U.S. Supreme Court Current News & Views

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May 2012

Citizens United: The Untold Story

By Joe PalazzoloWall Street Journal (blog)

05-145-12 -- Jeffrey Toobin, the New Yorker’s Supreme Court chronicler, takes on Citizens United v. FEC in next week’s magazine. As with most of his pieces, it’s a brisk read infused with precious behind-the-scenes details of the court. Disclaimer: It is also sharply critical of the 2010 decision, which struck down limits on corporations’ spending in political campaigns. . . . Toobin’s most compelling stuff fills the gap in public understanding of what occurred between the time the Supreme Court first heard the case in March 2009 and the justices’ startling announcement in June 2009 that the court would rehear it — or rather, that the court would use the case as a vehicle to reconsider its endorsement, a few years prior, of the McCain-Feingold Act.

Waxman Amicus Brief—One of Six Urging Cert in Rubashkin Case—Raises Questions of Bias

By Debra Cassens Weiss, ABA Journal

05-10-12 -- Former Solicitor General Seth Waxman has filed an amicus brief urging the U.S. Supreme Court to accept cert in the case of Sholom Rubashkin, an executive at a kosher meatpacking plant convicted in a multimillion-dollar bank fraud that came to light after a large-scale immigration raid. . . . The brief is one of six amicus briefs urging the court to accept the case, according to a press release and the Yeshiva World News. “Legal observers say it is unusual for so many amicus briefs to be filed at the ‘cert petition’ stage,” notes the Yeshiva World News. Rubashkin, 51, was sentenced to 27 years in prison, though prosecutors had sought a life sentence. . . . The Waxman brief (PDF) says evidence uncovered after trial found that the presiding judge had been personally involved in the immigration raid to a far greater degree than previously disclosed. Evidence suggested the judge met with prosecutors and immigration agents about preparations for the raid, and attended a discussion of logistics and charging strategy, the brief says. “The available facts concerning this prior involvement raise serious questions as to whether the appearance of judicial impartiality was maintained in this case,” the brief asserts.

Will Court confess error on immigrants’ rights?

Lyle Denniston Reporter SCOTUSblog  

Analysis

05-08-12 -- The Supreme Court is now faced with the rare situation that one of its opinions was based on flawed information, and yet correcting it for the record books might actually undermine the ruling itself.  The dilemma: should it just let the error go, or should it do something about it, and, if so, what?  But there is also a procedural question that might have to be resolved first: who has the legal right to ask the Court to change an opinion that is wrong? . . . That is what the Court now confronts in the case of Nken v. Holder, a decision it issued in April 2009.   The Justice Department last month told the Court that it had provided faulty information in that case about U.S. immigration policy, but it suggested that the Court need not do anything about it.  Now, however, a group of immigrants’ rights lawyers have asked the Court to actually modify the opinion after the fact, so that lower courts do not rely upon the error, with a negative impact on immigrants’ rights.

Supremely partisan

Election-changing judicial activism has no place in the nation’s highest court

By Neal Gabler, The Boston Globe Opinion 

05-06-12 -- If Mitt Romney wins the presidency, he should thank his Super PACs, the Republican establishment, and his incompetent primary competition. But he should reserve his deepest gratitude for the Supreme Court. No institution may have given more to his cause. . . . Despite all the rhetoric asserting that the court is disinterested and impartial, it has never really been disentangled from politics. In the last century we had a conservative court in the 1930s that invalidated much of FDR’s New Deal and the liberal Warren court of the 1950s and early ’60s that earned the wrath of conservatives for allegedly having a political agenda. . . . The distinction has usually been between a juristic court, even if it is an ideological one, and a political court — that is, a court that looks beyond principle and precedent to its own political proclivities or those of the general public. The latter is routinely excoriated because judges are supposed to be above politics, indeed above anything but looking at the law. . . . But as most legal scholars will attest, a disinterested court is the exception rather than the rule, and the Supreme Court has typically been political, not surprisingly since judges are, after all, political appointees. Frankly, this is not necessarily a bad thing. It was the court’s sensitivity to the political winds in the late ’30s that prompted it to reverse itself and ultimately support FDR’s initiatives to end the Depression. Twenty years later that sensitivity led to Brown v. the Board of Education, which integrated schools. Arguments for originalism notwithstanding, a court that paid no heed whatsoever to changing political circumstances would be a court that is not only anachronistic but also one that would likely lose its legitimacy. As much as we may hate to admit it, balancing law and politics is what a Supreme Court does.

Justices Ponder Shakespearean Divorce and a 'Weak-Minded Gigolo'

by Andrew Ramonas, The BLT, The Blog of the Legal Times  

05-01-12 -- The oral argument season at the U.S. Supreme Court ended last week. But three justices had one more case to hear in Washington on Monday night: Claudio v. Hero. . . . At the Shakespeare Theatre Company's 18th annual mock trial, justices Ruth Bader Ginsburg, Samuel Alito Jr. and Elena Kagan, as well as U. S. Court of Appeals for the D.C. Circuit judges Douglas Ginsburg, Merrick Garland and Brett Kavanaugh, sat on the Supreme Court of Messina for the night to consider a divorce case involving Count Claudio and Lady Hero of Messina, characters from William Shakespeare's Much Ado About Nothing. . . . A packed house that included many lawyers laughed often as Claudio’s attorney, Steptoe & Johnson LLP partner Reid Weingarten, and Hero’s counsel, Ain & Bank principal and co-founder Sanford Ain, worked to win the bench’s support for their clients, whose courtship and marriage saga was relayed in the Shakespearean comedy.

