A federal law criminalizing the sale of videos depicting animal cruelty seems in constitutional peril, after Supreme Court oral arguments today.

In arguments in U.S. v. Stevens, a challenge to a law that makes it illegal to create or sell depictions of animal cruelty, most of the justices seemed to indicate that the statute cuts too broad an encroachment on the First Amendment.

For example, some justices were not at all moved by deputy Solicitor General Neal Katyal’s argument that the law – passed in an effort to ban so-called “crush videos” depicting women crushing small animals to death with their stilettos, dominatrix-style – could not be applied to hunting videos.

“Some depictions of hunting are pretty gruesome,” said Justice Anthony Kennedy.

When Katyal pointed out that the statute was limited depictions of cruelty, defined as “maimed, mutilated, tortured, wounded, or killed,” Justice Antonin Scalia jumped in.

“Or ‘killed!’” Scalia exclaimed. “How do you limit ‘killed?’ …‘Kill’ has one meaning, which is ‘kill!’ … You don’t have a single case in which an absolutely clear word like ‘kill’ is given a more narrow meaning because of other words that are different from that word.”

Of course that didn’t mean that Patricia Millett, the attorney arguing against the statute, didn’t get some memorable questions.

When Millett pointed out that the underlying dog fighting in the video at issue in the case wasn’t illegal because it took place in another country where it was allowed, Justice Samuel Alito asked: “What if [people] like to see human sacrifices?  Suppose that is legally taking place someplace in the world. I mean, people here would probably love to see it. Live, pay-per-view, on The Human Sacrifice Channel. Is that ok?”

As people in the courtroom laughed, Millett tired to qualify her answer by saying Congress must act in an “even-handed” way. Alito had more questions.

“Suppose you have The Ethnic Cleansing Channel on cable TV, and [said ethnic cleansing] is taking place in a country that’s beyond our power to influence. Congress couldn’t prohibit that?”

“The fact that conduct is repulsive or offensive does not mean we automatically ban the speech,” Millett answered.

Don’t let this week’s 5-4 Supreme Court decision in Corley v. U.S. – where the justices split along ideological lines with Justice Anthony Kennedy again serving as swing voter – fool you. This term, the justices are opting more often to agree to agree.

So far this term, nearly half of the Court’s opinions have either been unanimous or nearly so, reports AP’s Mark Sherman.

Corley is the eighth decision this term in which the Court split 5-4. In six of those splits, Kennedy was the swing voter, joining the Court’s so-called conservative bloc four times, and the liberals twice. Two 5-4 opinions had no clear ideological connection.

Since the Court developed a reputation as having a strong ideological divide in its October 2006 term, Chief Justice John G. Roberts, Jr. has often expressed a desire to see more consensus among the justices. In 2007, Roberts said: “The court functions most effectively as a judicial institution saying what the law is when it can deliver one clear and focused opinion of the court.”

It is unclear whether Roberts’ stewardship is behind the justices seeing more eye to eye.

A confession by a defendant who had been in police custody for more than six hours without being presented to a magistrate is inadmissible, the U.S. Supreme Court has ruled.

In the 5-4 opinion in Corley v. U.S., the Supreme Court found that 18 U.S.C. §3501 – which holds that admissions “shall be admissible if it is voluntarily given” within six hours of an arrest – did not supplant the McNabb-Mallory rule, which requires police to take a defendant “without unnecessary delay” before a magistrate judge.

“Today presentment is the point at which the judge is required to take several key steps to foreclose government overreaching: informing the defendant of the charges against him, his right to remain silent, his right to counsel, the availability of bail, and any right to a preliminary hearing; giving the defendant a chance to consult with counsel; and deciding between detention or release,” wrote Justice David Souter for the majority. “In a world without McNabb-Mallory, federal agents would be free to question suspects for extended periods before bringing them out in the open, and we have always known what custodial secrecy leads to.”

Justice Anthony Kennedy joined the majority, leaving the Court’s conservative bloc to file a dissent. More here on Corley from Lawyers USA.

He Court also ruled in U.S. v. Navajo Nation that The Navajo Nation has no claim for damages under the Indian TuckerAct) for an asserted breach of fiduciary duty by the Secretary of the Interior in connection with his failure promptly to approve a royalty rate increase under a coal lease the Tribe executed in 1964.

Today the U.S. Supreme Court held that collective bargaining agreements that require employees to arbitration discrimination claims, thus waiving their right to sue on court, are enforceable as a matter of federal law. The 5-4 opinion, split down the Court’s ideological lines with Justice Anthony Kennedy joining Justice Clarence Thomas’ majority opinion, came in 14 Penn Plaza LLC v. Pyett. More soon on that case from Lawyers USA.

