U.S. Supreme Court Current News & Views

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November 2011

Calls for recusal intensify in health care case

By Joan Biskupic, USA TODAY 

11-20-11 -- In the months before the Supreme Court announced it would hear an important health care dispute, partisan critics called for Justices Elena Kagan and Clarence Thomas to sit out the case because of alleged conflicts of interest. . . . Since last week's court order agreeing to take up the constitutionality of the President Obama-sponsored health law, complaints about the two justices have grown louder. . . . The latest developments suggest the ruckus will remain a sidelight to the politically charged dispute. The consolidated cases, focused on whether Congress had the power to require most Americans to buy health insurance by 2014, will be heard early next year. A decision is likely in June, right before the Democratic and Republican conventions for the 2012 presidential election.

Storied high court: Justices bring life to oral arguments

By Joan Biskupic, USA TODAY 

11-17-11 -- "I don't usually like to reminisce," Supreme Court Justice Anthony Kennedy began during a recent session of oral arguments. . . . Then the 75-year-old justice recalled his days as a California trial lawyer as the basis for his question to the attorney standing before the bench. . . .  The Supreme Court has finished its second round of arguments for the current term, during which there has been, despite Kennedy's assertion, plenty of reminiscing by him and others. . . . "I remember in law school," Chief Justice John Roberts began one question, as he recounted how a professor demonstrated the fallibility of witness accounts. . . . "When I was a prosecutor," Justice Sonia Sotomayor said, as she raised a query about witness testimony.

October 2011

Scalia: Federal Drug Laws Were a Mistake

By Conor Friedersdorf, The Atlantic  

10-07-11 -- The Supreme Court justice told a Senate panel that the unintended consequence has been lower quality judges. . . . Supreme Court Justice Antonin Scalia isn't a supporter of legalizing drugs. But he does believe that passing federal laws against them has done harm to the U.S. government. "It was a great mistake to put routine drug offenses into the federal courts," he told the Senate Judiciary Committee Wednesday. The Wall Street Journal went on to report Scalia's belief that the laws forced Congress to enlarge the federal court system, and diminished "the elite quality of the federal judiciary." . . . This isn't a new problem. Chief Justice William Rehnquist complained as far back as 1989 that the war on drugs was overwhelming the federal judiciary. In 1995, Kathleen F. Brickley, an academic, found that "the Federal system is strained to capacity due, in large part, to the government's war on drugs."

Antonin Scalia Unplugged: Wants to Kill ‘Living’ Constitution

By Ariane de Vogue, ABC News (blog)  

10-06-11 -- Justice Antonin Scalia couldn’t help himself. . . . Sitting on the dais at the Newseum, a Washington, D.C., museum dedicated to the value of a free press, he knew he probably shouldn’t bring up the landmark libel case New York Times v. Sullivan. . . . The 1964 Supreme Court defined “actual malice” as the standard for determining libel cases involving public figures.  The case forever changed libel law.  And, as Scalia has said before, he believes it was wrongly decided. . . . At this morning’s session, Scalia said the decision was the product of the “living” constitutionalists who adopt the values of the framers to the evolving world. Scalia rejects that line of thinking. “I look to the words of the Constitution,” he said, “but I ask what did those words mean to the society that adopted them.

The legacy of the Clarence Thomas-Anita Hill hearings

By Ruth Marcus, Opinion writer Washington Post 

10-05-11 -- Even now, with the healing distance of two decades, the subject of Anita Hill and Clarence Thomas retains its power to provoke and divide. . . . It was 20 years ago this month that Hill’s allegations of sexual harassment surfaced, threatening to derail Thomas’s imminent confirmation to the Supreme Court. I spent the weekend-long marathon of hearings in the Senate Caucus Room, the majestic setting of soaring marble columns and gilded ceiling contrasting with the squalid details of Hill’s allegations. . . . It was both riveting and horrifying. By the time the Senate Judiciary Committee hearings were gaveled to a close at 2 a.m. Monday, I — like everyone else — was simply relieved that it was over. . . . Looking back, it is possible to trace the larger cultural and political legacy, both good and bad, of that painful moment. . . . First, the Thomas-Hill hearings heralded a coarsening of the national dialogue. It goes too far to suggest cause and effect; there is no straight line between the hearings and, say, wardrobe malfunctions or “Jersey Shore.” But the hearings, with their nationally televised discussion of Thomas’s alleged tastes in pornography and his explicit overtures, crossed an invisible line into a cruder culture.

Justices attend toned-down Red Mass

By Laurie Ure, CNN Producer

10-02-11 -- A half dozen Supreme Court justices, hundreds of members of the legal profession and other dignitaries attended the annual Red Mass in Washington Sunday to hear what amounted to an uncharacteristically noncontroversial service. . . . Chief Justice John Roberts joined associate justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Stephen Breyer and Samuel Alito for the service at the Cathedral of St. Matthew the Apostle, a beautifully ornate church located a few blocks from the White House. All are Roman Catholic except Breyer, who is Jewish. The current Supreme Court is composed of six Catholics and three Jews. . . . The purpose of the Red Mass -- so named because of the color of the garments worn by clergy -- is to "invoke God's blessings on those responsible for the administration of justice as well as on all public officials," according to the John Carroll Society, a lay Catholic group of prominent lawyers and professionals, which started the Mass in 1953. . . . The Mass is celebrated traditionally on the Sunday before the first Monday in October, which marks the beginning of the Supreme Court's annual term.

September 2011

UNITED STATES SUPREME COURT

Supreme Court Justice Clarence Thomas is out of order for hiding payout to wife: House Democrats

By Alison Gendar & Corky Siemaszko , Daily News Staff Writers 

09-29-11 -- Congressional Democrats demanded an ethics investigation Thursday into Supreme Court Justice Clarence Thomas for allegedly failing to disclose that his wife was paid $700,000 by a conservative think tank. . . . They say Thomas marked off the "none" box on his annual financial disclosure form while his wife, Virginia, was raking in the dough working for the Heritage Foundation. . . . Between 2003 and 2007, she was paid $700,000, they claim. . . . "To believe that Justice Thomas didn't know how to fill out a basic disclosure form is absurd," said Rep. Louise Slaughter, a Democrat from Rochester, N.Y.

August 2011

Bill Puts Ethics Spotlight On Supreme Court Justices

by Nina Totenberg, NPR

08-17-11 -- At times of partisan stress in American politics, the Supreme Court often becomes part of the game, and the ethics of individual justices become a focus of criticism. . . . Liberal groups are leading the charge now. . . . Common Cause, for instance, discovered that Justice Clarence Thomas failed to report his wife's nearly $700,000 in income when she worked for the conservative Heritage Foundation. The failure was indeed a clear violation of the law, but it was also the kind of oversight that occurs routinely on disclosure forms, and Thomas quickly amended his filings for a 13-year period, saying he had misunderstood the law's requirements.

Cases lining up to ask Supreme Court to clarify Second Amendment rights

By Robert Barnes, The Washington Post

08-14-11 -- A funny thing has happened in the three years since gun-rights activists won their biggest victory at the Supreme Court. . . . They’ve been on a losing streak in the lower courts. . . . The activists found the holy grail in 2008 when the Supreme Court’s 5 to 4 decision in District of Columbia v. Heller said the Second Amendment guaranteed an individual right to own a firearm unconnected to military service. The court followed it up with McDonald v. Chicago two years later, holding that the amendment applies not just to gun control laws passed by Congress but to local and state laws as well. . . . The decisions were seen as a green light to challenge gun restrictions across the country, and the lawsuits have come raining down — more than two a week, according to the anti-gun Brady Center to Prevent Gun Violence.

July 2011

Scalia and Thomas disagree about children and free speech

By Robert Barnes, Washington Post 

07-03-11 -- Justice Clarence Thomas last week called upon “father of liberalism” John Locke, 18th-century philosopher Jean-Jacques Rousseau, the Puritan tradition, and American icons Thomas Jefferson and Noah Webster to announce a constitutional finding that his colleagues considered startling: . . . The First Amendment does not convey a free-speech right when minors are involved. . . . Thomas dissented from the court’s decision in Brown v. Entertainment Merchants Association that violent video games, like books and movies, are protected forms of free speech. The ruling found that California’s ban on the sale or rental of such games to those under 18 violated the Constitution.

Justice Ginsburg reflects on term, leadership role

By Joan Biskupic, USA TODAY 

07-01-11 -- In her new position as the most senior member of the Supreme Court's liberal wing, Justice Ruth Bader Ginsburg has been carving out a more prominent role among the nine justices and intensifying her efforts to influence colleagues. . . . Reflecting on the recently completed term during an interview with USA TODAY in her chambers this week, Ginsburg expressed regret about some cases the five-justice conservative majority controlled, saying of one, "I thought the court was not just wrong, but egregiously so." . . . Yet the 18-year veteran who has survived two bouts with cancer also voiced optimism about the direction of the court: "I'm eternally hopeful."

