May 2008
Loving v. Virginia and the Secret History of Race
New York
Times Editorial Observer by Brent Staples
5-14-08 --
Americans born in the 21st century will shake their heads in
disbelief on learning that 40 states once had laws prohibiting
interracial marriage. The Supreme Court struck down the last of
these statutes in the 1967 case of Mildred and Richard Loving, a
black woman and a white man who were arrested and banished from
Virginia for the crime of being married. . . . The couple became
celebrities after the landmark ruling known as Loving v. Virginia.
But Mildred and Richard wanted nothing to do with fame. They
returned to the tiny, backwoods community of Central Point, in
Caroline County, Va., and shunned publicity. Richard died of
injuries sustained in a car accident in 1975. Mildred, who died this
month, was quiet and self-effacing and maintained all along that
they married because they were in love, not to fight a civil rights
battle. . . . The particulars of the case — which featured a
stereotypical Southern sheriff and a medieval system of laws —
turned Caroline County into an emblem of blunt-force segregation.
But the story was more complicated. . . . Like many rural areas in
the Jim Crow South, Caroline County was governed by two competing
racial ideologies. The impulse toward segregation was of course
etched in law. But Central Point, which had been a visibly
mixed-race community since the 19th century, was home to a secret
but paradoxically open interracialism. The community’s story goes a
long way toward explaining how the Lovings thought about race and
why they behaved as they did.
Rehnquist Parody Found at Library of Congress
Tony
Mauro, Legal Times
5-14-08 --
The late Chief Justice William Rehnquist was known for his love of
Gilbert and Sullivan. Their operetta "Iolanthe" inspired Rehnquist
to add gold stripes to the arms of his black robe. It turns out his
passion dated to when he clerked for the late Justice Robert Jackson
55 years ago. . . . Jackson scholar
John Barrett of
St. John's University School of Law in New York recently
found a parody of a song from "Mikado" written by Rehnquist that sat
unnoticed for 50 years in Jackson's papers at the Library of
Congress. Barrett wrote about it in the latest issue of the
unconventional law review Green Bag. . . . Some of the
droll references in the ditty are obscure, but they amounted to a
fairly biting critique of the Court then led by Chief Justice Fred
Vinson. Vinson was having difficulty building consensus on a
fractured Court -- a problem that also vexed Rehnquist when he later
became chief justice, and now faces Rehnquist's successor, John
Roberts Jr. "So he decreed with stern portent," Rehnquist wrote of
Vinson, "That who thereafter did dissent/ Unless he had the Chief's
consent/ Would forthwith be beheaded." . . . A later line says that
justices "Verbose and mum, and smart and dumb/ Were equally
affected." Felix Frankfurter was the verbose one, Barrett posits,
and Vinson may have been the dumb one. The others were harder to pin
down. Rehnquist also took a swipe at Vinson's preoccupation, even
during his workday, with "the vagaries of baseball." Vinson, once a
semi-pro player, was offered the job of baseball commissioner in
1951.
 
Ranking the Politics of Supreme Court Justices
Four of the five most conservative justices since 1937 are on the
bench today
By
Justin Ewers
5-12-08 --
Just how conservative is the Supreme Court, anyway? It's a question
that has dogged constitutional scholars for years, as they've tried
to parse the opaque language and muddled writings of judges moving
through the confirmation process. Today's court, headed by John
Roberts with seven justices appointed by Republican presidents, is
generally considered more conservative than the Supreme Court of the
1950s, for example, when Earl Warren oversaw its unanimous decision
in Brown v. Board of Education. But it's hard to compare the current
court—and today's justices—with, say, the Burger court of the 1970s,
which, with six Republican-appointed justices, decided Roe v.
Wade.
Thomas tells grads of goal blocked by injustice
By Blake
Aued
5-11-08 --
U.S. Supreme Court Justice Clarence Thomas, the fifth Georgian to
serve on the high court, would have been the first black University
of Georgia graduate if he'd had his way. . . . Thomas wanted to be a Bulldog, but
segregation stopped him, he said Saturday during his commencement
address at Sanford Stadium. .
. . "Forty-one years ago, when I graduated from high school in
Savannah, attending the University of
Georgia was not an option," he said. "Thankfully, much has changed in my
lifetime. Knowing what I know today, I would go to school here in a
heartbeat. Georgia is home,
and Georgia is where I belong." . . . Thomas graduated from the
College of the Holy Cross and Yale Law School. . . . He credited
his grandparents, relatives and friends - farmers, yard workers and
maids, mostly - in his native Pin Point for raising him right. . . .
"They went along with their lives doing their best with what they
had, knowing all the while that this was not necessarily fair," he
said. "They played the hand they were dealt, and through it all,
they were unfailingly good, decent and kind people, whose unrequited
love for our great country and hope for our future were shining
examples for all of us to emulate in our own struggles."
Chattanooga: Stevens addresses lethal injections
By:
Monica Mercer
5-10-08 --
Supreme Court Justice John Paul Stevens drew a round of applause
Friday night in Chattanooga when he suggested that the
recently-euthanized Kentucky Derby horse Eight Bells had probably
experienced a more humane death than those who die on death row. . .
. “I had checked the procedure they used to kill the horse,” Justice
Stevens said, expressing surprise to learn it is against the law in
Kentucky to kill animals using one of the drugs in a three-drug
lethal injection cocktail that many believe is cruel to humans. . .
. Yet just three weeks ago, the Supreme Court ruled that Kentucky’s
use of that cocktail on death row did not constitute cruel and
unusual punishment. Justice Stevens concurred with the court’s
decision, but conceded his opinion would “generate debate not only
about the constitutionality of the three-drug protocol, but also
about the justification for the death penalty itself.” . . . Justice
Stevens talked about the lethal injection case and other recent
Supreme Court decisions as he addressed an audience of legal
professionals at the Chattanooga Convention Center during the last
evening of the 68th conference of the U.S. Court of Appeals for the
6th Circuit. Justice Stevens presides over the 6th Circuit in his
position on the Supreme Court.
