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August 2010
Supreme Court Rearranges Schedule With Kagan in Mind
Tony
Mauro, The National Law Journal
08-10-10 --
The Supreme Court on Monday issued
a rearranged schedule for its first session of oral
arguments next term, an action that would usually not be noteworthy.
But it's clear that at least one change was made with newly sworn
Justice Elena Kagan in mind. It will take a bit of explanation. . .
. The first day of the fall term, Oct. 4, will be historic because
for the first time in history, and because of Kagan's arrival, three
of the nine justices who emerge from behind the velvet curtains at
the start of the session will be women. It is a moment that could
have been destroyed, or made awkward, by how the schedule of
arguments had first been laid out in July. The first case to be
argued that day on that first version of the schedule was Abbott
v. United States, a federal sentencing case.
Supreme Court Clerk Hiring Watch: Justice Kagan’s Clerks!
By David
Lat, Above the Law Blog
08-10-10 --
As of yesterday, Justice Elena Kagan had not hired her four law
clerks for October Term 2010, as reported by Tony Mauro in the
National Law Journal. But that was then, and this is now.
. . . Justice Kagan, who was
sworn in on Saturday, isn’t wasting any time in getting
her chambers up and running. Lady Kaga has hired her four
little monsters for OT 2010. . . . Just as Justice Sonia
Sotomayor
did last year, Justice Kagan is hiring outgoing Supreme
Court clerks — i.e., clerks who just finished up with their justices
— to ease her transition. Out of her four clerks for the upcoming
Term, three also clerked on the Court in the Term just ended
(October Term 2009).
Kalgan Will Have Little Time to Ease Into New Job
More than 2,000 petitions for review typically pile up during the
Court's summer recess
Tony
Mauro, The National Law Journal
08-09-10 --
The dog days of August are when nothing, typically, gets done in
Washington. But Elena Kagan won't have the luxury of easing into her
new job as a U.S. Supreme Court justice. . . . She'll be hiring law
clerks and secretaries, setting up her chambers, wading into
thousands of incoming petitions and handling emergency matters --
which may soon include an appeal of a stay in the
California same-sex marriage case. "In a sense she's
already a month behind," said
Douglas Hallward-Driemeier, head of Ropes & Gray's
appellate and Supreme Court practice, who was at the solicitor
general's office when Kagan started that job last year. "The number
of petitions you face is enormous."
Recent High Court Cases Already Having Major
Impact
Tony
Mauro, The National Law Journal
08-09-10 --
U.S. Supreme Court Justice John Paul Stevens retired in June, but he
left behind freshly minted decisions that will extend his legacy in
day-to-day court cases for years to come. . . . The Court term that
just ended produced an unusually large number of cases that have had
nearly instant impact in courtrooms and on practitioners across the
country. . . . Citizens United v. FEC has already produced
campaign finance rulings that are on their way back to the high
court on appeal. Skilling v. U.S., issued June 24, has already
gotten media mogul Conrad Black out of jail on bail and may spring
former Enron executive Jeffrey Skilling as well.
Kagan
Confirmation Sets the Stage for High Court First
David Ingram, The
National Law Journal
08-06-10 --
Elena Kagan is on the verge of becoming the
112th justice of the U.S. Supreme Court, after
three months of sparring over her legal
experience and where she falls on the
ideological spectrum. Senators voted, 63-37, on
Thursday to confirm Kagan. All Democrats but one
voted for her, while all Republicans but five
opposed her. . . . Kagan will be sworn in at the
Supreme Court on Saturday. Chief Justice John
Roberts Jr. will do the honors. The plan mirrors
last year's Saturday oath-taking for Sonia
Sotomayor. A formal investiture ceremony will
take place on Oct. 1, at a special sitting of
the Court.
Senate
Confirms Kagan to Supreme Court
For the first
time, three women to serve on the Court
concurrently
David Ingram and
Tony Mauro, The National Law Journal
08-05-10 --
Elena Kagan is on the verge of becoming the
112th justice of the U.S. Supreme Court, after
three months of sparring over her legal
experience and where she falls on the
ideological spectrum. . . . Senators voted 63-37
on Thursday to confirm Kagan. All Democrats but
one voted for her, while all Republicans but
five opposed her -- a reflection of both Kagan's
record and the sharply partisan climate in
Congress. . . . Kagan's confirmation means the
Court, for the first time in its history, will
have three female members, a point that
Democratic female senators pointed to with pride
during a three-day debate. It also means that,
for the first time since William Rehnquist was
confirmed in 1971, a justice will be joining the
Court without prior judicial experience.
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July 2010
U.S. Supreme Court Justice Antonin Scalia upholds his constitutional
beliefs at Museum of the Rockies
By Jodi
Hausen, Bozeman Daily Chronicle Staff Writer
07-29-10 --
Known for his no-nonsense expressive style, U.S. Supreme Court
Justice Antonin Scalia told the audience at the Museum of the
Rockies on Wednesday evening his talk was entitled, "Mullahs of the
West: Judges as Moral Arbitors." . . . In his near-quarter century
serving on the country's highest court, judges have increasingly
been asked to rule on issues of morality - issues about which
justices have no business making decisions, Scalia said. . . .
Whether a woman has a constitutional right to abortion, same-sex
couples have the right to marry, the government has the right to put
a man to death for his crimes or a person has the right to assisted
suicide are all moral questions that have been put before the court,
he said.
As Stevens retires from court, one final duel with Scalia
By
Robert Barnes, Washington Post Staff Writer
07-26-10 --
It is fitting that the last duel between the old ink-slingers at the
Marble Palace was over guns. . . . Justices John Paul Stevens and
Antonin Scalia have been taking shots at each other for more than
two decades -- their grudging mutual respect apparently as deep as
their disagreements. . . . Their last showdown before Stevens rode
off into the sunset came in McDonald v. City of Chicago. The
court's 5 to 4 decision said the Second Amendment applies to state
and local governments as well as Congress. Scalia was in the
majority, Stevens among the dissenters, and the two of them took
about a third of the
ruling's 214 pages to explain their reasonings.
Justice Potter Stewart's Papers Reveal Friends in High Places
Tony
Mauro, The National Law Journal
07-20-10 --
Laurence Tribe remembers watching Potter Stewart, the
U.S. Supreme Court justice for whom he clerked in 1967, feed his
office fireplace around Christmas time. . . . Stewart was burning
some of his Court papers, recalls Tribe, the Harvard law professor
and now senior counselor at the Justice Department. "He told me that
it was an annual affair." . . . What papers did Stewart destroy that
year? "I promised him I'd remain forever silent, and it's a promise
I feel bound to keep," Tribe said. . . . That annual ritual helps
explain why the recent opening of Stewart's papers at
Yale University Library may not produce a burst of
headline-making revelations about the life and career of an
important "swing vote" justice who served on the high court from
1958 to 1981. Some of his files appear well-scrubbed.
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Clarence Thomas calls Supreme Court a 'marble palace'
By
Jamshid Ghazi Askar, Deseret News
07-18-10 --
U.S. Supreme Court Justice Clarence Thomas delivered the keynote
address at the Utah State Bar's summer convention Saturday morning.
. . . In his remarks, Thomas painted a portrait of duty and
isolation in describing what life is like for the nine justices of
the nation's high court. . . . "I'm convinced," he said, "that part
of (this job) is that when you consider the consequences of the
decisions that we make, it does weigh on you and it does show you
that there's something so important that you've got to get it right.
It does have an effect on you. . . . "(The Supreme Court) truly is a
marble palace (because) we're isolated. We're isolated from the
politics, we're isolated from the city and in a lot of ways we're
isolated from the country. These trips allow me to come out and see
the people who really matter in our government, and that is you
all."
Supreme immodesty: Why the justices play politics
By
Stuart Taylor Jr., The Washington Post
07-14-10 --
Why does the supposedly nonpartisan Supreme Court split so often
along ideological lines, with the four conservatives locked in
combat against the four liberals and the eclectic Justice Anthony
Kennedy determining which faction wins? . . . And why do all of the
justices so often find in the Constitution a mirror image of their
own political and policy views on issues as diverse as abortion,
race, religion, gay rights, campaign finance, the death penalty and
national security? . . . The justices strenuously deny voting their
own policy preferences. So, are they insincere? . . . Well, no,
except that none admits that interpreting the Constitution is an
inescapably subjective enterprise in which policy and political
preferences unavoidably play a big part. This is especially true at
the Supreme Court, which is not strictly bound by its own
precedents. . . . Even a rigorously apolitical justice passionately
committed to "applying the law" would often find no clear law to
apply. . . . Conservative (and some liberal) "originalists" are
correct in saying that justices who seek to override the text and
original meaning by invoking the "living Constitution" have nothing
to guide them but their own policy preferences -- and precedents,
which can be overruled.
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Kennedy's Clout Likely to Grow on High Court
Former SG Paul Clement calls putting the power to assign opinions in
Kennedy's hands the 'single most important dynamic change' brought
on by Stevens' departure
Mark
Sherman, The Associated Press, Law.com
07-13-10 --
Justice Anthony Kennedy, who already decides whether liberals or
conservatives win the Supreme Court's most closely contested cases,
is about to take on an even more influential behind-the-scenes role
with the
retirement of Justice John Paul Stevens. . . . By virtue
of seniority, Kennedy will inherit Stevens' power to choose the
author of some Court opinions, an authority that has historically
been used -- including in as big a case as the landmark
Roe v. Wade abortion decision -- to subtly shape a
ruling or preserve a tenuous majority.. . . This change might keep
the Court's most liberal justices from writing some of its biggest
decisions. . . . An unwritten high court rule gives the senior
justice in the majority, most often the chief justice, the power to
assign opinions.
Off the Bench, Sotomayor Signs Autographs, Cautiously Answers Nosy
Reporters
By Debra
Cassens Weiss, ABA Journal
07-12-10 --
Justice Sonia Sotomayor displayed the usual penchant for work as
other new Supreme Court justices, but in many ways her first term
was atypical. . . . Off the bench, the first Hispanic justice is
widely recognized, the
Washington Post reports. “She has a politician's gift for
signing autographs and posing for photos,” the story says, and is
frequently seen in Washington, D.C., at restaurants, the Kennedy
Center and the grocery store, the story says. . . . The story notes
that Sotomayor's likeness and “wise Latina” phrase wound up on
T-shirts and coffee mugs, she had a Bronx housing project named
after her, and she danced at the White House to a song written in
her honor. . . . Recently, a
New York Daily News reporter caught up with Sotomayor at
a Manhattan Chinese restaurant, the Post story says. The journalist
asked her about the menu and whether Lindsay Lohan should have been
sentenced to jail. . . . "You know I wouldn't answer that question,"
Sotomayor told the reporter in response to the Lohan query. "But I
really admire your chutzpah." Then she added, "That's a New York
word."
Justice Ginsburg, a ‘Flaming Feminist,’ Says Legal Challenges
Won’t Stop Abortion
By Debra
Cassens Weiss , ABA Journal
07-09-10 --
Justice Ruth Bader Ginsburg is confident that abortions will
continue to be available despite legal challenges by opponents of
Roe v. Wade. . . . Speaking Thursday at the Aspen Ideas
Festival, Ginsburg said she doesn’t see a return to a ban on
abortion,
Politco reports. "Over a generation of young women have
grown up, understanding they can control their own reproductive
capacity, and in fact their life's destiny," Ginsburg said. "We will
never go back to the way it once was." . . . Ginsburg described
herself as a “flaming feminist” and said she looked forward to Elena
Kagan joining the court, the
Aspen Daily News reports. Retired Justice Sandra Day
O’Connor also remarked on Kagan’s nomination as she introduced
Ginsburg.
Booted From Town Hall Meeting for Bumper Sticker, 2 Seek Supreme
Court Review
Marcia
Coyle, The National Law Journal
07-08-10 --
A five-year-old incident in which two Denver residents were bounced
from a town hall meeting held by President George W. Bush because of
the bumper sticker on their car has reached the U.S. Supreme Court's
door. . . . The
American Civil Liberties Union on Wednesday asked the
justices to review an appellate court decision that found no First
Amendment violation of the rights of Leslie Weise and Alex Young. .