April 2012

Justice Kagan seeks end of U.S. Constitution, says gun rights leader

Jim Kouri, Law Enforcement Examiner   

04-27-12 -- When U.S. Supreme Court Associate Justice Elena Kagan recused herself during Wednesday's hearing on the constitutionality of Arizona's immigration enforcement law, she received high praise from the nation's news media, including Fox News Channel anchor Bill Hemmer. But there are those who claim Kagan recused herself knowing the case would be a failure for President Barack Obama and the Democrats with or without her participation. . . . "What would you say if you learned that a member of the highest court in the land has spent the last 30 years openly advocating for the destruction of the US Constitution and even went so far as to accept $20 million from Shariah Law proponents to accomplish her goal?" asks Alan Gottlieb, president of the Second Amendment Foundation. . . . "That Supreme Court Justice is Elena Kagan," he bluntly states. . . .  ccording to Gottlieb, the year after Ronald Reagan entered the Oval Office with the goal of restoring America to greatness, Kagan penned a telling and disturbing senior thesis titled "To the Final Conflict: Socialism in New York City, 1900-1933."   . . . Gottlieb claims that in that body of work, Kagan lamented that "a coherent socialist movement is nowhere to be found in the United States"; and that," no "radical party" had yet "attained the status of a major political force." Kagan went on to sound a rally cry for "those who, more than half a century after socialism's decline, still wish to change America."  

U.S. Supreme Court Justice Samuel Alito Says Pragmatism, Stability Should Guide Court

Addresses Jurisprudence at Law School Conference on Burkean Constitutionalism

Media Contact: Public Affairs, 212-854-2650 or publicaffairs@law.columbia.edu

04-24-12 -- Everyone wants to answer the question, ‘What would Edmund Burke do?’” U.S. Supreme Court Justice Samuel A. Alito told a capacity audience at Columbia Law School’s conference on Burkean Constitutionalism. “But I’m not going to do that. Any approach to judging must be justified on its own terms, and not on the grounds that it’s what Edmund Burke would do if he were in our shoes.” . . . Burkean scholars from around the country gathered at the April 10 conference to discuss jurisprudence attributed to Edmund Burke, the 18th century British legislator who is sometimes called the father of classical conservatism. Panelists addressed two questions: What is Burkean Constitutionalism? And is it a good idea? . . . The conference was organized by Columbia Law School’s Thomas W. Merrill, the Charles Evans Hughes Professor of Law, and Philip Hamburger, the Maurice and Hilda Friedman Professor of Law. Burkean constitutional interpretation has led an obscure underground existence, Merrill explained.

Justice by the Numbers

When it comes to deciding the future of Obamacare, the Supreme Court should ignore public opinion.

By Barry Friedman and Dahlia Lithwick, Slate  

04-24-12 -- Nobody following last month’s stunning Supreme Court hearings on the fate of health care reform could have missed the prominent role played by public opinion polls in the debate. The New York Times’ headlines trumpeting the day’s arguments at the high court were printed alongside the polls showing significant public disapproval of the law. The Times was hardly alone. The fact that the Affordable Care Act was polling poorly became a dominant theme in coverage of the case in the mainstream media and the rollicking blogosphere. The Supreme Court’s argument over Obamacare may well be the first in history in which news about public opinion was driving the news about constitutional decision-making, rather than vice versa. . . . This media fixation on polling and the Constitution is bad news for the court. It openly jeopardizes the justices’ already weak credibility on the question of whether they can truly operate above politics. A recent poll (yes, another poll) shows that the public is certain the justices will render an ideological—as opposed to constitutional—decision in June. And Gallup shows the justices’ public approval ratings at the second lowest in a decade, down to 46 percent, which is pretty low for the court historically. But now there also may be a real risk that the justices will sip the polling Kool-Aid themselves, and conclude that there is safety in the numbers.

SCOTUS: Corporations are people, unless they torture other people

by Alison Frankel,  Thomson Reuters News & Insights   

04-24-12 -- Corporations, as Mitt Romney famously reminded us this summer in Iowa, are people under the laws of the United States. Just take a look at the U.S. Supreme Court's 2010 ruling in Citizens United v. Federal Election Commission. The five justices in the majority (you know who they are) held that corporations are entitled to the same First Amendment right to free speech as regular old people, so Congress' attempt to ban corporate electioneering was unconstitutional. . . . When are corporations not people in the eyes of the Supreme Court? When they're accused of torturing or killing real live human beings. Last week, in Mohamad v. Palestinian Authority, all nine justices agreed that when Congress enacted the Torture Victim Protection Act in 1991, it restricted causes of action to those against "an individual" -- and individuals aren't organizations or corporations. The court looked at the dictionary definition of the word individual, as well as the legislative history of the anti-torture law, to conclude that Congress intended the law to apply only to "natural persons." The opinion said it's notable that lawmakers used the word "individual" instead of "person" in defining potential torture defendants because "'person,' as we have recognized, often has a broader meaning in the law than 'individual.'"

During Penn dedication, Sotomayor voices one regret

By Karen Sloan, The National Law Journal  

04-06-12 -- It's difficult to identify too many major career mistakes when you're a U.S. Supreme Court Justice, as Sonia Sotomayor explained to an audience at the University of Pennsylvania on April 5. . . . But the justice offered one decision that she regrets to this day: Forgoing a clerkship right out of law school, against the advice of a mentor. At the time, the low pay that clerks received swayed her away from that option. (Sotomayor graduated in 1979 from Yale Law School. Even today, federal clerks earn about $60,000 — far less than most law firms will pay a bright young law school grad.) . . . "The reason you do it is because there is no experience right out of law school that will teach you more about the practice of law than clerking," Sotomayor said.

Sotomayor reflects on her law career

Justice's visit to Penn ends a week of celebrations to open a new hall.

By Chris Mondics, Philadelphia Inquirer Staff Writer  

04-06-12 -- There she sat on stage at the Irvine Auditorium, among friends and far from the political maelstrom of Washington. . . . Supreme Court Justice Sonia Sotomayor, who only last week sought with colleagues to unpack the legal complexities of President Obama's health-care overhaul during three historic days of oral arguments, arrived on Thursday at the University of Pennsylvania campus to mark the opening of a new building and unspool reflections on the law and the state of legal education. . . . Along the way, Sotomayor, who graduated from law school at a time when no woman had yet been named to the Supreme Court and when there were precious few female appellate lawyers, offered a brief tutorial on how to forge a legal career.

Justice Thomas Tells Students He’s a ‘No-Frills Guy’ Who Doesn’t Read the Times

By Debra Cassens Weiss, ABA Journal

04-06-12 -- When he’s not on the bench, Justice Clarence Thomas and his “best buddies” talk about sports and recreational vehicles—anything but the law. He doesn’t play golf or tennis, and he doesn’t drink or smoke. . . . Thomas described himself as a “no-frills guy” in remarks on Thursday at the University of Kentucky. On his 60th birthday, three nonlawyer friends joined him at the Cracker Barrel, Thomas said. The Lexington Herald-Leader, the Associated Press and the Kentucky Kernel have stories on the remarks. . . . Thomas had a quick answer when asked if he reads the New York Times every day, according to the Herald-Leader. “Oh, God, no!” he said.

