Quantcast
Home / 2008 / June (page 2)

Monthly Archives: June 2008

Friday morning docket: Almost summer vacay edition

Rarely can we predict exactly what the Supreme Court will do during any period of time. But we can authoritatively say that within the next week, the Court will release 10 opinions. That’s all that’s left this term, and next week is the last week before Court’s out for summer. They’ll begin Monday morning at 10 a.m.

Meanwhile, things are heating up across the street under the Capitol dome:

Despite President George W. Bush’s threat of a veto, lawmakers are pushing ahead with a bill aimed at helping the mortgage crisis. (CNNMoney).

The House passed a compromise bill to extend unemployment benefits. (Reuters)

A Congressional ethics panel is examining allegations that two Senate Democrats, including the sponsor of a major housing bill, received preferential loans by troubled mortgage lender Countrywide Financial Corp. (Reuters)

President Bush officially sent the nomination of Gregory Garre for Solicitor General to the Senate. (White House)

Thursday, the Supreme Court put into immediate effect its ruling a week ago on detainees’ legal rights in Boumediene v. Bush. (SCOTUSBlog)

Ruling on ADEA proof burden a hot topic

The Supreme Court’s decision in Meacham v. Knolls Atomic Power Laboratory, placing the burdens of both production and persuasion on the employer in age discrimination cases, is hot news today. Some are seeing the pro-worker decision – one of several this term (Subscribers can read the Lawyers USA article about that here) – as a big contrast to the Court’s 2006-07 term, where notable pro-employer decisions including Ledbetter seemed to be the standard.

Business groups were taken by surprise by the ruling. Robin S. Conrad, executive vice president of the National Chamber Litigation Center, told the New York Times’ Linda Greenhouse that the previous term had been “our best term ever.” Now “it’s back to the drawing board,” she said. “To achieve our objectives, we’ll have to battle it out case by case.”

Karen Harned of the National Federation of Independent Business told USA Today‘s Joan Biskupic that the ruling “ties the hands of employers to respond to market changes and new technology without fearing … a baseless” ADEA lawsuit.

Others cheered the opinion. In a statement, David Certner, AARP‘s chief legislative counsel said “the Meacham ruling is vital to the creation and maintenance of a work place that is fair and free of age bias.”

Big employment law decision day at the Court

Well, we were right about the ERISA decision, at least!

For those who are just waiting for the release of the Exxon and gun ban decisions from the Court, you will be disappointed today, because they were not handed down.

But it was a hot day on the employment law front, as the Court handed down five decisions, four of which are employment-related.

In the ERISA decision, MetLife v. Glenn, the Court held that when an ERISA claim administrator also funds the plan, that constitutes a conflict of interest that must be weighed when a court reviews the decision.

In a case that clarifies the burden-shifting scheme in ADEA disparate impact claims, the Court held in Meacham v. Knolls Atomic Power Laboratory that the employer bears both the burdens of production and persuasion on the issue of whether the employment decision was based on a “reasonable factor other than age.”

In Kentucky Retirement Systems v. EEOC, the Court held that where age is not a motivating factor for a pension calculation, there is no violation of the ADEA.

In Chamber of Commerce v. Brown, the Court issued yet another pro-federal preemption decision, finding that federal labor law preempts a California law barring the use of state funds by employers to influence union organizing.

Finally, in the criminal case, the Court held in Indiana v. Edwards, that a finding that a defendant is competent to stand trial does not mean that the defendant has the constitutional right to represent himself.

More later on this blog the impact of Meacham and the employment cases, and more tomorrow on all of these cases in Lawyers USA‘s website.

Decisions, decisions

DC Dicta has grown weary of wondering with bated breath if each Supreme Court decision day will be The Big Day all the hot cases are handed down. We’re going to pretend like all the Court will give us today is an ERISA decision. Suffice it to say we’ll be back later this morning with a wrap of whatever it is the justices do. Just don’t expect any big news.*

(*Note, this is DC Dicta’s attempt at working some reverse psychology mojo on the Court. Let’s see if it works!)

Leahy blasts GOP solons for nixing judgeship hearing

Republican lawmakers, angered by the recent low rate of Senate judge confirmations, blocked a Senate hearing on a bill the would boost the number of federal judgeships yesterday. And Senate Judiciary Committee Chairman Patrick Leahy is not happy about the move.

After GOP lawmakers – for the third time in a week – used the rarely invoked ”two hour rule” to suspend a hearing by the Senate Judiciary Committee yesterday, Leahy issued a statement expressing fury.

“Today Republicans added addressing the needs of the Federal judiciary to the now long list of hearings they have objected to in the last week,” Leahy said after the hearing on the Federal Judgeship Act of 2008 was suspended. “Republicans objected to the Judiciary Committee’s investigation into the use of coercive interrogation techniques. Republicans objected to the impact of Supreme Court decisions on the daily lives of all Americans. And today, the Republican minority has objected to a hearing requested by Judiciary Committee Republicans to examine legislation about the need for additional Federal judgeships.

“It would appear to an objective observer that Republicans believe they were elected to the United States Senate to thwart the oversight and legislative efforts of this body,” Leahy continued. “This now all too familiar pattern is childish and serves no good purpose.”

