U.S. Supreme Court Current News & Views

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May 2008

Loving v. Virginia and the Secret History of Race

New York Times Editorial Observer by Brent Staples

5-14-08 -- Americans born in the 21st century will shake their heads in disbelief on learning that 40 states once had laws prohibiting interracial marriage. The Supreme Court struck down the last of these statutes in the 1967 case of Mildred and Richard Loving, a black woman and a white man who were arrested and banished from Virginia for the crime of being married. . . . The couple became celebrities after the landmark ruling known as Loving v. Virginia. But Mildred and Richard wanted nothing to do with fame. They returned to the tiny, backwoods community of Central Point, in Caroline County, Va., and shunned publicity. Richard died of injuries sustained in a car accident in 1975. Mildred, who died this month, was quiet and self-effacing and maintained all along that they married because they were in love, not to fight a civil rights battle. . . . The particulars of the case — which featured a stereotypical Southern sheriff and a medieval system of laws — turned Caroline County into an emblem of blunt-force segregation. But the story was more complicated. . . . Like many rural areas in the Jim Crow South, Caroline County was governed by two competing racial ideologies. The impulse toward segregation was of course etched in law. But Central Point, which had been a visibly mixed-race community since the 19th century, was home to a secret but paradoxically open interracialism. The community’s story goes a long way toward explaining how the Lovings thought about race and why they behaved as they did.

Rehnquist Parody Found at Library of Congress

Tony Mauro, Legal Times

5-14-08 -- The late Chief Justice William Rehnquist was known for his love of Gilbert and Sullivan. Their operetta "Iolanthe" inspired Rehnquist to add gold stripes to the arms of his black robe. It turns out his passion dated to when he clerked for the late Justice Robert Jackson 55 years ago. . . . Jackson scholar John Barrett of St. John's University School of Law in New York recently found a parody of a song from "Mikado" written by Rehnquist that sat unnoticed for 50 years in Jackson's papers at the Library of Congress. Barrett wrote about it in the latest issue of the unconventional law review Green Bag. . . . Some of the droll references in the ditty are obscure, but they amounted to a fairly biting critique of the Court then led by Chief Justice Fred Vinson. Vinson was having difficulty building consensus on a fractured Court -- a problem that also vexed Rehnquist when he later became chief justice, and now faces Rehnquist's successor, John Roberts Jr. "So he decreed with stern portent," Rehnquist wrote of Vinson, "That who thereafter did dissent/ Unless he had the Chief's consent/ Would forthwith be beheaded." . . . A later line says that justices "Verbose and mum, and smart and dumb/ Were equally affected." Felix Frankfurter was the verbose one, Barrett posits, and Vinson may have been the dumb one. The others were harder to pin down. Rehnquist also took a swipe at Vinson's preoccupation, even during his workday, with "the vagaries of baseball." Vinson, once a semi-pro player, was offered the job of baseball commissioner in 1951.

Ranking the Politics of Supreme Court Justices

Four of the five most conservative justices since 1937 are on the bench today

By Justin Ewers

5-12-08 -- Just how conservative is the Supreme Court, anyway? It's a question that has dogged constitutional scholars for years, as they've tried to parse the opaque language and muddled writings of judges moving through the confirmation process. Today's court, headed by John Roberts with seven justices appointed by Republican presidents, is generally considered more conservative than the Supreme Court of the 1950s, for example, when Earl Warren oversaw its unanimous decision in Brown v. Board of Education. But it's hard to compare the current court—and today's justices—with, say, the Burger court of the 1970s, which, with six Republican-appointed justices, decided Roe v. Wade.

Thomas tells grads of goal blocked by injustice

By Blake Aued  

5-11-08 -- U.S. Supreme Court Justice Clarence Thomas, the fifth Georgian to serve on the high court, would have been the first black University of Georgia graduate if he'd had his way. . . . Thomas wanted to be a Bulldog, but segregation stopped him, he said Saturday during his commencement address at Sanford Stadium. . . . "Forty-one years ago, when I graduated from high school in Savannah, attending the University of Georgia was not an option," he said. "Thankfully, much has changed in my lifetime. Knowing what I know today, I would go to school here in a heartbeat. Georgia is home, and Georgia is where I belong." . . . Thomas graduated from the College of the Holy Cross and Yale Law School. . . . He credited his grandparents, relatives and friends - farmers, yard workers and maids, mostly - in his native Pin Point for raising him right. . . . "They went along with their lives doing their best with what they had, knowing all the while that this was not necessarily fair," he said. "They played the hand they were dealt, and through it all, they were unfailingly good, decent and kind people, whose unrequited love for our great country and hope for our future were shining examples for all of us to emulate in our own struggles."