. . Weise and Young had secured tickets to the 2005 town hall
meeting held by then-President Bush at the Wings Over the Rockies
Air and Space Museum in Denver. Bush gave a speech on Social
Security at the government-sponsored event, which was open to the
public. . . . The two Denver residents arrived in Weise's car, which
sported a bumper sticker with the slogan "No More Blood For Oil."
Although they were initially admitted to the event, they were
ejected by organizers Michael Casper and Jay Klinkerman, acting at
the direction of Steven Atkiss and James O'Keefe, employees of the
White House Advance Office.
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Secret donors make Thomas's wife's group tea party player
By
Kenneth P. Vogel, Politico
07-07-10 --
When Supreme Court Justice Clarence Thomas's wife announced in 2008
that she was going to help run Washington operations for a Michigan
college once described as "a citadel of American conservatism," she
said the move was her "way of pulling away from politics" and the
"safest place for me to be when it comes to conflicts" with her
husband's position on the court. . . . But, less than two years
later, Virginia "Ginni" Thomas has returned to partisan politics as
a fully engaged opponent of President Barack Obama, whom she has
described as "hard left" and steering the nation "for tyranny." As
founder and president of a think tank and advocacy group called
Liberty Central, she quickly established herself in the tea party
movement by drawing on her longstanding ties to Washington's
conservative establishment and by landing two big donations -- one
for $500,000 and another for $50,000 --that put her group on the
map.
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June 2010
Martin D. Ginsburg dies at 78; tax law expert,
Supreme Court spouse
By T.
Rees Shapiro, Washington Post Staff Writer
06-28-10 --
Martin D. Ginsburg, 78, a Georgetown University tax law professor
whose blind date more than a half-century ago with a quiet
undergraduate named Ruth Bader blossomed into an enduring marriage,
died June 27 of complications from metastatic cancer at his home in
Washington. . . . Mr. Ginsburg joined the Georgetown faculty in 1980
and was considered one of the nation's preeminent tax-law experts
for his mastery of the Internal Revenue Code's intricacies. He also
served as the sounding board, moral supporter and intellectual
sparring partner for his wife, Ruth Bader Ginsburg, as she rose to
become history's second female Supreme Court justice. . . . The
couple celebrated their 56th wedding anniversary on June 23. The
foundation of their relationship, they both said, was mutual respect
and equality -- and a willingness to share domestic duties.
The High Court: Ruling on naming petition signers leaves
room for interpretation
By
Robert Barnes, Washington Post Staff Writer
06-28-10 --
Tea partiers, gay rights activists (and opponents), Internet
political provocateurs, take note: The Supreme Court last week
issued an opinion that reflects the justices' -- and society's --
conflicting views on your role in the political turmoil of our times
and the messy aspects of democracy. . . . How to protect those who
sign a petition expressing unpopular political views, either from a
government whose actions are being challenged or from other members
of the public using technology to confront petition signers in new
ways, animated the court's deliberations in
Doe v. Reed. It concerned an unsuccessful referendum
that would have overturned the state of Washington's domestic
partnership law for gay and older couples. . . . The court's ruling
was deceptively lopsided: It held 8 to 1 that, in general, people
who sign referendum petitions should not expect the First Amendment
to protect disclosure of their names. The majority reasoned that
there are legitimate reasons that states allowing referendums and
initiatives would want to require the disclosure of names on a
petition forcing the government to do something.
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Should Retired Justices Be Called Back to Supreme Court?
Threat of a deadlock has
loomed over the justices for years whenever one of them
considers stepping away from a case
David Ingram, The
National Law Journal
06-17-10 --
Sen. Patrick Leahy, D-Vt., is thinking about proposing
legislation that would allow a retired U.S. Supreme
Court justice to sit in a case when a current justice
has recused -- in what would be a major shift in how the
Court operates. . . . The idea comes up as Justice John
Paul Stevens prepares to join the ranks of retired
justices. Leahy, who chairs the Senate Judiciary
Committee, said he decided to draft a bill after a
recent meeting with Stevens. . . . "I talked with
Justice Stevens, and he raised the question, 'Could we
not have a provision in the law for some mechanism that
retired Supreme Court justices could be asked to sit on
the Court when there is a recusal?' " Leahy said in an
interview with The National Law Journal. . . . "That
would make a lot of sense," he added, "because if you've
got an eight-member Court, you could easily have 4-to-4
decisions." In such cases, the lower court's ruling
stands. Leahy said he has prepared a draft of a bill and
probably will introduce it eventually. His office later
declined to describe its contents or provide a copy.
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Souter Gets a Kindle
David Ingram, The
National Law Journal
06-14-10 --
David Souter, the retired Supreme Court justice long
known for his aversion to new technology, may have
joined one of the latest electronic trends. . . . Souter
received a Kindle Wireless Reading Device as a gift last
year, according to his latest financial disclosure
report. The Kindle, sold by Amazon, allows users to
download books and read them on an electronic display. .
. . The disclosure report requires judges and other
public officials to disclose gifts they receive, with
some exceptions. This one came from Federal
Communications Commission Chairman Julius Genachowski,
who is a former Souter clerk, and from Genachowski's
wife, Rachel Goslins. Estimated value: $349.10. . . .
Souter's sidestepping of some modern, electronic devices
is widely known among Court watchers.
Justice Clarence Thomas seems bored. Why doesn't he run
for president in 2012?
By Kashmir Hill and David
Lat, Washington Post
06-13-10 --
The end of the Supreme Court term later this month marks
a milestone: four years in which Justice Clarence Thomas
hasn't spoken during oral arguments. That's more than
250 cases heard, and not one word from Thomas, the
longest silence of his nearly 19 years on the bench. . .
. Is he unhappy? Bored? Restless? . . . This is not his
normal state. When the justice from Georgia steps out of
his black robes, he's a
gregarious fellow. When addressing law
students, bar associations or Congress, he is
charismatic and compelling. At a
speech at the University of Florida this
year, he cracked self-deprecating jokes and made
football references. "Many of you are passionate about
your Florida Gators, but how passionate are we about the
principles that underlie our country?" he asked.
Unfortunately, his people skills are wasted in the
stuffy, stilted, stylized interactions between lawyers
and Supreme Court justices.
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High Court Justices Turn Out for 'Thurgood' Play
Tony Mauro, The National
Law Journal
06-07-10 --
It was apparently VIP night Thursday at the Kennedy
Center for the third performance of the one-man play
"Thurgood," featuring Laurence Fishburne's
powerful portrayal of the late Supreme Court Justice
Thurgood Marshall. The play, a must-see for the
Washington, D.C., legal community, plays through June 20
before it leaps to the left coast in Los Angeles. . . .
Security was evident as Chief Justice John Roberts Jr.
and Justice Stephen Breyer and spouses, and Justice Ruth
Bader Ginsburg made their way to their fifth row-center
seats at the Eisenhower Theater. We also spotted White
House senior adviser Valerie Jarrett and former White
House counsel Gregory Craig in the full house. . . . The
justices seemed in rapt attention as Fishburne unfolded
the life of Marshall, aging before the audience's eyes
with the addition of simple props like eyeglasses and a
cane. Marshall's triumphs, his frustrations, his
setbacks, his storytelling, his sassy sense of humor,
and his final years as a tired hero, were all on full
display.
David Souter vs. the Antonin Scalias
By E.J. Dionne Jr.,
Washington Post
06-03-10 --
It should become the philosophical shot heard 'round the
country. In a remarkable speech that received far too
little attention, former Supreme Court justice David
Souter took direct aim at the conservatives' favorite
theory of judging. . . . Souter's verdict: It "has only
a tenuous connection to reality." . . . At issue is "originalism,"
an approach to reading the Constitution whose seeming
precision has given conservatives a polemical advantage
over the liberals' "living Constitution" idea that
appears to let judges say our founding document means
whatever they want it to mean. . . . Justice Antonin
Scalia,
the court's leading orginalist, summarized
his opponents' attitude toward the Constitution with
four words: "You know, it morphs." . . . Now, thanks to
Souter's
commencement address at Harvard last week,
Scalia's critics have fighting words of their own.
Souter, who did not mention Scalia by name, underscored
"how egregiously it misses the point to think of judges
in constitutional cases as just sitting there reading
constitutional phrases fairly and looking at reported
facts objectively to produce their judgments."
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Federal Law Trumps Ariz. Penalties on Employers Who Hire
Illegal Workers, Says SG's Office
Marcia Coyle, The
National Law Journal
06-01-10 --
The Obama Administration late Friday urged the U.S.
Supreme Court to find that Arizona's law penalizing
employers who hire illegal immigrants is pre-empted by
federal law. . . . The Court asked for the views of the
Office of Solicitor General last November. The case,
already controversial within the nation's business
community, drew increased attention as speculation
heightened that Solicitor General Elena Kagan was a
leading contender to fill a potential Supreme Court
vacancy. Political and academic observers viewed the
government's response as a possible window into how it
would regard Arizona's most recent law authorizing
police to arrest suspected illegal immigrants as well as
into Kagan's own views. . . . However, Acting Solicitor
General Neal Katyal, responded to the Court's
invitation. He urged the justices to hear Chamber of
Commerce of the United States v. Candelaria and to
reverse a ruling in March 2009 by the U.S. Court of
Appeals for the 9th Circuit, which upheld the
controversial state law.
Senators Target Supreme Court's 'Exxon' Ruling in Effort
to Make Oil Companies Pay for Spills
Marcia Coyle, The
National Law Journal
06-01-10 --
Lawmakers looking for ways to ensure that oil companies
pay for devastating spills have a new target: a 2008
Supreme Court decision limiting punitive damages in
maritime law. . . . Sen. Sheldon Whitehouse, D-R.I.,
joined by Sens. Patrick Leahy, D-Vt., Richard Durbin,
D-Ill., Robert Menendez, D-N.J., and Bernard Sanders, I-Vt.,
introduced a bill this month that would eliminate the
1:1 ratio of punitive damages to compensatory damages
imposed in
Exxon Shipping Co. v. Baker (pdf). . . .
The "Big Oil Polluter Pays Act" declares that, in any
civil action for damages arising out of a maritime tort
case, punitive damages may be assessed without regard to
the amount of compensatory damages assessed in the
action. . . . The Baker case stemmed from the 1989 Exxon
Valdez oil spill in Prince William Sound, Alaska. The
Supreme Court, exercising its authority as a common-law
court, voted 5-3 to
to reduce a $2.5 billion punitive award to
Alaskan fishermen, fisheries and others damaged by the
spill, to $500 million. The Baker decision has been on a
list of high court rulings Leahy has criticized
vigorously in the last two months as examples of what he
called "a very conservative activist Supreme Court."
Two-Thirds of Americans Can't Name Any U.S. Supreme
Court Justices, Says New FindLaw.com Survey
PRNewswire
06-01-10 --
Nearly two-thirds of Americans cannot name any members
of the U.S. Supreme Court, according to a new national
survey by FindLaw.com (http://www.findlaw.com),
the most popular legal information website. Even as
Supreme Court nominee Elena Kagan awaits Senate
confirmation hearings to replace retiring justice John
Paul Stevens, only 35 percent of Americans can name even
one member of the nation's highest court. . . . Clarence
Thomas is the most well known justice but could be named
by only 19 percent of Americans. Chief Justice John
Roberts was named by 16 percent of people. Sonia
Sotomayor, the newest justice, could be named by only 15
percent of Americans following a highly visible
nomination and confirmation process last year.
Clarence Thomas – 19% / John Roberts –
16% Sonia Sotomayor – 15% / Ruth Bader Ginsburg – 13% /
Antonin Scalia – 10% / Samuel Alito – 8% /
John Paul Stevens – 8% Anthony Kennedy – 6% / Stephen
Breyer – 3%
Only 1 percent of
Americans could correctly name all nine current members
of the Supreme Court. . . . In addition, many
Americans think that retired justices Sandra Day
O'Connor and David Souter are still active members of
the Supreme Court. O'Connor and Souter retired from the
Court in 2006 and 2009, respectively.
