U.S. Supreme Court Current News & Views

Click headline for full story

March 2010

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.

HELP KEEP VICTIMS-OF-LAW ON THE WEB SHOP OUR ADVERTISERS OR CONTRIBUTE NOW

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.

SEND NEWS RELEASES

VIA EMAIL

 

Victims-of-Law Open Discussion Click to join victimsoflaw_discuss

A Victims-of-Law Advertiser