arthur andersen lives to fight 2 another day (maybe) · arthur andersen lives to fight another day...

Arthur Andersen Lives to FightAnother Day (Maybe)

Chief Justice William H. Rehnquist authored a unani-mous opinion of the United States Supreme Court thatreversed and remanded for further proceedings consis-tent with the opinion of the criminal conviction of ArthurAndersen LLP for causing the destruction of its owndocuments related to its audit of Enron Corporation in2001.1 If a cat may look at a king, a tax lawyer may askwhat the Supreme Court was thinking.

Background

The Justice Department pursued this prosecution as a‘‘witness tampering’’ case rather than a document de-struction case, and sought the jury instructions at issue inthe appeal, because it was fairly clear that it was not acrime in 2001 for Andersen employees to destroy docu-ments before receiving actual notice of a formal federalinvestigation. The prosecutors believed, and the defen-dant generally agreed, that the witness tampering statutehad a more relaxed requirement as to the pendency of theaffected investigation. Moreover, the prosecutors be-lieved that simple intent to keep the documents from afederal investigation was sufficient to convict. Andersendisagreed and ultimately prevailed on that point.

The case looks simple, but it is not. Understandingwhy Andersen prevailed requires understanding thedifferences among four different types of knowledge orintent that might have been part of the required mens reafor the crime, and one other substantive element of thecrime:

• Actual knowledge of violation of a particular crimi-nal statute: This is not what the case was about —ignorance of the law is still no defense.

• Knowledge and intent that the document destruc-tion would/could impede a federal investigation:The Court ruled that this was not sufficient toconvict, absent some additional ‘‘corrupt’’ intent/conduct — Andersen apparently had that minimal

knowledge and intention,2 and may have had thecorruptness, but the jury was not required to findcorruptness, and that was the error.

• Knowledge of the pendency of a federal investiga-tion: Andersen knew of a likely investigation, andmuch of the discussion surrounding the case relatesto how mature the investigation must be,3 but that isnot what the Supreme Court opinion focused on.

• Knowingly acting corruptly: Because the jury chargedid not require that particular level of intent, theSupreme Court found the charge insufficient — byreversing on this ground, the opinion did not needto decide the meaning of ‘‘corruptly’’ as a legalelement of the crime, leaving the meaning of thatterm in limbo; however, the opinion implied that a‘‘specific intent to subvert or undermine the integ-rity’’ of a federal proceeding would constitute acorrupt intent.

• ‘‘Corruptly,’’ as an element of the crime: This ele-ment has two certain meanings: (1) inherently badconduct, such as physical force, coercion, or bribery(which Andersen admittedly did not do), or (2)encouraging the commitment of a crime (which thedocument destruction was not, as to the destroyers).The opinion implies there is a third meaning thatnecessarily involves the ‘‘knowingly’’ requirementand that goes beyond just intending to keep adocument away from a federal investigator. Thatsomething more may be ‘‘intending to subvert orundermine the integrity of’’ the investigation —Andersen may have had that intent, but prevailedbecause the prosecutor was not required to prove it.

It is difficult to pigeonhole the opinion as to its import.It does not approve of Andersen’s conduct, although itmakes some favorable comments about document reten-tion policies generally. The unanimity and brevity of thesolitary opinion indicate that the justices did not considerthat they were setting grand policy, although the petitionfor certiorari raised the spectre of corporations sinkingunder the weight of documents they were afraid todestroy. While it might help some defendants in fightingsimilar charges from before 2002,4 the opinion does not

1Arthur Andersen LLP v. U.S., 544 U.S. ___, 125 S. Ct. 2129, 161L. Ed. 2d 1008, Doc 2005-11896, 2005 TNT 104-15 (2005).

2Andersen conceded that this was a reasonable inference. SeeAndersen’s petition for certiorari, filed September 14, 2004.

3See generally Hill, ‘‘Note: Anticipatory Obstruction of Justice:Pre-Emptive Document Destruction Under the Sarbanes-OxleyAnti-Shredding Statute, 18 USC 1519,’’ 89 Cornell L. Rev. 1519(September 2004).

4Bloomberg reported that ex-Credit Suisse First Bostonbanker Frank Quattrone has cited the opinion to the appealspanel reviewing his conviction for document destruction.

Jasper L. Cummings, Jr. is of counsel to Alston &Bird LLP, Raleigh, N.C.