Health-law challenger raises specter of campaign-finance case

Tony Mauro, First Amendment Center Legal Correspondent  

04-05-12 -- The landmark Supreme Court arguments over the health-insurance law last week involved a range of constitutional issues, but the First Amendment was not among them. Why, then, did Paul Clement, the chief challenger to the law, keep mentioning Buckley v. Valeo, the 1976 decision that set the First Amendment boundaries for modern-day regulation of campaign financing? . . . The answer is clear: Clement was gambling that the specter of Buckley is such a nightmare for the justices that they would never want to rule on the health-insurance law in a similar way. Playing the “Buckley card” is just the latest sign of how low the reputation of that historic decision has sunk. . . . Three times, Clement raised Buckley — which was not mentioned in his briefs — in the context of the “severability” argument in the health-law cases. The question was: What would happen to the rest of the Affordable Care Act if the core feature, the so-called “individual mandate,” was struck down?

Analysis: Justice Kagan--Giving liberals a rhetorical lift

by Joan Biskupic, Thomson Reuters News & Insights

04-05-12 -- During three days of arguments over the Obama healthcare plan, U.S. Supreme Court Justice Elena Kagan put on a display of rhetorical firepower, reinforcing predictions that the newest liberal justice is best equipped to take on the conservative, five-man majority controlling the bench. . . . The strong views and persuasive tactics of the administration's former top lawyer could affect the fate of the healthcare overhaul, as well as decisions in other ideologically charged issues that will come before the court, such as same-sex marriage. . . . Kagan's sturdy advocacy was evident to law professors and to lawyers who practice before the court during her first term. But the healthcare debate has offered her a more prominent platform with bigger stakes. She pressed her argument as ardently as any lawyer who stepped to the lectern.

Obama vs. Marbury v. Madison

The President needs a remedial course in judicial review.

The Wall Street Journal editorial  

04-02-12 -- President Obama is a former president of the Harvard Law Review and famously taught constitutional law at the University of Chicago. But did he somehow not teach the historic case of Marbury v. Madison? . . . That's a fair question after Mr. Obama's astonishing remarks on Monday at the White House when he ruminated for the first time in public on the Supreme Court's recent ObamaCare deliberations. "I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress," he declared. . . . Presidents are paid to be confident about their own laws, but what's up with that "unprecedented"? In Marbury in 1803, Chief Justice John Marshall laid down the doctrine of judicial review. In the 209 years since, the Supreme Court has invalidated part or all of countless laws on grounds that they violated the Constitution. All of those laws were passed by a "democratically elected" legislature of some kind, either Congress or in one of the states. And no doubt many of them were passed by "strong" majorities. . . . As it happens, probably stronger majorities than passed the Affordable Care Act. Readers may recall that the law was dragooned through a reluctant Senate without a single GOP vote and barely the 60 votes needed to break a filibuster. Despite a huge Democratic majority in the House, it passed by only 219-212.

March 2012

How Founding Fathers helped argue the health-care case at the Supreme Court

The clash of ideas at the core of the Supreme Court debate over Obama’s health-care law is as old as the nation itself, and the spirit of the Founders was present before the assembled justices.

By Warren Richey, Christian Science Monitor Staff writer

03-30-12 -- US Supreme Court justices probably don’t believe in ghosts, but in the extraordinary arguments conducted this week at the high court could be heard the voices of the Framers of the Constitution. . . . It wasn’t just Solicitor General Donald Verrilli, or Washington lawyers Paul Clement and Michael Carvin, at the lectern before the assembled justices. . . . With them in a courtroom crowded with members of the Senate and House, scholars, and lawyers were some of the most outspoken leaders of the founding generation. . . . If one listened closely their spirit was unmistakably present. With Mr. Verrilli stood Alexander Hamilton, a New Yorker, Treasury secretary, and champion of a national government powerful enough to shape its economic future. . . . With Mr. Clement and Mr. Carvin stood James Madison and Thomas Jefferson, both presidents, Virginians, and champions of an experimental form of self-rule in which the national government would be limited to specific areas of nationwide concern, leaving most power to the states and to the people. . . . To be sure, the case on Tuesday involved the constitutionality of President Obama’s health-care reform law – specifically its mandate that all Americans purchase a government-approved level of health insurance or pay a penalty. . . . But it was also about something more fundamental, a fierce clash of ideas, dangerous enough to spark a civil war, and as old as the nation itself. . . . It involves conflicting visions of the constitutional structure of the government – the proper balance of power between the national government, the states, and the people. . . . Among the justices of the Supreme Court today this debate is most recognizable in the contrasting views of Justices Stephen Breyer and Antonin Scalia.

How much do you know about health-care reform? Take our quiz!

Twitter coverage of Supreme Court gets shut down

Reporting by David Ingram, Thomson Reuters News & Insights  

03-27-12 -- A lawyer discovered how far the U.S. Supreme Court will go to close itself off from the public when it hears a case, no matter how many people on Twitter may be interested. . . . Casey Mattox went to the court on Tuesday to see historic arguments over whether to strike down the Obama administration's healthcare law. . . . His plan was to give live updates and the idea appeared to work as descriptions from the arguments showed up on the Twitter feed of the Alliance Defense Fund, a conservative legal group where Mattox is a senior counsel. . . . But after finding out about the social networking, the court marshal's office asked Mattox to stop, citing a policy against electronic communication, a spokeswoman for the Alliance Defense Fund said afterward.

New Look at an Old Memo Casts More Doubt on Rehnquist

By Adam Liptak  "Sidebar" column, The New York Times.