Following year of division, Supreme Court avoids 5-4 splits
By Mark
Sherman
(AP)
5-10-08 --
This could be the Supreme Court term, one court watcher joked
recently, that Justice John Paul Stevens remembers he is a
Republican. . . . A 1975 appointee of President Gerald Ford, Stevens
is regarded as the anchor of the court's liberal wing. But he has
joined with his more conservative colleagues in three high-profile
cases that defied predictions they would showcase deep ideological
divisions on the court. . . . Last term was marked by an unusually
high number of 5-4 decisions, and many experts believed this term's
notable cases would produce similar outcomes. . . . But the biggest
cases decided so far — upholding lethal injection procedures, photo
identification requirements for voters and Texas' treatment of a
Mexican on death row — have had six or seven justices, including
Stevens, in agreement on the outcome. . . . Just one case has been
decided by a 5-4 vote. Two others split 4-4 with a justice not
participating. Another was 5-3. . . . Taking stock of the court with
half its decisions still to come is a bit like wrapping up a
sporting event at halftime. So far, however, Stevens' voting pattern
and the lack of 5-4 decisions stand out.

David E. Kelley's 'Boston Legal' Takes On the Roberts Court
Tony
Mauro, Legal Times
5-6-08 --
Nearly a decade ago, when his show "Ally McBeal" was at its peak,
lawyer-turned-Hollywood-producer David E. Kelley was
invited to dinner at the home of then-Supreme Court Justice Sandra
Day O'Connor. . . . There, Kelley recalls, he got to chat with four
or five justices along with other D.C. luminaries. . . . But now,
Kelley says in an exclusive interview with Legal Times, "I've
probably disqualified myself" from any justice's invitation list for
a return visit. . . . That's because of an April 22 episode of
Kelley's current
hit show "Boston Legal," which included one of the most
vociferous popular-culture critiques of the current conservative
Supreme Court since John Roberts Jr. became chief justice in 2005. .
. . "We went right after them," Kelley acknowledges, asserting that
the Supreme Court does not deserve the "hands-off treatment" it
usually gets in the media and in political discourse. . . . The
anti-Roberts Court screed, improbably enough, is delivered to the
justices to their faces during the episode titled "The Court
Supreme." Co-star James Spader, who plays Boston lawyer Alan Shore, lights into the Court as
he argues before look-alike justices on behalf of a
Louisiana child rapist facing
the death penalty. The episode aired just six days after the real
Court heard arguments in Kennedy v. Louisiana, an actual child
rape/death penalty case.
Unrest at University of Georgia Over Appearance by Clarence Thomas
'To
invite someone involved in the most high-profile sexual harassment
case... is just poor timing,' said one professor
Peter
Page, The National Law Journal
4-30-08 --
Some faculty at the
University of Georgia, Athens, are complaining about the
selection of Supreme Court Justice Clarence Thomas as undergraduate
commencement speaker in light of charges that the administration has
been slow to respond to allegations of sexual harassment. . . .
Janet E. Frick, associate professor in the psychology department,
alluding to the
allegations of sexual harassment aired by Anita Hill at Thomas'
1991 confirmation hearing, suggested Thomas be invited to
speak next year instead. . . . "There have been repeated accusations
[of sexual harassment] and an apparent lack of institutional resolve
to act," Frick said. "To invite someone involved in the most high
profile sexual harassment case of the 20th century is just poor
timing."
Justices come off the bench to chat
Possibly signaling a new era of openness, Scalia and several court
colleagues are granting interviews
By James
Oliphant | Washington Bureau
4-30-08 --
There's Antonin Scalia chatting with Lesley Stahl on "60 Minutes."
There's Scalia speaking at length on National Public Radio. And
there he is again, taking questions from high school students on
C-SPAN. . . . Picture Greta Garbo joining Facebook and you get the
idea. . . . Until now, the Supreme Court justice has been
notoriously allergic to the press. He has often excluded the media
from public appearances, even barring C-SPAN from covering an award
he received in 2003 for protecting freedom of speech. A year later,
federal marshals guarding Scalia at a speech in Mississippi
confiscated and erased a reporter's tape recorder, deleting the
justice's comments. Then, in 2006, he brushed away a Boston reporter
with a gesture that some claimed was obscene. . . . But this
apparently is a new day, and not just for Scalia, but for other
members of the high court.

April 2008
Gettysburg trip changed perspective of Supreme Court justice
By Mark
Sherman, Associate Press
4-30-08 --
A trip to the Gettysburg battlefield changed Supreme Court Justice
David Souter's perspective on handling difficult cases that
inevitably come a judge's way. . . . In a rare public address
Tuesday, Souter admitted that at least one Supreme Court case — he
didn't name it — once prompted him to ask, "Why do I have to resolve
that case?" . . . He found an answer last year when he and his law
clerks and secretaries visited the battlefield in Pennsylvania where
the Civil War changed course in July 1863. . . . Illustrating how a
single act can alter history, Souter noted that the commander
assigned to hold the far end of the Union line had employed a
bayonet charge in a desperate maneuver — one that ultimately ended a
Confederate attack. . . . "It seems a fair assessment that one of
the pivots of American history was at that place, at that moment,"
he said. . . . Looking back at his complaint about difficult cases,
Souter said, "I could not ever again, under any circumstance, say it
is unfair that I have to do this." . . . Other justices may use
nationally televised interviews to expound on the court and great
issues of the day, as Justice Antonin Scalia did this week. Not
Souter. His speech Tuesday did not contain a word about Supreme
Court cases, his philosophy of judging or his colleagues.
Scalia Hits Media Circuit to Promote Book
Tony
Mauro, Legal Times
4-29-08 --
Supreme Court Justice Antonin Scalia may be thriving in the
limelight these days, but he has his limits: He's not interested in
becoming vice president on Sen. John McCain's ticket. . . . "C'mon,
ask my wife. I'm a lousy politician," Scalia said in an interview
with NPR's Nina Totenberg as part of the publicity tour for his new
book. "That's not my style. . . . Said Totenberg, "You'd put your
foot in your mouth, you think?" . . . To which Scalia replied, "No,
I wouldn't put my foot in my mouth. I might say what I thought." . .
. Scalia has certainly been doing that in the last few days, first
in a
lengthy "60 Minutes" segment aired Sunday night and then
in the
NPR interview that ran Monday morning. The
ABA Journal has also interviewed Scalia in its May issue
about the book he co-authored with Bryan Garner, called "Making Your
Case: The Art of Persuading Judges." . . . Book sales have clearly
benefited from the avalanche of publicity. By mid-afternoon on
Monday, its official publication date, "Making Your Case" had
reached No. 6 on the Amazon.com best-seller list, edging out "Hungry
Girl," a sort of chick-lit cookbook. A day earlier, Scalia's book
was No. 522.