The bill would add 12 permanent seats to the circuits and 38 permanent seats to U.S. District Courts across the country. It would also make five temporary judgeships – one each in Arizona, Hawaii, Kansas, Missouri and New Mexico – permanent.

Two temporary seats would be created in the 9th Circuit and 14 temporary U.S. District Court seats would be created around the country. The bill would take effect the day after the next president is inaugurated.

Are aging liberals behind the Court’s rightward shift?

Does the apparent rightward momentum of the U.S. Supreme Court have more to do with the age of the justices?

That is a theory one member of the Supreme Court press corps put forth Saturday during the American Constitutional Society’s National Convention here in Washington.

Dahlia Lithwick, who covers the Court for Slate said that the conservatives on the court benefit from the youthfulness of the Court’s newest members: Chief Justice John G. Roberts, Jr. and Justice Samuel Alito, Jr.

“It’s like watching a very young, very, very energized bloc of four conservatives on the Court playing keep away with the ball,” Lithwick said of oral arguments at the Court. “You have this sense that it almost a machine, the way Roberts and Alito and Scalia at oral arguments are throwing the ball to one another. There is a sense that they are working in concert, they are all playing from the same playbook. There is no analogous sense from the left of the court. You have a sense that energy has shifted.”

Leaving swing voter Justice Anthony Kennedy aside, the average age of the Court’s so-called liberal bloc – Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer – is 75. The average age of the conservative counter-faction – Roberts, Alito and Justices Antonin Scalia and Clarence Thomas – is 60.5.

“It really does highlight the age of the liberals on the Court,” Lithwick said. “It highlights some sense that ‘our time has passed’ and you really see that oral argument. . . . There is a colossal jolt of energy on one side that you just don’t see on the other.”

Tony Mauro, who covers the Court for Legal Times, said the recent book tours of Scalia and Thomas helped to bring more attention to the conservative jurists.

“It’s remarkable how talkative the justices become when they have books to sell,” Mauro said. . . . “They have this forum on 60 Minutes and elsewhere. I think we are hearing a lot more from the conservative side.”

Mauro also pointed out that the ‘L’ word is has a different meaning on the Court nowadays.

“The fact that the liberals aren’t in many respects liberals in the sense of [Justices William] Brennan and [Thurgood] Marshall,” he said. ”Breyer and Ginsburg are fairly moderate in a lot of ways.”

The New York Times’ Linda Greenhouse told the audience that the one reason for the apparent shift in energy is the recent spate of close-call decisions won by the conservatives.

“It’s harder to get energized when you are playing defense,” Greenhouse said. “So I think actually that [Breyer, Souter, Ginsberg and Stevens] have a lot of intellectual energy. I wouldn’t want give the impression that they sort of are asleep at the switch. I think their role as they see it now is to keep [too-conservative rulings] from happening. That is not as visibly an energetic position to be standing on.”

You can watch the video of the panel discussion here.

Are aging liberals behind the Court’s rightward shift?

Does the apparent rightward momentum of the U.S. Supreme Court have more to do with the age of the justices?

That is a theory one member of the Supreme Court press corps put forth Saturday during the American Constitutional Society’s National Convention here in Washington.

Dahlia Lithwick, who covers the Court for Slate said that the conservatives on the court benefit from the youthfulness of the Court’s newest members: Chief Justice John G. Roberts, Jr. and Justice Samuel Alito, Jr.

“It’s like watching a very young, very, very energized bloc of four conservatives on the Court playing keep away with the ball,” Lithwick said of oral arguments at the Court. “You have this sense that it almost a machine, the way Roberts and Alito and Scalia at oral arguments are throwing the ball to one another. There is a sense that they are working in concert, they are all playing from the same playbook. There is no analogous sense from the left of the court. You have a sense that energy has shifted.”

Leaving swing voter Justice Anthony Kennedy aside, the average age of the Court’s so-called liberal bloc – Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer – is 75. The average age of the conservative counter-faction – Roberts, Alito and Justices Antonin Scalia and Clarence Thomas – is 60.5.

“It really does highlight the age of the liberals on the Court,” Lithwick said. “It highlights some sense that ‘our time has passed’ and you really see that oral argument. . . . There is a colossal jolt of energy on one side that you just don’t see on the other.”

Tony Mauro, who covers the Court for Legal Times, said the recent book tours of Scalia and Thomas helped to bring more attention to the conservative jurists.

“It’s remarkable how talkative the justices become when they have books to sell,” Mauro said. . . . “They have this forum on 60 Minutes and elsewhere. I think we are hearing a lot more from the conservative side.”

Mauro also pointed out that the ‘L’ word is has a different meaning on the Court nowadays.

“The fact that the liberals aren’t in many respects liberals in the sense of [Justices William] Brennan and [Thurgood] Marshall,” he said. ”Breyer and Ginsburg are fairly moderate in a lot of ways.”

The New York Times’ Linda Greenhouse told the audience that the one reason for the apparent shift in energy is the recent spate of close-call decisions won by the conservatives.

