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Monthly Archives: March 2011

The Funniest Justice, week 12: Comedy of errors (access required)

“I think you’re taking the position that simply because we granted cert, we’ve accepted there’s a plain error,” said Justice Sonia Sotomayor during oral arguments Tuesday in the case Fowler v. U.S.  ”Is that your position? Because you haven’t really defended against a finding of plain error.”

“Well, the trial lawyer did a poor job in articulating the reasons for the judgment of acquittal,” said Stephen M. Crawford, the lawyer representing the defendant.

“I take it you were not the trial lawyer?” asked Justice Stephen Breyer.

“Well, unfortunately, Judge, I was,” Crawford replied, causing the crowd and the justices to chuckle.

Later, when Crawford was concluding his argument, Breyer addressed him again.

“Anyway, you’ve made a fine argument here, even if you didn’t make it (at trial),” Breyer said, spurring more laughter.

“Thank you, sir,” Crawford said. “I’ll do better next time.”

This week, Breyer was the funniest justice on the bench with seven laughs, just beating out Justice Antonin Scalia, who got six laughs. Here are the standings for the term after 12 weeks of oral arguments.

Justice Antonin Scalia: 41

Justice Stephen Breyer: 30

Chief Justice John G. Roberts, Jr.: 21

Justice Anthony Kennedy: 8

Justice Ruth Bader Ginsburg: 4

Justice Samuel Alito: 2

Justice Elena Kagan: 2

Justice Sonia Sotomayor: 1

Justice Clarence Thomas: 0 (No oral argument comment since Feb. 22 2006.)

Scalia’s a real traffic stopper (access required)

A funny thing happened to Justice Antonin Scalia on his way to the Supreme Court Tuesday.

The Court’s most senior associate justice was ticketed for causing a four-car accident at the height of rush hour on the George Washington Parkway just outside of Washington.

At about 9 a.m., Scalia was driving his shiny black BMW from his Northern Virginia home en route to the Court. According to media reports, Scalia rear-ended another car, which may have been stopped on the highway.

“It slammed into the car in front of his, which pushed the other two forward,” former NBC reporter Brooke Salkoff – who saw the whole thing go down – told the Washington Post. Salkoff said she recognized the justice as she rolled by the accident scene.

Everyone walked away without a scratch, but Scalia’s car had to be towed, and he was given a $70 ticket by U.S. Park Police. He can appeal the citation, although Park Police spokesman David Schlosser quipped to the Los Angeles Times: “He probably hasn’t a clue how to contest a traffic ticket.”

Scalia made it to the Court in time for 10 a.m. oral arguments in the much-anticipated case of Wal-Mart Stores v. Dukes. But for the entire first half of oral arguments Tuesday in the case, the normally loquacious Scalia didn’t utter a word.

Court divides sharply over exonerated death row inmate’s civil rights claim (access required)

In a divided ruling, the U.S. Supreme Court struck down a $14 million verdict awarded to a man who was wrongfully-convicted of murder and sent to death row because a prosecutor in his case withheld exculpatory evidence.

In Connick v. Thompson, the Court held in a 5-4 ruling that a district attorney’s office cannot be liable under §1983 for failing to train its prosecutors where only a single Brady violation is shown.

Justice Clarence Thomas, in announcing the opinion, said “under our precedent, a plaintiff seeking to hold [a district attorney's office] liable for failure to train must show deliberate indifference.”

Because prosecutors in the district attorney’s office are all law school graduates who have passed the bar exam, they should be expected to know what a Brady violation is, and therefore John Thompson failed to make the necessary showing, Thomas reasoned in his first majority opinion of the term.

“Prosecutors are ethically required to know Brady,” Thomas said in Court today. “A district attorney is not deliberately indifferent when he relies on prosecutors’ training.”

Justice Ruth Bader Ginsburg, who was joined in dissent by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, took the unusual step of announcing her dissent from the bench – a move she has said is designed “to get immediate public attention.”

Noting that Thompson “spent 14 years isolated on death row” and was only weeks away from execution when the hidden exculpatory evidence in the case was found, Ginsburg said she “agree[d] that deliberate indifference  is the proper standard.”

“Unlike the Court, I would hold that the abundance of the evidence in this case proves blatant deliberate indifference to Thompson’s civil rights,” Ginsburg said.

In the written dissent, Ginsburg also makes the unusual move of devoting a large amount of ink to the facts in the case. In fact, Ginsburg’s dissent is longer than the majority opinion and a concurrence written by Justice Antonin Scalia combined – a fact that Scalia himself noted in his opinion.

“The dissent’s lengthy excavation of the trial record is a puzzling exertion,” Scalia wrote in his concurrence, adding that the question presented in the case was a legal, not factual.