Copyright 2005 Jasper L. Cummings, Jr.All rights reserved.

by Jasper L. Cummings, Jr.

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directly protect post-2001 document destruction, becausethe law changed substantially in 2002.

What the opinion does do most clearly is applystandard precise lawyerly analysis to the words of acriminal statute.5 As a result, the Court found that thetrial judge had improperly explained the statute to thejury in a way that could have allowed a conviction thatwould not otherwise have occurred, which was enoughto justify reversal.6

But we know that error alone does not suffice to justifygranting certiorari. Why did the Court take this case? Areview of the petition for certiorari shows that thepetitioner relied primarily on that most powerful ofassertions in such matters: the conflict in the circuits.7Also, the effect of the conviction on pending civil claimsagainst Andersen might have motivated the Court, butthe opinion does not so indicate.

Perhaps the Court was concerned with avoiding set-ting precedent on the meaning of the word ‘‘corruptly,’’which appears in a variety of other federal criminalstatutes, and saw a way to eliminate this case’s effect onthat word by dealing with the more complex conceptused in this particular statute of ‘‘knowingly . . . cor-ruptly.’’ Because Andersen’s attorneys fairly skillfullyestablished that the Andersen managers did not think orknow they were doing anything ‘‘wrong,’’ they set up agreat ground for appeal on the‘‘knowingly . . . corruptly’’ element of the statute.

It is possible that the opinion sends some message thatthe Court would view prosecutions under the newerdocument destruction statute with special scrutiny, anddefendants will so argue, but any such inference wouldrequire more knowledge of what they were thinking thanis warranted by the facts.

The Bad Conduct and What Might Have BeenFor the skeptical readers, as well as probably the

prosecutors, the most problematic aspect of Andersen’sconduct likely is the aroma of disingenuousness. Ander-sen used apparently coded phrases about carrying outthe ‘‘record retention policy,’’ to cloak a round-the-clockshredding operation aimed at anything but ‘‘routine’’ filepurging. Indeed, that aroma may force one to work hardto see the inherent logic of the Court’s legal reasoning inorder to become assured that justice was done by thereversal (which it was, albeit too late).

Because Andersen presented evidence that it had goodreasons to think that there was nothing ‘‘wrong’’ withdestroying documents right up until the formal notice of

the federal investigation (if not a subpoena itself), itmight have been better off if it had simply told itsemployees to ‘‘get rid of these documents,’’ withoutusing the ‘‘cover’’ of the policies. Conversely, the pros-ecutors might have been better off agreeing that Ander-sen had to act ‘‘knowingly . . . corruptly,’’ but arguingthat Andersen’s episodic manipulation of its policies as acover for thwarting a fairly likely investigation was itselfthe ‘‘badge’’ of corruptness needed to sustain a convic-tion. The Supreme Court likely would have had to acceptsuch a jury charge.

The Issue and the ConclusionThe Supreme Court reversed because the jury charge

would have allowed Andersen to be convicted withoutfinding that it knew or reasonably should have knownthat it was doing anything ‘‘wrong.’’ The statute requiresacting ‘‘knowingly . . . corruptly,’’ and the evidence sup-ported the view that Andersen legitimately thought itwas not doing anything ‘‘wrong.’’ The prosecutorsthought that the only way to convict Andersen was tohave the charge define wrongdoing in a way that encom-passed what Andersen did know it was doing: keepingdocuments out of the hands of federal investigators forthe purpose of hindering the investigation. But Andersendid not know that was ‘‘wrong’’ and the Supreme Courtopinion effectively says it is not wrong. Something moreis needed, but the opinion is vague as to what.

Thus the opinion focused on the lack of evil intent andnot on the evil that might have been intended. On thefacts of this case that is a distinction perhaps too fine toserve a useful purpose in real-life prosecutions. Theopinion did not explain how the statutory words couldever be given a meaning that would support a convictionin a case without improper means or without encourag-ing commitment of a crime, except to the extent theopinion implies that a ‘‘specific intent to subvert orundermine’’ is somehow different from a simple intent torender documents unavailable for the investigation.

The petition for certiorari argued that other circuitshad interpreted the same or analogous statutes to requirethat the conduct must be corrupt either by virtue ofcausing someone to commit an act that was itself a crimeor by using corrupt means, such as bribery or physicalforce or coercion. Absent those elements that would orshould alert the actor that he was doing somethingwrong, the statute would be too vague to constitutionallyenforce, according to Andersen.