Chattanooga: Stevens addresses lethal injections

By: Monica Mercer

5-10-08 --  Supreme Court Justice John Paul Stevens drew a round of applause Friday night in Chattanooga when he suggested that the recently-euthanized Kentucky Derby horse Eight Bells had probably experienced a more humane death than those who die on death row. . . . “I had checked the procedure they used to kill the horse,” Justice Stevens said, expressing surprise to learn it is against the law in Kentucky to kill animals using one of the drugs in a three-drug lethal injection cocktail that many believe is cruel to humans. . . . Yet just three weeks ago, the Supreme Court ruled that Kentucky’s use of that cocktail on death row did not constitute cruel and unusual punishment. Justice Stevens concurred with the court’s decision, but conceded his opinion would “generate debate not only about the constitutionality of the three-drug protocol, but also about the justification for the death penalty itself.” . . . Justice Stevens talked about the lethal injection case and other recent Supreme Court decisions as he addressed an audience of legal professionals at the Chattanooga Convention Center during the last evening of the 68th conference of the U.S. Court of Appeals for the 6th Circuit. Justice Stevens presides over the 6th Circuit in his position on the Supreme Court.

Following year of division, Supreme Court avoids 5-4 splits

By Mark Sherman

(AP) 5-10-08 --  This could be the Supreme Court term, one court watcher joked recently, that Justice John Paul Stevens remembers he is a Republican. . . . A 1975 appointee of President Gerald Ford, Stevens is regarded as the anchor of the court's liberal wing. But he has joined with his more conservative colleagues in three high-profile cases that defied predictions they would showcase deep ideological divisions on the court. . . . Last term was marked by an unusually high number of 5-4 decisions, and many experts believed this term's notable cases would produce similar outcomes. . . . But the biggest cases decided so far — upholding lethal injection procedures, photo identification requirements for voters and Texas' treatment of a Mexican on death row — have had six or seven justices, including Stevens, in agreement on the outcome. . . . Just one case has been decided by a 5-4 vote. Two others split 4-4 with a justice not participating. Another was 5-3. . . . Taking stock of the court with half its decisions still to come is a bit like wrapping up a sporting event at halftime. So far, however, Stevens' voting pattern and the lack of 5-4 decisions stand out.

David E. Kelley's 'Boston Legal' Takes On the Roberts Court

Tony Mauro, Legal Times

5-6-08 -- Nearly a decade ago, when his show "Ally McBeal" was at its peak, lawyer-turned-Hollywood-producer David E. Kelley was invited to dinner at the home of then-Supreme Court Justice Sandra Day O'Connor. . . . There, Kelley recalls, he got to chat with four or five justices along with other D.C. luminaries. . . . But now, Kelley says in an exclusive interview with Legal Times, "I've probably disqualified myself" from any justice's invitation list for a return visit. . . . That's because of an April 22 episode of Kelley's current hit show "Boston Legal," which included one of the most vociferous popular-culture critiques of the current conservative Supreme Court since John Roberts Jr. became chief justice in 2005. . . . "We went right after them," Kelley acknowledges, asserting that the Supreme Court does not deserve the "hands-off treatment" it usually gets in the media and in political discourse. . . . The anti-Roberts Court screed, improbably enough, is delivered to the justices to their faces during the episode titled "The Court Supreme." Co-star James Spader, who plays Boston lawyer Alan Shore, lights into the Court as he argues before look-alike justices on behalf of a Louisiana child rapist facing the death penalty. The episode aired just six days after the real Court heard arguments in Kennedy v. Louisiana, an actual child rape/death penalty case.

Unrest at University of Georgia Over Appearance by Clarence Thomas

'To invite someone involved in the most high-profile sexual harassment case... is just poor timing,' said one professor

Peter Page, The National Law Journal

4-30-08 -- Some faculty at the University of Georgia, Athens, are complaining about the selection of Supreme Court Justice Clarence Thomas as undergraduate commencement speaker in light of charges that the administration has been slow to respond to allegations of sexual harassment. . . . Janet E. Frick, associate professor in the psychology department, alluding to the allegations of sexual harassment aired by Anita Hill at Thomas' 1991 confirmation hearing, suggested Thomas be invited to speak next year instead. . . . "There have been repeated accusations [of sexual harassment] and an apparent lack of institutional resolve to act," Frick said. "To invite someone involved in the most high profile sexual harassment case of the 20th century is just poor timing."

