John Paul Stevens’s
Quest for Four Little Words
10-26-12 -- Not
content with his long career interpreting the U.S.
Constitution, retired Supreme Court Justice John Paul
Stevens now wants to go one better: He wants to amend
it. . . . Not
by much—just a four-word addition to
Article VI‘s Supremacy Clause. Specifically:
“and other public officials.”
. . . The impact however, would be significant,
authorizing the federal government to use more state
officials in carrying out national policies. Along the
way, it would effectively nullify two states’ rights
decisions from the 1990s that saw Justice Stevens in
Why Scalia Is
Traveling to Wyoming: It’s Not Just the Antelope Hunting
10-23-12 -- Caitlin
Wallace made a pledge when she was running for president
of the Federalist Society at the University of Wyoming.
. . . Wallace vowed she would try to get big-name
speakers to appear on campus. After getting the
position, she wrote to Justices Clarence Thomas and
Antonin Scalia, and received a positive response from
one of them. Scalia will be speaking on Thursday at UW,
Laramie Boomerang reports.
backpedals after advocating abortion to reduce unwanted
10-22-12 -- Three
years after she appeared to endorse the eugenic aspects
of abortion, a new report claims Supreme Court Justice
Ruth Bader Ginsburg has backpedalled from the remarks
that created an uproar in 2009.
. . . “Frankly, I had thought that at the time
Roe was decided, there was concern about population
particularly growth in populations that we don’t want
to have too many of,” Ginsburg told Emily
Bazelon of the New York Times in 2009. .
. . In a new follow-up piece, Bazelon writes that
Justice Ginsburg “made it clear today that the issue she
had in mind when we spoke in 2009 was concern about
population growth among all classes (and races).”
Ginsburg said in the interview for Slate conducted last
Thursday, that her remarks had been “vastly
misinterpreted.” . .
. However, none of the quotations Bazelon
reproduces in her new article address Ginsburg’s
controversial reference to “growth in populations that
we don’t want to have too many of.”
. . . In the
article the justice says, as she did in 2009, that she
was surprised by the 1980 Harris v. McRae
decision, which “said it was OK to deny Medicaid funding
for even therapeutic abortions.”
Justice Kagan: I Was
Appointed Because I'm a Woman
10-22-12 -- Supreme
Court Justice Elena Kagan believes she might not have
risen to the high court but for the fact she is a woman,
she recently said. . . . “To tell you the truth there were also things that I got
because I was a woman,” said Kagan. “I mean I’m not sure
I would be sitting here, I’m not sure that I would have
been President Obama’s nominee if I weren’t a woman and
if he wasn’t as committed as he was to ensuring that
there was diversity on the Supreme Court.”
. . . Kagan’s legal credentials were never in
question, but during the conversation with University of
Tennessee Law School Dean Doug Blaze, she outlined
barriers and challenges she faced as a woman coming up
through the legal and judicial rungs and how she
justice’s car ticketed by Philly’s Parking Authority
10-15-12 -- The
Supreme Court is the highest court in the land, but no
justice, even Antonin Scalia, is apparently safe on the
streets of Philadelphia when it comes to its Parking
Authority. . . .
The Philadelphia Parking Authority is nationally
known because of its starring role for five years in
“Parking Wars,” the popular cable TV shows that depicts
everyday life for PPA workers and the citizens of
Philly. . . .
And on Monday, one of the citizens who will interact
with the PPA in the near future appears to be Supreme
Court Associate Justice Antonin Scalia.
Retired U.S. justice
prods Congress, candidates on gun control
10-15-12 -- Retired
Supreme Court Justice John Paul Stevens prodded Congress
on Monday to act and presidential candidates to speak
out on gun control at a time when gunmen are carrying
out mass killings across the United States. . . . Stevens, 92, spoke to a luncheon hosted by a gun-control
lobbying group where he referred to shootings such as a
July rampage that killed 12 people in a Colorado movie
theater. . . .
"The fact that Congress doesn't address it is, I think,
mind-boggling," he said, given the importance of the
issue and the passion surrounding it.
Heirs of Early
Supreme Court Justice Win Legal Fight for His Papers
Heirs of a justice
appointed to the U.S. Supreme Court by George Washington
are entitled to his papers, according to a ruling by the
North Carolina Supreme Court.
. . . A descendant had loaned the papers of
Justice James Iredell Sr. to the North Carolina
Historical Commission in 1910, the
Associated Press reports. The descendant
wrote that the papers were on loan and he retained “the
right of recall and repossession at any time if I see
fit.” He died in 1923 without asking for the return of
the documents. . . .
The state had claimed the papers were converted
to a gift with the death of the descendant who loaned
them to the state. The state also argued the statute of
limitations barred the descendants’ claim. The North
Carolina Court of Appeals disagreed with both arguments.
What Explains the
Enduring Appeal of Justice Oliver Wendell Holmes?
recent post about pundits quoting Justice
Oliver Wendell Holmes in defense of their own calls to
censor the anti-Islam film Innocence of Muslims brought
to mind a question I’ve long pondered about the famous
Supreme Court justice: Namely, what explains the old
villain’s enduring appeal among America’s legal and
political elites? . .
