DC Dicta Just another LawyersUSA Online weblog

Justice David Souter plans to retire as soon as a replacement is confirmed for his seat on the U.S. Supreme Court.

Souter has long been rumored to have been weary of Washington life, and ready to retreat his New Hampshire home for retirement. Appointed by President George H. W. Bush, Souter has served on the Court for 19 years.

The retirement would give President Barack Obama his first Supreme Court nomination, and end wide speculation as to who will be the next vacancy on the high court. Others rumored to be retiring during Obama’s first term include Justices Ruth Bader Ginsburg, who is being treated for cancer, and John Paul Stevens, who turned 89 last week and is the Court’s second oldest justice in history.

This news also brings into sharper focus one of the implications of Sen. Arlen Specter’s decision to switch from the Republican Party to the Democratic Party, giving the Democrats a filibuster proof 60-vote majority in the Senate should Al Franken take the vacant seat for Minnesota.

Follow DC Dicta and Lawyers USA as we follow this story.

Meanwhile,

Tragic news: Mark I. Levy, counsel at the Washington office of Kilpatrick Stockton who argued more than a dozen Supreme Court cases, committed suicide in his office yesterday after being laid off from the firm. (Above The Law)

Debt collection lawyers fight back: Leaders of the largest association of debt collection lawyers said Thursday that they are being unfairly targeted by consumer lawyers. (Lawyers USA).

Lowering the red flag: The Federal Trade Commission has delayed enforcement of the “red flag” rule that requires certain businesses to implement identity-theft policies from May 1 to Aug. 1. (Lawyers USA).

Cramdown and out: The Democratic-controlled Senate on Thursday defeated a plan to spare hundreds of thousands of homeowners from foreclosure through bankruptcy. (AP)

The final oral argument of the Supreme Court’s October 2008 Term is in the history books, which means it is time for DC Dicta to reveal which justice earned the most laughs during oral arguments this term. The answer, for those who have been following the standings all year, is not a surprise.

With 45 chuckle-inducing comments and questions, Justice Antonin Scalia is once again The Funniest Justice.

Scalia didn’t garner nearly as many giggles as he earned during the October 2007 term, when he won the Funniest Justice title with a staggering 74 laughs.

And this year, there was a much tighter race for second and third place. Justice Stephen Breyer spent much of the second half of the term within a few laughs of Scalia, and ended up just 10 laughs behind him. Last term, the second-funniest justice – Chief Justice John G. Roberts – took the No. 2 spot with only 23 laughs. This year the chief got five more laughs, but it only earned him the bronze.

So here are the final standings:

Justice Antonin Scalia: 45

Justice Stephen Breyer: 35

Chief Justice John Roberts: 28

Justice David Souter: 13

Justice John Paul Stevens: 12

Justice Anthony Kennedy: 11

Justice Ruth Bader Ginsburg: 5

Justice Samuel Alito: 3

Justice Clarence Thomas: 0 (Has remained silent during oral arguments since Feb. 22, 2006).

Today, before hearing the term’s last oral argument, the U.S. Supreme Court handed down a pair of decisions siding with the government in criminal matters.

In Dean. v. U.S., the Court held that a statute boosting the criminal penalty for discharging a firearm during commission of a felony applies even if the gun is fired accidentally. Chief Justice John G. Roberts, Jr., writing for the 7-2 majority, started the opinion with the observation: “Accidents happen.”

In Kansas v. Ventris, the Court held that a defendant’s statement to a jailhouse undercover informant, obtained in violation of the Sixth Amendment, can still be admissible at trial for impeachment purposes. “Our precedents make clear that the game of excluding tainted evidence for impeachment purposes is not worth the candle,” Justice Antonin Scalia wrote for the majority in the 7-2 opinion.

DC-area moviegoers can expect to get something a little different as they chomp their popcorn waiting for the film to start: a message about tort reform.

That’s right – along with the normal movie trailers, commercials, and reminders to silence cell phones in the theatres, audience members at select Washington-area theatres will see videos lamenting the problem of lawsuit abuse – care of the U.S. Chamber of Commerce.