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May 2010
Souter defends judicial activism
Says perspectives change
with time
By Jonathan Saltzman,
Boston Globe Staff /
05-28-10 --
Retired Supreme Court justice David H. Souter,
delivering the commencement speech at Harvard University
yesterday, defended justices who interpret the
Constitution and identify rights not explicitly
mentioned in America’s founding document. . . . As the
Senate prepares to hold confirmation hearings for former
Harvard Law School dean Elena Kagan, President Obama’s
nominee for the high court, Souter said that people who
contend that deciding constitutional cases simply
entails a straightforward “fair reading’’ of the
Constitution are being unrealistic. . . . Not only does
the Constitution contain “a lot of general language in
order to be useful over long stretches of time,’’ the
70-year-old jurist told a sea of new graduates and
alumni, but it “contains values that may well exist in
tension with each other, not in harmony.’’
O’Connor Confesses She Worried Five Years at Home
Would
Wreck Her Career
By Debra Cassens Weiss , ABA Journal
05-27-10 --
Retired Justice Sandra Day O’Connor had a problem when
she was starting out in her legal career: Her baby
sitter had quit, and she had three young children at
home. . . . O’Connor spent the next five years at home
raising the children. A recent article in the
New York Times magazine
suggested that she had a “paradoxical freedom”
because not much was expected of women then. The article
noted the court’s newest justice, Sonia Sotomayor, has
no children, and neither does Supreme Court nominee
Elena Kagan. Sotomayor and Kagan come from a new
generation, the story suggested, in which taking time
off for motherhood could kill any chances of a seat on
the U.S. Supreme Court. . . . O’Connor commented on the
issue in an interview Wednesday on
ABC’s Good Morning America. Interviewer
George Stephanopoulos asked O’Connor if she could have
made it on the Supreme Court today with five years out
of the legal work force. O'Connor said she had worries
even then. . . . “Well, I didn't know if I could even
get another job as a lawyer when I took the five years,”
O’Connor said. “It was that much of a concern. I didn't
have a choice. But I was afraid, I had so much trouble
getting work in the first place, I thought with five
years off, it would be much more difficult.”
Justice Souter Still Polite, and Still Hearing Cases
By Debra Cassens Weiss , ABA Journal
05-27-10 --
Justice David H. Souter is retired from the Supreme
Court, but he’s still hearing cases. . . . Souter hears
arguments one or two days a month for the Boston-based
1st U.S. Circuit Court of Appeals, the
Associated Press reports. According to the
wire service, his “demeanor is the same—polite, formal
and sharp.” . . . Harvard law professor Mark Tushnet
told AP that Souter may enjoy the differences in the
work at the appeals level. "What you are doing on the
court of appeals is making decisions that have a
significant effect on the daily lives of individuals who
are in front of you, on a case-by-case basis, whereas
with the Supreme Court you're making decisions that
affect a lot of people, but they are not the ones in
front of you, you don't see them," Tushnet said.
Supreme Court
Decisions Survive Senate Action on Financial Reform
Marcia Coyle, The
National Law Journal
05-21-10 --
Three key Supreme Court decisions, including one
rejecting liability for lawyers, accountants and bankers
who aid and abet in the violation of securities laws,
survived attempts to overturn them during
the Senate's
consideration of landmark financial reform legislation.
. . . Despite support from a coalition of consumer,
investor, labor and other groups, an amendment targeting
Stoneridge Investment v. Scientific-Atlanta
(2008) and Central Bank N.A. v. First Interstate Bank
N.A. (1994) failed to reach a vote before the
lawmakers moved late Thursday night to halt 30 hours of
cloture debate and take a final vote on the reform bill.
. . . The two decisions rejected the private right of
action for aiders and abettors of security violations
because Congress had not explicitly stated its intent to
include it in the relevant statute. In Stoneridge, the
Court said, "The decision to extend the cause of action
is thus for the Congress, not for this Court."
High Court
Confirmation Process Gets Bad Reviews at Launch Event
for Supreme Court Book
Tony Mauro, The National
Law Journal
05-20-10 --
Supreme Court Justice Stephen Breyer often frets about
how to talk about the nation's highest court without
putting his audience to sleep. He did fine with that
Monday night before a Court-oriented audience at the
Library of Congress, gathered to mark publication of C-SPAN's
new book
called "The Supreme Court." Published by Public Affairs,
the book gathers together the transcripts of the
fascinating interviews with justices and others that
were conducted for a
special series
on the Court that aired last year. C-SPAN president
Susan Swain, an editor of the book, led the program,
with founder Brian Lamb in the audience. . . . "I love
this film -- it doesn't just have judges," Breyer said
in his trademark rapid-fire rambling style (not an
oxymoron.) "The film is fairly interesting," Breyer said
-- about as strong an endorsement as justices give. He
was referring to the film that became the book. . . .
Some of the non-judges who appeared in the C-SPAN series
and book spoke on a panel discussion about the Court
and, inevitably, the forthcoming confirmation hearings
for
Supreme Court nominee
Elena Kagan.
High Notes at the High Court in Annual Musicale
Tony Mauro, The National
Law Journal
05-17-10 --
The chandeliers were on the verge of rattling in the
Supreme Court's East Conference Room on Thursday as the
powerful voices of tenor Lawrence Brownlee and
mezzo-soprano Denyce Graves rang out during the Court's
annual musicale. . . . The late Justice Harry Blackmun
started the tradition of a springtime musical interlude
at the Court in 1988 -- it was every other year the
first few times -- and then Justice Sandra Day O'Connor
and now Justice Ruth Bader Ginsburg have become the
impresaria for the unique event. Musical stars including
Bobby Short, Michael Feinstein, Marian McPartland and
Leonard Slatkin, as well as some of the best operatic
names, have played the coveted gig. Thursday marked
Graves' second appearance at the Court, and Brownlee's
debut. Betty Bullock was at the piano. . . . Ginsburg, a
longtime opera buff who, by legend, sometimes reads
briefs by flashlight while at the theater, was in her
glory emceeing the event.
|

A
Victims-of-Law Advertiser |
Stevens: Risk of wrongful sentences higher
By Joan Biskupic, USA
TODAY
05-06-10 --
Modern pressures on the judicial system have raised the
chance a defendant could be wrongly sentenced to death,
Supreme Court Justice John Paul Stevens said Wednesday,
explaining his changed view on the constitutionality of
capital punishment. . . . "The risk of an incorrect
decision has increased," he told an audience of hundreds
of lawyers and judges at a judicial conference here,
responding to a question about his 2008 assertion that
the death penalty should be abolished. He said that
because of advances in DNA testing, which have led to
the freeing of some innocent convicts, "we're more aware
of the risk than we might have been before." . . . In a
lethal-injection dispute from Kentucky two years ago,
Stevens concluded for the first time that "the death
penalty represents the pointless and needless extinction
of life with only marginal contributions" to society.
Democrats Take On Supreme Court Over
Age Discrimination Law
Legislation has been
introduced in the House and Senate that would override
the high court's interpretation of the age
discrimination law
David Ingram, The
National Law Journal
05-06-10 --
Congressional Democrats are taking a whack at overriding
another recent decision by the U.S. Supreme Court,
looking this time at a 2009 ruling about age
discrimination. . . . The
decision in
Gross v. FBL Financial Services Inc.
changed the standard of proof for workers who sue under
the Age Discrimination in Employment Act of 1967. Under
the Court's 5-4 opinion, a worker must prove that the
employer would not have taken a certain action, such as
a demotion, "but for" the worker's age, even if there's
evidence that age was a factor in the decision. . . .
Plaintiffs lawyers say the decision has made it more
difficult to bring age discrimination claims, and
Democrats are taking up their argument, just as they did
after the 2007 decision in
Ledbetter v. Goodyear Tire & Rubber Co.
about gender discrimination.
Sotomayor Debuts in 'Female Force' Comic Book Series
Marcia Coyle, The
National Law Journal
05-05-10 --
Justice Sonia Sotomayor has attained true stardom. This
month, she joins House Speaker Nancy Pelosi, former Vice
President Al Gore and conservative radio icon Rush
Limbaugh in having
her own comic book. . . . Describing the four
as "some of the most fascinating and polarizing figures
on the national political stage," Bluewater biography
comics is publishing separate comic books on each that
will be in comic book stores today. . . . "These four
individuals represent some of the most influential and
historic figures of the 21st century," said Bluewater
president Darren Davis in a statement. "Each has a
uniquely compelling story that defines who they are
today and how they got there."
Justices Disagree Over Closing Supreme Court's Front
Entrance
Tony Mauro, The National
Law Journal
05-04-10 --
In a rare glimpse into internal disagreement among the
members of the Supreme Court, Justice Stephen Breyer,
joined by Justice Ruth Bader Ginsburg, issued
a statement on Monday objecting to Court
plans to bar the public from entering the Court via its
famed front steps. . . . Under the Court's new entry and
security plan, members of the public will be able to
leave the Court down the steps, but they will have to
enter through new ground-level doors at either side of
the steps. Entering the Court through the bronze doors
at the top of the steps will not be allowed. The new
entry plan, aimed at improving security, begins today,
according to
an announcement by the Court, also released
Monday. . . . Constructed as part of the Court's ongoing
renovation, the new ground-floor entrance will provide a
"secure, reinforced" area for screening visitors for
weapons, explosives, and biological and chemical
hazards. Credentialed employees and others with business
at the Court will be able to enter at another entrance
on the Maryland Avenue side of the building, as before.
SG Kagan Recalls 'Look of Panic' in First High Court
Argument
Tony Mauro, The National
Law Journal
05-03-10 --
One of Solicitor General Elena Kagan's assets as a
potential Supreme Court nominee is said to be her
collegiality across the political spectrum. That
bonhomie was on full display Thursday as she heaped
praise on Justice Anthony Kennedy at an award ceremony
put on by
Georgetown University Law Center's Supreme Court
Institute. . . . Kennedy was being honored by
the institute for his contributions to the Court and to
civil discourse at the Court and beyond. Maureen
Mahoney, of counsel at Latham & Watkins, led off with
praise for Kennedy's "passion for the Constitution" and
for "setting the standard for judicial temperament." . .
. Kagan spoke next, saluting Kennedy for "his
independence, his deep convictions about the importance
of freedom ... for the rule of law." Kennedy's opinions,
she said, "don't fall into any line," instead reflecting
that "he has charted his own course." His decisions, she
said, "are the product of extraordinarily deep care and
consideration and thought."
Recent high court cases revive debate on judicial
activism
By Robert Barnes,
Washington Post Staff Writer
05-03-10 --
Sometimes, like a spouse, a Supreme Court justice will
hold onto the words of another just so he can throw them
back in the future. . . . So it was last week, in the
court's splintered decision that gave hope to supporters
that a cross erected on public land in the Mojave Desert
might be allowed to stay. Justice Samuel A. Alito Jr.
explained that Congress's proposal for a land swap was
an acceptable way to abide by a lower court's ruling
that the religious symbol could not stand on public
ground. . . . "A well-informed observer would appreciate
that the transfer represents an effort by Congress to
address a unique situation and to find a solution that
best accommodates conflicting concerns," Alito wrote. "I
would not be 'so dismissive of Congress.' " . . . That
last phrase came from Justice John Paul Stevens'
stinging dissent in the case that seems to be defining
the court's term, Citizens United v.
Federal Election Commission. Stevens
castigated the majority in that case for substituting
its judgment for Congress's expertise and for greatly
increasing the financial role corporations may play in
elections.
Judicial Supremacy and the Constitution
We need to reclaim the
Constitution from the Supreme Court
Robert Lowry Clinton,
National Review Online
05-03-10 --
Many Americans are puzzled and angry about the judicial
assault on religion, morality, and common sense that has
been going on for the past few decades. People wonder,
for example, how the First Amendment (which guarantees
freedom of religion as well as separation of church and
state) could possibly require the expulsion of religion
from public life, or outlaw prayers at high-school
football games and graduation ceremonies. To answer
questions like these, one must understand how federal
judges got the power to make such controversial
political decisions in the first place, and how the
judges used that power to bludgeon the American
citizenry into believing that their power was
legitimate. . . . Plato tells us in the Republic that
democracies will always succumb to tyranny. The Framers
of our Constitution certainly troubled themselves to
prevent that from happening here, but the
anti-Federalist who wrote under the name Brutus did not
believe they had gone far enough — especially when it
came to the Supreme Court. Though Alexander Hamilton
described the Court as the “least dangerous branch,”
Brutus thought that the Court would eventually expand
its own power and, in the process, enable the national
government to expand its power at the expense of the
states. . . . That Brutus was something of a prophet is
beyond question. The Supreme Court is certainly more
powerful than it was in the beginning. And so is the
national government. In fact, during the past
half-century, the Court and the country seem to have
embraced the idea of judicial supremacy — the doctrine
that the Court is the exclusive, ultimate authority on
all constitutional issues. But the Constitution is very
clear on the judicial role, and it does not authorize
judicial supremacy. Judicial supremacy is an unwarranted
extension of the power of judicial review — a power that
allows the Court to disregard or invalidate laws in a
limited range of cases. To see this clearly we need to
examine some of the Constitution’s key provisions very
carefully.
