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Monthly Archives: March 2010

SCOTUS: Lawyers have constitutional duty not to give bad advice

Lawyers have a constitutional obligation to inform their clients that a criminal plea could result in deportation, the U.S. Supreme Court held today.

In his opinion in the case Padilla v. Kentucky, Justice John Paul Stevens held that an attorney who told his client not to worry about the consequences of a guilty plea – and  whose client was later subject to a deportation order because of his conviction – gave constitutionally deficient representation.

“It is our responsibility under the Constitution to ensure that no criminal defendant – whether a citizen or not – is left to the ‘mercies of incompetent counsel,'” Stevens wrote. “To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation.”

The 7-2 ruling was assailed in a dissent by Justice Antonin Scalia, who accused the majority of ignoring the text of the Sixth Amendment in order to achieve the result it wanted.

“Constitution [is] not an all-purpose tool for judicial construction of a perfect world; and when we ignore the text in order to make it that, we often find ourselves swinging a sledge where a tack hammer is needed,” Scalia wrote.

In the other opinion handed down this morning, Shady Grove Orthopedic Associates v. Allstate Insurance, the Court held that a New York state law barring class actions for “penalty” fees cannot prevent a diversity jurisdiction class action claim because the state rule conflicts with Federal Rule of Civil Procedure 23. The plurality opinion, authored by Justice Antonin Scalia, found that the conflict between state and federal rules must be resolved in favor of the federal rule, which allows such claims.

More on these cases today and in the days to come on Lawyers USA online.

Poll: Americans would back a gay Supreme Court justice

Last year Sen. Jeff Sessions, the top Republican on the Senate Judiciary Committee, said he wasn’t sure the country was ready for an openly gay Supreme Court justice, saying Americans “might feel uneasy about that” and it could be a “big concern.”

But according to a recent survey, they are ready. A poll by “60 Minutes” and Vanity Fair shows that 55 percent of Americans would support a gay justice on the high court, while 40 percent would oppose one.

Last year, President Obama’s list of potential replacements for Justice David Souter reportedly included Stanford Law professor Pam Karlan and former dean of the school Kathleen Sullivan, who are both openly gay.

But it remains unclear just how much support a gay nominee will receive from the Judiciary Committee, which vets candidates. Soon after making the “uneasy” comment last year, Sessions clarified his position, saying: “I can vote for a gay nominee – we’ll just have to see.”

Forget ‘The Funniest Justice’ – how about ‘The Bravest Attorney?’

If there were a contest to determine the Supreme Court litigator with the most chutzpah, the prize just might go to Justice Department attorney Jeffrey Wall – for implying that one justice may be a bit sharper than another.

During oral arguments today in the case Barber v. Thomas, the justices tried to parse the parties’ arguments on just how to calculate good behavior credits for federal prison inmates’ sentences.

The arguments, which boiled largely down to dueling mathematical calculations, weren’t often easy to follow, as Justice John Paul Stevens pointed out.

“It’s a very hard statute to understand,” Stevens said to Wall at one point during the argument.

“Well, with all due respect, Justice Stevens, Justice Breyer got it in the first five minutes,” Wall replied, sending howls of laughter throughout the courtroom.

Good humored, Stevens replied: “Well, he’s a lot smarter than I am!” More laughter.

Then Justice Antonin Scalia jumped in. “Even Justice Breyer has got it!” Scalia exclaimed. “Whoa!”

SCOTUS: No constitutional violation in all-white Michigan jury

In a ruling that could make it tougher for minority defendants to challenge convictions by all-white juries, the Supreme Court today in Berghuis v. Smith reversed a 6th Circuit ruling that a Michigan jury selection system – which the defendant claimed drained black jurors from the pool before criminal juries could be selected – did not violate the Sixth Amendment.

Delivering the unanimous opinion for the Court, Justice Ruth Bader Ginsburg wrote that the 6th Circuit should not have disturbed a Michigan Supreme Court ruling that the defendant failed to show a constitutional violation.

“Warranting heavy weight, the Michigan Supreme Court, in a cogent decision, had held that Smith’s evidence failed to prove ‘systematic exclusion'” of black jurors, Ginsburg said today from the bench in announcing the decision. “[A]s that determination was not at all unreasonable, the 6th Circuit had no warrant to disturb it.”

