U.S. Supreme Court 2012 News & Views





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October 2012

John Paul Stevens’s Quest for Four Little Words

By Jess Bravin, WSJ.com's "Law Blog"

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 dissent.

Why Scalia Is Traveling to Wyoming: It’s Not Just the Antelope Hunting

By Debra Cassens Weiss, ABA Journal

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, the Laramie Boomerang reports.

Justice Ginsberg backpedals after advocating abortion to reduce unwanted populations: report

by Ben Johnson, LifeSiteNews.com      

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 growth and 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

By Peter Moses, NewsMax

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 overcame them.

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Supreme Court justice’s car ticketed by Philly’s Parking Authority

By Scott Bomboy, Constitution Daily" blog of the National Constitution Center   

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

By David Ingram, Reuters   

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

By Debra Cassens Weiss, ABA Journal

10-04-12 -- 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.

September 2012

What Explains the Enduring Appeal of Justice Oliver Wendell Holmes?

Damon W. Root, Reason (blog) 

09-25-12 -- Jesse Walker’s 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 branches.

Drama, controversy marked the first Supreme Court justices

By Scott Bomboy, "Constitution Daily" blog of the National Constitution Center   

09-24-12 -- 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 Building.

Text of Judge Posner's respose to Justice Scalia

Thomson Reuters News & Insights   

09-20-12 -- The following is the text of a response by Judge Richard Posner to comments 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 lied

By Terry Baynes, Reuters 

09-17-12 -- 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

By Michelle R. Smith, Associated Press | Deseret News  

09-14-12 -- 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," he said.

Richard A. Posner’s Badly Confused Attack on Scalia/Garner—Part 3

By Ed Whelan, Bench Memos Blog, NPR 

09-03-12 -- In my first two posts, I’ve demonstrated that Richard Posner’s 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 families.”

To Beat the Execution Clock, the Justices Prepare Early

By Adam Liptak, Sidebar, New York Times   

09-03-12 -- John Balentine was an hour away from being put to death in Texas last month when the Supreme Court 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 Danny Bickell. . . . “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 States.


August 2012

Shhh! Former Supreme Court Clerk Dishes on RBG’s Goofy Song Dance, CT’s Normality

By Debra Cassens Weiss, ABA Journal

08-21-12 -- 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 clerkship speak. . . . 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 hypnosis.” . . . 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 Back

By Andrew Cohen, The Atlantic            

08-17-12 -- 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

Posted by Bruce Carton, Law.com Legal Blog Watch    

08-14-12 -- 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 affirmative action

In October, the Supreme Court will hear an appeal on the issue, over which it has been closely split for decades.

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

08-14-12 -- 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 discrimination.

Why Don't the Justices Ever Visit Military Hospitals?

By Andrew Cohen,  The Atlantic     

This is the second of a two-part series on the Supreme Court and the military. Part I focused on the military history of the Court's future justices. Part II deals with the disconnect between the current Court and our military personnel.

08-14-12 -- 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

By Andrew Cohen,  The Atlantic     

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 war effort.

08-13-12 -- 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' brilliant documentary, 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 unthinkable.

It’s Both the Roberts and Kennedy Court, Supreme Court Experts Say

By Richard Brust, ABA Journal

08-03-12 -- 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 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 University.

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July 2012

Scalia Rebuffs Criticism of Dissent in Immigration Case

By Jeff Plungis, Bloomberg News-

07-30-12 -- 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 concerned.”

Justice Scalia steps up criticism of healthcare ruling

Reporting by Will Dunham, Thomson Reuters News & Insights 

07-29-12 -- 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 Decision

By Tony Mauro, The BLT, The Blog of the Legal Times  

07-26-12 -- 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 Understanding'

Posted by Todd Ruger, The BLT, The Blog of the Legal Times    

07-25-12 -- 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 education. . . . 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 become involved.

Paul Clement, prolific in high court arguments, reviews latest term

By Gina Passarella / The Legal Intelligencer  

07-23-12 -- 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 Clement says. . . . 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 speech. . . . 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.