. For instance, in her 2010 Supreme Court
confirmation hearings, Elena Kagan
cited Holmes as a guiding light for how
Supreme Court justices should behave on the bench,
telling the Senate Judiciary Committee:
I would go back I think
to Oliver Wendell Holmes on this. He was this judge who
lived in the early 20th Century— hated a lot of the
legislation that was being enacted during those years
but insisted that if the people wanted it, it was their
right to go hang themselves. Now, that‘s not always the
case but there is substantial deference due to political
marked the first Supreme Court justices
It was 223 years ago today
that Congress signed the law that created the Supreme
Court, and a look back at the first court shows personal
drama that included a justice dodging creditors, a
failed suicide attempt and a Chief Justice who was
America’s most-hated man, for a time.
. . . The framers had made provisions for the
court in Article III, Section 1, of the Constitution,
but it took the Judiciary Act of 1789 to make the court
a reality. . . .
In the first session ever in Congress, lawmakers
passed Judiciary Act on September 24, 1789, which
established the framework for the Supreme Court, as well
as circuit and district courts and the Attorney
General’s office. . . . President George Washington named six Supreme Court
justices who were approved within two days by Congress. . . . On February 1, 1790, the first session of the U.S. Supreme
Court was held in New York City’s Merchants Exchange
Text of Judge Posner's respose to Justice Scalia
09-20-12 -- The following is the text
of a response by Judge Richard Posner to
by Justice Antonin Scalia in an interview with Reuters
this week: . . . Reuters has invited me to respond to a
statement made by Justice Scalia in an interview of him
by Stephen Adler on September 17. . . . The statement
comments on a purported statement of mine in a review in
the New Republic of Reading the Law by Justice Scalia
and Bryan Garner. I say "purported statement of mine"
because what Mr. Adler said I had said was that "Justice
Scalia actually resorts to legislative history in"
District of Columbia v. Heller..
I didn't say that. I said that "when he [Justice Scalia]
looks for the original meaning of eighteenth-century
constitutional provisions-as he did in District of
Columbia v. Heller, holding that an ordinance
forbidding people to own handguns even for the defense
of their homes violated the Second Amendment-Scalia is
doing legislative history." There is no question that
Scalia in Heller was looking for the original meaning of
the Second Amendment-that is his method of
constitutional and statutory interpretation, the method
defended in Reading the Law.
Fanning furor, Justice Scalia says appeals court judge
U.S. Supreme Court Justice Antonin Scalia on Monday
escalated a war of words with a prominent appeals court
judge, saying the judge lied in a recent criticism of
Scalia's judicial philosophy.
. . . Scalia, 76,
the longest-serving justice and a leading conservative
on the court, said Judge Richard Posner, of the 7th U.S.
Circuit Court of Appeals, lied in a review in August of
a book co-authored by Scalia.
. . . In the
review, Posner accused Scalia of deviating from his own
strict, text-based approach to interpreting law when he
struck down a District of Columbia handgun ban in 2008
by considering the legislative history behind the law.
. . . "To say
that I used legislative history is simply, to put it
bluntly, a lie," Scalia said in an interview with
Reuters Editor-in-Chief Stephen Adler.
Alito says Supreme Court misunderstood by media
U.S. Supreme Court Justice Samuel A. Alito Jr. expressed
frustration Friday at what he said were inaccuracies in
the media about the court and its decisions, saying it's
difficult to sit by when opinions are misinterpreted.
. . . "Sometimes
it's inadvertent, and sometimes opinions are spun, just
like everything else. ... They're reduced to a slogan
that you put on a bumper sticker, and that's very
frustrating," he told an audience of students, judges
and others at Roger Williams University School of Law.
. . . Alito cited
the Citizens United ruling, which freed corporations and
labor unions of most limits on political spending,
saying it involved a complex area of elections law and
application of First Amendment law.
. . . "Campaign
finance is very complicated, so it's easy to get it
wrong, and sometimes people get it wrong inadvertently,"
Richard A. Posner’s Badly Confused Attack on Scalia/Garner—Part
In my first two posts, I’ve demonstrated that Richard
attack on Justice Scalia and Bryan Garner’s
use of cases is wildly irresponsible. I would hope that
the attentive reader should find further evidence
unnecessary. But in the interest of comprehensiveness,
even at the risk of overkill, I address below the three
remaining cases (of a total of six) in Posner’s
indictment. (I number the cases serially from my
Part 2 post; I addressed one case in my
initial post (in point 3), so the cases in
Part 2 and this Part 3 total five.)
. . . I
especially encourage you to read the final two
paragraphs of this post.
. . . 3. Posner
complains that Scalia and Garner “denounce” a court
ruling (in Braschi v. Stahl Associates)
that held that the term family in a rent-control statute
that barred a landlord from dispossessing a “member of
the deceased tenant’s family who has been living with
the tenant” includes, in Scalia and Garner’s summary, “a
cohabitating nonrelative who had had an emotional
commitment to the deceased tenant.” Posner doesn’t
actually defend the ruling (he says that the “case may
be right or wrong”), but he declares “disturbing” Scalia
and Garner’s “failure to mention that it was a
homosexual couple at a time when homosexual marriage was
not recognized in New York, and that the opinion states
that the two men had been living together just like
spouses and had been accepted as such by their
To Beat the Execution Clock, the Justices Prepare Early
John Balentine was an hour away from being put to death
in Texas last month when the
granted him a stay of execution.