Justices come off the bench to chat

Possibly signaling a new era of openness, Scalia and several court colleagues are granting interviews

By James Oliphant | Washington Bureau

4-30-08 -- There's Antonin Scalia chatting with Lesley Stahl on "60 Minutes." There's Scalia speaking at length on National Public Radio. And there he is again, taking questions from high school students on C-SPAN. . . . Picture Greta Garbo joining Facebook and you get the idea. . . . Until now, the Supreme Court justice has been notoriously allergic to the press. He has often excluded the media from public appearances, even barring C-SPAN from covering an award he received in 2003 for protecting freedom of speech. A year later, federal marshals guarding Scalia at a speech in Mississippi confiscated and erased a reporter's tape recorder, deleting the justice's comments. Then, in 2006, he brushed away a Boston reporter with a gesture that some claimed was obscene. . . . But this apparently is a new day, and not just for Scalia, but for other members of the high court.

April 2008

Gettysburg trip changed perspective of Supreme Court justice

By Mark Sherman, Associate Press

4-30-08 --  A trip to the Gettysburg battlefield changed Supreme Court Justice David Souter's perspective on handling difficult cases that inevitably come a judge's way. . . . In a rare public address Tuesday, Souter admitted that at least one Supreme Court case — he didn't name it — once prompted him to ask, "Why do I have to resolve that case?" . . . He found an answer last year when he and his law clerks and secretaries visited the battlefield in Pennsylvania where the Civil War changed course in July 1863. . . . Illustrating how a single act can alter history, Souter noted that the commander assigned to hold the far end of the Union line had employed a bayonet charge in a desperate maneuver — one that ultimately ended a Confederate attack. . . . "It seems a fair assessment that one of the pivots of American history was at that place, at that moment," he said. . . . Looking back at his complaint about difficult cases, Souter said, "I could not ever again, under any circumstance, say it is unfair that I have to do this." . . . Other justices may use nationally televised interviews to expound on the court and great issues of the day, as Justice Antonin Scalia did this week. Not Souter. His speech Tuesday did not contain a word about Supreme Court cases, his philosophy of judging or his colleagues.

Scalia Hits Media Circuit to Promote Book

Tony Mauro, Legal Times

4-29-08 --  Supreme Court Justice Antonin Scalia may be thriving in the limelight these days, but he has his limits: He's not interested in becoming vice president on Sen. John McCain's ticket. . . . "C'mon, ask my wife. I'm a lousy politician," Scalia said in an interview with NPR's Nina Totenberg as part of the publicity tour for his new book. "That's not my style. . . . Said Totenberg, "You'd put your foot in your mouth, you think?" . . . To which Scalia replied, "No, I wouldn't put my foot in my mouth. I might say what I thought." . . . Scalia has certainly been doing that in the last few days, first in a lengthy "60 Minutes" segment aired Sunday night and then in the NPR interview that ran Monday morning. The ABA Journal has also interviewed Scalia in its May issue about the book he co-authored with Bryan Garner, called "Making Your Case: The Art of Persuading Judges." . . . Book sales have clearly benefited from the avalanche of publicity. By mid-afternoon on Monday, its official publication date, "Making Your Case" had reached No. 6 on the Amazon.com best-seller list, edging out "Hungry Girl," a sort of chick-lit cookbook. A day earlier, Scalia's book was No. 522.

Scalia Speaks Out in '60 Minutes' Interview

Tony Mauro, Legal Times

4-28-08 --  In his remarkable appearance on "60 Minutes" Sunday night, Supreme Court Justice Antonin Scalia acknowledged he has had "down times" on the bench, periods when he felt he was repeating himself in dissents and unable to move Court doctrine. It was Scalia's first extended broadcast interview in his 22 years on the Court. . . . In one of the more dramatic moments during the segment, CBS correspondent Lesley Stahl read from Scalia's 1996 letter written to the late Justice Harry Blackmun in which he voiced his melancholy about the preceding term -- a term that had produced Romer v. Evans, a victory for gay rights advocates, and United States v. Virginia, which said the state-run Virginia Military Institute could not admit only males. . . . Scalia said he "hadn't remembered" writing the letter, which is included in the Blackmun papers at the Library of Congress. But he did say that the final months of a Supreme Court are "usually a disappointment." He also said the situation, from his point of view, was "less dire in more recent years." . . . When he first joined the Court in 1986, Scalia said he planned to leave the Court "as soon as I could," when he turned 65 and could retire at full pay. But now at 72 and "working for free," Scalia says he is not thinking about retiring any longer. "I can't think what I would do for an encore."

