DC Dicta is taking a week-long hiatus before returning next week with all the news from the Supreme Court as it starts its October 2010 term. Check back then for dispatches on the start of the oral argument season.
Monthly Archives: September 2010
According to the Harris Poll released yesterday, 63 percent of Americans polled said they’d like nominees to the nation’s highest court to reveal how they’d vote in specific cases, both real and hypothetical. A whopping 81 percent said nominees should be required to answer questions on specific issues.
The views of those polled were divided both by age (older respondents wanted to know more about Court candidates), and political views (far more Republicans wanted to know the specific views of candidates than did Democrats or Independents.)
Fewer Americans care about nominees’ personal lives, although a majority of those polled, 54 percent, said they’d like potential justices to answer questions about that too.
Most Americans – 58 percent – also claim to be knowledgeable about the Supreme Court confirmation process, while 42 percent admitted that they were not.
And while about half of those polled said that justices should decide cases based on the letter of the law and the Constitution and not based on their personal sense of “right” and “wrong,” more Republicans (67 percent) wanted strictly legal- and Constitution-based rulings. Democrats were more evenly split, with 45 percent preferring justices to be independent thinkers who take modern circumstances into account, and 38 percent preferring strict adherence to the letter of the law.
Retired Justice Sandra Day O’Connor, who has been a vocal opponent of judicial elections, is touting a new reason why she believes judges should be appointed, not elected. It’s good for business, she said.
As some states ponder scrapping judicial elections for a merit-based appointment system, O’Connor said she recently talked to Iowa business officials, who said the merit-based system was working well there.
“Both the unions and the business sector were together on the value and health of the merit system” for judicial appointments in Iowa, O’Connor told The Las Vegas Sun. “They were absolutely sold, and you don’t see that often. They were that way in Arizona, and I anticipate they are that way here.”
In a merit-based system, the governor would choose judges from a list of finalists recommended by a judicial selection committee. Once seated, voters decide whether judges keep their seats.
Such a system would keep the influence of campaign cash out of the judicial selection process, proponents say.
“Businesses believe, as I do, that when you go to court to have an issue resolved, that it be resolved by the people who are qualified, fair and independent,” O’Connor said. “You don’t want them there because money that has been spent on them. You can understand why the business community would feel that way. You don’t want to run the risk of having somebody who is committed to some point of view by virtue of some campaign contribution.”
When the Supreme Court handed down its decision in Ledbetter v. Goodyear Tire & Rubber Co., holding that Lilly Ledbetter’s gender-based unequal pay claim was time barred, the decision made headlines not only for what it said, but for what dissenting Justice Ruth Bader Ginsburg said about it in a stinging dissent she read from the bench.
“Ledbetter’s [trial] evidence demonstrated that her current pay was discriminatorily low due to a long series of decisions reflecting Goodyear’s pervasive discrimination against women managers in general and Ledbetter in particular. …Yet, under the Court’s decision, the discrimination Ledbetter proved is not redressable under Title VII,” Ginsburg said. “Each and every pay decision she did not immediately challenge wiped the slate clean.”
Ginsburg urged Congress to act to amend the law to allow claims based on years-long patterns of wage discrimination to go forward, and lawmakers obliged – passing the Lilly Ledbetter Fair Pay Act – the first measure signed into law by President Barack Obama. That law resets the statute of limitations on unequal pay claims with the issuance of every disparate paycheck.
But as ABA Journal writer Stephanie Francis Ward’s profile of the justice reveals, Ginsburg’s passion for gender equality goes way back – from her work as a lawyer for the American Civil Liberties Union taking on gender discrimination suits, to co-founding the Women’s Rights Law Reporter as a Rutgers Law School faculty member, the first U.S. law journal to focus solely on women, to joining in a class action lawsuit herself against Rutgers after she discovered that her salary was lower than those of her male colleagues.
“It takes women and men who are feminists” to achieve gender equality, Ginsburg told Ward. “By feminists I mean people who think women should have equal chances to do whatever their talent permits them to do. They have to be willing to ask for these accommodations. It’s more than asking-it’s expecting how workplaces should be organized.”
The Supreme Court’s most senior associate justice told an audience at the UC Hastings College of the Law in San Francisco that outlawing such discrimination is up to lawmakers, not the Constitution.
“If the current society wants to outlaw discrimination by sex, you have legislatures,” Scalia said, according to The San Francisco Chronicle.
Although the Court has used Fourteenth Amendment as a basis for protecting against sex discrimination, Scalia said he does not believe that interpretation was intended by the amendment’s drafters.
“Nobody thought it was directed against sex discrimination,” Scalia said, adding that while he doesn’t believe such discrimination should happen, the constitutional bar interpreted by courts is “a modern invention.”
Scalia also said that other activity, such as the burning of the Quran, is protected by the Constitution – a sentiment echoed last week by fellow high court jurist Justice Stephen Breyer.
“It may be a very bad idea, but a lot of stupid stuff is perfectly constitutional,” Scalia said, according to SF Appeal.
When the Supreme Court opens its term next month, the absence of retired Justice John Paul Stevens will be felt in many ways – particularly when the Court takes up several cases dealing with the issue of federal preemption of state law claims and regulations, experts say.
“Justice Stevens has been, up to this point, the voice against preemption,” said Eric G. Lasker, a partner in the Washington office of Hollingsworth LLP, speaking at a Supreme Court media briefing yesterday hosted by the Washington Legal Foundation.