The Court also held in Entergy Corp. v. Riverkeeper, Inc. that that EPA can rely on cost-benefit analysis in setting some of the national performance standards governing power plants.

In Harbison v. Bell the Court held that federally appointed counsel may represent their clients in state clemency proceedings and they are entitled to compensation for that representation.

With 2008 almost in the history books, it’s a good time to take a look back at the most popular posts of the year here at DC Dicta. Looking back, the hottest items on the blog revolved around presidential campaign moments, Supreme Court shenanigans, celebrity testimony on the Hill, and the beleaguered Justice Department. Let’s count them down:

10. Mukasey: ‘Not every violation of the law is a crime’

Comments made by Attorney General Michael Mukasey in August – particularly the quote: “Not every wrong, or even every violation of the law, is a crime” – circulated around the blogosphere and ultimately became a catchphrase to represent the problems plaguing the Justice Department in recent years.

9. The Funniest Justice: Antonin Scalia

No one leaves ‘em laughing in the courtroom like Justice Antonin Scalia, who handily won the title of Funniest Justice for the October 2007 term.

8. Kennedy winks in EEOC’s direction?

After January oral arguments in Kentucky Retirement Systems v. EEOC, this post noted that Justice Anthony “Swing Vote” Kennedy seemed to indicate pretty clearly that he believed the retirement benefits system in question discriminated on the basis of age – just as the EEOC contended. Although he did go on to find the program discriminatory, he was in the Court’s minority, writing the dissent in a case that did not at all adhere to the Court’s usual conservative vs. liberal breakdown. (Scalia and Ginsburg joined Kennedy’s dissent – when does that every happen?)

7. Actor to lawmakers: Let patients bring pharma suits

Mr. (Dennis) Quaid went to Washington. The actor, whose newborn twin daughters were accidentally given a nearly-lethal dose of the drug herapin, told lawmakers in May that without the right to sue pharmaceutical companies, consumers will become “uninformed and uncompensated lab rats.”

6. U.S. News law school rankings leaked!

When the folks at Above The Law put up a document showing the 2009 U.S. News & World Report law school rankings a few days before they were published in March, we sent you there.

5. McCain’s switch on Souter; Obama: Thomas isn’t too bright

Ah, remember that video of then presidential candidate Barack Obama basically saying Justice Clarence Thomas wasn’t the sharpest knife in the drawer? Of course you do! Many of you watched it right here in August.

4. Biden calls Court a Supreme campaign issue

During the campaign season, now Vice President-elect Joe Biden was one of the most frequently searched subjects leading to DC Dicta. When he talked about the importance of the election in terms of potential Supreme Court nominees in August, the related post was one of the most popular blog items for weeks afterwards.

3. Cover blown off Chief Justice’s school visit

Who knew Chief Justice John G. Roberts, Jr. was so popular? Well, he obviously does – since he tried to clandestinely visit a local high school in March for a talk with students. But somehow word got out, newspaper reporters were there waiting for him, and DC Dicta readers wanted to know all about it.

2. 400 requests for reduced crack sentences in two days

When new reduced federal sentencing guidelines for crack cocaine offenses, approved last year by the U.S. Sentencing Commission, went into effect retroactively in March, one day later more than 400 court orders from around the country slashing prison terms had been processed by the Federal Bureau of Prisons.

And the most hit blog post of the year (drumroll, please!):

1. High court denies Enron investors’ petition

This Jan. 22 post noted that the Supreme Court, on the heels of its decision in Stoneridge Investment Partners v. Scientific-Atlanta Inc., denied a petition by Enron investors seeking to pursue similar claims against bankers from firms including Merrill Lynch and Credit Suisse Group. The move ended the investors’ actions claiming the bank companies colluded with Enron officials’ fraud.

With 2008 almost in the history books, it’s a good time to take a look back at the most popular posts of the year here at DC Dicta. Looking back, the hottest items on the blog revolved around presidential campaign moments, Supreme Court shenanigans, celebrity testimony on the Hill, and the beleaguered Justice Department. Let’s count them down:

10. Mukasey: ‘Not every violation of the law is a crime’

Comments made by Attorney General Michael Mukasey in August – particularly the quote: “Not every wrong, or even every violation of the law, is a crime” – circulated around the blogosphere and ultimately became a catchphrase to represent the problems plaguing the Justice Department in recent years.

9. The Funniest Justice: Antonin Scalia

No one leaves ‘em laughing in the courtroom like Justice Antonin Scalia, who handily won the title of Funniest Justice for the October 2007 term.

