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Monthly Archives: August 2012

Posner engages Scalia in brewing judicial smackdown

Oh, it’s on now.

Justice Antonin G. Scalia’s snarky rebuff of the criticism of 7th Circuit Judge Richard Posner hasn’t stopped the latter jurist from taking on – and taking apart – Scalia’s meme to textualism.

In a review of the book “Reading Law: The Interpretation of Legal Texts” Scalia authored with Bryan Garner, Posner took issue with the author’s contention that text and historical analysis should be the basis of judges’ interpretations.

“Judges are not competent historians,” Posner said in his New Republic piece, the ABA Journal reports. “Even real historiography is frequently indeterminate, as real historians acknowledge. To put to a judge a question that he cannot answer is to evoke ‘motivated thinking,’ the form of cognitive delusion that consists of credulously accepting the evidence that supports a preconception and of peremptorily rejecting the evidence that contradicts it.”

When it comes to healthcare, influence is Supreme

Modern Healthcare magazine has released its latest annual list of the 100 most influential people in healthcare. And the person chosen as the industry’s biggest power player is not President Barack Obama, who steered his health care plan into law (he’s #4 on the list), or HHS Secretary Kathleen Sebelius (she’s #5), or any of heads of the country’s largest health insurance companies (they’re ranked high, but not at the top).

This year, the person who had the biggest impact on the healthcare industry, according to the magazine’s tally, is Chief Justice John G. Roberts, Jr.

The honor usually goes to someone who is actually in the health care industry – or someone in the executive branch of government whose decisions have a direct impact on the industry. But after Roberts’ landmark opinion in June upholding most of the federal health care law, the editors and experts who compiled the list took a different approach.

“There’s an exception to every rule, and we made a big one when we chose Chief Justice of the United States John Roberts as the most influential person in healthcare for 2012,” the editors said.

Souter’s a draw

Want to draw a big crowd at an event about the Constitution? Then make retired Justice David Souter your headliner.

Organizers of an event “Constitutionally Speaking,” which is aimed at engaging New Hampshire citizens in a debate about the document at the heart of the nation’s government, had to switch venues to accommodate hundreds of people who were on the waitlist to hear Souter speak. Even though the move opened up 400 more spots for the Sept. 14 event, the event still sold out – requiring the organizers to create yet another wait list.


Supreme Court could take up smoky First Amendment issue

Could the battle over a federal rule requiring prominent warnings on cigarette boxes and other tobacco product packaging be headed for the U.S. Supreme Court?

Last year, the Food and Drug Administration unveiled a series of graphic labels – featuring images such as a man exhaling cigarette smoke through a tracheotomy hole, cancerous mouth sores and a post-autopsy cadaver – that tobacco companies would be required to place prominently on its products under the Family Smoking Prevention and Tobacco Control Act.

But the companies sued in federal court, claiming the labeling requirement violated their First Amendment rights. Friday, the D.C. Circuit created an appellate split by ruling in the tobacco companies’ favor – a decision at odds with a 6th Circuit ruling in March holding that there was no violation. The split makes the issue ripe for Supreme Court consideration.

More on the regulations and appellate decisions from Lawyers USA.

Another ineffective assistance case headed to the Supreme Court?

The justices of the U.S. Supreme Court this week hinted that they may take another look at ineffective assistance of counsel claims.

SCOTUSblog’s Lyle Denniston reports that the Court stayed the execution of a Texas man, who claimed that the state’s system for appointing lawyers to death penalty defendants makes it impossible to raise ineffective assistance claims later. Under the system, such defendants are appointed two lawyers by the state, with one to handle verdict challenges, and another to deal with post-trial challenges.

Though the 5th Circuit denied the defendant’s challenge, the Supreme Court granted a temporary stay while they consider whether to grant cert on the issue.

Congress’ weakness is Supreme Court’s strength

The worse the Congressional logjam grows, the stronger the role of the U.S. Supreme Court in being the interpreter of laws, according to a new study.

