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Monthly Archives: April 2008

Court upholds Indiana voter ID law

The Supreme Court today upheld an Indiana law requiring voters to present photo identification in order to vote in elections – a rule that faced constitutional scrutiny by the Court by challengers who said the law would keep poor, older and minority voters from the polls.

The 6-3 plurality opinion in Crawford v. Marion County Election Board was authored by Justice John Paul Stevens.

“The severity of [voters' burden by the rule] is, of course, mitigated by the fact that, if eligible, voters without photo identification may cast provisional ballots that will ultimately be counted,” Stevens wrote. Even though they would have to travel potentially long distances to the circuit court clerk’s office do so, Stevens wrote, “it is unlikely that such a requirement would pose a constitutional problem unless it is wholly unjustified. And even assuming that the burden may not be justified as to a few voters, that conclusion is by no means sufficient to establish petitioners’ right to the relief they seek in this litigation.”

Chief Justice John Roberts, Jr. and Justice Anthony Kennedy joined Stevens’ opinion, while Justices Antonin Scalia, Clarence Thomas and Samuel Alito concurred.

Monday status conference

The Senate meets today, resuming debate on matters including the FAA Reauthorization Act, while House members get back to the office tomorrow. The Supreme Court will likely issue some opinions and may also grant some certs today, and we’ll keep you posted on that.

Meanwhile:

States including Texas and Mississippi already have scheduled executions after the Supreme Court’s decision in Baze v. Rees that the method used in lethal injection executions is not unconstitutional. But Ohio is moving much slower, meaning it could be months before death row in mates there – including an inmate who may become the first woman executed in the state in 54 years.
(WHIO/Columbus Dispatch)

Lawyers who represent suspects in terrorism-related investigations fear their clients are being secretly monitored by the U.S. government. (NYT)

Could nearly two-thirds of patent appeals judges have been unconstitutionally appointed? That is a question the U.S. Supreme Court is being asked to consider. (NLJ)

Former Washington D.C. city workers are claiming, in a federal lawsuit, that they and other employees were fired in violation of law that protect whistleblowers from retaliation. (WaPo)

Still haven’t gotten enough of Justice Antonin Scalia? Check out his interview with the ABA Journal, where he gives attorneys preparing to argue before him some tips. Here’s a hint: never use legislative history, and never answer a hypothetical with “that’s not my case.”
(ABA Journal)

The “Evangelist for originalism”

Justice Antonin Scalia’s “60 Minutes” interview to promote his upcoming book “Making Your Case: The Art of Persuading Judges” turned into a full-fledged profile of the justice, a piece Lesley Stahl called Scalia’s “first major television interview.”

The piece touched on some things we’ve heard Scalia talk about before – things that have been mentioned on this blog – such as his aversion to the “living Constitution” school of thought and his thoughts on torture. But Scalia – who admitted to being a “shin kicker” at times – revealed some new and interesting things as well, including his thoughts about those who call him things like a “fascist” or “evil.”

“These are people who don’t understand what my interpretive philosophy is,” Scalia said.

As far as those who call him ”counterrevolutionary,” Scalia said: “Sounds exciting!”

When asked what his judicial philosophy is, Scalia – who has been called an “Evangelist for originalism” – explained: “I’m a law and order guy. I confess I’m a social conservative. But it does not affect my views on cases. The abortion thing, for example. If indeed I were trying to impose my own views, I would not only be opposed to Roe v. Wade. I would be in favor of the opposite view, which the anti-abortion people would like adopted, which is to interpret the Constitution to mean that a state must prohibit abortion.”

“And you’re against that?” Stahl asked.

“Of course! There is nothing there on that subject” in the Constitution, Scalia explained.

“They didn’t write about that,” Stahl continued.

“They did not write about that,” Scalia said.

Here are some more memorable parts of the profile:

Scalia on his friendship with liberal Justice Ruth Bader Ginsburg: “I attack ideas, I don’t attack people. And some very good people have some every bad ideas. And if you can’t separate the two, you gotta get another day job. You don’t want to be a judge.”

On being tough on the bench during oral arguments: “Look, if you just let counsel stand there and talk, he’s just going to regurgitate his brief. I’ve read his brief. I’ve underlined significant passages. I’ve written nonsense in the margins. I want him to tell me why this isn’t nonsense.”