The Supreme Court deflected that argument. It leftopen the possibility that there could be a third form ofcorruptness, but the absence of the other two formssurely motivated at least part of the Court. The transcriptof the oral argument, which is available on the SupremeCourt’s Web site, strongly suggests the importance of thefact that in 2001 there was no law making it a crime for anAndersen employee to destroy the documents.8 Justice

5See Manne, ‘‘Life After Donaldson,’’ The Wall Street Journal,p. A10 (June 6, 2005) (opinion gave ‘‘clear implication ofgovernmental overreach’’).

6Harmless error can be applied to save an erroneous juryinstruction when there is overwhelming evidence of guilt. See 5Am. Jur.2d Appellate Review, section 743. But the government didnot assert that argument (according to the petition for certiorari)except as to the issue of how mature must be the federalinvestigation that the document destruction is intended tothwart. The opinion did not address that point.

7Doc 2005-3874, 2005 TNT 40-23 (Sept. 14, 2004, being thedate on the petition).

8An Andersen employee, David Duncan, did plead guilty,not for his own shredding of documents but for asking hisemployee to shred documents, and he still denied wrongdoing,according to the transcript of the oral argument.

COMMENTARY / WHAT WERE THEY THINKING?

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Antonin Scalia produced laughter in the courtroom whenhe quipped, ‘‘. . . it doesn’t make any sense to makeunlawful the asking of somebody to do something whichis, itself, not unlawful, so that the person could do it, butif you asked them to do it you’re guilty, he’s not guilty.And that — that is weird.’’

Also, Andersen clearly did not use illegal ‘‘means.’’The Court determined that it was not corrupt simply tocause someone to destroy documents, no matter howclearly was the purpose to thwart a federal investigation.The Court wanted the word ‘‘corruptly’’ to carry somefreight and not simply be a restatement of the act ofthwarting the federal investigation. Although the opiniondid not discuss it, the petition pointed out that ‘‘cor-ruptly,’’ as used in this particular statute, could encom-pass other improper means, particularly bribery, whichthe statute did not otherwise specifically list along withintimidation, and force. If the opinion had bought thatargument it would not have left room for the ‘‘third way’’to act corruptly, but it did not buy the argument.

FactsThe undisputed facts support the inferences that (1)

Andersen was not acting in the normal implementationof its document retention policy, but rather intended todestroy documents for the purposes of both keepingthem away from Securities and Exchange Commissioninvestigators and thwarting any SEC investigation; and(2) Andersen thought it was ‘‘safe’’ in doing so, as long asit conducted the destruction under the banner of itsdocument retention policy and before receiving a formalsubpoena for the documents. The opinion does notdiscuss those inferences one way or the other.

The opinion recited that the following events hadoccurred before Andersen began to destroy the docu-ments:

• Watkins (an Enron employee) warned Andersen ofthe looming accounting problems at Enron;

• a Wall Street Journal article suggested improprietiesat Enron and the SEC opened an informal investiga-tion;

• Andersen formed an Enron ‘‘crisis-response team’’;• Andersen retained outside counsel to represent it in

any litigation arising from the Enron matter;• Andersen’s in-house attorney thought a formal SEC

investigation of Enron was ‘‘highly probable’’;• on October 10, 2001, at a general training meeting

attended by 10 Andersen Enron auditors, Andersengave the direction to comply with the Andersendocument retention policy, with the explanation thatif it is destroyed under the normal policy and‘‘litigation is filed the next day . . . whatever therewas that might have been of interest to someone isgone and irretrievable’’;

• the Andersen in-house attorney reminded the audi-tors to follow the policy;

• on October 19, 2001, an SEC letter to Enron statingthat SEC had opened an investigation was for-warded to Andersen;

• on October 20, 2001, an Andersen in-house attorneytold auditors to make sure to follow the policy; and

• on October 23, 2001, Andersen partners met andtold the auditors to be sure to follow the policy.

The StatuteThe government indicted Andersen under 18 USC

section 1512(b), a witness tampering statute, as it existedin 2001: ‘‘Whoever knowingly uses intimidation or physi-cal force, threatens, or corruptly persuades another per-son, or attempts to do so, or engages in misleadingconduct toward another person, with intent to . . . causeor induce any person to . . . destroy an object with intentto impair the object’s . . . availability for use in an officialproceeding . . . shall be fined.’’

