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Monthly Archives: April 2011

House Republicans begin DOMA defense, seek cost reimbursement from DOJ (access required)



After hiring former U.S. Solicitor General Paul Clement to defend the constitutionality of the Defense of Marriage Act, House Republicans officially entered the ongoing legal battle yesterday with a motion to intervene in a New York-based challenge to the law.

As you may recall, in February Attorney General Eric Holder announced that the Obama administration would no longer defend the law in federal court, spurring House Speaker John Boehner to announce that the House would defend the law. Since no Democratic members of the House have joined the effort, it is more accurate to say House Republicans are defending the law, points out SCOTUSblog’s Lyle Denniston. The Bipartisan Legal Advisory Group convened by Boehner voted to allow the House to move forward with the law’s legal defense.



In addition to yesterday’s legal filing, Boehner also sent a letter to House Minority Leader Nancy Pelosi informing her of his intent to seek reimbursement from the Department of Justice for the costs of defending the law.

“Obviously, DOJ’s decision results in DOJ no longer needing the funds it would have otherwise expended defending the constitutionality of DOMA,” the letter states.  “It is my intent that those funds be diverted to the House for reimbursement of any costs incurred by and associated with the House, and not DOJ, defending DOMA.”

Boehner said he has “directed House Counsel and House Administration Committee to assure that sufficient resources and associated expertise, including outside counsel, are available for appropriately defending the federal statute that the Attorney General refuses to defend.”

You can’t follow Breyer on ‘the Tweeter’ (access required)

Who says Supreme Court justices aren’t savvy in the ways of social media? At a congressional hearing Thursday, Justice Stephen Breyer testified that he indeed uses Twitter, which the 72-year old refers to as “the Tweeter” or the “Tweeting thing.”

Breyer opened his account to monitor the uprising in Iran, he said.

“I have a Tweeting thing because I was very interested in the Iranian revolution – remember they just had this uprising a little over a year ago [and] I sat there fascinated because you could only look through the Tweeting and you could see what was going on. You could see the violence. You could see a woman killed. It was terrible.”

But don’t go searching for the justice’s name to follow his witty missives about everyday life. Breyer doesn’t Tweet publicly. His account is locked down so only approved users – like his children – can follow him.

“From time to time, since I don’t know how to take it off, I get requests: ‘Can we follow you?'” Breyer said. “So I think, … ‘That’s very nice somebody would like to follow me. It’s quite flattering. But I wisely say no, it’s not a good idea.”

Breyer also has the same silent policy for other social media forms, such as “the Facebook.”

“It’s probably not a good idea,” Breyer said. “Judges wear black robes so that they will resist the temptation to publicize themselves because we really speak for the law and that is to be anonymous. [So] I wouldn’t want to have followers on the Tweeter or people going to the Facebook page but for my children and I can get in touch with them anyway.”

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DC Dicta returns Monday (access required)

DC Dicta is taking a little break. But it will be back on Monday, covering arguments and other action at the U.S. Supreme Court as well as bringing you other blog-worthy Washington buzz.

Next stop for Az. immigration law case: Supreme Court? (access required)

After a three-judge panel of the 9th Circuit upheld a lower court ruling striking key parts of a controversial Arizona immigration measure, Gov. Jan Brewer may take her appeal to the U.S. Supreme Court next.

“I remain steadfast in my belief that Arizona and other states have a sovereign right and obligation to protect their citizens and enforce immigration law in accordance with federal statute,” Brewer said in a in a joint statement with state Attorney General Tom Horne after yesterday’s 9th Circuit ruling.

After the Justice Department challenged the law, an Arizona district court blocked enforcement of several of its provisions – including the requirements that law police check the immigration status of individuals stopped for other matters, and that non-citizens carry immigration papers with them at all times – holding that they were preempted by federal immigration law. The appellate panel affirmed.

Brewer has several options now: appeal to the full panel of the 9th Circuit, allow the case to be remanded back to the district court to consider whether the block on enforcement is constitutional, or appeal directly to the Supreme Court.

The Supreme Court is already deliberating the constitutionality of another Arizona law which imposes sanctions on employers who hire undocumented workers and mandating the use of the federal E-Verify database. A ruling in that case, Chamber of Commerce v. Whiting, is expected before the Court’s term wraps in June.

O’Connor’s advocacy raising ethical questions (access required)

Since stepping down from the U.S. Supreme Court in 2006, retired Justice Sandra Day O’Connor has traveled the nation advocating for the end of state judicial elections. She has also continued to work, sitting on federal appellate courts, hearing dozens of cases and handing down opinions.

But some legal ethics experts say she should not be doing both.

University of Pittsburgh law school ethics expert Arthur Hellman told the Associated Press’ Mark Sherman that O’Connor should hang up her judge’s robe if she “wants to engage in this level of political or politically related activity.”

The criticism comes at a time that justices are facing increasing scrutiny over the perception of political bias. Justices Antonin Scalia and Clarence Thomas have been criticized for their attendance at events hosted by conservative political financiers Charles and David Koch.  Justice Elena Kagan has been urged by some to recuse herself from consideration of the constitutional challenge to the health care law based on her work in the Obama administration as solicitor general.