Scalia: I'm Conservative, but Not Biased

The Associated Press

4-25-08-- The Constitution doesn't prohibit abortion any more than it allows it, Supreme Court Justice Antonin Scalia says in a television news interview to be broadcast Sunday. . . . Scalia told CBS News' "60 Minutes" that he may be conservative, but he is not biased on issues that come before the Court. "I mean, I confess to being a social conservative, but it does not affect my views on cases," Scalia said in excerpts released Thursday. . . . "On the abortion thing, for example, if indeed I were ... trying to impose my own views, I would not only be opposed to Roe versus Wade, I would be in favor of the opposite view, which the anti-abortion people would like to see adopted, which is to interpret the Constitution to mean that a state must prohibit abortion," Scalia told correspondent Lesley Stahl. . . . "And you're against that?" Stahl asked. . . . Scalia replied, "Of course. There's nothing" (in the Constitution to support that view).

Scalia On Bush v. Gore: Get Over It!

Supreme Court Justice Tells 60 Minutes It’s Nonsense To Say The Decision Was Politically Motivated

(CBS) 4-24-08-- People who believe the U.S. Supreme Court’s decision giving the 2000 presidential election to George W. Bush was politically motivated should just get over it, says Justice Antonin Scalia. . . . Scalia denies that the controversial decision was political and discusses other aspects of his public and private life in a remarkably candid interview with 60 Minutes correspondent Lesley Stahl, this Sunday, April 27, at 7 p.m. ET/PT. . . . "I say nonsense," Scalia responds to Stahl’s observation that people say the Supreme Court’s decision in Gore v. Bush was based on politics and not justice. "Get over it. It’s so old by now. The principal issue in the case, whether the scheme that the Florida Supreme Court had put together violated the federal Constitution, that wasn’t even close. The vote was seven to two," he says, referring to the Supreme Court’s decision that the Supreme Court of Florida’s method for recounting ballots was unconstitutional.

O'Connor Sees Ethical Deficit in Legal Profession

By Josh Gerstein, Staff Reporter of the Sun

4-23-08-- A former Supreme Court justice, Sandra Day O’Connor, inveighed against unscrupulous lawyers and corrupt government officials following a speech she delivered at Stanford University last night. . . . Asked about the struggle to maintain high ethics in the legal profession, Ms. O’Connor invoked what she called the “drastic results” of the collapse of Enron Corp. in 2001.. . . “It makes one wonder what kind of ethical standards the lawyers and the accountants were following,” the former justice told hundreds gathered at Stanford’s Memorial Church to hear her speak about the quest for “a meaningful life.” . . . “It’s clear, I think, that it isn’t enough to do one’s work as a lawyer or accountant by saying, ‘Oh, technically the law could be interpreted to allow this,’” she said. “We have a deeper obligation than that as a lawyer, as a human being, to reflect on what we’re being asked to do and put it in a larger perspective and ask if it is the right thing to do. Many times it isn’t.”

Pass the Fair Pay Act

New York Times Editorial

4-23-08 -- Last year, the Supreme Court tossed aside longstanding legal precedents and government practice to make it much harder for an employee to sue over unlawful pay discrimination. . . . The 5-to-4 ruling came in the case of Lilly Ledbetter, a supervisor at a Goodyear Tire and Rubber Company plant in Alabama, who over several years received smaller raises than men in comparable positions. A jury found that Goodyear violated Ms. Ledbetter’s rights under Title VII of the Civil Rights Act of 1964. . . . But a majority of the Supreme Court decided she was entitled to nothing based on a cramped view of the 180-day deadline for filing such claims. They decided that Ms. Ledbetter had to sue within 180 days of the company’s discriminatory raises and that the persistence of unfairness from check to check was not relevant. . . . Fortunately, the Senate is scheduled to consider a modest bill on Wednesday that is aimed at restoring the original intent of the law. It poses a test of each senator’s commitment to combating pay discrimination.

