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Monthly Archives: November 2011

High court takes up health care law challenge

In a sweeping review that will require 5 1/2 hours of oral argument time, U.S. Supreme Court has agreed to decide the constitutionality of the individual health care coverage mandate in the Patient Protection and Affordable Care Act.

In addition to deciding whether the mandate was within Congress’s authority under the Commerce Clause, the Court also agreed to consider whether the provision is severable from the rest of the law – a decision which could decide the fate of the law in its entirety.

But the Court may not even reach the constitutional question. The justices also agreed to consider whether the challenge to the health care law is barred by the Anti-Injunction Act, which prevents challenges to federal tax provisions before they go into effect. That question could push the constitutional question off until after 2014, when the individual mandate takes effect.

One of the three cases has been allotted a whopping 3 hours of oral argument time. The other two will have 90 minutes and one hour respectively.

Much more on today’s developments to come later on Lawyers USA’s new Supreme Court Report page.

Supreme Court ponders health care, immigration cases

The U.S. Supreme Court could announce whether it will take up the challenge to the federal health care law and its individual mandate as soon as this morning.

During Thursday’s conference the justices considered the certiorari petitions in the cases challenging Congress’s authority under the Commerce Clause to require individuals to purchase health care insurance. The Court’s decision on whether to take up the challenges could come when orders are announced to day at 10 a.m.

Meanwhile, the Justice Department chimed in on what could be another blockbuster case this term, should the Court choose to take it up: the challenge to Arizona’s controversial immigration law authorizes police to assess individuals’ immigration status.

The government urged the Court not to take up the decision by the 9th Circuit ruling blocking the enforcement of the most controversial aspects of the law, holding that the provisions are preempted by federal immigration law.

Keep an eye on this blog and Lawyers USA’s new Supreme Court Report page for updates on these cases and other newsworthy tidbits.

The Funniest Justice, week 4: Lazy laughter

During oral arguments Tuesday in the case National Meat Association v. Harris, the Justice Stephen Breyer asked if the Court had to “write an 11-part opinion” dissecting each individual provision of a state statute to determine if it was preempted by a federal meat inspection law.

“I’m not trying to get out of work,” Breyer said, drawing laughter from the audience. “I just want to know.”

Without missing a beat, Justice Antonin Scalia chimed in.

“I’d like to get out of the work, to tell you the truth,” Scalia said as the crowd laughed again.

This week, Scalia broke open a wide lead in this terms funniest justice contest, earning a whopping eight laughs during oral arguments. Breyer earned three, while Chief Justice John Roberts and Justice Ruth Bader Ginsburg each made the crowd chuckle once.

Here are the standings so far:

Justice Antonin Scalia: 15

Justice Stephen Breyer: 10

Chief Justice John G. Roberts: 7

Justice Elena Kagan: 1

Justice Ruth Bader Ginsburg: 1

Justice Anthony Kennedy: 0

Justice Clarence Thomas (silence continues): 0

Justice Samuel Alito: 0

Justice Sonia Sotomayor: 0

Scalia’s hip-hop culture lesson

During oral arguments in the case Smith v. Cain Tuesday, attorney Kannon K. Shanmugam was tasked with more than just convincing the Court that New Orleans prosecutors withheld material impeachment evidence in violation of Brady v. Maryland. He also had to teach Justice Antonin Scalia a little bit about 1990s-era hip-hop culture.

“There were five other suspects who had gold teeth and low-cut haircuts” besides the defendant in the case, Shanmugam explained at one point.

“Faded haircuts and gold teeth were not a unique characteristic?” Justice Sonia Sotomayor asked.

“They were not uncommon in the 1990s,” Shanmugam said.

But Scalia seemed equally puzzled and intrigued.

“They are uncommon to me,” Scalia said, drawing laughter from the audience.

Scalia needed more clarification from Shanmugam to paint a clearer picture.

“These were not gold teeth that were implanted, right?” Scalia asked as onlookers in the press gallery and audience continued to snicker. “Was it some kind of a mouthpiece of gold?”

Shanmugam knew his limitations. “I have to admit that my familiarity with this practice is perhaps not that much greater than yours, Justice Scalia,” Shanmugam admitted.

“I’m sorry to hear that,” Scalia said.

Age before humor

Age is in the eye of the beholder. And during oral arguments yesterday in the case Zivotofsky v. Clinton, Justice Elena Kagan seemed to see age a little differently than one of her colleagues.

When a lawyer pointed out that only those born in Jerusalem before 1948 have the option of listing Palestine as the birthplace on their passports, Kagan, who was born in 1960,  said: “Well, you have to be very old to list Palestine.”

Justice Ruth Bader Ginsburg, who was born in 1933, interjected: “Not all that old.”

The remark drew laughter from the crowd and the bench, including Kagan.

Ginsburg: I feel good

Justice Ruth Bader Ginsburg, who has twice battled cancer and has since been the subject of speculative whispers regarding whether and when she would step down from the Supreme Court bench, told USA Today that she feels fine and isn’t going anywhere.