. . The unseemly
and unsettling spectacle of a last-minute legal scramble
in the shadow of the ultimate deadline, with the
condemned inmate waiting for word of his fate just
outside the death chamber, may suggest that the Supreme
Court does not render considered justice when it is
asked to halt an execution.
. . But it tries.
Indeed, the court goes to extraordinary lengths to get
ready, and its point person is a staff lawyer named
. . “Cases where
there is an execution date,” he said with a sigh,
“that’s where I come in.”
. . Mr. Bickell’s
formal title is emergency applications clerk, but
capital defense lawyers have an informal title for him,
too. They call him the death clerk.
. . In remarks at
a conference of lawyers specializing in federal death
penalty work at a hotel here last month, Mr. Bickell
provided a rare inside look at the Supreme Court’s
oversight of the machinery of death in the United
VICTIMS-OF-LAW ON THE WEB
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Shhh! Former Supreme Court Clerk Dishes on RBG’s Goofy
Song Dance, CT’s Normality
Boston University law professor Jay Wexler tells all in
an essay about his onetime job as a U.S. Supreme Court
clerk for Justice Ruth Bader Ginsburg, or “RBG” in
. . . Writing for
Salon, Wexler says people underestimated
Ginsburg’s height and overestimated her seriousness. She
wasn’t so serious as to decline an invitation to dance
with audience and cast members during a high school
Gilbert and Sullivan production, he recalls. “The sight
of a Supreme Court justice on stage twirling around with
her hands in the air to a goofy song next to a spinning
6-year-old girl is not one that I can soon forget,”
Wexler writes, “no matter how many times I undergo
. . . Wexler says
many are shocked to learn that clerks write a first
draft of opinions for their justices, but it’s not
really a big deal. “At least in Justice Ginsburg’s
chambers, the boss would give us a detailed outline to
work from and then, once we turned in our drafts,
totally rewrite them,” he recalls.
On Visits to Wounded Warriors, The Supreme Court Answers
A simple question about the justices and military
hospitals provokes a worthy and fruitful conversation. .
. . Earlier this week, as part of a two-part series on
the United States Supreme Court and the American
military, I posted a piece about the current Justices
and their connection to America's military personnel.
The piece was titled: "Why
Don't the Justices Ever Visit Military Hospitals?,"
and it was based upon the official reaction I initially
received when I started asking around about the topic.
No one seemed able to remember the last time a sitting
justice had visited troops at a military hospital --
this from a Court without a war veteran for the first
time since the Great Depression.
. . . Four
significant things have happened since the piece was
posted, each of which deserves mention here. First, as
noted in depth below, it's become gradually clear that
there has been more personal contact between the Court
and our troops than has been publicly known. This is a
very good thing. Why such contacts -- visits, support,
speeches, etc.-- have long lacked publicity is hard to
fathom, even for an institution like the Court, which
often is shrouded in secrecy.
As Usual, Justice Scalia Provokes Most Courtroom
Laughter in Supreme Court's Latest Term
While you were busy trying to learn how to play "Take Me
Out to the Ballgame" on your ukulele, Boston University
law professor Jay Wexler was trying to learn how to
play "Take Me Out to the Ballgame" on his ukulele and
updating his seminal
Supreme Court oral argument humor study. .
. . As Wexler
notes in this post Monday on PrawfsBlawg, he
conducted his research in his typical "half-assed
fashion" (which included the ukulele distraction) by
reviewing the Supreme Court's oral argument transcripts
and "count[ing] the number of times each justice said
something funny enough to make the court reporter enter
the phrase "[laughter]" in the transcript."
Obama administration urges justices to uphold
In October, the Supreme
Court will hear an appeal on the issue, over which it
has been closely split for decades.
The Obama administration weighed in on affirmative
action for the first time at the Supreme Court on
Monday, urging that university admissions preferences
for qualified black and Latino students be upheld.
. . . "Race is
one of many characteristics (including socioeconomic
status, work experience and other factors) that
admissions officials may consider in evaluating the
contributions that an applicant would make to the
university," U.S. Solicitor Gen. Donald Verrilli Jr.
said in his brief, siding with the University of Texas.
. . . In October,
the high court will hear the appeal of Abigail Fisher, a
rejected white applicant who sued the Texas university
alleging she was a victim of illegal racial
Why Don't the Justices Ever Visit Military Hospitals?
This is the second of
a two-part series on the Supreme Court and the military.
focused on the military history of the
Court's future justices. Part II deals with the
disconnect between the current Court and our military
In an age of where the justices of the United States
Supreme Court routinely
peddle books on television,
speak abroad at lavish events, and
lecture at ideological venues, it feels odd
that there is such a gulf -- both physical and
metaphysical -- between the justices and the American
service member. And yet there it is. It's not just that
the Court is bereft of war veterans for the first time
since 1936, a
clear disconnect in this age of our so-called
"endless war," it's that the justices, for as long as
anyone can remember, don't ever seem to ever publicly
honor the sacrifice of military service.
