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Monthly Archives: December 2010

Court takes up AZ ‘business death penalty’ immigration law (access required)

This morning the Supreme Court takes up a case that not only involves hot-button issues like immigration reform, employment discrimination and federal preemption – the case has also created an unusual alliance of groups like the U.S. Chamber of Commerce, the ACLU and labor unions.

The case Chamber of Commerce v. Whiting involves a challenge brought by the Chamber against the Legal Arizona Workers Act, a state law requiring companies to use the federal E-Verify system to check the immigration status of their workers. Failure to do so can result in penalties that include fines, possible jail time and the loss of the company’s business license – which leads some to call the measure a “business death penalty.”

The Chamber and other groups that have joined the challenge as amici claim that the law should be struck down because the federal government is in charge of imposing immigration laws, and has already chosen to make use of the E-Verify system voluntary, not mandatory.

But state officials say federal immigration laws expressly allow states to impose licensing laws on businesses. The state law is just that, they argue.

The case also presents a preview of sorts of the battle over Arizona’s other immigration law, S.B. 1070, which allows the police to detain anyone they suspect of being an undocumented worker.

UPDATE: Coverage of the oral argument can be found here on Lawyers USA Online (sub. req’d).

More on the case and its potential impact here from Lawyers USA.

Court takes up massive Wal-Mart gender bias class action (access required)

The Supreme Court has agreed to consider whether a massive lawsuit against Wal-Mart alleging employment discrimination can proceed as a class action.

In April, the 9th Circuit ruled that the class action suit – which could ultimately involve millions of current and former female Wal-Mart employees – may go forward.

The Court granted certiorari in Wal-Mart Stores v. Dukes, agreeing to answer two questions: whether the plaintiffs may seek a monetary award of back pay when the class was originally created to seek a corrective court order, and whether the class certification ordered under Rule 23(b)(2) was consistent with Rule 23(a).

Wal-Mart reacted quickly to the Court’s decision. In a statement, the company said it was “pleased that the Supreme Court has granted review in this important case.

“The current confusion in class action law is harmful for everyone – employers, employees, businesses of all types and sizes, and the civil justice system,” The statement continues. “These are exceedingly important issues that reach far beyond this particular case. We look forward to the Court’s consideration of the appeal.”

The case promises to be one the most closely-watched of the term.

“The Supreme Court has a great opportunity to clarify civil rights law and, in the process, keep open the courtroom door to civil rights litigants,” said David Sanford, partner at the Washington office of class-action litigation law firm Sanford Wittels & Heisler, and lead counsel in the major class action suit against Novartis, the largest gender discrimination case to ever go to trial and verdict.  “Lay people, lawyers, and politicians all will be watching carefully.”

The suit against Wal-Mart could eclipse the $250 million award in the Novartis case. Wal-Mart officials warn that plaintiffs could seek “billions of dollars in monetary relief” if the action is allowed to proceed.

The Court also agreed to decide whether companies can be sued under nuisance laws for allegedly contributing to global warming in American Electric Power Co., et al., v. Connecticut.

Ginni Thomas calls Hill phone call ‘a mistake’ (access required)

After stepping down as leader of the conservative group she founded, Liberty Central, Supreme Court Justice Clarence Thomas’ wife, Virginia “Ginni” Thomas, said that telephoning Anita Hill seeking an apology was “probably a mistake on my part.”

Speaking to The Daily Caller, Thomas denied that she was leaving the Tea Party-affiliated group altogether. Thomas’ decision to relinquish her CEO position with the group was first reported by The Washington Post last month.

Thomas said she will now lead a joint venture between the group and the Patrick Henry Center for Individual Liberty.

As for her reason for stepping down from the helm of Liberty Central, Thomas told the Daily Caller: “It’s better for the organization not to be centered around a personality.”

“If you look at any of the established conservative groups, it’s hard for them to pull away from some of their leaders,” Thomas said.

She called the notion that her decision was related to the recent media maelstrom around her call to Anita Hill asking for an apology “laughable.” She called the voicemail she left Hill in October asking her to apologize for testifying about alleged sexual harassment during Justice Thomas’ 1991 confirmation hearings “a private matter.”

Stevens, O’Connor and Souter making the case for SCOTUS term limits? (access required)

The New York Times‘ Linda Greenhouse wonders if Justice John Paul Stevens’ recent post-retirement appearances – and the chords they are striking – make the case for term limits on the nation’s highest court.

In her latest “Opinionator” essay, Greenhouse clarifies that she doesn’t believe Stevens should have left the bench earlier than he did. Rather, she points out the value of the retired justice as someone who, like Stevens, can become a “public truth-teller” – and even a judicial “rock star.”

