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Monthly Archives: January 2010

Friday morning docket: Still dissecting the dustup

While folks are still dissecting the POTUS-SCOTUS incident during the State of the Union address, let’s take a glance at some other Washington legal news:

Bankruptcy boost: A bill that would increase the number of federal bankruptcy judges to handle the recent surge of personal and corporate bankruptcies has advanced in the House. (Lawyers USA)

Beyond Ledbetter: Lawmakers marking the one-year anniversary of the Lilly Ledbetter Fair Pay Act being signed by President Barack Obama said more work needs to be done – and urged passage of another law that would further boost worker protections. (Lawyers USA)

High Court to take on airport privacy? Will the Supreme Court tackle the issue of those controversial full-body scanners at the nation’s airports? (UPI)

Change of venue? The Justice Department, facing mounting pressure from New York politicians, is exploring contingency sites for the trial of alleged terrorist conspirators. (New York Times)

Reunited, and equal: Descendants of the parties in Plessy v. Ferguson reunited for a discussion about that case in Topeka.

Haliburton asks SCOTUS to drop case: Halliburton Co. is asking the Supreme Court to block a Texas woman’s lawsuit alleging she was raped by military contractor co-workers in Iraq. (ABC News)

Biden backs Obama’s Citizens United slam

As some political and legal pundits spend the morning debating whether it was proper for President Barack Obama to call out the Supreme Court during his State of the Union address last night, others are pondering whether it was fitting for Justice Samuel Alito to make his disapproval of Obama’s comments visibly apparent.

But Vice President Joe Biden took to the airways this morning to defend the president’s remarks about the ruling in Citizens United v. FEC, calling the ruling, which removed limits on corporate spending in federal election campaigns, “the last thing we need.”

“The president didn’t question the integrity of the court. He questioned the judgment of it,” Biden said on “Good Morning America” this morning, according to the AP. “A lot of these multinational corporations are owned as much by foreign interests as they are by domestic interests.”

“I think it’s an outrageous decision,” Biden said later. “Not outrageous in the fact that these guys are bad guys, but outrageous in the way you read the Constitution [to allow] excessive amounts of money be able to influence the outcome of elections.”

He echoed Obama’s call for a congressional remedy. “I think it was dead wrong and we have to correct it,” said Biden.

Justice Alito’s head shake heard ’round the Union

Within minutes of the conclusion of President Barack Obama’s first State of the Union address Wednesday night, the internet was already abuzz over what Justice Samuel Alito did as the president criticized last week’s Supreme Court campaign finance ruling.

Before the packed House chamber – which included six of the nine justices of the nation’s highest court – Obama, blasted the Citizens United v. FEC decision and urged Congress to move to reverse it.

“With all due deference to separation of powers, last week the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections,” Obama said, as Chief Justice John G. Roberts, Jr. and Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Alito and Sonia Sotomayor sat in the front two rows, just feet away from the president. “Well, I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.”

Normal protocol calls for Supreme Court justices in attendance at State of the Union addresses to remain silent, even when members of Congress erupt in cheers, boos or other reactions.

But as soon as Obama uttered the words “special interests,” Alito – who joined the opinion’s 5-4 majority – seemed to break that tradition. The justice furrowed his brow, shook his head, and seemed to mouth the words: “not true.”

That gesture wasn’t exactly a Rep. Joe Wilson-esque “You lie!” moment, but the reaction by bloggers, tweeters and online news and commentary sites was almost immediate. (“Oh, snap! Did Alito just heckle Obama?!” chirped one comment that popped up on my computer screen as I watched the address.)

UPDATE: And TPM has the video:

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Mr. Chief Justice, and may it please the birthday boy

Happy birthday to Chief Justice John G. Roberts.

Roberts, Jr., who is the third youngest person to hold to nation’s top judicial position, turns 55 today.

Although he occupies the most senior seat on the Court, he’s the Court’s youngest member, just edging out Justice Sonia Sotomayor, who tuned 55 last June.

O’Connor calls Citizens United ‘a problem’

Add retired Justice Sandra Day O’Connor to the list of people unhappy with the Supreme Court’s ruling in Citizens United v. FEC.

Speaking at Georgetown University Law Center yesterday, O’Connor called the ruling “a problem for an independent judiciary.”

The longtime advocate for ending judicial elections said the ruling, which allows corporations and presumably unions to inject large amounts of money into campaigns, can have unintended consequences. Although the ruling applies to federal elections only – and federal judges are appointed, not elected – states that do hold judicial elections could adopt similar campaign finance rules.

“This rise in judicial campaigning makes last week’s opinion in Citizens United a problem for an independent judiciary,” O’Connor told the crowd. “No state can possibly benefit from having that much money injected into a political campaign.”

But speaking later to CNN’s Wolf Blitzer, O’Connor demurred when asked about the wisdom of the ruling in Bush v. Gore – which she took part in.

“You remember that case in the Supreme Court,” Blitzer asked her.

“Oh, I remember that case,” O’Connor said.

“Was that the right decision?” Blitzer asked.

“I don’t know,” O’Connor said. “It was a hard decision to make. But I do know this: there were at least three separate recounts of the votes, the ballots, in the four counties where it was challenged and not in one of the recounts would the election have changed. So I don’t worry.”

The 5-4 split still a SCOTUS staple

It’s still early in the term, but all signs suggest that the ideological divide on the U.S. Supreme Court is alive and well.