Scalia, long shy of news media, now more open

Justice's views of law to go out to wider audience

By Joan Biskupic, USA TODAY 

4-18-08 -- For years, Justice Antonin Scalia has been a rebel on the law — with a penchant for shunning the news media. . . . He kept C-SPAN out of his appearances. In 2006, when a Boston reporter approached him after a church service with a question, he flicked his fingers under his chin in a well-known Sicilian brushoff. . . . These days, Scalia is making a new gesture to the media. He held a question-and-answer session with students that was televised live on C-SPAN last week. He has begun publicity for the release of a book he co-authored on legal arguments. He will appear on CBS' 60 Minutes this month. . . . The public is about to get a big dose of Scalia, who speaks passionately about the law and also has an intriguing life story as the first Italian-American on the high court. . . . Scalia's message is that judges should interpret the Constitution based on the intentions of the men who wrote it in the 18th century. He insists that society's problems are the domain of elected legislators, not appointed jurists. . . . Scalia, 72, has found a robust fan club among conservative lawyers. Now that he's moving into the limelight, will he speak to non-lawyers and draw a new audience?

Imperialists in black robes

By: Nat Hentoff

4-16-08 -- I dearly wish our Founding Fathers James Madison and Alexander Hamilton had been able to see Supreme Court Justices Anthony Kennedy and Clarence Thomas explain on C-SPAN's "America and the Courts" (March 28) why they and nearly all their colleagues are so hostilely against allowing millions of Americans to see the high court on television during the revealing oral arguments. . . . On that C-SPAN program, in excerpts from the Kennedy-Thomas testimony before a House committee, Kennedy, sternly lecturing that Congress should not legislate this intrusion into a key process in how and why they make their decisions, which affect so many of us, explained: "We teach that we're judged by what we write and by what we decide. ... I do not want an insidious dynamic introduced into my court that would affect the relations that I have with my colleagues. . . . "It would be unhelpful for the collegial relations. ... I don't want to think that one of my colleagues asked a question because he or she was on TV. And I don't want that temptation to exist. ... We (justices) think that we should be entitled to at least a presumption of correctness and to some deference in determining how best to preserve the dynamic of the wonderful proceeding that we know as oral argument." . . . Agreeing, Thomas said, "The concern is that you begin to have a sort of a tabloid effect because of the personalities involved as opposed to the substance of the case."

Supreme Court to hear Los Angeles County
district attorney immunity case

Justices will consider whether ex-D.A. John Van de Kamp can be sued over the conviction of Thomas L. Goldstein, who was freed after 24 years.

By David G. Savage, Los Angeles Times Staff Writer

4-15-08 -- The Supreme Court said Monday it would take up a Los Angeles case to decide whether a chief prosecutor can be held liable for a man's wrongful conviction of murder. . . . The case of Van de Kamp vs. Goldstein will test the reach of the long-standing legal rule that prosecutors are immune from being sued, even when defendants are shown to be innocent. . . . Prosecutors, like judges, must be free to do their jobs without fear of being sued later, the high court said in 1976. . . . This rule of "absolute immunity" applies whenever a prosecutor "acts within the scope of his prosecutorial duties," the justices said then. . . . But it is not clear whether this immunity rule protects supervising prosecutors against suits over alleged management failures.

What Would a Scalia-Alito Corporation Sell?

Tony Mauro, Legal Times

4-15-08 -- The first Supreme Court oral argument Monday morning was all about Native American law and the jurisdiction of tribal courts. But Chief Justice John Roberts Jr. took the debate in an unexpected direction -- across the Atlantic to southern Europe. .. . The issue in Plains Commerce Bank v. Long Family Land & Cattle was whether tribal courts have jurisdiction over a dispute between a nontribal bank and a company that is majority Indian-owned. More than 51 percent of the owners of the South Dakota ranching company in the case are members of the Cheyenne River Sioux Tribe, and, as such, the company was entitled to loan guarantees from the Bureau of Indian Affairs. . . . Roberts seemed concerned about how a bank can be expected to know whether a company it is dealing with is a so-called "Indian corporation," thereby triggering tribal court jurisdiction. After all, companies incorporate under state, not tribal, law. . . . "That's a concept I don't understand," said Roberts, who then pointed to the left side of the bench and added, "If Justices Scalia and Alito form a corporation, is that an Italian corporation?" . . . Amid laughter, veteran advocate David Frederick of Kellogg, Huber, Hansen,Todd, Evans & Figel wisely sidestepped the issue. "I would like to beg the indulgence of the Court in not answering that question specifically."