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A
Victims-of-Law Associate
|
April 2010
DISCLOSE Act Introduced to Respond to 'Citizens United'
Ruling
Marcia Coyle, The
National Law Journal
04-30-10 --
A congressional response to the Supreme Court's
controversial Citizens United ruling in January moved a
little closer to reality Thursday with the introduction
of the so-called DISCLOSE Act in the House and Senate. .
. . The Court's 5-4 decision in
Citizens United v. Federal Election Commission
lifted a ban on the use of corporate general
treasury funds for independent expenditures in federal
elections. The ruling triggered an
unabated torrent of words between its
corporate supporters and its campaign finance reform
opponents. . . . That verbal battle continued Thursday.
The DISCLOSE Act (Democracy is Strengthened by Casting
Light on Spending in Elections) was introduced in the
House by chief sponsor Rep. Chris Van Hollen, D-Md., and
in the Senate, by chief sponsor Sen. Charles Schumer, D-N.Y.
The lawmakers said they hoped Congress would act on the
legislation by the end of July.
On Supreme Court's Final Argument Day, First Amendment
Dominates
Tony Mauro, The National
Law Journal
04-28-10 --
It was quite a morning for the First Amendment at the
Supreme Court, as the justices handed down a major
church-state decision and heard oral arguments in a case
testing issues of free speech, the right to petition and
the right of privacy. . . . It was a historic morning
for another reason: barring the unforeseen, it was
Justice John Paul Stevens'
final day of hearing oral argument as a justice.
From now until the Court adjourns at the end of June,
the justices will hand down decisions in already-argued
cases but will not sit to hear new arguments. By the
calculation of John Barrett, professor at St. John's
University School of Law, Stevens probably saw his first
oral argument on Oct. 13, 1947, the first day of
arguments when he was a law clerk for Justice Wiley
Rutledge -- more than 62 years ago. . . . The Court's
decision today in
Salazar v. Buono marks another victory
for advocates of government accommodation of religion.
The Court's splintered 5-4 decision had the effect, at
least for now, of upholding the federal statute passed
in 2004 that was aimed at allowing a Christian cross
erected to honor World War I veterans to remain amidst
federal land in California. The law transferred the land
immediately surrounding the cross to a nearby Veterans
of Foreign Wars chapter, but an injunction previously
issued barring the cross remained in effect in spite of
the law.
Inside the High Court: Justice Breyer and Joe Bananas
Laurel Newby, Law.com
04-27-10 --
Another Supreme Court oral argument, another colorful
hypothetical courtesy of Justice Stephen Breyer. During
arguments Monday in a closely watched arbitration case,
Breyer posited a scenario in which a party to a
contract, victimized by Mafioso "Joe Bananas," signs the
agreement "under the influence of alcohol and lies." . .
. The case, Rent-A-Center, West v. Jackson, asks
whether claims that an arbitration agreement is
unconscionable should be decided by a court or by an
arbitrator.
Click here for a complete report on the
arguments from The National Law Journal. . . . Robert F.
Friedman, representing petitioner Rent-a-Center West,
argued that under the Federal Arbitration Act, a court's
power is limited to determinations about the making of
an agreement, not its enforceability. He told the
justices that a claim that a contract is unconscionable
represents a post-formation issue that is not comparable
to claims of duress or fraud in the inducement.
High Court Faces Blockbuster Cases as Stevens'
Retirement Nears
Marcia Coyle, The
National Law Journal
04-26-10 --
This is the final week of argument for the U.S. Supreme
Court with four cases left on the docket and dozens more
still to be decided. The week also marks the last time
Justice John Paul Stevens is expected to hear arguments
with his fellow justices. . . . Stevens is scheduled to
sit for his last oral argument Wednesday in Doe v. Reed,
one of the term's most controversial challenges.
In Doe, the justices will examine a First Amendment
speech and privacy challenge to the release of names on
petitions for a Washington state referendum on repealing
a gay rights law. . . . The following is a rundown of
the term's final four cases. . . .
JUDGE OR ARBITRATOR? . . .
First up today will be Rent-A-Center, West v. Jackson,
a case which, say groups such as Public Citizen and
Public Justice, could "radically alter" access to the
civil justice system. . . . The case asks the justices
whether a federal judge or an arbitrator should decide
if an arbitration agreement is "unconscionable" where
the parties specifically assigned that issue to the
arbitrator.
Corporate Forces Ready Attack Against 'Citizens
United' Legislation
Marcia Coyle, The
National Law Journal
04-26-10 --
Legislation responding to the Supreme Court's
controversial campaign finance decision --
Citizens United v. Federal Election Commission
-- is expected to emerge this week, and corporate
opponents already are on the attack. . . . Rep. Chris
Van Hollen, D-Md., and Sen. Charles Schumer, D-N.Y.,
plan to introduce coordinated bills this week in
response to the January ruling that lifted limits on
corporate expenditures in elections, according to
congressional sources. . . . An updated outline of the
proposed Disclose Act obtained by The National Law
Journal says the legislation will address six major
areas.
No Quiet Retirement
for Justice Souter
He has been a regular
presence at the 1st Circuit this year -- and an active
and penetrating questioner
Sheri Qualters, The
National Law Journal
04-19-10 --
Conventional wisdom held that, once David Souter left
the U.S. Supreme Court, he would retire to a life of
relative seclusion back at his beloved, and decidedly
rustic, Weare, N.H., family home. . . . Not so. Souter
has moved to more modern digs in an upscale Concord, N.H.,
suburb and he's moonlighting on the bench in Boston. In
fact, lawyers appearing before the 1st U.S. Circuit
Court of Appeals are routinely finding Souter on a
panel, peppering them with the kind of penetrating
questions that would send members of the Supreme Court
bar searching for packets of Alka-Seltzer. . . . "It was
an unusually hot bench," said Boston lawyer Harvey
Silverglate of a recent appearance before a panel that
included Souter. "I would say the presence of Justice
Souter on this panel might well have been responsible
for the fact that they had chewed the case over among
themselves."
Breyer and Thomas Discuss High Court Docket, Clerks,
Cameras
Tony Mauro, The National
Law Journal
04-16-10 --
If you're mystified about why the Supreme Court hears so
few cases these days -- 75 or so annually, compared to
twice that number 25 years ago -- Justice Stephen Breyer
says, check back a few years from now. The deficit will
be over, he predicted on Thursday, because of litigation
over the just-passed health care bill. . . . Breyer and
Justice Clarence Thomas were asked about the Court's
shrunken docket at the Court's annual budget hearing
before the House Appropriations Committee's subcommittee
on financial services and general government. . . . It's
an oft-asked question without a clear answer, Thomas
indicated, but Breyer, the former law professor, jumped
in, laughing that "I don't need any evidence. I like
theories." One theory he offered is that the Court's
docket tends to increase a few years after passage of a
major piece of federal legislation -- such as ERISA and
AEDPA in years past. The words of the laws need to be
interpreted, producing litigation that eventually gets
to the Supreme Court. When those cases are resolved, the
docket dips.
Stevens' Departure Leaves Big Shoes to Fill at High
Court
Tony Mauro, The National
Law Journal
|

Justice
John Paul Stevens |
04-12-10 --
See complete coverage of
'The Stevens Legacy' from The National Law
Journal, and visit
Speaking of Stevens, a forum on the justice,
his legacy and the future of the Court. . . . U.S.
Supreme Court Justice John Paul Stevens, a one-time
centrist maverick who became a powerful leader of the
Court's liberal wing, announced his retirement on
Friday, just 11 days short of his 90th birthday. . . .
When Stevens departs at the end of the current term in
late June or early July, he will have been
one of the oldest and longest-serving justices
in American history, appointed by President Gerald Ford
in 1975, and the last justice with World War II service.
. . . Stevens' departure sets up the likelihood of a
contentious confirmation battle this summer, almost no
matter whom President Barack Obama nominates to replace
him.
Speculation in Washington immediately settled
on Solicitor General Elena Kagan and federal appeals
judges Diane Wood and Merrick Garland as the most likely
possible successors, though other names ranging from
Homeland Security Secretary Janet Napolitano to Sen. Amy
Klobuchar, D-Minn., are also mentioned.
Women Reflect on Role at the Supreme Court
Andy Jones, The National
Law Journal
04-12-10 --
Supreme Court Justice Ruth Bader Ginsburg remembers the
pressure she felt when she enrolled at Harvard Law
School in 1954. As one of just nine women in a class of
more than 500, she felt compelled to be aggressive. . .
. "We were accustomed to being in the spotlight," she
said. "We took it upon ourselves to convince our
classmates and teachers that we had everything it takes
to be successful in the legal profession." . . . For
Ginsburg, who transferred to and graduated from Columbia
Law School, the challenges didn't end there. After most
her of her applications for law clerk positions were
turned down, she found work for a judge only after one
of her mentors convinced the judge that her duties as
the mother of a four-year-old would not interfere. She
found out later that the judge had a backup arrangement
with a potential male clerk, in case she failed.
Justice John Paul
Stevens announces his retirement
The
timing of the news is a surprise: Stevens, 89, was expected to wait
until after the Supreme Court's oral arguments conclude this month.
He will leave when the court's term ends in June or July.
By James
Oliphant, LA Times
04-09-10 --
Justice John Paul Stevens, a Republican-appointed justice who
emerged as a leader of the Supreme Court's liberal wing over his
34-year tenure, announced his retirement Friday. . . . Stevens sent
a letter to President Obama on Friday, which read: "Having concluded
that it would be in the best interests of the Court to have my
successor appointed and confirmed well in advance of the
commencement of the Court's next term, I shall retire from active
service."
Senators React to Stevens'
Retirement Announcement
David
Ingram, The National Law Journal
04-09-10 --
The chairman of the Senate Judiciary Committee said he's hoping for
a "thoughtful and civil discourse" while considering a successor for
Justice John Paul Stevens, and the Senate's top Republican said his
party will make a "sustained and vigorous case for judicial
restraint." . . . Those are the earliest, official words Friday from
senators who will decide whether to confirm President Barack Obama's
nominee to succeed Stevens, who
announced his retirement
Friday morning. . . . Sen. Patrick Leahy, D-Vt., who as Judiciary
Committee chairman will oversee the nominee's confirmation hearing,
said he expects Obama to consult with senators from both major
parties as he weighs the vacancy. Last year, Obama spoke with all
members of the Judiciary Committee before announcing Justice Sonia
Sotomayor as his pick
to succeed Justice David Souter.
Chief Justice Roberts Speaks
About Colleagues, Presidents and Architecture
Tony
Mauro, The National Law Journal
04-09-10 --
Chief Justice John Roberts Jr. was in an expansive mood in
Indianapolis Wednesday as he answered audience questions after
giving the
James P. White Lecture
at the Indiana University School of Law - Indianapolis. The lecture
is named for the all-powerful longtime American Bar Association
consultant on legal education. Roberts was in familiar surroundings,
having grown up in Indiana, and he exuded collegiality and
confidence, offering nice things to say about Justice John Paul
Stevens (as a fellow Midwesterner) and Justice Sonia Sotomayor (for
her valued experience as a former trial judge) and, well, at least
nothing negative to say about President Barack Obama. . . . Asked
about his relationship with the two presidents he has served with,
George W. Bush and Obama, Roberts said that whenever he has sat with
either of them at official events, both he and the president were
aware of all they couldn't talk about to each other, so they found
safe topics of conversation -- baseball with Bush, and raising young
kids with Obama. Somewhat bluntly, Robert said justices don't have
much loyalty toward the president who appointed them, and don't
spend time thinking about how their president would want them to
rule in a certain case. After all, he said, justices are there for
life. As for presidents? "They're gone."