Whitehead Commentary:

Whatever Happened to Justice? Supreme Court OKs Police Tasering Pregnant Women

By John W. Whitehead, Rutherford Institute June 6, 2012

Justices say any rifts are temporary

Some on Court predict health care scars will heal by the fall.

By Marcia Coyle and Tony Mauro, The National Law Journal  

07-16-12 -- 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 otherwise."

The danger of Supreme Court deep throats

By Linda P. Campbell, The Fort Worth Star-Telegram  

07-11-12 -- 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 election. . . . 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 Justices Mentioned

By Debra Cassens Weiss, ABA Journal

07-05-12 -- 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 justices, the 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 Crawford of CBS, because they were no longer willing to engage with Roberts in debate after he changed his mind.

Liberals fear the John Roberts rebound

By Josh Gerstein |Politico   

07-03-12 -- 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 controversial cases.     

And left-leaning courtwatchers are already worried about the jurist who brought them such relief last week: Chief Justice John Roberts. . . . 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.

June 2012

Future of an Aging Court Raises Stakes of Presidential Vote

By Sheryl Gay Stolberg, New York Times 

06-27-12 -- 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 were old. . . . “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

Lyle Denniston, SCOTUSBlog Reporter  

06-21-12 -- 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 here. . . . 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, gifts

By Bill Mears, CNN Supreme Court Producer 

06-20-12 -- 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 Weingarten. . . . "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'

By Tony Mauro, The National Law Journal   

06-15-12 -- 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 voter.

By Dahlia Lithwick, Slate

06-13-12 -- 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

By Debra Cassens Weiss, ABA Journal

06-08-12 -- 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 their decisions.

Supreme Court Justices: Addicted to Google

Posted by Josh Rothman, Boston.com   

06-07-12 -- 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 better. . . . 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.

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May 2012

Occupy the Docket: How the Supreme Court Selects the 1%

Posted by Nicholas J. Wagoner, Circuit Splits  

05-24-12 -- 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 Court?

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.

Chris Geidner, The Daily Beast 

05-24-12 -- 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 to do.” . . . 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

Kathleen Parker, National Op-Ed | Indianapolis Star  

05-23-12 -- 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 were fiction. . . . 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 Court

By Thomas Spencer, The Birmingham News 

05-21-12 -- 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 Institute. . . . 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 United ruling

The High Court by Robert Barnes, The Washington Post 

05-20-12 -- 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 Commission 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.

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Justice Breyer's D.C. home hit by burglary

By Bill Mears, CNN Supreme Court Producer  

05-18-12 -- Thieves must have something against Justice Stephen Breyer. . . . 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 machete-wielding intruder. . . . 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 been taken.

Supreme Court Justices Take a Musical Break

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

05-17-12 -- The Supreme Court was nearly unanimous Wednesday in pausing from its work to listen to some remarkable music. . . . 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 conference room. . . . 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.

By Richard L. Hasen, Slate          

05-16-12 -- 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 twice 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

By Joe PalazzoloWall Street Journal (blog)

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

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

By Debra Cassens Weiss, ABA Journal

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

Will Court confess error on immigrants’ rights?

Lyle Denniston Reporter SCOTUSblog  


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

Supremely partisan

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

By Neal Gabler, The Boston Globe Opinion 

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

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

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

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

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April 2012

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

Jim Kouri, Law Enforcement Examiner   

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

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

Addresses Jurisprudence at Law School Conference on Burkean Constitutionalism

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

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

Justice by the Numbers

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

By Barry Friedman and Dahlia Lithwick, Slate  

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

SCOTUS: Corporations are people, unless they torture other people

by Alison Frankel,  Thomson Reuters News & Insights   

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

During Penn dedication, Sotomayor voices one regret

By Karen Sloan, The National Law Journal  

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

Sotomayor reflects on her law career

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

By Chris Mondics, Philadelphia Inquirer Staff Writer  

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

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

By Debra Cassens Weiss, ABA Journal

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

Health-law challenger raises specter of campaign-finance case

Tony Mauro, First Amendment Center Legal Correspondent  

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

Analysis: Justice Kagan--Giving liberals a rhetorical lift

by Joan Biskupic, Thomson Reuters News & Insights

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

Obama vs. Marbury v. Madison

The President needs a remedial course in judicial review.