On being an obedient student in Queens, New York who got all A’s and was rarely absent: “I was a greasy grind. I worked really hard. My father, my mother put me to that. And I enjoyed that – I don’t like doing anything badly.”

On giving thought to becoming a priest: “I decided He was not calling me.”

On the influence his Catholic faith has on his job: “It has nothing to do with how I decide cases. My job is to interpret the Constitution accurately. And indeed there are anti-abortion people who think that the Constitution requires a state to prohibit abortion. They say that the Equal Protection Clause requires that you treat a helpless human being that’s still in the womb the way you treat other human beings. I think that’s wrong. I think when the Constitution says that persons are entitled to equal protection under the laws, I think that clearly means walking around persons. We don’t count pregnant women twice.”

On the pride Italian Americans felt when he was confirmed to the Court: “I think the reason is they have this Mafioso thing hung around their neck. You know, you can have an Italian governor but he can still be a crook. But an Italian Supreme Court justice – that meant a lot to them. It was a sign of integrity, honestly, intellectual accomplishment.”

On having a large family with his wife, Maureen: “Well, we didn’t set out to have nine children. Were just old fashioned Catholics, you know, playing what used to be known as ‘Vatican roulette.’”

On his new book, in response to Stahl’s observation that some of his tips “make it seem like lawyers were imbeciles.”

“You would be surprised,” Scalia said with a laugh.

The “Evangelist for originalism”

Justice Antonin Scalia’s “60 Minutes” interview to promote his upcoming book “Making Your Case: The Art of Persuading Judges” turned into a full-fledged profile of the justice, a piece Lesley Stahl called Scalia’s “first major television interview.”

The piece touched on some things we’ve heard Scalia talk about before – things that have been mentioned on this blog – such as his aversion to the “living Constitution” school of thought and his thoughts on torture. But Scalia – who admitted to being a “shin kicker” at times – revealed some new and interesting things as well, including his thoughts about those who call him things like a “fascist” or “evil.”

“These are people who don’t understand what my interpretive philosophy is,” Scalia said.

As far as those who call him ”counterrevolutionary,” Scalia said: “Sounds exciting!”

When asked what his judicial philosophy is, Scalia – who has been called an “Evangelist for originalism” – explained: “I’m a law and order guy. I confess I’m a social conservative. But it does not affect my views on cases. The abortion thing, for example. If indeed I were trying to impose my own views, I would not only be opposed to Roe v. Wade. I would be in favor of the opposite view, which the anti-abortion people would like adopted, which is to interpret the Constitution to mean that a state must prohibit abortion.”

“And you’re against that?” Stahl asked.

“Of course! There is nothing there on that subject” in the Constitution, Scalia explained.

“They didn’t write about that,” Stahl continued.

“They did not write about that,” Scalia said.

Here are some more memorable parts of the profile:

Scalia on his friendship with liberal Justice Ruth Bader Ginsburg: “I attack ideas, I don’t attack people. And some very good people have some every bad ideas. And if you can’t separate the two, you gotta get another day job. You don’t want to be a judge.”

On being tough on the bench during oral arguments: “Look, if you just let counsel stand there and talk, he’s just going to regurgitate his brief. I’ve read his brief. I’ve underlined significant passages. I’ve written nonsense in the margins. I want him to tell me why this isn’t nonsense.”

On being an obedient student in Queens, New York who got all A’s and was rarely absent: “I was a greasy grind. I worked really hard. My father, my mother put me to that. And I enjoyed that – I don’t like doing anything badly.”

On giving thought to becoming a priest: “I decided He was not calling me.”

On the influence his Catholic faith has on his job: “It has nothing to do with how I decide cases. My job is to interpret the Constitution accurately. And indeed there are anti-abortion people who think that the Constitution requires a state to prohibit abortion. They say that the Equal Protection Clause requires that you treat a helpless human being that’s still in the womb the way you treat other human beings. I think that’s wrong. I think when the Constitution says that persons are entitled to equal protection under the laws, I think that clearly means walking around persons. We don’t count pregnant women twice.”

