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Monthly Archives: October 2011

Catch the new ‘Supreme Court Report’

As the U.S. Supreme Court returns today for oral arguments in a pair of ineffective assistance cases, Lawyers USA is launching its new Supreme Court Report.

The Supreme Court Report is a one-stop online destination for everything you need to know about the Court, from stories on the latest oral arguments and decisions, to facts, figures and quotes from justices, lawyers and other major players at the nation’s highest court.

Check it out and add it to your favorites.

Stevens defends Thomas

Retired Justice John Paul Stevens defended his former Supreme Court colleague Justice Clarence Thomas, who is under fire from some members of Congress who want Tomas investigated on conflict-of-interest charges.

Some lawmakers have called on Thomas to recuse himself from the health care constitutional challenge, and some have also asked the Justice Department to investigate whether Thomas violated ethics rules when he failed to disclose his wife’s income from conservative and Tea Party- related organizations on his financial disclosures.

But Stevens said he does not believe Thomas’s wife’s activities nor the financial disclosure omissions have any effect on the way Thomas deliberates.

“I … don’t think there’s a chance in the world that it will affect his vote,” Stevens told USA Today’s Joan Biskupic. “That is one vote that you really can predict.”

But Stevens also said of the Thomases: “You can’t help but wish that they had a lower profile.”

Supremes could take up health care case next month

The justices of the U.S. Supreme Court could decide as early as next month whether to take up a challenge to the federal health care law and its mandate that individuals carry health care insurance.

Parties challenging the constitutionality of the law have asked the Court to rule that the individual mandate violates the Commerce Clause, and have also urged the Court to hold that the provision cannot be severed from the rest of the law, thus constitutionally dooming it in its entirely. The Obama administration has also sought certiorari, asking the Court to rule that Congress acted within its Commerce Clause power when passing the statute.

The Associated Press reports that the justices will consider challenges to the law from several different circuits during its Nov. 10. conference. The justices could either decide to add the case to its docket, deny certiorari, or push off the decision to a later conference.

GOP hopefuls talk SCOTUS term limits, other sweeping judicial reforms


Term limits for Supreme Court justices? A prohibition on the Court from hearing cases involving same-sex marriage? Abolishing the 9th Circuit altogether?

It’s election season, folks, and the candidates vying for the Republican presidential nomination are full of ideas about how to change the federal judiciary.

According to the New York Times, Texas Gov. Rick Perry likes the idea of allowing Supreme Court decisions to be overturned by a two-thirds vote of congress, as well as limiting the time justices can serve on the bench. In his book “Fed Up!,” Perry expresses a desire “to institute term limits on what are now lifetime appointments for federal judges, particularly those on the Supreme Court or the circuit courts, which have so much power.”


Former House Speaker Newt Gingrich, and Reps. Michelle Bachmann and Ron Paul support limiting the federal courts’ ability to hear certain kinds of cases, such as those involving abortion or same-sex marriage.


Gingrich and former Sen. Rick Santorum support disbanding the Circuit Court of Appeals. Santorum recent said at a Tea party event: “That court is rogue. It’s a pox on the western part of our country.”

Though the candidates say the proposals are designed to put the judicial system more in line with what the Founding Fathers envisioned, most of the proposals would require a constitutional amendment to implement, the Times reports.

Lawmaker blasts House’s hefty DOMA legal defense tab

Most BigLaw clients would not be surprised by a $1.5 million legal tab. But when that tab is incurred by the House’s defense of the Defense of Marriage Act – and is thus charged to taxpayers – people take notice.

Rep. Honda

As did Rep. Mike Honda, who called the legal bill a “irresponsible, backdoor use of taxpayer money” according to U.S. News and World Report (HT: WSJ’s Law Blog). The California Democrat is calling for a hearing on the issue after House Republicans agreed to increase the pay cap for Bancroft partner Paul Clement’s work on the case.

As a quick recap, after the Attorney General Eric Holder announced that the Justice Department would no longer defend the law, House Speaker John Boehner announced that the House would send its own counsel to defend the law in federal court.


And not just any counsel. House GOP lawmakers tapped former U.S. Solicitor General Paul Clement – at the time a partner at King & Spalding – to defend the constitutionality of the law.

But then King & Spalding pulled out, causing Clement to abruptly resign the firm in protest and continue the defense of the law with Bancroft.

Now, U.S. News reports, the firm’s legal fees were initially capped at $500,000, but that amount was increased to $750,000. But that “cap may be raised from time to time up to, but not exceeding $1.5 million, upon written notice of the General Counsel to the Contractor.”

That does not make Honda happy. “How long are we going to let this Republican political exercise go on, and at what cost to the American tax payers?” he told U.S. News.

