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Supreme stargazing

Ever wonder what Supreme Court justices do when they are not thumbing through briefs, grilling attorneys from the bench or writing long legal opinions? Why, they hang out with Angelina Jolie and Brad Pitt, of course!

At least that is what Justice Ruth Bader Ginsburg got to do this week. The justice was one of the guests at the very late-night afterparty following the Washington premiere of Jolie’s directorial debut ‘Blood and Honey,” the Washington Post’s Reliable Source reports.

The Funniest justice, week 7: Fleeting laughter

It’s not often that Supreme Court justices opine about the way celebrities such as Cher and Nicole Richie speak. But during oral arguments Tuesday in FCC v. Fox, Justice Stephen Breyer did just that.

“What Fox was penalized for was two women on television who basically used a fleeting expletive which seems to be naturally part of their vocabulary,” Breyer said, drawing one of the seven laughs he earned during oral arguments this week.

This is the second oral argument week in a row that Breyer has led the score in laughs, slowly chipping away at Justice Antonin Scalia’s lead in the Funniest Justice Tally. Here are the standings after seven weeks of oral arguments:

Here are the standings after seven weeks:

Justice Antonin Scalia: 27

Justice Stephen Breyer: 23

Chief Justice John G. Roberts: 11

Justice Anthony Kennedy: 5

Justice Ruth Bader Ginsburg: 1

Justice Elena Kagan: 1

Justice Samuel Alito: 1

Justice Clarence Thomas: 0

Justice Sonia Sotomayor: 0

In healthcare case, is Obama administration trying to woo Scalia?

Is there any way to convince Justice Antonin Scalia that the Commerce Clause gives Congress the authority to mandate health care coverage? The conservative justice is seen as a virtual surefire vote on the side of the challengers to the federal health care law.

But in an amicus brief filed Friday, the Justice Department relies heavily on a Supreme Court case which held that the Commerce Clause gave the government the authority to prohibit individuals from growing medical marijuana for their own use despite a California state law making it legal. And, as Talking Points Memo DC points out, that reasoning was backed by Scalia himself.

In the 2005 case Gonzales v. Raich, the Scalia joined the Court’s 6-3 majority. Justice John Paul Stevens wrote for the majority that: “Congress can regulate purely intrastate activity that is not itself ‘commercial,’ in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.

While the reasoning in that case is relied upon heavily by the government, it may not necessarily be the ticket to woo Scalia to the government’s side. Though he joined the majority in judgment, Scalia also wrote a concurrence that explained – and limited – his embrace of Commerce Clause power in the case.

“[U]nlike the channels, instrumentalities, and agents of interstate commerce, activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone,” Scalia observed.

GOP lawmakers fired up (and ready to sue) over recess appointments

It did not take long for Congressional Republicans to seize on the controversial recess appointments President Barack Obama made last week.

On Friday GOP members of the Senate judiciary Committee, led by Sen. Chuck Grassley, sent a letter to Attorney General Eric Holder pressing him to disclose just what role the Department of Justice played in advising the president on the recess appointments.

As has been well reported, Obama appointed Richard Cordray as director of the Consumer Financial Protection Bureau, and three members – Sharon Block, Richard Griffin and Terence F. Flynn – to the NLRB. The Senate had previously filibustered Cordray’s nomination and stalled the NLRB nominees, allowing the Board to fall below its statutory quorum the day before Obama made the recess appointments.

Obama made the move despite efforts by lawmakers to prevent Congress from recessing by repeatedly gaveling in pro forma sessions over the holiday break.

The lawmakers’ letter stated that the appointments went against opinions issued by past attorneys general, the U.S. Supreme Court and other authorities that “clearly indicate the view that a congressional recess must be longer than three days – and perhaps at least as long as ten — in order for a recess appointment to be constitutional.  These various authorities have reached this conclusion for over 90 years and have become the stated position of the Executive Branch, including multiple representations before the Supreme Court, regarding the required length of time for a recess in order for the President to make a recess appointment.”

Meanwhile, last week Rep. Bill Johnson threatened a lawsuit over the matter.

“Dodd-Frank made it very clear that to set it up it must have Senate approval,” Johnson told Fox Business’ Neil Cavuto (see it here via The Hill). “And the president cannot just arbitrarily change the rules or decide on his own the Senate’s definition of when it’s in session and when it’s not in session.”

Breyer defends Supreme Court recusal process

A week after Chief Justice John G. Roberts defended Supreme Court justices’ process for deciding whether or not to recuse themselves from cases that pose a potential ethical conflict, Justice Stephen Breyer also weighed in on the debate in defense of the Court’s practice.

“There’s a code of ethics. It’s 24 volumes. It’s in my office. It’s up in the library. Before I have any case that involves ethics I go read it and see what’s there,” Breyer said Saturday at a Washington legal conference, according to the Associated Press.

As the challenge to the federal health care law is set to be heard by  the Court in March, some critics have called on Justices Clarence Thomas and Elena Kagan to recuse themselves from considering the case, and urged ethics rules to be revised binding the Supreme Court to the same recusal standards that other federal judges must follow.

Roberts, in his annual report on the judiciary, argued that the Court’s justices do consult the Judicial Code as well as other standards in deciding whether or not to recuse.

Breyer echoed Roberts’ sentiments.

“We are bound. We’re acting as if we’re bound,” Breyer said.

Also like Roberts, Breyer noted a key difference between Supreme Court justices and other federal judges: when lower court judges recuse, they are replaced. When a Supreme Court justice sits out a case, there is no replacement, and the decision can make a difference in the outcome of a case.

“That means I have to take with absolute seriousness the obligation to sit as well as the obligation not to sit,” Breyer said.

