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Monthly Archives: February 2011

Supreme Court: Dying victim’s ID of shooter admissible (access required)

A statement by a mortally wounded gunshot victim identifying the shooter to police is non-testimonial evidence, and therefore admissible at trial, the U.S. Supreme Court ruled today.

The 6-2 majority opinion in Michigan v. Bryant, authored by Justice Sonia Sotomayor, reasoned that because an “ongoing emergency” existed at the time – in this case, police were called, found a gravely wounded victim, and did not know the shooter’s location – the identification was not a testimonial statement made to “establish or prove past events potentially relevant to later criminal prosecution,” which would violate the Confrontation Clause if introduced at trial without the availability of the victim for cross-examination.

“Because the circumstances of the encounter as well as the statements and actions of [the victim] and the police objectively indicate that the primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency [the] Confrontation Clause did not bar their admission at [the defendant]‘s trial,” Sotomayor wrote.

Thomas lashes out at critics (access required)

Justice Clarence Thomas may have reached a silent milestone on Supreme Court the bench law week, but the justice was quite vocal during a speaking engagement Saturday, lashing out at critics who question his impartiality and warning that the Constitution – and the country – are being threatened.

Politico obtained a recording of Thomas speaking at the Federalist Society’s annual symposium, where he also defended his wife, Virginia “Ginni” Thomas, for her political activities, adding that he and his wife “believe in the same things” and are “focused on defending liberty.”

Thomas has come under fire in recent months for attending private events hosted by energy magnates and hefty GOP contributors Charles and David Koch. His wife has also been criticized for organizations she founded backing Tea Party causes.

At one point during his remarks at the Charlottesville, Va. event, Thomas recognized his wife in the audience, saying she is an example of how “there is a price to pay today for standing in defense of your Constitution.”

“[Ginni] started her organization to give 24/7 every day in defense of liberty,” Thomas said. “We are equally yoked, and we love being with each other because we love the same things. We believe in the same things. So, with my wife, and with the people around me, what I see, I’m reinforced that we are focused on defending liberty. So, I admire her and I love her for that because it keeps me going.”

Thomas also warned that if the Court does not follow an originalist interpretation of the Constitution – particularly in Commerce Clause cases – dire consequences will ensue. Legal challenges to the health care law enacted last year have been based on that provision of the Constitution.

“I do think that these are fundamental changes that are going on now, and I think they’re big changes,” said Thomas, adding that he was unsure if the changes are “reversible in any way. … But they’re so big, that I think they’re worth trying. And I think the [Constitution] is so important, it’s worth defending.”

“It’s not a game with me,” Thomas said. “It doesn’t deal with any ego stuff with me. This is about our country. And one of the things I want to do is I want to go to my grave knowing that I gave everything I had to trying to get it right.”

Video of Thomas’ remarks can be viewed on Politico.

Law professors: Supreme Court needs mandatory ethics code (access required)

Dozens of law professors have urged members of Congress to extend the ethics code that applies to most federal judges to the justices of the U.S. Supreme Court.

In the letter, sent to top members of the House and Senate Judiciary Committees and posted on the website of Alliance for Justice yesterday, the law professors called for clear rules setting out when Supreme Court justices should recuse themselves from cases. Such “mandatory and enforceable rules” would “protect the integrity of the Supreme Court,” the professors wrote.

The professors cited recent media reports of justices engaging in activities that some say create at least the appearance of impartiality.

“Decisions of Supreme Court justices have the broadest impact, are frequently divisive, and often turn on the vote of a single justice,” the letter states. “Yet, while all other federal judges are required to abide by the Code of Conduct, and are subject to investigation and sanctions for failure to do so, Supreme Court justices look to the Code for mere ‘guidance,’ and are not obligated to follow the Code’s rules.”

The legal scholars cited the Court’s own reasoning in the decision in Caperton v. A.T. Massey Coal.

In that case the Court ruled “that the justice’s view of his own impartiality did not matter so much as whether the appearance of his impartiality was compromised,” the letter states. “Critically, the Court held that an independent inquiry was needed ‘where, as here, there is no procedure for judicial fact-finding and the sole trier of fact is the one accused of bias.’

