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Monthly Archives: January 2011

Group asks DOJ to probe Scalia and Thomas (access required)

A liberal lobbying organization has asked the Department of Justice to investigate Supreme Court Justices Antonin Scalia and Clarence Thomas for possible conflicts of interest based on the justices’ association with a top conservative financier.

The group, Common Cause, filed a petition with the Justice Department after Charles Koch sent out an invitation to a political retreat for conservatives, and noted that past attendees included the justices. The petition asserts that the justices’ participation in the event should have disqualified them from hearing the controversial campaign finance case Citizens United v. FEC, which lifted some campaign finance restrictions on corporations. The group notes that Koch Industries is the nation’s second largest privately held company.

Citizens United provided a political advantage to Koch Industries and its corporate allies, many of whom helped pump nearly $300 million into the 2010 elections,” the group says in a statement on its website. “Common Cause believes that if sufficient grounds for disqualification of either Justice exist, the Solicitor General should seek to vacate the Citizens United judgment”

Common Cause’s petition also raised questions about the political activities of Thomas’ wife, Virginia “Ginni” Thomas.

But according to The New York Times, group’s officials know that the challenge and effort to get the decision vacated will be a tough sell.

“We’re treading in new territory here for us,” Arn H. Pearson, Common Cause’s vice president for programs told the Times. “But a situation like this raises fundamental questions about public confidence in the Supreme Court.”

The Funniest Justice, week 8: The ‘go away’ principle (access required)

During Tuesday’s oral arguments in the state secrets privilege case General Dynamics Corp. v. U.S., Justice Antonin Scalia suggested that the best way to resolve a dispute between the government and defense contractors was to do nothing at all.

“It’s granting nobody relief. We’re leaving you where you are. ‘Get out of here’ is what we’re saying,” Scalia said, drawing chuckles from the crowd. “We don’t know what the answer is, so go away.”

Later in the argument, Scalia gave his hands-off legal approach a new name.

“It’s the ‘go away’ principle of our jurisprudence,” he said, pulling more laughs.

After lagging behind the chief justice in the funny department last week, this week Scalia was in rare comedic form.

With the exception one laugh earned by Justice Stephen Breyer, Scalia was the sole comedian on the Court this week, earning five laughs – all in during oral arguments in the first case argued Tuesday. That pads his lead in the Funniest Justice tally.

Here are the standings for the term after eight weeks of arguments:

Justice Antonin Scalia: 25

Justice Stephen Breyer: 17

Chief Justice John G. Roberts, Jr.: 13

Justice Anthony Kennedy: 7

Justice Ruth Bader Ginsburg: 3

Justice Samuel Alito: 2

Justice Elena Kagan: 1

Justice Clarence Thomas: 0 (No comment during oral arguments since Feb. 22, 2006)

Justice Sonia Sotomayor: 0

Court oks background checks, nixes ineffective assistance claims (access required)

Today the U.S. Supreme Court ruled that employees’ privacy interests do not prevent an employer from requiring a background check that includes information like previous drug use, drug counseling or treatment, and mental and financial stability.

That ruling in NASA v. Nelson was one of three opinions handed down by the Court this morning, all reversing 9th Circuit rulings.

The other two opinions dealt with ineffective assistance claims. In Harrington v. Richter the Court ruled that a defendant does not make an ineffective assistance claim where his attorney failed to get an expert to investigate blood evidence from the scene of a shooting.

In Premo v. Moore, the Court held that an attorney’s failure to file a motion to suppress a confession his client claims was coerced cannot be the basis of a post-conviction ineffective assistance challenge.

Each of the rulings was unanimous in the judgment, but Justice Elena Kagan did not take part in any of the cases.

More to coverage of these cases to come on Lawyers USA Online.

Breyer to talk bipartisanship with House Judiciary Committee (access required)

Today, members of the House Judiciary Committee will gather and break bread in an effort to foster a bipartisan spirit among its members. And the headline speaker at the event will be Supreme Court Justice Stephen Breyer, The Hill reports.

The meeting has been planned for some time by new GOP House Judiciary Committee Chairman Lamar Smith, even before the Tucson shooting that killed six people and injured 13, including Rep. Gabrielle Giffords. That event has caused some to call for an end of rancorous partisan political rhetoric.

