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Monthly Archives: October 2009

Monday status conference: Stevens says he’s no spring chicken

Ever since news broke that Justice John Paul Stevens had only hired one clerk so for the October 2010 Supreme Court term, speculation has swirled over whether the justice – who is now the second oldest to hold a seat on the bench, and the fifth longest-serving justice ever – would retire.

USA Today‘s Joan Biskupic put the question right to him. And while he declined to discuss his retirement plans, he answered the question of whether retirement was a possibility with a resounding: Duh!

“That can’t be news,” Stevens, 89, said. “I’m not exactly a kid.”

Biskupic’s very interesting profile of Stevens can be found here.

Meanwhile, let’s open the week with stuff that actually is news:

Sticking to the script: Justice Sonia Sotomayor said her confirmation process was so carefully scripted, here her clothes were picked out for her. (The New Haven Register)

Strange allies: Might medical device manufacturers, who have refused to offer direct financial concessions to help pay for health-care reform, have an ally in their home state lawmaker – Minnesota Democrat Sen. Al Franken? (The Washington Post)

New pot policy: Federal prosecutors will no longer go after medical marijuana users and suppliers as long as they conform to state laws, under new Obama administration policy. (Associated Press)

HELP for NLRB nominee: Despite calls from the U.S. Chamber of Commerce to hold a hearing on NLRB nominee Craig Becker, the Senate Committee on Health, Education, Labor and Pensions is scheduled to vote on his confirmation Wednesday. (WSJ’s Washington Wire)

Cruisin’ for Congress: Federal legislation navigating its way through Congress is aimed at improving safety measures and the reporting of crimes on passenger cruise ships. But lawyers who represent injured passengers and crew members say the legislation doesn’t do enough to address legal loopholes in litigating injury cases against cruise lines. (Lawyers USA)

Another firefighter suit: A black New Haven, Conn., firefighter has filed a federal lawsuit against the city over a promotion exam that was the subject of the U.S. Supreme Court’s landmark ruling in Ricci v. DeStefano in June. (Lawyers USA)

Friday morning docket: Some justices are away, but Ginsburg will stay

Three justices of the Supreme Court  – Chief Justice John G. Roberts, Jr., Justices Antonin Scalia and Stephen Breyer, are in London celebrating the United Kingdom’s new Supreme Court.  But after falling on the plane and being hospitalized, Justice Ruth Bader Ginsburg stayed home.

But even aside from Ginsburg’s fall, it was an eventful week for the justices. In addition to the oral arguments the justices heard, the Court added a number of cases to its docket, including a case that will determine if a man accused of holding a woman as a sex slave can be tried under a sex trafficking statute if some of the conduct occurred before the statute was enacted.

The Court also took up ex-Enron official Jeff Skilling’s appeal, agreeing to decide whether a law that makes it a crime for employees to deprive their employers of “honest services” is unconstitutionally vague. The Court also agreed to decide whether federal law preempts a state court lawsuit against a government contractor that administers benefits provided in accordance with the statute. You can see all the latest DC news from Lawyers USA here.

In other news,

Slow judiciary changes: Liberal activists are not pleased with the progress President Obama has made in infusing federal courts with a new cadre of judges. (The Washington Post)

Parity guidance delayed: Regulations under the mental health parity law will be delayed until some time next year, according to the Department of Health and Human Services. (Lawyers USA)

Pressing for exclusions: The American Bar Association, which has filed suit to stop the application of the “red flags” rule to attorneys, praised the intentions of a new bill that would exclude lawyers in small firms. But ABA officials say the bill doesn’t go far enough. (Lawyers USA)

High courting: What is one of the perks of being a former law clerk of Justice Sonia Sotomayor? Well, you may get to say your wedding vows at the Supreme Court – with Sotomayor presiding over the ceremony! It happened last week. (New York Daily News)

Ginsburg hospitalized after drug reaction, fall on plane

Justice Ruth Bader Ginsburg was hospitalized overnight after suffering a reaction from sleep and cold medications and falling off her chair on an airplane.

Ginsburg boarded a plane last night for a planned trip to London to attend a ceremony celebrating the United Kingdom’s new Supreme Court. According to a statement from the U.S. Supreme Court, Ginsburg suffered “extreme drowsiness” and fell from her airplane seat. The drowsiness was caused by “an apparent adverse reaction to a sleeping aid combined with cold medication,” the statement said.

Ginsburg was held overnight at Washington Hospital Center as a precaution. She was found to be in stable health and released this morning.

Chief Justice John G. Roberts, Jr. and Justices Antonin Scalia and Stephen Breyer were also scheduled to attend the ceremony in London, but only Breyer was on Ginsburg’s flight. He left the plane with the ailing justice, but took a later flight to London. It is unclear whether Ginsburg will travel to the ceremony.

This is the second hospitalization in as many months for Ginsburg, who was treated in September after feeling faint in her chambers after receiving an iron sucrose infusion to treat anemia – a condition she was diagnosed with in July.