But Michael Steel, spokesman for House Speaker John Boehner, defended House Republicans’ actions, saying they are defending the law is because “the Justice Department chose to shirk its constitutional duty to do so.”

SCOTUS asked to ok protests on SCOTUS grounds

The issue of whether the First Amendment allows protests on the steps of the U.S. Supreme Court will soon land before the justices.

Members of a group arrested in 2008 after protesting the Guantanamo Bay detention camp on the steps of the Supreme Court will ask that very Court to rule that the arrests violated their free speech rights.

Attorney Mark Goldstone told the Huffington Post that the petition challenging a District of Columbia statute that makes it illegal to parade, stand or move in processions on Supreme Court grounds or in the court’s buildings would be filed by Monday.

“The Supreme Court may as well answer the question once and for all, if the statute, which appears blatantly unconstitutional, can survive constitutional muster,” Goldstone said.

A similar certiorari petition was filed earlier this year, and the Court declined to grant certiorari.

Report: Emergency SCOTUS terrorism plan needed

An emergency Supreme Court, made up of justices selected and confirmed ahead of time, should be created so that the Court will be able to function should four or more justices be killed in a terror attack, according to a new report by government continuity experts.

Establishing such an emergency court would require only minor changes to federal law, according to the Continuity in Government Commission’s report.

Currently, the president could make recess appointments to the Court if it should fall below a six-justice quorum in an emergency situation. But, as noted in this Associated Press report, that could become problematic should the Court have to consider issues involving the legitimacy of the presidency or presidential actions.

While reconstituting the executive and legislative branches of government should take precedence over the judicial branch, the report said, getting the Supreme Court up and running quickly “is a matter that cannot be ignored.”

Under the proposed plan, justices selected from the emergency court would sit with remaining sitting Supreme Court justices until new justices could be confirmed by Congress. The counsel has made previous recommendations for reconstituting Congress and the judicial branch in the event of a terror attack.

Scalia: Justices ‘don’t owe anybody anything’

The U.S. Supreme Court often weighs in on politicized subjects – this term alone the Court is likely to rule on cases involving the Obama administration’s health care law, Arizona’s immigration law and affirmative action policies at Texas and Michigan colleges. But Justice Antonin Scalia said the justices focus only on the law, not the politics.

“I don’t care a fig if a statute has been passed by a Democrat or Republican,” Scalia told a group of Chicago-Kent College of Law students Tuesday, according to the Northwest Herald. “Once you’re on the court, you don’t owe anybody anything. Justices are notorious ingrates.”

Scalia did weigh in on a political subject of sorts. When the justice, who was raised in Queens, was asked if he preferred thick Chicago-style pizza or the thin, foldable New York variety, Scalia picked the former.

“I like so-called deep dish, it’s very tasty,” he said to cheers from the audience. “But it should not be called a pizza. It should be called a tomato pie.”

Kagan: Justices do lunch, not email

Nowadays it seems that most people communicate with colleagues by firing off missives using Blackberrys, iPhones or other handheld devices. And if they really want to take the old school route, they will write an email on an actual computer.

But not at the U.S. Supreme Court.

According to Justice Elena Kagan, the justices prefer their exchanges to be conducted through hand-delivered memos, the Associated Press reports. The newest justice, speaking at a National Conference of Bankruptcy Judges  event in Tampa, said the justices “ignore 25 years of technology” with their preferred communication method.

“The justices do not e-mail each other,” Kagan said. “The clerks e-mail each other, but the justices do not.”

But the justices do something many other coworkers don’t, Kagan said: speak to each other in person often.

“We actually all like each other very much,” Kagan said. “We eat lunch together and there are some very strong friendships among us…. I’m having a great time. I have no complaints about this job.”

HT: ABA Journal

Ginsburg on the power of dissent

Sometimes it’s important to disagree – even against a Supreme Court majority, Justice Ruth Bader Ginsburg told a crowd of female judges this weekend.

Ginsburg, speaking to a crowed of roughly 300 female judges at the National Association of Women Judges conference in Newark this weekend, said that she is not afraid to speak up when she disagrees with a judgment of the Court, the Star-Ledger reports.

“I will continue to speak out in dissent when important matters are at stake,” Ginsburg said.

By example, she referenced her dissent in the case Ledbetter v. Goodyear Tire and Rubber Co. Speaking from the bench, she urged Congress to pass a law allowing women to file unequal pay suits if they learn of the pay disparity beyond the 180 filing deadline under federal law. Congress subsequently passed the Ledbetter Fair Pay Act doing just that.

Ginsburg said speaking out in dissent can even win over fellow justices.

“On rare occasions, a dissent turns the court and becomes the opinion of the Court,” Ginsburg said.