03-19-12 -- In 1952, a young Supreme Court clerk wrote a memorandum that would come to haunt him. . . . The court was considering Brown v. Board of Education, the great school desegregation case. The question for the justices was whether to overrule Plessy v. Ferguson, the 1896 decision that said “separate but equal” facilities were constitutional. . . . The memo, prepared for Justice Robert H. Jackson, was written in the first person and bore the clerk’s initials — “WHR,” for William H. Rehnquist. . . . “I realize it is an unpopular and unhumanitarian position, for which I have been excoriated by ‘liberal’ colleagues,” Mr. Rehnquist wrote, “but I think Plessy v. Ferguson was right and should be reaffirmed.”

Supreme Court Update

New Low: 28% Give Supreme Court Positive Ratings

Rasmussen Reports  

03-18-12 -- Even before the U.S. Supreme Court begins hearings later this month on the constitutionality of the national health care law, fewer voters than ever view the high court positively. . . . The latest Rasmussen Reports national telephone survey of Likely U.S. Voters shows that 28% give the Supreme Court good or excellent ratings. Nineteen percent (19%) rate the highest court in the land as poor. (To see survey question wording, click here.)

Washington Elites Queue Up to See Nine Justices on Hot Seat

Supreme Court Arguments on Health Law Trigger Mad Dash for a Few Dozen Spots

By Janet Adamy and Jess Bravin, Wall Street Journal 

03-15-12 -- The hottest ticket of the season isn't for the White House Easter Egg Roll or Opening Day for the Washington Nationals baseball team. . . . It's for a spot inside the Supreme Court to watch three days of arguments challenging the 2010 health-care law that begin here a week from Monday. . . . Given the town, people are working every angle. . . . Ezekiel Emanuel, a former White House adviser who helped craft the health-care law, hit up conservative Supreme Court Justice Antonin Scalia for a ticket even though the two men disagree on almost everything, he said, except "we like sharing good food."

Female Justices Join Forces to Honor O'Connor

Posted by Tony Mauro, The BLT, The Blog of the Legal Times  

03-15-12 -- All four women who have served as Supreme Court justices will appear together April 11 for a program celebrating the 30th anniversary of Sandra Day O'Connor's first term on the Court. . . . O'Connor, the first woman to serve on the high court, was sworn in on Sept. 24, 1981, in time for the October start of the 1981-1982 term. She was relieved to be joined by Ruth Bader Ginsburg in 1993, but retired in 2006 before Sonia Sotomayor and Elena Kagan, the third and fourth female justices, were appointed.

Supreme Court Seen Influenced by Politics in Health-Care Ruling

By Julie Bykowicz and Greg Stohr, Bloomberg    

03-14-12 -- Three-quarters of Americans say the U.S. Supreme Court will be influenced by politics when it rules on the constitutionality of a health-care law signed by President Barack Obama two years ago. . . . The sentiment crosses party lines and is especially held by independents, 80 percent of whom say the court will not base its ruling solely on legal merits, according to a Bloomberg National Poll. More Republicans than Democrats, by 74 percent to 67 percent, say politics will play a role in the court’s health- care decision. . . . The case is scheduled for arguments March 26-28, pitting the Obama administration against 26 states that say Congress overstepped its authority by requiring Americans to obtain health insurance or pay a penalty.

Health Care Act Offers Roberts a Signature Case

By Adam Liptak, New York Times   

03-11-12 -- When Chief Justice John G. Roberts Jr. takes his usual center seat on the Supreme Court bench on March 26, he will begin presiding over an extraordinary three days of arguments that will determine the fate of President Obama’s sweeping health care law. . . . The decision in the case, expected by June, will have practical consequences for tens of millions of Americans without health insurance, and it may affect Mr. Obama’s re-election chances. . . . It will also shape, if not define, the chief justice’s legacy. . . . Chief Justice Roberts is just 57, and he will probably lead the Supreme Court for an additional two decades or more. But clashes like the one over the health care law come around only a few times in a century, and he may well complete his service without encountering another case posing such fundamental questions about the structure of American government.

Supreme Court justice Antonin Scalia speaks at Wesleyan

By Jim Salemi, The Middletown Press Staff 

03-09-12 -- Wesleyan University selected Supreme Court Justice Antonin Scalia to deliver this year’s annual Hugo L. Black Lecture on Freedom of Expression. . . . Scalia’s speech was on ‘The Originalist Approach to the First Amendment.’ . . . Scalia said the Originalist’s approach is simply looking at the text of the document, and making reasonable conclusions. . . . “It is not strictly interpreting it, it’s not sloppily interpreting it, but reasonably.” . . . The justice also warned of the alternative—the notion that the Constitution is a “living document” and should change as society evolves. . . . “A living Constitution will bring you rigidity…With a living Constitution, to eliminate people’s power to choose is eliminated. It’s part of the Constitution forever, or at least until another court takes it up.”

Justice Scalia tells Catholics to brave the scorn of worldly people

By Electa Draper, The Denver Post  

03-04-12 -- U.S. Supreme Court Justice Antonin Scalia today told a standing-room-only crowd of more than 500 Catholics to have "the courage to have your wisdom regarded as stupidity" by society's sophisticates. . . . Scalia, the longest-serving justice on the high court and one of its most conservative, received a rousing welcome from a throng sprawled across several adjoining rooms of the Denver Convention Center. . . . Scanning the crowd of participants in the two-day Living the Catholic Faith Conference, Scalia quipped that that this was his first time in front of a group where he had to look so far to the left and to the right. . . . The 75-year-old Scalia said that today one can believe in a creator and the teachings of Jesus without being the brunt of too much ridicule, but that to hold traditional Christian beliefs that Jesus is God and He physically rose from the grave is to be derided as simple-minded by those considered leading intellectuals.

Antonin Scalia's ObamaCare Problem

The Obama administration repeatedly cites the conservative Supreme Court justice in defense of its health care overhaul.