. . . When was
the last time you saw video or still photographs of a
justice visiting a military hospital to cheer or chat
with wounded soldiers? The answer is: You haven't.
Evidently, it's something that just isn't done. Why not?
No one seems to know. Ever since the Court was first
convened, future justices have served in active military
duty. One of the greatest, Oliver Wendell Holmes, was
wounded three times in the Civil War. One of the least
famous, Harold Burton, was awarded a Purple Heart in
World War I. Yet the current Court never seems to
publicly acknowledge those sacrifices by honoring
today's service members.
None of the Supreme Court Justices Has Battle Experience
This is the first of
a two-part series on the Supreme Court and the military.
Today's article focuses on the military history of the
men who later became justices. Part II will focus on the
disconnect between the current Court and the American
We live in what some scholars call an age of "endless
war." Our nation's politics -- and its
overburdened budget -- are dominated by military
considerations. When will we leave Afghanistan? When
will we bomb Iran? Why didn't we go into Libya? What are
we going to do about finding jobs, and effective care,
for all the troops when they finally make their way
home? Meanwhile, for the past 11 years, we have tried
futilely to mesh law and war at Guantanamo Bay, Cuba,
where our military tribunals have foundered.
. . . America was
born by war, split asunder by war, raised to mighty
stature by war, and then stung by it again. Ken Burns'
The War, airing again these past few weeks,
is a powerful reminder of that -- and of the sacrifices
Americans have consistently been willing to make in the
cause of The Cause, whatever it happens to be at the
time. I am barely old enough to remember some of the
backlash against our troops during the Vietnam War.
Today, with penitence in the air, such a reaction is
It’s Both the Roberts and Kennedy Court, Supreme Court
The June 18 edition of Time magazine features a
cover photo of U.S. Supreme Court Justice Anthony M.
Kennedy, proclaiming him “The Decider.”
. . . Flick
forward a month to the July 16 edition, and you'll see a
cover shot of Chief Justice John G. Roberts Jr.
“Roberts Rules,” the headline says.
. . . So whose
court is it? Frankly, it’s both, and for exactly those
reasons. “Time magazine has it right in both respects,”
said Kenneth Starr, the former solicitor general and
federal appellate judge who is now president of Baylor
Scalia Rebuffs Criticism of Dissent in Immigration Case
U.S. Supreme Court Justice Antonin Scalia rejected
criticism that he improperly went outside the court
record in his dissent to last term’s decision on
Arizona’s immigration law, saying his consideration of
presidential remarks was appropriate.
. . President
Barack Obama’s statements that his administration
wouldn’t enforce parts of immigration law, made after
the high court heard the case, brought into question the
government’s arguments, Scalia said in an interview
today on “Fox News Sunday.” He dismissed criticism by
U.S. Circuit Judge Richard Posner, who said Scalia’s
dissent read like a campaign speech.
. . “He’s a court
of appeals judge, isn’t he?” Scalia, 76, said of Posner.
“He doesn’t sit in judgment of my opinions as far as I’m
Justice Scalia steps up criticism of healthcare ruling
Supreme Court Justice Antonin Scalia on Sunday renewed
his criticism of Chief Justice John Roberts' reasoning
in upholding President Barack Obama's 2010 healthcare
law and also said the Constitution undoubtedly permits
some gun control.****** Scalia joined in a sharply
worded dissent on the day of the June 28 ruling and
added to his criticism on Sunday.
. . . A central
provision of the law is the "individual mandate" that
most Americans obtain health insurance by 2014 or pay a
penalty. The ruling found that this penalty "may
reasonably be characterized as a tax" and thus would be
constitutionally permissible under the power of Congress
to impose taxes.
. . . "There is
no way to regard this penalty as a tax. ... In order to
save the constitutionality, you cannot give the text a
meaning it will not bear," Scalia said.
. . . "You don't
interpret a penalty to be a pig. It can't be a pig."
Scalia Defends 'Citizens United,' Arizona Immigration
In an interview set for broadcast on
C-SPAN this Sunday, Supreme Court Justice
Antonin Scalia vigorously defended recent controversial
decisions, including the 2010 Citizens United case that
has been blamed for flooding election campaigns with
millions of dollars in corporate donations.
. . . Asked if
there is too much money in politics, Scalia said no,
arguing that as in other First Amendment contexts, more
speech is better."I forget what the figures are, but I
think we spend less on our presidential campaigns each
year, when there's a presidential election, than the
country spends on cosmetics," Scalia said.
O'Connor Faults Supreme Court Critics with a 'Lack of
Former Supreme Court Justice Sandra Day O'Connor called
the heated criticism of the Court over the recent
decisions involving the Patient Protection and
Affordable Care Act "unfortunate," telling a Senate
committee today that it shows a need for more civics
. . . O'Connor
testified that comments labeling Chief Justice John
Roberts a "traitor" or that he betrayed former president
George W. Bush "demonstrate only too well the lack of
understanding some of our citizens have about the role
of the judicial branch."
