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Monthly Archives: June 2011

Justices to rack up plenty of flyer miles this summer (access required)

Would you like to spend some time in Geneva this summer? What about Lake Tahoe? Or is Rome more your flavor? Well, if you were Justice Antonin Scalia, you wouldn’t have to choose – you’d be heading to all three locales.

After the Supreme Court’s term wraps at the end of the month, Scalia his fellow jurists will be taking to the friendly skies to head to numerous cities within and outside of the United States, the AP reports. Justices are allowed to accept up to about $25,000 in additional income for teaching and speaking engagements, beyond their regular annual salaries of $213,900 (Chief Justice John G. Roberts earns $223,000).

Justice Stephen Breyer will have a particularly busy travel itinerary: a stint in Colorado to participate with Justice Elena Kagan (and possibly Justice Ruth Bader Ginsburg) at the Aspen Institute; an visit to the American Bar Association convention in Toronto;  an appearance at the Calvin Coolidge Center in Vermont; a high school dedication in Fargo, N.D.; and a private appearance to officiate the weeding of former Rep. Patrick Kennedy on Cape Cod.

Justice Sonia Sotomayor’s travel plans are unknown, as are those of Justice Clarence Thomas – though he and his wife Ginni usually take to the open road in their RV, so keep an eye out and you may see them in the parking lot of your local Wal-Mart.

Justices using more words, dictionaries (access required)

As the October 2010 term draws nearer to its close, Supreme Court opinions are getting wordier. At the same time, the justices appear to be parsing those words much more by making frequent uses of dictionaries in their analyses.

As USA Today’s Joan Biskupic points out, the later in the term, the longer opinions tend to be. That’s because the longer it takes for a case to be decided, the more likely it’s due to the fact that there are concurring and dissenting opinions involved, which take longer for the justices to write, review and revise.

But justices are not tossing about words willy-nilly. Instead they tend to scrutinize them, with the aids of the usual legal precedents and authorities, and also by using good ol’ dictionaries. In a recent case, notes The New York Times‘ Adam Liptak, Chief Justice John G. Roberts even consulted a dictionary for the definition of the word “of.” (It means what you think it means, he pointed out.)

Among the likely wordy and well-defined opinions we are still awaiting from the Court:

-A decision in the latest installment in the ongoing battle between the estates of the late pinup and reality star Anna Nicole Smith and her late husband and oil magnate J. Howard Marshall, which turns on the application of bankruptcy law (Stern v. Marshall);

-A ruling on whether defendants who are sentenced pursuant to a plea agreement can later seek a sentence reduction under amended U.S. Sentencing Guidelines (Freeman v. U.S.);

-A decision on whether a court may consider factors such as age in determining whether a youth is in police custody and therefore entitled to Miranda rights (J.D.B. v. North Carolina);

-A ruling deciding whether state law failure-to-warn suits against generic drug makers are preempted by federal law? (Pliva v. Mensing);

-And the much-anticipated decision of whether more than 1.5 million female Wal-Mart employees may be certified as a class in what could be the nation’s largest class-action gender discrimination suit (Wal-Mart Stores v. Dukes).

For more on yesterday’s decisions, check out Lawyers USA online.

Changing of the guard at SG’s office (access required)

Katyal

Katyal

Soon after Donald Verrilli was confirmed and sworn in as U.S. solicitor general, Neal Katyal – who had served as acting solicitor general since now Supreme Court Justice Elena Kagan left the post last year – submitted his resignation, effective at the close of the Supreme Court term.

The National Law Journal’s Tony Mauro reports that Katyal’s decision to leave the SG’s office was expected, and that he will now become a hot commodity to private firms looking to snap him up.

“He is going to be a very hot commodity,” Thomas Goldstein of Goldstein, Howe & Russell and SCOTUSblog told Mauro.

Before being appointed to the office by President Obama, Katyal was best known for arguing and winning the 2006 case Hamdan v. Rumsfeld on behalf of Guantanamo detainees.

Brewer taps Clement for Az. immigration law cert bid (access required)

Brewer

In a move that apparently surprised her own state attorney general, Arizona Gov. Jan Brewer tapped Paul Clement to lead the state’s effort to get the U.S. Supreme Court to lift the injunction preventing enforcement of parts of the state’s controversial immigration bill SB 1070.

That measure, which Brewer signed into law in 2010, authorizes police to check the immigration status of an individual who is stopped, detained or arrested if a “reasonable suspicion” exists that the person has entered the country illegally.