The Court also held in Astra USA, Inc. v. Santa Clara County that third-party lawsuits to enforce ceiling-price contracts between drug manufacturers and the government cannot be maintained.

The Court also dismissed Tolentino v. New York as improvidently granted. That case would have considered whether motor vehicle records obtained as a direct result of an illegal stop should be excluded from evidence as fruit of the poisonous tree.

More on these cases and today’s oral argument in Wal-Mart Stores v. Dukes to come later on this blog and on Lawyers USA online.

Wal-Mart case turns on controversial sociology method (access required)

If you have been waiting with bated breath for the Supreme Court to hear oral arguments in what could the largest employment discrimination class action in history, your wait is almost over.

As most legal publications as well as a host of mainstream outlets and blogs have been breathlessly reporting, Tuesday the justices take up the case Wal-Mart Stores v. Dukes, hearing oral arguments to help them decide whether more than 1.5 million female Wal-Mart workers can proceed as a class in a lawsuit alleging that the company systemically paid them less than male employees. (Subscribers can check out this reporter’s analysis of the cases here on Lawyers USA online.)

But as those closely watching the case know, the justices will have to consider a sociologist’s theory that a company can engage firm-wide implicit gender bias.

Plaintiffs in the case must show to the Court that a common policy led to discrimination against all the women in order for the Court to rule in their favor. To do this, they are relying on the controversial research of William T. Bielby, a sociologist at the University of Illinois at Chicago.

In the lower court, Bielby testified that it was possible, without reviewing the individual personnel decisions made on each female employee, to show that the company unfairly discriminated against women. Such a finding can be made by proving the company’s ‘implicit bias,’ Bielby theorized.

According to Bielby, “[s]ubjective and discretionary features of the company’s personnel policy and practice ma[d]e decisions about compensation and promotion vulnerable to gender bias.”

His theory has been discounted by critics who say his “social framework analysis” method is flawed.

“Bielby made a conclusion that he had no basis to make,” Laurens Walker, a University of Virginia professor who pioneered the method, told the New York Times. “He hasn’t done the research.”

The battle over sociology has played out in briefs of amici. A brief from the American Sociological Association supports Bielby’s theory. But a brief by fellow retail giant Costco blasts his approach, saying “employers with decentralized business models will have few avenues available to escape a Bielby-enabled certification order, other than resorting to surreptitious quotas.”

Surprising Supreme splits (access required)

When the justices of the Supreme Court are split on a ruling, conventional wisdom is that Justices Antonin Scalia and Clarence Thomas can be found on the same side of the issue. The Roberts Court also has a reputation of being pro-business and hostile to employees alleging bias claims.

But when veteran Supreme Court journalist Linda Greenhouse looked at the numbers for this term, what she found would surprise some Supreme Court watchers.

In split cases this term, Scalia and Thomas have differed more than they agree. In fact, they differed in all three non-unanimous criminal decisions. “In all of the last term, Justices Scalia and Thomas were on opposite sides only six times,” Greenhouse wrote. “Already this term, they have split in five cases. An aberration or a trend? Watch and wait.”

Similarly surprising: in non-unanimous cases so far this term, Chief Justice John G. Roberts sided more frequently with Justices Stephen Breyer and Sonia Sotomayor than with Justices Thomas, Scalia or Samuel A. Alito Jr.

Employees asserting civil rights claims are undefeated this term. And corporate defendants have been dealt wide-margin defeats by the Court in a host of cases – including this week’s ruling that a drug manufacturer’s failure to disclose non-scientific reports of adverse respects may be considered in a securities fraud case.

All this goes to show that with the Supreme Court, you never can tell.

The Funniest Justice, week 11: Take my dissent, please! (access required)

During oral arguments yesterday in the case J.D.B v. North Carolina, Justice Stephen Breyer was searching for case law that would give guidance on whether age should be a factor in determining whether someone should be read the Miranda warning.

The support “comes from three cases: The first is Berkemer [v. McCarty], the second Stansbury [v. California], and the … third case, of course, is my dissent in Alvarez,” Breyer said, drawing laughs from the audience (surely not just because he actually meant to say Yarborough v. Alvarado.)

About 20 minutes later – when a different attorney was arguing – Breyer came back to the point.

“You know the sentence I’m referring to in my dissent, presumably?” Breyer asked.

“Some people don’t read the dissents – he may not have read it,” Justice Antonin Scalia interjected, drawing laughter.

“I live always in hope,” Breyer said.