The Court also held in Jones v. Harris Associates LP that the standard set forth in the 2nd Circuit case Gartenberg v. Merrill Lynch Asset Management should be applied when evaluating shareholder suits for breach of fiduciary duty by mutual fund investment advisers.

In its third decision, the Court held in Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson that the public disclosure bar of the Investment Company Act applies to state and local sources as well as federal sources.

We’ll have much more on these cases today and in the coming days on Lawyers USA online.

Obama: Keep failed Bush pardon seekers secret

The White House wants the names of prisoners who unsuccessfully sought a pardon from President Bush to be kept under wraps.

In a brief filed in Washington federal appellate court Friday, the administration urged the court to deny an attempt by a Washington Post reporter to obtain the names of those denied clemency by Bush.

The move, Politico reports, is likely designed to prevent the names of those seeking clemency from Obama from being disclosed as well. So far, Obama has not granted any requests for pardons or clemency.

“Pardon and commutation applicants have a substantial privacy interest in nondisclosure of the fact that they have unsuccessfully sought clemency,” the Justice Department’s brief reads. “The substantial privacy interest of the clemency applicants outweighs the negligible public interest in disclosure of their names.”

Making the applicants’ names public would, the brief argued, could delay their rehabilitation and even put them at risk.

“Disclosure of the fact that individual offenders have unsuccessfully sought pardons or commutations unquestionably will re-stigmatize the applicants and draw renewed attention to their offenses, thereby harming their prospects for successful rehabilitation and reintegration into the community, as well as possibly subjecting them to the risk of retaliation,” the brief said.

Monday status conference: A fight during recess

Last week, during oral arguments at the Supreme Court, Deputy Solicitor General Neal K. Katyal urged the justices to find that the National Labor Relations Board had authority to act and issue opinions with only two members – as it had for more than two years.

The fact that the Senate had held up the confirmation of President Obama’s three nominees to the board – and had in fact blocked one of the candidates, union attorney Craig Becker, with a failed cloture vote – “underscores the general contentious nature of the appointment process with respect to this set of issues,” Katyal told the justices.

“And the recess appointment power doesn’t work why?” asked Chief Justice John G. Roberts, Jr.

Over the weekend Obama showed that the power does indeed work. With the Senate in recess for more than three days, Obama made 15 recess appointments to administration posts – including Becker to the NLRB.

Late last week Republican senators as well as the U.S. Chamber of Commerce urged Obama not the use the recess appointment power for Becker. They argued that Becker represented a campaign promise made by Obama to unions during the election, and that Becker would essentially push to authorize “card check” unionizations in worplaces after legislation that would have done so lost steam in Congress. Much more on the Becker brouhaha here from Lawyers USA.

Meanwhile oral arguments continue today at the Supreme Court. The justices will hear arguments in cases involving double jeopardy and securities law.

In other news:

Predicting Stevens’ replacement: Since no one else is waiting for Justice John Paul Stevens to actually retire before opining about who might replace him, we won’t either. (Lawyers USA)

Gun law ok’d: A a federal court has upheld the gun regulations enacted in the District of Columbia after the Supreme Court’s ruling in D.C. v. Heller. (The BLT Blog)

Money talk: What’s the impact of the latest federal court ruling rejecting a constitutional challenge by the Republican Party to some federal limits on donations to political parties? SCOTUSblog explains. (SCOTUSblog)

The Funniest Justice, week 11: Breyer’s crystal ball

At oral arguments in the taxation case Levin v. Commerce Energy Monday, Justice Stephen Breyer decided to help attorney Benjamin C. Mizer out by looking into the future.

“My suspicion is in about 10 or 15 minutes I will hear that the State law merits are such that it’s virtually impossible that they are going to say to us: ‘Pay fewer taxes.’ Rather they will say: ‘Pay more taxes.’ So now is your chance to reply to that hypothetical argument just in case they make it.”

That was one of three times Breyer made the crowd laugh this week, making him this week’s funniest justice and giving him a boost in what has become a race for second place in the Funniest Justice contest. Runaway lead holder Justice Antonin Scalia earned two laughs this week, and Justice Ruth Bader Ginsburg is finally on the board after drawing one laugh.