Scalia Speaks Out in '60 Minutes' Interview
Tony
Mauro, Legal Times
4-28-08 --
In his remarkable appearance on "60
Minutes" Sunday night, Supreme Court Justice Antonin Scalia
acknowledged he has had "down times" on the bench, periods when he
felt he was repeating himself in dissents and unable to move Court
doctrine. It was Scalia's first extended broadcast interview in his
22 years on the Court. . . . In one of the more dramatic moments
during the segment, CBS correspondent Lesley Stahl read from
Scalia's 1996 letter written to the late
Justice Harry Blackmun in which he voiced his melancholy
about the preceding term -- a term that had produced
Romer v. Evans, a victory for gay rights advocates,
and
United States v. Virginia, which said the state-run
Virginia Military Institute could not admit only males. .
. . Scalia said he "hadn't remembered" writing the letter, which is
included in the Blackmun papers at the Library of Congress. But he
did say that the final months of a Supreme Court are "usually a
disappointment." He also said the situation, from his point of view,
was "less dire in more recent years." . . . When he first joined the
Court in 1986, Scalia said he planned to leave the Court "as soon as
I could," when he turned 65 and could retire at full pay. But now at
72 and "working for free," Scalia says he is not thinking about
retiring any longer. "I can't think what I would do for an encore."

Scalia: I'm Conservative, but Not Biased
The
Associated Press
4-25-08--
The Constitution doesn't prohibit abortion any more than it allows
it, Supreme Court
Justice Antonin Scalia says in a television news
interview to be broadcast Sunday. . . . Scalia told
CBS News' "60 Minutes" that he may be conservative, but
he is not biased on issues that come before the Court. "I mean, I
confess to being a social conservative, but it does not affect my
views on cases," Scalia said in excerpts released Thursday. . . .
"On the abortion thing, for example, if indeed I were ... trying to
impose my own views, I would not only be opposed to Roe versus Wade,
I would be in favor of the opposite view, which the anti-abortion
people would like to see adopted, which is to interpret the
Constitution to mean that a state must prohibit abortion," Scalia
told correspondent Lesley Stahl. . . . "And you're against that?"
Stahl asked. . . . Scalia replied, "Of course. There's nothing" (in
the Constitution to support that view).
Scalia On Bush v. Gore: Get Over It!
Supreme Court Justice Tells 60 Minutes It’s Nonsense To Say The
Decision Was Politically Motivated
(CBS) 4-24-08--
People who believe the U.S. Supreme Court’s decision giving the 2000
presidential election to George W. Bush was politically motivated
should just get over it, says Justice Antonin Scalia. . . . Scalia
denies that the controversial decision was political and discusses
other aspects of his public and private life in a remarkably candid
interview with 60 Minutes correspondent Lesley Stahl, this Sunday,
April 27, at 7 p.m. ET/PT. . . . "I say nonsense," Scalia responds
to Stahl’s observation that people say the Supreme Court’s decision
in Gore v. Bush was based on politics and not justice. "Get over it.
It’s so old by now. The principal issue in the case, whether the
scheme that the Florida Supreme Court had put together violated the
federal Constitution, that wasn’t even close. The vote was seven to
two," he says, referring to the Supreme Court’s decision that the
Supreme Court of Florida’s method for recounting ballots was
unconstitutional.
O'Connor Sees Ethical Deficit in Legal Profession
By Josh
Gerstein, Staff Reporter of the Sun
4-23-08--
A former Supreme Court justice, Sandra Day O’Connor, inveighed
against unscrupulous lawyers and corrupt government officials
following a speech she delivered at Stanford University last night.
. . . Asked about the struggle to maintain high ethics in the legal
profession, Ms. O’Connor invoked what she called the “drastic
results” of the collapse of Enron Corp. in 2001.. . . “It makes one
wonder what kind of ethical standards the lawyers and the
accountants were following,” the former justice told hundreds
gathered at Stanford’s Memorial Church to hear her speak about the
quest for “a meaningful life.” . . . “It’s clear, I think, that it
isn’t enough to do one’s work as a lawyer or accountant by saying,
‘Oh, technically the law could be interpreted to allow this,’” she
said. “We have a deeper obligation than that as a lawyer, as a human
being, to reflect on what we’re being asked to do and put it in a
larger perspective and ask if it is the right thing to do. Many
times it isn’t.”

Pass the Fair Pay Act
New York
Times Editorial
4-23-08 --
Last year, the Supreme Court tossed aside longstanding legal
precedents and government practice to make it much harder for an
employee to sue over unlawful pay discrimination. . . . The 5-to-4
ruling came in the case of Lilly Ledbetter, a supervisor at a
Goodyear Tire and Rubber Company plant in Alabama, who over several
years received smaller raises than men in comparable positions. A
jury found that Goodyear violated Ms. Ledbetter’s rights under Title
VII of the Civil Rights Act of 1964. . . . But a majority of the
Supreme Court decided she was entitled to nothing based on a cramped
view of the 180-day deadline for filing such claims. They decided
that Ms. Ledbetter had to sue within 180 days of the company’s
discriminatory raises and that the persistence of unfairness from
check to check was not relevant. . . . Fortunately, the Senate is
scheduled to consider a modest bill on Wednesday that is aimed at
restoring the original intent of the law. It poses a test of each
senator’s commitment to combating pay discrimination.
Scalia, long shy of news media, now more open
Justice's views of law to go out to wider audience
By Joan
Biskupic, USA TODAY
4-18-08 --
For years, Justice Antonin Scalia has been a rebel on the law — with
a penchant for shunning the news media. . . . He kept C-SPAN out of
his appearances. In 2006, when a Boston reporter approached him
after a church service with a question, he flicked his fingers under
his chin in a well-known Sicilian brushoff. . . . These days, Scalia
is making a new gesture to the media. He held a question-and-answer
session with students that was televised live on C-SPAN last week. He has begun publicity for the release of a book he
co-authored on legal arguments. He will appear on CBS' 60 Minutes
this month. . . . The public is about to get a big dose of Scalia,
who speaks passionately about the law and also has an intriguing
life story as the first Italian-American on the high court. . . .
