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Monthly Archives: April 2012

Supreme Court rejects former Enron exec’s appeal

The U.S. Supreme Court took a pass on an appeal from former Enron executive Jeffrey Skilling.

Skilling has asked the court to consider whether a lower court ruling rejecting his claim that errors in his earlier trial should have been grounds for throwing out the convictions and granting him a new trial, the AP reports.

Skilling was convicted in 2006 of conspiracy, insider trading and other charges in the wake of the collapse of the company. In 2010, one of those convictions, for “honest services” fraud, was struck down by a Supreme Court ruling that the charge applied only to cases alleging bribery and kickbacks.

Skilling argued that the inclusion of the flawed charge should have been grounds for a new trial. The 5th Circuit disagreed, and the Supreme Court declined to rule on the matter.

Who is the Supreme Court’s first disabled justice?

When Justice Sonia Sotomayor won confirmation to the U.S. Supreme Court, much was made of the fact that she was the first Latina to sit on the bench. Likewise, the confirmation of Justice Elena Kagan marked the first time the Court featured three women.

But now the Obama administration, in touting its judicial appointment record, is hailing another judicial milestone: the confirmation of the first disabled justice on the Court.

That sent some Court watchers and writers momentarily scratching their heads and asking who that justice might be. Sure, a few of the justices wear glasses, and Sotomayor has been seen sporting a cast or brace on her ankle or knee, but those were due to injuries she suffered, not a permanent disability.

But Sotomayor does fall within the definition of disabled under the Americans with Disabilities Act because the justice is a diabetic. She was diagnosed with type 1 diabetes as a child.

The disease has clearly not held Sotomayor back, causing some like New York magazine’s Dan Amira to question whether it “substantially limits one or more of a [her] major life activities” under the ADA. But under the 2008 ADA Amendments Act, that is no longer necessary. Diabetes fits the bill because it “substantially limits endocrine function.

When justices speak, they’re usually at Harvard, Yale … or Alabama

The storied Ivy League law schools have never had trouble getting the justices of the U.S. Supreme Court to accept invitations to visit and speak. But there is another school that is quite popular among the nation’s top judges – so much so that every sitting justice has either spent time there or has plans to: The University of Alabama School of Law.

In addition to the usual lures such as personal invitations from members of the Senate and federal judges – such as Alabama U.S. District Judge W. Harold Albritton, the school also offers justices some things that most other schools can’t, according to the Associated Press’ Jay Reeves.

For Justices Anthony Kennedy, it was southern, slow-cooked, sauce-covered barbecue ribs. For football fan Justice Clarence Thomas, it was tickets to see the Crimson Tide on the gridiron. For Justice Ruth Bader Ginsburg, a copy of “To Kill a Mockingbird” personally signed by author Harper Lee.

And most of all, the venue offers good ol’ southern hospitality.

“It’s not big-time wining and dining, it’s just being pleasant to people,” Albritton told the AP.

Did Scalia hint at a health care law KO?

As several of the justices of the Supreme Court spent the off week attending events around the country, members of the media asked them obligatory questions about the pending challenge to the federal health care law, which was heard last week.

Justices usually demur when faced with such requests, refusing to make out-of-court statements on pending cases and sticking to other subjects, like antelope hunting.

But Justice Antonin Scalia took an interesting approach to not answering a question about President Barack Obama’s much discussed “judicial activism” comment, according to the AP (via the WSJ’s Law Blog):

“We don’t respond to criticism,” Scalia said in comments to students at the University of Southern Mississippi. “Judges use what’s known as the rope-a-dope trick. It’s judicial tradition.”

What is a “rope-a-dope,” you ask? Law Blog explains that it’s a boxing move used by Muhammad Ali, whereby a boxer leans against the ropes as his opponent pummels away. The shots that are not blocked are absorbed by the rope’s elasticity. Once the opponent is tired, the boxer has conserved enough energy to make a knockout punch.

So did Scalia suggest that he’d take Obama’s shots for now, only to come back with a ruling that knocks out the health care law? Only nine people know for sure – the justices took their initial vote on the case during a closed-door session last Friday.

Holder backs Obama’s statements, says Courts must presume federal laws’ constitutionality

When the 5th Circuit speaks, the Justice Department listens – and responds.

In a memorandum to a panel of federal judges hearing a challenge to the federal health care law, Attorney General Eric Holder backed comments made earlier in the week by President Barack Obama that courts ought to tread lightly when considering challenges to laws passed by Congress.

But Holder said the president’s comments in no way reflected a change in the Justice Department’s views on judicial authority, nor did they imply that courts do not have authority to consider constitutional challenges to federal laws.

Earlier this week, Obama suggested at a news conference that overturning the health care law would amount to “judicial activism.”

For more on Holder’s memo, see the full story on Lawyers USA online.

Meanwhile, Senate Minority Leader Mitch McConnell has chimed in on the matter.

“The president crossed a dangerous line this week. And anyone who cares about liberty needs to call him out on it,” McConnell said during a speech on Thursday, according to CNN. “Respectfully, I would suggest the president back off.”

Holder backs Obama’s ‘judicial activism’ comment on health care case

After President Barack Obama warned that a U.S. Supreme Court decision striking down parts or all of the health care law would be an act of “judicial activism,” Attorney General Eric Holder echoed that sentiment Wednesday.

Speaking at an event in Chicago, Holder called the president’s comments “appropriate.”

“Courts have the final say in the constitutionality of statutes,” Holder said, according to the Chicago Tribune. “Courts are also fairly deferential when it comes to overturning statutes that the duly elected representatives of the people … the Congress … pass.”

Holder’s comments came after 5th Circuit Judge Jerry Smith, part of a panel hearing a challenge to the health care law’s constitutionality, asked the Justice Department to clarify its position on courts’ authority to strike down federal laws. Smith issued the demand after becoming concerned by Obama’s comments, the Washington Post reported.

During a court hearing, Smith demanded that the Justice Department submit the three-page, single-spaced letter by noon Thursday, a lawyer in the courtroom told the Post.

The judge “said the president has been saying that unelected branches of government shouldn’t be activist and strike down federal laws,’’ the lawyer told the Post, speaking on condition of anonymity.

Obama: Striking health care law would be ‘judicial activism’

One week after the U.S. Supreme Court opened oral arguments in the federal challenge to the federal health care law, President Barack Obama expressed confidence that the law would be upheld. Striking the law down, the president warned, would be an act of judicial activism.

“Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,” Obama said during a news conference Monday.  “And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint – that an unelected group of people would somehow overturn a duly constituted and passed law.  Well, this is a good example.  And I’m pretty confident that this Court will recognize that and not take that step.”

Obama stressed that the individual mandate at the heart of the constitutional challenge is a crucial element of the law.

“I think it’s important, and I think the American people understand, and I think the justices should understand, that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care,” Obama said.  “So there’s not only a economic element to this, and a legal element to this, but there’s a human element to this.  And I hope that’s not forgotten in this political debate.”

Happy (belated) birthday, Justice Alito

As SCOTUS junkies know, Friday the Justices of the Supreme Court gathered behind closed doors to take that all important first vote on the health care law challenge. But we suspect they also took a little time to wish Justice Samuel Alito a happy birthday weekend.

Alito turned 62 Sunday.

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