June 2011

Second Lives: For These Former Justices, Retirement Is No Day at the Beach

By Mark Walsh, ABA Journal magazine

07-01-11 -- When Justice John Paul Stevens stepped down from the U.S. Supreme Court last year, it marked the first time in 12 years that there have been at least three retired justices. . . . And going back to 1994, when Justice Harry A. Blackmun retired, there began a period of a little more than a year when five ex-justices were still puttering around—former Chief Justice Warren E. Burger, and former Justices Lewis F. Powell Jr., William J. Brennan Jr. and Byron R. White. . . . But with a few exceptions, those justices were largely out of the spotlight in retirement. . . . For the three current ex-justices, retirement has seen little in the way of shuffleboard, Mahjong or Caribbean cruises. Instead, Justices Sandra Day O’Connor, David H. Souter and Stevens have been rewriting the book on retirement pursuits and expectations. . . . “Until now there wasn’t much post-judicial behavior” for retired justices, says Linda Greenhouse, who covered the Supreme Court for the New York Times for some 30 years and is now a senior research scholar and lecturer at Yale Law School. “Those who weren’t carried out were pretty old and debilitated by the time they left the court. Now we have this unusual collection of energetic, very engaged individuals.”

Sotomayor tells how she deals with diabetes

Associated Press, Washington Post  

06-21-11 -- Supreme Court Justice Sonia Sotomayor was seven years old and living in the South Bronx when she found she was thirsty all the time. Soon after, she started wetting her bed at night. . . . "I was ashamed," the 56-year-old justice said, as she related how she came to learn that she has diabetes. The audience for the unusually personal glimpse at a justice's life was children who are diabetics, like Sotomayor. And the reason she met with them Tuesday in a Washington ballroom was to assure them that their common affliction is no bar to doing anything they want. . . . "It's a disease you have to deal with, but you can," she said, as she sat in an armchair with 150 children seated in a semicircle on the carpet in front of her. . . . Sotomayor said she has the job of her dreams and that coping with diabetes has become second nature. She injects herself with insulin four to six times a day, often before she takes the bench with her colleagues to hear arguments in Supreme Court cases.

Blogs battle over New York Times's report on Justice Clarence Thomas

By Reid J. Epstein, Politico 

06-20-11 -- A lengthy Sunday New York Times story about the relationship between Supreme Court Justice Clarence Thomas and a Texas man who’s funded leading conservative groups has ignited a fierce partisan blog war over the George H.W. Bush appointee. . . . Conservative bloggers declared the story yet another liberal media hit piece held together by little more than innuendo and gossip, while liberals said it was more evidence of a justice too compromised by personal and business relationships to suitably hold a seat on the high court. . . . “The New York Times piece isn’t really about ethics,” wrote the widely-read University of Tennessee law professor Glenn Reynolds at instapundit.com. “It’s battlespace preparation for the Supreme Court’s healthcare vote. The problem for the Times is that Thomas doesn’t care what the New York Times thinks. Which means this is more about preparing a narrative of failure for ObamaCare — It was struck down by evil corrupt conservative judges. I think they’re going to be kept quite busy constructing failure narratives over the next couple of years.”

BYU study shows Supreme Court justices aren’t blind to gender

By Roxana Orellana, The Salt Lake Tribune  

06-14-11 -- A new report by two Brigham Young University researchers says U.S. Supreme Court justices interact differently during oral arguments depending on an attorney’s gender. . . . BYU associate professor of communications Ed Carter and then-BYU graduate student James Phillips analyzed more than 13,000 sentences from 57 sets of oral-argument transcripts between 2004 and 2009. They measured the justices’ levels of information-seeking and the amount of speaking (word counts) they did with attorneys. . . . What they found is that gender does matter — not in the case of the judge. But it does matter in the case of the attorney. Justices tended to make more comments and ask fewer questions of women attorneys, the report says. . . . With a few exceptions, the study indicated that justices popularly considered to be “conservative” spoke 22 percent less to female attorneys representing a liberal position. On the other hand, so-called “liberal” justices spoke 60 percent more to female attorneys who represented a conservative position. . . . Carter said the findings don’t necessarily mean the justices are negatively biased toward women. . . . “But we did find they do behave differently in terms of their questioning and their statements to the attorneys based on gender as a whole,” he said.

Scalia continues his history of relying on history

Tony Mauro, First Amendment Center Legal Correspondent

06-14-11 -- When it comes to the First Amendment, as with other parts of the Constitution and Bill of Rights, Supreme Court Justice Antonin Scalia’s credo usually goes like this: If it was good enough for 18th century America, it’s good enough for us now. . . . In Doe v. Reed last year, when the issue was whether the names of petition signers should be kept private, Scalia said no, pointing to Colonial-era “viva voce voting” practices – individuals voting out loud, often in the presence of candidates. In Citizens United v. Federal Election Commission, Scalia traveled back to the late 18th century for proof that corporations should enjoy the same free-speech rights as individuals. And in commercial-speech cases, Scalia has been impressed by the fact that Colonial newspapers carried advertisements as well as news stories on their front pages.

Alito Cast Vote in ABC Case While Children Held Disney Stock

By Greg Stohr, Bloomberg

06-01-11 -- Justice Samuel Alito, acknowledging an unintentional conflict of interest, said a staff oversight led him to take part in a 2009 U.S. Supreme Court ruling involving Walt Disney Co. (DIS)’s ABC Inc. even though his children held Disney stock. . . . Alito voted against ABC in the case, joining a 5-4 majority that revived Federal Communications Commission efforts to crack down on televised vulgarities. The decision left open the prospect that the FCC rules might be struck down on First Amendment grounds. . . . “It was apparently an oversight on the part of my staff,” Alito said in an interview yesterday. “They did a check for Disney, but apparently they did not do a check for ABC, and as a result they did not come up with this.” . . . Federal law requires judges to disqualify themselves if they have a financial interest in a case, including owning stock in a company that is a party to a dispute.

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May 2011

Groups Target Thomas' Wife's Work to Force Him to Sit Out High Court Rulings on Health Care

FoxNews.com 

05-30-11 -- Eyeing a potential 5-4 decision on President Obama's Affordable Care health care reforms, some Democratic lawmakers are trying to pressure Justice Clarence Thomas to sit out any health care case that may come before the Supreme Court. . . . And in an added tack to influence the court's decision-making, one election watchdog has demanded an FBI probe of the justice over a 2010 campaign finance ruling. . . . The months-long efforts to target Thomas focus on his financial disclosure forms, of which amended versions were filed earlier this month and released publicly on Friday. In them, Thomas reveals that his wife, Ginni Thomas, received a salary in 2010 from Liberty Central, a group that she helped found and which supports the repeal of the health care law. 

Sotomayor Got $1.175 Million for Memoir, Forms Reveal

By Adam Liptak, The New York Times 

05-27-11 -- Justice Sonia Sotomayor received a $1.175 million advance last year to write a memoir, according to financial disclosure forms released on Friday for the nine Supreme Court justices. . . . It was known that Justice Sotomayor was at work on a book, which was described in July by its publisher, Alfred A. Knopf, as a “coming-of-age memoir by an American daughter of Puerto Rican immigrants.” But the size of the advance had not been disclosed. . . . The payment brightened Justice Sotomayor’s financial picture. A debt for dental work in the range of $15,000 to $50,000 listed last year is not mentioned on this year’s form. Still, Justice Sotomayor was the only justice to list credit card debts, on four different accounts, all for less than $15,000 each.

Supreme Court ethics

A bill introduced by Rep. Christopher S. Murphy would subject Supreme Court justices to the same ethical rules that govern lower court judges.

Los Angeles Times Editorial

05-25-11 -- The Supreme Court is different from lower federal courts, and not just because its rulings can't be appealed. Another difference is that its justices are exempt from the ethical standards imposed on judges in less lofty positions. That's an unjustifiable anomaly that Congress should rectify. . . . The Code of Conduct for United States Judges was established by the U.S. Judicial Conference and covers all federal lower court judges. Among other things, the code says that "a judge should avoid impropriety and the appearance of impropriety in all activities." Supreme Court justices insist that they too are guided by the code, but when it comes to ensuring public confidence, voluntary compliance is no substitute for mandatory adherence.

SCOTUS needs an ethical code

POLITICO, Seattle Post Intelligencer 

05-13-11 -- Supreme Court justices are the closest thing we have to absolute monarchs. They have immense power over our lives, are accountable to no one for their decisions and can stay in office for life. . . . In return, they must not only act honestly and impartially but should avoid doing anything that even looks dubious. As the court often reminds us, the appearance of justice is as important as justice itself. Judging by recent actions, however, some current justices don't seem to buy that. . . . Today, Supreme Court justices are subject to virtually no ethical standards - except those they impose on themselves. That is not good enough. . . . The official Code of Conduct for United States Judges is not applicable to justices. It should be. Though legally unenforceable, it establishes specific standards of conduct that no justice is likely to ignore as casually as some seem to do now. . . . The provisions dealing with recusal, or withdrawal from a case, also need to be addressed. For the current system of allowing each justice to decide when to withdraw from a case is inadequate - it is axiomatic that no one should be a judge in his or her own case.