Scalia's message is that judges should interpret the Constitution
based on the intentions of the men who wrote it in the 18th century.
He insists that society's problems are the domain of elected
legislators, not appointed jurists. . . . Scalia, 72, has found a
robust fan club among conservative lawyers. Now that he's moving
into the limelight, will he speak to non-lawyers and draw a new
audience?
Imperialists in black robes
By: Nat
Hentoff
4-16-08 --
I dearly wish our Founding Fathers James Madison and Alexander
Hamilton had been able to see Supreme Court Justices Anthony Kennedy
and Clarence Thomas explain on C-SPAN's "America and the Courts" (March 28) why they and nearly all their
colleagues are so hostilely against allowing millions of Americans
to see the high court on television during the revealing oral
arguments. . . . On that C-SPAN
program, in excerpts from the Kennedy-Thomas testimony before a
House committee, Kennedy, sternly lecturing that Congress should not
legislate this intrusion into a key process in how and why they make
their decisions, which affect so many of us, explained: "We teach
that we're judged by what we write and by what we decide. ... I do
not want an insidious dynamic introduced into my court that would
affect the relations that I have with my colleagues. . . . "It would
be unhelpful for the collegial relations. ... I don't want to think
that one of my colleagues asked a question because he or she was on
TV. And I don't want that temptation to exist. ... We (justices)
think that we should be entitled to at least a presumption of
correctness and to some deference in determining how best to
preserve the dynamic of the wonderful proceeding that we know as
oral argument." . . . Agreeing, Thomas said, "The concern is that
you begin to have a sort of a tabloid effect because of the
personalities involved as opposed to the substance of the case."
Supreme Court to hear Los Angeles County
district attorney immunity case
Justices will consider whether ex-D.A. John Van de Kamp can be sued
over the conviction of Thomas L. Goldstein, who was freed after 24
years.
By David
G. Savage, Los Angeles Times Staff Writer
4-15-08 --
The Supreme Court said Monday it would take up a Los Angeles case to
decide whether a chief prosecutor can be held liable for a man's
wrongful conviction of murder. . . . The case of Van de Kamp vs.
Goldstein will test the reach of the long-standing legal rule that
prosecutors are immune from being sued, even when defendants are
shown to be innocent. . . . Prosecutors, like judges, must be free
to do their jobs without fear of being sued later, the high court
said in 1976. . . . This rule of "absolute immunity" applies
whenever a prosecutor "acts within the scope of his prosecutorial
duties," the justices said then. . . . But it is not clear whether
this immunity rule protects supervising prosecutors against suits
over alleged management failures.
What Would a Scalia-Alito Corporation Sell?
Tony
Mauro, Legal Times
4-15-08 --
The first Supreme Court oral argument Monday morning was
all about Native American law and the jurisdiction of tribal
courts. But Chief Justice John Roberts Jr. took the debate
in an unexpected direction -- across the Atlantic to southern Europe. .. . The
issue in
Plains Commerce Bank v. Long Family Land & Cattle was
whether tribal courts have jurisdiction over a dispute between a
nontribal bank and a company that is majority Indian-owned. More
than 51 percent of the owners of the South Dakota ranching company
in the case are members of the Cheyenne River Sioux Tribe, and, as
such, the company was entitled to loan guarantees from the Bureau of
Indian Affairs. . . . Roberts seemed concerned about how a bank can
be expected to know whether a company it is dealing with is a
so-called "Indian corporation," thereby triggering tribal court
jurisdiction. After all, companies incorporate under state, not
tribal, law. . . . "That's a concept I don't understand," said
Roberts, who then pointed to the left side of the bench and added,
"If Justices Scalia and Alito form a corporation, is that an Italian
corporation?" . . . Amid laughter, veteran advocate David Frederick
of Kellogg, Huber, Hansen,Todd, Evans & Figel wisely sidestepped the
issue. "I would like to beg the indulgence of the Court in not
answering that question specifically."

FBI Describes Search for Letter-Writer Charged With Threatening
Justice Thomas and High Court Building
M.R.
Kropko, The Associated Press
4-14-08 -- Authorities
searched for years for the source of racially hateful letters,
including one threatening to blow up the U.S. Supreme Court, before
tracking him down when he started sending messages via e-mail
instead of U.S. mail, authorities said. . . . The FBI said Thursday
that letters dating to the late 1980s seemed to stop in the early
1990s but started again later that decade. Cleveland FBI agent Scott
Wilson said agents never stopped looking for the writer, and he told
The Plain Dealer newspaper that they found him a few months ago by
tracing the e-mails to David Tuason's account. . . . The federal
government charged David Tuason, 46, of suburban Cleveland,
Wednesday. An indictment alleges he most often targeted black men
known to affiliate with white women. Letters and e-mails described
in the charges contain threats of violence based on racial hatred. .
. . Donna Grill, an assistant public defender representing Tuason,
would not comment on the case Thursday. . Tuason is unemployed and
has lived at the home of his parents in Pepper Pike, a mostly white,
upscale Cleveland suburb, said William J. Edwards, acting U.S.
Attorney for northern Ohio.
How to Judge a Would-Be Justice
New York
Times Editorial
4-14-08 -- It
is hard to imagine a more solemn responsibility than confirming the
nomination of a Supreme Court justice. And we have worried,
especially in recent years, that nominees are far too carefully
packaged and coached on how to duck all of the hard questions. . . .
A new study supports our fears: Supreme Court nominees present
themselves one way at confirmation hearings but act differently on
the court. That makes it difficult for senators to cast informed
votes or for the public to play a meaningful role in the process. .
. . The study — with the unwieldy title “An Empirical Analysis of
the Confirmation Hearings of the Justices of the Rehnquist Natural
Court” —published in Constitutional Commentary, looked at how nine
long-serving justices answered Senate questions, and how they then
voted on the court. While it does not say that any nominee was
intentionally misleading, it still found a wide gap. . . . Justices
Antonin Scalia and Clarence Thomas, for example, told the Senate
that they had strong respect for Supreme Court precedents. On the
court they were the justices most likely to vote to overturn those
precedents. Justice David Souter deferred more to precedent than his
Senate testimony suggested he would. . . . The authors examined one
substantive area of the law: criminal defendants’ rights. There what
the nominees — both conservatives and liberals — told the Senate
about their support for defendants’ rights was reasonably well
reflected in how they voted. . . . The study suggests that senators
would be better off asking “very probing, specific questions,” says
Lori Ringhand, associate professor of law at the University of
Kentucky and one of the paper’s three authors.