. . . O'Connor
appeared before the Senate Judiciary Committee to
discuss how to ensure judicial independence through
education, speaking about her support of iCivics, a
nonprofit group she founded to teach students through
free games about how government works and how they can
Paul Clement, prolific in high court arguments, reviews
Lawyers representing pharmaceutical companies in
litigation over off-label marketing may want to read up
on the U.S. Supreme Court's decision in the so-called
"Stolen Valor" case, former U.S. Solicitor General Paul
. . . Mr. Clement
spoke in Philadelphia earlier this month to the
Federalist Society, a conservative and libertarian
organization seeking to reform the American legal
system, for his annual review of the high court's term,
and noted there is one issue the court is often
consistent on: First Amendment cases involving free
. . . They
protected speech in its ugliest forms, Mr. Clement said,
pointing to violent video games, protesting at funerals
and, in the Stolen Valor case, lying about receiving a
Medal of Honor.
The Stolen Valor case,
United States v. Alvarez, was a "great illustration of
how pro-First Amendment this court is," said Mr.
Clement, who was appointed to the solicitor general
position by President George W. Bush in 2005 and stepped
down in 2008.
Justices say any rifts are temporary
Some on Court predict
health care scars will heal by the fall.
Members of the U.S. Supreme Court predict that any rifts
among justices in the wake of the landmark health care
decision are likely to heal quickly and that
collegiality will return when the Court reconvenes for
its next term.
. . "Everyone
here does have the sense the institution is so much more
important than the nine who are here at any point in
time and we should not do anything to leave it in worse
shape than it was in when we came on board," said one
justice, speaking on condition of anonymity to The
National Law Journal as the Court term was ending. The
end of the 2011-12 term was "certainly hard," this
justice said, but added, "My guess is we'll come back in
the fall and have the opening conference and it will be
almost the same. I would be very surprised if it's
The danger of Supreme Court deep throats
Why aren't Republicans in Congress demanding an
investigation into the Supreme Court leakers?
. . . After all,
folks like Rep. Lamar Smith of San Antonio and Sen. John
McCain of Arizona insist that leaking has serious
ramifications. They and others have accused the White
House of endangering national security by letting
classified information seep out -- or, worse, divulging
it to polish the president's leadership creds for the
. . . Aren't the
don't-use-my-name snipes from court insiders about the
Affordable Care Act ruling damaging, too?
. . . They aren't
the magnitude of planting spies, using drones abroad,
putting terrorists on a kill list or helping develop a
computer virus targeting Iran. And, to be fair, some
Democrats are complaining, too -- though Senate
Intelligence Committee Chairwoman Dianne Feinstein of
California has called for legislative action, not the
special prosecutor Republicans want.
Speculation Abounds on Supreme Court Leakers; Three
The intrigue builds as Supreme Court watchers speculate
on the identity of the two inside sources
who told CBS News that Chief Justice John G.
Roberts Jr. switched sides in the health care case.
. . . Speculation
focuses on Supreme Court clerks and three conservative
Atlantic Wire reports. Justices whose names
are surfacing in the speculation are Clarence Thomas,
Anthony M. Kennedy and Antonin Scalia.
. . . Roberts
upheld the law’s insurance mandate based on
Congress’ taxing power, although he concluded lawmakers
did not have the power to enact the law under the
commerce clause. Four dissenters who would have struck
down the mandate agreed with Roberts’ conclusion on the
commerce clause, but they did not join that section of
his opinion. The dissenters did so, according to Jan
CBS, because they were no longer willing to
engage with Roberts in debate after he changed his mind.
Liberals fear the John Roberts rebound
Liberals who celebrated the Supreme Court’s
decision on health care may be nursing an
ugly hangover after the justices dive back into their
work this fall, with a docket likely to be loaded with
courtwatchers are already worried about the jurist who
brought them such relief last week: Chief Justice John
. . . Some
liberals contend that Roberts’s surprise crossover on
the health care law has given him a free hand to craft
and sign onto a slew of conservative opinions next year
without suffering much of a public drubbing from
Democrats and the press. With one major case, Roberts
may have inoculated himself and the court against
charges of partisanship.
Future of an Aging Court Raises Stakes of Presidential
Justice Ruth Bader Ginsburg is not known for delivering
laugh lines. But she drew chuckles from a group of
liberal lawyers not long ago while recalling how Justice
Elena Kagan, 52, had suggested during an oral argument
before the Supreme Court that people born before 1948
. . “Next year I
will turn 80, God willing,” Justice Ginsburg said.
“ ‘I’m not all that old,’ I told my youngest colleague.”
. . Justice
Ginsburg is the senior member of a court that includes
four justices in their 70s, making it among the oldest
courts since the New Deal era. Its decisions during this
historic “flood season,” as Justice Ginsburg described
the end-of-term rush, are likely to make the panel — and
the tenure of some of the justices — a significant issue
in the presidential campaign.
DOMA appeal due this month
The House GOP leaders have told a federal court in
Connecticut that they plan to go to the Supreme Court by
the end of this month with a plea to rule on the
constitutionality of the 1996 federal law that bans
federal marriage benefits for same-sex couples who are
legally married — a ban that those lawmakers support.
