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Monthly Archives: January 2011

Supreme Court scolds 9th Circuit (access required)

It seems lately that the justices of the U.S. Supreme Court rarely meet a 9th Circuit opinion they wouldn’t love to reverse.

While opinions of the liberal leaning lower court have always faced scrutiny by the increasingly conservative high court – leading to a large number of reversals – the Supreme Court recently rejected five 9th Circuit rulings in a row unanimously. Some judicial experts say the justices are trying to send the San Francisco based federal appeals court a message.

“They seem to do that every now and then,” University of Pittsburgh law professor Arthur D. Hellman told The Washington Post‘s Robert Barnes of the Supreme Court’s recent rebuke of the 9th Circuit with a “combination of a cluster of decisions and language meant to send a message.”

The Supreme Court dealt rapid-fire reversals to the 9th Circuit in cases involving Truth in Lending Act credit card fee notices, employee background checks, two habeas cases involving ineffective assistance of counsel claims, and a bankruptcy ruling – the first decision written by Justice Elena Kagan.

But it was in the criminal cases where the Supremes gave the 9th Circuit a bit of a tongue lashing – at it came from one of its alums.

“Confidence in the writ [of habeas corpus] and the law it vindicates [is] undermined if there is a judicial disregard for the sound and established principles that inform its proper issuance,” wrote Justice Anthony Kennedy, the only former 9th Circuit judge currently on the Supreme Court, in the opinion in Harrington v. Richter. “That judicial disregard is inherent in the opinion of the Court of Appeals for the 9th Circuit.”

Plenty more 9th Circuit cases are pending on the high court’s docket, with rulings expected soon in cases involving everything from securities fraud claims to the ongoing battle over the fortune of the oil tycoon who married Anna Nicole Smith.

Sotomayor a fan of bipartisan seating at president’s address (access required)

Justice Sonia Sotomayor said she enjoyed this year’s State of the Union address more than last year’s – all because of the decision by many lawmakers to pair up and sit with members of the opposite political party.

Sotomayor said it was refreshing to see, for example, Sen. John McCain, the Arizona Republican, sitting next to Massachusetts Democrat Sen. John Kerry during President Barack Obama’s speech Tuesday. Normally Democrats sit on one side of the chamber, while the GOP occupies the other.

“I was there at the State of the Union last year. I was there this year,” Sotomayor said, according to the Associated Press. “And I saw people who I saw on different sides of the aisle during my (confirmation) hearings sitting next to each other, and it was much more pleasant for me.”

Sotomayor used the example of a friend who was a defense attorney when she was a prosecutor to explain how differences in opinion can be handled. “There is not a conflict in disagreeing agreeably. I think people can do it,” Sotomayor said. “I think it helps us reach better solutions that way.”

Sotomayor is the latest justice to chime in on the issue of the political atmosphere of the president’s annual address. Some justices have chosen to skip the address altogether in recent years.

After last year’s address – during which President Obama criticized a Supreme Court campaign finance ruling, causing Justice Samuel Alito to grimace, shake his head and mouth the words “not true” – Chief Justice John G. Roberts, Jr. said he felt uncomfortable sitting expressionless at an event that is akin to “a political pep rally.”

Justice Clarence Thomas, who usually skips the annual speech, said he was uncomfortable with the “catcalls” and “whooping and hollering” at the event. Justice Antonin Scalia opts out of the event as well, calling it a “silly spectacle.”

Alito wasn’t there Tuesday either due to a scheduling conflict, but last year he said he probably wouldn’t attend anyway.

But Justice Stephen Breyer, who regularly attends, said he thought it was important to attend to make sure the judiciary is represented at the presidents annual speech. Breyer has missed only one State of the Union address since he became a justice.

Lawmaker sues Capitol cafeteria over olive pit (access required)

DC Dicta loves a good lawsuit story. It’s been a while since we’ve written about one – our favorite up to now was the administrative judge who tried to sue the pants off a dry cleaner store for losing his breeches. But we may have a new candidate!

Our plaintiff of the day is Rep. Dennis Kucinich, the Ohio Democrat who twice sought the presidential nomination. The defendant: the operators and suppliers of the cafeteria in the U.S. House of Representatives.

In a complaint filed Jan. 3, Kucinich claims he bought a veggie wrap at the shop in 2008, but when he bit into it his tooth hit a hidden olive pit causing “permanent dental and oral injuries requiring multiple surgical and dental procedures,” the Cleveland Plain Dealer reports. He’s seeking damages for future dental and medical expenses as well as pain, suffering, and loss of enjoyment – to the tune of $150,000. (See the complaint here care of Courthouse News Service.)