The Chamber’s Institute for Legal Reform has been featuring a number of videos assailing what it calls the overabundance of tort suits on its website. One video, for example, tells the story of a 7-year-old who was sued after a collision with an adult on the ski slopes. Now, for the next month or so, the ILR it is taking the videos to the big screen.

“Lawsuit abuse and the harm it brings to our citizens and small businesses is one of the great American tragedies today,” explained ILR President Lisa Rickard. “That’s why the silver screen is the perfect venue for the Faces of Lawsuit Abuse trailers. The only difference between the feature presentation and these short films is that the damage, the costs, the winners and losers that are featured aren’t fiction-they’re true stories.”

What does the trial lawyer group the American Association for Justice think about the Chamber’s theatrical move? Spokesman Ray DeLorenzi told the Wall Street Journal’s Law Blog: “With U.S. Chamber’s core membership receiving all those taxpayer bailouts, they must be flush with cash to waste on PR stunts like this. Like their lobbying agenda, these ads are rated NC – not suitable for consumers.”

Today the U.S. Supreme Court upheld a federal rule barring the use of expletives on prime-time broadcast television even if the words are uttered in a fleeting manner.

The case, FCC v. Fox Television Stations, stems from remarks made by celebrities during the 2002 and 2003 broadcasts of the Billboard Music Awards on the Fox network.

Justice Antonin Scalia, who made an unusually long statement from the bench in announcing the case this morning, seemed to have fun recounting the facts of the case including remarks made by Cher and Nicole Richie.

“In the first broadcast, the entertainer Cher exclaimed: ‘I’ve also had critics for the last 40 years saying that I was on my way out every year. Right. So eff ‘em!’” Scalia explained in the courtroom, just in case anyone missed the original broadcast.

In the other broadcast. Scalia explained, “Ms. Richie proceeded to ask the audience: ‘Why do they even call it The Simple Life? Have you ever tried to get cow s— out of a Prada purse? It’s not so effing simple.” Too bad opinion announcements don’t count in the Funniest Justice standings, or Scalia would have padded his lead a bit more.

As for the law, the 5-4 opinion of the Court held that the FCC’s decision to cite the television statement for the fleeting expletives was neither arbitrary nor capricious. “Even when used as an expletive, the F-word’s power to insult and offend derives from its sexual meaning,” Scalia explained. “And the FCC’s decision to look at the patent offensiveness of even isolated uses of sexual and excretory words fits with the context-based approach we [have] sanctioned.”

The Court also granted a new hearing in federal court for a Tennessee death row inmate who was deprived of key evidence at his trial in Cone v. Bell. Justice John Paul Stevens wrote and announced the opinion in that case.

The U. S. Supreme Court really wants to decide whether the Individuals with Disabilities Education Act allows parents to seek private school tuition reimbursement from a school district for a child who never received special education services from that district.

Today the Court will hear oral arguments in Forest Grove School District v. T.A., which poses that very question. But as the lawyers make their arguments, the justices may get a feeling of déjà vu.

That’s because the issue is nearly identical to a case considered in 2007, New York City Board of Education v. Tom F. In that case the Court tied 4-4 (Justice Anthony M. Kennedy recused himself from the case), so the lower court ruling was affirmed without opinion. When the issue came up again in Forest Grove, the Supremes again granted cert.

Today the Court will also hear oral arguments in the case Cuomo v. Clearing House, which considers whether state authorities are precluded by federal law from investigating banks for lending discrimination. Before oral arguments get started today, the Court will likely release some opinions, so stay tuned for updates.

As thermometers here in Washington are set to soar well above the 90 degree mark over the next few days, today the U.S. Supreme Court kicks off its final week of oral arguments this term. This week the justices are set to hear cases involving issues such as immigration, Double Jeopardy, special education reimbursement and the Voting Rights Act. Stay tuned for updates on any cert grants, opinions or other newsworthy developments.

White House officials are focusing on the swine flu after 20 cases were confirmed in the country and a public health emergency was declared. And members of Congress continue to squabble over the release of terror memos.