Here are the standings for the term so far:

Justice Antonin Scalia: 59

Justice Stephen Breyer: 32

Chief Justice John G. Roberts, Jr.: 22

Justice Anthony Kennedy: 8

Justice Samuel Alito: 4

Justice John Paul Stevens: 3

Justice Ruth Bader Ginsburg: 1

Justice Clarence Thomas: 0 (The oral argument silence that began after Feb. 22, 2006 continues)

Justice Sonia Sotomayor: 0

Preview of a Supreme confirmation battle?

UPDATE: The hearing has been postponed. This is the note on the committee’s web page: “The hearing on ‘Nominations’ scheduled before the Senate Committee on the Judiciary for Wednesday, March 24, 2010 at 2:30 pm has been postponed due to Republican objection and will be rescheduled at the earliest possible time.”

A Senate confirmation hearing set for this afternoon could provide a preview of the contentious fight President Obama may face should he get the chance to nominate another Supreme Court justice soon.

Goodwin Liu, who was nominated by Obama for the 9th Circuit Court of Appeals, faces the Senate Judiciary Committee today. And the committee’s top Republican, Sen. Jeff Sessions, has already made it clear that a battle awaits Liu.

Speaking about the nomination of 39-year-old Liu, a University of California at Berkeley law professor known his intellectual heft as well as his left-leaning views, Sessions told the Washington Post: “Instead of nominating an individual who has demonstrated an impartial commitment to following the Constitution and the rule of law, President Obama has selected someone far outside the mainstream of American jurisprudence.”

Sessions told the Los Angeles Times: “I think most senators would say he’s beyond the mainstream.”

Justice John Paul Stevens recently said he’d decide whether or not he would retire from the Supreme Court within the next month. Meanwhile, White House officials say the president stands ready to nominate a successor should Stevens choose to step down, and experts say Solicitor General Elena Kagan is the likely candidate for the job.

But the fight over Liu may demonstrate not only the Republicans’ willingness to push back against any Obama judicial nominee – last year Sonia Sotomayor was originally thought of as a moderate, safe choice, but her confirmation vote was ultimately split down party lines – Liu himself is seen as a potential future high court pick.

Today’s hearing may serve “as an initial referendum on Goodwin Liu as a Supreme Court nominee,” Michael Gerhardt, a University of North Carolina law professor who advised committee Chairman Patrick J. Leahy (D-Vt.) during the Sotomayor hearings, told the Post.

Health care foes ready to sue

As President Barack Obama stands ready to sign the health care reform bill into law today, a number of states stand ready to file lawsuits challenging the constitutionality of the legislation.

Attorneys general in Alabama, Florida, Nebraska, North Dakota, Pennsylvania, South Carolina, South Dakota, Texas, Utah and Washington have vowed to sue, claiming the soon-to-be law unconstitutionally overextends federal power and commandeers states’ rights.

The attorneys general also cite concerns that a lack of federal support will leave states with the burden of providing citizens health care.

“To protect all Texans’ constitutional rights, preserve the constitutional framework intended by our nation’s founders, and defend our state from further infringement by the federal government, the State of Texas and other states will legally challenge the federal health care legislation,” said Texas Attorney General Greg Abbott, in a statement issued Sunday night after the bill was passed.

“The continued intrusion of this Congress into the free enterprise system, and the placing of new mandates on states, is shocking to the American system of federalism,” said Virginia Gov. Bob McDonnell in a statement yesterday.

Supreme Court revamps website

Supreme Court junkies know that finding information on the high court’s website hasn’t always been easy. Information about the Court’s decisions, docket and calendar was buried inside pages that were not very easy to navigate.

Justices' conference room

Justices' conference room

All that has changed with a new revamp of the Court’s website in an effort to make it more user friendly. Now web surfers can find the Court’s most recent opinions, its calendar, docket and links to merit briefs, oral arguments transcripts and other information right from the main page. The page also features rotating photos of the famous building, including shots of rarely-seem views like the justices’ conference room and the vantage point from the counsel’s podium in the courtroom.

There are also new features, such as enhanced search capabilities, an interactive argument calendar, improved graphics, and additional historic information.

The web address is even different – instead of www.supremecourtus.gov, it’s a simpler www.supremecourt.gov (although the old URL will redirect you where you want to go).

The changes come as the Court begins in-house hosting of the site for the first time. Hosting services had previously been provided by the Government Printing Office for the last decade.

According to the Court’s Public Information Office, new and expanded features will continue to be added over time.