Earlier this year Ginsburg underwent pancreatic cancer surgery and treatment, but quickly resumed her duties on the bench without missing a case.

The Funniest Justice, week 2: The goose, the gander and the giggle

During yesterday’s oral argument in Perdue v. Kenny A., Pratik A. Shah, assistant to the Solicitor General, argued that judges should only award attorney’s fee enhancements in extraordinary cases – like when the lawyer had to represent a very unpopular client.

“For extraordinary circumstances?” Justice Anthony Kennedy said. “What about a very, very popular cause and he wins and they are beating his door down? Can we reduce it for that?”

As the audience laughed, Shah continued.

“No, Your Honor, that would not require a reduction,” Shah said.

Justice Antonin Scalia leaned forward.

“Well, I mean, what is sauce for the goose is sauce for the gander,” he said, drawing laughter. “I mean, if you get rewarded for unpopularity, you ought to be get penalized for popularity.”

Scalia was the king of the one-liners this week, which earned him a whopping eight laughs during this holiday-shortened week at the Supreme Court, and boosted him back to the top of out ongoing tally.

Here is the laugh count:

Justice Antonin Scalia: 13

Chief Justice John G. Roberts, Jr.: 9

Justice Anthony Kennedy: 3

Justice Stephen Breyer: 3

Justice John Paul Stevens: 2

Justice Samuel Alito: 1

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

Justice Ruth Bader Ginsburg: 0

Justice Sonia Sotomayor: 0

She works hard for the Circuits

The justices of the U.S. Supreme Court are a hardworking bunch, particularly since Chief Justice John G. Roberts, Jr. altered the oral argument schedule last year to hold more afternoon argument sessions at the start of the term. This week the Court is scheduled to hear oral arguments in five cases.

But there is one High Court retiree who is working even harder: Justice Sandra Day O’Connor.

The SCOTUS alumnus is serving as a visiting 6th Circuit Court of Appeals judge this week, and is scheduled to hear arguments in nine cases.

And while the Supremes take a break from oral arguments next week, O’Connor will still be on the job. She heads out west to sit with the judges on the 9th Circuit.

Oh, and if you are a lawyer scheduled to argue before her, don’t think the justice is getting soft in retirement. O’Connor made clear that she is going to challenge attorneys before her with tough questions, according to The Kentucky Post.

Hearing today in SCOTUS buzz-worthy Prop 8 challenge

As the U.S. Supreme Court resumes oral arguments today, SCOTUS watchers will be casting an eye on the other side of the country as well.

Today a San Francisco federal court will hear arguments on a summary judgment motion in the case seeking to throw out California’s gay marriage ban. As you know, veteran Supreme Court litigators Ted Olson and David Boies launched a challenge to the state’s Proposition 8 law in May with the intent on taking it all the way to the nation’s highest court. Their goal: a Supreme Court ruling that states cannot set laws denying gay couples the right to marry. A trial date was set for Jan. 11.

Backers of the law are seeking summary judgment, that under current legal precedent, the plaintiffs have no case. But according to this San Jose Mercury News report, the law’s defenders have a tough sell in U.S. District Judge Vaughn Walker, who has said in the past that he wants a full trial record in the matter, which will certainly be reviewed by higher courts – perhaps even the Supreme Court.

Monday status conference: Columbus Day Edition

All is mostly quiet in Washington, DC on this Columbus Day – Congress and the Supreme Court are closed in observance. But we know many lawyers are working on this Monday holiday, and so is DC Dicta, bringing you the latest legal news:

Med-mal reform costs debated: As lawmakers continue to wrangle with health care reform legislation, a new report reignited the issue of tort reform in the debate. An analysis issued Friday by the Congressional Budget Office found that medical malpractice reform efforts such as punitive damages caps and limiting pain and suffering jury awards could save as much as $41 billion over ten years. (Lawyers USA)

Bringing ‘mixed-motive’ back? Lawmakers have filed legislation that would reverse a Supreme Court decision last term that eliminated “mixed-motive” claims under the Age Discrimination in Employment Act. (Lawyers USA)

What a relief it is…: The Obama administration’s mortgage relief effort has helped 500,000 homeowners and officials maintain that the program is on track despite its disappointing launch, the administration said Thursday. (Lawyers USA)

…Or not: But the next day, an oversight panel sharply criticized the program and declared it would leave millions of Americans vulnerable to losing their homes. (The New York Times)

Friday morning docket: All about the Supremes

It seems that a lot of folks were very excited about this week’s start of the new Supreme Court term. C-SPAN dedicated a week of programming to the nation’s highest court, showing a series of documentaries that examine everything from the justices, to the Supreme Court building, to the attorneys that argue before the Court. That programming is now available online if you’d like to check it out.

And How Appealing reports that the Oyez Project has posted all of the available audio of oral arguments and opinion announcements from last term on its site.