They asked a federal District Court judge in New Haven
to put on hold a similar case testing the same provision
in the Defense of Marriage Act. A legal memo to support
the plea is
. . . This move
indicates that the same-sex marriage controversy may
reach the Court first in a test of DOMA, which some gay
rights advocates believe is a strong candidate in their
nationwide campaign to gain marriage equality for gays
and lesbians. A separate constitutional test, of
California’s Proposition 8 ban on gay marriages in that
state, is also expected to reach the Supreme Court in
coming weeks. One or both of those cases could set the
stage for the Court to take on that issue at its next
Term, starting October 1.
Justices' finances show overseas travel, book royalties,
From five continents to nearly three dozen states, the
justices of the Supreme Court remain busy travelers, and
relatively well off financially.
. . . Eight of
the nine members of the high court released their annual
financial disclosure forms Wednesday, showing book
income for Justices Antonin Scalia and Stephen Breyer,
and some unusual gifts to Justice Sonia Sotomayor.
. . . Sotomayor
reported two gifts from friends: fine china worth $1,400
and a "translucent composite print" from artist Robert
. . . "During
2011 many people sent me gifts of books, art, jewelry
and trinkets," explained Sotomayor in her form. "I have
no reason to believe that any of those items exceeded
the $335 limit" requiring separate, itemized reporting
of their value.
In second book, Scalia, Garner warn judicial decisions
leading to 'descent into social rancor'
A new book co-authored by Supreme Court Justice Antonin
Scalia and legal writing expert Bryan Garner accuses
judges – including some on the Supreme Court – of loose
and unprincipled decision making that has tarnished the
reputation of the judiciary.
. . "The descent
into social rancor over judicial decisions is largely
traceable to nontextual means of interpretation, which
erode society's confidence in a rule of law that
evidently has no agreed-on meaning," the authors state.
"Our legal system must regain a mooring that it has
lost: a generally agreed-on approach to the
interpretation of legal texts."
. . The book,
titled Reading Law: The Interpretation of Legal Texts,
will be published officially June 19. It is the second
collaboration between Scalia and Garner, and could
become the standard guide for judges and lawyers on how
statutes and the Constitution are – or should be –
interpreted, at least in the view of the authors. Their
2008 book Making Your Case: The Art of Persuading Judges
was a bestseller among lawyers and has become an
essential how-to book for litigators and appellate
advocates. The National Law Journal was provided this
week with a galley copy of Reading Law.
Why Justice Kennedy Is Just Like America
He may seem mercurial,
but he is actually the original independent swing-state
As we creep ever closer to a Supreme Court decision on
Obamacare, attention has focused yet again on Justice
Anthony Kennedy. It’s a familiar feeling. The prospect
that every lower court filing, every judicial decision,
every footnote in every brief comes down to a question
of how it all plays out in one jurist’s brain. Like the
light from a distant star, legal battles that began in
far away courtrooms are litigated for years and yet what
matters in the end is one judge’s opinion. In a lengthy
profile of Kennedy in last week’s
Time Magazine, Massimo Calabresi and David Von Drehle
write that “on most cases of great moment, the
intellectual battlefield of the Supreme Court has shrunk
to the space between this one man's ears.”
Poll Finds Declining Approval for Supreme Court,
Opposition to Lifetime Tenure
The U.S. Supreme Court is suffering from public
perception problems, as a new poll shows declining
public approval and opposition to lifetime tenure.
. . . Sixty
percent of those surveyed by the
New York Times and
CBS News said they believe that appointing
Supreme Court justices for life is a bad thing because
it gives them too much power. Thirty-three percent, on
the other hand, said lifetime appointments were a good
thing because it keeps the justices independent.
. . . The
poll (PDF) also showed declining approval for
the Supreme Court. Only 44 percent of the respondents
approve of the job being done by the U.S. Supreme Court,
while 76 percent said they believe the justices
sometimes let personal or political views influence
Supreme Court Justices: Addicted to Google
Everyone knows that Google is changing the way college
kids write their term papers. What's less obvious is
that it's also changing the way that judges write their
opinions -- even America's most august judges, those on
the Supreme Court. In an absolutely fascinating article
in the Virginia Law Review, "Confronting
Supreme Court Fact Finding,"
Allison Orr Larsen, a law professor at
William & Mary, shows just how prevalent online research
is at the Supreme Court. "In-house research," she
argues, much of it done online, is changing the way
America's highest court works. At first blush, it seems
like a good thing for judges to search out the facts on
their own. But the change, Larsen argues, is not for the
. . . All legal
cases, Larsen points out, rest to some degree on facts,
and, traditionally, the courts have relied upon what's
called the "adversary system" to deal with them. Either
side can introduce factual evidence into argument; if
the other side thinks the facts are wrong, they can
dispute them in court. Judges try to work with facts
which have been vetted by both sides. Occasionally extra
research might seem warranted, as when Harry Blackmun
camped out at the Mayo Clinic Library, doing research
for Roe v. Wade.
