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Monthly Archives: October 2010

Court grants Ashcroft review, denies bids by prisoners and reporters (access required)

The U.S. Supreme Court added just one case to its docket yesterday: Ashcroft v. al-Kidd, an appeal by former Attorney General John Ashcroft, will determine whether Ashcroft is immune from a civil suit by a U.S. citizen who claims he was illegally detained as a terrorist.

As is often the case when the Court grants only one cert. petition, more headlines were made over what the Court did not do yesterday.

For example, the Court declined to take up Pitre v. Cain, the appeal of a prisoner who claimed he was punished with hard labor in 100-degree heat for refusing to take his HIV medication. A district court rejected the prisoner’s Eighth Amendment claim, reasoning that he had brought the matter on himself for not taking the drugs.

But Justice Sonia Sotomayor, in a written dissent, opposed the denial of cert., explaining why she believes the 5th Circuit’s ruling affirming the dismissal of the prisoner’s complaint was wrong.

“The Fifth Circuit’s error in requiring Pitre to produce ‘evidence’ in support of his allegations before a responsive pleading was filed, in and of itself, is sufficient reason to reverse the judgment below,” Sotomayor wrote, citing Bell Atlantic Corp. v. Twombly.

“More fundamentally, however, in focusing on Pitre’s own contribution to his health problems, the courts appear to have misunderstood the nature of Pitre’s Eighth Amendment claim,” Sotomayor wrote. “His pro se complaint and attachments…allege not that respondents denied him medical care but that they punished him for refusing to take medication, or attempted to coerce him to take medication, by subjecting him to hard labor that they knew exceeded his medical limitations.”

She said the prisoner’s complaint was “more than sufficient to state a claim of deliberate indifference” under the Eighth Amendment’s cruel and unusual punishment prohibition.

The Court also, without comment, took a pass on Simmons v. Galvin, a challenge brought by a Massachusetts prisoner claiming the commonwealth’s law prohibiting prisoners from voting violated the Voting Rights Act because a disproportionate number of inmates are black or Hispanic.

The Court also declined to take up a request by the Reporters Committee for Freedom of the Press to unseal filings in the case In Re Grand Jury Proceedings. That case involves an investigation of a doctor accused of unlawfully prescribing pain medication.

A petition by a Texas death row inmate was also rejected by the Court yesterday. The inmate’s attorney argued in Hall v. Thaler that the man should not be executed because he is mentally impaired.

Alito won’t go (access required)

If you are looking forward to a rematch between the Supreme Court opinion scolder President Barack Obama and head-shaking comment disapprover Justice Samuel Alito at next year’s State of the Union address, you are likely out of luck.

“I doubt that I will be there in January,” Alito said last week during remarks at an event hosted by the Manhattan Institute in New York, according to the Associated Press.

Alito famously shook his head and said “not true” during the president’s speech in January after Obama criticized the Court’s campaign finance law ruling in Citizen’s United v. FEC.

Last week Alito – echoing sentiments of Chief Justice John G. Roberts, Jr., and Justices Antonin Scalia and Clarence Thomas – said he feels uncomfortable at an event with such a politicized atmosphere. While rules of decorum require justices to refrain from applauding showing approval of the presidents remarks on policy, he said, failing to applaud also makes them look unpatriotic.

Even seemingly benign comments about the greatness of the nation can bite a justice if he or she shows approval, Alito said.

“Presidents will fake you out,” Alito said, noting that such comments from the president can often end with “because we’re conducting a surge in Iraq or because we’re enacting health care reform.”

The Funniest Justice, week 2: Humor is in Breyer’s DNA (access required)

“So look at Dotson,” Justice Stephen Breyer said during oral arguments Wednesday in Skinner v. Switzer, a case that asks whether a prisoner can use a §1983 claim rather than a habeas petition to access DNA evidence that could be exculpatory. “Dotson says that you go into habeas if winning – i.e., getting the DNA – would necessarily spell speedier release. End of the matter. I’m reading to you from Justice Scalia’s concurrence where he quotes my majority with great praise.”