The Wall Street Journal editorial  

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

March 2012

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

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

By Warren Richey, Christian Science Monitor Staff writer

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

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Twitter coverage of Supreme Court gets shut down

Reporting by David Ingram, Thomson Reuters News & Insights  

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

New Look at an Old Memo Casts More Doubt on Rehnquist

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

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

Supreme Court Update

New Low: 28% Give Supreme Court Positive Ratings

Rasmussen Reports  

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

Washington Elites Queue Up to See Nine Justices on Hot Seat

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

By Janet Adamy and Jess Bravin, Wall Street Journal 

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

Female Justices Join Forces to Honor O'Connor

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

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

Supreme Court Seen Influenced by Politics in Health-Care Ruling

By Julie Bykowicz and Greg Stohr, Bloomberg    

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


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Health Care Act Offers Roberts a Signature Case

By Adam Liptak, New York Times   

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

Supreme Court justice Antonin Scalia speaks at Wesleyan

By Jim Salemi, The Middletown Press Staff 

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

Justice Scalia tells Catholics to brave the scorn of worldly people

By Electa Draper, The Denver Post  

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

Antonin Scalia's ObamaCare Problem

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

Damon W. Root, Reason

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

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

By Erwin Chemerinsky, ABA Journal

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



A Victims-of-Law Associate

February 2012

House votes to overturn Supreme Court decision on eminent domain

By Pete Kasperowicz, The Hill 

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

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

By Chris Mondics, Philadelphi Inquirer Staff Writer 

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

Rally at Supreme Court Supports Montana Ruling on Campaign Finance

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

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

Do-Over Season

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

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

Occupy the Super PACs

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

By Richard L. Hasen, Slate 

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

Congress looks for ways around Supreme Court

By Ben Pershing, The Washington Post   

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

High court in marriage cross hairs

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

Marcia Coyle, The National Law Journal  

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

Ginsburg questions 1973 abortion ruling's timing

By David Crary, AP National Writer

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

Senate Judiciary Approves Bill Requiring Cameras in Supreme Court

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

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

The Citizens United catastrophe

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

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

Scalia: Routine criminal cases clog federal courts

Associated Press | nolo.com  

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

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January 2012

Contraceptive mandate could face tough sledding in Supreme Court

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

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

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

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

By Ariane de Vogue, ABC News  

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

In the case of Baby Bear v. Goldilocks…

Contributor: Jonathan Ringel, Daily Report (blog)

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


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Jones confounds the press

Tom Goldstein Publisher, SCOTUSblog  

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

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

By Jeffrey Rosen | Politico Opinion Contributor

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

Roberts to America: Trust us

By William Yeomans & Herman Schwartz, Politico Opinion Contributors

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

Penn Law students assist professor in Supreme Court

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

By Jin Pyuo Lee, The Daily Pennsylvanian  ·

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

Court won't hear arguments demanding Kagan recusal

Associated Press

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

Sue your own state? Why not?

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

Los Angeles Times Editorial

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

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

By Clif LeBlanc The State  

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

Small-Business Owners Wary of Citizens United's Impact

Catherine Dunn, Corporate Counsel  

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

Supreme Court ruling confuses religious workers

By Jeff Karoub, Associated Press

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

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

By Associated Press | Washington Post   

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

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

By Greg Stohr, Bloomberg-

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

Supreme Court: The recusal question

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

Los Angeles Times Editorial

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

The Supreme Court can’t be absolute

By Jeff Jacoby Boston Globe Editorial | Boston,Com 

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

Gingrich threats a dark omen for courts?


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

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"To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves."
   --Thomas Jefferson to William C. Jarvis, 1820. ME --15:277

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INAUGURATED ON: January 11, 2008
Updated on 10/28/2012