“Unlike Caperton, where the Supreme Court reversed the self-judged view of a single state court judge, there is no review procedure for recusal decisions by Supreme Court justices.”

The Funniest Justice, week 9: Waking up (access required)

“Counsel, I don’t believe I had a trial in my district court days where, between the time I had the pretrial conference and the time trial started, there wasn’t a slew of motions, because that’s about the time counsel tends to wake up.”

That comment came from Justice Sonia Sotomayor during oral arguments Tuesday in the Speedy Trial Act case U.S. v. Tinklenberg. The quip earned her a laugh, and placed her officially on the board of our Funniest Justice tally.

Here are the standings after nine weeks:

Justice Antonin Scalia: 26

Justice Stephen Breyer: 19

Chief Justice John G. Roberts, Jr.: 13

Justice Anthony Kennedy: 7

Justice Ruth Bader Ginsburg: 4

Justice Samuel Alito: 2

Justice Sonia Sotomayor: 1

Justice Elena Kagan: 1

Justice Clarence Thomas: 0 (Thomas has been silent during oral arguments since Feb. 22, 2006)

For Justice Sotomayor, oral arguments are sometimes a pain (access required)

Oral arguments at the U.S. Supreme Court can be uncomfortable for the lawyers that argue before the justices. But today it was a justice who was experiencing some discomfort.

Justice Sonia Sotomayor, who entered the courtroom with a noticeable limp, sat through today’s oral arguments with the assistance of a large footrest that was placed under the bench for her. Throughout the morning, the justice would occasionally wince in apparent pain and shift her position in an attempt to get more comfortable.

According to Supreme Court spokeswoman Kathy Arberg, Sotomayor “was experiencing some knee/ligament discomfort.”

As you may recall, Sotomayor was given a similar footrest during her 2009 Senate confirmation hearings after she suffered a broken ankle soon after she was nominated to the Court.

Supremes OK seatbelt suit over preemption challenge (access required)

In the first of two opinions issued today, the Supreme Court allowed a tort suit against Mazda claiming that the auto manufacturer should have installed lap-and-should belts in its vehicles to move forward, finding the claim was not preempted by federal law.

In Williamson v. Mazda Motor of America, the Court allowed the suit by the family of a passenger killed in an auto accident to proceed, finding that the Federal Motor Vehicle Safety Standard 208, which allows auto manufacturers to install either lap-and-shoulder constraints or simple lap belts in inside rear seats of passenger vehicles, did not bar a state tort lawsuit.

The Court also held in Walker v. Martin that California’s requirement that habeas petitions be promptly filed qualifies as an independent state ground for denying habeas relief.

Read more on the Mazda case and its implications in the coming days on Lawyers USA online.

Justices go to “Conjunction Junction” in vaccine preemption ruling (access required)

In answering the question of whether state-law design defect claims against vaccine makers are preempted by state law, the justices of the Supreme Court seem to have looked at the relevant statute and asked themselves the question from the “Schoolhouse Rock!” song: Conjunction Junction, what’s your function?

(Press play and sing along as you read the rest of this post, if you like.)

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In this morning’s ruling in Bruesewitz v. Wyeth – holding that such claims are preempted – Justice Antonin Scalia’s majority ruling as well as Justice Sonia Sotomayor’s dissenting opinion focused on two conjunctions in the National Childhood Vaccine Injury Act: “if” and “even though.”

The relevant statutory text, §22(b)(1), is:

No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine after October 1, 1988, if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings. (Emphasis added).

In determining just what kind of side effect is “unavoidable” under the Act, Scalia parsed the meaning of the “even though” clause.

The “even though” clause clarifies the word that precedes it. It delineates the preventative measures that a vaccine manufacturer must have taken for a side-effect to be considered “unavoidable” under the statute. Provided that there was proper manufacture and warning, any remaining side effects, including those resulting from design defects, are deemed to have been unavoidable. State-law design-defect claims are therefore preempted.

If a manufacturer could be held liable for failure to use a different design, the word “unavoidable” would do no work.

Sotomayor, whose dissent was joined by Justice Ruth Bader Ginsburg, had a different view.