“It’s harder to get energized when you are playing defense,” Greenhouse said. “So I think actually that [Breyer, Souter, Ginsberg and Stevens] have a lot of intellectual energy. I wouldn’t want give the impression that they sort of are asleep at the switch. I think their role as they see it now is to keep [too-conservative rulings] from happening. That is not as visibly an energetic position to be standing on.”

You can watch the video of the panel discussion here.

Court rules on immigration, tax cases

This morning the U.S. Supreme Court issued two decisions and granted three more cases for review next term.

In Dada v. Mukasey, the Court ruled that under the Immigration and Nationality Act, aliens who overstay their visas must be permitted an opportunity to withdraw a motion for voluntary departure, provided they make the request before expiration of the departure period.

In Florida Dept. of Revenue v. Piccadilly Cafeterias, the Court held that the bankruptcy code prohibition on stamp taxes on assets transferred to a new owner applies only when such asset transfer happens after a court-approved bankruptcy order, not before.

That brings the total number of cases the Court has left to decide before next week to 15. Those cases include decisions on the constitutionality of Washington D.C.’s gun ban, whether the confrontation clause precludes previous statements made by the victim in murder trials, whether the death penalty can be instituted in child rape cases, and whether the fishermen impacted by the Exxon Valdez oil spill can collect a punitive damages award under maritime law.

In addition to the decisions, the Court agreed to consider cases next term dealing with sovereign immunity for state prison workers, when civil actions can be brought against high-ranking federal officials, and benefits claims under the U.S. Department of Veterans Affairs. SCOTUSBlog has more.

Monday status conference: decisions and remembrances

The nation’s capitol continues to reel from the sudden passing of political news giant – and registered member of the bar – Tim Russert. Not only was Russert an attorney, but he also was a legal newsmaker, testifying last year in the “Scooter” Libby trial. But in a city where legal, political, and journalistic circles are surprisingly small and tight, Russert’s death is having a deep and lasting impact. More here from MSNBC.

Meanwhile the Supreme Court will hand down decision some of the 17 remaining decisions of the term at beginning at 10 a.m. Check back later this morning updates on today’s decisions.

The House does not meet today, but the Senate does, conducting business including a hearing on renewable energy and job creation.

Today also brings a new issue of Lawyers USA, and below are some story previews. Subscribers can click the links for more:

The use of trademarks sold as “keywords” by Google and other search engines to trigger “sponsored links” on the side of a search page continues to be a hot button issue for any business with a website – including law firms. There are a growing number of business-to-business disputes over the issue. More here.

Legal battles are raging on as cities around the country attempt to find constitutional ways to keep out illegal immigrants. One recent case involves a court enjoining an ordinance that prohibits illegal immigrants from renting apartments. More here.

The latest wave of Vioxx rulings appears to have dashed any lingering plaintiffs’ hopes as the pain-killer litigation winds down. And the decisions – especially one from the New Jersey Appellate Division – may make it harder to pursue other drug product liability suits. More here.

In 21st Century divorce wars, electronic data is a key source of evidence, whether its instant messages, web browsing histories or text messages via a cell phone. Angry spouses and savvy lawyers are scouring electronic gadgets to uncover unfaithfulness and find hidden assets. More here.

After several pro-employer decisions last term – including a controversial ruling that prompted lawmakers to draft legislation to overturn it – the U.S. Supreme Court ruled in favor of expanding employees’ rights to bring retaliation claims under two federal statutes. The decisions are particularly surprising given the fact that last year’s opinions in favor of employers were punctuated with strong language admonishing against expanding causes of action. More here.

In other news:

Washington lawmakers are pulling in some serious coin with book deals. (WaPo)

The Supreme Court keeps ruling on ways the White House doesn’t like. (NYT)

Senate Budget Committee Chairman Kent Conrad is trying to make amends for his apparent sweetheart deal with lender Countrywide Financial Corp. (WaPo). Senate Banking Committee Chairman Chris Dodd also received a favorable loan from the lender. (Portfolio).

Friday (the 13th) morning docket

As we all prepare for the weekend, all while avoiding crossing the path of any black cats, here’s a look at what’s making news in the Beltway, legally speaking:

Today Attorney General Michael Mukasey said yesterday’s Supreme Court decision giving Guantanamo detainees the right to seek habeas relief from U.S. courts will not keep the trial of enemy combatants from going forward. (AP)

The decision will also not lead to the closure of the detention facility. (NYT)

The two presidential candidates differ in opinion over the Guantanamo ruling – highlighting the different approaches they would take in appointing the next justice to the Court. (WaPo’s The Trail)

Justice Antonin Scalia’s dissent in the case was “biting” and “bitter” and “apocalyptic” according to Court watchers. (ABA Journal)

More on the Supreme Court’s ruling in Irzarry v. U.S. that judges need not notify the parties in criminal matters before imposing a sentence that goes outside of the federal sentencing guidelines, even if it is an upward departure. (Lawyers USA)

The House passed a bill giving an extra three months of jobless benefits to all unemployed Americans. The chance of the plan getting approval from the Senate, let alone the White House, is slim and none. (AP)

Scroll To Top