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Analysis: With only eight, caution is the norm

October 6, 2016 by Lyle Denniston


The Supreme Court’s second day of hearings in its new term moved the Justices directly into some of the most significant controversies they will face in coming months, and it was plain that the outcomes are hardly going to be bold.  In a case of huge significance for those who buy and sell stocks, and in a case that highlights how racial bias can infect justice, the Court reached openly for narrow consensus.

The facade of the United States Supreme Court building in Washington, D.C.
The facade of the United States Supreme Court building in Washington, D.C.

It has become commonplace, among those who watch the Court closely, to view the fact that there are only eight Justices instead of nine as a major influence on how cases get decided — less daringly, and with more tightly controlled impact.

In the big case growing out of a $5.2 million scandal of insider trading based on secret corporation information, the Court steered a course midway between a Wall Street lawyer’s plea to let a lot more trading get done with such information, and a government lawyer’s suggestion to tighten the controls more stringently.  That was how it went in Salman v. United States, the first case heard Wednesday.

And in the Texas murder case involving an explicit prediction during the trial that black people are likely to be more dangerous because they are black, the Court showed a willingness to treat that case almost as one of a kind that probably will mean that one individual will get a new chance to challenge his death sentence, but an unwillingness to speak more expansively on the deeply sensitive cultural question of how to deal with racial fears in the courtroom.  That was the way it went in Buck v. Davis, the second case of the day.

Both of the cases had reached the Court with the potential to bring profound change in the areas of the law at stake.

In the Salman insider trading case, the Court actually had been asked to rule unconstitutional the long-standing punishment for exploiting corporate secrets by trading on it in the stock market for personal gain.  If the Court found that too daunting, it was urged at least to require the government to prove that the trading actually resulted in making money, not some other, intangible benefit.   That was what New York corporate lawyer Alexandra A. E. Shapiro sought.

On the government’s side of that case, the lawyer, Deputy U.S. Solicitor General Michael R. Dreeben, wanted the Court to free securities prosecutors to go after anyone who derived a personal benefit — even if not in the form of money — by betraying loyalty to the corporation whose information was used for trading.  At times, the Justices did not seem to fully understand what Dreeben was really seeking, but, whatever it was, it seemed like too much.

From the opening question in that hearing from Justice Ruth Bader Ginsburg through the final question by Justice Sonia Sotomayor, the Court pressed both lawyers to spell out the full implications of their positions, and it kept asking for ways to resolve the dispute.  A flurry of hypothetical variations on who was liable inside a corporation to who would be liable as a stock market participant showed that the Justices were deeply hesitant either to ease up or crack down on insider trading.

In fact, most of them seemed to be of the view that the Court pretty well settled the scope of insider-trading law in a 1983 decision, in the case of Dirks v. Securities and Exchange Commission.  Several of the Justices seemed to have the text of that decision before them on the bench, as they quoted freely from it.

Dreeben did draw a somewhat encouraging comment from Justice Samuel A. Alito, Jr., who told the government lawyer that his approach “at least was more consistent” with the Dirks opinion than Shapiro’s had been.  As if the Court as a whole had written off both of the broad arguments by the two lawyers, Justice Stephen G. Breyer commented that what concerned him was not the specifics of the Salman case but the task of “line-drawing” to clear up insider-trading law.

The fact that none of the Justices looked up or said anything while Shapiro was doing a four-minute rebuttal suggested that her plea had missed its mark.

The death penalty case of Duane Edward Buck had reached the Court with a potential to make significant new law on two issues: how to correct for explicitly racist comments made during a sentencing phase of a murder trial. and when to allow federal courts to reopen a closed case to deal with the consequences of a death sentence that may well have been traced to racial fears.

Buck’s lawyer, New York attorney Christina A. Swarns, sought to give the case even more weight as she repeatedly talked of the prospect that a murder case provides an almost ideal situation to arouse racial fears when the individual on trial is a black, and that is assessed as a reason for the fears.

But midway through her argument, Chief Justice John G. Roberts, Jr., commented that this was “really a unique case,” and thus was “an odd platform to make any general rules” about when a closed case could be reopened for an inquiry into racial prejudice at a trial.

Roberts seemed genuinely disturbed that state officials had not come to Buck’s aid as they had done in several other murder cases where similar racist comments had been made at the trials of other blacks.

One of the standards that the federal courts use for reopening a closed case is whether the individual involved can show “extraordinary circumstances.”  It was plain, at many points during Wednesday’s argument, that most of the Justices asking questions were fully persuaded that Buck’s case easily cleared that hurdle.

Justice Breyer flatly accused Texas officials of having acted arbitrarily in dealing with Buck’s complaint about the racist testimony.

Texas sent its Solicitor General, Scott A. Keller, to try to defend keeping the courthouse doors closed to Buck’s challenge. Keller sought to show how grievous were the murders for which Buck had received the death sentence, and he argued that the evidence simply overwhelmed any impact that the racial comments might have had.   Virtually all of the questions put to him showed a skepticism about Texas’s stance, and the unusual way that Buck had been treated compared to those involved in similar cases tried at about the same time in Texas.

Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011. Denniston has covered the Supreme Court since 1958. His work also appears on, where this story first appeared.

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