DC Dicta Just another LawyersUSA Online weblog

Could the Supreme Court uphold a California ruling striking down a ballot measure to ban gay marriage in the state without getting to the constitutional question?

Yes, said attorney Ted Olson, who is serving with David Boies as lead counsel in the challenge to Proposition 8.

Olson said the team is making a number of arguments in support of its case – including the argument that those who challenge the ruling striking down Prop 8 lack standing. If the Court takes that approach, it can rule in favor of upholding the lower court decision without deciding whether gays have a constitutional right to marry, Olson said.

“The Supreme Court sometimes likes to take, with respect to these types of issues, the smallest bite that makes a big difference,” the former U.S. solicitor general told reporters during a talk at the Center for American Progress, according to Politico‘s Under the Radar blog. [HT: ABA Journal].  ”Sometimes the courts have to get out in front and sometimes they’ll take a big step and sometimes they’ll take an incremental step. What we did throughout this case is to make sure that the options were there. We have made a broad attack…based upon the equal protection clause and the due process clause.”

Calling them either illiterate or lazy, Justice Clarence Thomas lashed out against critics of the Supreme Court during a speech Tuesday in his home state of Georgia.

Speaking at an Augusta Bar Association event, Thomas compared those who vocally criticize the Court to overzealous sports fans.

“You don’t just keep nagging and nagging and nagging,” Thomas said, according to the Associated Press. “At some point it’s got to stop. Sometimes, too much is too much. I think we are reaching the point where we are beginning to undermine the integrity of the law we’re going to need.”

Thomas said the most vocal critics are those who base their opinions on their personal stakes in the cases, not their legal reasoning.

“There are times when the people who talk theoretically about the issues that we decide, you often wonder, ‘Have they read the opinions, have they read the cases?’” he said. “I think there’s a disease of illiteracy, or laziness, because just the commentary will tell you they haven’t read it.”

Speaking at a ceremony commemorating the Holocaust, Justice Stephen Breyer stressed the importance of the judicial system in holding perpetrators of horrific atrocities accountable, and in creating a record so that such events can be remembered and not repeated.

“What role can the law play in helping us, through recollection, guard against that day when that perpetual evil, analogous to the plague germ, might re-awaken?” Justice Breyer asked in a keynote address at the Holocaust Memorial Museum Tuesday, an event that wrapped up the National Days of Remembrance.

Breyer used the example of the late Justice Robert Jackson, who served as chief prosecutor at the Nuremberg trials of 24 Nazi leaders for crimes against humanity.

“[Jackson] later described his Nuremberg work as ‘the most important experience of my life,’ ‘infinitely more important than my work on the Supreme Court or … anything that I did as Attorney General,’” Breyer said. “His object was to make ‘explicit and unambiguous’ in law ‘that to persecute, oppress, or do violence to individuals or minorities on political, racial or religious grounds … is an international crime … for the commission [of which] … individuals are responsible’ and ‘can, and will be punished.’”

Breyer noted that “Jackson collected the evidence, not simply to convict the war criminals but also to document the facts for history to remember.”

“Nuremberg can remind us that the Holocaust story ended with a fair trial,” Breyer said. “And that trial, along with the other ways in which law furthers the work of remembrance, can remind us of our eternal aspiration for Justice.”

Breyer’s prepared remarks can be found here. More on the address from the Wall Street Journal’s Washington Wire and the San Francisco Chronicle.

Justice Samuel Alito is not happy with all the ado over the silence of his colleague, Justice Clarence Thomas, during oral arguments.

As readers of this blog know, Thomas has declined to offer a question or comment during oral arguments since Feb. 22, 2006. On the otherwise hot bench, Thomas’ silence is a standout.

But the focus on Thomas’ taciturnity irks Alito, who told an audience at the Bar Association of Metropolitan St. Louis that he was “struck and somewhat displeased” that no one mentions that other famous Supreme Court justices chose not to speak during oral arguments, the St. Louis Beacon reports.

“Justice Thomas’ practice is, as far as I can tell, exactly the same as John Marshall, regarded by many as the greatest justice ever,” Alito said, according to the Associated Press. During Marshall’s tenure from 1801 to 1835, Alito noted, few justices asked questions despite the fact that cases were decided based almost entirely from the oral argument.

DC Dicta does not wish to displease Alito, so next term in the Funniest Justice tally – in which we always note Thomas’ silence – we will try to remember to mention that Marshall was also quiet during arguments.