Meanwhile,

Do not pass Go, do not collect $200: While the percentage of federal criminal offenders who are sentenced to prison time has increased, the percentage receiving alternative sentences – such as probation or house arrest – has decreased, according to a new study released by the U.S. Sentencing Commission. (Lawyers USA)

Proceed with care(givers): The economic downturn has prompted the Equal Employment Opportunity Commission to give special guidance to employers to help them avoid being sued for bias against workers with care-giving responsibilities. (Lawyers USA)

A taxing proposition? President Obama’s tax plan could mean small businesses face bigger tax burdens. (WaPo)

Lawyering up: The “Stevens six” – the six prosecutors under investigation for their roles in the reversed conviction of former Alaska Sen. Ted Stevens – have tapped heavy-hitting BigLaw attorneys to represent them. The Department of Justice will pick up part of the tab. (ABA Journal, BLT, WSJ Law Blog)

Perfect for heading into the weekend: check out this spirited New York Times diary by illustrator and writer Maira Kalman, who uses sketches and hand-written words to describe her recent trip to the U.S. Supreme Court.

During her trip, she talked to number of the high court notables, including Supreme Court Clerk William K. Suter (her sketch of him is an absolute doppelganger!) “He tells me, ‘In the Court your adversary is not your enemy,’” She writes. “How do people handle that? I wonder.”

On meeting Justice Ruth Bader Ginsburg, she writes: “She is petite and elegant. I think, move over Jane Austen as my imaginary best friend forever.”

Although the first 80+ degree weekend of the season is nearly upon the nation’s capital, the top officials in the government’s three branches have a busy day on tap, and probably won’t be leaving early. The Supreme Court justices will conference privately this morning, meaning there could be some new cert grants to report by day’s end. Stay tuned here and to the Lawyers USA website for any newsworthy developments.

Meanwhile President Barack Obama President is pressuring executives from 13 of the nation’s largest credit card issuers to cut excessive fees and to give consumers less obfuscated contracts. And from Congress to the White House, the debate over the released torture memos continues.

Meanwhile,

More Gonzales trouble: Former Attorney General Alberto Gonzales reportedly delayed disclosure of U.S. Rep. Jane Harman’s wiretap to Congress in an effort to protect the government’s secret terrorism spy program. (ABA Journal, CQ, NYT)

Ashcroft hangs a shingle: What do you call a group of former top tier Justice Department attorneys in a room with former Attorney General John Ashcroft? A partners meeting at the brand new Ashcroft Law Firm. (The American Lawyer)

Train wreck of train regs? As lawmakers vet President Barack Obama’s pick to head the U.S. railroad regulatory authority, the nation’s biggest trial lawyers’ group is pushing for review of Bush administration regulations that it says weakens safety protections for people injured in railroad accidents. (Lawyers USA)

Hear ye, hear ye: For the first time this term, the Supreme Court will make an audio recording of oral arguments available immediately in a case that will be heard next week. The audio recording of Voting Rights Act case Northwest Austin Municipal Utility District v. Holder will be released after arguments Wednesday – the last oral argument day this term. (AP)

Justices Stephen Breyer and Clarence Thomas appeared before House lawmakers Thursday to talk about the Court’s budget. But during that conversation, the justices were asked if they were satisfied with the way information about Supreme Court oral arguments was released to the press, and ultimately to the public.

Generally, audio recordings of oral arguments are archived and made available only after the term has ended. In recent years, audio recordings have been released immediately after oral arguments in only 19 cases. Only once – during arguments in Bush v. Gore – were oral arguments were broadcast simultaneously.

As for written oral argument transcripts, for the past few years they have been posted on the Court’s website within hours of oral arguments. But this change was still slow in coming compared with the information provided by other courts across the country, or even by other branches of the federal government.

The justices said they understand the media’s desire to get information quickly. But Breyer explained that to protect the integrity of the high court, any decision to change the speed with which audio recordings or other information is released must be made slowly and deliberately.

“You have to get the justices comfortable with the notion of allowing either that or other access, and the reason simply is we are a conservative institution – and we should be,” Breyer told lawmakers. “The nine of us didn’t invent this institution. We’re trustees, and we’re trustees of a process that’s worked very well in the past, in terms of building up the confidence of the public in the rule of law. So if we are going to change that process – and any of these things is a change – we have to be made comfortable by understanding that it isn’t going to hurt the institution where we temporarily find ourselves. That’s why it goes slowly.”