Justice Stevens: Killing bin Laden Was Lawful

By Jess Bravin, Wall Street Journal (blog)   

05-13-11 -- Retired Justice John Paul Stevens, who wrote Supreme Court opinions upholding the rights of Guantanamo detainees, said Thursday that the killing of Osama bin Laden was lawful. . . . “It was not merely to do justice and avenge Sept. 11,” but “to remove an enemy who had been trying every day to attack the United States,” Justice Stevens said at a dinner in Chicago, according to former Stevens law clerk Diane Amann, a University of Georgia professor who attended the dinner, which capped a Northwestern University symposium on the justice’s jurisprudence. . . . In 2004 and 2006, Justice Stevens wrote Supreme Court opinions holding that Guantanamo prisoners could challenge their detention before neutral judges, and that while in custody were entitled to the minimal protections of the Geneva Conventions. His rulings stressed that the laws of war—of which the Geneva Conventions, ratified by the U.S., form a principal part—cannot be ignored simply because the government found it “convenient” to do so.

Some Feel Justice Clarence Thomas Is Not the Best Choice to Honor Pioneering Black Jurist

Tony Mauro, Legal Times 

05-11-11 -- Supreme Court Justice Clarence Thomas heads to his home state of Georgia next week to help dedicate a new courthouse, but not everyone there is eager to see him. . . . News stories in Augusta here and here report that several local officials and lawyers are upset that Thomas will be the guest speaker May 18 at the opening of a court building named for John Ruffin Jr., a local civil rights lawyer who became the first black judge on the Georgia Court of Appeals. Ruffin died in 2010. . . . “It’s not [Thomas’] fault, but his judicial philosophy is the antonym of what Judge Ruffin’s was and what it is in the vast majority of the minority community,” Richmond County State Court Judge David Watkins was quoted as saying. A close friend of Ruffin also said, “I know of no way we could dishonor John Ruffin more than to have Clarence Thomas speak for this occasion.”

From Retirement, Justice John Paul Stevens Dissents in Funeral Protests Case

Ariane de Vogue, ABC News 

05-05-11 -- Retired Supreme Court Justice John Paul Stevens said in a speech on Tuesday that had he still been on the bench, he would have ruled against the members of the Westboro Baptist Church of Topeka, Kansas, who had held provocative anti-gay protests at military funerals. . . . An 8-1 majority on the Supreme Court said that the First Amendment  protects the speech of the church members and threw out  damages awarded to Albert Snyder, who first sued the church for emotional distress he endured after it protested at his son’s funeral. His son, Lance Cpl. Matthew Snyder, died in Iraq in 2006. . . . In a speech given to the Federal Bar Council in New York City, Stevens said that the case "involved a verbal assault on private citizens attending the funeral of their son." . . . Stevens praised Justice Samuel Alito, who issued the sole dissent in the case and said, “to borrow Sam’s phrase, the First Amendment does not transform solemn occasions like funerals into ‘free fire zones.’"

Stevens Urges Congress to Crack Down on Prosecutorial Misconduct

By Jess Bravin, WSJ.com's "Law Blog”

05-03-11 -- Retired Justice John Paul Stevens said Supreme Court decisions have given local prosecutors impunity for violating constitutional rights, and urged Congress to respond by authorizing victims of misconduct to sue. . . . In a speech Monday night to the Equal Justice Initiative, which advocates for indigent defendants,  Justice Stevens criticized the court’s March decision overturning a jury’s $14 million award to an innocent man who spent 14 years on death row after prosecutors concealed evidence that could have cleared him. (Click here to see the full text of Stevens’ speech.) . . . The case of Connick v. Thompson saw the court split 5-4 along its conservative-liberal divide. Writing for the majority, Justice Clarence Thomas rejected the freed man’s theory that the New Orleans district attorney’s office was negligent for failing to train its staff to comply with longstanding precedents requiring prosecutors to disclose exculpatory evidence to defendants.

April 2011

Law Prof’s Advice to Ginsburg and Breyer: Retire and Do It Now for the Liberal Cause

By Debra Cassens Weiss, ABA Journal

04-29-11 -- Harvard law professor Randall Kennedy says it’s time for Justices Ruth Bader Ginsburg and Stephen G. Breyer to move on. . . . It’s the responsible thing to do, Kennedy writes for the New Republic. If the liberal justices remain on the court and President Obama fails to win re-election, “they will have contributed to a disaster,” he writes. “Both are, well, old: Ginsburg is now 78, the senior sitting justice. Breyer is 72.” Neither are likely to outlast a two-term Republican president if Obama loses in 2012, he says.

Chief Justice Roberts and the First Amendment

David L. Hudson Jr., First Amendment Scholar, First Amendment Center 

04-22-11 -- When John G. Roberts was nominated in 2005 to become the 17th chief justice of the United States, he faced heated opposition. . . . Howard Dean, then-chairman of the Democratic National Committee, called him “the wrong man for the job.” Ralph Neas, president of People for the American Way, termed him “a dangerous bet.” One hundred sixty law professors sent a letter to the Senate opposing his nomination to the Supreme Court. Georgetown law professor Peter Edelman said: “Roberts has systematically shown himself, issue by issue, to be on the absolute far right of the spectrum of judicial interpretation, of views about the Constitution of the United States.” . . . Perhaps many of his opponents still feel the same way about Roberts, viewing him as a staunch conservative. Conservatives are often portrayed as hostile or indifferent to First Amendment freedoms. But in the arena of free speech Roberts has not been a disaster — far from it. Although he did join in Justice Anthony Kennedy’s majority opinion in Garcetti v. Ceballos (2006) — a troubling decision that gravely limited the free speech of public employees — in other free-speech decisions he has shown an appreciation for fundamental First Amendment values.

Justices Kennedy and Breyer Charm Lawmakers

By Jess Bravin, Wall Street Journal (blog)  

04-14-11 -- Members of Congress aren’t shy about criticizing the Supreme Court, with conservatives and liberals alike known to accuse the justices of slanting the law to fit their political and personal preferences. . . . But when two justices made a rare visit to a House hearing room Thursday, the lawmakers melted like so many tweens at a Justin Bieber appearance. . . . “I’m honored to sit up here today and to engage you in conversation,” Rep. Steve Womack (R., Ark.) told Justices Anthony Kennedy and Stephen Breyer, who came to present the court’s budget request to an appropriations subcommittee. “Justice Breyer, particularly to you, thank you for your trip to Arkansas last week”—a stop on the justice’s book tour— and “exporting, if you will, yourself and your knowledge and your perspective to the people of the great state of Arkansas.” . . . Rep. Kevin Yoder (R., Kan.) asked something about the case backlog. Moments into Justice Kennedy’s response, the freshman congressman spoke again.

Justice O’Connor Receives Criticism for Ethics

By Laura Phillips, ThirdAge

04-10-11 -- Retired Supreme Court Justice O’Connor is being criticized for violating a code of ethics by hearing cases in US appeals courts while participating in public policy issues. . . . Sandra Day O’Connor, 81, apologized for 50,000 recorded telephones featuring her support for a ballot measure to change the way state judges are selected to Nevada voters. The judge said she did not authorize the after-midnight calls featuring her voice, but did defend her right to be involved in the campaign. . . . In September, federal judges in Iowa stayed away from a conference on judicial elections at which O'Connor spoke after receiving an informal opinion that their presence would violate the judiciary's ethics code. . . . Most recently, O'Connor hosted an after-hours reception at the court that was billed as a celebration of Bristol Bay in Alaska, but featured speakers who were opponents of a proposed Alaskan copper and gold mine.

Supremely bad? Area case a top court ‘worst’

Even the U.S. Supreme Court can get it horribly wrong, legal scholars say, and a 1930s ruling in a case from Luzerne County was a classic.

Matt Hughes, Times Leader 

04-06-11 -- A case that began in Luzerne County has been named one of the U.S. Supreme Court’s biggest blunders by a panel of legal experts. . . . The high court’s 1938 decision in the Erie v. Tompkins case changed the procedure by which civil suits involving parties from different states are decided in federal court. The decision was among five “Supreme Mistakes” debated by constitutional law scholars at a conference held last week at Pepperdine University law school in Malibu, Calif. . . . The case began in Hughestown on July 27, 1934, when Harry Tompkins was struck by an open refrigeration car door of a passing Erie Railroad train while he was walking along a path next to the tracks. Tompkins, an unemployed metal worker, lost his arm in the incident, making it all but impossible to find work, so he sued the railroad company for damages. . . . Tompkins’ attorney filed a complaint in federal court, which at that time applied federal common laws to cases involving multiple states, because Pennsylvania law would have held the railroad less liable because Tompkins was trespassing. The train that struck Tompkins originated in New York state, and the car door may have been left open there. . . . Tompkins won his case in 1936 and was awarded $30,000 by the federal court in New York City, and won two subsequent appeals, but the Supreme Court, without prompting by attorneys for either party, overturned a decision from nearly 100 years earlier and decided the court must apply state law in cases between parties from different states. The court then threw out the judgment in Tompkins’ favor.