And there is more news this week, from the Supreme Court and elsewhere:

Cert denied: The U.S. Supreme Court has turned down an appeal filed by a Roman Catholic priest convicted of murdering a nun in Ohio. (AP)

Subprime – in reverse: The types of consumer abuses that occur in the subprime mortgage market are also happening in the reverse mortgage market, according to a new report released by the National Consumer Law Center in Boston. The report, issued this week, is entitled Subprime Revisited: How the Rise of the Reverse Mortgage Lending Industry Puts Older Homeowners at Risk.” (Lawyers USA)

Employment lawyers go to Washington: The issue of mandatory binding arbitration has been on the minds of lawmakers and in the news recently, and one employment attorneys’ group came to Washington hoping to turn that attention into legislative action. (Lawyers USA)

Expanded hate crimes bill passes: Despite significant Republican opposition, the House voted to broaden the definition of violent federal hate crimes to cover those committed because of a victim’s gender, sexual orientation, gender identity or disability. (The New York Times)

A lawyer won the Nobel Peace Prize! Well, not just any lawyer. It’s the president of the United States. (The Washington Post)

The Funniest Justice, week 1: A *pop* of the tongue

During oral arguments Tuesday, Justice Antonin Scalia was trying to figure out just how violent a “violent felony” needs to be to qualify for a sentence enhancement under a federal statute.

When Leondra R. Kruger, assistant to the Solicitor General, argued that a crime that poses a “sufficient potential for harm” should qualify, Scalia perked up.

“Congress meant the threat?” Scalia asked.  ”It doesn’t even have to be the act? ‘You know, if you don’t shut up, I am going to come over and thwonk you on your shoulder with my index finger. I’m going to-’” (Scalia points out his index finger and makes a “pop” sound with his tongue). “This is a violent felony under this statute which gets him how many more years?”

“It creates a mandatory minimum of 15 years,” Kruger answered.

“Fifteen years for (pops his tongue again)?”

Even when making the job of the court reporter a little more challenging – how to you transcribe a tongue pop? – Scalia knows how to draw a laugh at in the courtroom. He scored four laughs during the term’s first week of oral arguments. But it wasn’t enough to put him in the lead – Chief Justice John G. Roberts, Jr. also drew laughter from the crowd four times, allowing him to keep his lead as The Funniest Justice so far.

Here is the laugh count:

Chief Justice John G. Roberts, Jr.: 6

Justice Antonin Scalia: 5

Justice Stephen Breyer: 3

Justice John Paul Stevens: 2

Justice Anthony Kennedy: 2

Justice Samuel Alito: 1

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

Justice Ruth Bader Ginsburg: 0

Justice Sonia Sotomayor: 0

(Standings are based on the Court’s official transcripts, and include the re-argument of Citizens United v. FEC in September)

P.S. Oh, how did the court reported indicate Scalia’s tongue pop noise? As so: “(snap)”

Supremes debate dog fighting, the definition of ‘kill’ and The Human Sacrifice Channel

A federal law criminalizing the sale of videos depicting animal cruelty seems in constitutional peril, after Supreme Court oral arguments today.

In arguments in U.S. v. Stevens, a challenge to a law that makes it illegal to create or sell depictions of animal cruelty, most of the justices seemed to indicate that the statute cuts too broad an encroachment on the First Amendment.

For example, some justices were not at all moved by deputy Solicitor General Neal Katyal’s argument that the law – passed in an effort to ban so-called “crush videos” depicting women crushing small animals to death with their stilettos, dominatrix-style – could not be applied to hunting videos.

“Some depictions of hunting are pretty gruesome,” said Justice Anthony Kennedy.

When Katyal pointed out that the statute was limited depictions of cruelty, defined as “maimed, mutilated, tortured, wounded, or killed,” Justice Antonin Scalia jumped in.

“Or ‘killed!’” Scalia exclaimed. “How do you limit ‘killed?’ …‘Kill’ has one meaning, which is ‘kill!’ … You don’t have a single case in which an absolutely clear word like ‘kill’ is given a more narrow meaning because of other words that are different from that word.”

Of course that didn’t mean that Patricia Millett, the attorney arguing against the statute, didn’t get some memorable questions.

When Millett pointed out that the underlying dog fighting in the video at issue in the case wasn’t illegal because it took place in another country where it was allowed, Justice Samuel Alito asked: “What if [people] like to see human sacrifices?  Suppose that is legally taking place someplace in the world. I mean, people here would probably love to see it. Live, pay-per-view, on The Human Sacrifice Channel. Is that ok?”

As people in the courtroom laughed, Millett tired to qualify her answer by saying Congress must act in an “even-handed” way. Alito had more questions.

“Suppose you have The Ethnic Cleansing Channel on cable TV, and [said ethnic cleansing] is taking place in a country that’s beyond our power to influence. Congress couldn’t prohibit that?”

“The fact that conduct is repulsive or offensive does not mean we automatically ban the speech,” Millett answered.

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