O'Connor: More Supreme Court Justices May Skip
State of Union
Larry
Neumeister, The Associated Press, Law.com
04-07-10 --
The first woman to sit on the nation's highest court said Tuesday
she wouldn't be surprised if fewer justices attend State of the
Union addresses after
President Obama criticized a recent ruling at this year's address.
. . . Retired Supreme Court Justice Sandra Day O'Connor told several
reporters at New York Law School that it was never easy to get
justices to attend. . . . "It is not much fun to go because you put
on a black robe and march in and you're seated in the front row,
(you) put your hands in your lap and have no expression on your face
throughout the proceedings. You can clap when the president comes in
and when he leaves and that's it. It's very awkward," she said.
Court Challenge: Replacing Stevens
By Jess
Bravin, Wall Street Journal
04-04-10 --
Supreme Court Justice John Paul Stevens's latest public musings
about retirement highlight the challenge President Barack Obama
faces in choosing a successor for the leader of the court's liberal
minority. . . . Whomever Mr. Obama chooses, Justice Stevens's
departure is likely to diminish the liberals' influence because of
the personal and institutional dynamics that define the Supreme
Court. . . . As the senior associate justice, Justice Stevens speaks
immediately after Chief Justice John Roberts at the court's private
meetings, where the justices follow seniority to decide which cases
to hear and conduct straw votes after oral arguments. He has used
his seniority and influence to shape decisions in cases where he has
been on the opposite side from Chief Justice Roberts. . . . "In a
contentious case, you usually have one [conservative] argument and
then a [liberal] counterargument, and the table is set for the other
seven to speak and vote," said Jeffrey Fisher, a former Stevens law
clerk and now co-director of Stanford Law School's Supreme Court
Litigation Clinic. "They will need a new grounding."
Justice Breyer Says Debate Over Foreign Law Is
Irrelevant
Jesse J. Holland, The
Associated Press, Law.com
04-02-10 --
The debate over whether the Supreme Court should look to
foreign law when interpreting the U.S. Constitution is
ultimately irrelevant because justices can read whatever
they want when they are formulating their opinions,
Justice Stephen Breyer said Wednesday. . . . Breyer said
there are those who complain about the top U.S. court
potentially looking at what other countries do when they
are resolving cases involving American law. . . . "I say
that's a wonderful political debate. It's good, but it's
pretty irrelevant because when I do read things, I can
read what I want," Breyer said. . . . If judges in
another country with similar laws have a similar case, a
judge should be able to consider how they solved it,
Breyer said in remarks at the
Johns Hopkins University Paul H. Nitze School of
Advanced International Studies.
|

A
Victims-of-Law Associate |
|
March 2010
Was Justice Kennedy Criticizing Obama Policy?
Tony Mauro, The National
Law Journal
03-31-10 --
The dialogue between Supreme Court justices and the
Obama administration continues. During oral argument
Tuesday in
Dillon v. United States, Justice Anthony
Kennedy pursued a line of questions that would be hard
to interpret as other than critical of Obama
administration policy (and the policy of previous
administrations too) on commutations and pardons. . . .
The case asks whether federal sentencing judges can
reduce the prison terms of defendants like Percy Dillon
by an amount greater than what the U.S. Sentencing
Commission called for when it reduced the sentences for
certain crack cocaine offenders in 2007. The justices
were struggling with whether reducing his sentence would
be a resentencing, a modification of the first sentence,
or even something akin to a commutation.
Indians Try to Keep Cases Away From High Court
Marcia Coyle, The
National Law Journal
03-30-10 --
The Supreme Court has not granted review of any Indian
law cases in the current term, but you won't hear
complaints from the
Tribal Supreme Court Project. . . . Most
lawyers work hard to keep their lower court victories
out of the Supreme Court, but sometimes, fearing hostile
justices, they look to avoid the high court even when
they have lost. . . . That's the position in which the
tribal project, a joint venture of National Congress of
American Indians and the Native American Rights Fund,
finds itself today as it painfully considers its
zero-for-five record before the Roberts Court. . . . "We
view this Court as not favorable on our issues,"
explained Richard Guest, senior staff attorney at the
Native American Rights Fund.
Breyer and Scalia Take Their Road Show Inside
Tony Mauro, The BLT: Blog
of Legal Times
03-24-10 --
Supreme Court Justices Antonin Scalia and Stephen Breyer
have nearly perfected the stylized debate they have from
time to time in front of audiences around the country --
such as their
appearance last October at the University of
Arizona. With a mix of bluster and bravado and
occasional filibustering, the two present their
conflicting views of statutory and constitutional
interpretation and the role of judges, to the amusement
and also, no doubt, the mystification of those
listening. . . . Last night, Scalia and Breyer reprised
their debate before a hometown crowd at the Supreme
Court itself, in a discussion sponsored by the
Supreme Court Historical Society. The only
intermediary was moderator James Duff, director of the
Administrative Office of the U.S. Courts. Not usually a
man of many words, Duff said even fewer than normal in
the face of the avalanche of verbiage from the justices.
More than an hour into the discussion, Duff dryly noted
he was only on his third question. Politely, he did not
also note that the justices had pretty much ignored his
questions anyway.
White House Said to Have Short List Ready for Justice
Stevens' Slot
Tony Mauro, The National
Law Journal
03-22-10 --
The White House appears ready to move quickly on a
nominee for the U.S. Supreme Court should Justice John
Paul Stevens decide to retire before the end of the
term. . . . The vetting of the short list of candidates
was already largely done last year when President Barack
Obama picked Sonia Sotomayor to replace David Souter,
and knowledgeable sources say the president is likely to
work off the same dossiers, now being updated. The list
includes Solicitor General Elena Kagan, appeals court
Judges Diane Wood and Merrick Garland, and Homeland
Security Secretary Janet Napolitano. . . . Buzz about a
possible retirement picked up again with
the release last week of a widely read
interview of Stevens by
The New Yorker's Jeffrey Toobin. In the March
15 article, Stevens seemed to hedge on his plans,
pledging only that "I will retire within the next three
years" and saying that he'd be able to call in enough
law clerks at the last minute this summer to continue in
office another term. One theory circulating on Capitol
Hill to explain his possible delay: Knowing that
confirmation for his successor will be contentious,
Stevens may want to give Congress time off from the
angry divisiveness of the last year.
Supporters Rally
Behind Law School in High Court Fight With Christian
Group
By Karen Sloan | The
National Law Journal | New York Lawyer
03-19-10 --
Law school organizations are lining up behind the
University of California Hastings College of the Law in
the upcoming Supreme Court argument pitting the school
against the Christian Legal Society. . . . The
Association of American Law Schools (AALS) and the
Society of American Law Teachers (SALT) have filed
amicus briefs in Christian Legal Society v. Martinez,
which is scheduled for argument on April 19. The
American Bar Association also joined the fray this week
with an amicus brief in support of the law school. . . .
The case stems from a 2004 decision by Hastings to deny
the Christian Legal Society funding and status as a
registered student organization on the grounds that it
excludes gays and lesbians. Society members must sign a
statement of faith that the group's national chapter has
interpreted to bar people with a "sexually immoral
lifestyle." Hastings said the Christian Legal Society
violates the school's non-discrimination policy
Supreme Court Unveils
New Web Site Design
Tony Mauro, The National
Law Journal
03-19-10 --
The Supreme Court's long-awaited Web site redesign was
unveiled Thursday at
supremecourt.gov,
bringing the site into the 21st century only a few years
late. . . . The new site is visually appealing, with a
rotating series of photos of the Court building, and
iconography drawn from the Court's architectural
features. It has an easy search function on its main
page, which also displays the Court's oral argument
calendar. Several important pieces of information about
the Court that used to take several clicks to get to are
now brought forward, for easier access. . . . The
Court's 10-year-old Web site had been criticized as
clunky and outdated by the
Sunlight Foundation
and others, especially in comparison to the high courts
of other nations that have Web sites with virtual tours
and material for students, among other updated features.
From a quick survey, it does not appear that the Supreme
Court's new site has much new or different content, but
what is there is more accessible and reader-friendly.
The Court's announcement of the new site, made by public
information officer Kathy Arberg, also indicates the
site is a work in progress, with new features to be
added over time. We'll have more on the redesign later.
High Court Justices, Legal Luminaries Debate
Shakespeare's 'Henry V'
Andy Jones, The National
Law Journal
03-18-10 --
Supreme Court Justice Ruth Bader Ginsburg, sitting as
chief justice for a change, invoked law beyond the U.S.
Constitution on Tuesday night. . . . First, she analyzed
French succession law, or Salic law, in a case involving
the legitimacy of English King Henry V's claim to the
French crown. . . . Former U.S. Solicitor General
Gregory Garre argued that Henry V did not have a
legitimate claim to the French throne because he traced
his claim back six generations through his mother,
instead of his father. . . . Ginsburg countered by
applying an even older law. Quoting the Book of Numbers,
she stated that Henry had a legitimate claim because he
was the son of a king.
Virginia Thomas' Ethics Check
Tony Mauro, The BLT: The
Blog of Legal Times
03-16-10 --
The fickle D.C. spotlight seems to have turned to
Virginia Thomas, the wife of Supreme Court Justice
Clarence Thomas. In her new self-described role as a
"social entrepreneur," she has launched Liberty Central,
a new
Web site that aims to serve "the big tent of
the conservative movement" with educational materials
and as a forum to help "new citizen activists." . . .
We wrote about her effort here
on Feb. 23, but in recent days it has garnered more
attention as a possible cause for conflict issues for
her husband. NPR's Nina Totenberg reported on it
here this morning, suggesting that ethical
concerns might arise if corporations or individuals with
cases before the high court contribute to her 501(c)4
organization. . . . In a statement reported by NPR,
Virginia Thomas said, "I did not give up my First
Amendment rights when my husband became a justice of the
Supreme Court. My involvement with LibertyCentral.org
has been vetted by the Supreme Court ethics office and
Liberty Central's own board of directors. There have
been many other judges who have spouses that are
politically active."
Christian Group Joins Campaign on Pleading Standard
David Ingram, The
National Law Journal
03-16-10 --
The conservative
Alliance Defense Fund is lining up in
opposition to a pair of U.S. Supreme Court decisions
that changed the standard for filing most civil lawsuits
-- a move that aligns the Christian litigation group
with some unlikely allies. . . . Democratic lawmakers
have been pushing for Congress to override last year's
decision in
Ashcroft v. Iqbal, as well as a similar
decision in
Bell Atlantic v. Twombly in 2007. They
have the support of a
coalition of liberal groups, including
consumer advocates, trial lawyers and civil rights
organizations, all of whom say it's become more
difficult to avoid having their claims thrown out of
federal court prior to discovery. On the other side,
business groups have supported the rulings. . . . In a
letter to lawmakers, Alliance Defense Fund senior
counsel Gary McCaleb writes that his group represents
both plaintiffs and defendants, so its objection is not
that bringing a lawsuit has become more or less
difficult. "Rather," he writes, "our concern is that
vague, malleable rules are bad news when it comes to
orderly, reasoned processes."
After 'Citizens United,' Companies Hold Off on Political
Ads
David Hechler, Corporate
Counsel
03-15-10 --
After the Supreme Court ruled that companies can spend
freely on political advertising campaigns, the immediate
reaction from some quarters was dire. . . .
Good-government advocates, liberal commentators, even
the president
warned that a flood of corporate money would
overwhelm elections and subvert democracy. But
the real impact of the decision is likely to be much
less extreme, according to in-house attorneys and
election law experts. Few companies are looking for new
ways to spend money in these tight times. Plus, many
businesses -- especially large corporations -- are aware
of the dangers of appearing excessively partisan. . . .
In its Jan. 21 decision in
Citizens United v. Federal Election Commission
(pdf), the Court said that companies can spend as much
as they wish on "independent expenditures" -- that is,
on political ads that aren't coordinated with
candidates' own campaigns. The 5-to-4 majority based its
ruling on the proposition that corporations enjoy many
of the same rights as individuals, including First
Amendment freedoms.
Justice's wife launches 'tea party' group
The nonprofit run by
Virginia Thomas, wife of Supreme Court Justice Clarence
Thomas, is likely to test notions of political
impartiality for the court.