Damon W. Root, Reason

03-01-12 -- When the U.S. Supreme Court hears oral arguments later this month on whether the Patient Protection and Affordable Care Act’s individual mandate, which requires all Americans to buy or secure health insurance, oversteps Congress’ lawful authority to regulate interstate commerce, the Obama administration will be drawing heavily from the legal arguments of a surprising ally: conservative Justice Antonin Scalia. . . . That’s because in 2005, when the Supreme Court last heard a major Commerce Clause challenge to a federal regulation, Scalia sided with the liberal majority and wrote a sweeping opinion in favor of federal power. In that case, Gonzales v. Raich, the Court held that the cultivation and consumption of medical marijuana entirely within the confines of the state of California still qualified as “commerce...among the several states” because this intrastate use of medical pot “substantially affects” the interstate black market in the drug,

Chemerinsky: Supreme Court Weighs First Amendment, the Stolen Valor Act and the Protection of Lies

By Erwin Chemerinsky, ABA Journal

03-01-12 -- One of the more fascinating cases on the U.S. Supreme Court's docket this term involves the constitutionality of the federal Stolen Valor Act, a law that makes it a crime for a person to falsely claim to have received a military medal or decoration. In United States v. Alvarez, argued Feb. 22, the court will decide whether the First Amendment protects such false speech. . . . The court has not been consistent as to whether there is First Amendment protection for lies; it has very much depended on the context. In New York Times v. Sullivan, decided in 1964, the court stressed that there needs to be First Amendment protection for some false speech so that there is "breathing space" for freedom of expression. The court also held that defamatory speech about a public official, speech that is false and injurious of the person's reputation, is protected unless it was uttered with "actual malice." In 1982’s Brown v. Hartlage, the court explained that false statements "are inevitable in free debate."

February 2012

House votes to overturn Supreme Court decision on eminent domain

By Pete Kasperowicz, The Hill 

02-28-12 -- The House on Tuesday afternoon approved legislation that overturns a 2005 Supreme Court decision that affirmed the ability of states to take control of private property under the doctrine of eminent domain and hand it to another private developer. . . . That decision, Kelo v. City of New London, led to sharp complaints in particular from Republicans, who argued that the Court ignored the normal "public use" standard. Under that standard, eminent domain was seen as permissible only when the land or property taken would be retooled for public use.

Supreme Court Justice Sonia Sotomayor will help Penn law school open a new building

By Chris Mondics, Philadelphi Inquirer Staff Writer 

02-28-12 -- Capping a two-year construction project, the University of Pennsylvania Law School plans to open a 40,000-square-foot building with a ceremony on April 5 attended by U.S. Supreme Court Justice Sonia Sotomayor. . . . The $33.5 million project includes a 350-seat auditorium and courtroom. The building - named Golkin Hall for its lead donors, Penn graduates Perry Golkin and his wife, Donna - faces Sansom Street on Penn's West Philadelphia campus, and more closely connects the other main buildings at the law school, including Silverman Hall, its 110-year-old Georgian-style building, the university said.

Rally at Supreme Court Supports Montana Ruling on Campaign Finance

Posted by Tony Mauro, The BLT, Blog of the Legal Times / Photograph by Diego Radzinschi

02-23-12 -- It's a safe bet that a ruling by the Montana Supreme Court has rarely if ever triggered a demonstration in the nation's capital. But that is what happened at noon today, when Common Cause and other campaign reform groups rallied in front of the Supreme Court in hopes that a Montana decision will trigger a reversal of the high court's controversial 2010 decision in Citizens United v. Federal Election Commission. . . . As a result of Citizens United, the political system has been taken over by "billionaire political investors," Common Cause president Bob Edgar (pictured at right) told a crowd of about 100 on the sidewalk in front of the Court. The decision gave First Amendment blessing to unlimited corporate and union independent expenditures in election campaigns. The Republican primaries have already demonstrated the impact of the decision, said Edgar, with millions of dollars flowing to so-called super-PACs. Those groups will only grow and have major influence over both presidential and congressional races in the fall, he said.

Do-Over Season

By Linda Greenhouse, "Opinionator" blog of The New York Times 

02-22-12 -- Is there really a chance that the Supreme Court might reconsider Citizens United? . . . A week ago, I wouldn’t have thought so, and I still think it’s an extreme long shot. But a provocative statement last Friday by Justices Ruth Bader Ginsburg and Stephen G. Breyer makes this crazy idea worth pondering – which is undoubtedly what the two justices intended. . . . Their three sentences were attached to an order issued by the full court granting a stay in a case from Montana on the right of corporations to make independent political expenditures. We all know, from the Citizens United decision two years ago, that corporations have a robust First Amendment right to spend as much as they want on politics, a right they are exercising to the hilt in the current election season.

Occupy the Super PACs

Justice Ginsburg knows the Citizens United decision was a mistake. Now she appears to be ready to speak truth to power.

By Richard L. Hasen, Slate 

02-20-12 -- In 18 years on the Supreme Court, Justice Ruth Bader Ginsburg has written more than 200 opinions on a number of important topics, including major opinions on everything from copyright law to abortion rights to employment discrimination. But in the area of campaign finance, she’s authored only one inconsequential two-paragraph concurring opinion—in one of the Supreme Court’s recent cases striking down parts of the McCain-Feingold law—in which she distanced herself from a more far-reaching dissent of Justice Stevens. She’s been a reliable vote to uphold reasonable campaign-finance laws, but this has hardly been her signature issue. . . . Last week, however, Justice Ginsburg issued a short statement that hinted she is ready to speak out more boldly. She, like many Americans, appears concerned with the rise of super PACs and the disturbing role money is playing in the 2012 campaign season since the Supreme Court’s controversial decision in Citizens United v. FEC.  Justice Ginsburg likely won’t have the votes to overturn Citizens United, but she soon will be in a position to expose the disingenuousness at the ruling’s core.

Congress looks for ways around Supreme Court

By Ben Pershing, The Washington Post   

02-13-12 -- Only a few hundred yards of grass and concrete separate the steps of the U.S. Capitol from those of the Supreme Court, but lately the gulf between the two has seemed much wider. . . . A steady flow of anti-court rhetoric has flowed forth from Congress in recent weeks, as lawmakers look to get around decisions they dislike or simply go over the justices’ heads by rewriting the Constitution. . . . Two years after the court drastically altered the landscape of campaign finance rules with its Citizens United v. Federal Election Commission decision, some legislators are still trying to write new disclosure laws that comport with the ruling. Separately, a handful of senators are seeking to draw more attention to their proposed constitutional amendment explicitly allowing Congress to regulate campaign funding.

High court in marriage cross hairs

Prop 8, DOMA cases may vie for Supreme Court's attention.

