Home / 2011 / December

Monthly Archives: December 2011

Top DC Dicta posts of 2011

As another calendar year draws to a close, let’s take a look back at this blog’s most popular posts of the year – for auld lang syne.

5. The Funniest Justice, week 6. When Justice Antonin Scalia is not the funniest justice of the week, people take note.

4. Supreme mistakes. To err is human, but when experts consider the biggest blunders of the nation’s highest court, people like to know.

3. Five years of silence. There isn’t much to say about this post on Justice Clarence Thomas’ oral argument technique.

2. Scalia’s silver anniversary. When the chief justice humorously marks a major milestone for the Court’s most senior associate, it makes a splash.

1. Scalia’s hip-hop culture lesson. We must admit, Scalia’s inquiry about gold teeth was one of DC Dicta’s favorite moments of the year as well. It gives a whole new meaning to oral arguments.

Happy New Year!

ABA president slams Gingrich’s judicial plan

Presidential candidate and former House Speaker Newt Gingrich’s controversial ideas for the federal judiciary – recall that he said he’d ignore adverse Supreme Court decisions and even arrest subpoenaed judges and have them hauled before Congress to explain themselves – have gotten the attention of American Bar Association President William T. Robinson, III. And he clearly isn’t a fan of Gingrich’s plans.

“[H]is headline-grabbing proposals represent more than just campaign rhetoric,” Robinson wrote in an in an op-ed in the Des Moines Register last week, days ahead of the Iowa caucuses . “They seek to undo more than 200 years of constitutional democracy and undermine the one safe haven Americans have to resolve a dispute: our courts.”

Aside from the separation of powers issues Gingrich’s proposal poses, Robinson said Gingrich’s plan threatens to undermine the judiciary at a time when elected officials should be buttressing the government’s third branch.

“The judiciary isn’t a powerful interest group. Courts cannot raise money or marshal voters, unlike Gingrich,” Robinson wrote. “Our courts are easy targets because judges do not respond to these attacks. They are, by design, not supposed to react to the whims and passions of politicians.”

GOP experts make Supreme shortlist

If the presidential election yields a Republican victor, and a vacancy emerges on the U.S. Supreme Court, who would be nominated to fill it? That’s the question The Huffington Posts’s  Mike Sacks put to some GOP experts, and here’s who they picked:

Judge Brett Kavanaugh, the D.C. Circuit jurist, was the top name mentioned by those who think about such things, Sacks reports. The appointee of President George w. Bush and former clerk for Justice Anthony Kennedy also worked on the infamous Starr Report that led to impeachment proceedings against President Bill Clinton.

Judge Diane Sykes, the 7th Circuit judge whose name has been mentioned as a GOP SCOTUS contender before, also got high marks from experts.

6th Circuit Judge Jeffrey Sutton is a controversial pick for conservatives, giving his recent decision upholding the constitutionality of the federal health care law. But that ruling could also bring him support from across the aisle in the Senate, making him an attractive candidate.

Others mentioned on the list include 10th Circuit Judge Neil Gorsuch and former Solicitor General Paul Clement.

Roberts, Kagan win awards for crafty use of the pen

We all know that Chief Justice John G. Roberts sometimes likes to have a little fun when he writes opinions. Now, his writing has earned him an award from the popular quarterly journal The Green Bag.

As The BLT’s Tony Mauro reports, Roberts and Justice Elena Kagan both won legal writing awards from the publication.

Roberts was recognized for his opinion in FCC v. AT&T, in which he declined to hold that corporations had protection for “personal privacy” under the Freedom of Information Act.

Just because the definition of “person” includes corporations under federal law, Roberts wrote, that doesn’t mean they are covered when the adjective “personal” is used. To drive the point home, Roberts cited a host of adjectives that have nothing to do with the root word, such as crab and crabbed, corn and corny, and crank and cranky. Roberts then brings it home with a kicker: “We trust that AT&T will not take it personally.”

Kagan was cited for her dissent in the case Ariz.Christian School Tuition Org. v. Winn.