Total DUI is a
Occupy the Docket: How the Supreme Court Selects the 1%
During its 2011 October Term, the Supreme Court granted
a mere seventy-four merits cases out of the more than
8,000 petitions for certiorari seeking review—or roughly
1%. Assuming this trend continues and all other things
being equal, a petitioner is more likely to read about
the discovery of life on Mars by the end of the year
than to read the words “certiorari granted” next to
their case—at least according to a
website that bills itself as “the world’s
leading prediction market.”
. . . So how does
the Supreme Court select the 1%? As I noted yesterday (here),
former Justices have described the decision as a matter
of “grace” and “feel.”
Supreme Court Rule 10 offers slightly more
guidance by identifying several “compelling reasons”
that enhance a case’s chance of occupying a slot on the
Court’s discretionary docket. According to Rule 10, the
Justices are more likely to feel compelled to grant
certiorari in a case presenting an important question of
federal law on which there is a conflict between two or
more federal courts of appeals (i.e., a “circuit split”)
or between a state court of last resort and a federal
appellate court. The Rule also mentions state or federal
court decisions that conflict with Supreme Court
precedent. Beyond that, the Supreme Court has offered
little guidance on how it selects the 1% of cases that
occupy its docket each term.
Is Justice Ginsburg Risking the Future of the Supreme
The calls for her
retirement started last year—she’s nearly 80 and a
two-time cancer survivor—but Ruth Bader Ginsburg isn’t
going anywhere. Chris Geidner looks into the tricky
world of politicking and the court.
A little more than a year ago, Harvard Law School Prof.
Randall Kennedy sounded the alarm.
. . . “Justices
Ruth Bader Ginsburg and Stephen Breyer should soon
retire,” Kennedy wrote in the pages of The New
Republic. “That would be the responsible thing for them
. . . If they
didn’t, Kennedy warned, and “if Obama loses, they will
have contributed to a disaster.”
. . . As the
presidential race heats up, and the Supreme Court
justices settle into their chambers to write their last
and most consequential rulings of the 2011-12 term—from
health care to immigration—Kennedy’s question once again
seems relevant, even revelatory: most court watchers
agree it’s now too late for Ginsburg—or Breyer, or any
other justice—to give President Obama a third nomination
to the high court before the election.
Chief justice on public trial
Novelist John Grisham could hardly spin a more
provocative fiction: The president and his surrogates
mount an aggressive campaign to intimidate the chief
justice of the United States, implying ruin and ridicule
should he fail to vote in a pivotal case according to
the ruling political party's wishes.
. . . If only it
. . . The justice
is of course John Roberts and the case involves the
Affordable Care Act (ACA), aka Obamacare, which would be
affordable only if the court upholds the individual
mandate requiring all Americans to buy health insurance.
. . . The left's
narrative goes as follows: If the justices side with the
Obama administration, they will be viewed as brilliant
and nonpartisan. If the reverse occurs, why then, the
justices are partisan, judicial activists who have
delegitimized the court.
. . . Writing in
The New Republic, Jeffrey Rosen laid it out for Roberts,
whose vote likely will be decisive: "In addition to
deciding what kind of chief justice he wants to be, he
has to decide what kind of legal conservatism he wants
to embrace. Of course, if the Roberts court strikes down
health care reform by a 5-4 vote, then the chief
justice's stated goal of presiding over a less divisive
court will be viewed as an irredeemable failure."
Retired federal judge blasts direction of U.S. Supreme
Once a guardian of civil rights, the U.S. Supreme Court
has been rolling back those protections, said retired
U.S. District Judge U.W. Clemon this evening, delivering
the keynote address at the 2012 Law Enforcement and
Civil Rights Conference presented by the Federal Bureau
of Investigation and the Birmingham Civil Rights
. . Clemon, who
in 1980 became the first black federal judge in Alabama,
said since the 1986 appointment of William Rehnquist as
chief justice, Supreme Court rulings have gutted the
core of landmark decisions such as Brown v. the Board of
Education, the landmark ruling that declared school
segregation to be illegal. The Voting Rights Act, Clemon
said, "has almost been interpreted out of existence.
. . "With the
rise of the Rehnquist court, our wall against the flood
became the flood itself. We have seen, in the past
quarter century, civil rights on the scaffold."
Supreme Court faces pressure to reconsider Citizens
Has anything changed in the world of campaign finance
that might give pause to the five members of the Supreme
Court who decided Citizens United v. Federal Election
exactly 28 months ago Monday?
. . . Or, to be
more precise, has anything changed in the mind of at
least one of them?
. . . The court
faces that question in a flurry of contradictory
arguments prompted by a decision by the Montana Supreme
Court late last year.
. . In upholding
a 100-year-old state law, the Montana justices seemed to
be openly defying Citizens United’s holding that the
First Amendment grants corporations, and by extension
labor unions, the right to spend unlimited amounts of
their treasuries to support or oppose candidates.
Justice Breyer's D.C. home hit by burglary
Thieves must have something against Justice Stephen
. . . The Supreme
Court confirms the 73-year-old justice's Washington home
was burglarized earlier this month. It follows a
February incident in which Breyer, his wife and a guest
were robbed in his Caribbean vacation home by a
. . . Court
spokeswoman Kathy Arberg said no one was home during the
May 4 burglary, which was discovered by a housekeeper.
