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Monthly Archives: November 2008

Friend of the Court, Scalia hunting mate

scalia1Here’s one straight from the you-can’t-make-this-up file: Justice Antonin Scalia went hunting this weekend with a prominent plaintiffs’ attorney. What’s more, that lawyer just happens to be the author of an amicus brief in the pending case Wyeth v. Levine urging the Court to rule that state court tort claims over FDA-approved drugs are not preempted by federal law.

This little revelation came from the Tex Parte Blog of Texas Lawyer. (HT: Law Blog). Scalia, who was in Texas for a lecture series at Texas Tech University School of Law, joined W. Mark Lanier, who sponsored the lecture, for a little deer hunting. “He’s a big hunter,” Lanier says of Scalia on the blog.  “He’s using this weekend to see if everything is bigger in Texas.”

Stevens mum on retirement plans

stevens3The presidential election put a spotlight on the seat held by the Supreme Court’s oldest justice, 88-year-old John Paul Stevens, as a potential vacancy for President-elect Barack Obama to fill. But Stevens ignored the scuttlebutt about possible retirement plans when he addressed a group of Florida law students yesterday.

Stevens, speaking with close friend and U.S. District Court Judge Jose A. Gonzalez Jr. at University of Florida Fredric G. Levin College of Law, ignored the election completely as a topic of discussion – a feat that was made possible by not taking questions from reporters. Instead, he let law professors and a law student do the asking, AP reported.

He did say that his work load is not too much for him, and that he still writes his own opinions – though his law clerks do have input. It helps that the Court hands down about half as many rulings per year as it did when he was appointed 33 years ago.

“From my own personal point of view, it’s definitely a positive,” Stevens said, drawing laughter according to a report by The Washington Post. “And I have to say I think we were taking too many cases when I joined the court.”

“It’s still a full-time job,” Stevens added. “I wouldn’t want to say otherwise, but if we had the same kind of workload today that we had then, I would have resigned 10 years ago.”

Monday status conference: Enron, lame ducks, and lawyers for Obama

ussc1The Supreme Court added a number of new cases to its docket Friday – including a case considering whether a West Virginia appellate judge should be able to rule in a case involving his largest campaign contributor, and whether a former Enron official acquitted of some criminal charges may be retried on the counts his jury hung on.

Today the 110th Congress also begins its last session of the term, and the biggest item remaining on lawmakers’ agenda is a potential financial rescue package for U.S. automakers, which is currently stalled on the onramp.

Meanwhile,

President-elect Barack Obama has selected Gregory Craig to be the top lawyer in the White House. Craig, best known for representing former President Bill Clinton in his impeachment proceedings, will be Obama’s White House counsel, according to the Washington Post. Criag also represented John Hinckley Jr. the Ronald Reagan attempted assassination case, and William Kennedy Smith in his high profile rape trial.

In the case of Craig and a number of Obama transition team legal eagles, there are a lot of familiar faces from the Clinton era. More from Legal Times.

Alcoholic energy drinks such as Sparks are igniting lawsuits by litigants claiming the beverages can mask the effects of alcohol and encourage excessive drinking. More here from Lawyers USA.

Evidence uncovered in connection with former CBS newsman Dan Rather seems to support his claim that GOP operatives had influence over the networks news coverage. More here from the New York Times.

Friday morning docket: District in transition

domeThe Supreme Court is done with oral arguments for the month, but the justices will meet today to consider what new cases to add to its docket. Orders from that meeting will be posted today or Monday. Meanwhile, members of Congress still don’t know just who will fill a number of seats in the building as super-close races remain undecided. They will know one thing – as Sunday, Barack Obama will no longer be a Senate colleague.

Meanwhile,

hill2Secretary Clinton? Could this be the new secretary of state? Such an appointment could be a way for President-elect Obama to help heal any remaining rifts in the Democratic Party following the hard-fought presidential primary.  More here from The Washington Post.

Judges enter stage left: Obama’s judicial appointments will likely shift the federal judiciary away from the right. More here from Reuters.

No change in Exxon payout: A federal judge has rejected a seafood company’s request to rewrite a plan for dividing punitive damages to be awarded from the 1989 Exxon Valdez oil spill in a case that went to the Supreme Court last term. More here from AP.

Costing victims an arm and a leg: A recent ruling will put the brakes on most of the federal cases involving stolen human bones and tissue used in medical implants. However, over 500 cases in state court will continue to go forward. More here from Lawyers USA.

Once and future veep chief of staff

klainVice President-elect Joe Biden has tapped an attorney with an impressive resume to be his chief of staff at the White House. According to the Associated Press and several other news outlets, this week the Obama-Biden team will announce the selection of Ron Klain as Biden’s chief of staff.

Klain, a magna cum laude grad of Harvard Law, clerked for Supreme Court Justice Byron R. White for two years. He went on to become chief of staff and counselor to Attorney General Janet Reno, associate counsel to President Bill Clinton, and chief of staff to Vice President Al Gore.

Klain, a top advisor in the campaign, currently serves executive vice president and general counsel of Revolution LLC, a Washington, DC-based company launched by AOL co-founder Steve Case in 2005.

Ringing the alarm over Supreme succession

supremesWhat happens if more than three Supreme Court justices are suddenly killed or incapacitated?

It isn’t a very nice thought, but it’s brought up today by The Wall Street Journal in a piece about the problems with government succession schemes.