Retired Justice John Paul Stevens, who has remained a vocal opinionator after stepping down from the Supreme Court in 2010, said he backed the order by President Barack Obama for the covert mission that led the location and killing of al Qaeda terrorist mastermind Osama bin Laden.

While justices currently sitting on the Court are unlikely to discuss the bin Laden operation, since any challenge to the president’s order could land before the Court, Stevens has no such restriction, and said during a speech at Northwestern University in Chicago that he believed the killing of bin Laden was justified despite the fact that the terrorist leader was unarmed.

Stevens called bin Laden “an enemy who had been trying every day to attack the United States.”

“I haven’t the slightest doubt it was entirely appropriate for American forces to act” as they did, Stevens said according to CNN. “It was not merely to do justice and avenge September 11.”

Perhaps it’s because DC Dicta is travel-weary, or maybe it’s that the morning was spent wrangling with a temperamental computer (it is Friday the 13^th, we are reminded), but we sure could use some serenity now. But how can legal types like us chillax for a minute in such a hectic, stressful world? According to Justice Stephen Breyer – who apparently is the Supreme Court’s most Zen jurist – meditation is the answer.

“To say that I am a meditator is overstating it,” Breyer told CNN contributor Amanda Enayati. “I don’t know that what I do is meditation, or even whether it has a name. For 10 or 15 minutes twice a day I sit peacefully. I relax and think about nothing or as little as possible. And that is what I’ve done for a couple of years.

“And really I started because it’s good for my health,” Breyer continued. “My wife said this would be good for your blood pressure and she was right. It really works. I read once that the practice of law is like attempting to drink water from a fire hose. And if you are under stress, meditation – or whatever you choose to call it – helps. Very often I find myself in circumstances that may be considered stressful, say in oral arguments where I have to concentrate very hard for extended periods. If I come back at lunchtime, I sit for 15 minutes and perhaps another 15 minutes later. Doing this makes me feel more peaceful, focused and better able to do my work.”

Om, counsel. Om.

DC Dicta is taking a short recess until Friday, May 13.

“The dictionary-approved term is ‘Wyomingite,’ which is also the name of a type of lava, see Webster’s New International Dictionary 2961 (2d ed. 1957). I believe the people of Wyoming deserve better.”

~ Justice Antonin Scalia, on why he referred to residents of Wyoming as “Wyomans” in his dissent in Montana v. Wyoming.

Just days after his son’s wedding was watched around the world, Britain’s Prince Charles paid a visit to the U.S. Supreme Court this week, causing a commotion outside on court’s marble plaza Tuesday as he was greeted by Justice Stephen Breyer on arrival and later as he mingled with the crowd and posed for photographs.

The prince visited the Court for a reception for alumni of the Marshall Scholars program, created by Britain to send top American students to study for a year in the United Kingdom. Breyer himself is an alumnus of the program.

Retired Justice John Paul Stevens – who wasted no opportunity as a justice to voice his opinions in dissents, particularly in cases involving the  death penalty – took the unusual move of sharply criticizing a recent opinion by his former colleagues on the Court.

Speaking in New York Monday night at a dinner sponsored by the Equal Justice Initiative, Stevens made clear his strong disagreement with the Court’s recent ruling in Connick v. Thompson, in which the Court held that district attorney’s office couldn’t be held liable for failure to train under §1983 based on a single Brady violation by its employees. In so ruling, the Court overturned a $14 million award by a jury to a man who wrongly convicted of murder and spent 18 years on death row before being exonerated by blood evidence only weeks before he was set to be executed.

The blood evidence had been hidden by one of the prosecutors, who later confessed to doing so on his death bed. The jury found that the Brady violation was “substantially caused by the District Attorney’s failure, through deliberate indifference, to establish policies and procedures” to avoid such violations.

Stevens called the facts of the case “shocking,” and blasted the rule followed by Justice Clarence Thomas in the majority opinion, which held that that plaintiffs must show a pattern of violations in order to hold a district attorney or other government supervisor liable for failure to train.

“Why is it that when employees in a District Attorney’s office commit flagrant violations of constitutional rights it is not grounds for imposition of tort liability on attorneys’ employer?” Stevens asked the crowd, according to the text of his speech, which was obtained by the Wall Street Journal‘s Law Blog. “In other words, why does the familiar common law doctrine of respondeat superior not subject a government employer to liability for constitutional torts committed by its employees acting within the scope of their employment?”

He called on Congress to respond – as it did after other Court rulings such as Ledbetter, by making “a simple potential change in a federal rule of law that would have salutary effects on the administration of justice.”