FBI Describes Search for Letter-Writer Charged With Threatening Justice Thomas and High Court Building

M.R. Kropko, The Associated Press 

4-14-08 -- Authorities searched for years for the source of racially hateful letters, including one threatening to blow up the U.S. Supreme Court, before tracking him down when he started sending messages via e-mail instead of U.S. mail, authorities said.  . . . The FBI said Thursday that letters dating to the late 1980s seemed to stop in the early 1990s but started again later that decade. Cleveland FBI agent Scott Wilson said agents never stopped looking for the writer, and he told The Plain Dealer newspaper that they found him a few months ago by tracing the e-mails to David Tuason's account. . . . The federal government charged David Tuason, 46, of suburban Cleveland, Wednesday. An indictment alleges he most often targeted black men known to affiliate with white women. Letters and e-mails described in the charges contain threats of violence based on racial hatred. . . . Donna Grill, an assistant public defender representing Tuason, would not comment on the case Thursday. .  Tuason is unemployed and has lived at the home of his parents in Pepper Pike, a mostly white, upscale Cleveland suburb, said William J. Edwards, acting U.S. Attorney for northern Ohio.

How to Judge a Would-Be Justice

New York Times Editorial

4-14-08 -- It is hard to imagine a more solemn responsibility than confirming the nomination of a Supreme Court justice. And we have worried, especially in recent years, that nominees are far too carefully packaged and coached on how to duck all of the hard questions. . . . A new study supports our fears: Supreme Court nominees present themselves one way at confirmation hearings but act differently on the court. That makes it difficult for senators to cast informed votes or for the public to play a meaningful role in the process. . . . The study — with the unwieldy title “An Empirical Analysis of the Confirmation Hearings of the Justices of the Rehnquist Natural Court” —published in Constitutional Commentary, looked at how nine long-serving justices answered Senate questions, and how they then voted on the court. While it does not say that any nominee was intentionally misleading, it still found a wide gap. . . . Justices Antonin Scalia and Clarence Thomas, for example, told the Senate that they had strong respect for Supreme Court precedents. On the court they were the justices most likely to vote to overturn those precedents. Justice David Souter deferred more to precedent than his Senate testimony suggested he would. . . . The authors examined one substantive area of the law: criminal defendants’ rights. There what the nominees — both conservatives and liberals — told the Senate about their support for defendants’ rights was reasonably well reflected in how they voted. . . . The study suggests that senators would be better off asking “very probing, specific questions,” says Lori Ringhand, associate professor of law at the University of Kentucky and one of the paper’s three authors.

Scalia: Church, state not always separate

The idea that the Constitution bars God from the public square is bunk, U.S. Supreme Court Justice Antonin Scalia said at the University of Virginia.

By Brian McNeill

04-11-08 -- The ostensible wall separating church and state is not inviolable, U.S. Supreme Court Justice Antonin Scalia told a crowd at the University of Virginia School of Law on Thursday. . . . The judicial system, he argued, has too often gone overboard in its interpretation of the First Amendment’s establishment clause, which forbids any “law respecting an Establishment of Religion.” . . . The courts’ “guiding light” in many religious freedom cases, Scalia said, is the neutrality principle, which essentially holds that the government cannot favor one religion over another and also cannot favor a religious group over a secular group or vice versa. . . . For example, the court system has sought to bar students from reciting the Pledge of Allegiance because it contains the phrase “One nation, under God.” . . . Rulings that seek to totally separate religion and government, Scalia said, run counter to the Constitution’s meaning. . . . “If you want to enact a statute that says the president can never say ‘God bless America,’ then I have no problem with that,” he said. “Just don’t tell me that the Constitution prohibits it.”

Man indicted for making threats to Justice Clarence Thomas

By Terry Frieden, CNN Justice Producer

04-10-08 -- The U.S. Supreme Court's only black justice was the target of a racially motivated threat by an Ohio man who has been indicted in Cleveland, Justice Department officials announced Wednesday. . . . An eight-count indictment returned by a federal grand jury charges David Tuason of Pepper Pike, Ohio, with making multiple threats against Justice Clarence Thomas and with threatening to blow up the Supreme Court building. . ..  Tuason had made the threats in e-mails and mailed letters to the Supreme Court, as well as to Thomas personally, according to a source close to the case. . . . Tuason "engaged in an elaborate scheme of sending racially motivated threatening communications ... intended to threaten and intimidate with bodily injury African-American males known to affiliate with white females," said U.S. Attorney Frank Filiuzzi Wednesday in Cleveland.