Marcia Coyle, The National Law Journal  

02-13-12 -- The road map's details may not be clear yet, but the direction is: Same-sex marriage is moving closer to the U.S. Supreme Court. . . . It may not be the recent decision in California's Proposition 8 case or even the pending challenges to the federal Defense of Marriage Act that entice the justices to answer the essential question: Is there a fundamental right to same-sex marriage? . . . However, it will not be for lack of trying by those involved in the issue. . . . "Ultimately the goal for us would be to put to rest the issue or the question of who should decide this important policy issue: Whether it will belong to the people and their elected representatives on a state-by-state basis or whether it will be something imposed by the courts nationwide," said Andrew Pugno, general counsel to ProtectMarriage.com, whose arguments in defense of Prop 8's ban on gay marriages were rejected on Feb. 7 by the U.S. Court of Appeals for the 9th Circuit.

Ginsburg questions 1973 abortion ruling's timing

By David Crary, AP National Writer

02-10-12 -- Supreme Court Justice Ruth Bader Ginsburg suggested Friday that her predecessors on the high court mistimed the milestone 1973 Roe v. Wade case that legalized abortion nationwide. . . . "It's not that the judgment was wrong, but it moved too far too fast," Ginsburg told a symposium at Columbia Law School marking the 40th anniversary of her joining the faculty as its first tenure-track female professor. . . . At the time of Roe v. Wade, abortion was legal on request in four states, allowed under limited circumstances in about 16 others, and outlawed under nearly all circumstances in the other states, including Texas - where the Roe case originated. . . . Alluding to the persisting bitter debate over abortion, Ginsburg said the justices of that era could have delayed hearing any case like Roe while the state-by-state process evolved. Alternatively, she said, they could have struck down just the Texas law, which allowed abortions only to save a mother's life, without declaring a right to privacy that legalized the procedure nationwide.

Senate Judiciary Approves Bill Requiring Cameras in Supreme Court

Posted by Tony Mauro, BLT, The Blog of the Legal Times

02-09-12 -- By an 11-7 vote, the Senate Judiciary Committee today approved a bill that calls for television access to Supreme Court proceedings. The bill, S.1945, faces an uncertain future in the full Senate and the House of Representatives, amid separation-of-powers concerns about Congress telling the Court how to conduct its business. . . . Senators who favored the bill cited the upcoming Supreme Court oral arguments on the health care legislation as but one example of the need for broadcast access. Committee chairman Sen. Patrick Leahy (D-Vt.), spoke of the "tremendous public interest in the historic arguments" over the Affordable Care Act. Media organizations have asked the Court for broadcast access, or at least expedited release of the audio of the arguments set for the week of March 26, without luck so far.

The Citizens United catastrophe

By E.J. Dionne Jr., Opinion Writer, The Washington Post

02-05-12 -- We have seen the world created by the Supreme Court’s Citizens United decision, and it doesn’t work. Oh, yes, it works nicely for the wealthiest and most powerful people in the country, especially if they want to shroud their efforts to influence politics behind shell corporations. It just doesn’t happen to work if you think we are a democracy and not a plutocracy. . . . Two years ago, Citizens United tore down a century’s worth of law aimed at reducing the amount of corruption in our electoral system. It will go down as one of the most naive decisions ever rendered by the court. . . . The strongest case against judicial activism — against “legislating from the bench,” as former President George W. Bush liked to say — is that judges are not accountable for the new systems they put in place, whether by accident or design. . . . The Citizens United justices were not required to think through the practical consequences of sweeping aside decades of work by legislators, going back to the passage of the landmark Tillman Act in 1907, who sought to prevent untoward influence-peddling and indirect bribery.

Scalia: Routine criminal cases clog federal courts

Associated Press | nolo.com  

02-04-12 -- The federal courts have become increasingly flooded with "nickel and dime" criminal cases that are better off resolved in state courts, U.S. Supreme Court Justice Antonin Scalia said Saturday. . . . Scalia told an American Bar Association meeting in New Orleans that he's worried that the nation's highest court is becoming a "court of criminal appeals." . . . "This is probably true not just of my court, but of all the federal courts in general. A much higher percentage of what we do is criminal law, and I think that's probably regrettable," he said. "I think there's too much routine criminal stuff that has been pouring into the federal courts that should have been left to the state courts."

January 2012

Contraceptive mandate could face tough sledding in Supreme Court

The healthcare law's mandate to require religious-affiliated employers to pay for contraception for their workers has prompted two lawsuits. If the matter gets to the Supreme Court, it will go before justices who recently affirmed — in a 9-0 ruling — that the 1st Amendment gives special leeway to religious employers.

By David G. Savage, Washington Bureau, Los Angeles Times 

01-30-12 -- The Supreme Court and the Obama administration, already headed for a face-off in March over the constitutionality of the healthcare law, appear to be on another collision course over whether church-run schools, universities, hospitals and charities must provide free contraceptives to their students and employees. . . . The dispute stems from one of the more popular parts of the new healthcare law: its requirement that all health plans provide “preventive services” for free. That category includes vaccines and such routine screenings as cholesterol checkups and mammograms. Starting this year, it also includes coverage of birth control pills, IUDs and other contraceptives. . . . Catholic leaders reacted fiercely when the administration announced in recent days that it would hold most religious institutions to that mandate, even those that have moral and religious objections to what some of their lawyers describe as “abortion-inducing drugs.”

Long-Dead Ohio Farmer, Roscoe Filburn, Plays Crucial Role in Health Care Fight

By Ariane de Vogue, ABC News  

01-30-12 -- Republicans like to call the health care law "Obamacare," but if the Supreme Court decides the government has the power to make every American buy health insurance, it will have more to do with Roscoe Filburn -- a long-dead Ohio farmer -- than Barack Obama, president of the United States. . . . Call it "Filburncare," instead. . . . Every legal brief and judicial opinion regarding the constitutionality of the health care law references Filburn. Filburn lost a Supreme Court case 70 years ago that became a landmark decision defining the scope of Congress' power to regulate interstate commerce. . . . When the Supreme Court decides in 2012 whether Congress exceeded its authority in passing a key provision of the health care law, it will once again look back to the 1942 case called Wickard v. Filburn. . . . Filburn owned a small farm in Ohio. He maintained a herd of dairy cattle, sold milk, raised poultry. . . . And he felt wronged by Congress and, particularly, a law that was meant to regulate wheat prices. It had been Filburn's practice to grow wheat in the fall and use it in part to feed livestock on his farm and make flour for home consumption. . . . But the Agricultural Adjustment Act of 1938 limited the number of acres Filburn could plant. The law allotted him 11.1 acres, and he harvested 23 acres. He was subject to a penalty of 49 cents a bushel for the wheat that went over the limit. He sued.