By Kathleen Hennessey,
Los Angeles Times
03-14-10 --
As Virginia Thomas tells it in her soft-spoken,
Midwestern cadence, the story of her involvement in the
"tea party" movement is the tale of an average citizen
in action. . . . "I am an ordinary citizen from Omaha,
Neb., who just may have the chance to preserve liberty
along with you and other people like you," she said at a
recent panel discussion with tea party leaders in
Washington. Thomas went on to count herself among those
energized into action by President Obama's "hard-left
agenda." . . . But Thomas is no ordinary activist. . . .
She is the wife of Supreme Court Justice Clarence
Thomas, and she has launched a tea-party-linked group
that could test the traditional notions of political
impartiality for the court. . . . In January, Virginia
Thomas created
Liberty Central Inc., a nonprofit lobbying
group whose website will organize activism around a set
of conservative "core principles," she said.
Justice Stevens Keeping "Options Open" on Retirement
Tony Mauro,"The BLT: The
Blog of Legal Times."
03-14-10 --
In a New Yorker interview set for publication tomorrow,
Supreme Court Justice John Paul Stevens said, "I still
have my options open" about whether to retire from the
Court at the end of this term. Stevens told writer
Jeffrey Toobin that he would decide on his plans in
about a month. . . . Ever since Stevens confirmed to the
press last fall that he had hired only one law clerk for
the 2010-2011 term, it has become conventional wisdom
that Stevens, who turns 90 next month, would be retiring
soon. (Retired justices are allowed one law clerk, while
sitting justices can hire four.) Stevens' new comments
to the New Yorker seem to hedge that prediction
somewhat. Toobin quoted Stevens as saying, "You can say
I will retire within the next three years. I'm sure of
that."
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White House fires back at Chief Justice Roberts: We
judge Supreme Court slap fair
By Kenneth R. Bazinet ,
Daily News Washington Bureau
03-12-10 --
Chief Justice John Roberts is getting quite a lesson in
First Amendment law - from legal scholar Barack Obama. .
. . The White House indicated the chief justice
shouldn’t expect any apologies in response to Roberts’
complaint that it was "very troubling" that Obama used
the Jan. 27 State of the Union address to cite his
disagreement with a 5-4 Supreme Court ruling in favor of
unbridled corporate and special interest campaign
contributions. . . . Roberts was sitting front and
center when Obama slammed the court’s decision. . . .
Spokesman Robert Gibbs told reporters today that Obama
agrees with a majority of Americans who believe Roberts
and the other conservatives on the court blew the call
on corporate campaign finance — and he wanted the high
court to know it. The State of the Union gave Obama the
perfect venue to state his opinion.
Chief Justice Puts State of the Union Speech Back in the
Spotlight
Roberts' response to
question during an appearance at an Alabama law school
re-ignites controversy over 'Citizens United' ruling and
State of the Union address
Tony Mauro, The National
Law Journal
03-11-10 --
Six of the nine Supreme Court justices attended the
State of the Union address in January, but don't be
surprised if that number goes way down next year, in
light of comments made by Chief Justice John Roberts Jr.
in Alabama on Tuesday. . . . Roberts spoke to University
of Alabama Law School students in Tuscaloosa. During a
question-and-answer period, he was asked about
the rare episode at this year's address, in
which President Barack Obama criticized the
Court's campaign finance ruling Citizens United v.
Federal Election Commission, with the
justices sitting in front of him. Senators sitting near
the justices stood and cheered Obama's remarks while the
justices, as is their custom, sat impassively. Only
Justice Samuel Alito Jr.
registered mild disapproval, furtively shaking his
head and appearing to mouth the words "not true."
Roberts: Scene at State of Union 'Very Troubling'
AP, Fox News
03-10-10 --
U.S. Chief Justice John Roberts said Tuesday the scene
at President Obama's first State of the Union address
was "very troubling" and that the annual speech to
Congress has "degenerated into a political pep rally." .
. . U.S. Chief Justice John Roberts said Tuesday the
scene at President Obama's first State of the Union
address was "very troubling" and that the annual speech
to Congress has "degenerated into a political pep
rally." . . . Responding to a University of Alabama law
student's question about the Senate's method of
confirming justices, Roberts said senators improperly
try to make political points by asking questions they
know nominees can't answer because of judicial ethics
rules. . . . "I think the process is broken down," he
said. . . . Obama chided the court for its campaign
finance decision during the January address, with six of
the court's nine justices seated before him in their
black robes. . . . Roberts said he wonders whether
justices should attend the address.
Poll Shows Public Support for Cameras at the High Court
Tony Mauro, The National
Law Journal
03-09-10 --
A new public opinion poll being released today found
that more than 60 percent of voters think that
televising U.S. Supreme Court proceedings would be "good
for democracy." . . . Only 26 percent said televising
oral arguments would undermine the Court's "dignity or
authority," according to the PublicMind poll. . . .
Sentiment in favor of cameras in the high court runs the
highest among liberals (71 percent) and voters between
ages 18 and 29 (69 percent), according to the survey.
Two-thirds of Democrats believe that televising the
Court is good for democracy, while 53 percent of
Republicans said the same thing. . . . The poll also
indicates that more than half of voters believe that
Supreme Court justices, who currently enjoy life tenure,
should be limited to 18 years on the bench. . . .
PublicMind, a research project of Fairleigh
Dickinson University in New Jersey, conducted the
telephone poll of 1,002 registered voters in late
January and early February.
A bipartisan push to clean up the Supreme Court's mess
By E.J.
Dionne Jr., Op Ed The Washington Post
03-08-10 --
In a city where the phrase "bipartisan initiative" is becoming an
oxymoron, the urgency of containing the damage the Supreme Court
could do to our electoral system creates an opportunity for a rare
convergence of interest and principle. . . . At issue is the court's
astonishingly naive decision in January that allows unlimited
corporate spending to influence elections. Its
5 to 4 ruling in the Citizens United case was a shocking
instance of judicial overreach and reflected an utter indifference
to how politics works. . . . Liberals and Democrats are already
mobilizing to fight against Citizens United because they fear the
impact of unconstrained corporate activity on elections and
legislation. But conservatives and Republicans should also be
alarmed that this decision could encourage politicians to extort
campaign spending from businesses. Is it really so hard to imagine a
congressional leader quietly approaching a business executive and
suggesting that unless her company invested heavily in certain key
electoral contests, this regulation or that spending program might
be changed at the expense of her enterprise?
High Court: Does religion still matter?
By Robert Barnes,
Washington Post Staff Writer
03-08-10 --
Here's the kind of question that might violate the rules
you learned about proper dinner conversation: Does
President Obama's next Supreme Court nominee need to be
a Protestant? . . . If Justice John Paul Stevens decides
to call it a career after he turns 90 next month, the
Supreme Court would for the first time in its history be
without a justice belonging to America's largest
religious affiliations. . . . Perhaps that would mean
only that religion is no longer important in the mix of
experience and expertise that a president seeks in a
Supreme Court nominee. There was a time, of course, in
which there was a "Catholic seat" on the court, followed
in 1916 with the appointment of the court's first Jew.
The days when one of each seemed sufficient are long
over. . . . Catholics became a majority of the
nine-member court in 2006 with the confirmation of
Justice Samuel A. Alito Jr. Justice Sonia Sotomayor made
it six last summer. And the other two justices besides
Stevens are Jewish.
At the Supreme Court, an Hour
Can Last 66 Minutes
Tony
Mauro, The National Law Journal
03-04-10 --
The late Chief Justice William Rehnquist was usually a stickler
during Supreme Court oral arguments, cutting lawyers off in
mid-syllable when the red light went on at the end of their allotted
time. In his later years he'd occasionally ease up and let a lawyer
go on for a few seconds if a barrage of questions from justices had
dominated their rebuttal time, but usually Rehnquist was strict. . .
. Much to the relief of advocates, John Roberts Jr. -- Rehnquist's
successor and one-time law clerk -- has relaxed Rehnquist's
standards. It's not uncommon for him to let lawyers finish their
thoughts after the red light goes on, and he'll add extra rebuttal
time if he feels it's needed for fairness. Roberts' different
approach was on display Wednesday during the dense and complex
arguments in Samantar v. Yousuf, which asks whether former officials
of foreign governments are immune from lawsuits under the Foreign
Sovereign Immunities Act.
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Supreme Court Stats Reveal Impending Milestones
for Justice Stevens
Tony
Mauro, The National Law Journal
02-26-10 --
Supreme Court Justice John Paul Stevens, who turns 90 on April 20,
is closing in on some other major milestones. In about three months,
Stevens, who joined the Court in 1975, will pass "the great chief
justice" John Marshall in terms of length of service, and a month
after that he'll pass Justice Stephen Field's length of tenure as
well, lagging behind only William O. Douglas. It would take Stevens
about two more years in office to catch up to Douglas' record tenure
of 36 years, six months and 25 days. . . . All these statistics are
now available at the ever-useful
Oyez Project, as valuable an online resource on the high
court as can be found. The length-of-service numbers and other data
will be updated daily for the nine sitting justices, so you'll be
able to track when Stevens leaps ahead of long-serving predecessors.
Does Justice Thomas' Silence Thwart Advocacy?
It's been four years since Clarence Thomas asked a question -- some
say that's too long
Tony
Mauro, The National Law Journal
02-22-10
-- Four years ago, South
Carolina Assistant Deputy Attorney General Donald Zelenka was about
to wrap up his oral argument before the U.S. Supreme Court when he
heard an unfamiliar voice. . . . Justice Clarence Thomas, who almost
never asks questions, was asking him one, about the standard the
trial court judge in Holmes v. South Carolina used for allowing
certain evidence into the case. . . . Zelenka didn't give himself
time to be surprised. "I knew there was something I needed to
clarify immediately," he said. Question answered, Zelenka soon sat
down. . . . And that exchange on that day, Feb. 22, 2006, marked the
last time Thomas asked a question during oral argument. In the four
years since, the only time his voice has been heard from the bench
is when he announces an opinion he has written.
Are Citizens Uniting Against Citizens United?
Posted
by Tony Mauro, Blog of the Legal Times
02-18-10 --
Critics of the Supreme Court's January ruling in Citizens United v.
FEC are pointing happily to a poll released yesterday that indicates
widespread public opposition to the decision and its green light for
more corporate and union expenditures in election campaigns. . . .
More than three-fourths of Republicans and Democrats alike voiced
criticism of the ruling, according to this
story on the poll. In addition, 72 per cent of
respondents favor action by Congress to curb the effect of the
ruling. . . . Fred Wertheimer, president of Democracy 21, said
the polling shows the Court is out of touch with American public
opinion about campaign money. "The Post poll demonstrates that the
American people fully understand and overwhelmingly reject what the
Court has done," said Wertheimer in a statement. "It’s hard to
conceive of another Supreme Court ruling in which five Justices have
found themselves so out of touch with the American people."
Scalia Opines on Right to Secede in Letter to Screenwriter
By Debra Cassens
Weiss, ABA Journal
02-17-10 --
Do states have a right to secede from the union? The issue is
generating some debate on blogs after Texas Gov. Rick Perry told a
tea-party rally that Texans could get so fed up with big government
that they may some day seek that option. . . . It turns out that
Justice Antonin Scalia has weighed in with his views, in a letter to
a legal blogger’s screenwriting brother. Scalia tackled the
constitutional question (there is no right to secede, he says) as
well as the possibility of a Supreme Court showdown over the issue
(don’t count on it). . . . Lawyer Eric Turkewitz explained the
genesis of the letter at his New
York Personal Injury Law Blog. Turkewitz says his
brother, Dan, wrote to all the justices on the U.S. Supreme Court
asking about the right to secede. Scalia was the only one to reply.
. . . The screenwriter was working on a political farce in 2006
about Maine seceding from the United States, and he envisioned a
Supreme Court showdown. . . . Justice Scalia didn’t side with Maine.
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Justices Wade Back Into Terror Cases
High court tackles First Amendment challenge to material-support ban
Marcia
Coyle, The National Law Journal
02-16-10 --
More than half a century later, Ann Fagan Ginger has no intention of
forgetting the pain and toll of the McCarthy era. Fear and suspicion
of communism forced her husband's resignation from a coveted Harvard
University faculty position, led her to give birth shortly afterward
as a hospital charity patient and eventually contributed to Ray
Ginger's death from acute alcoholism. . . . "It ruined marriages,
careers and relationships of all kinds," said the 84-year-old
lawyer-activist, who founded and directs the
Meiklejohn Civil Rights Institute in Berkeley, Calif. . .