Scalia: Church, state not always separate
The
idea that the Constitution bars God from the public square is bunk,
U.S. Supreme Court Justice Antonin Scalia said at the University of
Virginia.
By Brian
McNeill
04-11-08 --
The ostensible wall separating church and state is not inviolable,
U.S. Supreme Court Justice Antonin Scalia told a crowd at the
University of Virginia School of Law on Thursday. . . . The judicial
system, he argued, has too often gone overboard in its
interpretation of the First Amendment’s establishment clause, which
forbids any “law respecting an Establishment of Religion.” . . . The
courts’ “guiding light” in many religious freedom cases, Scalia
said, is the neutrality principle, which essentially holds that the
government cannot favor one religion over another and also cannot
favor a religious group over a secular group or vice versa. . . .
For example, the court system has sought to bar students from
reciting the Pledge of Allegiance because it contains the phrase
“One nation, under God.” . . . Rulings that seek to totally separate
religion and government, Scalia said, run counter to the
Constitution’s meaning. . . . “If you want to enact a statute that
says the president can never say ‘God bless America,’ then I have no
problem with that,” he said. “Just don’t tell me that the
Constitution prohibits it.”
Man indicted for making threats to Justice Clarence Thomas
By Terry
Frieden, CNN Justice Producer
04-10-08 --
The U.S. Supreme Court's only black justice was the target of a
racially motivated threat by an Ohio man who has been indicted in
Cleveland, Justice Department officials announced Wednesday. . . .
An eight-count indictment returned by a federal grand jury charges
David Tuason of Pepper Pike, Ohio, with making multiple threats
against Justice Clarence Thomas and with threatening to blow up the
Supreme Court building. . .. Tuason had made the threats in e-mails
and mailed letters to the Supreme Court, as well as to Thomas
personally, according to a source close to the case. . . . Tuason
"engaged in an elaborate scheme of sending racially motivated
threatening communications ... intended to threaten and intimidate
with bodily injury African-American males known to affiliate with
white females," said U.S. Attorney Frank Filiuzzi Wednesday in
Cleveland.
 
Scalia to Go Before the News Cameras -- Voluntarily
Tony
Mauro, Legal Times
04-09-08 --
Supreme Court Justice Antonin Scalia, who makes no secret of his
disdain for the news media, has agreed to appear in a segment of CBS
News' "60 Minutes" on April 27, the eve of the publication date for
a new book he has co-authored. . . . A knowledgeable source who
requested anonymity confirmed Monday that the top-rated newsmagazine
asked Scalia for the interview and he accepted, in spite of his
oft-stated view that judges should stand apart from the modern media
culture. . . . Correspondent Lesley Stahl has already conducted
several taped interviews with Scalia that range well beyond his book
-- called "Making Your Case: The Art of Persuading Judges" -- and
delve into his career and upbringing. . . . In the life of the Court
and the career of Justice Scalia, this is a remarkable,
Nixon-goes-to-China moment. No justice has excoriated the news media
like Scalia has, and it would have surprised no one if he had
completed his tenure on the high court without ever consenting to a
broadcast interview.
Supreme Court Justice Antonin Scalia Again Says
Abortion Right Nonexistent
by
Steven Ertelt, LifeNews.com Editor
04-08-08 --
Supreme Court Justice Antonin Scalia continues to educate the law
students of America and, once again, presented his explanation that
no right to abortion exists in the Constitution to students at Roger Williams University. Last month,
Scalia told students at the University of
Central Missouri the same thing.
. . . Scalia said a legal right to an abortion is not found in the
document that guides our judicial process. . . . If abortion
advocates wanted to create a legitimate abortion right, they should
rely on passing laws in the legislature rather than asking courts to
unilaterally create one, he said. . . . “You want the right to
abortion? Create it the way most rights are created in a democracy.
Persuade your fellow citizens it's a good idea — and pass a law,”
Scalia said. . . . As he has before, Justice Scalia, who pro-life
advocates hope will someday be one of the five votes on the high
court to reverse Roe v. Wade, said the Constitution is not a living
document that changes with the times. . . . According to a report in
The Day newspaper, Scalia told the RWU law school students he didn't
think the Senate would confirm him today as it did on a 98-0 vote
decades ago. . . . “The most important thing is whether this person
will write the new Constitution that you like,” Scalia said of
today's politicized confirmation process. “If the court's rewriting
the Constitution, it's an enormously powerful political body -- and
its selection will be done in a political fashion."
Scalia says he'd have difficulty winning confirmation now
By Eric
Tucker , Associated Press Writer
04-07-08 --
U.S. Supreme Court Justice Antonin Scalia said Monday he would have
had difficulty winning confirmation to the nation's highest court if
he were nominated today because the public expects its judges to
rewrite the Constitution rather than interpret the document narrowly
based on its original intent. . . . Scalia, who was confirmed by the
Senate in 1986 by a 98-0 margin, told students at the Roger Williams University law school
that he wouldn't be able to get 60 votes now. . . . "The most
important thing is whether this person will write the new
Constitution that you like," Scalia said of the contemporary
confirmation process. . . . "If the court's rewriting the
Constitution, it's an enormously powerful political body -- and its
selection will be done in a political fashion," he added. . . .
Scalia participated in a question-and-answer session with students
in the second visit to Rhode Island this year by a sitting Supreme
Court justice. Chief Justice John Roberts visited in February for
the centennial celebration of the federal courthouse in downtown
Providence.