Scalia to Go Before the News Cameras -- Voluntarily

Tony Mauro, Legal Times

04-09-08 -- Supreme Court Justice Antonin Scalia, who makes no secret of his disdain for the news media, has agreed to appear in a segment of CBS News' "60 Minutes" on April 27, the eve of the publication date for a new book he has co-authored. . . . A knowledgeable source who requested anonymity confirmed Monday that the top-rated newsmagazine asked Scalia for the interview and he accepted, in spite of his oft-stated view that judges should stand apart from the modern media culture. . . . Correspondent Lesley Stahl has already conducted several taped interviews with Scalia that range well beyond his book -- called "Making Your Case: The Art of Persuading Judges" -- and delve into his career and upbringing. . . . In the life of the Court and the career of Justice Scalia, this is a remarkable, Nixon-goes-to-China moment. No justice has excoriated the news media like Scalia has, and it would have surprised no one if he had completed his tenure on the high court without ever consenting to a broadcast interview.

Supreme Court Justice Antonin Scalia Again Says
Abortion Right Nonexistent

by Steven Ertelt, LifeNews.com Editor

04-08-08 -- Supreme Court Justice Antonin Scalia continues to educate the law students of America and, once again, presented his explanation that no right to abortion exists in the Constitution to students at Roger Williams University. Last month, Scalia told students at the University of Central Missouri the same thing. . . . Scalia said a legal right to an abortion is not found in the document that guides our judicial process. . . . If abortion advocates wanted to create a legitimate abortion right, they should rely on passing laws in the legislature rather than asking courts to unilaterally create one, he said. . . . “You want the right to abortion? Create it the way most rights are created in a democracy. Persuade your fellow citizens it's a good idea — and pass a law,” Scalia said. . . . As he has before, Justice Scalia, who pro-life advocates hope will someday be one of the five votes on the high court to reverse Roe v. Wade, said the Constitution is not a living document that changes with the times. . . . According to a report in The Day newspaper, Scalia told the RWU law school students he didn't think the Senate would confirm him today as it did on a 98-0 vote decades ago. . . . “The most important thing is whether this person will write the new Constitution that you like,” Scalia said of today's politicized confirmation process. “If the court's rewriting the Constitution, it's an enormously powerful political body -- and its selection will be done in a political fashion."

Scalia says he'd have difficulty winning confirmation now

By Eric Tucker , Associated Press Writer

04-07-08 -- U.S. Supreme Court Justice Antonin Scalia said Monday he would have had difficulty winning confirmation to the nation's highest court if he were nominated today because the public expects its judges to rewrite the Constitution rather than interpret the document narrowly based on its original intent. . . . Scalia, who was confirmed by the Senate in 1986 by a 98-0 margin, told students at the Roger Williams University law school that he wouldn't be able to get 60 votes now. . . . "The most important thing is whether this person will write the new Constitution that you like," Scalia said of the contemporary confirmation process. . . . "If the court's rewriting the Constitution, it's an enormously powerful political body -- and its selection will be done in a political fashion," he added. . . . Scalia participated in a question-and-answer session with students in the second visit to Rhode Island this year by a sitting Supreme Court justice. Chief Justice John Roberts visited in February for the centennial celebration of the federal courthouse in downtown Providence.

Heads I Win, Tails You Lose: How Judges Make You Do
the Time Even If You Didn't Do the Crime