Michael A.Carvin, a partner in the Washington office of Jones Day, echoed that sentiment yesterday at a Supreme Court discussion panel hosted by the American Constitution Society for Law and Policy.
Justice Stevens has been the most reliable anti-preemption vote,” Carvin said.
The Court’s newest jurist, Justice Elena Kagan, has indicated that she will recuse from two major preemption cases being taken up this fall. In Williamson v. Mazda Motor of America, the Court will consider whether a tort claim against a manufacturer for choosing not to install a combination lap/shoulder belt in a vehicle’s middle backseat is impliedly preempted by a federal motor vehicle regulation. In Bruesewitz v. Wyeth, the Court will take up the question of whether the Vaccine Act expressly preempts all vaccine design defect claims, regardless of whether the vaccine’s side effects were unavoidable. That matter involves a plaintiff who alleged that she suffered seizure disorders as a result of taking a polio vaccine as a child. (More on the potential effect of Kagan’s recusals in those cases can be found here from Lawyers USA)
So which justice or justices might emerge as the new voice against preemption in Stevens absence?
On the issue of express preemption, experts say Justice Ruth Bader Ginsburg may take the anti-preemption baton, given her past opinions.
“Justice Thomas has been consistent in his opposition to the idea of implied preemption,” Lasker said.
Thomas was part of the majority in the landmark implied preemption case Wyeth v. Levine holding that state law drug claims are not automatically preempted by federal regulation. But Thomas also wrote a separate concurrence in that case because, as he wrote, “I cannot join the majority’s implicit endorsement of far-reaching implied preemption doctrines [because] implied preemption doctrines that wander far from the statutory text are inconsistent with the Constitution.”
Justice Stephen Breyer’s media blitz in promotion of his new book took him to CNN’s “Larry King Live” last night, were he talked about everything from his relationship with the other justices to his dismay at the fact that few Americans can name three Supreme Court justices, yet most can name all Three Stooges.
King asked Breyer, whose views often differ sharply from those of benchmates like Justice Antonin Scalia – with whom Breyer often spars during oral arguments – if jurists ever carry grudges outside the courthouse.
“No. Because you make an effort,” said Breyer, who is promoting his book “Making Our Democracy Work: A Judge’s View.”
Breyer said the justices don’t take their disagreements personally because they “understand that the job of the Court is to make decisions” and that “harmful personal relationships will hurt the Court.”
On the subject of the president’s State of the Union Address, although several of his colleagues – including Chief Justice John G. Roberts, Jr., Scalia and Justice Clarence Thomas – have expressed unease about being present in such a politicized atmosphere, Breyer said he thinks it’s important for him to attend.
“I think it is important for people to see – that is [all three branches of] the government,” Breyer said. “I will go.”
He demurred when asked by King whether it was appropriate for Justice Samuel Alito to visibly show his disagreement with the President Obama’s remarks about the Court’s ruling in a case dealing with campaign finance law earlier this year.
“What people say or don’t say when they are in that room or out of that room is their affair,” Breyer said.
King asked Breyer how he felt about having three women on the nation’s highest court.
“How do I feel? Fine,” Breyer said.”Does it change things? Yes. How? Probably for the better.”
When asked what the most surprising thing about being a Supreme Court justice was, Breyer responded: “It’s more work than I thought!”
~ Justice Stephen Breyer, speaking yesterday at the National Archives about his new book, “Making Our Democracy Work: A Judge’s View.”
Summer recess is over for members of Congress, who return to work today in Washington. And President Barack Obama has a message for some members of the Senate: give his judicial nominees and other picks a vote.
“I’ve got people who have been waiting for six months to get confirmed, who nobody has an official objection to and who were voted out of committee unanimously, and I can’t get a vote on them,” Obama said at a White House news conference Friday, according to the BLT Blog.
Obama bemoaned the fact that nominees for federal judgeships and other posts have been stalled by Senate Republicans using procedural speed bumps, if not filibusters.
“We’ve got judges who are pending. We’ve got people who are waiting to help us on critical issues like homeland security,” he said. “And it’s very hard when you’ve got a determined minority in the Senate that insists on a 60-vote filibuster on every single person.”
Meanwhile, Supreme Court Justice Elena Kagan made her social debut as a member of the nation’s highest court. Kagan accompanied Justice Ruth Bader Ginsburg to opening night at the Washington National Opera‘s “Un Ballo in Maschera” Saturday.
In other news:
Sotomayor on the road: During a whirlwind trip where she met with law school students, lawyers, community leaders and the judges before addressing a crowd of 1,300 at the annual dinner of the Legal Aid Society of Cleveland, Justice Sonia Sotomayor said: “It feels like I met all of Cleveland. You rock.” (Cleveland Plain Dealer)
Immigration shift: Although the number of deportations has risen to record levels under the Obama administration, the White House has enacted new policies that will reduce the chances of deportation for millions. (AP’s The Upshot)
Eight-judge bench: The number of cases from which Kagan will recuse herself – based on her involvement as solicitor general and/or other reasons – stands today at 21. (BLT via ABA Journal)
Scalia urged the instructors to resist the urge law professors often feel to place getting published in scholarly journals above classroom instruction.
“The reality is that the part of your academic career that will have the most lasting impact and that will be remembered after you are long gone is those hours you spent producing a living intellectual legacy in the classroom,” Scalia said, according to the Milwaukee Journal Sentinel. “I hope Marquette will always be a teaching law school.”
Scalia, who clerked at a Milwaukee law firm while in law school, also joked that Wisconsin Supreme Court Chief Justice Shirley Abrahamson had named him an “honorary cheesehead.”