Heads I Win, Tails You Lose: How Judges Make You Do
the Time Even If
You Didn't Do the Crime
David
Feige
04-01-08 --
In the layman's view of the criminal-justice system, defendants go
to trial, are convicted or acquitted of certain charges, and if
convicted, are sentenced for the offenses. But try to explain the
reality of being sentenced for acquitted conduct, and you're likely
to be met with stares of astonishment. "You mean you can go to
trial, get acquitted and still go to the slammer for stuff the jury
says wasn't proven?" . . . Indeed, my friends, welcome to the wacky
world of criminal sentencing. . . . Not only have many defendants
been sentenced for stuff the jury said they didn't do (or at least
wasn't proven), but yesterday the Supreme Court refused to do
anything about it. The cert denial came in the case of Mark Hurn of
my hometown, Madison, Wis. Hurn ate 15 years extra years in prison
for possessing crack cocaine, even though a jury acquitted him of
the charge. It's true. Though he was convicted of having powder
cocaine in his house, (for which he was looking at two or three
years in prison), he was sentenced to almost 18 years. Why? Because
even though the jury acquitted him of the crack charge, the judge
kind of figured he'd done it and therefore found, by a preponderance
of the evidence that he'd done it, and sent him to prison as if the
jury had actually said "Guilty" rather than "Not Guilty." . . .
Strange? Yes. But sadly, also true. . . . And while the high court's
refusal to hear Hurn's appeal (notwithstanding reverse his sentence)
yesterday was cowardly enough, with the fourth circuit's decision
this afternoon in US v. Ibanga, we have finally landed in
Wonderland. In the case (and no it's not a joke though I wish it
were), the fourth circuit basically says that not only CAN you
sentence on acquitted conduct, categorically refusing to consider it
is actually error.
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"Originally
Speaking"
AN ONLINE WRITTEN DEBATE ON
Medellin v. Texas |
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New
SCOTUScast episodes are now available for download
from our Multimedia Archive and from iTunes. Recent
episodes include Mark Behrens on Hall Street
Associates v. Mattel, William Otis on United
States v. Ressam, Ron Rotunda on Munaf v.
Geren/Geren v. Omar, Vince Vitkowsky on
Republic of the Philippines v. Pimentel,
Kevin Marshall on District of Columbia v. Heller. |
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On
March 25, 2008 the Supreme Court decided the
Medellin
v. Texas case. The Court ruled
that neither Avena nor the
President's Memorandum constitutes directly
enforceable federal law that pre-empts state
limitations on the filing of successive
habeas petitions. Solicitor General for the
State of Texas and attorney for the
respondent
Ted Cruz,
Saint Louis University School of Law
professor
David
Sloss, Georgetown University
Law Center professor
Nick
Rosenkranz, and former Legal
Adviser to the U.S. State Department and
current partner at Sullivan & Cromwell
Edwin Williamson discuss the
Court's decision.
Part I: Self-Execution can be found
HERE
Part II: Presidential Power can be found
HERE
The debate is live and on-going so
periodically check back for updates! |
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March 2008
Scalia Criticizes News Media
03-27-08 --
(AP) -- Justice Antonin Scalia took the news media to task Thursday
for some recent coverage of the Supreme Court. . . . At a conference
of attorneys in Washington, Scalia said news organizations often
fail to focus on the text of the laws the court interprets, citing
accounts of last month's 8-1 decision that made it harder for
consumers to sue makers of federally approved medical devices. . . .
He singled out for criticism a New York Times editorial on the case
headlined "No Recourse for the Injured." . . . The media often make
it appear as though the court is reaching policy judgments on its
own rather than basing its decisions on the text of the law at issue
in a case, Scalia said. . . . In some instances, said Scalia, the
news media leave the impression that no ruling based on the text of
a law "is even possible."
S.C. inmate's Supreme Court win earns him criminal probe
By
Michael Doyle | McClatchy Newspapers
03-25-08 --
Stanford Law School professor Jeffrey L. Fisher and South Carolina
felon Michael R. Ray are unlikely partners in a criminal-sentencing
case that the Supreme Court heard Monday. . . . Working behind bars,
Ray wrote a brief that was good enough to persuade the high court to
consider an appeal by fellow prisoner Keith Lavon Burgess. Few
attorneys get that far. Fewer still face the tangled consequences
that Ray confronted. . . . While Fisher presented oral arguments
Monday, Ray is reportedly under criminal investigation for
unauthorized legal practice for his handling of Burgess' case. The
investigation could complicate Ray's scheduled April 14 release from
Estill Federal Correctional Institution, where he's been serving
time for fraud. . . . "It would be nice to see the Palmetto State
dedicating the thousands of dollars being expended in this
(investigation) for a prisoner re-entry services program ... and for
ex-felon job creation," Ray declared in a self-penned news release.
. . . Ray's outside attorney, C. Rauch Wise, said late Monday
afternoon that "he was under investigation, but I have heard
conflicting stories about its status." . . . South Carolina Deputy
Attorney General Allen Myrick Jr. declined
to comment on the case Monday. Myrick's spokesman, Mark Plowden,
said in an e-mail late Monday afternoon that "we did receive
information about (Ray's) activities, but have taken no legal action
of any kind."
Clarence Thomas Is Not 'Mr. Constitution'
Cass R.
Sunstein, The New Republic's "Open University" blog
03-25-08 --
The Wall Street Journal has a remarkable interview with Clarence
Thomas, available
here. In the interview, Thomas states his fidelity to the
Constitution "as it's drafted.". . . In context, it seems clear that
Thomas means to follow the original understanding of the document
(though he resists the term "originalism") The real point is that he
is a neutral interpreter. "Maybe I am labeled as an originalist or
something, but it's not my constitution to play around with. Let's
just start with that. We're citizens. It's our country, it's our
constitution. I don't feel I have any particular right to put my
gloss on your constitution. My job is simply to interpret it." . . .
The chief example, in the WSJ interview, is Justice Harlan's
dissenting opinion in Plessy v. Ferguson, in which Harlan said that
the Constitution does not permit racial segregation. As the WSJ has
it, "Harlan's intellectual honesty trumped his personal prejudice,
causing Mr. Thomas to describe Harlan as his favorite justice and
even a role model. For both of them, justice is truly blind to
everything but the law."
The Book Of Clarence Thomas
Andrew Cohen: Court's Only Black Justice Won't Oppose Legal Racism
In Death Penalty Case
(CBS) Attorney Andrew Cohen analyzes legal issues for CBS News & CBSNews.com.
03-21-08 --If you really want to take the measure of Supreme Court Justice
Clarence Thomas, don’t bother reading his self-serving, cry-for-help
book.
And don’t bother going into the archives to view or read the fawning
interviews
that accompanied it. Just read this week’s big death penalty
decision
in a case involving a black man named Allen Snyder. . .