Blackletter products liability law generally recognizes three different types of product defects: design defects, manufacturing defects, and labeling defects (e.g., failure to warn). The reference in the “even though” clause to a “properly prepared” vaccine “accompanied by proper directions and warnings” is an obvious reference to two such defects-manufacturing and labeling defects. The plain terms of the “even though” clause thus indicate that §22(b)(1) applies only where neither kind of defect is present.

…The only remaining kind of product defect recognized under traditional products liability law is a design defect. Thus, “side effects that were unavoidable” must refer to side effects caused by a vaccine’s design that were “unavoidable.”

The Court also ruled in CSX Transportation v. Alabama Department of Revenue that a railroad carrier may challenge a non-property tax on the grounds that the tax contains discriminatory exemptions.

Quoted: Breyer on suspicion and democracy (access required)

“People are suspicious of institutions. The younger they are, they are more concerned and suspicious. We are 300 million people in this country, and we can’t live without them because we live like human beings do. We do it democratically. Therefore, people have to understand how their institutions work. If they are going to be cynical, let’s put that into perspective, and let’s understand the good as well as the bad. A man and a woman are going into the supermarket, and they have a lot to do. They have children. They may have grandchildren, and they may have a job. I think it’s important enough for people going into the supermarket to understand.”

~ Justice Stephen Breyer, speaking in West Palm Beach about why people need to understand institutions like the U.S. Supreme Court.

Five years of silence (access required)

Tomorrow will be an anniversary of sorts for the U.S. Supreme Court. The last time Justice Clarence Thomas made a comment or asked a question during oral arguments at the Court was Feb. 22, 2006 – five years ago tomorrow.

Thomas’ silence has long been a subject of chat among legal watchers. During oral arguments, if the justice leans forward in his seat reporters in the press galley perk up, wondering if that will be the day that the justice decides to chime in. Veteran New York Times scribe Linda Greenhouse once called Thomas’ determined refusal to take part in oral arguments “a weirdly compelling example of performance art.”

Thomas himself has spoken on the subject of his silence. In his opinion, oral arguments work as more of a vehicle for justices to advocate their own position – or give attorneys a hard time – than for lawyers to sway the justices.

“So why do you beat up on people if you already know? I don’t know, because I don’t beat up on ‘em,” Thomas said in an Associated Press report in 2009. “I refuse to participate. I don’t like it, so I don’t do it. …All nine of us are in the same building. If we want to sway each other we know where we are. We don’t need oral arguments to do that. It doesn’t make any sense to me.”

That’s not to say Thomas is completely silent during oral arguments. He’s often seen whispering and even laughing with the justices seated to either side of him on the bench – Justices Antonin Scalia and Stephen Breyer.   But for the most part, Court spectators can witness the justice thumbing through briefs, or leaning far back in his leather chair with his eyes closed in apparent refection. The only time his voice has been heard during the last five years of the Court’s sessions is when he has announced the opinions he authored before oral arguments began.

Still, his decision not to participate in oral arguments has spurred debate in the legal community. Some simply say it’s a matter of the justice’s personal style.

Others are pleased with Thomas’ approach. “It reflects humility on his part,” Steffen Johnson of Winston & Strawn in Washington told the National Law Journal‘s Tony Mauro.

Vikram Amar, a professor at UC David School of law, agrees with Thomas. “I don’t know why the justices need argument to talk to each other,” Amar wrote in the New York Times. “They can write each other memos before argument is heard. And they can speak directly to each other in chambers, or in the conference after each argument sitting, at which time tentative votes in the argued cases are taken.”

But others are critical of the justice. “By removing himself from oral argument, Justice Thomas’ opinions do not benefit from the full adjudicative process designed to test theories in open court,” wrote David Karp argues in a Florida Law Review article, according to Mauro. “Many of his opinions, therefore, read less like the product of actual litigation, and more like constitutional commentary.”

Columbia Law School professor Jamal Greene said Thomas’ lack of participation evidences a rigidity of opinion, and a lack of desire for his views to be changed. “It is difficult for a silent justice to win over colleagues, but he may not care to,” Greene wrote in the Times.

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