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Monthly Archives: March 2011

Justices spring back into action (access required)

Spring is blooming – as are the cherry blossoms – in the nation’s capital, and the justices of the U.S. Supreme Court return to action today, hearing oral argument in two Fourth Amendment cases. The justices may also add more cases to its docket today, and hand down decisions on Tuesday.

Stay tuned to this blog and Lawyers USA online for updates on newsworthy developments from the Court.

Sotomayor puts lawyering skills to work in avoiding recusal question (access required)

Amid the swelling controversy over whether justices of the Supreme Court should recuse themselves from cases where there is an appearance of family, social or political ties to parties, one justice turned to her trial lawyer skills to avoid a question on the issue.

Justice Sonia Sotomayor, in Philadelphia to accept an award from the local bar association, was asked by Fox Rothschild co-chairman Abraham Reich whether justices of the nation’s highest court would be bound by the same ethical mandates as other federal judges.

“In a high profile case, the failure to recuse could have a significant impact,” Reich told the ABA Journal. “I asked her whether or not there would be a change” to make justices subject to the same code of ethics.

“I don’t know,” Sotomoyor replied, according to the Legal Intelligencer. She added: “I used to teach my potential witnesses just to answer the questions asked.”

Gov’t shutdown could mean litigation mess, top judge warns (access required)

Imagine public defenders being given IOUs instead of paychecks by the federal government for representing defendants. Or federal court clerks, stenographers, bailiffs and security guards going without paychecks, throwing into question whether court houses could operate at all.

Those are some of the consequences that will result if Washington lawmakers don’t come up with a resolution in the ongoing budget battle, judicial officials warned yesterday.

If Congress’ budget  impasse continues, leading to the government shutdown, “litigation might be grinding to halt for a while,” D.C. Circuit Chief Judge David Sentelle said yesterday after a meeting of the Judicial Conference, according to the Associated Press.

Federal trial courts would be hardest hit, Sentelle said, since appellate courts’ time schedules aren’t as sensitive as those of district courts, the BLT blog reported.

The Conference also issued a statement airing some other concerns regarding Congress’ ongoing budget battle, including the fact that the views of the Judicial Branch are not being represented during budget negotiations.

White House on health care appeal: Do not go directly to SCOTUS (access required)

The Obama administration has asked the U.S. Supreme Court not to take up an appeal of the health care challenge until it has gone through the federal appellate court process.

A federal court in Virginia invalidated the portion of the law requiring Americans to purchase health care by the year 2014. The White House quickly appealed the ruling to the 4th Circuit, which put the appeal on the fast track. The Supreme Court can – but rarely does – step in and take up an appeal before the lower appellate court does, and Virginia Attorney General Ken Cuccinelli has petitioned the Supreme Court to do just that in this case.

In a brief filed at the Court Monday evening, the administration said that the challenges to the constitutionality of the law are being swiftly reviewed by federal appellate courts, and therefore it is unnecessary for the Supreme Court to step in and take up review before the federal appellate judges rule.

“[G]iven the court of appeals’ imminent consideration of this case, there is no basis for short-circuiting the normal course of appellate review by granting a writ of certiorari before judgment,” the brief stated.

Furthermore, White House officials argued, the issue of the law’s constitutionality shouldn’t end up before the Supremes at all, due to a procedural problem.

“[T]his case would make a poor vehicle to address the constitutionality of the Affordable Care Act’s minimum coverage provision because petitioner’s claim to standing rests entirely on a novel ‘declaratory’ state statute, and that threshold jurisdictional question could readily prevent the Court from reaching the merits of petitioner’s claim,” the brief states. “The petition should be denied.”

In a speech earlier this year, Justice Ruth Bader Ginsburg said there was little likelihood that the Supreme Court would take up the case before the appeals courts have ruled. Similar cases are pending in the 6th and 11th Circuits.

The People v. Hamlet: Justice Kennedy presiding (access required)

What do the justices of the Supreme Court do for fun to unwind from presiding over all those cases? Well, they preside over more cases, of course! And by “more cases” we mean fake ones.