.
By a margin of 7-2, with conservative Justice Samuel A. Alito, Jr.,
writing the majority opinion, the Court Wednesday overturned
Snyder’s death penalty conviction and ordered a new trial after
concluding that black jurors were illegally barred from his
Louisiana trial. The Court’s ruling was the latest in a recent
series designed to rein in rogue prosecutors and recalcitrant judges
who merely give lip service to the constitutional mandate that black
jurors ought to be able to sit in judgment upon black defendants.
. . .
Snyder is no picnic. He allegedly murdered his estranged wife’s
boyfriend. But this case, this appeal, was not about his guilt or
innocence or even any of the information offered at trial, before
which the prosecutor told one and all that this was his “O.J.
Simpson” case, a reference to a black defendant whom many believe
got away with murder back in the fall of 1995. Snyder’s trial was in
1996 - less than a year later.
The Second Amendment and Personal Preference
Howard J. Bashman, Special to Law.com
Related:
Bashman Archive
03-21-08 --
What role, if any, should a judge's personal preference concerning
the outcome of a case play in deciding a dispute? That controversial
question resurfaced this week as the Supreme Court heard oral
arguments in a closely watched case that presents the question of
whether the Second Amendment to the U.S. Constitution confers an
individual right to own guns. . . . The Supreme Court has not yet
definitively resolved what the Second Amendment means. The last time
the Court spoke at length about the provision's meaning was in 1939
in a case captioned United States v. Miller. And the language of the
Miller ruling seems to provide more support for those who argue that
the Second Amendment provides only a collective, militia-based right
to bear arms, instead of an individual right unconnected to service
in a state militia. . . . No doubt the Supreme Court of 2008 will
begin its inquiry with the text of the Second Amendment itself. The
Second Amendment states: "A well regulated Militia, being necessary
to the security of a free State, the right of the people to keep and
bear Arms, shall not be infringed." . . . I have been following the
debate over the Second Amendment's meaning for many years, and, like
anyone who has followed the issue or reviewed the
briefs filed in the U.S. Supreme Court case of District of
Columbia v. Heller, I must admit that both sides in this
debate offer plausible interpretations of the Second Amendment's
meaning.
 
In Series of Videos,
Supreme Court Justices Make Their Case
Justices' candid observations and pet peeves spill forth in legal
writing guru Bryan Garner's video interviews
Tony
Mauro, Legal Times
03-12-08 --
They are raw and unvarnished, like what might happen if you turned a
videocam on yourself in your garage and started talking. . . . But
the collection of videos on
LawProse.org were shot at the Supreme Court and they star
eight of the nine justices speaking passionately, sarcastically,
angrily, into the camera as they answer questions about brief
writing, oral advocacy and their own love-hate relationships with
the written word. . . . Their interviewer, legal writing guru Bryan
Garner, quietly posted the eight videos on the Web site in January.
Garner has interviewed dozens of judges, lawyers and writers over
the years, seeking video clips for use in his profitable legal
writing seminars. But he realized the interviews with the justices,
conducted a year ago or more, were a unique treasure that he should
not profit from, so he put them up without restriction, editing, fee
or fanfare. . . . Since then, through word of mouth alone, links to
the site have raced from one appellate law office to another. . . .
In front of their computers, lawyers who make their living trying to
fathom the justices' preferences have watched the videos hour after
hour, transfixed by what they are hearing from the mouths of the
normally private, silent justices. It is as if the College of
Cardinals had suddenly decided to go on camera to unlock the secrets
of choosing a pope. . . . The justices' pet peeves spill forth, and
lawyers are taking notes.
Will the Supreme Court Make a Decision About
Compensable Work?
Tyson Foods has petitioned the Court to resolve the fundamental
question of whether compensable work must entail exertion
Carla J.
Rozycki and Darren M. Mungerson, Special to Law.com
03-12-08 --
An increasing number of wage and hour lawsuits raise the issue of
what constitutes "compensable time" under the
Fair Labor Standards Act, as employees seek pay for
uncompensated work-related activities such as donning and doffing
different kinds of safety or protective clothing, waiting to go
through security and walking to work stations. The compensation at
issue in these cases can add up quickly and be costly for employers.
. . .
Tyson Foods Inc. has recently
petitioned the Supreme Court to resolve the fundamental question
of whether compensable work must entail exertion. The dispute arose
over Tyson's requirement that employees wear gear such as hairnets,
earplugs and safety goggles, which they must don, doff and sanitize
before and after each shift, and two unpaid meal breaks, taking
employees more than 13 minutes per day. A group of over 540 Tyson
employees at two poultry processing plants filed suit, alleging that
time spent donning, doffing and sanitizing protective clothing
should be compensable.
Scalia sees narrow role for courts
Presented with James Madison Award for Distinguished Public Service
By Kelly
Lack, Staff Writer
03-10-08 --
Supreme Court Associate Justice Antonin Scalia defended the Court’s
role in the 2000 presidential recount in Florida and shared his
views about the Court’s role in a liberal democracy before a packed
audience in McCosh 50 on Friday night. . . . Scalia also received
the James Madison Award for Distinguished Public Service at the
event, co-sponsored by the James Madison Program in American Ideals
and Institutions and Whig-Clio, which presented the award. . . .
Whig-Clio president Molly Alarcon ’10 asked Scalia several questions
selected from a pool that had been submitted in advance by Whig-Clio
members. . . . Among the most controversial questions Scalia
addressed was one from Forest Sebastian ’10 regarding the Supreme
Court’s decision to stop the Florida vote recount in the 2000
presidential election. . . . “Get over it, it’s eight years ago,”
Scalia said. “I think the vast majority of citizens in the country
were glad [that the Supreme Court stopped the ballot recount].” . ..
“We were the laughingstock of the world” because the United States
seemed unable to determine its next president, he explained. . . .
Even if the Court had not ended the recount, Scalia said, the
Republican-controlled Florida government would have named George W.
Bush the winner.
Scalia Says 'Living Constitution' Reduces Democracy
Chris
Blank, The Associated Press
03-07-08 --
American democracy has been weakened by a shift toward a so-called
"living Constitution" that gives judges more power and lawmakers
less,
Supreme Court Justice Antonin Scalia said Tuesday during
an appearance at the University of Central Missouri. . . . Appointed
to the high court by
President Ronald Reagan in 1986, Scalia said the
Constitution's meaning hasn't changed since it was written more than
200 years ago. . . . The democratic process is supposed to fill in
the gaps that the Constitution doesn't specifically address, he
said. But when judges make interpretations contrary to what's
expressly included in the Constitution, they are making policy
decisions that should be left to Congress and the people, he said. .
