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Breyer defends Thomas in ethics controversy

While Justice Clarence Thomas has come under fire for his wife’s Tea Party activities, his colleague came to his defense this week

During an appearance at the Aspen Ideas Festival on Wednesday, Justice Stephen Breyer was asked a hypothetical about a judge whose wife is involved in issues that may go before the judge’s court. Breyer, according to the Daily Beast’s Lloyd Grove, gave an emphatic defense of Thomas’ situation.

“This is a false issue,” Breyer said. “As far as what your wife does or your husband does, I myself try to stick to a certain principle, and feel very strongly about it, that a wife or a husband is an independent person and they make up their own minds what their career is going to be.”

Some lawmakers and activists have called on Thomas to recuse himself from hearing the constitutional challenge to the health care law, which will land before the Court as soon as next Term. His wife, Virginia “Ginni” Thomas, has been involved with Tea Party-related groups that have openly called the law unconstitutional.

Breyer said spouses don’t influence justices on the bench. “My wife happens to be a clinical psychologist at Dana Farber [Medical Center in Boston], and when I get cases involving psychology, I sit in those cases, OK?” Breyer said.

Breyer also hinted that he believes proposed legislation that would bind Supreme Court justices to the same ethical code as other federal judges is a bad idea.

“The Supreme Court is different in one respect. In every other court,” Breyer said. “If [I’m a circuit judge and]I decided in a close matter to recuse myself, that’s the easy decision. That’s one fewer case I have to decide, and besides, they’ll bring in somebody else to decide it. If I recuse myself on the Supreme Court, there is no one else and that could switch the result.”

The chief justice doesn’t ‘Tweet, whatever that is’

Just because his colleague Justice Stephen Breyer likes to get some of his information from “the Tweeter,” as he calls it, don’t expect Chief Justice John G. Roberts to follow suit.

Speaking recently at the 4th Circuit Court of Appeals Annual Conference, Roberts said he does not “Tweet, whatever that is.”

But, he said, the proliferation of social media and other technologies has changed the U.S. Supreme Court in many ways – from the substantive legal issues they present, to rules that the justices must set for their law clerks. One of those rules: no Tweeting about the job.

“I sit down with incoming clerks at the beginning of the year,  as soon as we get back,” Roberts explained to the audience in remarks that were televised on C-SPAN, “ and go through a number of things they have to be aware of, and that’s one of them. It’s new. I tell them that they obviously shouldn’t be tweeting about what they’re doing, whether they have websites or whatever.”

Though Roberts clearly is not at ease with the lingo of the web, he said he certainly understands that seemingly harmless Internet chatter could tip off the public about opinions before they are released.

“A lot of it is inadvertent,” Roberts said. “They kind of think ‘well, I’m working really hard on this opinion this week, or getting ready for an argument.’ And you know, discerning people can look at that they are saying and try to put two and two together and figure out, maybe, what their boss is doing and all that. So even unintentionally they can sometimes reveal confidences. And, of course that’s very dangerous. So I advise them to just put all that on hold.”

But the justices must deal with social media on the job, Roberts said.

“The impact of new technology on substantive law is really quite significant,” Roberts said.  “[So] it’s going to be a great challenge … for many of us to try to keep up with the new technology. It’s one of the great things, again, with the law clerks. They come in and they know how all this stuff works and what it means. They are a resource for educating those of us that are behind the  curve.”

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Sotomayor talks of having a Type 1 personality

Justice Sonia Sotomayor, who turned 57 Saturday, opened up about her experience living with Type 1 diabetes since childhood last week.

Speaking to dozens of children at an event hosted by the Juvenile Diabetes Research Foundation’s Children’s Congress, Sotomayor said she has learned to live with the disease, which causes the pancreas to stop producing insulin.

“It’s a disease you have to deal with, but you can,” Sotomayor told the children according to the Associated Press. The Supreme Court associate justice’s condition has long been known, but last week marked the first time she discussed it so openly.

Sotomayor talked about her experiences – from being diagnosed at age 7, to learning just the right amount of insulin she needed for whatever foods she ate, to dealing with insulin injections and ultimately the use of an insulin pump. One thing that living with the disease taught her, she said, is the discipline that in turn helped her excel as a student.

“Figuring out how I felt all the time,” she said. “All of that taught me discipline.”

Sotomayor talks of having a Type 1 personality

Justice Sonia Sotomayor, who turned 57 Saturday, opened up about her experience living with Type 1 diabetes since childhood last week.

Speaking to dozens of children at an event hosted by the Juvenile Diabetes Research Foundation’s Children’s Congress, Sotomayor said she has learned to live with the disease, which causes the pancreas to stop producing insulin.

“It’s a disease you have to de

Sotomayor talks of having a Type 1 personality

Justice Sonia Sotomayor, who turned 57 Saturday, opened up about her experience living with Type 1 diabetes since childhood last week.

Speaking to dozens of children at an event hosted by the Juvenile Diabetes Research Foundation’s Children’s Congress, Sotomayor said she has learned to live with the disease, which causes the pancreas to stop producing insulin.

“It’s a disease you have to deal with, but you can,” Sotomayor told the children according to the Associated Press. The Supreme Court associate justice’s condition has long been known, but last week marked the first time she discussed it so openly.

Sotomayor talked about her experiences – from being diagnosed at age 7, to learning just the right amount of insulin she needed for whatever foods she ate, to dealing with insulin injections and ultimately the use of an insulin pump. One thing that living with the disease taught her, she said, is the discipline that in turn helped her excel as a student.