Smith said he asked Breyer to speak at the meeting after reading about his work as counsel on the Senate Judiciary Committee under Sen. Edward Kennedy. That committee, Smith said, was known for its bipartisan work.

“[Breyer] said yes,” Smith told The Hill. “He is going to be our leadoff speaker. Obviously, we are asking him to talk about bipartisanship, not legal philosophy. But it shows some bipartisanship that we are going to have a Supreme Court justice that some people would consider to be on the liberal side.”

The justices’ self-deprecating humor (access required)

Lawyers arguing before the Supreme Court, as well as readers of this blog, know that the justices are known to occasionally make folks laugh during oral arguments. A couple justices are even known to crack wise now and then. The good news for Supreme Court advocates, though, is that when the justices make jokes, it’s usually not at the expense of the attorneys before them.

Instead, writes The Washington Post‘s Robert Barnes, the subject of the funniest justices’ punch lines tends to be themselves.

And, Barnes hints, when it comes to Supreme Court oral arguments, funny is relative. The stuff that draws chuckles from the crowd won’t exactly split sides at Second City.

Take, by way of example Justice Stephen Breyer’s recent laugh-earning comment: “So you’re saying that if the government has the most amazing, let’s – I’m trying to think of something more amazing than what I just thought of.”

Trust us, you had to be there.

The Funniest Justice, week 7: Could it be…Satan?!? (access required)

During oral arguments Monday in the securities fraud case Matrixx Initiatives, Inc. v. Siracusano, attorney David Frederick explained some of the things that could affect a product’s stock sales.

“If there is a product, say, that has some link to satanic influences, and there is some reason to think that a large body of followers [may believe that], a cautious, reasonably prudent investor might want to know that,” Frederick said.

“I don’t know what kind of product has particular satanic susceptibility,” said Chief Justice John G. Roberts, Jr., getting a laugh from the courtroom spectators. “Are you saying it matters if it’s something that Satan’s not going to be interested in? I don’t understand.” More laughs.

Those were two of the whopping seven laughs the chief justice received this week, making him the week’s funniest justice by a long shot. The ever-funny Justice Antonin Scalia came in second with four laughs, Justice Anthony Kennedy earned two rounds of chuckles, and Justices Stephen Breyer and Elena Kagan each got one laugh. That marks the first time this term that Kagan received a laugh that was noted in the Court’s official transcript. Well, isn’t that special?

Here are the standings for the term after seven weeks of arguments:

Justice Antonin Scalia: 20

Justice Stephen Breyer: 16

Chief Justice John G. Roberts, Jr.: 13

Justice Anthony Kennedy: 7

Justice Ruth Bader Ginsburg: 3

Justice Samuel Alito: 2

Justice Elena Kagan: 1

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

Justice Sonia Sotomayor: 0

[Note about the Funniest Justice tally: DC Dicta and other keen courtroom observers have noted that, unlike past years when any amount of laughter would be noted on the Court’s transcript, this year it takes a really, really big laugh to be noted. This has made a difference in our count (for example, by our ears, Justice Sonia Sotomayor has earned at least three laughs this term, but they weren’t loud enough to get a notation on the transcript, so she still has a goose egg on our score sheet). We know it’s not perfect, but since DC Dicta is at most, but not all, oral arguments, the transcript is still the best and most fair way of keeping tally of the laughs.]

Sometimes even Scalia looks to foreign law (access required)

Supreme Court junkies like DC Dicta know that Justice Antonin Scalia is no fan of U.S. courts citing foreign law.

But a few eagle-eyed Court watchers noted that yesterday Scalia did just that. Twice, actually.

In his dissent in the bankruptcy case Ransom v. FIA Card Services, Scalia wrote: “A House of Lords opinion holds, for example, that in the phrase ‘in addition to and not in derogation of’ the last part adds nothing but emphasis. …It seems to me that is the situation here.”

And DC Dicta noticed during yesterday’s oral argument in the civil procedure case Goodyear Dunlop Tires Operations v. Brown, Scalia also made mention of a foreign law.