. . But because judges have been willing to make such policy
decisions -- and because the public has grown to expect that they
will --
Senate confirmation hearings have become partisan battles.
Scalia said that was the case in hearings for
Chief Justice John Roberts and
Justice Samuel Alito. . . . Noting that he was confirmed
98-0 by the Senate, he said he doubted he could get 60 votes today.
. .. "The people and their representatives in Congress have
realized what the game is, and they want people to rewrite the
Constitution the way they want it," Scalia said.
Roberts' Recusal Is Poison Pill for Drug Case Before Supreme Court
Financial disclosure form showed chief justice owns between $15,001
and $50,000 in stock in Warner-Lambert's parent company
Tony
Mauro, Legal Times
03-05-08 --
A key pharmaceutical industry case argued just last week before the
Supreme Court ended Monday morning with a loss for the industry. The
Court announced it was divided 4-4 in the case Warner-Lambert v.
Kent, a split that resulted from the recusal of Chief Justice John
Roberts Jr. that deprived the Court of a ninth vote. . . . According
to his financial disclosure form for 2006, Roberts owns between
$15,001 and $50,000 in stock in Pfizer, the parent company of
Warner-Lambert. The effect of a tie is that the lower court ruling,
which went against Warner-Lambert, stands -- though it does not
create national precedent. . . . At issue in the case was whether
federal law pre-empts a Michigan statute that allows suits against
drug makers when plaintiffs can show that the manufacturers
deliberately defrauded the Food and Drug Administration. The suit
was brought by 27 diabetes patients who claimed they were harmed by
Pfizer's drug Rezulin.
Avoiding Recusal-Based Tie Votes at the U.S. Supreme Court
Howard J. Bashman, Special to Law.com
Related:
Bashman Archive
03-05-08 --
Almost immediately after last week's
oral argument in the Exxon Valdez case, some veteran
journalists began to speculate that the U.S. Supreme Court could
divide 4-4 over whether the punitive damages awarded in that case
should be reduced or set aside entirely. The possibility of a tie
vote arises because Justice Samuel A. Alito Jr. is recused due to
his ownership of stock in Exxon. . . . And on Monday of this week,
the
U.S. Supreme Court affirmed by an equally divided vote the
decision under review in Warner-Lambert Co. v. Kent,
vividly demonstrating that recusal-based tie votes are a fact of
life at the U.S. Supreme Court whenever an even number of judges
remains to decide the case. However, because recusal-based tie votes
occur infrequently at the U.S. Supreme Court, little if any
attention is focused on whether to implement a solution that might
avoid them altogether. . . . My proposed solution to avoiding
recusal-based tie votes at the U.S. Supreme Court is an approach
that many state courts of last resort already have adopted. In those
state high courts, if a justice is recused, the resulting vacancy is
filled by a non-recused judge from one of the state's intermediate
appellate courts. Having the court back at its full complement of
justices makes a tie vote extraordinarily unlikely to occur and thus
ensures that a case deserving of review in the jurisdiction's
highest court can produce a definitive outcome on the questions
presented.
Patients' ability to sue at risk
Justices could shield FDA-backed drugs from suits, as they did for
devices. Critics say the agency is fallible.
By
Daniel Costello, Los Angeles Times Staff Writer
03-03-08 --
Years of high-profile court battles over drugs such as Vioxx and
Celebrex, along with billion-dollar settlements and jury verdicts,
could soon be a thing of the past. . . . The U.S. Supreme Court, in
an 8-1 decision, ruled last month that patients injured by most
medical devices can't sue their manufacturers. And this fall, a
similar case could extend the same legal protection to the much
larger pharmaceutical industry -- a frequent target of lawsuits. . .
. In last month's case, the high court backed a legal theory,
supported by the Bush administration, that maintains that the Food
and Drug Administration adequately regulates the drug and device
industries and should not be second-guessed by courts. . . . Critics
say such an argument would make more practical sense if the FDA were
doing a better job. . . . The high-profile cases come as the federal
agency faces growing challenges and some of its most withering
criticism in years, some from within its own walls.
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February 2008
Obama's Class-War Court
By Terence P. Jeffrey, CNSNews.com Editor in Chief
02-27-08 --
When the nomination of John Roberts to be chief justice of the
Supreme Court came up in the Senate in 2005, Sen. Barack Obama
argued that the role of a justice is to favor the "weak" over the
"strong." . . . When the nomination of Sam Alito came up in January
2006, he made the same argument. . . . Obama does not want a Supreme
Court that preserves the rule of law, he wants a Supreme Court that
wages class war under color of law. . . . During the Roberts
nomination debate, he argued that most Supreme Court cases involve
no real controversy, "so that both a Scalia and a Ginsburg will
arrive at the same place most of the time on those 95 percent of
cases." . . . In the other 5 percent, he argued, the determining
factor is not what the law in question says, or what the
Constitution says, but the emotional disposition that the justices
deciding the case have toward the parties disputing it. "In those
difficult cases," Obama said, "the critical ingredient is supplied
by what is in the judge's heart." Roberts and Alito were bad judges,
he decided, because their hearts weren't in the right place.
Age Bias Popular Topic at Supreme Court
By Mark Sherman, Associated Press
Writer
02-19-08 –
(AP) - There is only one anti-bias law—the one against
discrimination based on age—that would cover all nine Supreme Court
justices, if such laws applied to them. . . . The justices, ranging
in age from 53 to 87, are the last people to worry about such things
in their own lives. They have life tenure and no mandatory
retirement age. . . . Yet the justices are confronted by allegations
of age discrimination in five cases this term. While the sheer
number of cases probably can be explained away as coincidence, the
topic is one of growing importance as more people work longer
because of economic necessity or by choice. . . . "The importance of
protecting older workers as the work force ages is enormous," said
Stu Cohen, AARP's director of legal advocacy. "More older workers
remain in the workforce and projections are that the percentage will
continue to expand." . . . The percentage of people 65 and over who
continue |