But the folks at Gawker are wondering just how bad those dental injuries were, and perhaps giving the defendants a key piece of evidence. Gawker posted a video of Kucinich speaking on the House floor five days after the alleged olive pit assault. “He looks fine and talks normal!” observed Gawker’s John Cook.

Kucinich’s spokesperson said the lawmaker had “no comment other than to say this is a private legal matter.”

(Tip o’ the hat to ya, ABA Journal.)

No Supreme drama at president’s address (access required)

Unlike last year, Tuesday’s State of the Union address contained no Supreme Court-related drama.

Leading up to the event, speculation swirled as to which Supreme Court justices may skip President Barack Obama’s second annual address altogether, given last year’s controversy over Justice Samuel Alito’s reaction to the president’s criticism of the Citizens United case, and the recent rise in tensions between the Court some members of the other branches of government.

But hours before the event, it was announced that Chief Justice John G. Roberts, Jr. along with Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan would be in attendance. Though Roberts has in the past indicated his discomfort with attending the annual event – calling it a “political pep rally” – it was reported that Roberts wanted to show a sense of unity after the slayings of federal Judge Roll and five others in the assassination attempt on Rep. Gabrielle Giffords in Tucson.

Obama greeted each of the six justices in attendance warmly before beginning his address.

He went on the deliver an address that steered clear of any direct mention of the Court or its decisions.

Despite controversy, Scalia addresses Tea Party Caucus event (access required)

Controversy surrounding GOP Rep. Michele Bachmann’s invitation to Supreme Court Justice Antonin Scalia to speak at a closed-door gathering of lawmakers hosted by the Tea Party Caucus did not keep the Court’s most senior associate justice away.

Yesterday Scalia spoke to about 50 members of Congress and members of their staff in a constitutional seminar. And though the event was closed to the press, attendees told the Washington Post that Scalia urged the audience to read up and “pay attention” to what their roles are – starting with the Federalist Papers.

“He said we should all get a copy of the Federalist Papers and read it, underline it and dog-ear it,” said Illinois Democrat Rep. Jan Schakowsky, who attended the event.

Though the meeting had been blasted by liberal groups who expressed concerns that Supreme Court justices’ participation in Tea Party events may create an appearance of bias, most participants said Scalia avoided hot-button topics and steered clear of issues that might land before the Court. Rather, Scalia basically conducted a law seminar, they said.

“This was a discussion at a very high level,” Schakowsky told the Post. “There were lots of Latin phrases being used.”

Still some lawmakers criticized Scalia’s participation. South Carolina Democrat Rep. James Clyburn told MSNBC’s Chris Jansing today that Scalia’s appearance at the event was inappropriate – even if it only creates an impression that Scalia backs conservatives’ agenda.

“I do believe that we have traditionally looked at the Supreme Court as being an impartial arbiter of differences,” Clyburn said. “If the public gets the feeling that the Supreme Court will not be impartial in its deliberations, that can lead to no good. …It’s just not good for the American people, and I think it was a horrible mistake for the justice to go to this Tea Party meeting.”

Thomas amends financial disclosures (access required)

After coming under fire for failing to include his wife’s income from conservative organizations on federal financial disclosure forms, Justice Clarence Thomas yesterday filed amended reports, calling the omission an oversight.

Thomas attributed the error to a “misunderstanding of the filing instructions.” Friday The Los Angeles Times reported that in the original filings, Thomas checked a box labeled “none” where “spousal noninvestment income” would be disclosed despite the fact that Virginia Thomas earned in excess of $686,000 from the Heritage Foundation according to income returns filed with the IRS.

The explanation did not satisfy Bob Edgar, president of Common Cause, the liberal watchdog group that has also asked the Justice Department to investigate Thomas and Justice Antonin Scalia after they spoke at a conservative retreat in 2007.

“Justice Thomas sits on the highest court of the land, is called upon daily to understand and interpret the most complicated legal issues of our day and makes decisions that affect millions,” said Edgar in a statement. “It is hard to see how he could have misunderstood the simple directions of a federal disclosure form. We find his excuse is implausible.”

Legal analyst Andrew Cohen points out this caveat on the forms Thomas signed: “Any individual who knowingly and willfully falsifies or fails to file this report may be subject to civil and criminal sanctions.”

According to the Ethics in Government Act, the maximum penalty for failure to properly fill out the disclosure forms is $10,000. “The Attorney General may bring a civil action in any appropriate United States district court against any individual who knowingly and willfully falsifies or who knowingly and willfully fails to file or report any information that such individual is required to report,” the Act states.