Santorum outlines judicial plan, calls Gingrich’s ‘a step too far’

Newt Gingrich isn’t the only GOP presidential candidate with plans to revamp the judiciary.

Former Sen. Rick Santorum talked about his plans for federal courts last week. Among his ideas: abolishing some federal courts and taking other measures to rein in the judiciary.

“The third branch of government is in fact too powerful in the structure of government today with respect to checks and balances,” Santorum told a New Hampshire crowd, according to the National Journal. “They have become a super legislature. They have become in effect most powerful of the three [branches of government], and they should be the least.”

Although Santorum said his ideas fall to the right of that of most Republicans – he would, among other things, do away with the 9th Circuit entirely – he said he believed Gingrich’s plan to subpoena and arrest judges and bring them before Congress to explain rulings adverse to the White House  goes a “step too far.”

Brown blasts Gingrich’s judiciary plan

If the goal of presidential candidate and former House Speaker Newt Gingrich was to get people talking about ideas on the federal judiciary, he succeeded! Gingrich’s plan, which would include ignoring the Supreme Court and having judges subpoenaed, arrested and hauled before Congress, has drawn much ire. Gingrich’s latest critic – fellow Republican Sen. Scott Brown, who called Gingrich’s comments “disturbing.”

“If a president and majorities in Congress could simply overturn the constitutional interpretations of the Court, and if judges could be arrested for displeasing politicians in the other two branches, we would be placing our basic rights in jeopardy,” Brown wrote in a recent Boston Globe op-ed. The rule of law would be destroyed.

Brown warned that voters may not be soon keen on Gingrich’s ideas either.

“An independent judiciary is a cornerstone of our democracy,” Brown wrote. “That Gingrich would make the courts tremble at the thought of retaliation from the president or whatever political party has the majority at the time is a very dangerous notion that threatens the founding principles of our government. If the former speaker doesn’t publicly disavow these views, the voters in New Hampshire and elsewhere will disavow his views on this issue.”

The looming fight over recess

Washington is looking a bit like a schoolyard, because there is about to be a big fight over recess.

In this case, it’s a battle over the constitutional definition of recess that is poised to head to the courts. On one side, President Barack Obama, who yesterday made four controversial recess appointments despite some Republican lawmakers’ efforts to stop him by gaveling in and out of pro forma sessions over the holiday break. (It’s a move Democrats used to thwart President George W. Bush a few years back as well).

On the other side, Senate Republicans and business groups who say that Obama lacked the congressional authority to make the appointments.

The agencies in question – the Consumer Financial Protection Agency and the National Labor Relations Board – have been political flashpoints between the White House and Congress since Obama took office. Senate Republicans, angered over the agencies’ power and actions, made no bones about their willingness to block the nomination of anyone to either agency until changes were made.

All these factors make a potential court battle over the president’s recess appointment a juicy and almost certain proposition. But who will win?

That is unclear – as is the Constitution, which doesn’t define recess or specify how long one has to be for the recess appointment power to take effect. The White House said the president acted on the advice of counsel, essentially calling the pro forma sessions shams.

“The President’s counsel has determined that the Senate has been in recess for weeks and will be in recess for weeks,” said White House Press Secretary Jay Carney yesterday. “The Constitution guarantees the President the right, provides the President the right to make appointments during Senate recesses, and the President will use that authority to make this appointment.”

Senate Minority Leader Mitch McConnell had a different view. “This recess appointment represents a sharp departure from a long-standing precedent that has limited the President to recess appointments only when the Senate is in a recess of 10 days or longer,” McConnell said in a statement. “Breaking from this precedent lands this appointee in uncertain legal territory, threatens the confirmation process and fundamentally endangers the Congress’s role in providing a check on the excesses of the executive branch.”

The next stop in the fight will undoubtedly be a courtroom.

Addendum: This statement just landed in DC Dicta’s inbox, and reminds us why we’ll miss Rep. Barney Frank, D-Mass: “Republican’s complaints about the President’s decision to make this recess appointment are equivalent to objections leveled by arsonists at people who use the fire door to escape a burning building.”

In defending colleagues, did chief justice insult federal judges?

As critics of Justices Clarence Thomas and Elena Kagan amplify their calls for the justices to recuse themselves from the health care case, Chief Justice John G. Roberts used his annual year-end report on the judiciary to defend his colleagues.

But in doing so, did the chief justice take a swipe at federal judges on the nation’s lower courts? At least one thinks so, according to The Atlantic’s Andrew Cohen.

In explaining why Supreme Court justices need not be bound by the exact same judicial codes as lower court judges, Roberts pointed out what he saw as some differences between justices and judges.

“The Supreme Court consists of nine members who always sit together, and if a justice withdraws from a case, the Court must sit without its full membership,” unlike federal courts where recused judges are replaced, Roberts wrote. “A justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy. Rather, each justice has an obligation to the Court to be sure of the need to recuse before deciding to withdraw from a case.”

Those words angered one veteran federal judge, who wrote to Cohen in response, saying Roberts’ statement was “gratuitously insulting all judges and justices who adhere to the law.”

“The duty to sit is just as obligatory as the duty to recuse when the facts require or justify recusal. I don’t suggest that some judges may withdraw ‘as a matter of convenience or simply to avoid controversy,’ but if they do, they are beneath contempt,” commented the judge, whom Cohen did not name.

The judge added: “For ‘convenience or simply to avoid controversy,’ I have about 35 class actions, a death penalty habeas corpus case requiring my personal examination of over 10,000 pages of transcripts, briefs and opinions – to say nothing of the idiotic Fair Debt Collection Practices Act cases plaguing my docket that have all the sophistication of traffic violations – it would be a relief to withdraw from, if I had not taken an oath. I think it’s the same oath the chief justice took.”

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