The Natural Reading of the StatuteThe part of the statute quoted above fairly clearly

requires two things: (1) one of three sorts of conduct,which is (2) done with intent to cause document destruc-tion for a certain purpose. One way to read requirement(1) is that the defendant must either knowingly intimi-date, corruptly persuade, or mislead the document de-stroyer. Another reading is that the defendant mustknowingly intimidate, knowingly corruptly persuade, orknowingly mislead. The opinion chooses the latter ap-proach, focusing on ‘‘knowingly . . . corruptly’’ persuad-ing a person to destroy documents, which is whatAndersen was charged with doing. That shows that theCourt focused on the nature of Andersen’s knowledgeand intent, and not on the more substantive element ofwhat is ‘‘corruptly’’ (for example, threats, crimes, and soon).

The oral argument shows that the Court was con-cerned with how to then make sense of the three types ofconduct. The Court did not focus on whether Andersenintended to keep the documents from the SEC, which itseemed to accept as possible, but on whether it ‘‘know-ingly . . . corruptly’’ persuaded employees to destroydocuments. When ‘‘corruptly persuades’’ is viewed in aset with the other two types of proscribed conduct, theCourt’s concerns become more evident.

Knowing intimidation, physical force, and threatsshare the common feature that the actor does or shouldknow that he is doing something wrong. The law hasmany penalties for intimidation, physical force, andthreats. Therefore, the Court reasonably thought that for‘‘knowingly corruptly persuade’’ to fit into the sentencefrom the statute quoted above, ‘‘corruptly’’ must meansomething other than just intending the documents to bekept from the investigators, which, after all, was part ofthe physical force branch of the sentence too.

Grounds of the DecisionThe opinion found that the jury charge was incorrect

in three ways, in this order:• the charge incorrectly stated that Andersen could be

convicted even if it ‘‘sincerely believed that itsconduct was lawful’’;

• the charge incorrectly changed the pattern juryinstruction on ‘‘corruptly’’ from ‘‘knowingly anddishonestly, with the specific intent to subvert orundermine the integrity [of a proceeding],’’ to elimi-nate ‘‘dishonestly,’’ and say ‘‘with the specific intentto impede, subvert or undermine’’; and

• the charge incorrectly implied that there need not bea nexus between the document destruction and anyparticular federal proceeding.



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AnalysisAs to the last ground, the opinion did not find that the

anticipated SEC proceeding was too speculative to sup-port conviction. Rather, it found that the charge elimi-nated any need to connect the destructive act with theSEC proceeding. In that the charge probably did over-reach, but it seems that Andersen could have beenconvicted even with a proper charge in that regard.

The first stated ground of the opinion is that thecharge allowed Andersen to be convicted even if itbelieved it was doing nothing wrong. That ground makessense only if it means that simply intending to thwart agovernment investigation by causing someone to destroydocuments is not sufficient for conviction. Culpabilityrequires some further ‘‘dishonesty.’’ But what might thatfurther dishonesty be? The opinion does not clearly say.

There is one obvious possibility: That the defendantmust have been actually aware of the particular statute,that is, that its conduct was specifically criminal underthat statute. That does not appear to be what the Courthad in mind. The Court’s opinion did not discuss thatpoint, but the opinion of the Fifth Circuit that it reversedmade the point crystal clear. 374 F.3d 281, Doc 2005-790,2005 TNT 9-8 (2004). It agreed with the prosecutor that‘‘ignorance of the law is no defense.’’ It found that insome cases Congress does intend to require the wrong-doer to not only know that he was doing the proscribedact (here, causing destruction of documents for thepurpose of keeping the documents from SEC investiga-tors), but also to know that a federal statute criminalizedthat act.

But the Fifth Circuit found that when Congress hassuch a purpose, it states that the defendant must havespecific intent to violate the law. The Fifth Circuit saw nosuch requirement in this statute, but found that ‘‘cor-ruptly’’ meant simply having intent to prevent the docu-ments from falling into the hands of the SEC.