Chief Justice Roberts makes under-the-radar visit to Utah

By Robert Gehrke, The Salt Lake Tribune

04-06-11 -- Third-year law student Rachel Wertheimer expected one of her professors or a guest lawyer to hear her argue for a hypothetical travel agency being sued by a Muslim man who claimed he had been wrongly fired because of his religion. . . . So she was stunned when Chief Justice of the United States John Roberts heard her case, giving her the full Supreme Court treatment, diving in with questions before she finished her first sentence. . . . "It was such a once-in-a-lifetime, amazing opportunity," Wertheimer said of the surprise appearance by Roberts, who was in Utah on Tuesday as the University of Utah College of Law’s jurist-in-residence. "He asked amazing questions. They were really tough questions, but I thought he was very engaging. … It was intimidating when I got up, but he made me feel very comfortable up there." . . . The chief justice peppered the students with hypothetical scenarios and questions over 90 minutes to test the students’ knowledge of the issues.

March 2011

Justice Scalia ticketed after fender-bender

No one was injured in accident involving four cars, police say

msnbc.com staff and news service reports 

03-30-11 -- U.S. Park Police ticketed Supreme Court Justice Antonin Scalia after a four-car fender-bender Tuesday along the George Washington Parkway. No one was injured in the accident, police said. . . . Scalia, 75, was driving his car to work at the time of the accident, court spokeswoman Kathy Arberg said. He was on the bench when the court's morning session began about 10 a.m. EDT. . . . Police said Scalia was driving south on the parkway just before 9 a.m. when his car collided with a vehicle in front of him, triggering a chain reaction. The justice's car was towed from the scene. . . . Park Police Sgt. David Schlosser said Scalia received a ticket for following too closely, The Washington Post reported.

An ethics code for the high court

By Nan Aron, Washington Post  

03-14-11 -- The behavior of Supreme Court justices has come under increasing scrutiny. Questions have been raised, for instance, about the propriety of Justices Antonin Scalia and Clarence Thomas appearing at political strategy conferences hosted by the conservative Koch brothers. Other justices' activities have also prompted concerns that the line between justice and politics is increasingly blurred. . . . Regardless of whether one shares fears of politicization, disputes are inevitable so long as the nation's highest court operates with almost no compulsory ethics rules to guide - or constrain - behavior. The Supreme Court, whose members are shielded with lifetime appointments, is the only entity in our government that is not subject to mandatory ethics requirements. That is why reformers are calling for the Code of Conduct that governs all other federal judges to apply to the justices. Surely it makes no sense to have lesser standards for the highest court than those in place for lower courts.

Supreme Night Court: Judges Relax By Trying the Fictitious and the Dead

Justice Kennedy Puts Hamlet in the Dock; Lights, Action and, in This Case, Cameras

By Jess Bravin, Wall Street Journal   

03-14-11 -- It's harder than ever to get a case before the U.S. Supreme Court. But while the court turns away 99% of 10,000-odd petitions filed each year, there are cases many justices find irresistible: fictitious ones. . . . Justice Anthony Kennedy came here Jan. 31 to conduct a mental-competency hearing for Hamlet, accused of killing Polonius. Billed as "Justice Anthony M. Kennedy's the Trial of Hamlet," the production featured real-life celebrity lawyers including the deputy district attorney who's prosecuting Lindsay Lohan for shoplifting and, as a bleeding-heart juror, Oscar-winning actress Helen Hunt. . . . Shakespeare's tragic hero is just one of many literary and historical figures to make the mock docket. Justice Ruth Bader Ginsburg once donned a 19th-century major general's uniform to preside over Col. George Custer's mock court-martial.

February 2011

A pressing need for a judicial code of ethics

By Nan Aron, The Hill (blog)

02-28-11 -- Recent reports about Supreme Court justices participating in partisan events have raised concerns that this behavior may undermine public perception of the Court’s impartiality and the legitimacy of its decisions. In fact, the situation is so acute that 107 judicial ethicists from 76 law schools around the country signed a letter to Congress calling for reform of the Court’s ethics rules. . . . Perhaps the most notorious example of justices willfully entering into politicized activity was the reported attendance by Justices Antonin Scalia and Clarence Thomas at an electoral strategy conference for big donors and politicians hosted by the billionaire Koch Brothers. This wasn’t just an opportunity to speak or socialize at a gathering on conservative philosophies. A central purpose of the conference was the solicitation of millions of dollars from wealthy donors in order to influence elections and advance a political agenda. 

Secret Tapes Reveal President Johnson’s Plans for Thurgood Marshall

By Debra Cassens Weiss, ABA Journal

02-25-11 -- President Lyndon Johnson’s plans to groom Thurgood Marshall for the U.S. Supreme Court are revealed in once-secret secret recordings and tape transcripts that have been released to CNN. . . . Johnson’s plan was to appoint Marshall as solicitor general, where he would get the experience that would make him one of the best-qualified candidates ever to the U.S. Supreme Court, CNN reports. The tapes were released by the Miller Center at the University of Virginia, which is analyzing and transcribing secret White House tapes of several presidents. . . . Johnson talked about the plan with his former attorney general, Nicholas Katzenbach. "I want to build [Marshall] up where he's impenetrable when he becomes a Supreme Court justice,” Johnson said. The president said he wasn’t sure if he would appoint Marshall, “but he's damn sure going to be qualified." Johnson appeared more sure of the future appointment in a conversation with John Kenneth Galbraith, however. The plan, the president said, was to nominate Marshall after he was solicitor general for a year or two and a vacancy opened up.

McEwen sees justice in tell-all

Washington Post 

02-23-11 -- Four months after Lillian McEwen broke a two-decade silence about her longtime relationship with Clarence Thomas, the retired administrative law judge has written a book. . . . And it is dirty. Really dirty. . . . McEwen's "D.C. Unmasked & Undressed" starts off as a memoir of childhood abuse but evolves into twin journeys of sexual discovery and Capitol Hill careerism. The Supreme Court justice is only one of many partners whose caresses McEwen recalls in NC-17 prose - he doesn't even show up until midway through - but he's singled out for special reminiscence. . . . The author swoons over the fit physique - "velvet-covered cement" - that she says Thomas hid under baggy suits, and kisses that "tasted like honey." We're sparing you a lot of bodice-ripping details that go way beyond the family-newspaper zone. A spokesperson for Thomas's office said the justice will not comment on the book.

The justices' junkets

Washington Post Editorial

02-20-11 -- SUPREME COURT Justices Antonin Scalia and Clarence Thomas have been in the news lately for attending events sponsored by conservative interest groups. But they are not the only members of the high court who routinely enjoy all-expenses-paid excursions funded by third parties, including some that may be considered controversial. . . . Take Justice Stephen G. Breyer's 2008 trip to Vienna to attend the World Justice Forum, which is sponsored by what some conservatives consider the liberal American Bar Association; Justice Breyer next traveled on the ABA's dime to attend the group's international law symposium in Japan, where critics might assume that he picked up fresh ideas about how to insert foreign judicial notions into his jurisprudence. Justice Ruth Bader Ginsburg spent several days in Montreal in 2006 courtesy of the American Sociological Association, which billed its meeting as "an intellectual platform to explore how the constructs of race, religion, gender, sexuality, class and nation create serious inequalities, conflicts and human suffering." And in 2009, just before her Supreme Court nomination and while she was a federal appeals judge, Justice Sonia Sotomayor enjoyed a week's respite in sunny San Juan, Puerto Rico, thanks to the American Civil Liberties Union. Enough said.

Sometimes, Justice Can Play Politics

By Noah Feldman, Op-Ed Contributor   New York Times    

02-12-11 -- WHAT is it about those robes? They are only flimsy bits of wools, enlivened in a few cases by some very European lace at the collar. Yet the moment our Supreme Court justices put them on, a segment of the concerned public imagines that they have become priests consecrated to the sacred order of the Constitution. . . . Recently, Justice Antonin Scalia has been criticized for meeting with a group of (gulp) conservative members of Congress and accused of participating in an event organized by the conservative billionaire Charles Koch. Justice Clarence Thomas has been excoriated because his wife, Virginia, last year took a leading role in organizing Liberty Central, a Tea Party offshoot that received anonymous, First Amendment-protected donations (she has since stepped down). He also belatedly amended 13 years’ worth of disclosure reports to include details of his wife’s employment. . . . Justices are required to disclose their income sources and those of their spouses. But the core of the criticisms against Justices Thomas and Scalia has nothing to do with judicial ethics. The attack is driven by the imagined ideal of the cloistered monk-justice, innocent of worldly vanities, free of political connections and guided only by the gem-like flame of inward conscience.