Frequently justices have been presiding over the trials of literary characters and long-dead historical figures such as Col. George Custer, Hamlet, Socrates, Thomas Jefferson and Napoleon. The trials are usually fundraisers – and for the justices, they are a good time.

“When you’re reading all these briefs,” says Justice Ginsburg, pointing at a stack of legal filings in her chambers, “it’s nice to take time off and read something great or delightful,” Ginsburg told the Wall Street Journal‘s Jess Bravin.

Most recently, Justice Anthony Kennedy decided Hamlet’s fate. Next up: Justices Ginsburg, Samuel Alito and Sonia Sotomayor will preside over the appeal of Mrs. Cheveley from Oscar Wilde’s “An Ideal Husband.”

Unlike regular oral arguments, the events are usually held in the evening, after the participants dine – and wine – together.

“I have one, or maybe two, glasses of wine. That would be unthinkable at the real court,” says Justice Ginsburg.

Group wants Scalia to recuse from Wal-Mart case (access required)

An advocacy group supporting the workers in the class action job bias case Wal-Mart Stores v. Dukes wants Justice Antonin Scalia to sit out when the case is heard at the Supreme Court later this month.

Walmart Watch, a union-backed group that “exists to challenge Walmart to more fully embrace its corporate responsibilities,” according to its website, objects to Scalia’s participation in the case because the justice’s son, Eugene, is a partner at the firm Gibson Dunn, where he represented the company.

“Eugene Scalia’s connections to the plaintiff and to one of the Justices hearing the case, his father, Justice Scalia, raise serious concerns over judicial impartiality and may raise the appearance of impropriety,” the group stated on its website, linking to an online petition urging Scalia’s recusal. “The public’s confidence in an impartial judiciary is of utmost importance.”

The group has failed to sway the attorney representing the workers, who are seeking class action status alleging the company systematically underpaid female employees. Joseph Sellers, who represents the women suing Wal-Mart, told Bloomberg News that he was not taking up the recusal cause.

“We’re busy preparing for the argument,” Sellers said. Arguments in the case are scheduled for March 29.

More on the case here from Lawyers USA.

Sotomayor: Confirmation talks got a bit too personal (access required)

During her Supreme Court confirmation process, Senate lawmakers asked Justice Sonia Sotomayor questions so personal and probing in nature that she later told to a friend: “I think they already know the color of my underwear.”

Speaking Monday at Northwestern University School of Law, Sotomayor said she thought some questions regarding her personal dating life posed during meetings with senators revealed gender bias.

“There were private questions I was offended by. I was convinced they were not asking those questions of the male applicants,” Sotomayor said, according to The Atlantic‘s James Warren. “I wondered if they ever asked those questions of the male candidates. But the society has a double standard.”

Sotomayor, who is divorced, said dating is tougher for female federal judges than for their male counterparts. There are “many single male colleagues who are judges who date often, bring dates to court affairs and nobody ever talks about them,” Sotomayor told the audience. “I knew if I did the same thing, my morals would be questioned. So I’m very careful about whom I date and how public it is. …I don’t like people talking about my private life.”

Court: Prisoner can assert civil rights claim for DNA evidence access (access required)

Nearly two years after its divided ruling that a criminal defendant does not have a constitutional right to DNA testing after conviction, the U.S. Supreme Court today held that a convicted prisoner seeking DNA testing of crime-scene evidence may assert a civil rights §1983 claim.

In Skinner v. Switzer, one of three opinions handed down Monday morning, the Court held that prisoners are not limited to habeas claims to assert a right to post-conviction DNA access. In the 6-3 ruling, the Court stated that that issue was left unresolved by its ruling in D.A.’s Office for Third Judicial District v. Osborne.

Also decided today was Wall v. Kholi, in which the Court clarified the definition of “collateral review” under The Antiterrorism and Effective Death Penalty Act of 1996. The term means judicial review of a judgment in a proceeding that is not part of direct review, the Court held.

And in Milner v. Dept. of Navy, the Court held that the Freedom of Information Act’s Exemption 2 encompasses only records relating to employee relations and human resources issues, not data related to explosives maps and other data.

More in the Skinner ruling to come on Lawyers USA online.