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Monthly Archives: December 2010

O’Connor and Souter talk diversity and cameras in the Court, get laughs (access required)

During a recent discussion in Boston, retired Justices Sandra Day O’Connor and David Souter chatted with veteran Supreme Court journalist Linda Greenhouse about how the public image of judges – including Supreme Court justices – has changed over the years.

Speaking at the John F. Kennedy Presidential Library and Museum in an event broadcast on C-SPAN, O’Connor noted that the biggest change on the Supreme Court is the new diversity on the bench.

She said she was struck by it while watching a recent oral argument.

“I sat there, and I looked up at the bench,” O’Connor said. “Nine positions. And it was absolutely incredible: on the far right was a woman. Boom, boom, boom,” she said, her hand motioning to describe the justice’s positions, “was a woman. On the far left was a woman. Three of them! Now, think of it! It was incredible!”

O’Connor said the changes were a long time coming.

“You know it took 191 years to get the first” woman on the Court, she said to laughter from the crowd. “And we’re moving a little more rapidly now. I was pretty impressed.”

Souter, noting the genders of the three panelists, got the biggest laugh when he added: “Well, heck – look at this group here. I’m here for diversity!”

Greenhouse noted that most Americans don’t get a chance to see the diversity on the Supreme Court from themselves. Cameras are barred from the Court, so only those who travel to Washington to see live oral arguments see the image of the full Court.

“Here we are on C-SPAN, and C-SPAN has a dog in that fight,” Greenhouse said, noting the network’s long advocacy in favor of allowing cameras at the Court.

Souter, who once famously said cameras would be allowed in the Court “over my dead body,” hasn’t changed his mind.

“[That’s] a fight which I hope C-Span loses,” Souter said.

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In dissent, Sotomayor is the new Stevens (access required)

In his later years on the bench of the U.S. Supreme Court, Justice John Paul Stevens was not afraid to voice his objection to a certiorari denial in the form of a written dissent or statement accompanying the Court’s orders.

Now, according to USA Today, the Court’s most active cert denial dissenter is Justice Sonia Sotomayor.

So far this term, of the hundreds of appeals requests that have been rejected by the Court – largely without comment – seven have spurred written dissents, and Sotomayor joined in four. Three of them she authored herself, mostly in cases involving Eighth Amendment rights of prisoners.

In one case, Pitre v. Cain, involving a prisoner who claimed he’d been punished with hard labor in 100-degree hear for not taking his HIV medication, Sotomayor dismissed the argument that the prisoner brought the situation on himself.

“[The prisoner] allege[s] not that the 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,” Sotomayor wrote, adding that she believed the court should have evaluated the claim.

On his way out the door, Specter blasts Roberts, Alito (access required)

Sen. Arlen Specter, the Republican-turned-Democrat veteran Pennsylvania senator whose long Senate career ended with a failed reelection bid, gave his final speech on the floor of the Senate this week – and his words included a sharp jab at two conservative members of the U.S. Supreme Court.

Specter, who once chaired the Senate Judiciary Committee as a Republican, took aim at Bush appointees Chief Justice John G. Roberts and Justice Samuel Alito in his swan song speech, accusing them of “eroding the constitutional mandate of separation of powers,” Politico reports.

Although Specter voted in favor of both justices as a member of the Judiciary Committee, he criticized their votes in cases such as Citizens United v. FEC, which relaxed rules governing campaign contributions by corporations.

“Ignoring a massive congressional record and reversing recent decisions, Chief Justice Roberts and Justice Alito repudiated their confirmation testimony given under oath and provided the key votes to permit corporations and unions to secretly pay for political advertising – thus effectively undermining the basic Democratic principle of the power of one person, one vote,” said Specter. “Chief Justice Roberts promised to just call balls and strikes and then he moved the bases.”

Specter said it was part of a pattern of conservative justices saying one thing during their confirmation hearings and doing another on the bench.