Justice Thomas’s Wife Sets Up a Conservative Lobbying Shop

By Eric Lichtblau, New York Times  

02-04-11 -- The wife of Justice Clarence Thomas, who has raised her political profile in the last year through her outspoken conservative activism, is rebranding herself as a lobbyist and self-appointed “ambassador to the Tea Party movement.” . . . Virginia Thomas, the justice’s wife, said on libertyinc.co, a Web site for her new political consulting business, that she saw herself as an advocate for “liberty-loving citizens” who favored limited government, free enterprise and other core conservative issues. She promised to use her “experience and connections” to help clients raise money and increase their political impact. . . . Ms. Thomas’s effort to take a more operational role on conservative issues could intensify questions about her husband’s ability to remain independent on issues like campaign finance and health care, legal ethicists said.

Antonin Scalia shoots from the hip on 'undemocratic' European Union

THERE is little chance US Supreme Court Justice Antonin Scalia could ever bore an audience.

Mark Schliebs The Australian   

02-04-11 -- At the University of Adelaide on Wednesday night, he let fly at the "undemocratic" European Union and the European Court of Human Rights and defended his decision to provide a dissenting opinion to a ruling that abolished sodomy laws in Texas. . . . As the longest serving justice of the current Supreme Court, Reagan appointee Justice Scalia -- a champion of state rights -- is a warhorse of the court's conservative wing and is regarded as one of the most powerful debaters on the bench. . . . Even at the beginning of his speech, the audience of lawyers, academics and students was warned that the former assistant attorney general to the Nixon and Ford administrations would not be holding back. . . . "The views I express aren't necessarily the views of the government of the United States or of the Supreme Court . . . my views are often not their views," Justice Scalia said. . . . He then declared his distaste for the workings of the European Union. . . . "The European Union is the most obvious example of how democratic choice can produce reduced democracy," he said.

Justice Sotomayor Becomes a Forceful Voice as Obama Top Court Appointee

By Greg Stohr, Bloomberg

02-03-11 -- On a U.S. Supreme Court full of justices with a lot to say, Sonia Sotomayor is beginning to find her voice. . . . In her second term since President Barack Obama appointed her in 2009, Sotomayor is speaking out from the bench for the rights of prison inmates, banding with her fellow Democratic appointees on ideologically divisive issues and boring into the details of federal securities-fraud laws. . . . And increasingly Sotomayor, 56, is making herself a public figure. She is using the court’s mid-winter recess to speak with students around the country, sharing tidbits about her colleagues and even confessing her insecurities about a job she says weighs more heavily on her than she had imagined. . . . “Almost everything I’ve done I’ve been frightened about, including being a Supreme Court justice,” she said to a packed auditorium at the University of Chicago Law School this week, before telling them about reassuring words she received from her now-retired colleague, John Paul Stevens.

January 2011

Some Justices Still Haven’t Mastered E-Mail, Sotomayor Says

By Debra Cassens Weiss, ABA Journal

01-28-11 -- Justice Sonia Sotomayor admits she is a “dinosaur” when it comes to social networking, but she is apparently doing better than some of her Supreme Court colleagues. . . . Speaking at an appearance at Kansas State University, Sotomayor said several justices still haven’t mastered e-mail, the Associated Press reports. She didn’t name names.

Supreme Court Justices Could Be No-Shows for Obama's State of the Union Address

By Lee Ross| FoxNews.com  

01-24-11 -- Just one day before President Obama’s State of the Union address, it’s still not clear whether Chief Justice John Roberts will attend or, like high court colleague Justice Samuel Alito, skip the event. . . . The recent uptick in collegiality from lawmakers on Capitol Hill in the run-up to Tuesday’s speech contrasts sharply with the lingering controversy from last year’s speech in which President Obama rebuked the justices over a campaign finance decision. If Roberts decides not to attend, it would be his first absence at a State the Union Speech since joining the court in 2005. . . . Roberts’s decision -- or that of any other justice for that matter -- wouldn’t normally be an issue but for the instant uproar that resulted from last year’s address and the observations he and some of his colleagues have made over the last 12 months about the celebrated but often hyper-partisan evening.

Tea time for Antonin Scalia

By Jennifer Epstein, Politico  

01-24-11 -- Supreme Court Justice Antonin Scalia will speak on Monday on the separation of powers at an event organized by Rep. Michele Bachmann (R-Minn.) and her Tea Party Caucus. . . . Though the Tea Party Caucus is a conservative group, Bachmann’s office confirmed to POLITICO that it invited all members of Congress to attend the lecture and that some Democrats indicated plans to be on hand. . . . “It is a special privilege to have him address the first of what will be regular seminars featuring constitutional scholars,” Bachmann said of Scalia in December when the event was first announced. . . . “In his 24 years of service on the high court, Justice Scalia has distinguished himself by his ‘originalist’ approach to constitutional interpretation,” she added.

Justice Clarence Thomas Failed to Report Wife's Earnings, Watchdog Says

Christopher Weber, Politics Daily Correspondent 

01-24-11 -- Supreme Court Justice Clarence Thomas failed to report nearly $700,000 of his wife's income from a conservative foundation during a four-year span, according to a government watchdog. . . . Common Cause cited IRS records from the Heritage Foundation that that show the think tank paid Virginia Thomas $686,589 between 2003 and 2007. Clarence Thomas did not note the earnings in his Supreme Court financial disclosure forms for those years. Where "spousal noninvestment income" would be disclosed, the justice checked the box next to "none," the watchdog said. . . . Virginia Thomas was also paid by Liberty Central, a conservative political action group she co-founded in 2009. That income was also not noted by her husband, according to Common Cause. . . . Clarence Thomas, as a federal official, is required to disclose his spouse's income under the Ethics in Government Act of 1978.

December 2010

Did Justice Breyer Invent History to Justify His Personal Agenda?

Written by Joe Wolverton, II, The New American

12-28-10 -- An oft-quoted maxim attributed (dubiously) to Mark Twain instructs writers: “Never let the truth get in the way of a good story.” Perhaps Supreme Court Justice Stephen Breyer has been reading the recently published diaries of Twain and has been inspired to weave a little yarn of his own — a story strong on emotion but woefully light on facts. . . . In an expertly written article published online earlier this month in The New American, Bruce Walker reported on comments made by Justice Breyer during an appearance on the television talk show Fox News Sunday. . . . In that interview, Justice Breyer explains that his dissent in the landmark case of District of Columbia v. Heller is soundly based in the circumstances surrounding the wording and eventual passage of the Second Amendment. That regularly debated part of the Bill of Rights was, as with most of the others, introduced by the illustrious James Madison in the First Congress.

Sandra Day O'Connor Interviews John Paul Stevens

12-17-10 -- They've left the bench, but they still have opinions. Two former justices talk about how they've evolved-and how they feel about being overruled by a changing court.

Paolo Pellegrin,  Newsweek 

O'Connor: Do you think that over the years you were here, your approach to cases changed at all? Or your view of the law? Did you see changes in your own reaction to the law in the cases we heard?

Stevens: Well, yes, because it is a learning experience. I think nobody knows all the answers when he or she joins the court. You gradually learn about different areas of the law. And you learn through the briefs and arguments of your associates. So it's a continuing learning experience. It's a lot of fun ... one of the most interesting things anyone can do.

O'Connor: I feel the same way about it. Much is done at the time a new justice is nominated to try to see what the justice is going to do. But in fact, is it your experience that the nominee himself or herself doesn't know what they're going to do?

Stevens: Absolutely, absolutely.

O'Connor: The nominee hasn't addressed all those issues.

Stevens: You haven't read the briefs. All sorts of questions may come out differently after you study [them]. No, I think it is a terrible mistake in the confirmations to expect the nominee to know all the answers, because you just don't know them at the time.

Unplugged

When do Supreme Court justices need to just sit down and be quiet?

By Dahlia Lithwick and Sonja West, Slate 

12-14-10 -- Retired Justice John Paul Stevens During his 35-year career on the Supreme Court, Justice John Paul Stevens gained a reputation as the mild-mannered jurist who sought permission before asking questions of oral advocates. Over his decades on the bench, Stevens gave few interviews, rarely made controversial remarks in his speeches, and wrote no books. . . . Then he retired. . . . Now, mere months after hanging up his robe, Stevens has been traveling the country, letting us know what he really thinks on everything from his views on the opposition to the "Ground Zero Mosque" ("American Muslims should enjoy the freedom to build their places of worship wherever permitted by local zoning law") to capital punishment (a system infected with racism, political exploitation, and "regrettable judicial activism") to the merits of Bush v. Gore ("it had obviously no merit to it").  . . . And he is not alone. The two other retired justices have been dishing as well. Earlier this year, the formerly mild-mannered Justice David Souter let loose about the messy realities of constitutional interpretation, and Justice Sandra Day O'Connor came to the defense of the three Iowa Supreme Court justices who were facing retention elections because of their votes in favor of same-sex marriage.