The article notes that while the executive branch has a plan of succession (thought its constitutionality has been questioned), no such plan exists for the judiciary. If there was ever mass death or incapacitation on the Supreme Court, the wheels of justice would grind to a halt:

At least there’s a plan for the executive branch. Nothing similar exists for the Supreme Court, which, in order to function, is by law required to have a quorum of six justices. In the event that more than three justices are killed or incapacitated, the Court would be effectively suspended until the president nominated, and the Senate confirmed, successors. Unlikely? Consider this: On the morning of the terrorist attacks of Sept. 11, 2001, the Judicial Conference of the U.S., a group that includes the Supreme Court justices and the chief judges of the federal appeals courts, was meeting at the Supreme Court, a block away from the Capitol building, which was targeted. “That’s where United 93 was headed,” says Mr. Ornstein, referring to the United Airlines flight that crashed near Shanksville, Pa.

Pretty scary stuff – but not entirely true. While the Judicial Conference is headed by the Chief Justice of the United States, the Supreme Court’s other justices are not members, and would not have been at the meeting. But they are often together for conferences and oral arguments at the Supreme Court building, which is just across the street from the Capitol building.

[HT: The BLT]

The Funniest Justice: Profanity is funny

stevens31“Maybe I shouldn’t ask this,” Justice John Paul Stevens said to Solicitor General Gregory Garre during oral arguments last week in the TV profanity case FCC v. Fox Television Stations, “but is [it] ever appropriate for the Commission to take into consideration at all the question whether the particular remark was really hilarious, very, very funny?”

The crowd in the Supreme Court building laughed, and Stevens continued. “Some of these things you can’t help but laugh at,” Stevens said. “Is that a proper consideration, do you think?”

“Yes, insofar as the Commission takes into account whether it’s shocking, titillating, pandering,” Garre said.

“Oh, it’s funny,” Justice Scalia said. “I mean, bawdy jokes are okay if they are really good.” More laughs.

Which brings us to the latest tally of the Funniest Justice so far this term. Scalia has broken it open, drawing laughs 10 times this month — four times during the Fox case alone — and giving himself an eight-chuckle lead over Chief Justice John G. Roberts, Jr. Roberts had his funny bone in motion as well, though, drawing six laughs this month. Here are the full standings:

Justice Antonin Scalia: 23

Chief Justice John Roberts: 15

Justice Stephen Breyer: 9

Justice David Souter: 7

Justice Anthony Kennedy: 6

Justice John Paul Stevens: 4

Justice Samuel Alito: 2

Justice Ruth Bader Ginsburg: 0

Justice Clarence Thomas: 0 (Thomas hasn’t made a remark during oral arguments since Feb. 22, 2006).

Scalia says sorry

To err is human, but to admit that mistake is Supremely divine.

scaliasideAs DC Dicta has pointed out before (here and here), few things irk Justice Antonin Scalia more during oral arguments than attorneys forgetting to include relevant statutory language in their briefs.  Today, Washington attorney Richard Bress learned that lesson first hand.

“Mr. Bress, this case involves Section 2254(d), right?” Scalia said during oral arguments in Bell. v. Kelly. “Does that appear somewhere in the briefs? It would be nice to have it in front of me.”

“Yes, Your Honor,” Bress said.

“I mean, it’s a central thing the case is about,” Scalia continued, clearly annoyed. “I cannot find it in any of the briefs… Don’t you think it’s important enough to be in your brief?”

Instead of responding, Bress continued with his argument, addressing a question asked earlier by Chief Justice John G. Roberts, Jr.  Scalia leaned back in his chair, still visibly miffed.

But the statute actually was in the brief submitted by Bress – a fact that Scalia realized at some point during arguments. When Bress returned to the podium for his rebuttal, Scalia pointed that out contritely.

“Mr. Bress, I want to apologize to you for accusing you of not printing 2254(d) and (e) in your brief. You indeed did.”

“Well, thank you, Your Honor,” Bress said.

“I’m grateful for your not throwing it in my teeth,” Scalia said, drawing laughter.

Term’s first Supreme opinion comes in whale of a case

supremesThe Supreme Court handed down its first opinion of the term this morning. And the result of the divided opinion was: Navy 1, Whales 0.

In Winter v. NRDC, the Court ruled that the navy could conduct exercises using long-range sonar off the coast of California. Environmental groups argued that the sonar exercises led to dire consequences for whales, disorienting the sea mammals and causing them to die. A court had restricted the exercises, leading President George W. Bush to grant the navy an exemption stating that the practice was vital to the nation’s interest. But he 9th Circuit reversed Bush’s order and the government appealed to the Supreme Court.

The Supreme Court’s opinion, authored by Chief Justice John G. Roberts, Jr., stated that even if irreparable harm was caused to the whales, “any such injury is outweighed by the public interest and the Navy’s interest in effective, realistic training of its sailors.”

Term’s first Supreme opinion comes in whale of a case

supremesThe Supreme Court handed down its first opinion of the term this morning. And the result of the divided opinion was: Navy 1, Whales 0.

In Winter v. NRDC, the Court ruled that the navy could conduct exercises using long-range sonar off the coast of California. Environmental groups argued that the sonar exercises led to dire consequences for whales, disorienting the sea mammals and causing them to die. A court had restricted the exercises, leading President George W. Bush to grant the navy an exemption stating that the practice was vital to the nation’s interest. But he 9th Circuit reversed Bush’s order and the government appealed to the Supreme Court.

The Supreme Court’s opinion, authored by Chief Justice John G. Roberts, Jr., stated that even if irreparable harm was caused to the whales, “any such injury is outweighed by the public interest and the Navy’s interest in effective, realistic training of its sailors.”

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