“The Supreme Court has been eating Congress’ lunch by invalidating legislation with judicial activism after nominees commit under oath in confirmation proceedings to respect congressional fact finding and precedents,” Specter said.

Death penalty debate rages on in justices’ cert denial dissents (access required)

Even in cases they decide not to review, justices of the U.S. Supreme Court are not shy about openly debating the hot-button issue of capital punishment.

Justice John Paul Stevens famously used the vehicle of a statement accompanying a denial of certiorari to explain his contention that the death penalty system violated the Eighth Amendment’s ban on cruel and unusual punishment.

But even after Stevens’ departure from the court, the cert-denial debate over the death penalty continues. ABA Journal, citing a Washington Post report, notes that some of the Court’s more conservative justices have chimed in on the issue.

Last week Justice Antonin Scalia expressed his disagreement with the Court’s decision not the review a ruling overturning the death sentence for Alabama inmate James Lawhorn based on failure of his lawyer to give a closing argument in his trial. Justices Clarence Thomas and Samuel Alito joined Scalia’s dissent.

On the other side of the Court’s ideology scale, Justices Sonia Sotomayor and Ruth Bader Ginsburg objected to the Court’s decision not to take up a ruling affirming a death sentence in a case where the only witness offered by his lawyer in the penalty phase testified that life on death row was better than being in the prison’s general population.

Scalia to teach freshmen lawmakers constitutional law (access required)

Before the incoming members of Congress cast their first votes, they will get a constitutional law primer from Justice Antonin Scalia.

The Supreme Court’s most senior associate justice agreed to teach lawmakers about constitutional law at the invitation of Minnesota Rep. Michele Bachmann. The details are still being worked out, but according the CBS News, Scalia’s lecture will be the first in a series of weekly or biweekly classes planned by Bachmann for the freshmen lawmakers. The courses will focus on the nation’s founding documents, according to the CBS report.

“We’re going to do what the NFL does and what the baseball teams do: we’re going to practice every week, if you will, our craft, which is studying and learning the Declaration, the Constitution, the Bill of Rights,” Bachmann recently explained to Lou Dobbs. “Justice Scalia has graciously agreed to kick off our class. The hour before we cast our first vote in Congress, we’ll meet in the Capitol, we’ll have a class or a seminar on some segment of the Constitution, we’ll have a speaker, we’ll have questions and answers, we’ll wrap our minds around this magnificent document. That’ll set the tone for the week while we’re in Washington.”

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Health care law challenge bound for 4th Cir, then Supremes (access required)

The Justice Department will appeal a federal judge ruling striking down a key component of the federal health care overhaul, a step that brings the law one step closer to landing before the U.S. Supreme Court.

Earlier this week, a Virginia federal court held that the federal government lacked authority to require individuals to carry health insurance. The gist of the technical constitutional analysis was that the health care mandate was not an”activity” that the federal government had the power to regulate under the Commerce Clause. Two other federal courts – one in western Virginia and another in Michigan – ruled in the government’s favor against challenges to the law.

But the victory in Virginia may spell good news for challengers seeking to strike the law down, one expert told The Wall Street Journal. Former Solicitor General Gregory Garre told the Journal that challengers are more likely to find support in the appellate court that will hear the government’s appeal – the 4th Circuit.

“If you had to handicap it, the 4th and the 11th Circuits would be the most friendly to the challengers,” said Garre.

The 11th Circuit may also get its chance. Arguments in a challenge filed in a Florida Court are set for Thursday.

Despite controversy, Breyer will attend State of the Union (access required)

When the president addresses Congress in his State of the Union speech next month, Justice Stephen Breyer will be front and center.

Despite the controversy stemming from President Obama’s comments during his last annual address, where he criticized a Supreme Court campaign finance ruling and drew a visible reaction from Justice Samuel Alito, Breyer said he believes attending the event is “very important.”