Last week’s ruling in Citizens United v. FEC marked the third time in under two weeks that the Court made a 5-4 ruling which separated the Court’s more liberal and more conservative justices, with Justice Anthony Kennedy casting the deciding vote (the other two rulings involved a death row appeal and an order stopping the California gay marriage trial from being broadcast).

This early trend suggests that the retirement of Justice David Souter and the addition of Justice Sonia Sotomayor to the High Court has changed little in terms of ideological Supreme splits. Despite Chief Justice John G. Roberts, Jr.’s expressed desire to have consensus on the Court as often as possible, many cases still come down to one question: Will Kennedy side with Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito on the right, or will he head left to join Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer and Sotomayor.

Of course, most of the Court’s rulings are made by a clear majority of seven justices or more. It’s also worth noting that, taking a look at last term, in the cases that did come down to a 5-4 split – just over a quarter of them did – not all fell along partisan lines. Some rulings, particularly those in criminal law cases, divided the justices differently. For example, in the search and seizure case Arizona v. Gant as well as the Confrontation Clause case Melendez-Diaz v. Massachusetts, Justices Stevens, Scalia, Thomas, Ginsburg and Souter made up the majority.

But some of the more controversial cases did divide the Court’s liberal and conservative blocs solidly, including: Citizens United (which technically falls in the 2008 term), Ricci v. DeStefano (the New Haven firefighters’ discrimination case that became a central issue in Justice Sonia Sotomayor’s confirmation hearings); Bartlett v. Strickland (the Voting Rights Act case); Ashcroft v. Iqbal (which underscored the heightened civil pleading standard established in Bell Atlantic Corp. v. Twombly); Gross v. FBL Financial Services (which eliminated the “mixed-motive” age discrimination cause of action); and FCC v. Fox Television Stations (which allowed networks to face fines when celebrities say naughty words).

SCOTUS in Briscoe opinion: See Melendez-Diaz

In an odd ruling in one of the most anticipated cases on the docket for prosecutors and defense attorneys, the U.S. Supreme Court today – in a one-sentence opinion – declined to carve out an exception to its ruling in Melendez-Diaz v. Massachusetts, which requires prosecutors to make forensic law analysis available to testify in criminal trials where lab reports are entered as evidence.

The case Briscoe v. Virginia questioned whether a state statute giving defendants the right to call lab analysts as trial satisfied the defendant’s Confrontation Clause rights. But although the Court granted cert in that case after Melendez-Diaz was decided, today the Court ruled simply: “We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts.”

The court also handed down a ruling in the RICO case Hemi Group, LLC v. City of New York.

Much more later on the Briscoe ruling and its implications on this blog as well as on Lawyers USA online.

Monday status conference: Opinion day

The U.S. Supreme Court is expected to release one or more opinions today, the last major activity expected from the Court until the justices conference again Feb. 19. Among the issues yet to be decided this term is whether judges can enhance an attorney fee award based on “the superb quality” of the lawyers’ performance, whether prosecutors can be shielded from immunity after allegedly fabricating evidence and then introducing it at trial, and whether sentences of life without parole for juveniles is unconstitutionally cruel and unusual. We’ll keep you posted on any newsworthy rulings on this blog and on Lawyers USA online.

In other legal news:

Lead a little too far? The Consumer Product Safety Commission is concerned that the recently-enacted law banning lead paint in children’s products extends to a number of products that were not intended to be covered, according to a report the agency sent to Congress on the enforcement of the law. (Lawyers USA)

Gitmo flip flop? In an apparent reversal of policy, the government will continue to hold almost 50 Guantanamo Bay prisoners without trial. (Courthouse News Service)

Article of impeachment: A House task force has recommended that Congress impeach Louisiana federal Judge G. Thomas Porteous for corruption. (AP via Washington Post)

Change 2.0: President Barack Obama is reconstituting the team that helped him win the White House to counter Republican challenges in the midterm elections. (New York Times)

GOP seeks seats: Meanwhile analysts say the number of Congressional seats up for grabs in November appears to be growing as the GOP taps more candidates. (New York Times)

The Funniest Justice, weeks 7 and 8: What happens in Vegas…

During oral arguments last week, Justice Stephen Breyer was trying to come up with a formula to ensure that jury selection processes don’t end up excluding minorities from the pool.

“I even got a book called: ‘Statistician For Lawyers,’” Breyer said. “That didn’t help me very much.”

Without missing a beat, Justice Antonin Scalia jumped in.

“That’s why Las Vegas makes a profit, right?” Scalia quipped, drawing laughs from the courtroom crowd.

Two more weeks of oral arguments have wrapped up since we last took the tally of The Funniest Justice standings. And a review of oral argument transcript laughs shows that Scalia turned the funny on full blast during the month of January.

Scalia padded his lead significantly with a whopping 17 laugh-inducing comments made from the bench. Just Stephen Breyer – quite funny in his own right – made the crowd giggle 8 times this month, while Chief Justice John G. Roberts, Jr. drew 4 laughs.

Here are the standings as of now:

Justice Antonin Scalia: 45

Justice Stephen Breyer: 26

Chief Justice John G. Roberts, Jr.: 17

Justice Anthony Kennedy: 6

Justice John Paul Stevens: 2

Justice Samuel Alito: 3

Justice Clarence Thomas: 0 (Thomas has remained silent during oral arguments since Feb. 22, 2006, although he often laughs heartily at other justices’ jokes)

Justice Ruth Bader Ginsburg: 0

Justice Sonia Sotomayor: 0

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