The report from Prof. Richard L. Hasen of the University of California, Irvine School of Law points out that, ideally, Congress and the Supreme Court engage in a “dialogue on statutory interpretation” – lawmakers pass a law, the Court interprets the law, and then Congress has the power to overrule the Court by amending the law.

But when Congress is tied up in partisan gridlock – a growing phenomenon in recent years – it becomes harder for it to serve in this function. As a result, the Court gets the final word much more often.

The increasingly partisan atmosphere on Capitol Hill can have other repercussions for Congress and the Court, the study states. “Aside from the statutory interpretation dialogue, Congress interacts with the Supreme Court in other ways, including through Senate confirmation of Supreme Court judicial nominees,” Hasen observed.” The recent partisan realignment of the Supreme Court makes it more likely that a Supreme Court judicial nominee will be filibustered in the Senate, thanks to the increasing willingness of Senators to oppose nominees on ideological grounds and increased partisan polarization in the Senate.”

The study was reported in the New York Times and by the ABA Journal.

Justice Who?

Can you name these folks?

If Chief Justice John G. Roberts, Jr., cares at all about being well known, we have good news and bad news for him.

The good news: he is the most well-known justice of the U.S. Supreme Court, according to a new survey by FindLaw.com. The bad news, only 20 percent of Americans surveyed could name him.

Those surveyed had much more trouble naming the other eight justices of the Court. While 16 percent of those surveyed could name Justice Antonin G. Scalia or Justice Clarence Thomas, only 3 percent could name Justice Stephen G. Breyer, making him the least known justice.

Only 34 percent of those surveyed could name any justice, according to the study.A mere 1 percent could correctly name all nine justices.

Ginsburg the matchmaker

As any lawyer knows, the career benefits of landing a gig as a U.S. Supreme Court clerk are innumerable. But it turns out that one may even find love in those marbled halls.

Such was the case for two former clerks of Justice Ruth Bader Ginsburg, who met at the Court in 2008, and tied the knot Saturday in California, according to the New York Times.

Another bonus of having had such a coveted job: Ginsburg flew to California to officiate the nuptials.

Kofi Annan’s heated exchange with a Supreme Court justice

Justices of the U.S. Supreme Court frequently invite famous dignitaries to the Court to dine and chat. Former U.N. Secretary-General Kofi Annan was among those guests, and in his memoir he writes that conversation over “salads and sandwiches” got heated.

According to Foreign Policy blogger Colum Lynch, when the conversation turned to the International Criminal Court, established in 2002 for trials of those accused of large scale crimes like genocide and war crimes, one justice objected vociferously to the idea.

“I’ll be damned if I’m going to let my son be dragged before some foreign kangaroo court to face judgment,” Annan quotes the unnamed justice as saying. Lynch points out that Justice Antonin G. Scalia’s son Matthew is a U.S. Army captain who served in Iraq, perhaps a clue to the identity of the justice.

Annan wrote that he was taken aback, but tried to assure the justice that no frivolous prosecutions would take place. “He was unconvinced,” Annan wrote, according to Lynch.

Kennedy defends judicial gathering, blasts the confirmation process

(Photo: 9th Circuit)

At the 9th Circuit’s judicial conference in Maui – which drew the ire of some lawmakers due to its $1 million taxpayer-funded tab – Justice Anthony M. Kennedy defended the gathering, saying it was important for members of the judiciary and the bar to gather to continue to educate themselves and advance the rule of law.

“The circuit conference is a prudent and a proper exercise of the judicial function,” Kennedy said in his remarks at the conference on Monday. “If the American public knows, and they should know, of what we do at this conference, they would be and should be immensely proud, not only the judiciary and the members of the academy and of the bar who are here, but of the idea of law in itself.”

Kennedy also criticized the judicial confirmation process, which he said has been damaged by partisan politics. “This is bad for the legal system,” Kennedy said. “It makes the judiciary look politicized when it is not, and it has to stop.”