“Not so long ago, it was typical for justices to remain on the court until they died (the exit strategy of 49 of the 103 justices not currently serving) or became enfeebled by age (recall the explanation that Justice Thurgood Marshall gave when he retired in 1991 at the age of 83: ‘I’m old and falling apart,’)” Greenhouse wrote. “I can’t remember when the country was blessed by the presence of three retired justices who can get themselves from one place to another unaided.”

Indeed Stevens, 90, as well as retired Justices Sandra Day O’Connor, 80, and David Souter, 71, have all been active, visible and vocal since leaving the bench. O’Connor and Souter even continue to work, sitting on lower courts and hearing appellate cases.

Stevens most recently made headlines over his candid comments regarding the death penalty. During the course of his tenure on the Court, his stance on the issue changed: while his early rulings upheld the death penalty over Eight Amendment challenges, he later wrote – often in dissents and statements in capital cases – that he believed the way the system was administered is unconstitutionally cruel and unusual.

Stevens even recently penned a book review of David Garland’s Peculiar Institution: America’s Death Penalty in an Age of Abolition in the New York Review of Books essay, noting that two years ago Stevens called capital punishment “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.” He also appeared on CBS’s “60 Minutes” last weekend, showing he has no intention of slowing down.

The Funniest Justice, week 5: Stupid jokes (access required)

“Why don’t you just call your motion a motion to correct an illegal sentence?” asked Chief Justice John G. Roberts, Jr. during Monday’s oral arguments in the case Wall v. Kholi, which considers whether a motion for a sentence reduction constitutes a post-conviction review that would toll AEDPA’s statute of limitations. “Then we wouldn’t have any dispute here, I gather.”

“Under the State’s theory, there would not be,” answered Boston Federal Public Defender Judith H. Mizner, adding: “I did not file this motion.”

“You are not one of the stupid lawyers that we were worried about before,” Roberts said, drawing a round of laughter from the courtroom.

The chief justice tied with Justice Antonin Scalia this week as the chief laugh earner. Each made three funny comments this week, according to the Court’s official transcripts. Justice Anthony Kennedy also padded his score, adding one laugh to his count.

Here are the standings after five weeks of arguments:

Justice Antonin Scalia: 15

Justice Stephen Breyer: 11

Chief Justice John G. Roberts, Jr.: 6

Justice Anthony Kennedy: 5

Justice Ruth Bader Ginsburg: 3

Justice Samuel Alito: 2

Justice Clarence Thomas: 0 (Nope – still no oral argument utterance since Feb. 22, 2006)

Justice Sonia Sotomayor: 0

Justice Elena Kagan: 0

Court toughens §1983 standard, tackles ERISA and prisoner release (access required)

Tuesday a unanimous (except for the recused Justice Elena Kagan) Supreme Court held that plaintiffs bringing §1983 actions against a municipality must show that their injury was caused by a municipal policy or custom, regardless of whether the action is for monetary, injunctive or declarative relief. The ruling in Los Angeles County v. Humphries was the only opinion the Court handed down yesterday.

The Court then heard oral arguments in two cases: a case that will determine the reliance standard in ERISA actions, and a controversial case involving a California judicial ruling authorizing the release of tens of thousands of prisoners in an effort to relieve prisoner overcrowding.

As news reports of the oral argument in Schwarzenegger v. Plata demonstrate, the issue seemed to divide the court.

Some, like Justices Sonia Sotomayor and Ruth Bader Ginsburg, seemed to stress the slow progress of other attempts to relieve prison overcrowding – a situation that has led to horrendous living condition in correctional facilities.

“When are you going to avoid the needless deaths?” Justice Sonia Sotomayor asked attorney Carter G. Phillips, according to this McClatchy report. “When are you going to avoid or get around people sitting in their own feces for days in a dazed state?”

“How much longer do we have to wait (for improvements)? Another 20 years?” pressed Ginsburg.

But other justices, including Justice Samuel Alito, worried of the consequences of a mass release.

“If I were a citizen of California, I’d be very concerned about the release of 40,000 prisoners,” Alito said according to the AP.

SCOTUSblog’s Lyle Denniston suggests that this case could split the Court, leaving the deciding vote in the hands of Justice Anthony Kennedy.

“And, if what Kennedy said controls how he would be voting on the final outcome, it seemed that he would not be willing to overturn that release order in its entirety, but would find ways to indicate that the remedy had to be reshaped or pared down in its scope,” Denniston wrote.