On the pride Italian Americans felt when he was confirmed to the Court: “I think the reason is they have this Mafioso thing hung around their neck. You know, you can have an Italian governor but he can still be a crook. But an Italian Supreme Court justice – that meant a lot to them. It was a sign of integrity, honestly, intellectual accomplishment.”

On having a large family with his wife, Maureen: “Well, we didn’t set out to have nine children. Were just old fashioned Catholics, you know, playing what used to be known as ‘Vatican roulette.’”

On his new book, in response to Stahl’s observation that some of his tips “make it seem like lawyers were imbeciles.”

“You would be surprised,” Scalia said with a laugh.

Friday morning docket: Scalia speaks!

With oral arguments behind them, it’s crunch time for the justices of the Supreme Court, who still have many cases to decide before the term ends. They meet in conference today. And DC Dicta was remiss not to mention Justice John Paul Stevens’s birthday in last week’s docket. Stevens turned the spry young age of 88 last weekend. Only Justice Oliver Wendell Holmes graced the bench at an older age – he served until he was 90.

Meanwhile:

Are you still sore about the Supreme Court’s role in the 2000 presidential election? Justice Antonin Scalia has a message for you: “Get over it. It’s so old by now.” You can see his full “60 Minutes” interview with Lesley Stahl this Sunday, but here’s a preview:

YouTube Preview Image

The very last oral argument case this term involved the question of what happens in an age discrimination claim when the evidence offered by the employer and employee results in a tie for the factfinder. Well, it looks like the recusal of Justice Stephen Breyer could mean the Court itself could end up in a tie. (ABA Journal)

An invitation to Justice Clarence Thomas to speak at the commencement ceremony at the University of Georgia has sparked controversy. Some students and faculty called the invitation inappropriate given recent problems with claims of sexual harassment as the school. But the school’s president stands by his choice and the Atlanta Journal Constitution agrees. (U.S. News; AJC)

President Bush is less than thrilled with Democratic lawmakers’ housing relief plans. (AP)

The government’s plan to crack down on illegal workers could cost employers more than $1 billion a year and legal workers billions in lost wages, a study commissioned by the U.S. Chamber of Commerce says. (AP)

The Funniest Justice: Antonin Scalia

The oral argument season is officially over, which means it’s time for a final laugh tally and the crowning of the October 2007 term’s Funniest Justice!

No drum roll needed here: As predicted, the winner by a long, long shot is the ever-amusing Justice Antonin Scalia.

By DC Dicta’s count (according to oral argument transcripts) Scalia drew a total of 74 laughs this term – more than 3 times the number of laughs the next funniest justice – Chief Justice John Roberts, Jr. – received. He made the crowd laugh 18 times in the last two weeks alone.

Here is the final tally of the Court’s laugh-getters. In a related note, Justice Clarence Thomas managed for the second year in a row to avoid asking a question or making a single comment – much less cracking a joke – during oral arguments all term:

Justice Antonin Scalia: 74
Chief Justice John G. Roberts, Jr.: 23
Justice Stephen Breyer: 21
Justice David Souter: 17
Justice Anthony Kennedy: 9
Justice John Paul Stevens: 7
Justice Samuel Alito, Jr.: 4
Justice Ruth Bader Ginsburg: 4
Justice Clarence Thomas: 0

GOP lawmakers block equal pay bill

Legislation aimed at restarting the statute of limitations for equal pay claims with the issuance of each paycheck – legislation Justice Ruth Bader Ginsburg called for from the bench last year in her dissent in Ledbetter v. Goodyear Tire and Rubber - was blocked by Senate Republicans yesterday.

Despite a hard push by Health, Education, Labor and Pension Committee Chairman Sen. Edward Kennedy to get the once-stalled bill to the Senate floor and to get it passed, Republicans filibustered the measure, and lawmakers fell four votes short of the 60 voters needed to break the filibuster.

GOP lawmakers complained that the legislation, called the “Ledbetter Fair Pay Act,” would lead to flood of litigation. But some were also angry that the vote was delayed in order to allow presidential candidates and Sens. Hillary Clinton and Barack Obama to return to Washington from the campaign trail.

“Here we are, shut down on a Wednesday afternoon, no action in the Senate, in order to accommodate the Democratic candidates for president’s schedule,” Minority Leader Mitch McConnell of Kentucky said Wednesday, according to CNN.