No court-related materials were stolen from the
residence in the Georgetown section of Washington,
Arberg said, but she could not say what else may have
Supreme Court Justices Take a Musical Break
The Supreme Court was nearly unanimous Wednesday in
pausing from its work to listen to some remarkable
. . . Eight of
the nine justices -- all but Sonia Sotomayor, who was
speaking at New York University's commencement Wednesday
-- attended the Court's annual musicale, an
invitation-only interlude that draws world-class musical
talent to perform in the justices' wood-paneled east
. . . The late
Justice Harry Blackmun launched the event in 1988, but
for the last decade Justice Ruth Bader Ginsburg,
probably the Court's most avid fan of classical music,
has been the hostess. As she noted in remarks Wednesday,
the event always takes place when, for the Court, "the
pressure to produce opinions becomes most intense."
Unleash the Hounds
Why Justice Souter should
publish his secret dissent in Citizens United.
The New Yorker’s Jeffrey Toobin this week
revealed juicy bits from the Supreme Court’s
deliberations as it considered Citizens United, the
thunderous case in which the court allowed corporations
and unions to spend unlimited sums on candidate
elections, paving the way for
big-spending super PACs. Toobin told of a
secret draft Citizens United dissent by Justice David
Souter that has never been released—a draft that Souter,
who has since retired, should now make public.
. . . Here’s the
backdrop: Before Citizens United, the court
upheld corporate spending limits, requiring
that for-profit corporations spend money on elections
only through political action committees funded by
executives and shareholders. The court heard the
Citizens United plaintiff’s challenge to those spending
limits, on free-speech grounds, in March 2009, with a
decision expected at the end of the term in June.
Citizens United: The Untold Story
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
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
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?
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
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’
judicial activism has no place in the nation’s highest
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
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.
Total Injury is a
Justice Kagan seeks end of U.S. Constitution, says gun
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
. . . "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
. . . "That
Supreme Court Justice is Elena Kagan," he bluntly
. . . 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
"To the Final Conflict: Socialism in New York City,
. . . 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
at Law School Conference on Burkean Constitutionalism
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
. . . 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
Justice by the Numbers
When it comes to deciding
the future of Obamacare, the Supreme Court should ignore
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
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
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
During Penn dedication, Sotomayor voices one regret
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.
There she sat on stage at the Irvine Auditorium, among
friends and far from the political maelstrom of
. . . 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
Justice Thomas Tells Students He’s a ‘No-Frills Guy’ Who
Doesn’t Read the Times
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
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
. . . 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
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
. . . 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
Obama vs. Marbury v. Madison
The President needs a
remedial course in judicial review.
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
. . . 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.
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
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
. . . 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
Twitter coverage of Supreme Court gets shut down
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
. . . Casey
Mattox went to the
court on Tuesday to see
historic arguments over whether to strike
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
. . . 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
In 1952, a young Supreme Court clerk wrote
a memorandum that would come to haunt him.
. . The court was
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
. . 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
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
. . 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
Washington Elites Queue Up to See Nine Justices on Hot
Supreme Court Arguments
on Health Law Trigger Mad Dash for a Few Dozen Spots
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
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
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
. . 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.
GREAT DEALS ON TAX SOFTWARE
Health Care Act Offers Roberts a Signature Case
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
. . 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
Supreme Court justice Antonin Scalia speaks at Wesleyan
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
. . . 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
. . . “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
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.
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
Chemerinsky: Supreme Court Weighs First
Amendment, the Stolen Valor Act and the Protection of
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
TOO MUCH FOR CAR INSURANCE?
House votes to overturn Supreme Court decision on
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
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
Rally at Supreme Court Supports Montana Ruling on
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.
Is there really a chance that the Supreme Court might
. . . 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.
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
Justice Stevens. She’s been a reliable vote to uphold
reasonable campaign-finance laws, but this has
hardly been her
. . .
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
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
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
. . . 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
High court in marriage cross hairs
Prop 8, DOMA cases may
vie for Supreme Court's attention.
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
. . . "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
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
. . . "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
. . . 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
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
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
. . . 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
Scalia: Routine criminal cases clog federal
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."
Lawguru is a Victims-of-Law
Contraceptive mandate could face tough sledding in
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
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
. . . 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
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
. . Call it "Filburncare,"
. . 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
. . 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…
“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
. . . You can
access Justice Sotomayor's "Muppet Wiki" page
at this link.
PowWeb is a Victims-of-Law
Affiliate as well as a client of PowWeb
Jones confounds the press
this post on Monday, I summarized my
understanding of the issues that the Court decided in
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
Citizens United v. FEC decision proves justice is
blind -- politically
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
. . . 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
. . . 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
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
. . . 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
Penn Law students assist professor in Supreme Court
The Supreme Court Clinic
prepared 12 students for a case involving immigration
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
. . . 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
. . . 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
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
. . . 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.
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
Justices spar at USC over Constitution, the court, the
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
. . . 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
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
. . . 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
Supreme Court ruling confuses religious workers
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
. . . 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
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
. . . 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
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.
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
. . . 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
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
. . . 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
Gingrich threats a dark omen for courts?
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
. . . 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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