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Monthly Archives: April 2011

Should Ginsburg and Breyer take one for the (liberal) team? (access required)

Should Justices Ruth Bader Ginsburg and Stephen Breyer consider the political climate when making their retirement plans?

While both justices have repeatedly stated that they have no intention of stepping down from the Supreme Court any time soon, Harvard Law School professor Randall Kennedy thinks that the jurists should consider hanging up their robes now.

The reason: with President Barack Obama facing unsure reelection prospects, this summer is the last chance for the president to get a Supreme Court nominee confirmed. And if the president loses his reelection bid, his Republican predecessor will almost surely be the one to replace Ginsburg, 78, and Breyer, 72 – thus shifting the collective ideology of the Court decidedly to the right.

“If Obama loses, they will have contributed to a disaster,” Kennedy wrote in a piece on The New Republic‘s website, according to Salon.

And the Funniest Justice is (as if you didn’t already know)… (access required)

“Mr. Rosenkranz,” Justice Antonin Scalia said to attorney Joshua Rosenkranz during oral arguments yesterday in Nevada Commission on Ethics v. Carrigan – the last argument of the term, “is the vote of a judge in a case like the vote of a legislator? Is that speech? Because judges are subject to ethical rules which prohibit their participating if there would be ‘an appearance of impropriety.’ If there’s anything vaguer than that I can’t imagine what it might be. Can I get out of all that stuff?”

The crowd laughed, and Rosenkranz tried to explain why judges were not off the hook.

“When it comes to judges,” he said, “we tolerate quite a bit more by way of chill of a judge’s vote precisely because judges are supposed to act judicial and purge their vote of all extraneous effects.”

“That’s too bad, because I would have been much more attracted to your position,” Scalia said, drawing another round of chuckles.

Scalia ended the oral argument season at the Supreme Court displaying his trademark snarky sense of humor, and he remains undefeated in DC Dicta’s Funniest Justice contest. Scalia drew laughter during oral arguments 48 times this term, easily beating out the very funny Justice Stephen Breyer, who earned 32 laughs total. Chief Justice John G. Roberts rounded out the top three with a total of 22 laughs.

Here is the final tally for OT10:

Justice Antonin Scalia: 48

Justice Stephen Breyer: 32

Chief Justice John G. Roberts, Jr.: 22

Justice Anthony Kennedy: 8

Justice Ruth Bader Ginsburg: 4

Justice Samuel Alito: 3

Justice Sonia Sotomayor: 3

Justice Elena Kagan: 2

Justice Clarence Thomas: 0 (Yesterday marked the fifth consecutive full term in which Thomas remained silent during oral arguments.)

Happy birthday Justice Kagan (access required)

Today, Justice Elena Kagan celebrates her first birthday as a Supreme Court justice. The Court’s youngest justice turns 51 today.

The last Supreme Court justice to celebrate a 51st birthday was Chief Justice John G. Roberts who, like Kagan, was confirmed at the age of 50 back in 2005.

Supremes ok class arbitration bans in consumer contracts (access required)

In a ruling that allows companies to include waivers of classwide proceedings in consumer contract arbitration clauses, the U.S. Supreme Court ruled that a California rule barring such class arbitration waivers as unconscionable was preempted by the Federal Arbitration Act.

That ruling in AT&T Mobility LLC v. Concepcion split the justices 5-4, with Justice Antonin Scalia writing for the majority, and Justice Stephen Breyer penning the dissent.

Much more on this ruling to come on this blog and on Lawyers USA Online.

Holder: And I am telling you… (access required)

He’s not going.

Attorney General Eric Holder, in a speech earlier this week, made it clear that he intends to continue at the helm of the Justice Department, calling it his “dream job.”

“Like you, I love this department. And, like you, I am proud – not only to serve it, but also to champion its work,” said Holder, speaking to about 150 Justice employees in the department’s Great Hall, according to the Washington Post.

Holder outlined the priorities of the department going forward, which include focusing on fighting terrorism, violent crime and financial fraud.

The remarks came weeks after Holder held a news conference – then abruptly ended it – after the Obama administration broke with Holder and decided to hold military tribunals for the accused Sept. 11 conspirators rather than civilian trials in federal court. But Holder stood by his position.

“Let me be very clear about this,” he said. “We will continue to rely on our most powerful and most proven tool in bringing terrorists to justice: our federal court system.”

