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Monthly Archives: September 2012

DC Dicta will be back Oct. 1

The U.S. Supreme Court will officially kick off its October 2012 Term on the first day of next month, hearing the first of a full docket of cases that could make for yet another blockbuster term.

In the meantime, DC Dicta is taking a weeklong hiatus. But fear not: Lawyers USA has a place for all your Supreme Court-related reading. Check out our Supreme Court Report, and check back to this blog next week.

Case of Posner v. Scalia gets even more heated

Further fueling the very public judicial war of words that has riveted the legal community for the past few weeks, 7th Circuit Judge Richard Posner has fired back at Justice Antonin G. Scalia’s assertion that Posner lied in his review of Scalia’s latest book.

Quick recap: Posner offered a fairly critical review of the book “Reading Law: The Interpretation of Legal Texts,” which Scalia authored with Bryan Garner, saying that text and historical analysis are an insufficient basis of legal interpretations. Posner also claimed that in the 2nd Amendment case D.C. v. Heller, Scalia did what he claims to never do: consider legislative history.

Those were fighting words to the Supreme Courts most senior associate justice, who first snarkily retorted during a TV interview: “He’s a court of appeals judge, isn’t he? He doesn’t sit in judgment of my opinions as far as I’m concerned.”

But then stuff got real, with Scalia telling Reuters this week: “To say that I used legislative history is simply, to put it bluntly, a lie.”

With that Posner sent a two-page letter to Reuters doubling down on his claim, explaining: “Responding to a Supreme Court Justice who calls one a liar requires special care in expression.” In the letter, Posner said that Scalia was essentially using an overly-narrow interpretation of the term “legislative history” – one at odds with Black’s Law Dictionary, which Scalia’s co-author Garner edited.

“Background and events leading to the enactment” of the gun law at issue in Heller were considered, Posner insisted.

The legal world eagerly anticipates Scalia’s next response.

Supreme Court to open term mid-facelift

Those attending oral arguments at the U.S. Supreme Court when the term kicks off next month will notice something a little different about the place: lots and lots of scaffolding.

The external construction that began in May is now fully apparent at 1 First Street, NE, where the courthouse’s west façade is undergoing a 21-month project to repair and preserve its marble front. The construction project was recommended back in 2005 after a modillion from the front pediment fell onto the plaza. After that incident netting was installed around the top of the building as surveys of the marble were conducted, according to the Court.

To stay on top of all the action inside the Court’s walls, go the Lawyers USA’s Supreme Court Report, which has all the latest news, analysis and buzz – including a preview of the upcoming Supreme Court term.

Angry Scalia

Justice Antonin G. Scalia is already known to be the funniest justice on the U.S. Supreme Court. But this week he seems to be developing a reputation of also being the angriest.

In his new book “The Oath,” Jeffrey Toobin claims that Scalia was “furious” and “enraged” at  Chief Justice John G. Roberts, Jr. for his final vote in the health care law case, which upheld most of the law as a constitutional exercise of Congress’ tax and spend powers. The tome, which claims that Scalia has become more cranky and fixated on politics, also asserts that Scalia’s anger at the health care ruling was a driving force behind his prickly dissent in the Arizona immigration law case, according to the Hill.

But Scalia probably isn’t too happy about the book either. He told attendees at a New York event this week that it “enrages” him when people refer to the court as “politicized,” according to the Associated Press.

Scalia also returned fire in his ongoing verbal battle with Judge Richard Posner, accusing the 7th Circuit judge of being less than truthful in his review of Scalia’s latest book. “To say that I used legislative history is simply, to put it bluntly, a lie,” Scalia said in an interview with Reuters.

To hear how Scalia verbally spars with colleague Justice Stephen Breyer during oral arguments, check out Lawyers USA‘s audio feature: “At the High Court, it’s still Scalia v. Breyer.”

Olson readies his best Biden impersonation

Gibson Dunn partner Ted Olson is best known in legal circles as a former solicitor general and preeminent Supreme Court litigator who is currently working on the challenge to California’s Proposition 8 as it makes its way to the high court’s steps.