Verrilli tapped as SG, stirring speculation over why Katyal wasn’t (access required)

President Barack Obama yesterday named Donald Verrilli, deputy White House counsel, as his pick to be the next solicitor general. That post has been filled on an interim basis by Justice Department attorney Neal Katyal since former Solicitor General Elena Kagan was nominated to the Supreme Court last year.

Though buzz about Verrilli possibly being primed for the post started almost as soon as Kagan was tapped for the high court back in May, now some Washington legal insiders are speculating about why Katyal wasn’t Obama’s choice.

Politico’s Ben Smith talked to “a lawyer who follows this stuff,” who suggested that Katyal fell victim to the so-called “Guantanamo 7” campaign:

Neal is a well-respected lawyer; the only “mark” against him is that he represented Guantanamo detainees — in fact, he in large part made his name when he won a case at the Supreme Court, Hamdan v. Rumsfeld, representing detainees…Clearly the White House didn’t want a confirmation battle.

It’s crazy that you can be hurt for representing detainees even when the Supreme Court determines that the position you were arguing for was correct.

Main Justice’s Fahima Haque notes that those backing Katyal for the solicitor general post included Attorney General Eric Holder. But Haque also pointed out that the Hamdan case made Katyal “a darling of left-leaning progressives,” and may have given White House vetters cold feet.

Verrilli, who Obama called an “accomplished individual,” previously served as associate deputy attorney general at the Justice Department, where he focused on national security.

Prior to his time at the Justice Department, Verrilli spent more than 20 years in the Washington office of Jenner & Block, where he co-chaired the firm’s Supreme Court practice group, arguing a dozen cases before the Court and participating in more than 100 Supreme Court cases.

Court extends Title VII retaliation protections to fiancé (access required)

A person who alleges that he was fired after his fiancée filed a discrimination charge with the employer may file a retaliation claim under Title VII, the U.S. Supreme Court ruled this morning.

That decision in Thompson v. North American Stainless was one of four opinions issued by the Court this morning.

In Chase Bank USA v. McCoy, the Court held that a credit card company was not obligated to provide change-in-terms notice before raising a customer’s interest rate under Regulation Z rules in place at the time.

In Ortiz v. Jordan, the justices held that a party may not appeal a denial of summary judgment after a district court has conducted a full trial on the merits.

And in the summary disposition in Swarthout v. Cook, the Court held that parole candidate’s due process rights were not violated where the state followed proper procedures before denying his parole request.

The Court also added two cases to its docket. In Howes v. Fields, the Court will decide whether a prisoner who is isolated from the general prison population and questioned about conduct occurring outside the prison is “in custody” for purposes of Miranda.

And in Reynolds v. U.S. the Court will decide is someone convicted under the Sex Offender Registration and Notification Act has standing to challenge the attorney general’s decision to apply the law to crimes that predate its enactment.

More on these cases to come on Lawyers USA online.

The politics of the Supreme Court (access required)

Usually when members of a branch of government come under fire for alleged politicized activities in Washington, it’s either the folks in the White House or at the Capitol who are in the hot seat.

But as lawmakers plan an unusual display of bipartisanship at the president’s State of the Union speech tomorrow, members of the third and usually least political branch of government are the ones spurring charges of political bias: the justices of the U.S. Supreme Court.

In the latest in a series of recent challenges to justices’ actions, the liberal watchdog group Common Cause has accused Justice Clarence Thomas of failing to disclose his wife’s income from conservative organizations over the past five years on financial disclosure forms he is required to submit.

According to The Los Angeles Times, Thomas checked a box labeled “none” where “spousal noninvestment income” would be disclosed despite the fact that Virginia Thomas earned, in Common Cause’s estimation, in excess of $686,000 from the Heritage Foundation and Liberty Central, the considerate group she helped found.

The charge comes after the group asked the Justice Department to investigate Justices Antonin Scalia and Thomas for possible conflicts of interest based on the justices’ appearance at a conservative retreat several years ago.

Meanwhile, Scalia is set to speak at a closed-door session with some of the newest members of Congress later today, as event dubbed a Conservative Constitutional Seminar organized by GOP Minnesota Rep. Michele Bachmann. That move has also raised eyebrows, with critics charging that Scalia is cozying up to Tea Partiers.

And political watchers are looking to see which justices will even show up to tomorrow’s State of the Union address, given comments from several of the justices about their discomfort with its political atmosphere. Chief Justice John G. Roberts, Jr. likened the event to a “political pep rally,” and Justice Samuel Alito, who caused a controversy for expressing displeasure during the event last year, said he’d probably skip it this year.

All these factors add up to what some call the most politicized Supreme Court in decades.

“It’s a significant phenomenon,” University of Pittsburgh law professor Arthur Hellman told USA Today. “It wasn’t happening 20 years ago.”