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You say O’Connor, I say Ginsburg

Even the most seasoned Supreme Court litigator can misspeak when standing in front of the nine justices at oral argument.

carterphillipsToday at the Supreme Court, Carter G. Phillips, who has argued before the high court more than five dozen times during his tenure both at the Justice Department and at Sidley Austin, had a little trouble keeping the justices straight.

While discussing a concurrence written by Justice Sandra Day O’Connor in an employment discrimination case, Phillips said: “Justice Ginsburg provides the formulation that the lower courts can use to try to provide some kind of a jury instruction.”

Justice Ruth Bader Ginsburg, hearing the mistake, corrected Phillips.

“Justice O’Connor,” Ginsburg said.

“Did I say Ginsburg?” Phillips asked.

“Yes,” Ginsburg replied, as member of the audience began to laugh.

“I’m going to hear about this one,” Phillips said. “I apologize.”

A little later, Phillips slipped again. After a lengthy exchange with Justice Stephen Breyer, Phillips addressed him as “Justice Ginsburg.”

The next question was posed by Justice Ginsburg. In that instance, Phillips addressed her correctly.

The transcript for that case, Gross v. FBL Financial Services, can be found here.

Court bows out of tobacco punies case; rules on peremptory challenges and Hawaii land sale

usscpoolToday the U.S. Supreme Court took a pass on ruling in a case that was before it for the third time. In Philip Morris USA Inc. v. Williams, the Court announced without comment that it was dismissing the case as improvidently granted.

In its third attempt to have an $80 million punitive damages award dismissed, Philip Morris had argued that the jury was erroneously told by a plaintiff’s lawyer to punish the tobacco company not only for the injury suffered by the plaintiff’s husband, who died of lung cancer, but also for the harm suffered by innumerable smokers. More here from Lawyers USA.

The Court also ruled that an erroneous denial of a peremptory juror challenge does not warrant an automatic conviction reversal as long as the jury members are qualified and unbiased. More on that decision, in Rivera v. Illinois, here from Lawyers USA.

In its third ruling that Court cleared the way for the sale of Hawaii land conveyed to the state when it joined the union. More on that case, Hawaii v. Office of Hawaiian Affairs. Here from ABA Journal.

Mixed-motive case, opinions on tap

supremeleftToday the Supreme Court is scheduled to hear oral arguments in the case of Gross v. FBL Financial Services, which considers whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive jury instruction in a non-Title VII case.

But first, look for the justices to release one or more opinions this morning. Among the dozens of cases still yet to be decided this term are:

Arizona v. Gant, which considers whether the Fourth Amendment requires law enforcement officers to demonstrate a threat to their safety or a need to preserve evidence to justify a warrantless car search after the occupants secured;

Melendez-Diaz v. Massachusetts, which asks whether a state forensic analyst’s laboratory report prepared for use in a criminal trial is “testimonial” and subject to limits under the Confrontation Clause; and

Philip Morris v. Williams, involving the $79.5 million punitive damages verdict that has bee remanded back to Oregon state courts several times.

Stay tuned for updates.

Monday status conference: Brief recess

ussc1Today the U.S. Supreme Court will hear arguments in the consolidated cases of Travelers Indemnity Co. v. Bailey and Common Law Settlement Counsel v. Bailey. The Court will consider whether a bankruptcy court must have a separate jurisdictional basis to approve a third-party injunction provision in a plan of reorganization or related confirmation order.

DC Dicta is off today, but we’ll be back tomorrow with dispatches from the Court and other legal news and tidbits of note.

Obama and Holder: The Audacity of Hoops

Eric Holder has held the position of attorney general for almost two months now, but today President Barack Obama ceremonially swore Holder in to the post during an event at George Washington University.

Obama used the occasion, picked up live by various news broadcasts, to praise Holder’s skill and judgment.

obamaholder51But, making the point that Holder is an independent thinker, Obama also pointed out that Holder has publicly discussed whether the commander-in-chief has got game.

“He even had the audacity to discuss my basketball skills,” Obama said as the crowd laughed this morning. The president was referring, or course, to Holder’s Senate confirmation hearing in January, when he was asked whether he could beat the president at hoops. Holder said he has a “New York City game,” and that he “could hang with him” on the court, but declined to say that he’d beat the president. See the video here on DC Dicta.

Obama today said he would choose “not to comment” on Holder’s baller prowess.

Friday morning docket: Cash and carry over

supremeleftAs lawmakers continue to crunch President Barack Obama’s budget numbers, and offer some of their own, this morning the justices of the Supreme Court will hold a private conference to decide what cases to add to next term’s docket.

