U.S. Supreme Court Current News & Views

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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.

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.

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.

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.

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.

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.

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.

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."

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.

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.

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

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.

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."

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.

February 2010

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.

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. . . .

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.

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."

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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