Scalia to Teach Class on Constitution Organized by Bachmann

Posted by Brian Montopoli, CBS News

12-14-10 -- At the invitation of Republican Rep. Michele Bachmann, Supreme Court Justice Antonin Scalia will teach a class on the meaning of the Constitution to incoming members of Congress, Bachmann's office tells CBS News. . . . Though the details are still being worked out, Bachmann's office says the class will take place in late January. It will be the first in a series of weekly or biweekly classes planned by the conservative Minnesota representative. The courses will focus on the nation's founding documents. . . . "We're going to do what the NFL does and what the baseball teams do: we're going to practice every week, if you will, our craft, which is studying and learning the Declaration, the Constitution, the Bill of Rights," Bachmann told Lou Dobbs in a discussion of the plan last week.

Kindle and iPad Help Kagan and Scalia Read Briefs on the Go

By Debra Cassens Weiss ABA Journal

12-13-10 -- At least two members of the U.S. Supreme Court are apparently saving some trees by reading briefs with electronic readers. . . . Justice Antonin Scalia uses an iPad, while Justice Elena Kagan uses a Kindle, C-SPAN reports. The network has posted excerpts of a 48-minute interview with Kagan, her first since she joined the court, the Associated Press reports.

Justice Breyer Really Hates The Rule Of Law

Sound Politics Commentary

12-13-10 -- I've mentioned it many times before, but Justice Breyer -- defender of the indefensible -- has always had it in for the written words of the Constitution. He tries to couch his distaste for our highest written law in reasonable-sounding legal theories, but in the end they are simply a disguise for his true legal theory: that judges get to make up whatever they want as they go along. . . . A good example is his justification from his last book, Active Liberty, for restraint on the use of money in political campaigns: because, he said, the goal of the First Amendment is to enhance democracy, we can therefore restrict speech (such as by telling people they can only spend a certain amount of money on speech) in order to enhance democracy (on the assertion that if there's too much speech by some people, it drowns out the speech of others). . . . So to Breyer, the law literally doesn't mean what it says: the law is used to give us guidelines on values, and then we can ignore what the law actually says in order to further those same values. This is, of course, tyranny: it puts all of our rights not in our own hands, but in the hands of judges who have complete authority to determine not whether we do have certain rights, but whether we should.

Is It ‘Illegal’ or ‘Undocumented’ Immigrants? Sotomayor Opts for the Latter

By Debra Cassens Weiss, ABA Journal 

12-09-10 -- In oral arguments on Wednesday, the U.S. Supreme Court considered an Arizona law that revokes the licenses of businesses that knowingly hire illegal immigrants. . . . The legal issue was whether federal law pre-empts Arizona’s tougher penalties. But another issue, not directly addressed, is whether “illegal immigrants” or “undocumented immigrants” is the correct term. . . . Justice Sonia Sotomayor opted for “undocumented immigrants,” and was the only justice to do so, the Washington Post reports. She used language endorsed by the National Association of Hispanic Journalists.

November 2010

Report: Wife of Justice Clarence Thomas to give up advocacy post

by Catalina Camia, USA Today News

11-15-10 -- Virginia Thomas, the wife of Supreme Court Justice Clarence Thomas, is reported to be stepping down from a conservative advocacy group she founded last year. . . . The Washington Post reports that Thomas will “relinquish control” of Liberty Central so it can continue “without any of the distractions.” The story quotes Caitlin Carroll, a spokeswoman, as saying an announcement will be made later today or tomorrow.

Blogger Loudly Questions Alito’s Dinner Attendance, Tapes Irate Security Guard

By Debra Cassens Weiss, ABA Journal

11-11-10 -- A Think Progress blogger has loudly questioned Justice Samuel A. Alito’s attendance at an American Spectator fund-raising dinner—and received an irate response from a security guard. . . . Blogger Lee Fang asserts that the American Spectator is a right-wing magazine and its publisher leads a "secretive group of conservatives" who seek to elect Republicans and block President Obama’s judicial appointments. Writing at Think Progress, Fang says he raised the issue with Alito himself. . . . “As Alito entered the event last night," Fang wrote, "I approached the justice and asked him why he thought it appropriate to attend a highly political fundraiser with the chairman of the Republican Party, given Alito’s position on the court.

Sotomayor’s Cert Dissent Was ‘Implicit Invitation to Kagan’

By Debra Cassens Weiss, ABA Journal

11-09-10 -- A dissent from a cert denial last month had some court watchers wondering whether Justice Sonia Sotomayor was staking a claim to the role played by the Supreme Court’s famous liberal justice, the late Thurgood Marshall. . . . Sotomayor argued that the Supreme Court should have accepted the appeal by an HIV-positive prison inmate who asserted he could not be forced to do hard labor after he stopped taking his medication, according to a Slate column by Harvard law professor Noah Feldman, the author of a new biography of four justices appointed by Franklin D. Roosevelt.

October 2010

Impeachment calls part of life for a Supreme Court justice, but few get very far.

Robert Barnes, Washington Post Staff Writer

10-31-10 -- All across the country Tuesday, political incumbents are bracing for judgment from an angry electorate. So perhaps members of the Supreme Court should not be surprised that they are in somebody's sights, as well. . . . Justices, of course, can't be voted out. They serve for life, or as the Constitution puts it, "shall hold their Offices during good Behavior." . . . But that hasn't stopped calls from both the left and the right recently for the House to open impeachment hearings for, alternately, Justice Clarence Thomas, Chief Justice John G. Roberts Jr. and Justice Sonia Sotomayor. . . . None of the complaints is gaining traction, but they do seem to indicate a desire to do something about the court's rulings or recent developments that some say violate testimony given at justices' confirmation hearings.

In important cases, Supreme Court outcomes sometimes determined by a single word

By Robert Barnes, Washington Post Staff Writer   

10-17-10 -- The password at the Supreme Court on Wednesday was "file." . . . The day before, it was "unavoidable." . . . And in another case, the justices spent considerable time pondering the meaning of the phrase "necessarily implies." That one is particularly problematic, Chief Justice John G. Roberts Jr. noted. . . . "I mean, the adverb points one way and the verb points the other," he said. . . . Supreme Court justices receive the most attention when they divine the Constitution to determine how it protects personal privacy or restricts the government from infringing gun rights. . . . But their work more often is deciphering the muddy language of legislative compromise or even the ambiguous words of their predecessors on the bench. . . . Three cases the court heard last week all hinged on the definitions of a handful of words. And there is nothing trivial about the task.

In court of public opinion, U.S. justices mostly get it right

Since the panel's tilt to the right four years ago, Americans tend to agree with its key rulings, a survey shows.

By David G. Savage, Tribune Washington Bureau

10-16-10 -- The Supreme Court shifted to the right four years ago when conservative Justice Samuel A. Alito Jr. succeeded moderate Sandra Day O'Connor. . . . And if American public opinion is the measure, the Roberts court has made the right call in most of its major decisions since then, according to a recent study that asked respondents about cases. . . . A strong majority favored conservative rulings that prohibited "partial-birth" abortions, upheld a homeowner's right to have a gun, and required voters to show photo identification. The majority also supported liberal rulings that said environmental regulators could restrict the carbon pollution linked to global warming and that struck down state laws that put juvenile criminals in prison for life without hope for parole.

Alito's warning

Shelagh Gray, American Thinker

10-16-10 -- Justice Samuel Alito Wednesday warned Americans of a grave danger to constitutional governance, laying blame squarely on the nation's law schools. . . . Having suffered the president's critical remarks and the ensuing Congressional Democrats' standing ovation at the 2010 State of the Union address, the headline from Justice Samuel Alito's "Let Judges be Judges" speech Wednesday night at the Manhattan Institute's Wriston Lecture was that he doubts he will be in attendance when the State of the Union address is again delivered next January. Sad as I am to see the rot of dirty politics sully a dignified custom of our great nation, I was far more disturbed by another section of Justice Alito's speech in which "... he used the occasion to warn that the nation's most prestigious law schools are now dominated by "judicial theorists" who oppose judges applying the laws and the Constitution as written. . . . "It's critical for alternative voices to be heard in the law schools," the justice said during the question-answer period. "The Federalist Society does a fantastic job of providing an alternative voice in law schools," Alito said, referring to the 20,000-strong conservative legal society that believes the judiciary should "say what the law is, not what it should be."

