Home / 2011 / May

Monthly Archives: May 2011

Supreme Court: Ashcroft immune, patent claim requires scienter (access required)

The U.S. Supreme Court ruled today that former Attorney General John Ashcroft is protected by qualified immunity from a suit by an American detained as a material witness after the Sept. 11 terrorist attacks.

Though Abdullah al-Kidd was never charged with a crime, the objectively reasonable arrest and detention based on a validly-obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive, the Court ruled in Ashcroft v. al-Kidd, reversing the 9th Circuit.

The Court also ruled in the patent case Global-Tech Appliances, Inc. v. SEB that a finding of induced infringement requires knowledge that the induced acts constitute patent infringement.

The Court also agreed to decide whether a witness identification of a man in handcuffs was “unnecessarily suggestive” in the case Perry v. New Hampshire. More on that case to come on Lawyers USA online.

Rep. Weiner Twitter blasts Justice Thomas over pre-holiday disclosure (access required)

The simmering controversy over Supreme Court Justice Clarence Thomas’ financial filings and the financial interests of his wife, Virginia “Ginni” Thomas, heated up over the Memorial Day holiday weekend.

It began when Thomas publicly released his financial disclosure filing on Friday afternoon. That move irked Rep. Anthony Weiner, who has has been pushing Thomas to recuse himself from considering the constitutionality of the health care reform law based on Thomas’ wife’s Tea Party group affiliations.

Weiner was not happy that Thomas chose the eve of a long holiday weekend to release the disclosure, which showed that his wife received a salary from Liberty Central, a group she co-founded to support the repeal of the health care law.

Weiner took to Twitter to express that displeasure.

“Pretty crazy that the Scotus does a pre memorial day friday dumping of its financial disclosure forms. #ButImOnTheCase,” Weiner’s Twitter rant began. “#ConflictedClarenceThomas dumps his conflicts forms on friday before memorial day. #AhFreshAir. For the first time #ConflictedClarenceThomas admits his spouse works for tea party org. Spouse of #ConflictedClarenceThomas has every right to work for whomever, but he must recuse himself.”

UPDATE: We are assuming these Tweets were sent by Weiner and not a hacker.

Breyer dumped Wal-Mart stock before class action case (access required)

Last year Justice Stephen Breyer sold between $15,000 and $50,000 in Wal-Mart shares, presumably so that he could take part in the Supreme Court’s consideration of the case involving what could be the largest employment discrimination class action lawsuit in American history.

Bloomberg reports that the sale was revealed in financial disclosure forms released by Breyer Friday. That sale came before the Court considered the case Wal-Mart Stores v. Dukes to determine whether a group of 1.5 million current and former retail store employees can assert claims of systemic employment gender bias as a class action. A decision in that case is still pending.

Sotomayor earned $1 million in book deal (access required)

Justice Sonia Sotomayor received $1.175 million last year to write her upcoming memoirs.

According to financial disclosures released last week, Sotomayor was paid by publishing house Alfred A. Knopf to write about her life, from her childhood in a Bronx housing project to her appointment as the Supreme Court’s first Latina justice, the Wall Street Journal reports.

The book, which is still untitled, will be released in English and Spanish, the Associated Press reports. No release date has been set.

In 2007, Justice Clarence Thomas received $1 million to write his memoirs, “My Grandfather’s Son.”

NLRB OKs “ratty” protest (access required)

The rat has long been a symbolic figure in union-management battles. But the National Labor Relations Board has cleared the way for union rats to become much bigger players in labor disputes, reports our sister publication The Daily Record.

The Board ruled that a union had the right to use a 16-foot inflatable rat – a common protest prop used by union members – outside the premises of a company’s supplier or other third party business. While threatening or coercive conduct by union members against third parties is barred, a big inflatable rodent was unlikely to make anyone feel frightened or bullied, the Board reasoned.

The “rat balloon itself was symbolic speech,” Chairman Wilma B. Liebman and members Craig Becker and Mark Pearce said of the inflatable creature set up outside a hospital construction project. “It certainly drew attention to the Union’s grievance and cast aspersions on [the contractor], but we perceive nothing in the location, size or features of the balloon that were likely to frighten those entering the hospital, disturb patients or their families, or otherwise interfere with the business of the hospital.”

In blow to Chamber & White House, Court OKs state E-Verify mandate (access required)

Today the U.S. Supreme Court upheld an Arizona state law imposing sanctions on employers who hire undocumented workers and mandating the use of the federal E-Verify database.

In the 5-3 ruling in Chamber of Commerce v. Whiting (Justice Elena Kagan recused), the Court held that the law was not preempted by federal immigration law.

The ruling is a defeat for the unusual coalition of groups that joined together to urge the Court to strike down the law on federal preemption grounds: U.S. Chamber of Commerce, labor organizations, civil rights groups, immigration advocates and the Obama administration.

Much more on this case and its implications – as well as the Court’s rulings in Camreta v. Greene, Fowler v. U.S., and U.S. v. Tinklenberg – to come on Lawyers USA Online.

Quoted: Liu withdraws (access required)

“With no possibility of an up-or-down vote on the horizon, my family and I have decided that it is time for us to regain the ability to make plans for the future. … In addition, the Judicial Council of the Ninth Circuit has noted the ‘desperate need for judges’ to fill current vacancies, and it is now clear that continuing my nomination will not address that need any time soon.”