. The fact that so many people have forgotten that period and so
many youths have no knowledge of it, she said, spurred her to sign
onto an amicus brief in a U.S. Supreme Court case raising the
specter of a similar era -- one driven by fear of terrorism. . . .
Ginger is one of a number of McCarthy-era victims and their
survivors supporting the First Amendment speech challenge to a
federal law prohibiting "material support" of designated terrorist
organizations. . . .
Holder v. Humanitarian Law Institute, to be argued
Feb. 23, draws the Supreme Court back into the war on terrorism
following its most recent ruling in 2008 in
Boumedienne v. Bush.
Justice Breyer analyzes rule of law in Yale talk
By Mary
E. O’Leary, Register Topics Editor
02-16-10 --
U.S. Supreme Court Justice Stephen G. Breyer, in the first of two
days of talks at the Yale Law School, praised the divisive Bush v.
Gore case in 2000 as one of the best examples of the rule of law in
this country. . . . Breyer was part of the minority in the 5-4
decision that voted to stop the recount of ballots in Florida that
threw the 2000 election to Republican George Bush over Democrat Al
Gore. . . . Breyer, who is one of several justices who have stopped
by the Ivy League school in recent years, said the court should not
have taken the case. Since it did, it should have dismissed it after
considering it. Ultimately, Breyer said the court should have let
the recount continue. . . . But with emotions running high on both
sides in a close election, Breyer said there never was a worry there
would be mobs in the street or a revolution after the Supreme Court
made its ruling. . . . “That characteristic is a national treasure,”
Breyer said.
Talk Grows of 2 Openings at High Court
White House reportedly preparing for more Supreme Court exits
Tony
Mauro, The National Law Journal
02-16-10 --
If two U.S. Supreme Court vacancies materialize this spring, they
may have the same impact on the nation's capital that two heavy
snowfalls have had this month: gridlock, paralysis and frayed
tempers. . . . Stories raising the possibility that justices John
Paul Stevens and Ruth Bader Ginsburg may leave at roughly the same
time have suddenly become part of the Washington conversation,
already fueling nightmare scenarios of dragged-out battles between a
weakened President Barack Obama and a fiercely contentious Senate
over possible replacements. . . . "Republicans are out for blood,
and Democrats are out for a fight," said Steve Wermiel, professor at
American University Washington College of Law. "We're close to a
peak of partisan wrangling in Washington."
Justice Kennedy on Prisons
New York
Times Editorial
02-15-10 --
Justice Anthony Kennedy spoke out against excessive prison sentences
this month in California, criticizing the state’s deeply misguided
three-strikes law. It was a welcome message, delivered with unusual
force. Much of the blame for the law, however, lies with the Supreme
Court, which upheld it in a decision on which Justice Kennedy cast
the deciding vote. . . . The overall tone of Justice Kennedy’s
address to the Pepperdine University School of Law was “courtly and
humorous,” according to The Los Angeles Times. He turned more
serious, however, on the subject of incarceration. Sentences in the
United States are eight times longer than those handed out in
Europe, Justice Kennedy said. California has 185,000 people in
prison at a cost of $32,500 each per year, he said. He urged voters
and elected officials to compare taxpayer spending on prisons with
spending on elementary education.
Law School takes part in
Court case
Supreme Court Litigation Clinic to represent petitioner in Abbott v.
United States
Shirley
Park, Cavalier Daily Associate Editor
02-10-10 --
The U.S. Supreme Court agreed Thursday to hear Abbott v. United
States of America, in which the Supreme Court Litigation Clinic of
the University Law School will represent the petitioner, Kevin
Abbott. . . . With the help of the Supreme Court Litigation Clinic,
Abbott is contesting a sentence he received from the U.S. Court of
Appeals, arguing that he unlawfully received an excess of
consecutive minimum sentences, University Law School Prof. Daniel
Oritz said. . . . Abbott was arrested and prosecuted for a drug
trafficking crime; he was given an additional five years for
possessing a gun and 15 more years for possessing a firearm as a
convicted felon, Ortiz said.
Bygone days color justices'
arguments
Supreme Court members' quips and questions recall a time before
reality TV, YouTube and speed dating
By Joan
Biskupic, USA TODAY
02-10-10 --
During a Supreme Court argument session this term, Justice Stephen
Breyer, 71, joked as he struggled to recall some elements of
contract law, "probably I am way out-of-date." . . . The lawyer at
the lectern, Seth Waxman, 58, quipped in response, "I very much
doubt that you are way out-of-date. If you are, I shudder to think
where I am." . . . Supreme Court oral arguments this term have
offered a series of reminders of how old-fashioned this court is and
how whimsically dated its reference points can be. The justices'
hypothetical questions in recent cases have recalled an era, when,
say, men sported fedoras, listened to old-time radio shows and kept
Dale Carnegie's 1936 tome on winning friends and influencing people
on the shelf. . . . The average age of the nine justices — who range
from 55 to nearly 90 — is about 70. Yet the tenor of oral arguments
also reflects the sensibility of the bookish types who end up at the
marble cloister. As a group, the justices — and many of the lawyers
who argue before them — like history and classical music and were
baffled by all the fuss when a case involving Anna Nicole Smith,
then a reality-show star, came before them in 2006.
Hillary's eligibility challenged
in Supreme Court
Can
political branch evade 'clear and precise language' of Constitution?
By Bob
Unruh, © 2010 WorldNetDaily
02-09-10 --
A brief filed with the U.S. Supreme Court by
Judicial Watch,
which investigates and prosecutes government corruption, questions
whether members of the "political branches of the government" can
"evade the clear and precise language of a provision of the
Constitution through the use of a legislative 'fix.'" . . . The
dispute is over former Sen. Hillary Clinton's eligibility to be
secretary of state. . . . The U.S. Constitution, Article I, section
6, clause 2, provides: "No senator or representative shall, during
the time for which he was elected, be appointed to any civil office
under the authority of the United States, which shall have been
created, or the emoluments whereof shall have been [increased]
during such time." . . . The case brought on behalf of a career
government employee outlines how during Clinton's tenure in the U.S.
Senate, the salary for the secretary of state was raised to
$186,600, then to $191,300, and then again to $196,700.
Justice Thomas, on the Road Again
Tony
Mauro, The National Law Journal
01-05-10 --
One of the side benefits of the Supreme Court's long winter recess
is that justices head out of Washington for speaking engagements,
and Justice Clarence Thomas in particular gets to prove yet again
that he is incapable of giving a dull speech. . . . In appearances
Tuesday at Stetson University College of Law in Gulfport, Fla., and
then Thursday morning at the University of Florida Levin College of
Law in Gainesville, Thomas fielded questions from students, quoted
the likes of Garth Brooks and Clint Eastwood, revealed his movie
preferences and said he had "zero tolerance" for mistakes or
tardiness from his law clerks. . . . At UF Thursday morning, he was
even asked if he'd like to ride the circuits as justices did long
ago. "I'd love to," he said with a laugh. "I have my RV!" Thomas,
who often spends his summers on the road in his RV, said he'd like
the idea of riding circuits even better if he could target college
towns in the south during football season.
Democrats Push for Congressional Response to 'Citizens United'
David
Ingram, The National Law Journal
01-04-10 --
Congressional Democrats are continuing to gather ideas for limiting
corporate involvement in elections as they prepare legislation
responding to
last month's U.S. Supreme Court decision in
Citizens United v. FEC (pdf). . . . Harvard Law
Professor
Laurence Tribe, headlining a hearing before a House
Judiciary subcommittee, laid out a slew of proposals he thinks
Congress should take up. They include requiring shareholder
preapproval for corporate spending, limiting spending by federal
government contractors, and allowing states to pass laws prohibiting
spending by out-of-state corporations. . . . Witnesses called by the
subcommittee's Democratic majority warned that corporations will now
be able to influence lawmakers simply by threatening to use their
general treasuries.
Briefer Briefs Ahead for Supreme Court
Tony
Mauro, The National Law Journal
01-04-10 --
Chief Justice John Roberts Jr. used to write full-length Supreme
Court briefs for a living, as a Hogan & Hartson partner. But now, as
a consumer of such briefs, he's become something of a critic, once
famously stating that he never read a brief that was so good that he
wished it were longer. . . .
New rules (pdf) adopted by the Court last month set to
take effect Feb. 16 will guarantee that Roberts and his colleagues
won't get longer briefs, at least in one category. One of the
changes will require lawyers to keep their reply briefs at the
merits stage to 6,000 words instead of the previous limit of 7,500.
In an explanatory comment on the change, the clerk of the Court said
the Court was returning to a length close to what it had required in
earlier years when it used page limits. "Experience has shown that
the increased volume limit has allowed for the filing of some briefs
that repeat previous arguments rather than address only new material
presented in intervening briefs." In other words, lawyers have been
padding their briefs.
Bill Moves to Allow Supreme Court Review of Courts-Martial
Decisions
Marcia
Coyle, The National Law Journal
02-03-10 --
The House Judiciary Committee has approved a bill that would expand
the jurisdiction of the Supreme Court, allowing it to review
petitions filed by military service members challenging
courts-martial decisions.
Under current law, a service member
is barred from petitioning the high court if the U.S. Court of
Appeals for the Armed Forces has refused to review his or her
court-martial appeal or has denied a writ for extraordinary relief.
The only exception is when someone is sentenced to death. In
contrast, the government has the right to petition the justices in
any case referred to the CAAF. . . . Committee members, by voice
vote last week, sent the full House the
Equal Justice for Our Military Act of 2009, sponsored by
Rep. Susan Davis, D-Calif. The bill is supported by the American Bar
Association, the National Association of Criminal Defense Lawyers,
the District of Columbia Bar Association, the Fleet Reserve
Association, the Jewish War Veterans Association, the Military
Officers Association of America and the National Institute for
Military Justice.
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January 2010
Obama, Alito Dis Each Other in Free Speech Brawl
Commentary by Ann Woolner, Bloomberg
01-29-10 --
Whether you think it outrageous or
terrific that the U.S. Supreme Court last week ruled corporate funds
can pay for political ads, or if you don’t much care, there is humor
to be mined in a flap the decision created this week.
. . .
The case is about free speech in
politics, right? But when President Barack Obama slammed the
decision during his State of the Union speech, conservatives (who
mostly like the ruling) ripped him for speaking so freely.
. . .
Free speech has its limits, even in
politics, it would seem. . . .
And yet, following a
Republican tradition, ex-President George W. Bush talked down the
federal bench all the time. It was a campaign theme for him to trash
“activist judges.” . . .
Apparently it’s fine for
presidents or candidates to excoriate rulings when the justices
aren’t in the same room. . . .
But it’s an appalling breach
of decorum for the president to do it right to the justices’ faces.
Never before had a president used this constitutionally mandated
and, now, nationally televised speech to do so. Why, it’s downright
rude.
Reactions split on Obama's remark,
Alito's response at State of the Union
Alito v. Obama
By
Robert Barnes, Washington Post Staff Writer
01-29-10 --
President Obama called out the Supreme Court. Justice
Samuel A. Alito Jr. winced at the accusation and muttered, "Not
true." And then official Washington and the legal community went to
the tape, and examined it frame by frame. . . . What they saw --
either a president gratuitously criticizing the silent black-robed
justices sitting in front of him or a conservative jurist
injudiciously reacting to a man who had voted against his
confirmation -- depended on from where they started. . . . "Rude,"
Sen. Orrin G. Hatch (R-Utah) said of the president.
"Inappropriate" was the verdict on Alito from
Sen. Russell Feingold (D-Wis.). . . . And legal experts
said they had never seen anything quite like it, a rare and
unvarnished showdown between two political branches during what is
usually the careful choreography of the State of the Union address.
. . . "I can't ever recall a president taking a swipe at the Supreme
Court like that," said Lucas A. Powe Jr., a Supreme Court expert at
the University of Texas law school. The closest precedent most could
find was President Franklin D. Roosevelt's criticism of the court in
his 1937 address to Congress.