Three-day oral arguments in health care case set for March

The U.S. Supreme Court will hear oral arguments on the four issues involved in the challenge to the health care law over three days in March.

The court announced yesterday that the five and a half hours of oral arguments in the case will begin Monday, March 26, with an hour of argument devoted to the threshold issue of whether the Anti-Injunction Act precludes consideration of the constitutional claims before the law goes into effect in 2014.

On March 27 the Court will hear two hours of arguments on the central issue in the case: whether Congress had the authority to pass the individual coverage mandate. And on March 28 the Court has allocated 90 minutes for argument to consider whether the individual mandate is severable from the rest of the health care law, and an hour on the issue of the Medicaid expansion.

Gingrich says he’d ignore Supreme Court, arrest judges if necessary

Presidential hopeful and former House Speaker Newt Gingrich said he’d ignore Supreme Court rulings that infringe on his authority as commander-in-chief, and that he’d subpoena judges who disagree with his stance  as president – sending U.S. marshals to arrest and haul the judges before Congress, if necessary.

The GOP candidate said, however, that his preferred method for dealing with “activist judges” would be to impeach them.

“I got into this originally because of two things: the steady encroachment of secularism through the courts to redefine America as a non-religious country and the encroachment of the courts on the president’s commander-in-chief powers, which is enormously dangerous,” Gingrich to host Bob Schieffer Sunday on the CBS News program “Face the Nation,” according to a Reuters report.

When Gingrich raised the prospect of having a judge subpoenaed over a court ruling, Schieffer pointed out some issues that might raise.

“Some people say that’s unconstitutional,” Schieffer said to Gingrich, according to the ABA Journal. “But I’ll let that go for a minute. I just want to ask you from a practical standpoint, how would you enforce that? Would you send the Capitol Police down to arrest him?”

“If you had to,” Ginrich replied.

“You would?” Schieffer pressed.

“Or you instruct the Justice Department to send the U.S. Marshal,” Gingrich said.

Death penalty dying a slow death?

The number of death sentences imposed this year dropped to less than 100 for the first time since capital punishment was reinstated in 1976, according to a new report by the Death Penalty Information Center.  The number of executions carried out also declined, according to the group, which attributes the change to the “discomfort that many Americans have with the death penalty.”

“Whether it’s concerns about unfairness, executing the innocent, the high costs of the death penalty, or the general feeling that the government just can’t get it right, Americans moved further away from capital punishment in 2011,” said Richard Dieter, DPIC’s Executive Director and the report’s author.

According to the report, 78 new death sentences have been handed down so far this year. That is a sharp decrease from 2010, when 117 death sentences were handed down, and a dramatic decrease from 2000, when 224 death sentences were imposed.

There have been 43 executions carried out so far in 2011, compared to 46 in 2010 and 85 in 2000, according to the report. Nearly 3 out of 4 executions took place in the South, with Texas leading all states with 13.

Dieter also noted that several states, including Illinois, New Mexico, New Jersey and New York, have abandoned capital punishment in recent years, and other states including California, Connecticut, Maryland and Oregon are exploring the possibility of also ending executions.

Az. immigration law gets Supreme consideration

UPDATE: The Supreme Court granted certiorari in U.S. v. Arizona, agreeing to decide whether federal immigration law preempts an Arizona law that authorizes police to verify the immigration status of individuals who are detained. More updates to come on Lawyers USA online.

When the health care law challenge landed before the Supreme Court, it took the justices only one conference to decide to grant certiorari. Today another potential blockbuster case with major political ramifications could be added to the Court’s docket after just one look: the challenge to Arizona’s controversial immigration law.

During Friday’s conference, the justices considered the certiorari petition from Arizona Gov. Jan Brewer in the case U.S. v Arizona, which asks whether federal immigration law preempts an Arizona law that authorizes police to verify the immigration status of individuals who are detained.

The Arizona Legislature in April 2010 passed a law requiring 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. The statute further authorizes police to make a warrantless arrest when probable cause exists that an individual has committed an offense that makes them removable from the country.

More on this and any other newsworthy developments from the Court, which is also set to release opinions today, on this blog and Lawyers USA online.