The criticism on O’Connor comes less than a year after she apologized for the use of her voice on 50,000 robocalls delivered  to Nevada voters in the middle of the night urging support of a ballot measure to end state judicial elections. O’Connor said she did not authorize the use of her voice on calls, but she did appear in a television ad supporting the ballot initiative.

Even D.C. Circuit Judge Laurence Silberman joined the criticsm over O’Connor’s activities. “[T]he issue of whether state court judges should be chosen or ratified by election or solely by appointment is a political issue on which serving federal judges should not publicly advocate, one way or the other,” Silberman said.

As SG, Kagan shielded from health care discussions (access required)

Even before she was nominated to the U.S. Supreme Court, then-Solicitor General Elena Kagan was largely shielded from discussions about the health care law and how to defend it, according to the National Law Journal’s Tony Mauro.

Based on internal emails obtained by conservative news site CNSNews.com through a Freedom of Information Act request, the glimpse into the inner workings of Kagan’s solicitor general’s office gives the strongest indication yet that Kagan plans to remain on the bench when the constitutional challenge to the health care law reaches the Supreme Court.

According to the emails, during Kagan’s tenure, now Acting Solicitor General Neal Katyal was the point person in discussions about the health care law, which is now being challenged as violative of the Commerce Clause.

According to the documents, on March 21, 2010 – about two weeks before Justice John Paul Stevens announced his retirement, and nearly two months before Kagan was nominated to fill his seat – Associate Attorney General Thomas Perrelli sent an email inviting Justice Department lawyers to a meeting to discuss defense of the health care law.

Katyal forwarded the email to Kagan, adding: “I think you should go, no? I will, regardless, but feel like this is litigation of singular importance.”

Kagan’s reply: “What’s your phone number?”

From that point on, Mauro reports, Katyal was the lead person from the SG’s office on the issue of the health care law and its defense.

In May 2010, after Kagan’s nomination, Tracy Schmaler, a Justice Department spokeswoman emailed Katyal asking about  Kagan’s involvement on the health care issue.

“No, she has never been involved in any of it,” Katyal replied. “I’ve run it for the office, and have never discussed the issues with her one bit.”

Katyal forwarded that note to Kagan, who replied to all, “This needs to be coordinated. Tracy, you should not say anything about this before talking to me.”

Supremes halt 2 executions over ineffective assistance claims (access required)

The Supreme Court granted two stays of execution this week, both on claims that the inmates’ attorneys performed ineffectively.

On Monday night the Court issued an order granting a stay at Arizona inmate Daniel Wayne Cook on his claim that his lawyers failed to offer evidence of his troubled childhood and resulting mental illness during his sentencing hearing, reports SCOTUSblog’s Lyle Denniston. The order came one day before Cook was to be put to death for killing two coworkers.

In Texas, Cleve Foster was granted a stay by the Court Tuesday, just hours before he was scheduled to be executed for killing a woman he met in a Fort Worth bar. He claims his lawyer failed to call a blood evidence expert to support his innocence claim.

Supreme mistakes (access required)

Sometimes even the highest Court in the land can blunder, right? Sure, according to a legal scholars who gathered recently at Pepperdine Law School to discuss the five worst Supreme Court rulings ever.

“These cases show that the Supreme Court does make mistakes, that the justices aren’t infallible,” said Tom Best, acting dean of Pepperdine’s law school, according to the Los Angeles Times . “They show that the justices will be subject to the same interests and pressures of society at the time they make decisions as any other American.”

Here are the rulings that the professors picked for the Hall of Shame:

Korematsu vs. United States, the 1944 case in which the justices upheld the evacuation order against Japanese Americans after the bombing of Pearl Harbor. “One of the worst aspects of American history is that at times of crisis we compromise our most basic constitutional rights, and only in hindsight do we recognize that it didn’t make us safer,” said Erwin Chemerinsky, dean of UC Irvine’s law school.

Dred Scott vs. Sandford, the 1857 ruling by the Court that no one who is a descendant of a slave can be considered citizens who are protected by the Constitution. “It was a deeply racist opinion that goes far out of its way to warmly embrace the institution of slavery,” said Daniel Farber, a UC Berkeley law professor.

Plessy vs. Ferguson, the 1896 ruling by the Court upholding a Louisiana law requiring the racial segregation of railway passengers. The professors noted that bad rulings beget bad rulings: Plessy relied on Dred Scott as precedent, and Korematsu, in turn, relied on Plessy.

Buck v. Bell, the 1927 ruling that a Virginia law allowing the sexual sterilization of institutionalized people was constitutional.  In that ruling, Justice Oliver Wendell Holmes famously stated that “three generations of imbeciles are enough.”

Erie Railroad Co. v. Tompkins, a 1938 decision holding that federal judges can apply state substantive law, overturning longstanding precedent.  The legal scholars pointed out that the ruling not only deprived the plaintiff the ability to hold a railroad company responsible for his injuries, but it created a system where litigants can forum shop.

Quoted: Breyer on confirmation process (access required)

“Asking that is like looking at a dish of chicken à la king and asking the chicken for its perspective! It is stressful – 17 senators who can ask whatever they want on one side of the table and me on the other, 10-15 million people watching on television. Luckily I was very boring and most of the viewers probably turned off. I was confirmed, so it has a happy ending for me.”

~ Justice Stephen Breyer, speaking to The Scotsman about what Supreme Court confirmation hearings are like.