That laugh-garnering comment was one of four made by Breyer this week, making him this week’s Funniest Justice.  Justice Anthony Kennedy drew laughter twice, which puts him on the board. And the frequently funny Chief Justice John G. Roberts, Jr. and Justice Antonin Scalia earned a chuckle apiece this week.

Here are the standings after two weeks:

Justice Antonin Scalia: 6

Justice Stephen Breyer: 5

Chief Justice John G. Roberts, Jr.: 2

Justice Anthony Kennedy: 2

Justice Ruth Bader Ginsburg: 1

Justice Samuel Alito: 1

Justice Clarence Thomas: 0 (Last oral argument utterance: Feb. 22, 2006)

Justice Sonia Sotomayor: 0

Justice Elena Kagan: 0

Supremes stop bumper sticker suit, allow HRT suits to proceed (access required)

This may have been a holiday-shortened week at the Supreme Court, but the justices were still quite busy.

In addition to hearing oral arguments in five cases and adding more cases to its docket this term, the Supreme Court also issued some other noteworthy orders this week.

The Court declined to hear an appeal by two people who filed a lawsuit after being ejected from an event where President Bush was speaking because of a bumper sticker on their car that read: “No More Blood for Oil.”

The lawsuit filed by Leslie Weise and Alex Young against two Bush volunteers claimed the move violated their free speech rights. And while the Court denied the petition for certiorari without comment, Justice Ruth Bader Ginsburg, joined by Justice Sonia Sotomayor, filed a dissent.

“I cannot see how reasonable public officials, or any staff or volunteers under their direction, could have viewed the bumper sticker as a permissible reason for depriving Weise and Young of access to the event,” Ginsburg wrote. She noted that while federal law may shield the volunteers from liability in this case, it may not shield those who gave them their orders.

“Suits against the officials responsible for Weise’s and Young’s ouster remain pending and may offer this Court an opportunity to take up the issue avoided today,” Ginsburg wrote.

The Court also issued an order allowing lawsuits over menopause hormone replacement therapy treatments to move forward.

The Court rejected an appeal by defendant drug maker Wyeth seeking to hald a lawsuit by 123 plaintiffs who claim the hormone treatments dramatically increased their risk of cancer and other serious side effects.

Does questioning a child at school require a warrant? (access required)

The Supreme Court added six new cases to its docket yesterday, including a case that will test the limits of authorities to interview children at school about sexual assault claims.

In Camreta v. Greene, the justices will decide whether the Fourth Amendment requires a warrant, a court order, parental consent or exigent circumstances before law enforcement and child welfare officials are allowed to interview a suspected child abuse victim at a public school.

The 9th Circuit ruled that interrogating the child without a warrant, order or consent was unconstitutional. “[A]pplying the traditional Fourth Amendment requirements, the decision to seize and interrogate [the plaintiff’s daughter] in the absence of a warrant, a court order, exigent circumstances, or parental consent was unconstitutional. We follow the lead of our sister circuits and hold that in the context of the seizure of a child pursuant to a child abuse investigation, a court order permitting the seizure of the child is the equivalent of a warrant,” the court said.

More here from Lawyers USA.

Among the other cases the Court added to its docket are matters that will clarify the kind of federal crimes involving cocaine that would require a mandatory minimum sentence of 10 years in prison; decide whether a criminal defendant convicted under a federal statute has standing to challenge her conviction on the grounds that, as applied to her, the statute is beyond the federal government’s enumerated powers and inconsistent with the Tenth Amendment; and decide whether public employees are protected from employment retaliation under the First Amendment’s Petition Clause when their complaint is about a personal grievance and not a matter of public concern.

Court returns to hear preemption, ineffective assistance cases (access required)

After observing the Columbus Day holiday yesterday, the U.S. Supreme Court is back in action today to hear oral arguments in three cases – including one involving an issue of great interest to trial lawyers and business groups alike: preemption.

This afternoon the Court will hear arguments in Bruesewitz v. Wyeth, which considers whether the National Childhood Vaccine Injury Act expressly preempts state tort claims based on injuries suffered as a result of a polio vaccine. The case could have a major impact on hundreds of product liability lawsuits against vaccine makers claiming a causal connection to autism.