NASA contractors want retraction from Justice Department

By Ed O'Keefe, Washington Post Staff Writer

10-12-10 -- Contractors working for NASA are calling on Acting Solicitor General Neal Katyal to retract statements made last week to the Supreme Court regarding which agency facilities the contractors can access with their identification badges. . . . Issuing a retraction of statements made to the high court is rare, according to legal experts. . . . The group of scientists, engineers and administrative staff employed by the California Institute of Technology and under contract with NASA's Jet Propulsion Laboratory were the focus of a Supreme Court case heard last week on the government's background checks of contractors. . . . Questions on the background checks, including queries about drug use and counseling, were overly intrusive, the contractors said. But Katyal argued that privacy rights should not bar the government from asking questions that private employers also might ask. . . . During his oral arguments, Katyal told justices that the questions are justified on national security grounds because ID badges worn by contractors give them access to JPL and all other NASA facilities.

Justice Thomas and His Wife

The New York Times Editorial

10-12-10 -- Virginia Thomas, the wife of Justice Clarence Thomas of the Supreme Court, is the founder and chief executive of Liberty Central, a nonprofit organization set up to “restore the greatness of America,” in part by opposing the leftist “tyranny” of President Obama and Democrats in Congress. Its first contributions of $500,000 and $50,000 came from undisclosed donors. The size of those gifts, their anonymity and their importance to the organization raise a serious issue of ethics for Justice Thomas. . . . Sarah Field, an executive of Liberty Central, told The Times that the organization pays Mrs. Thomas. Justice Thomas is a beneficiary of that pay and has a responsibility under federal law to “inform himself” about who the donors are because they have an impact on Mrs. Thomas’s personal financial interests. . . . Mrs. Thomas is not legally required to disclose the donors. That is unfortunate, but she does have a duty to do so, just as former President Bill Clinton had a duty to disclose the donors to his library and charitable ventures when his wife became secretary of state.

Say cheese! It's picture day at the Supreme Court

Posted by Glenna DeRoy, USA Today

10-08-10 -- Think class photos are a relic of your distant past? Not if you make it to the Supreme Court.

The court's nine justices posed for a portrait today. The justices typically provide a photo opportunity when someone steps down from the bench and is replaced. . . . In the case of the 2010-2011 term, Justice John Paul Stevens retired, and Elena Kagan was nominated by President Obama and confirmed. In Kagan's first week on the job, the newcomer was a vocal participant in oral arguments.

Justice Breyer on Originalism, the Media and the Court

Tony Mauro, The National Law Journal

10-08-10 -- It was 2 p.m. on Monday, just a few hours after the Supreme Court opened its new term. Sitting for an interview in his newly renovated chambers, Justice Stephen Breyer had a fire roaring in the fireplace and tea service at the ready. . . . The day had been historic. Justice Elena Kagan joined the Court, giving it three women for the first time. And for the first time since the 1975, John Paul Stevens wasn't on the bench. But Breyer was guarded when asked about the day, offering only that "it was a nice day, nice to have new members, always sorry to lose our old members." . . . Breyer wasn't trying to be curt or unfriendly, but rather has learned the importance of staying on message -- his message -- during his current series of media interviews to promote his new book "Making Our Democracy Work: A Judge's View."

U.S. Supreme Court Begins New Era With 3 Women on Bench

Mark Sherman, The Associated Press, Law.com

10-05-10 -- The U.S. Supreme Court began a new era Monday with three women serving together for the first time, Elena Kagan taking her place at the end of the bench and quickly joining in the give-and-take. . . . In a scene that will repeat itself over the next few months, Kagan left the courtroom while the other justices remained to hear a case in which she will take no part. She has taken herself out of 24 pending cases, including the second of the two argued Monday, because of her work as the Obama administration's chief lawyer prior to joining the Court in August. . . . The arrival of the liberal-leaning Kagan is not expected to make a difference in the ideologically tinged cases in which four conservatives face off against four liberals with Justice Anthony Kennedy the decisive vote. Kennedy sides more often with the conservatives.

Five Justices, Vice President Attend Red Mass

Posted by Tony Mauro The Blog of Legal Times

10-03-10 -- Five Supreme Court justices, along with Vice President Joe Biden and a host of judges and legal luminaries were on hand this morning for the unofficial launch of the Court's fall term: the annual Roman Catholic Red Mass at the Cathedral of St. Matthew the Apostle. . . . With soaring organ and choral music, smoldering incense, and enough red-garbed priests to cause a traffic jam in the cathedral's central aisle, the mass is a dazzling ritual that brings together civic leaders, diplomats, law deans and others to pray for a successful year in administering justice. . . . With the Supreme Court now composed of six Catholics, three Jews, and no Protestants, here is the official tally of Sunday's attendees: Chief Justice John Roberts Jr. and Justice Antonin Scalia, Clarence Thomas, and Samuel Alito Jr., all Catholics, and Jewish justice Stephen Breyer, all with spouses. Roberts' wife Jane is a leader of the John Carroll Society, which sponsors the event. There was one notable hands-across-the-aisle moment: Roberts and Biden shook hands during the traditional "sign of peace" exchange.

September 2010

Leahy Introduces Bill to Allow Retired Supreme Court Justices to Serve

David Ingram, The National Law Journal

09-30-10 -- Sen. Patrick Leahy, D-Vt., has put into writing a proposal he first discussed publicly in June: allowing a retired U.S. Supreme Court justice to hear a case when a sitting justice has recused. . . . Leahy, the chairman of the Senate Judiciary Committee, filed the two-page legislation Wednesday, his office said. As Leahy told The National Law Journal in an interview in June, the proposal would allow the Court to avoid the possibility of a 4-4 tie when a justice has recused. . . . A big question has been how to decide which retired justice would serve during times when there is more than one retiree who is willing to serve. Now, for example, there are three retired justices -- Sandra Day O'Connor, David Souter and John Paul Stevens -- and skeptics have wondered whether litigants might be able to game any substitution.

Judges, Abortion Foes Want Supreme Court to Weigh In on Judicial Campaign Speeches

Marcia Coyle, The National Law Journal

09-30-10 -- A group of state judges, judicial hopefuls and an anti-abortion organization has taken its challenge to a broad range of restrictions on campaign speech by judicial candidates to the U.S. Supreme Court.
A longtime foe of those restrictions, James Bopp Jr. of Bopp, Coleson & Bostrom, in Terre Haute, Ind., has filed two petitions for review arguing that more than half a dozen clauses in Indiana and Wisconsin judicial codes violate the First and 14th Amendments. . . . Bopp is asking the justices to grant review of decisions by the 7th U.S. Circuit Court of Appeals in Bauer v. Shepard from Indiana and Siefert v. Alexander from Wisconsin. . . . "These decisions aren't consistent with the First Amendment's broad protections of political speech, and they most certainly aren't consistent with what other courts are doing across the country," Bopp asserted in a statement late yesterday.

Chief Justice Roberts Sells Pfizer Shares

By Brent Kendall  Wall Street Journal 

09-28-10 -- Chief Justice John Roberts Jr. recently sold his stock holdings in Pfizer Inc., which clears him to participate in two cases involving the drug maker that are pending on the Supreme Court's docket. . . . Justice Roberts, through a court spokeswoman, confirmed that he sold his Pfizer holdings on Aug. 31. . . . Justice Roberts's participation means the court will not be as short-handed in the coming Pfizer cases, in which the court's newest justice, Elena Kagan, is recused. Justice Kagan is sitting out several cases this term because she was involved in them previously when she served as U.S. solicitor general. . . . The chief justice's involvement, however, means eight justices will hear the two cases, raising the possibility that one or both could result in a 4-4 tie. . . . Justice Roberts's most recent financial disclosure form, for the 2009 calendar year, indicated that he held $15,000 or less of Pfizer stock, a financial position that has forced him to recuse from previous high court matters involving the New York-based drug maker. . . . Federal judges are required to recuse themselves in cases in which they hold a personal financial interest.

After Landmark Supreme Court Case,
Citizens United Group Finds Its Niche

Jim Kuhnhenn, The Associated Press, Law.com

09-28-10 -- In a pair of town houses less than 10 blocks from where the Supreme Court gave his group a place in legal history, David Bossie is making movies and cutting a path for a new art form: the nonpolitical political ad. . . . Bossie is the president of Citizens United, a conservative group whose anti-Hillary Clinton movie in 2008 led to a landmark ruling this year. The Supreme Court threw out parts of a 63-year-old law prohibiting corporations and unions from paying to air ads for or against political candidates. . . . The decision has contributed to an explosion in political advertising by outside groups, so far most of them allied with the Republican Party, that have flocked to raise big money from individuals and companies and flooded into some of the most competitive races across the country. . . . Bossie, however, is sticking with his movies -- conservative documentaries that are critical of President Barack Obama and the Democratic Congress or that champion conservative icons and causes.