In the case of Baby Bear v. Goldilocks…

Contributor: Jonathan Ringel, Daily Report (blog)

01-29-12 -- “Sesame Street” viewers on Thursday got to see something almost unheard of on TV: a Supreme Court justice deciding a case. Justice Sonia Sotomayor was having coffee with her friend Maria when Baby Bear showed up with a complaint against Goldilocks. Sotomayor quickly changed into her black robe and heard the arguments. . . . You can access Justice Sotomayor's "Muppet Wiki" page at this link.

Jones confounds the press

Tom Goldstein Publisher, SCOTUSblog  

01-25-11 -- In this post on Monday, I summarized my understanding of the issues that the Court decided in the Jones GPS tracking  decision and the other issues it left open. . . . The case involves a mildly complicated area of the law.  The alignment of the Justices also left the issues unusually opaque.  But the legal rules have very practical implications for ordinary Americans on a significant question of personal privacy.  So describing the case correctly is important.  In this post I explain how I think that the press got the case wrong. . . . The Court’s only holding is that the installation of  a GPS monitoring device is a search.  That is a different question from whether it requires a warrant and whether it requires probable cause, as opposed to a lesser standard like reasonable suspicion.  The Court in Jones did not decide the government’s argument that this “search” (installing the GPS device) did not require a warrant.

Citizens United v. FEC decision proves justice is blind -- politically

By Jeffrey Rosen | Politico Opinion Contributor

01-25-11 -- Last week, the Occupy movement came to the Supreme Court. To protest the second anniversary of the Citizens United decision, the group called Move to Amend organized demonstrations at courthouses around the country — including the steps of the high court itself. (The protests began peacefully but ended with 11 arrests.) . . . Say what you will about the strategy of organizing political protests against controversial judicial decisions, which can be overturned only by constitutional amendment, but one thing is clear: The Supreme Court was spectacularly wrong in Citizens United v. Federal Election Commission when it confidently predicted that the ruling would have no significant impact on Americans’ confidence in their political system. . . . In this sense, the Citizens United decision has much in common with the ruling in Paula Corbin Jones v. William Jefferson Clinton, which allowed President Bill Clinton to be sued for sexual harassment while in office.

Roberts to America: Trust us

By William Yeomans & Herman Schwartz, Politico Opinion Contributors

01-24-11 -- Chief Justice John Roberts’s response in his year-end report to the increasing controversy over the ethics of Supreme Court justices served to drive home the need for the high court to adopt reforms immediately. . . . Roberts rejects calls that the justices should be subject to the basic code of ethics that governs all other federal judges and must provide some transparency to their recusal decisions. His argument seems based on the proposition that the justices are good people and able jurists — so they don’t have to be officially bound by a code or explain decisions governing their conduct or recusal. . . . In Roberts’s view, these good jurists should not have to explain how their decisions conform to the law. Yet the courts’ fundamental legitimacy rests on the notion that judges apply the facts to the law impartially and explain what they have done in reasoned opinions for all to read. Roberts’s position mocks that. . . . He acknowledges that justices are the only federal judges not bound by the Code of Conduct, but he notes that they do consult the code “in assessing their legal obligations.” They also consult other sources for guidance, Roberts adds, including “judicial opinions, treatises, scholarly articles and disciplinary decisions” and may turn to the Supreme Court’s legal office and the Judicial Conference’s Committee on Codes of Conduct.

Penn Law students assist professor in Supreme Court

The Supreme Court Clinic prepared 12 students for a case involving immigration law

By Jin Pyuo Lee, The Daily Pennsylvanian  ·

01-24-11 -- Last week, 12 Law School students were given the opportunity of a lifetime: to get out of the classroom and measure their legal skills in front of the Supreme Court. . . . The students — who are part of Penn Law’s Supreme Court Clinic — assisted Law and Criminology professor Stephanos Bibas in a case that dealt with immigration law. . . . Since 2009, law students have participated in the Supreme Court Clinic, a program that provides real-world experience for students to work on Supreme Court cases. . . . Bibas — who started the clinic after talking to former Yale Law School classmate Stephen Kinnaird — explained that students are primarily responsible for working on initial drafts of written arguments, researching court precedents and communicating with clients.

Court won't hear arguments demanding Kagan recusal

Associated Press

01-23-12 -- The Supreme Court won't hear arguments from a conservative watchdog group that wants Justice Elena Kagan disqualified from deciding the constitutionality of President Barack Obama's national health care overhaul. . . . Freedom Watch asked the high court for time to demand Kagan's recusal or disqualification during arguments on the Patient Protection and Affordable Care Act.

Sue your own state? Why not?

The Supreme Court, in a Maryland case, should rule against the state, and also reexamine other decisions that have made it hard for people to sue their own states.

Los Angeles Times Editorial

01-23-12 -- In 1993, Congress passed the Family and Medical Leave Act, which entitled employees up to 12 weeks of unpaid leave in four situations: because of the birth of a child; when an employee adopts a child; when an employee must care for an ill relative; or when the employee himself has a "serious health condition." Congress explicitly included public agencies in its definition of employer, but the state of Maryland has asked the Supreme Court to shield it from a suit filed by a state employee who was fired after he asserted his right to sick leave. The court should rule against the state, and in the process reexamine decisions making it hard for citizens to sue their own states. . . . In 2007, Daniel Coleman, an employee of Maryland's judicial system, was told by his doctor to take two weeks of bed rest as treatment for high blood pressure and diabetes. Coleman's request for leave was denied, and he was fired the next day. He filed suit under the Family and Medical Leave Act, but the state argued that it couldn't go forward because the state enjoyed what's known as "sovereign immunity."