Legal shakeup over House GOP’s DOMA defense (access required)


After the law firm King & Spalding decided to withdraw from representing House Republicans’ defense of the Defense of Marriage Act, lead attorney and former Solicitor General Paul Clement resigned from the firm in protest – and quickly vowed to continue the defense of the law with the boutique firm Bancroft PLLC.

The move came in a shocking turn of events this morning, which started with the announcement from King & Spalding that it would seek to withdraw as counsel in charge of defending the law, which denies federal benefits to gay married couples.  The firm’s chairman, Robert Hays Jr., said the decision was due to the firm’s “inadequate” vetting of its involvement in the litigation, according to the National Law Journal‘s BLT blog. Gay rights groups have recently criticized the firm for taking up the defense of the law after the Obama administration announced earlier this year that it would no long defend the statute against challenges in federal court.

Clement protested by resigning from the firm, which he joined back in 2008 after leaving the solicitor general’s office. In his letter of resignation, posted by the blog How Appealing, Clement said he decided to leave the firm immediately “not because of strongly held views about this statute.”

“Instead, I resign out of the firmly-held belief that a representation should not be abandoned because the client’s position is extremely unpopular in certain quarters,” Clement wrote. “Defending unpopular positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high.”

Soon after, Bankroft released a statement announcing Clement as the firm’s newest partner. The announcement, which touts Clement’s background as a veteran Supreme Court advocate, mentions neither his work at King & Spalding nor his representation in the DOMA case.

Worries about Kagan’s recusals unfounded…so far (access required)

The prognosticators were worried at the beginning of the Supreme Court’s term.  The Court’s newest member, Justice Elena Kagan, was fresh from the solicitor general’s office, meaning she would have to recuse herself from any case she had a role in litigating. That set up a troublesome scenario: scores of cases could end in 4-4 splits, rendering the Supreme Court powerless to do anything other than affirm the lower court rulings by default.

But guess what. It didn’t happen.

In the 19 cases decided by the Court so far without Kagan’s participation, only one ended in a tie, the Associated Press reports.  And in each of the other 18 cases, the vote wasn’t close enough to make Kagan’s absence of any consequence.

That is not to say that Kagan’s participation or absence from a case won’t be a key factor in the future. It is unclear whether she will participate when challenges to the nation’s health care law reach the high court (although we could hazard a guess), or whether she will sit in when the challenge to California’s gay marriage ban reaches the justices.

The Funniest Justice, week 13: Environmental laughter (access required)

During oral arguments Tuesday in the global warming case American Elec. Power Co. v. Connecticut, Justice Stephen Breyer played unwitting set-up man.

“Well, why is it less intrusive to try to get into the details of how an electricity company will in fact run its operation, than to say all you have to do is make a change in the dollar sign that you charge for your product?” asked Breyer.

After New York Solicitor General Barbara Underwood gave her answer, Justice Antonin Scalia piped in with an observation.

“I wish Justice Breyer had made this argument in the EPA case,” Scalia quipped, drawing laughter from an audience that must have been familiar with the ruling in Massachusetts v. EPA, in which Breyer and Scalia found themselves on opposite sides.

With only one week left before the Funniest Justice race wraps up for the term, Scalia padded his lead with three laugh-earning comments this week. Justice Samuel Alito also reminded court goers that he too can be funny, picking up one additional laugh. Here are the standings after 13 weeks of arguments:

Justice Antonin Scalia: 44

Justice Stephen Breyer: 30

Chief Justice John G. Roberts, Jr.: 21

Justice Anthony Kennedy: 8

Justice Ruth Bader Ginsburg: 4

Justice Samuel Alito: 3

Justice Elena Kagan: 2

Justice Sonia Sotomayor: 1

Justice Clarence Thomas: 0 (His last oral argument comment was on Feb. 22 2006.)

Court rules in RLUIPA sovereign immunity case (access required)

The acceptance of federal funds does not constitute a waiver of states’ sovereign immunity to suits for money damages under the Religious Land Use and Institutionalized Persons Act, the U.S. Supreme Court held today.

The ruling in Sossamon v. Texas – the only opinion issued by the Court this morning – means a Texas inmate who claimed he was denied use of the prison chapel and denied access to other worship services during his prison term cannot bring a suit for damages against the state.

Happy birthday Justice Stevens (access required)

He may have retired from the bench of the U.S. Supreme Court, but we are sure Justice John Paul Stevens’ former colleagues and other Supreme Court enthusiasts wish him a happy birthday today.

The justice turns 91.