The Breyer-Scalia comedy team dominated again this week at the Supreme Court. The duo collectively scored seven of the 10 laughs recorded on the transcripts this week. Here’s the full tally after 11 weeks of oral arguments so far this term:

Justice Antonin Scalia: 35

Justice Stephen Breyer: 23

Chief Justice John G. Roberts, Jr.: 20

Justice Anthony Kennedy: 7

Justice Ruth Bader Ginsburg: 4

Justice Samuel Alito: 2

Justice Elena Kagan: 2

Justice Sonia Sotomayor: 1

Justice Clarence Thomas: 0 (The silence since Feb. 22, 2006 continues…)

First Amendment case a Supreme sleeper (access required)

Some folks in the legal community are undoubtedly interested in the pending Supreme Court case Borough of Duryea v. Guarnieri, which considers whether a government employee can assert a retaliation claim under the First Amendment’s Petition Clause for filing a work-related grievance

But those watching oral arguments yesterday didn’t seem to think the case was exactly a barn burner, as Supreme Court sketch artist Art Lien noted on his blog.

Here’s how some in the audience looked to Lien’s eye:

New gig for Ginni Thomas (access required)

Virginia “Ginni” Thomas, wife of Supreme Court Justice Clarence Thomas, has a new gig: online news correspondent.

Thomas will join the conservative news website The Daily Caller as a special correspondent, Politico reports.

The website’s co-founder and editor Tucker Carlson told Politico that in her new part-time position, Thomas’ job will be “identifying and interviewing people who might in the future become influential in politics or who are already influential but who you may not know about.”

Although Thomas recently launched a new lobbying organization, called Liberty Consulting, Inc., its website has been down for some time, spurring speculation that Thomas may be abandoning the effort. Carlson said he didn’t know if Thomas would continue at the lobbying firm.

“I don’t get into the personal lives of people who are contributing to the site,” Carlson said. “But in general, we’re entirely transparent and non-secretive, and I’m comfortable in my belief that readers can judge each piece on its merits.”

He also dismissed criticisms of Thomas taking such a public role given her views on issues such as the constitutionality of the health care law,  which undoubtedly will go before her husband and the other justices of the Court.

“That’s his business,” Carlson said. “He’s not writing for us. I wish he were. [But I] wouldn’t imagine [Ginni Thomas] would feel comfortable” writing about issues before the Supreme Court.

Court oks securities class action, worker retaliation claims (access required)

Incidental reports of problems can satisfy the materiality requirement in a securities fraud claim, the U.S. Supreme Court ruled today.

The unanimous ruling in Matrixx Initiatives v. Siracusano found that such reports need not be statistically significant to make a showing of material misrepresentation or omission in a security class action case. The case was brought by investors of drug maker Matrixx Initiatives alleging that the company violated the Securities Exchange Act by failing to disclose reports of adverse health events and pending lawsuits involving Zicam nasal spray.

“Medical experts and the FDA rely on evidence other than statistically significant data to establish the existence of causation,” Justice Sonia Sotomayor said in announcing the decision from the bench today. “It stands to reason that reasonable investors would as well.

In Kasten v. Saint-Gobain Performance Plastics, the Court held that an employee who verbally complained of workplace issues to his employer has “filed a complaint” under the anti-retaliation provision of the Fair Labor Standards Act of 1938.

A complaint need not be written to constitute being “filed,” the 6-2 Court held. (Justice Elena Kagan did not participate.)

“The word ‘file’ sometimes refers to a writing, but sometimes it doesn’t,” said Justice Stephen Breyer in announcing his majority opinion.

Justice Antonin Scalia, in a dissent joined by Justice Clarence Thomas, disagreed, writing that “[w]hile the jurisprudence of this Court has sometimes sanctioned a ‘living Constitution,’ it has never approved a living United States Code.”

“What Congress enacted in 1983 must be applied according to its terms, not according to what a modern Congress (or this Court) would deem desirable.”

More on this case here from Lawyers USA online.

Supremes rap 9th Circuit in Batson case (access required)

In a per curiam decision yesterday, the U.S.  Supreme Court reversed a ruling by the 9th Circuit, scolding the court for reversing the denial of a Batson petition without giving the state court decisions on the matter proper deferential treatment.

The defendant in Felkner v. Jackson raised a Batson challenge to the prosecutor’s use peremptory strikes to remove two of three black jurors from his rape trial. After exhausting his state court remedies, he sought habeas relief from federal district court, where he was also unsuccessful.

But the 9th Circuit reversed in a three-paragraph unpublished opinion, holding that “the prosecutor’s proffered race-neutral bases for peremptorily striking the two African-American jurors were not sufficient to counter the evidence of purposeful discrimination.”

The Supreme Court reversed and remanded, declaring the decision “as inexplicable as it is unexplained.”

“The trial court credited the prosecutor’s race-neutral explanations, and the California Court of Appeal carefully reviewed the record at some length in upholding the trial court’s findings,” the Court held. “The state appellate court’s decision was plainly not unreasonable.”

Today the Court is scheduled to release opinions from argued cases. Stay tuned to this blog and Lawyers USA online for newsworthy updates.

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