Justices spar at USC over Constitution, the court, the law

By Clif LeBlanc The State  

01-21-12 -- Two of the nation’s top jurists on Friday at USC gave a plain-spoken, humorous lesson in the Constitution, the role of the country’s highest court and the issues that divide them and this democracy. . . . Supreme Court associate justices Antonin Scalia and Stephen Breyer – from opposite ends of the judicial spectrum – spent an hour engaging a select audience of law students, law school faculty and the South Carolina bench. . . . The public, though, could hear none of the thought-provoking civics lesson. The justices, as does the court on which they sit, barred recording of their talk for publication or broadcast. The same will be true today when they repeat their presentation before the South Carolina Bar’s annual convention in Columbia. . . . Scalia, a leader in the “originalist” interpretation of the Constitution and often called the court’s “caustic conservative,” does not approach the law as a conservative or a liberal, he said. The 75-year-old Reagan appointee joked that he does not have “mean, nasty, conservative things he wants to do to society.”

Small-Business Owners Wary of Citizens United's Impact

Catherine Dunn, Corporate Counsel  

01-20-12 -- A large swath of the country’s small- and medium-sized business owners have joined the growing chorus of activists and lawmakers that oppose the Supreme Court’s 2010 Citizens United v. Federal Election Commission ruling on corporate political spending, demonstrating that the U.S. business community does not uniformly support the decision, say advocates for campaign finance reform. . . . Those viewpoints are demonstrated both in the results of a new poll on attitudes toward Citizens United—a decision handed down two years ago this week—and in the collection of over 1,000 business-owner signatures on a petition to overturn Citizens via a constitutional amendment. Both efforts are spearheaded by the American Sustainable Business Coalition (ASBC), a coalition of business networks.

Supreme Court ruling confuses religious workers

By Jeff Karoub, Associated Press

01-20-12 -- Aleeza Adelman teaches Jewish studies at a Jewish school, yet she considers herself a teacher whose subject is religion, not a religious teacher. She's rethinking how to define her job after a recent U.S. Supreme Court ruling left her wondering what could happen if she ever needed to defend her right to keep it. . . . The high court ruled last week that religious workers can't sue for job discrimination, but didn't describe what constitutes a religious employee - putting many people employed by churches, synagogues or other religious organizations in limbo over their rights.

Justice Scalia says legislatures, not courts, should be forum for abortion rights

By Associated Press | Washington Post   

01-19-12 -- Supreme Court Justice Antonin Scalia says using the courts, rather than elected legislatures, to assert abortion rights is akin to “sneaking it in through a back door.” . . . Scalia is one of the court’s most outspoken opponents of the court’s 1973 Roe v. Wade decision that declared a woman’s right to an abortion. He repeated his long-held view Thursday that the Constitution is silent on abortion and that judges should stay out of the issue.

Nicole Richie’s Cursing May Spur Top Court to Free Broadcasters

By Greg Stohr, Bloomberg-

01-06-12 -- A U.S. Supreme Court fight over television profanity and nudity may usher in a new era for broadcasters, potentially freeing them from federal restrictions on the content of their programming. . . . The justices will hear arguments on Jan. 10 that the Federal Communications Commission is violating the Constitution by imposing fines for on-air indecency. The dispute centers on expletives used by Cher and Nicole Richie on awards shows seen on News Corp. (NWSA)’s Fox television and a scene featuring a naked actress on “NYPD Blue,” aired on Walt Disney Co. (DIS)’s ABC. . . . The court’s ruling may bring the biggest change in the FCC’s regulation of broadcast content since the agency in 1987 stopped enforcing the Fairness Doctrine, which required broadcasters to present both sides of controversial issues. Fox and ABC are asking the court to overturn a 34-year-old ruling that lets the FCC regulate broadcast indecency while exempting cable and satellite television and the Internet.

Supreme Court: The recusal question

If justices recuse themselves from a case, or refuse to do so when asked, an explanation is warranted.

Los Angeles Times Editorial

01-03-12 -- Chief Justice John G. Roberts Jr. has addressed complaints that a member of the Supreme Court has the last word when it comes to deciding whether to participate in cases in which his impartiality is questioned. Roberts' response: Things are fine as they are. . . . In his end-of-the-year report on the federal judiciary, Roberts insists that the justices abide by the Code of Judicial Conduct, which requires judges to be impartial, even though it doesn't formally apply to the Supreme Court. He notes that the justices also make financial disclosures required by the Ethics in Government Act, although the court has never ruled on the constitutionality of the law. And he says that "I have complete confidence in the capability of my colleagues to determine whether recusal is warranted."

The Supreme Court can’t be absolute

By Jeff Jacoby Boston Globe Editorial | Boston,Com 

01-01-12 -- NEWT GINGRICH’S presidential ambitions may be heading for the exits - opinion polls suggest that the former House speaker’s hour has come and gone - but his critique of judicial supremacy deserves to be taken seriously no matter what happens in Iowa or New Hampshire. . . . In a 54-page position paper , Gingrich challenges the widely held belief that the Supreme Court is the final authority on the meaning of the Constitution. Though nothing in the Constitution says so, there is now an entrenched presumption that once the court has decided a constitutional question, no power on earth short of a constitutional amendment - or a later reversal by the court itself - can alter that decision. . . . Thus, when House Minority Leader Nancy Pelosi was asked for her reaction to the Supreme Court’s notorious eminent-domain ruling in Kelo v. New London, she replied as though a new tablet had been handed down from Sinai: “It is a decision of the Supreme Court. If Congress wants to change it, it will require legislation of a level of a constitutional amendment. So this is almost as if God has spoken.’’

Gingrich threats a dark omen for courts?

UPI 

01-01-12 -- Republican presidential contender Newt Gingrich may have fired the first shot, but the federal courts and especially the U.S. Supreme Court may be in danger of being seen as political entities rather than an impartial judiciary. . . . The late Chief Justice William Rehnquist used to muse that the Supreme Court had no real way to enforce its decisions on the lower courts other than its "authority." . . . When the justices agree to review a case, they can reverse or affirm the ruling of an appeals court. But often they remand a case back to the lower court for further proceedings based on the principles outlined in a Supreme Court majority opinion. . . . Almost always the appellate court will do just that -- rethink the case and decide it differently based on what the Supreme Court majority has said. Infrequently, an appellate court seems to turn a deaf ear, and hands down a new decision that looks very much like its first one.

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