Ginsburg said she received a clean bill of health after her most recent annual checkup. Ginsburg, 78, has shot down retirement rumors before, saying that she’d like to stay on the bench until she is at least 82 – the age at which Justice Louis Brandeis retired from the Court in 1939.

But as the next presidential election looms just one year away, speculation over Ginsburg’s future on the Court and the implication of a possible vacancy next term have some left leaning political commentators  openly urging Ginsburg to step down now. In April, Harvard Law School professor Randall Kennedy wrote that Ginsburg and Justice Stephen Breyer should consider hanging up their robes so that President Barack Obama gets two more Supreme Court appointments before his first term ends.

“If Obama loses, they will have contributed to a disaster,” Kennedy wrote in a piece on The New Republic‘s website.

Clarence Thomas’ wife interviews Herman Cain

Cain photo by Gage Skidmore

GOP presidential candidate Herman Cain, under fire over sexual harassment allegations from his tenure as head of the National Restaurant Association, avoided questions about the topic from some media outlets. But yesterday he agreed to sit down with someone who may be more of a sympathetic audience: Virginia Thomas, wife of Supreme Court Justice Clarence Thomas.

“Are reporters setting you up to be guilty until proven innocent?” asked the justice’s wife of Cain in a videotaped interview posted on the Daily Caller’s website. Virginia Thomas has been a correspondent for the conservative news site founded by Tucker Carlson since the spring of this year.

“That is the DC culture: guilty until proven innocent,” Cain replied.

Virginia Thomas

It was 20 years ago last month that Justice Thomas, during his confirmation hearings, was accused of sexual harassment by Anita Hill. Last year Virginia Thomas made her now infamous phone call to Hill asking for an apology for the accusation. Hill has stood by her assertions. Mrs. Thomas later said the phone call was “probably a mistake on my part.”

During the interview, Mrs. Thomas asked Cain if “campaigning in Washington, DC [was] a disorienting experience?”

“It can be very disorienting,” Cain laughed. “The way questions are asked when I’m speaking to a group here in DC, is coming from a totally different perspective than when I’m being asked questions from the real people.”

He said that disconnect is why he has risen in the polls to be the frontrunner in the GOP race.

The Funniest Justice, week 3: Indisputable laughter

During oral arguments Tuesday in the case Rehberg v. Paulk, Justice Stephen Breyer questioned whether the Court was required to look to common law to determine if an investigator who lied during grand jury testimony was immune from suit.

“Well, one brief disagreement with your question, Your Honor,” began attorney Andrew Pincus.

“You can’t disagree with my question,” quipped Breyer, spurring laughter from the audience and other justices.

Breyer edged out Justice Antonin Scalia and Chief Justice John Roberts as the Funniest Justice of the week – and is now tied with Scalia as the funniest justice of the term so far. Breyer drew laughs during oral arguments five times this week, while Scalia earned four laughs and Roberts earned three.

Here are the standings for the term after three weeks:

Justice Antonin Scalia: 7

Justice Stephen Breyer: 7

Chief Justice John G. Roberts: 6

Justice Elena Kagan: 1 (We heard Kagan get a laugh this week, but the court reporter didn’t – and we count according to the transcript.)

Justice Anthony Kennedy: 0

Justice Clarence Thomas (the silent type): 0

Justice Ruth Bader Ginsburg: 0

Justice Samuel Alito: 0

Justice Sonia Sotomayor: 0

Court summarily slaps down CA9 shaken baby verdict reversal

In its only ruling this week, the U.S. Supreme Court issued a per curiam ruling Monday reversing a 9th Circuit ruling that upended a jury verdict against a woman accused to shaking her infant grandson to death.

In Cavazos v. Smith the 9th Circuit has reversed the jury verdict in the case, finding that the evidence at trial – which was largely focused on competing expert testimony – did not support a finding that the child died from being shaken rather than from some other cause, such as sudden infant death syndrome.

But six justices of the Supreme Court believed the 9th Circuit overstepped its bounds, substituting its own judgment for that of the jury.

“Doubts about whether Smith is in fact guilty are understandable,” the Supreme Court ruling stated. “But it is not the job of this Court, and was not that of the 9th Circuit, to decide whether the State’s theory was correct. The jury decided that question, and its decision is supported by the record.”

Justice Ruth Bader Ginsburg, in a dissent joined by Justices Stephen Breyer and Sonia Sotomayor, didn’t mince words when it came to her disagreement with the Court’s ruling.

“The Court’s summary disposition of this case, in my judgment, is a misuse of discretion,” Ginsburg wrote, saying she would have denied certiorari.

“Beyond question, the Court today reviews a case as tragic as it is extraordinary and fact intensive,” Ginsburg wrote. “By taking up the case, one may ask, what does the Court achieve other than to prolong Smith’s suffering and her separation from her family[?] Is this Court’s intervention really necessary? Our routine practice counsels no.”