But first, the Court will hear two cases that consider just when a convicted criminal defendant can claim ineffective assistance of counsel on appeal.

In Harington v. Richter the Court will decide whether a criminal defendant is denied the effective assistance of counsel when his lawyer chooses methods other than expert testimony to create a reasonable doubt of guilt. And in Premo v. Moore, the Court will decide if an attorney’s failure to suppress a defendant’s alleged coerced confession warrants post-conviction relief.

Meanwhile, in other Supreme Court-related news:

TV talk: While Justice Stephen Breyer believes its important for Americans to see robed Supreme Court Justices at the president’s State of the Union address, he’s not so sure it’s a good idea for cameras to be in the courtroom – in part because it could lead to “television in every criminal trial in the United States and witnesses [becoming] afraid to appear.” (AP)

The popular crowd:  The Supreme Court has a 51 percent approval rating – making it far more popular than the president (44 percent) or Congress (18 percent). (Gallup)

The trouble with specialists? While there are more Supreme Court practice specialists than ever, there is a growing tension between that group and the public interest lawyers who sometimes question if clients’ interests are always being put first. (The New York Times).

Supreme fashion police: And here is he obligatory story about Justice Elena Kagan’s decision not to don frilly white neckwear with her black robe, care of The Washington Post‘s Robin Givhan. At least she also scrutinized what the male justices wore in the Court’s official photo session. (Washington Post)

The Funniest Justice: Ginsburg is first on the board (access required)

One thing is certain: the first Supreme Court justice to score a laugh during oral arguments this term was Justice Ruth Bader Ginsburg.

But just when that laugh happened is up for debate.

According to DC Dicta’s ears, it occurred during the very first oral argument of the term Monday in Ransom v. FIA Card Services.  When Justice Stephen Breyer questioned an attorney about the definition of automobile “ownership costs” under federal bankruptcy law, Breyer said: “That’s what I thought Justice Ginsburg was initially asking.”

“Yes, I was,” Ginsburg said, and there were audible chuckles in the courtroom.

But that laugh was not noted in the Court’s transcript. Since DC Dicta bases its official, if unscientific, tally of courtroom laughs on the transcript, that chuckle didn’t count.

But, undaunted, Ginsburg struck again – this time in Tuesday’s argument in NASA v. Nelson. When the attorney representing government contract employees objecting to a new federal background check procedure argued that it shouldn’t apply to those already employed, Ginsburg showed her commitment to gender equality.

“Are you then saying that these people have to be grandfathered – or grandparented – because they worked for 20 years?” Ginsburg said, drawing an official laugh.

But the week’s Funniest Justice was, unsurprisingly, Justice Antonin Scalia.

In the case Connick v. Thompson, which considers whether district attorneys can be held liable for failing to properly train prosecutors, attorney Stuart K. Duncan noted that city officials have a duty to train police officers on when not to use deadly force.

“These are people who haven’t gone to law school, right?” Scalia asked. “And do not know that you cannot apply deadly force in most circumstances? … If you were giving guns to lawyers, it might have been different.”

As the audience laughed, Duncan said: “It could be, Your Honor.”

“Depending on the law school they went to or what?” Scalia said to more laughs.

Here’s the laugh count after the first week of oral arguments:

Justice Antonin Scalia: 5

Chief Justice John G. Roberts, Jr.: 1

Justice Ruth Bader Ginsburg: 1

Justice Stephen Breyer: 1

Justice Samuel Alito, Jr.: 1

Justice Anthony Kennedy: 0

Justice Clarence Thomas: 0 (Last oral argument utterance: Feb. 22, 2006)

Justice Sonia Sotomayor: 0

Justice Elena Kagan: 0

Free speech, privacy rights, and raw emotion collide at the Supreme Court (access required)

“Why should the First Amendment tolerate exploiting this Marine’s family?”

That question, posed by Justice Ruth Bader Ginsburg during yesterday’s oral arguments in Snyder v. Phelps, underscores the tough task before the U.S. Supreme Court: drawing the legal line between free speech rights and privacy rights in a case laden with emotion.