Clement

Clement

Clement, now a partner at Bancroft, recently parted ways with King & Spalding to continue representing House Republicans in their bid to defend the Defense of Marriage Act.

Fresh off a high court victory in Chamber of Commerce v. Whiting, in which the Court upheld an Arizona law imposing strict sanctions on employers who hire illegal workers, Brewer blindsided Arizona Attorney General Tom Horne by hiring Clement to lead the state’s defense of SB 1070, The Arizona Republic’s Ginger Rough reports.

Horne was unaware of Brewer’s decision to hire Clement until reports surfaced Tuesday morning, Rough reported, and he had previously said that he was eager to handle all legal proceeding pertaining to the case. The Whiting case was argued by Arizona Solicitor General Mary R. O’Grady.

In a statement, Horne said: “It is important that we win the SB 1070 case. Paul Clement is an outstanding attorney, and his addition to the legal team is valuable to the state’s defense of the law.”

HT: How Appealing

No Supreme relief for Wesley Snipes (access required)

Yesterday the Supreme Court handed out victories for securities class action plaintiffs, lawyers seeking attorney fees, prosecutors seeking ACCA-boosted sentences for defendants, and companies seeking co-ownership of federal patents.

But the Court had no such love for Wesley Snipes, who sought to have the Court review his conviction for failing for file tax returns. Snipes reportedly paid no income tax on $40 million he earned over a six-year period.

The actor, who is serving a 36-month prison term, wanted the justices to review his claim that his civil rights has been violated because he was denied an evidentiary hearing to explain why he should be tried in New York, where he claimed he lived, rather than in Florida, where he was licensed to drive, the Los Angeles Times reports. Without comment, the Court declined the “Blade” actor’s request.

Plessys and Fergusons join to press for racial equality (access required)

“It’s no longer Plessy versus Ferguson. It’s Plessy and Ferguson.”

Those words came from Keith Plessy, descendant of the man who tested Louisiana’s law requiring separate railroad cars for whites and blacks leading to the landmark U.S. Supreme Court ruling Plessy v. Ferguson – which upheld the “separate but equal” doctrine  for nearly 60 years until the Court’s ruling in Brown v. Board of Education.

He was speaking to Phoebe Ferguson, descendant of the New Orleans Judge that upheld the law. That conversation led Plessy and Ferguson to found of the Plessy & Ferguson Foundation, designed to remind those in New Orleans and beyond of the lessons of that case and to press for racial equality. The Washington Post’s Robert Barnes has this report on Tuesday’s anniversary of the organization.

Alito recusal ‘mistake’ cost networks in fleeting expletive case (access required)

Justice Samuel Alito said he should have recused himself from considering a 2009 Supreme Court case involving federal penalties for televised profanity – a move that would have changed the outcome of the case.

When the Court took up the case FCC v. Fox Television Stations, Alito held about $2,000 worth of stock in Disney, the parent company of ABC, one of the parties in the case, the Associated Press reports. Usually justices who have a financial interest involving any party in a case before the Court will either recuse themselves from considering the case or eliminate the financial interest – usually by selling stock.

But Alito said he failed to do so in that case due to an oversight on the part of aides who routinely check for conflicts before cases are considered by the Court. Alito has since sold the stock, a fact reported on his latest financial disclosures released last week.

“It’s a mistake,” Alito told the AP in an interview.

The mistake had a direct effect on the outcome of the case, in which the Court reversed the 2nd Circuit and held in a 5-4 vote that the FCC’s policy to ban even an isolated use of an expletive on broadcast television was “entirely rational” under the law that governs federal administrative powers. Had Alito, who voted with the majority, not participated, a 4-4 tie would have resulted in the 2nd Circuit ruling in the networks’ favor being upheld.

Breyer suffers broken collarbone in bike spill (access required)

Justice Stephen Breyer is recovering from injuries he suffered when he took a spill on his bicycle over the weekend near his home in Cambridge, Mass.

The 72-year-old justice suffered a broken collarbone in the accident, Supreme Court spokeswoman Kathy Arberg told the Associated Press. Breyer was not at the Court Tuesday when decisions were announced, but is expected to attend speaking engagements this week as scheduled.

This isn’t the first time Breyer was injured in Cambridge on a bike. In 1993, when he was a First Circuit judge being considered by President Bill Clinton for a Supreme Court spot, Breyer was hit by a car while riding his bike in Harvard Square. He suffered a punctured lung and broken ribs, but still traveled to Washington to be interviewed by the president. Clinton picked Ruth Bader Ginsburg. But it all worked out in the end – Breyer got the nod a year later.

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