David Feige

04-01-08 -- In the layman's view of the criminal-justice system, defendants go to trial, are convicted or acquitted of certain charges, and if convicted, are sentenced for the offenses. But try to explain the reality of being sentenced for acquitted conduct, and you're likely to be met with stares of astonishment. "You mean you can go to trial, get acquitted and still go to the slammer for stuff the jury says wasn't proven?" . . . Indeed, my friends, welcome to the wacky world of criminal sentencing. . . . Not only have many defendants been sentenced for stuff the jury said they didn't do (or at least wasn't proven), but yesterday the Supreme Court refused to do anything about it. The cert denial came in the case of Mark Hurn of my hometown, Madison, Wis. Hurn ate 15 years extra years in prison for possessing crack cocaine, even though a jury acquitted him of the charge. It's true. Though he was convicted of having powder cocaine in his house, (for which he was looking at two or three years in prison), he was sentenced to almost 18 years. Why? Because even though the jury acquitted him of the crack charge, the judge kind of figured he'd done it and therefore found, by a preponderance of the evidence that he'd done it, and sent him to prison as if the jury had actually said "Guilty" rather than "Not Guilty." . . . Strange? Yes. But sadly, also true. . . . And while the high court's refusal to hear Hurn's appeal (notwithstanding reverse his sentence) yesterday was cowardly enough, with the fourth circuit's decision this afternoon in US v. Ibanga, we have finally landed in Wonderland. In the case (and no it's not a joke though I wish it were), the fourth circuit basically says that not only CAN you sentence on acquitted conduct, categorically refusing to consider it is actually error.

March 2008

Scalia Criticizes News Media

03-27-08 -- (AP) -- Justice Antonin Scalia took the news media to task Thursday for some recent coverage of the Supreme Court. . . . At a conference of attorneys in Washington, Scalia said news organizations often fail to focus on the text of the laws the court interprets, citing accounts of last month's 8-1 decision that made it harder for consumers to sue makers of federally approved medical devices. . . . He singled out for criticism a New York Times editorial on the case headlined "No Recourse for the Injured." . . . The media often make it appear as though the court is reaching policy judgments on its own rather than basing its decisions on the text of the law at issue in a case, Scalia said. . . . In some instances, said Scalia, the news media leave the impression that no ruling based on the text of a law "is even possible."

S.C. inmate's Supreme Court win earns him criminal probe

By Michael Doyle | McClatchy Newspapers

03-25-08 -- Stanford Law School professor Jeffrey L. Fisher and South Carolina felon Michael R. Ray are unlikely partners in a criminal-sentencing case that the Supreme Court heard Monday. . . . Working behind bars, Ray wrote a brief that was good enough to persuade the high court to consider an appeal by fellow prisoner Keith Lavon Burgess. Few attorneys get that far. Fewer still face the tangled consequences that Ray confronted. . . . While Fisher presented oral arguments Monday, Ray is reportedly under criminal investigation for unauthorized legal practice for his handling of Burgess' case. The investigation could complicate Ray's scheduled April 14 release from Estill Federal Correctional Institution, where he's been serving time for fraud. . . . "It would be nice to see the Palmetto State dedicating the thousands of dollars being expended in this (investigation) for a prisoner re-entry services program ... and for ex-felon job creation," Ray declared in a self-penned news release. . . . Ray's outside attorney, C. Rauch Wise, said late Monday afternoon that "he was under investigation, but I have heard conflicting stories about its status." . . . South Carolina Deputy Attorney General Allen Myrick Jr. declined to comment on the case Monday. Myrick's spokesman, Mark Plowden, said in an e-mail late Monday afternoon that "we did receive information about (Ray's) activities, but have taken no legal action of any kind."

Clarence Thomas Is Not 'Mr. Constitution'

Cass R. Sunstein, The New Republic's "Open University" blog

03-25-08 -- The Wall Street Journal has a remarkable interview with Clarence Thomas, available here. In the interview, Thomas states his fidelity to the Constitution "as it's drafted.". . . In context, it seems clear that Thomas means to follow the original understanding of the document (though he resists the term "originalism") The real point is that he is a neutral interpreter. "Maybe I am labeled as an originalist or something, but it's not my constitution to play around with. Let's just start with that. We're citizens. It's our country, it's our constitution. I don't feel I have any particular right to put my gloss on your constitution. My job is simply to interpret it." . . . The chief example, in the WSJ interview, is Justice Harlan's dissenting opinion in Plessy v. Ferguson, in which Harlan said that the Constitution does not permit racial segregation. As the WSJ has it, "Harlan's intellectual honesty trumped his personal prejudice, causing Mr. Thomas to describe Harlan as his favorite justice and even a role model. For both of them, justice is truly blind to everything but the law."

The Book Of Clarence Thomas

Andrew Cohen: Court's Only Black Justice Won't Oppose Legal Racism In Death Penalty Case

(CBS) Attorney Andrew Cohen analyzes legal issues for CBS News & CBSNews.com.