“Countries can make it a crime – in fact I think Italy does – to kill an Italian citizen abroad, and that person can be tried for that crime in Italy,” Scalia said. “So I assume that that is an acceptable basis of jurisdiction. So why don’t we say that there’s a specialized jurisdiction when a citizen of North Carolina is injured abroad?”

So has Scalia flip-flopped on his strong stance against the use of foreign law?

Not really.

Scalia is an opponent of citing foreign law in constitutional cases. As Scalia once explained at a 2006 event where he appeared with Justice Stephen Breyer (who doesn’t mind looking to foreign law) and was asked about the laws of other lands:

“Well, most of those questions should be addressed to Justice Breyer because I do not use foreign law in the interpretation of the United States Constitution,” Scalia said to laughter. “Now, I will use it in the interpretation of a treaty. In fact, in a recent case I dissented from the Court, including most of my brethren who like to use foreign law, because this treaty had been interpreted a certain way by every foreign court [and] I thought [we] should defer to the views of other signatories, much as we defer to the views of agencies…

“But apart from that, if you talk about using it constitutional law, [we] don’t have the same moral and legal framework as the rest of the world, and never have. If you told the framers of the Constitution that [we’d] do something that will be just like Europe, they would have been appalled. And if you read the Federalist Papers, it’s full of statements that make very clear they didn’t have a whole lot of respect for many of the rules in European countries.”

So there you have it.

Kagan pens first opinion (access required)

The case in which Justice Elena Kagan asked her first oral argument question as a Supreme Court justice yielded the first opinion written by the Court’s newest associate justice.

Today Kagan announced the opinion she authored in the case Ransom v. FIA Card Services, in which the Court held 8-1 that a debtor in bankruptcy cannot deduct “vehicle ownership expenses” against his projected disposable income when he already owns his car fully and makes no car payments.

The case involved a bankruptcy filer who sought to deduct a total of $28,000 in car ownership costs, above the additional deduction available for car operation costs, like gas and maintenance. A creditor objected to his proffered plan.

“Today we hold that was a valid objection,” Kagan said in her statement this morning from the bench. “A person who does not have any car ownership expenses can’t take the deduction for ownership.”

The Court also held today in Mayo Foundation for Medical Ed. and Research v. U. S., that medical residents who earn stipends – as well as the hospitals they work for – must pay federal income taxes on the wages the residents receive. In an opinion authored by Chief Justice John G. Roberts, Jr., the Court gave deference to the Treasury Department’s classification of medical residents as full-time employees rather than students who work part-time, and are often exempt from such taxes.

“We defer to the agency’s determination that medical residents are workers who study, not students who work,” Roberts said in announcing the ruling in Court this morning.

The shades of Justice Ginsburg (access required)

Perhaps Justice Ruth Bader Ginsburg’s future’s so bright she’s gotta wear shades?

During today’s oral arguments at the Supreme Court, spectators witnessed a rather unusual sight: Justice Ruth Bader Ginsburg was wearing darkly-tinted eyeglasses.

It is unclear why Ginsburg sported the sunglasses during today’s session. It is also unclear whether Ginsburg’s choice of eyewear was related in any way to the fact that two rows of track lighting on the south side of the courtroom – the side where Ginsburg’s seat is situated on the bench – were darkened.

The glasses did not seem to affect Ginsburg’s performance during the arguments at all – she asked questions, read from the briefs, and participated in the same manner as she always does.

UPDATE: On Tuesday, Ginsburg donned her usual, untinted glasses. Maybe she just likes to switch it up once in a while.

Moment of silence for Ariz. victims at the Supreme Court (access required)

Chief Justice John G. Roberts, Jr. opened the Supreme Court session a little before 10 a.m. today so that oral arguments in the first case could conclude in time for the Court to join a national moment of silence for the victims of Saturday’s attempt on Rep. Gabrielle Giffords’ life which killed six people, including District Court Judge John Roll.

At the beginning of the session, Roberts invited the members of the audience to join the Court’s 11 a.m. observance “to honor the innocent victims.”

The moment of silence was marked at the Court at the same time President Barack Obama led a national silent observance at the White House and lawmakers likewise commemorated at the Capitol.

“I speak for the members of this Court in extending our condolences to the families of the victims,” Roberts said.