A close reading of the Supreme Court opinion, how-ever, reveals that the Court did not intend to makeignorance of this law a defense. Therefore, what sort ofdishonesty was the Court looking for? The opinion doesnot require specific knowledge of the statute being vio-lated, but does seem to require intent to ‘‘subvert’’ andnot just delay the federal investigation. Presumably, if thejury charge had said that Andersen must have know-ingly, wrongfully, corruptly, and dishonestly persuadedpeople to destroy documents to subvert the SEC investi-gation, it would have passed muster.

But if the trial judge had been pressed to furtherexplain to the jury when that persuasion was wrongfuland corrupt and dishonest, and how subverting differsfrom impeding, the judge could not say that it wasdishonest when the destruction would prevent the SECinvestigation from reaching its natural or intended result;the Court’s opinion fairly clearly requires somethingmore. That is, it’s not wrongful just because it intention-ally hurts the investigation. It’s not wrongful because itcauses a wrongful act, because the destruction itself waslegal in 2001. And it’s not wrongful because impropermeans were used because they were not. So exactly howcould Andersen’s conduct have been wrongful?

The problem with the opinion is that it was written byjudges, federal judges at that, and Supreme Court justices

to make it worse. They can’t be compelled to answerquestions they don’t want to answer. They just tell youenough to solve the immediate problem before them.Whatever ‘‘wrongful’’ might mean (or not), it wasn’trequired by the charge and that was a fatal error.

The problem with the opinion is that itwas written by judges, federal judgesat that, and Supreme Court justices tomake it worse. They can’t becompelled to answer questions theydon’t want to answer.

At least one court has approved the charge thatcorruptly means to act with the purpose of obstructingjustice, which here would mean keeping the documentsfrom the investigators.9 But others look to impropermeans or to causing the person being influenced toobstruct justice to violate a legal duty of his own.10 Whileit may be theoretically possible to insert a third form ofcorruptness that is worse than intending to keep thedocuments out of federal hands (worse meaning ‘‘sub-verting’’), such a fine gradation may be too close forgovernment work: Too delicate a standard to enforce inthe real world.

Post-Enron Law ChangesIt is likely that those persons in need of protection

from the consequences of past document destruction willclaim support from this opinion. However, the effect ofthe opinion on future conduct, and general businessplanning for document retention, is more modest.

First, the law has changed. In 2002 Congress enactedPub. L. 107-272, which amended the section 1512 of Title18 at issue here. Also the Sarbanes-Oxley Act, Pub. L.107-204, added 18 USC sections 1519 and 1520. Pub. L.107-272 added new subsection 1512(c).

New section 1512(c) criminalizes the ‘‘corrupt’’ de-struction of a document with the intent to impair itsavailability for use in an official proceeding. New sub-section (f) states that the official proceeding need not bepending or about to be instituted. While that does leavethe troubling word ‘‘corrupt’’ in the statute under whichAndersen was charged, it expands or clarifies the scopeof affected official proceedings. New subsection (c) closesthe gap that prevented the prosecutors from arguing thatAndersen acted corruptly because it persuaded employ-ees to commit a crime; the new subsection makes docu-ment destruction itself a crime, if done ‘‘corruptly.’’ Andthe new subsection does not use the doubly troublingphrase ‘‘knowingly . . . corruptly.’’

It is likely that persons charged under the new sub-section (and persuaders who may be charged for per-suading such criminal activity) will attempt to use theAndersen opinion to show that corruptly means morethan just intending to keep the documents out of the

9U.S. v. Cueto, 151 F.3d 620, 631 (7th Cir. 1998).10See U.S. v. Poindexter, 292 U.S. App. D.C. 389 (1991).



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hands of the federal investigators, and requires some sortof intent to subvert the investigation. Rather than fightthat view, prosecutors might be better off agreeing with itand attempting to show that subversion means prevent-ing the investigation from reaching its natural, bad,conclusion.

However, prosecutors are more likely to charge aviolation of the law added by the Sarbanes-Oxley Act,section 1519 of Title 18, which does not include the‘‘corruptly’’ requirement, and appears to criminalize ex-actly what the Andersen trial judge told the jury Ander-sen could be convicted for: The destruction of documentswith the intent to impede a federal investigation, or ‘‘inrelation to or in contemplation of’’ such a proceeding.

Also, new section 1520 of Title 18 requires auditors ofpublic issuers to retain ‘‘all audit or review work papers’’for five years from the end of the audit period. The scopeof that requirement is not clear. Andersen contended inits petition for certiorari that it scrupulously retained thefinal audit workpapers, but destroyed only ‘‘relatedinformation, such as duplicates, drafts and notes.’’ Pre-sumably, those documents may have reflected doubtsabout a matter, which were overcome in the final work-papers.