The case asks whether the First Amendment precludes a tort award against a fundamentalist Christian church whose members protested a military funeral while holding signs bearing messages such as “Thank God for dead soldiers.” The church, which subscribes to the belief that God is punishing the country and the military for tolerating gay people, also posted an message on its website, that the soldier’s parents “taught him that God was a liar.”

But the members also conducted the protest on public land, stayed 1,000 feet from the church where the funeral was held, and contacted local authorities in an effort to avoid violating any local laws.

So the justices must now decide, in essence, whether some speech, made in a lawful way, is offensively outrageous enough to be tortious, First Amendment notwithstanding.

The justices themselves seemed to know the job before them was a tough one.

“I don’t know what the rules ought to be there,” said Justice Stephen Breyer. “That is, do you think that a person can put anything on the Internet? Do you think that a person can put anything on television even if it attacks, say, the most private things of a private individual?”

Counsel for each party in the case argued from the standpoint of the little guy – each side urging the Court to protect its constitutional interest.

“Mr. [Albert] Snyder simply wanted to bury his son in a private, dignified manner,” said Sean E. Summers, representing the father of the fallen Marine. “When the [church members’] behavior made that impossible, Mr. Snyder was entitled to turn to the tort law of the state of Maryland.”

Margie J. Phelps, the attorney and daughter of church founder Fred Phelps, portrayed the church as the underdog, claiming it was punished for engaging in a public discussion Snyder himself joined when he criticized the war that claimed his son.

“When a plaintiff comes to your Court and says, ‘I want $11 million from a little church because they came forth with some preaching I didn’t like,’ I think it does make a difference for the Court to look closely at what role did that man have in that public discussion,” Phelps said.

More on oral arguments in the case here at Lawyers USA online.

Packed house for today’s military funeral protest case

This morning the Supreme Court takes up the most anticipated case so far this term: Snyder v. Phelps, which asks whether the First Amendment protects protesters at military funerals from liability for intentional infliction of emotional harm.

If you want to witness oral arguments in the case first hand, you are likely out of luck – yesterday I saw folks already lined up outside of the courthouse to get a seat inside today. According to First One @ One First’s Mike Sacks, folks have been there since Monday night. A look at his post about the atmosphere outside the Courthouse gives you a taste of what the scene will be like this morning as the 10 a.m. argument nears. We’ll bring you the recap of today’s argument, as well as the argument in Connick v. Thompson, later this afternoon on this blog and on Lawyers USA.

In the meantime, check out Lawyers USA‘s recaps of oral arguments in NASA v. Nelson and Michigan v. Bryant.

Did high court make it tougher to prove indigence? (access required)

Those representing indigent clients before the U.S. Supreme Court may want to take note of one item in the massive list of orders issued by the Court yesterday.

A motion to proceed in forma pauperis (IFP) in the case of Sossamon v. Texas – set for oral argument next month – was denied.

That move surprised some members of the defense bar, including SCOTUSblog’s Kevin Russell, who filed the motion. What’s more, according to Russell, the denial “may signal a change in the Court’s criteria for granting IFP status at the merits stage in some cases.”

“[The] denial seems to reflect a shift from that former practice, at least to some degree,” wrote Russell, who represents the petitioner in association with the Stanford Supreme Court Litigation Clinic. “Until today, the Court had routinely granted IFP status to the Clinic’s indigent clients and appointed Clinic instructors as counsel at the merits stage.”

The shift may signal one of two things, Russell said: Either the Court believes that it shouldn’t have to foot the bill for indigent parties who are represented by well-funded law school clinics, firms or other organizations, or the motion was rejected because the IFP request was not made at the certiorari stage.

“The Stanford Clinic, as a matter of practice, files its cert. petitions as ‘paid’ cases – we pay the filing fee, have the petition printed in booklet form, and do not seek IFP status at the cert. stage,” Russell wrote  “Our basic thinking is that IFP petitions tend to get buried in a sea of other, mostly meritless, pauper petitions.  The Court may have decided that if a party is able, and indeed chooses, to forgo IFP status at the cert. stage, the Court will not entertain a request to switch status once the petition is granted.”