Breyer Makes Case for Justices' Adherence to Constitution

By Jess Bravin, The Wall Street Journal

09-16-10 -- Justice Stephen Breyer expressed frustration with popular perceptions of the Supreme Court as a partisan battlefield, making an unusual public statement after a term full of 5-4 splits on politically sensitive issues. . . . Americans "think we're a group of junior league politicians," he said during a recent interview here. "They think we decide things on the basis of politics. Or, if not politics, on the basis of what we think is good for people, rather than the Constitution. And I think that's wrong." . . . In its most recent term, the court divided repeatedly along ideological lines, with a bare majority voting to strike down a local handgun ban and restrictions on corporate and union spending in elections. . . . Justice Breyer, during a conversation in the chambers he keeps at the federal courthouse here, sought to tamp down criticism from some on the left that conservatives led by Chief Justice John Roberts are on an ideological mission to roll back individual rights, while showing "tea-party groups" and others on the right why liberal-leaning justices like him believe they are keeping faith with the framers.

Scalia Gives Big Tobacco $270 Million Reprieve

The Associated Press, Law.com

09-15-10 -- Supreme Court Justice Antonin Scalia has temporarily blocked a state court order requiring tobacco companies to pay $270 million for a smoking cessation program in Louisiana.

Stephen Breyer Questions Right to Burn Quran

Posted by Lucy Madison, CBS News  

09-14-10 -- During an appearance on ABC's Good Morning America this morning, Supreme Court Justice Stephen Breyer addressed the recent controversy over a Florida pastor's plan to hold a Quran-burning rally on the anniversary of the September 11 terrorist attacks, saying he wasn't convinced the First Amendment would protect such an action if the case were brought to the court in the future. . . . "Holmes said it doesn't mean you can shout 'fire' in a crowded theater," Breyer told George Stephanopoulos during the GMA interview, referring to Supreme Court Justice Oliver Wendell Holmes, Jr., who wrote the opinion in a 1919 Supreme Court decision that addressed Freedom of Speech. "Well, what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is the being trampled to death?"

Kagan Recuses in 10 More Cases

Tony Mauro, The National Law Journal

09-13-10 -- Supreme Court Justice Elena Kagan last week quietly recused herself in 10 cases that will be argued in the term beginning Oct. 4, bringing to 21 the number of cases in which she will not participate. . . . That represents more than half of the 40 cases the Court has already agreed to hear in the new term -- a number that will grow in coming months as the justices agree to hear arguments in more new cases. . . . During her confirmation this summer, Kagan already indicated she would recuse in 11 cases in which she was counsel of record as solicitor general. The new batch appears to reflect a determination that her participation at earlier stages -- even where her office did not file a brief -- required her to step aside. . . . The best-known of the new cases in which Kagan will recuse is Chamber of Commerce v. Whiting, testing the power of states to regulate hiring of illegal aliens.

High Court to Decide Whether Climate Change Cases Should Proceed

Marcia Coyle, The National Law Journal

09-13-10 -- Perched on an Alaskan barrier island, the village of Kivalina faces imminent destruction because of melting sea ice. . . . Now, the community's legal effort -- which pins the blame on energy companies for the change in climate -- is in danger as well. So, too, is a pair of high-profile climate-change suits that may be taken up by the U.S. Supreme Court, one involving an effort by Connecticut and other states to reduce greenhouse-gas emissions, the other stemming from Hurricane Katrina. . . . All three suits rely upon the theory that climate change is a public nuisance and, therefore, state and local governments, as well as individuals who have been harmed, can sue for damages or injunctions. The Obama administration, in a recently filed brief in the Connecticut case, American Electric Power v. Connecticut, is arguing that it may not be prudent for the high court to allow these types of cases to go forward.

Under the U.S. Supreme Court: 'Obama's war on Arizona'

By Michael Kirkland, UPI

09-12-10 -- Don't try to sugar coat it: Arizona and the federal government are locked in a bruising fight over immigration law and the treatment of Hispanics, and each side hopes to deliver the legal equivalent of what used to be called an all-out rescue squad, emergency room "ass whuppin'." . . . The broadening struggle has the blogosphere sizzling, with one right-leaning site posting the headline, "Obama's war on America." . . . The site, "American Thinker," rips into the administration for what it considers its latest outrage -- the Arizona immigration case being included in a human rights report to the United Nations. . . . "First, (President) Barack Obama attacked America by suing Arizona for passing a law that merely reflected federal immigration law," the posting says, somewhat inaccurately. "And now this."

Kagan Indicates She'll Recuse in a 12th Pending Case

Tony Mauro, The National Law Journal

09-07-10 -- When she was up for confirmation, Supreme Court Justice Elena Kagan provided the Senate with a list of 11 pending cases in which she would recuse because of her participation as solicitor general. In a routine order list issued Friday, Kagan indicated she was not participating in an additional case -- the vaccine liability case of Bruesewitz v. Wyeth, set for argument Oct. 12. . . . Kagan signaled her recusal, as often happens at the high court, by stating she was not participating in a routine action on the case -- in this instance a motion for divided argument and argument time for the acting solicitor general. . . . But the government's brief (pdf) in the case is signed by Acting Solicitor General Neal Katyal, so why would Kagan have recused? The answer almost certainly lies in a related vaccine liability case, American Home Products v. Ferrari. At the invitation of the Court, the SG filed a brief (pdf) in January in the Ferrari case, signed by Kagan when she was SG.

Choice of clerks highlights Supreme Court's polarization

By Adam Liptak | New York Times

09-07-10 -- Each year, 36 young lawyers obtain the most coveted credential in U.S. law: a Supreme Court clerkship. Clerking for a justice is a glittering capstone on a resume that almost always includes outstanding grades at a top law school, service on a law review and a prestigious clerkship with a federal appeals court judge. . . . Justice Clarence Thomas apparently has one additional requirement. Without exception, the 84 clerks he has chosen over his two decades on the court all first trained with an appeals court judge appointed by a Republican president. . . . That unbroken ideological commitment is just the most extreme example of a recent and seldom examined form of political polarization on the Supreme Court. These days the more conservative justices are much more likely than were their predecessors to hire clerks who worked for judges appointed by Republicans. And the more liberal justices are more likely than in the past to hire from judges appointed by Democrats.

The Supreme Court Is Split on Apostrophes

By Debra Cassens Weiss, ABA Journal

09-02-10 -- Three dissenting justices—it used to be four—are breaking with their brethren on the issue of apostrophes. . . . Frank Wagner, the soon-to-be retired reporter of decisions for the Supreme Court, revealed the split in a two-part interview with the National Law Journal. The job of his office includes checking opinions for typos, misspellings, grammatical errors and deviations from Supreme Court rules. . . . But there’s no use in changing apostrophes of dissenting justices who disagree with the court's prevailing rule on possessives that requires an apostrophe only after the final “s” in “Congress.” Wagner tells the NLJ that over the years, four justices informed his office that they preferred “Congress’s” and he sees no reason to impose conformity. One of the dissenters has since left the court.

August 2010

Sotomayor tells DU audience that stubborn streak helped her overcome resistance

By Felisa Cardona, The Denver Post  

08-27-10 -- As a toddler, Sonia Sotomayor puffed her cheeks and clenched her teeth to stop her mother from feeding her. . . . When her mother poked her cheeks to force out the air, she only got more obstinate. . . . Recalling her stubborn streak Thursday during a speech at the University of Denver's Sturm College of Law, the nation's first Latina Supreme Court justice surmised it was exactly that personality that won her a seat on the nation's highest court. . . . "I keep getting knocked down, and I keep getting up," she said. . . . Sotomayor spoke for about an hour and took questions from students. But she kept her remarks limited to her biography and her upbringing in a Bronx housing project, brushing past questions about hot-button issues that eventually could reach the court.

Wal-Mart Appeals Sex Discrimination Class Action to Supreme Court

Tony Mauro, The National Law Journal

08-26-10 -- The nearly 10-year legal battle over the class action lawsuit alleging sex discrimination at Wal-Mart stores is now before the Supreme Court. . . . Wal-Mart's petition in Wal-Mart Stores v. Dukes challenging the class certification of more than 1 million female former and current workers was filed Wednesday by Theodore Boutrous Jr., a co-chair of Gibson, Dunn & Crutcher's appellate and constitutional law practice. The certification and the claims for monetary damages, he asserts, violate due process and federal rules of civil procedure, and conflict with other circuits and Supreme Court precedents. . . . "The class certified by the district court was estimated to include over 1.5 million former and current female Wal-Mart employees who held different jobs in different stores in different States under the supervision of different managers," the brief states. "The class is larger than the active-duty personnel in the Army, Navy, Air Force, Marines, and Coast Guard combined -- making it the largest employment class action in history by several orders of magnitude ... The majority decision conflicts with every pertinent decision of this Court and many decisions of other circuits on numerous important, recurring issues in class-action litigation, both in discrimination cases and generally."

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.

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.

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.

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.

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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