the loss of its main revenue stream, American Needle commenced litigation against the NFL and its 32 member teams, claiming that Reebok’s exclusive manufacturing license was an illegal “contract, combination . . . or conspiracy,” as defined by Section 1 of the Sherman Antitrust Act.

Antitrust claims have historically been a common form of litigation against the NFL and other professional sports leagues, but the American Needle case is different. After a trial court and court of appeals ruled in favor of the NFL, American Needle succeeded in a request for review by the U.S. Supreme Court. In a surprising turn of events, the NFL came out in support of the case, asking the justices to render a far more expansive, far-reaching judgment and grant the league total immunity from all forms of antitrust scrutiny. The justices heard oral arguments on January 13, and a definitive ruling is expected in June.

The legal doctrine at the center of American Needle is known as “single entity.” If the Court rules that the NFL is a single, unified entity, rather than a group of 32 separate, competing businesses (or teams), the landscape of American sports will undergo a drastic transformation. The issue before the Supreme Court’s justices is not simply whether the NFL/Reebok exclusive licensing arrangement is legal under antitrust law, but whether such an arrangement should be exposed to any antitrust scrutiny at all. A positive ruling for the NFL would grant it complete immunity from Section 1 scrutiny, while a loss would open up its business and conduct to considerable legal scrutiny. If the NFL succeeds, league violations of American antitrust law will be impossible to establish, given that a single, unified entity cannot “combine, contract or conspire” with itself under the language of the Sherman Act. While the NFL itself has conceded that it does not resemble a traditional single entity firm with a single owner, it contends that the league is only profitable and viable through cooperation among its teams. The NFL believes that this interdependence makes the league a single entity and that each and every agreement made by the league and its teams - free agency, salary cap rules, player contract scales, game schedules, etc. should be exempt from Section 1 scrutiny.

What Will the Court Decide?
At this point, nobody besides the justices themselves knows how the Supreme Court will rule. The NFL and other sports leagues have repeatedly tried (and failed) to be recognized as a single entity, and judicial precedent certainly has revealed lower courts’ reluctance to grant absolute immunity in such matters. Nevertheless, the final decision in the single entity debate will rest upon the views of the Supreme Court’s nine justices. In similar antitrust cases, the Court has generally held that individual, interdependent competitors may still be considered separate entities capable of harmful competition and Section 1 violations. In oral arguments, Chief Justice Roberts and Justices Breyer, Scalia and Sotomayor seemed unconvinced that the NFL’s broad single entity argument was distinguishable from these prior cases, with Justice Breyer specifically noting the NFL’s failure to adequately explain why individual NFL teams’ need for cooperation makes them a single entity.

A reasonable conclusion is that the NFL is indeed a joint entity, comprised of individual teams collaborating and cooperating to produce professional football. Sports franchises compete and contract with each other for coaches, executives, and players, as well as advertising, merchandise, and revenues. Agreements made by individual teams certainly have the potential to harm competition. The NFL itself was formed by a group of preexisting independent teams in the 1920s, contradicting the league’s assertion that teams cannot exist or have value independently. Success by the NFL would signal a sea change in American sports leagues as we know them today. Team owners could attack free agency, prevent player movement and curtail salaries, and systems like college football’s BCS would enjoy increased protection from legal challenges. Lockouts, strikes, and labor disputes might become increasingly more common, and teams would have increased freedom to raise the prices of tickets, merchandise, and apparel.

Realistically, it’s unlikely that the NFL will win a decisive victory, but “Armageddon” might be closer than you’d like to believe.

Written by Phil Soon, 2L Day Staff Writer

by Alex Hoffman, 3L Day

Since President Obama announced his pick of Judge Sonia Sotomayor as the replacement for retiring Justice Souter on the Supreme Court, her confirmation has been entangled with controversy. While many Senators have expressed their confidence in Sotomayor’s judicial experience and knowledge of the law, the milestone that is the appointment of the first Hispanic Supreme Court Justice has been bogged down by comments Sotomayor previously made in 2001.

Sotomayor’s controversial statement at issue was that “a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Race was further injected into the confirmation process, as one of the cases she ruled on as a federal appeals judge, Ricci v. DeStefano, which dealt with the racial discrimination of white firefighters was overturned by the Supreme Court.

This resulted in Sotomayor being asked tough questions during confirmation hearings before the Senate Judicial Committee. When explaining her questionable remarks regarding her gender and race, Sotomayor stated that her comments were made in order to inspire Hispanic students to achieve what she has accomplished and maintained that she could rule objectively. While all Democratic Senators on the Committee have thrown their support behind her, Senator Lindsay Graham of South Carolina was the sole Republican to vote in favor of her. Other Republicans on the panel have opposed her due to her more evasive answers regarding the gun rights, abortion and affirmative action. This contrasted with comments made by Democratic Senators, such as newly minted Al Franken who claimed Sotomayor was “the most experienced nominee to the Supreme Court in 100 years.”

Despite the controversies and lack of bipartisan support, Judge Sotomayor appears to be heading towards Senate confirmation. No Democratic Senator has stated he or she will vote against her and several Republican Senators have made it public that they will confirm her, such as Senators Susan Collins and Olympia Snowe from Maine, Richard Lugar from Indiana, and Mel Martinez from Florida. Even without Republican support, Sotomayor’s confirmation is reasonably safe, with the addition of comedian Al Franken to the Senate, which ensures a filibuster proof majority of 58 Democratic Senators and two independents who caucus with them. Further, Senator Lindsay Graham was quoted as saying to Sotomayor, “Unless you have a complete meltdown you will get confirmed.”

Senate Republicans who fought with Senate Democrats over voting on President Bush’s judicial appointments of Chief Justice Roberts and Justice Alito may also be pressured by accusations of hypocrisy if they attempt to delay Sotomayor’s Senate confirmation. This does not appear to be the case, as many Senate Republicans have promised a speedy confirmation. The top Republican on the Senate Judicial Committee, Senator Jeff Sessions has announced that he will not support judge Sotomayor, but that he would not support any attempt to block a final vote on her confirmation.

If confirmed, Judge Sotomayor will be the first Hispanic to be appointed to the U.S. Supreme Court and the third woman appointed to the court.