But Olson has taking another high-profile role this fall: that of Vice President Joe Biden.

GOP veep nominee Paul Ryan has tapped Olson to mimic Biden during debate preparations, according to the Washington Post. Ryan’s campaign spokesman Brendan Buck told the Post that Olson “one of the most skilled, intelligent and successful litigators in America — just the kind of opponent needed to prepare the congressman for Mr. Biden.”

For on the Prop 8 challenge, which is being led by Olson and David Boies as it makes its way closer to the U.S. Supreme Court, see the Lawyers USA story: “Gay marriage case one step away from Supreme Court’s door.”


Thomas discusses equality, Supreme Court dynamics

Justice Clarence Thomas, speaking at an event in Washington honoring the 225th anniversary of the Constitution, said growing up in segregated Georgia never effected his self esteem “because from day one, we knew we were equal.”

“It said so,” Thomas said. “The nuns said so, my grandfather said so, and by golly, the Declaration of independence said so.”

Thomas also echoed the sentiment of other justices in recent months, saying that the Court is not riddled with division now, nor during any time during his two-decade tenure.

“I’ve been there now though a number of members of the Court,” Thomas said. “And in the years that I have been there, I honestly come away thinking that every member really wants to make it work. Every single member. They don’t agree with each other, but somehow they agree that this is more important than we are, and we’ve got to make this work.”

More here from ABC News. Get more Supreme Court news from the Supreme Court Report at Lawyers USA.

For chief, an extra detail

This year, Chief Justice John G. Roberts, Jr.’s summer vacation in Maine included more than just family and fun: there was a security detail.

The extra precautionary measure was taken due to the “toxic climate” that followed the Supreme Court’s ruling upholding most of the federal health care law, wrote the Daily Beast’s Daniel Klaidman. [HT: ThinkProgress].

The detail was present for every minute of the family’s respite – from the hiking trails to the trips to the general store, Klaidman wrote.

For more on the chief justice’s approach in the health care law decision, see the Lawyers USA story “Health care ruling spurs employment action, tort debate: Ruling, carefully crafted by Roberts, also shapes Court’s image.”

Kagan: Acrimony? No. Fro yo? Yes!

Justice Elena Kagan is the latest Supreme Court jurist to dismiss the notion that high-profile, split decisions like the health care law ruling result in lingering acrimony among members of the Court.

“Sometimes you read these opinions and you think ‘they must hate each other.’ It’s just not true,” Kagan said during an appearance at the University of Michigan, the Detroit News reports. “We have enormous respect for each other and a feeling that we are all operating in good faith.”

Besides, she added: “If you take this stuff personally, this is going to be a long life tenure.”

Though she has the least seniority on the Court, and as such is assigned duties such as taking notes and answering the door if someone knocks during the justices’ conferences, she already has a very proud achievement: having a frozen yogurt machine installed in the Court’s cafeteria.

The students in the crowd cheered the move. “That’s what the Supreme Court staff thinks, too,” Kagan responded. “So when it comes to the end of my term, if I’ve accomplished anything, at least there’s that.”



SB 1070 status check provision ready for enforcement, new challenges

As-applied challenges to the so-called “show me your papers” provision Arizona’s immigration law SB 1070 may soon start making their way through the courts.

A federal judge this week denied a request to impose a new injunction against the law’s enforcement, and instead called on the Department of Justice and Arizona state officials to come up with wording for an order lifting the current injunction by the end of next week, the Arizona Republic reports.

The provision, which requires police to take steps to ascertain the citizenship status of individuals who are stopped, withstood Supreme Court a challenge by the federal government, which had argued that the state law was preempted by federal immigration law.

The Court struck down several provisions of the law, but the status-check provision survived the challenge. Justice Anthony M. Kennedy, however, all but invited as-applied challenges to the statute once it goes into effect, meaning the justices could revisit the statute in the future.