Subscribers can find more background on the bill here from Lawyers USA.

Supremes close season with one decision, two arguments

Oral argument season is officially over at the U.S. Supreme Court, as the justices heard arguments in two cases involving ERISA judicial review and the burden-shifting scheme in disparate impact ADEA claims – the last cases scheduled for oral arguement until October.

Justice Antonin Scalia announced the Court’s decision only decision of the day: Virginia v. Moore. The Court unanimously held that police have the right to make a probable cause arrest and conduct a search incident to that arrest, even where the arrest came after a police stop that was impermissible under state law.

“A search and seizure may be constitutionally permissible, even when the state prohibits it,” Scalia said from the bench this morning.

Despite the fact that Scalia seemed to be a champion for the defense bar in yesterday’s oral arguments, it is not surprising that he was selected by chief Justice John Roberts to write Moore, or that he sided so strongly on the side of police, given how much fun he had with the case during oral arguments.

More on the cases argued today – Metlife v. Glenn and Meacham v. Knolls Atomic Power Lab – tomorrow on Lawyers USA’s website.

Attorney Scalia, for the defense

Los Angeles attorney Marilyn Burkhardt seemed to have a tough task this morning: convincing the justices of the Supreme Court that a defendant in a murder trial should be able to exclude the testimony of the victim because she is unavailable for cross examination, so long as he didn’t kill her for the purpose of making her unavailable for trial.

But she had a valuable asset during oral arguments in Giles v. California: Justice Antonin Scalia, who jumped to her aid several times – even answering questions posed by the other justices for Burkhardt.

At one point Justice Anthony Kennedy was trying to determine what prosecution sought to prove by introducing the victim statements at issue – statements that the she had been choked, munched and threatened by the defendant.

“[It seems] to me that this is responsive to his defense” of self defense, Kennedy said. “And you say: ‘well, it’s his state of mind, and her testimony was general.’ I think it does go to his state of mind.”

Before Burkhardt could respond, Scalia did.

“I’m not following you,” Scalia said. “Is there — is there an exception to the hearsay rule so long as the hearsay is brought in, in rebuttal? Is there a rebuttal exception to the hearsay rule?”

Later, when Justice Stephen Breyer was in the middle of posing of a detailed hypothetical, Scalia chimed in again, poking fun of Breyer’s previous position of Harvard Law School professor.

“He is thinking about Cambridge – and not England,” Scalia quipped, drawing laughter before Breyer continued with his question.

Breyer ended his hypothetical by asking Burkhardt: “So now are we supposed to incorporate all of these things into the Confrontation Clause?”

“Do any of them have anything to do with the Confrontation Clause?” Scalia answered back, leaving Burkhardt to answer simply: “No.”

[Much more after the jump]

Read More »

Attorney to Supremes: Mitt was no hit

Note to attorneys planning to argue before the Supreme Court: It may not be a good idea to take a swipe at former political candidates, even if it helps make your point and gets a laugh.

The was a lesson learned today by Andrew Herman, counsel for a political candidate seeking to strike down the Millionaire’s Amendment of the McCain-Feingold campaign finance law, which allows opponents of self-funded election candidates to receive campaign contributions above the normal statutory ceiling in some circumstances.

In oral arguments today in the case, Davis v. FEC, Chief Justice John G. Roberts, Jr., questioned Herman on his argument that the law benefits incumbents at the expense of challengers.

“Obviously you’re correct that this system benefits incumbents, but it benefits your client in a particular way as well,” Roberts said to Herman, who represented a largely self-funded congressional candidate seeking to unseat an incumbent. “The [political] parties are certainly interested in candidates who will fund themselves because that presents less strain on the party’s resources.”

“Mr. Chief Justice, [the parties] are interested in those candidates only inasmuch as they get elected,” said Herman, turning to the recent GOP presidential race for an example. “The moment that the public turns on them, they won’t be interested. And certainly the public was not particularly interested in Mitt Romney, who spent a significant amount of money on his own behalf, and many other spectacular flameouts.”

This drew a laugh from the crowd, and then a light admonition from the Chief Justice.

“I’m not sure we need characterizations of the political candidates in this forum,” Chief Justice Roberts said, drawing more laughs.

“I apologize,” Herman said.

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