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Monthly Archives: July 2011

Health care challenge hits the high court

The first certiorari petition in the challenge to the federal health care law reached the U.S. Supreme Court yesterday, giving the Court a chance to add yet another high-profile case to the October 2011 Term docket – which is already shaping up to be a blockbuster.

The petitioners in the case, which challenges the constitutionality of the Patient Protection and Affordable Care Act, are asking the Court to reverse a 6th Circuit ruling last month upholding the law’s constitutionality. The ruling was the first from a federal appellate court considering the constitutionality of the law and its provision imposing tax penalty on those who fail to purchase a minimum level of health insurance beginning in 2014. Similar cases are pending in the 4th and 11th Circuits.

Though the Court usually accepts cases involving issues that create a split among the circuits, the Court can take up a case were a “United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court,” according to its rules.

If the Court takes up the case, it will add to a docket already rife with cases considering high-profile issues such as whether police can install GPS devises on cars without a warrant (U.S. v. Maynard), whether the Federal Communications Commission’s indecency-enforcement regime violates the First or Fifth Amendment (FCC v. Fox), and whether it is constitutional for jails to strip search arrestees upon their admission to the general population, regardless of the severity of their alleged offenses (Florence v. Board of Chosen Freeholders of the County of Burlington).

And there are still even higher profile cases waiting in the wings that the Court could take up this upcoming term, such as the challenge to the constitutionality of California’s voter-approved ban on same-sex marriage, and a preemption-based challenge Arizona’s immigration law that gives police the power check the immigration status of an individual who is stopped.

Ginsburg recounts Court’s crazy questions

During oral arguments at the U.S. Supreme Court, the justices can ask some wacky questions.

In a speech last week before a local bar association in New York State, Justice Ruth Bader Ginsburg recapped some of her favorite doozies from the term just past.

“Questions from the bench ranged from the historical: ‘[W]hat [did] James Madison th[ink] about video games[?]’” Ginsburg noted, referring to Justice Samuel Alito’s question in the violent video games case Brown v. Entertainment Merchants Assn., “to the practical: ‘[I]sn’t . . . evidence always . . . destroyed when . . . marijuana [once possessed by a suspect] is . . . smoked?  Isn’t it being burnt up?’” That question was from Justice Anthony Kennedy in the search and seizure case Kentucky v. King.

“Colleagues have been fearful: ‘Does al-Qaeda know all this stuff?’” she continued, a reference to Justice Antonin Scalia’s query in NASA v. Nelson.

Another kicker, also posed by Scalia in Matrixx Initiatives, Inc. v. Siracusano: “What do you think about Satan?”

Ginsburg observed that she herself  “uttered none of the just-recited lines.  For, as the New York Times reported, based originally on an empirical study by a former law clerk of mine, when it comes to oral argument, I am—quote—‘ the least funny Justice who talks.’”

[DC Dicta would like the justice to note that, according to our count, that is not true. Last term Ginsburg proved to be funnier than Justices Alito, Sonia Sotomayor and Elena Kagan.]

SCOTUS lawyers give tips of the trade

Ever wish you could tap the expertise of veteran Supreme Court litigators before preparing an appellate brief or arguing an appeal? Now you can.

Three lawyers who made their careers arguing before the Supreme Court spoke to Lawyers USA, giving their tips for how to be persuasive while avoiding pitfalls in an appellate case. The Lawyers USA special feature also includes audio clips of the lawyers in action during oral arguments.

Will Murdoch case, and the FCPA, get Supreme scrutiny?

As the fallout from the voicemail-tapping and police collusion allegations against Rupert Murdoch’s News Corp. grows, legal experts say the case could land before the U.S. Supreme Court.

The issue: the breadth of the Foreign Corrupt Practices Act.

The case could give the highest American court a chance to decide the reach of the federal law, which is designed to prevent companies doing business in America from engaging in bribery and money laundering abroad.

In addition to allegations that British reporters at News Corp. paper tapped the phones of celebrities and crime victims, the company faces allegations that police officials were bribed to look the other way. The Justice Department has also opened investigations into whether phones were hacked on American soil, or if victims of the Sept. 11 attacks were targets.

But if FCPA charges are filed against the company’s officials, UPI reports, the penalties could be steep – with fines of as much as $2 million per violation, individual fines of up to $250,000 per violation, and prison time of up to 5 years on each count. And the penalties go up the chain of command – so even Murdoch could be on the hook.

The Court passed up a chance ot consider the breadth of the law in 2008, but with the number of FCPA enforcement actions rising, the Court could be given more chances to look at the law’s application.

If the case does work its way to the top of the judicial chain, it would not be the first time the Supreme Court weighed in on the breadth of a law in a highly-publicized case. In a case involving former Enron CEO Jeffrey Skilling, the Court ruled last year that the federal “honest services” fraud statute applied only to bribery and kickbacks.

Breyer parlera français aujourd’hui á Harvard

Supreme Court Justice Stephen Breyer will give an address at Harvard Law School today – entirely in French. C’est vrai!

Harvard Law’s dean of students sent this email out to the schools community, according to Above the Law:

Hi –

Sorry to break into your summer but Justice Stephen Breyer will be on campus this Friday, July 22. He will be giving a presentation in French and is inviting any French-speaking HLS students to join him.