Document Destruction PoliciesThe opinion contains the stunning observation that

‘‘document retention policies’’ are created in part to keepcertain information from getting into the hands of thegovernment. It also contains a sentence that many willseize on as proof that following a regular documentdestruction policy is prophylactic to prosecution: ‘‘It is, ofcourse, not wrongful for a manager to instruct his em-ployees to comply with a valid document retentionpolicy under ordinary circumstances.’’

Of course, emphasis should be placed on the qualifier‘‘under ordinary circumstances.’’ The opinion does notsupport an inference that the Court thought Andersen’scircumstances were ordinary. They might have been if thepolicy (1) called for regular document destruction at a setperiod after document creation (which now would haveto be at least five years after the audit year, for auditworkpapers for public companies), and (2) was regularlyobserved. It is one thing to say, ‘‘We were following thepolicy just like we always do’’; it is quite another to say,‘‘We dusted off the policy and enforced it this time.’’

It is one thing to say, ‘We werefollowing the policy just like wealways do’; it is quite another to say,‘We dusted off the policy andenforced it this time.’

But advisers and businesses may have a hard timeenforcing a regular document destruction policy in thenormal case when employees: (1) feel that they havenothing to hide, (2) want to protect themselves from eventhe suggestion of impropriety, and (3) want to keep thedocuments to prove that they did their work correctly,that is, as defensive tools. Indeed, the ‘‘explained opin-ion’’ given by an attorney on a legal issue is a classic

example of wanting to keep evidence that you vetted alldownsides, even though you come out with a positiveopinion. The SEC requires an explanation of downsideconsiderations if a disclosure concludes as to the taxtreatment of a transaction at a less than ‘‘will’’ level.Therefore, while a business will say that it should not berequired to keep documents carrying negative inferencesabout matters on which a positive conclusion was ulti-mately reached, that claim may have less weight as thelevel of confidence in the positive conclusion declines.

Planning ProceduresDocument destruction policies have many purposes

that have nothing to do with avoiding criminal prosecu-tion or federal investigations. In the past, one of thosepurposes was elimination of yards of files, but thepervasive presence of electronic documents changes thedynamics of that factor. Certainly ‘‘disc space’’ has somelimits, but probably not so costly as filing cabinet space.Moreover, experts tell us that it may be impossible tocompletely eliminate electronic documents, which intro-duces a set of complexities of its own.

However difficult those practical considerations maybe, criminal prosecution tends to get the attention ofbusiness folk in a special way, and so the interface of thepolicies of document retention with the criminal lawmust be examined. The following seem to be reasonableplanning parameters:

• Document retention policies should be designed forthe ‘‘right’’ reasons, including: (1) ensuring thatdocuments are retained for the period required byany applicable laws and regulations, (2) ensuringthat documents needed to protect the documentowner or related parties are retained for the periodfor which that protection is needed, and (3) ensuringthat storage space, hard drive space, and so forth, isproperly used to contain costs, and so forth.

• Once a policy is derived from those and similar‘‘right’’ reasons, it should be ‘‘religiously’’ imple-mented. If regular implementation appears to beimpossible because of practical difficulties, thepolicy should be reexamined.

• Once the document owner becomes aware of thereasonable likelihood of a federal investigation, itshould take reasonable steps to stop the regularenforcement of the records retention policy as torelated documents. Waiting until the subpoena isserved is not a good idea.

• The document owner should not speed up, orepisodically enforce, its records retention policy onbecoming aware of the reasonable likelihood of afederal investigation involving those records.

ConclusionPerhaps the Supreme Court justices let Chief Justice

Rehnquist write a unanimous, brief opinion because itmakes a narrow, precise point about statutory construc-tion that is hard to argue with, once you understand it. Itis not clear that the Court intended to send a signal tocorporate America that criminalizing corporate miscon-duct is hard to do. The justices must have known,however, that the opinion could be interpreted that way.How much comfort can be taken from that depends onhow confident you are you can get to the Supreme Court



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(for, after all, the lower federal courts seem not to alwayspay attention to the drift of Supreme Court thinking), andto this Supreme Court, before its personnel changes.



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