“I will go next year,” Breyer said on “Fox News Sunday,” according to Politico. “I have gone every year. I think it is very, very, very, important, very important for us to show up at that State of the Union – because people today, as you know, are more and more visual. I’d like them to read, but they are visual. And what they see in front of them at that State of the Union is the federal government, every part, the president, the Congress, the Cabinet, military, and I would like them to see the judges too, because federal judges are also part of that government.”

Alito, who famously mouthed the words “not true” and shook his head in response to Obama’s criticism of the Citizens United v. FEC ruling, said he would probably skip the event. Chief Justice John G. Roberts and Justice Antonin Scalia have also expressed discomfort with being in attendance at such a politically charged event, noting that justices are supposed to maintain the appearance of neutrality.

Roberts has said in the past: “The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering, while the court, according to the requirements of protocol, has to sit there expressionless I think is very troubling.”

In immigration debate, Sotomayor chooses words carefully (access required)

As the justices debated an Arizona law requiring businesses to check the immigration status of their workers Wednesday, Justice Sonia Sotomayor took a different approach from the rest of the justices on one issue: what to call a person who is not authorized to work in the country.

During oral arguments in Chamber of Commerce v. Whiting, most of the justices chose the same words Chief Justice John G. Roberts, Jr. did when he asked: “You don’t disagree that whether or not a company hires illegal workers is related to quality or asserted ability to do business or qualification?”

But Sotomayor used different phrasing. “If the purpose is to regulate undocumented aliens, then it’s struck down,” Sotomayor said.

Sotomayor’s decision to use the word “undocumented” instead of “illegal” seemed to be thoughtful and deliberate. In fact, once during oral argument when she used the word “illegal,” she quickly corrected herself.

“You don’t disagree that Congress at least intended that if someone violated the federal law and hired illegal aliens of Hispanic — undocumented aliens and was found to have violated it, that the state can revoke their license, correct, to do business?” Sotomayor said.

The ABA Journal notes that the term “undocumented” is preferred by the National Association of Hispanic Journalists, because terms like “illegal immigrant” “criminalizes the person rather than the actual act of illegally entering or residing in the United States.”

It is not the first time Sotomayor chose to use the word “undocumented” instead of “illegal.” In fact, it was Sotomayor who introduced the term “undocumented immigrants” for the first time in a Supreme Court opinion last year in Mohawk Industries v. Carpenter.

The Funniest Justice, week 6: The big laugh theory (access required)

During oral arguments Tuesday in the case Thompson v. North American Stainless, Justice Stephen Breyer was wondering out loud if there was a way to allow a Title VII retaliation suit to be brought by a man who was fired after his fiancée complained of job discrimination without opening the litigation floodgates.

“I’m just playing with the thought,” Breyer said at the beginning of a long and somewhat complicated theory.

Breyer wondered if “the way to limit this is to say that where … a Person B is hurt in order to retaliate against Person A, … B can bring the suit? But if B is a person who is injured only because you retaliated against A, but really wasn’t the means, B can’t bring the suit?”

“But, Your Honor,” began attorney Leigh Gross Latherow,  “respectfully, there’s no basis in the statute to adopt that rule.”

“That is the problem with my theory!” said Justice Stephen Breyer, drawing a round of laughter from the courtroom spectators.

During the final week of oral arguments in this calendar year, Breyer put on his funny hat. The four laughs he earned easily made him the Funniest Justice of the week. Justice Antonin Scalia dialed back his usual humor a bit, making only one laugh-garnering wisecrack.

Here are the standings after six weeks of arguments:

Justice Antonin Scalia: 16

Justice Stephen Breyer: 15

Chief Justice John G. Roberts, Jr.: 6

Justice Anthony Kennedy: 5

Justice Ruth Bader Ginsburg: 3

Justice Samuel Alito: 2

Justice Clarence Thomas: 0 (Not a peep during oral arguments since Feb. 22, 2006)

Justice Sonia Sotomayor: 0 (DC Dicta heard her get a laugh Monday, but it didn’t show up on the transcript. Sorry, Justice!)

Justice Elena Kagan: 0