~ Goodwin Liu, in a letter Wednesday to President Barack Obama withdrawing his nomination to the 9th Circuit Court of Appeals after a Republican-led filibuster.

Rep. Nadler: Scalia’s a ‘troglodyte’ (access required)

Speaking in support of legislation aimed at ending gender discrimination, two lawmakers took aim at Supreme Court Justice Antonin Scalia, calling him a name that DC Dicta needed a dictionary to decipher.

New York-based Reps. Carolyn Maloney and Jerrold Nadler spoke at an event earlier this week urging support for an amendment to the Constitution to ensure women are treated equally under the law. As an example of the need for the law, Maloney cited a comment made by Scalia in September that the 14th Amendment does not outlaw gender-based discrimination.

Nadler called Scalia a “troglodyte,” the New York Daily News reports. A quick consultation with Merriam-Webster reveals that Nadler believes Scalia has been living in a cave.

Divided prison release ruling draws sharp, vocal dissent from Scalia (access required)

A divided Supreme Court upheld a court-ordered release of tens of thousands of California prisoners Monday, ruling that the measure was necessary to remedy prison overcrowding and the resulting violations of inmates’ Eighth Amendment rights to medical and mental health care.

That 5-4 ruling in Brown v. Plata is one of the largest prison release orders in history, the Los Angeles Times reports.

In his majority opinion,  Justice Anthony Kennedy stressed the dire conditions created by prison overcrowding.

“Prisoners are crammed into spaces neither designed nor intended to house inmates,” Kennedy wrote. “As many as 200 prisoners may live in a gymnasium, monitored by as few as two or three correctional officers. As many as 54 prisoners may share a single toilet.”

He also noted the abhorrent treatment of incarcerated mental health patients, some of whom are kept in “telephone-booth sized cages without toilets.”

“A psychiatric expert reported observing an inmate who had been held in such a cage for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic,” Kennedy said. “Prison officials explained they had ‘no place to put him.'”

He also noted substandard treatment of medical patients. “A prisoner with severe abdominal pain died after a 5-week delay in referral to a specialist.” Kennedy noted. His opinion included photographs of prison condition, starting at page 51.

Kennedy acknowledged that the court-ordered release is neither a simple solution to such a complex problem, nor will it be a panacea.

“As this case illustrates, constitutional violations in conditions of confinement are rarely susceptible of simple or straightforward solutions,” Kennedy wrote. “In addition to overcrowding the failure of California’s prisons to provide adequate medical and mental health care may be ascribed to chronic and worsening budget shortfalls, a lack of political will in favor of reform, inadequate facilities, and systemic administrative failures.”

Kennedy took nearly 20 minutes to announce the ruling from the bench this morning, according to SCOTUSblog.

Then, taking the unusual move of announcing a dissent from the bench, Justice Antonin Scalia began his remarks with: “Today the Court affirms what is perhaps the most radical injunction issued by a court in our nation’s history.”

In his written dissent, Scalia lambasted the majority for overstepping the Court’s boundaries. “In doing this, the Court has aggrandized itself, grasping authority that appellate courts are not supposed to have, and using it to enact a compromise solution with no legal basis other than the Court’s say-so,” Scalia wrote. “That we are driven to engage in these extralegal activities should be a sign that the entire project of permitting district courts to run prison systems is misbegotten.”

Boehner no fan of trial lawyers, unless he’s hiring them (access required)


In his political messages, House Speaker John Boehner hasn’t shown a lot of love to trial lawyers. Boehner has perennially joined his Republican colleagues in supporting tort reform measures they say will “rein in junk lawsuits.”

Yet in practice, Boehner seems to be a big fan of litigation according to a report by Politico. Boehner has used the court system as an essential tool in a number of political battles over his career, and two of those battles are primed to land before the Supreme Court.

As readers know, Boehner spearheaded the effort of House Republicans to defend the constitutionality of the Defense of Marriage Act in federal court after the Obama administration announced that the Department of Justice would no longer do so. Boehner hired outside lawyers to handle the defense (which led to another high-profile legal battle). He then asked for the Justice Department to pay the legal bill.

Boehner also filed legal briefs in the Florida lawsuit challenging constitutionality of last year’s health reform law. Both the health care law challenge and the DOMA case are expected to go to the Supreme Court within the next couple of years.

Boehner has long showed a willingness to take political battles to court – and an ability to win. Following an ethics investigation into then-Speaker Newt Gingrich, Boehner successfully sued Democratic Rep. Jim McDermott and won a $1.2 million judgment.

Supporters say Boehner is simply ensuring proper constitutional procedure.

“He takes very seriously his role under the Constitution and the need to assure that the checks and balances work properly,” Carrie Severino of the Judicial Crisis Network, which filed the health care challenge on Boehner’s behalf, told Politico. “He is making the point that the constitutional limits were exceeded. That’s why we have judicial review.”

A top Democratic staffer stopped short of labeling Boehner’s legal battles hypocritical – noting that “members of Congress have a duty to evaluate the constitutionality of laws that they pass.” Still, the staffer said, “people complain only when their ox is being gored.”