“Figuring out how I felt all the time,” she said. “All of that taught me discipline.”

al with, but you can,” Sotomayor told the children according to the Associated Press. The Supreme Court associate justice’s condition has long been known, but last week marked the first time she discussed it so openly.

Sotomayor talked about her experiences – from being diagnosed at age 7, to learning just the right amount of insulin she needed for whatever foods she ate, to dealing with insulin injections and ultimately the use of an insulin pump. One thing that living with the disease taught her, she said, is the discipline that in turn helped her excel as a student.

“Figuring out how I felt all the time,” she said. “All of that taught me discipline.”

Quoted: A Dickens of a case

“This ‘suit has, in course of time, become so complicated, that . . . no two . . . lawyers can talk about it for five minutes, without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause: innumerable young people have married into it;’ and, sadly, the original parties ‘have died out of it.’ A ‘long procession of [judges] has come in and gone out’ during that time, and still the suit ‘drags its weary length before the Court.’
“Those words were not written about this case, but they could have been.”

~ Chief Justice John G. Roberts, quoting Charles Dickens’ “Bleak House” to describe the long-running legal battle between the estate of oil tycoon J. Howard Marshall and the estate of pinup and reality star Anna Nicole Smith in Stern v. Marshall. (More on yesterday’s ruling here on Lawyers USA online).

At the Supremes: Pharma wins, Anna Nicole’s estate loses

The U.S. Supreme Court handed down six opinions this morning – including two big wins for pharmaceutical companies, and a loss for the estate of Anna Nicole Smith.

In PLIVA, Inc. v. Mensing, the Court held that federal regulations governing generic drugs directly conflict with, and thus preempt, state law failure-to-warn claims.

In Sorrell v. IMS, the Court ruled that Vermont’s Prescription Confidentiality Law, which restricts access to information in nonpublic prescription drug records and affords prescribers the right to consent before their identifying information in prescription drug records is sold or used in marketing runs, violates the First Amendment under a heightened scrutiny standard.

In a complex ruling in the case Stern v. Marshall, the Court held that bankruptcy court did not have constitutional authority to award Smith hundreds of millions of dollars in damages on a counterclaim against the estate of her late husband, oil tycoon J. Howard Marshall II.

More on these cases and today’s other rulings on the Confrontation Clause, FELA causation standards and federal sentence reductions after plea deals to come on Lawyers USA online.

Wal-Mart plaintiffs vow to press on with suits

After the U.S. Supreme Court denied class action status to the 1.5 million female Wal-Mart employees who claim they were systematically denied the same raises and promotions given to men, the plaintiffs said they will continue to fight the company in court.

This means that the retail giant stands to face thousands of lawsuits filed by individuals across the country.

“When I go back to work tomorrow, I’m going to let them know we are still fighting,” Christine Kwapnoski, an assistant manager at a Sam’s Club store (which is a Wal-Mart subsidiary) told Bloomberg News.

Meanwhile Reuters reports that the law firm representing the plaintiffs racked up more than $7 million in fees, and doesn’t expect tot recoup the money any time soon.

“All our fees and expenses are at risk,” said lead counsel Joseph Sellers of Cohen Milstein Sellers & Toll, who said the firm incurred $5 million in attorney hours and spent $2 million on experts and discovery.

Big win for Wal-Mart at Supreme Court

In a move that stops what would have been the largest employment discrimination class action in the nation’s history, the U.S. Supreme Court ruled that 1.5 million current and former Wal-Mart employees cannot be certified as a class, and that Wal-Mart has the right to individually litigate back pay claims made by female employees who claim they were systematically paid and promoted less than men.

The 27-page ruling in Wal-Mart v. Dukes is fairly complex, and not very surprising to those who saw or read about oral arguments in the case. We’ll parse the ruling, as well as the three other opinions handed down by the Court Monday, and bring you all the details on Lawyers USA online.

Thomas’ friendship with GOP donor raises more ethical questions

The exit from Congress of one of Justice Clarence Thomas’s most vocal critics has not stopped ethical questions from being raised about the Supreme Court justice’s associations.

In January, liberal lobbying group Common Cause asked the Justice Department to investigate Thomas and Justice Antonin Scalia for possible conflicts of interest based on the justices’ association with conservative financiers Charles and David Koch.

Now, a New York Times piece examines the relationship between Thomas and hefty conservative donor and Dallas real estate magnate Harlan Crow.

Crow, among other things: has donated money – at Thomas’ behest – for a land preservation project and museum in the justice’s home town of Pin Point, Ga.; financed a Savannah library project in the justice’s honor; gave Thomas a bible once belonging to Frederick Douglass; and even gave Thomas’ wife, Virginia, the seed money to start her Tea Party-affiliated group Liberty Central.

Under the ethical code which binds federal judges except for those on the Supreme Court bench, judges “should not personally participate” in raising money for charitable activities, nor should they know the donors to projects honoring them. The rule is meant to prevent the appearance that the donations are designed to sway the judge’s vote in any matter pertaining to the donor.

Ethicists are split on whether Thomas’ association with Crow raises serious ethical problems, with some saying his participation in the fundraising activities should have been prohibited. Others say Thomas did not violate any ethical rules, but one added: “It’s just a very peculiar situation.”

Quoted: Kagan’s java joke

“This decision involves a very complex procedural issue. And if you understand anything I say here, you will likely be a lawyer, and you will have had your morning cup of coffee.”

~Justice Elena Kagan, warning the audience at the Supreme Court yesterday before summarizing the Court’s opinion in the case Smith v. Bayer, which held that a federal district court cannot enjoin a state court from certifying a product liability class action based on an earlier decision the federal court made not to certify a class in a related case brought by different plaintiffs.

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