Justice Alito's State of the Union Dissent
Tony
Mauro, The National Law Journal
01-28-10 --
In case you missed it, here's a video clip that shows Supreme Court
Justice Samuel Alito's reaction to President Barack Obama's remarks
about the
Citizens United v. FEC decision Wednesday night: . .
. As you'll see, Alito started shaking his head while Obama was
talking about the Court reversing a "century of law" and in so doing
will "open the floodgates" of corporate spending in campaigns. If it
was the first part of the sentence Alito objected to, it could be
argued that he has a point: the Court did not go back a century to
overturn the Tillman Act of 1907, which bars direct corporate
contributions to candidates. Instead, the Court struck down statutes
of more recent vintage affecting independent expenditures -- legally
different from direct contributions -- by corporations.
Justice Stevens Renews Criticism of Gerrymandering
By Jess
Bravin, Wall Street Journal
01-29-10 --
Supreme Court Justice John Paul Stevens expressed concern about
court rulings that give politicians wide leeway in drawing
election-district lines, saying it worsens partisan divides in
government. . . . Justice Stevens made the remarks in an interview
earlier this month, shortly before another prominent ruling on
election law in which he was on the losing end. On Jan. 21, he filed
a 90-page dissent, joined by three other liberal justices,
criticizing the conservative five-justice majority's decision
striking down limits on corporate and union political spending. . .
.
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John Paul Stevens |
Justice Stevens also dissented from
a 2004 ruling that said voters don't have the right to challenge
district lines drawn by state legislatures with the aim of
benefiting a particular political party. Voters may challenge
district lines only if racial discrimination was involved, the court
said. . . . At the time, Justice Stevens wrote that such
redistricting violates the Constitution's equal-protection guarantee
"if the only possible explanation for a district's bizarre shape is
a naked desire to increase partisan strength."
Justice Stevens on How He Joined the Court
By Jess
Bravin, Wall Street Journal
01-29-10 --
Justice John Paul Stevens, nearing his 90th birthday in April,
reminisced in a recent interview about the Republican senator who
helped him land on the Supreme Court, where he is now senior
associate justice and leader of the court's liberal wing. . . . The
future justice knew Charles Percy, later a senator from Illinois,
when they attended the University of Chicago together and graduated
in 1941. . . . The interview was part of a program devoted to Mr.
Percy, in whose name a new public-affairs research grant has been
endowed at the University of California, Berkeley. Mr. Percy, 90,
has Alzheimer's disease.
Former Justice O’Connor Sees Ill in Election Finance Ruling
By Adam
Liptak, New York Times
01-26-10 --
Justice Sandra Day O’Connor did not sound happy on Tuesday about the
Supreme Court’s big campaign finance decision last week. It
repudiated a major part of a ruling Justice O’Connor helped write
before her retirement from the court in 2006, and it complicated her
recent efforts to do away with judicial elections. . . . “Gosh,” she
said, “I step away for a couple of years and there’s no telling
what’s going to happen.” . . . Justice O’Connor criticized the
recent decision,
Citizens United v. Federal Election Commission, only
obliquely, reminding the audience that she had been among the
authors of
McConnell v. Federal Election Commission, the 2003
decision that was overruled in large part on Thursday. . . . “If you
want my legal opinion” about Citizens United, Justice O’Connor said,
“you can go read” McConnell. . . . Justice O’Connor gave her
thoughts at a
conference at Georgetown University Law Center on
judicial selection in the aftermath of Citizens United and last
year’s Supreme Court decision on judicial recusal,
Caperton v. A.T. Massey Coal Co.
Risky Strategy Leads to Big
High Court Win
Theodore Olson urged justices to throw out precedent on corporate
campaign contributions
Tony Mauro, The National Law Journal
01-25-10 --
For Theodore Olson, the turning point in the case of Citizens
United v. Federal Election Commission, the moment when he
thought a big win was possible, came during
the first oral argument
on March 24 last year. . . . That was when his adversary, Deputy
Solicitor General Malcolm Stewart, under duress acknowledged that
yes, a corporation-sponsored book could be banned under federal law
if it contained text for or against a candidate's election. Justices
were slack-jawed. They ordered
a re-argument
for September and, on Jan. 21,
struck down the law
and the precedents that supported it. . . . "The first oral argument
was an eye-opener for everyone," the
Gibson, Dunn & Crutcher partner
said the day after his stunning 5-4 victory. "It became apparent
then that the government was going to have a very tough time
defending the rationale of
Austin v. Michigan Chamber of
Commerce without
having to acknowledge that it would authorize criminalizing books,
yard signs, pamphlets and other traditional forms of advocacy."
What Should Congress Do About
Citizens United?
An analysis
of the ruling and a possible legislative response
Erin
Miller | SCOTUSblog
Below, Laurence H. Tribe, Carl M.
Loeb University Professor and Professor of Constitutional Law at
Harvard Law School, discusses last Thursday’s decision in
Citizens United v. Federal
Election Commission
(08-205). . . .
01-25-10 --
There is no doubt that Citizens United v. Federal Election
Commission marks a major upheaval in First Amendment law and
signals the end of whatever legitimate claim could otherwise have
been made by the Roberts Court to an incremental and minimalist
approach to constitutional adjudication, to a modest view of the
judicial role vis-à-vis the political branches, or to a genuine
concern with adherence to precedent. . . . The masterful dissent by
Justice Stevens, which merits close reading by anyone interested in
the Supreme Court as an institution or in the Constitution as a
source of law, shreds any serious claim to the contrary. It also
gravely undermines the First Amendment analysis offered by the
majority and concurring opinions, doing so thoroughly enough that
anyone who (like me) regards the issues in this case as close and
difficult has to wish that Justice Kennedy, joined by the Chief
Justice and by Justices Scalia, Thomas, and Alito, had been less
emboldened by the knowledge that the votes were there for what they
all deemed the right result and had taken greater care to respond,
point by point, to the largely unanswered critique launched by
Justice Stevens, joined in his dissenting opinion by Justices
Ginsburg, Breyer, and Sotomayor.
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A
Victims-of-Law Advertiser |
Breyer, Scalia: Holding no punches
By Joan
Biskupic, USA TODAY
01-19-10 --
Separated by ideology and style, each justice often finds himself in
the other's line of fire. . . . They appear at law schools together
to discuss their competing views of the Constitution. They take
ideological aim at each other in rulings. And their differences are
increasingly playing out in testy fashion on the bench. . . . No two
justices seem to drive each other so nuts during oral arguments.
That was clear during the first session of the new year, as Justices
Antonin Scalia and Stephen Breyer squabbled in a series of cases
last week. . . . Scalia is conservative and Breyer liberal. Yet
their differences on the bench are ones of both substance and style.
As Breyer begins a long, hypothetical question, Scalia — a
fast-speaking, get-to-the-point guy — often slaps his hands up to
the sides of his head. . . . Breyer doesn't exude irritation as much
as frustration. A pragmatist, he is irked when Scalia interrupts his
interest on how a ruling might affect real life.
Justice Scalia's Musical Interlude
Tony
Mauro, The National Law Journal
01-15-10 --
The once-media shy Justice Antonin Scalia has opened up on the
interview circuit in recent years, in part to promote
the book he co-authored with Bryan Garner on appellate
advocacy (now available in an audio book version). . . . Scalia even
made himself available for
Joan Biskupic's admirable biography , which charts the
justice's life and times from boyhood to today. . . . But perhaps
the zaniest interview Scalia has done was with Gilbert Kaplan on the
"Mad About Music" show that aired Jan. 3 on WQXR, the New
York City classical music station. The program invites celebrities
to discuss and play their favorite music on the air. For Scalia, it
was almost certainly the only time he has been asked a question
containing the words "lap dance."
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A
Victims-of-Law Advertiser |
Work-Product Battle Reaches Supreme Court
Marcia
Coyle, The National Law Journal
01-06-10 --
A closely watched federal tax case
involving the scope of the work-product doctrine has reached the
U.S. Supreme Court. . . . Kannon Shanmugam of Washington, D.C.'s
Williams & Connolly recently filed a petition for certiorari on
behalf of Textron Inc., an aerospace and defense contractor, asking
the justices to resolve a substantial circuit split over the
interpretation of the work-product privilege in Federal Rule of
Civil Procedure 26(B)(3). . . . Textron Inc. v. U.S. stems
from a long-running legal battle between the corporation and the
Internal Revenue Service over the government's demand for Textron's
tax-accrual work papers. Those papers generally are prepared with
the assistance of in-house and external counsel and relied upon by
independent auditors to determine the accuracy of financial
statements. They often contain legal analyses and evaluations of
potential litigation risks associated with particular tax
transactions.
Michigan Joined by Four Neighbors in Suit to Keep Asian Carp Out
of the Great Lakes
Lynne
Marek, The National Law Journal
01-05-10 --
At first it was one state fighting
neighbor Illinois over a possible
Asian carp invasion. Now it's at least five. . . .
Michigan Attorney General Mike Cox, who is seeking to become
governor of the state, launched the legal effort last month to stop
Asian carp from reaching the Great Lakes and disrupting his state's
fishing industry. Since then four other states, all of which border
at least one Great Lake, have joined in Michigan's litigation. . . .
In a Dec. 2 letter to Illinois Gov. Pat Quinn, Cox urged Quinn to
take action to block the carps' migration from the Mississippi River
across Illinois to Lake Michigan. A bare 19 days later, Cox
petitioned the U.S. Supreme Court to force action. Cox's office said
it acted when it didn't hear back from Quinn. . . . Minnesota, New
York, Ohio and Wisconsin have filed supporting motions in the
litigation against Illinois, the City of Chicago and the U.S. Army
Corps of Engineers, citing the "threat of irreparable injury" if the
carp reach Lake Michigan and beyond. They're asking the Supreme
Court to force the defendants to "permanently and physically"
barricade the carp and seeking a preliminary injunction to make that
happen.
Scalia Defends Gay, Abortion, Gun Rulings at First Baptist
by Ward
Schaefer, Jackson Free Press
01-05-10 --
The United States should not look to
other countries when interpreting its own Constitution, U.S. Supreme
Court Justice Antonin Scalia said yesterday in a speech at First
Baptist Church of Jackson sponsored by Mississippi College School of
Law. . . . "If there was any thought absolutely foreign to the
founders of our country, surely it was the notion that we Americans
should be governed the way Europeans are," Scalia told the audience
of roughly 600, which included Gov. Haley Barbour and his wife
Marsha, in addition to MC law students. "I dare say that few of us
here would want our life or liberty subject to the disposition of
French or Italian criminal justice—not because those systems are
unjust, but because we think ours is better." . . . If the Supreme
Court takes cues from foreign law, it cannot do so selectively,
Scalia argued. He pointed to the Court's 2003 decision in Lawrence
v. Texas, which found state laws banning sodomy to be
unconstitutional and in which he dissented. Justice Anthony
Kennedy's majority opinion in that case cited a 1981 decision of the
European Court of Human Rights to argue that Western civilization
did not uniformly condemn homosexuality.
Yes, It Was Torture, and Illegal
The New
York Times Editorial
01-03-10 --
Bush administration officials came up with all kinds of ridiculously
offensive rationalizations for torturing prisoners. It’s not torture
if you don’t mean it to be. It’s not torture if you don’t nearly
kill the victim. It’s not torture if the president says it’s not
torture. . . . It was deeply distressing to watch the United States
Court of Appeals for the District of Columbia Circuit sink to that
standard in April when it dismissed a civil case brought by four
former Guantánamo detainees never charged with any offense. The
court said former Secretary of Defense Donald Rumsfeld and the
senior military officers charged in the complaint could not be held
responsible for violating the plaintiffs’ rights because at the time
of their detention, between 2002 and 2004, it was not “clearly
established” that torture was illegal. . . . The Supreme Court could
have corrected that outlandish reading of the Constitution, legal
precedent, and domestic and international statutes and treaties.
Instead, last month, the justices abdicated their legal and moral
duty and declined to review the case. . . . A denial of certiorari
is not a ruling on the merits. But the justices surely understood
that their failure to accept the case would further undermine the
rule of law. . . . In effect, the Supreme Court has granted the
government immunity for subjecting people in its custody to terrible
mistreatment. It has deprived victims of a remedy and Americans of
government accountability, while further damaging the country’s
standing in the world.
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