The conference will take place from 11:30am to 1:00pm. Please contact me as soon as possible if you will be here and would like to participate. The event is closed so all names must be given to the US Marshals in advance. Thanks!

The justice will be speaking with members of Tunisian civil society and legal community about the U.S. Constitution and its role in our democratic system, according to the Facebook page Co.Nx, which will also carry the event live at 11:30 EDT, for those French-speaking SCOTUS junkies who can’t make it to Cambridge, Mass.

DOMA repeal bill gets White House backing

For the first time, a bill to repeal the Defense of Marriage Act has White House support.

Yesterday the Obama administration announced its support for the Respect for Marriage Act, legislation filed by California Sen. Dianne Feinstein that would wipe the federal law barring recognition of same-sex marriages off the books, the Washington Post reports. The bill would amend the U.S. Code to provide that, for federal purposes, “an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into.”

The endorsement is the most direct opposition the White House has expressed toward DOMA. In February, the Justice Department announced that it would no longer defend constitutional challenges to Section 3 of the law, which defines marriage as between a man and a woman. Feinstein’s proposed legislation would repeal the law in its entirety – including Section 2, which allows states to refuse to recognize same-sex marriages from other jurisdictions.

“This legislation would uphold the principle that the federal government should not deny gay and lesbian couples the same rights and legal protections as straight couples,” said White House press secretary Jay Carney, according to Metro Weekly. “[DOMA] continues to have a real impact on the lives of real people – our families, friends and neighbors.”

The Senate Judiciary Committee will hold its first hearing on the legislation today.

Supreme scorecard: Another losing year for the 9th Cir.

9th Circuit's territory

Some Supreme Court watchers say the U.S. Supreme Court has rarely met a 9th Circuit opinion that it wouldn’t love to overturn. This past term, that trend seems to show little signs of abating.

According to the Los Angeles Times, the Court reversed or vacated decisions from the appellate court covering the nation’s western states a whopping 73 percent of the time.

And while that percentage is on par with past terms, lately the justices of the Supreme Court has been increasingly willing to sharply criticize the reasoning of the west-coast based federal appellate judges, the Times points out.

But one 9th Circuit judge, Judge Stephen Reinhardt – who has been  a target of the Supreme rebukes on more than one occasion – pointed out that the Court’s justices often take aim at each other, so he wasn’t taking it personally.

“If anything, it’s a compliment. I get treated like the others on the [Supreme] Court,” he told the Times.

Podcasts examine historic Supreme Court rulings

Supreme Court buffs now have a new resource  that puts information about the Court’s most famous rulings at their fingertips – and on their iPods.

The U.S. Courts has released the first in a series of podcasts examining some of the Court’s most historic rulings.

Each episode features a summary of the case as well as an interview with a law professor discussing the case’s significance.

The first two podcasts examine the First Amendment flag burning case Texas v. Johnson and the search and seizure case Mapp v. Ohio.

More podcasts will be added each month on the Supreme Court Landmarks page, according to the U.S. Courts.

After 20 years, justice gets a bobblehead

Justice Clarence Thomas is approaching his 20-year anniversary as a Supreme Court justice. And if you were racking your brain to figure out how to commemorate the milestone, the folks at The Green Bag have a solution for you: The Clarence Thomas bobblehead.

Thomas is the latest justice to be featured as a bobblehead by the quarterly legal publication. And the figure features much more than the justice’s likeness and a wiggly noggin. As with other Green Bag justice bobbleheads, there is plenty of symbolism in the figure.

For example, Thomas is standing on pizza boxes, a reference to his opinion in the 2005 case National Cable & Telecommunications Association v. Brand X Internet Services, in which Thomas noted: “One can pick up a pizza rather than having it delivered, and one can own a dog without buying a leash. By contrast, the Commission reasonably concluded, a consumer cannot purchase Internet service without also purchasing a connection to the Internet and the transmission always occurs in connection with information processing.”

Thomas’ foot also sits atop a figure of a tractor trailer. That is a reference to one of Thomas’ many objections to the concept of implied preemption. In the case Freightliner Corp. V. Myrick, Thomas wrote that “a finding of liability against petitioners would undermine no federal objectives or purposes with respect to such devices, since none exist.”

And like Thomas on the bench during oral arguments, the bobblehead is silent.

If you are dying to get your hands on one, you may have some trouble – the figurines are not sold. They are given away by the publication to certain recipients, such as some subscribers and even the justices themselves. So we have no doubt the justice will have it on his desk before the next term begins.

Quoted: Justice Stevens on retiring (perhaps too soon)

“Oddly enough, since that time, I’ve felt fine and I’m sure the way the last year has gone, I would have been perfectly capable of continuing the job because I’ve continued to do a fair amount of writing that I’ve enjoyed. That’s one of the things that I enjoyed particularly about the job – I liked doing the writing. And, of course, the work is challenging. But I may have jumped the gun a little bit.”

~ Justice John Paul Stevens, 91, speaking in an interview with AARP’s Inside E Street about his decision to retire last year after stumbling while announcing his dissent in Citizens United v. FEC – a decision he now admits may have been a bit premature.