Meanwhile,

More problems, more money: Citing the economic climate’s direct impact on the nation’s court systems, federal judiciary officials urged lawmakers to increase the budget for federal courts by nearly 9 percent in fiscal 2010. (Lawyers USA)

Don’t be so frivolous: Newly-filed legislation would impose mandatory penalties against parties and attorneys who initiate frivolous lawsuits in federal courts. The bill would amend federal civil procedure rules that currently leave the imposition of penalties to the discretion of judges. (Lawyers USA)

Smoky past: What was Sen. Kirsten Gillibrand’s job as a young lawyer? Defending Philip Morris as it confronted pivotal legal battles beginning in the mid-1990s, when the Justice Department sought to prove that executives had lied about the dangers of smoking. (NYT)

March came in like a layoff lion… Attorneys are getting laid off left, right and sideways, but at least the pace of the layoffs has slowed since the virtual bloodletting at the beginning of the month. (ABA Journal)

Nursing home perils: Criminal offenders and mentally ill residents are fueling an increase in patient-to-patient assaults at nursing homes, experts say. (Lawyers USA)

The Funniest Justice, week 11: Hail to the Chief

During oral arguments Tuesday in the case Citizens United v. FEC,  Justice John Paul Stevens asked attorney Ted Olson his view on a point of legal precedent.

“Do you think the Chief Justice’s opinion in that case correctly stated the law?” Stevens asked.

“Of course,” Olson said obediently, drawing laughter. “By definition.”

scalia1“Good answer,” deadpanned Justice Antonin Scalia, prompting more laughter.

That last laugh get helped Scalia maintain his six-laugh lead in his bid to be this term’s funniest justice. But with just nine oral argument days left in the term, Justice Stephen Breyer and Chief Justice John Roberts remain in the running, trailing Scalia by ten laughs or less.

Here are the laugh standings as of today:

Justice Antonin Scalia: 36

Justice Stephen Breyer: 30

Chief Justice John Roberts: 26

Justice David Souter: 11

Justice Anthony Kennedy: 10

Justice John Paul Stevens: 10

Justice Ruth Bader Ginsburg: 4

Justice Samuel Alito: 2

Justice Clarence Thomas: 0 (Thomas hasn’t offered an oral argument question or comment since Feb. 22, 2006).

Court rules in plain-error forfeiture case

usscpoolToday the U.S. Supreme Court ruled in Puckett v. U.S. that the plain-error test must be used to determine whether a defendant’s claim that the government breached a plea agreement is forfeited. The case involved a defendant who agreed to plead guilty in exchange for a reduced sentence, but committed another crime before sentencing, causing the prosecutors to seek – and the judge to impose – a harsher sentence. On appeal, the defendant raised for the first time the claim that the government breached the plea agreement. The appellate court applying the plain-error standard, found that the defendant did not show we was prejudiced by the error.

Writing for the 7-2 majority affirming the decision, Justice Antonin Scalia said requiring defendants to raise such an issue at the trial level is important to prevent defendants from “gaming” the system by waiting to see what sentence he gets and “then seeking a second bite at the apple by raising the claim” on appeal. Justices David Souter and John Paul Stevens dissented.

The opinion is available here.

Frank explains Scalia ‘homophobe’ comment

frank2After sparking controversy by calling U.S. Supreme Court Justice Antonin Scalia a ‘homophobe,’ this morning Massachusetts Rep. Barney Frank stood by his comment, saying that Scalia has repeatedly condemned homosexual conduct in his written opinions.

In an interview on CNN, Frank pointed to “opinions written by Justice Scalia in which he makes it very clear that he thinks it’s a terrible idea for people who are gay or lesbian to have equal rights.”

scaliabigIn a dissent in the 2003 case Lawrence v. Texas, in which the Court struck down an anti-sodomy law as unconstitutional, Scalia said the Court’s majority “signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

Frank said that unlike Justice Clarence Thomas, who also dissented on the constitutional question, but called the law “silly” and said he’d vote to repeal it if he were a state lawmaker, Scalia attacked the issue on a moral ground.

“He is so angry about those of us who may be gay or lesbian, that he thinks it’s taking sides in a culture war to say that people shouldn’t be sent to prison for private consensual acts,” Frank said.

CNN said it reached out to the Supreme Court for comment from Scalia, and the justice declined.

See Frank’s original comment here:

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Frank explains Scalia ‘homophobe’ comment

frank2After sparking controversy by calling U.S. Supreme Court Justice Antonin Scalia a ‘homophobe,’ this morning Massachusetts Rep. Barney Frank stood by his comment, saying that Scalia has repeatedly condemned homosexual conduct in his written opinions.

In an interview on CNN, Frank pointed to “opinions written by Justice Scalia in which he makes it very clear that he thinks it’s a terrible idea for people who are gay or lesbian to have equal rights.”

scaliabigIn a dissent in the 2003 case Lawrence v. Texas, in which the Court struck down an anti-sodomy law as unconstitutional, Scalia said the Court’s majority “signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

Frank said that unlike Justice Clarence Thomas, who also dissented on the constitutional question, but called the law “silly” and said he’d vote to repeal it if he were a state lawmaker, Scalia attacked the issue on a moral ground.

“He is so angry about those of us who may be gay or lesbian, that he thinks it’s taking sides in a culture war to say that people shouldn’t be sent to prison for private consensual acts,” Frank said.

CNN said it reached out to the Supreme Court for comment from Scalia, and the justice declined.

See Frank’s original comment here:

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