8. Kennedy winks in EEOC’s direction?

After January oral arguments in Kentucky Retirement Systems v. EEOC, this post noted that Justice Anthony “Swing Vote” Kennedy seemed to indicate pretty clearly that he believed the retirement benefits system in question discriminated on the basis of age – just as the EEOC contended. Although he did go on to find the program discriminatory, he was in the Court’s minority, writing the dissent in a case that did not at all adhere to the Court’s usual conservative vs. liberal breakdown. (Scalia and Ginsburg joined Kennedy’s dissent – when does that every happen?)

7. Actor to lawmakers: Let patients bring pharma suits

Mr. (Dennis) Quaid went to Washington. The actor, whose newborn twin daughters were accidentally given a nearly-lethal dose of the drug herapin, told lawmakers in May that without the right to sue pharmaceutical companies, consumers will become “uninformed and uncompensated lab rats.”

6. U.S. News law school rankings leaked!

When the folks at Above The Law put up a document showing the 2009 U.S. News & World Report law school rankings a few days before they were published in March, we sent you there.

5. McCain’s switch on Souter; Obama: Thomas isn’t too bright

Ah, remember that video of then presidential candidate Barack Obama basically saying Justice Clarence Thomas wasn’t the sharpest knife in the drawer? Of course you do! Many of you watched it right here in August.

4. Biden calls Court a Supreme campaign issue

During the campaign season, now Vice President-elect Joe Biden was one of the most frequently searched subjects leading to DC Dicta. When he talked about the importance of the election in terms of potential Supreme Court nominees in August, the related post was one of the most popular blog items for weeks afterwards.

3. Cover blown off Chief Justice’s school visit

Who knew Chief Justice John G. Roberts, Jr. was so popular? Well, he obviously does – since he tried to clandestinely visit a local high school in March for a talk with students. But somehow word got out, newspaper reporters were there waiting for him, and DC Dicta readers wanted to know all about it.

2. 400 requests for reduced crack sentences in two days

When new reduced federal sentencing guidelines for crack cocaine offenses, approved last year by the U.S. Sentencing Commission, went into effect retroactively in March, one day later more than 400 court orders from around the country slashing prison terms had been processed by the Federal Bureau of Prisons.

And the most hit blog post of the year (drumroll, please!):

1. High court denies Enron investors’ petition

This Jan. 22 post noted that the Supreme Court, on the heels of its decision in Stoneridge Investment Partners v. Scientific-Atlanta Inc., denied a petition by Enron investors seeking to pursue similar claims against bankers from firms including Merrill Lynch and Credit Suisse Group. The move ended the investors’ actions claiming the bank companies colluded with Enron officials’ fraud.

Today the U.S. Supreme Court declined to rehear the case in which the Court struck down the Louisiana statute that made child rape an offense punishable by death. But even in agreeing not to rehear the matter, Justice Antonin Scalia issued a statement blasting members of the Court’s majority in the case.

The case, Kennedy v. Louisiana, drew attention after the discovery of a little-known 2006 military law that made child rape a capital offense. Neither party in the case realized the law existed when the argued before the Court, and Court based its decision striking down the law in part on the absence of tradition of making child rape a capital offense.

Last month the Court asked parties in the case to file supplemental briefs “addressing not only whether rehearing should be granted but also the merits of the issue raised in the petition for rehearing.”

The court did issue a modified opinion in the case, which can be found here.

In a statement regarding the modification and the denial of rehearing, the Court indicated that Justices Clarence Thomas and Samuel Alito, Jr. voted in favor or reviewing the case.

Justice Anthony Kennedy, author of the opinion, noted in today’s statement that although military rules allowing the death penalty for rape have been in place for more than a century, “[t]he death penalty, however, has not been carried out against a military offender for almost 50 years.” Kennedy added that the 2006 law’s “authorization of the death penalty in the military sphere [for child rape] does not indicate that the penalty is constitutional in the civilian context.” Kennedy’s statement was joined by the other four justices who made up the 5-4 majority in the case last term.

In a separate statement, Justice Antonin Scalia, joined by Chief Justice John G. Roberts, Jr., noted that he voted against rehearing the case “because the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case.”

But Scalia derided the majority’s “lack of consensus” rationale as merely a way to “giv[e] effect to the majority’s own preference.”

As for Kennedy’s distinction between military law and civilian law, Scalia wrote: “It is difficult to imagine . . . how rape of a child could sometimes be deserving of death for a soldier but never for a civilian.”

The court also granted certiorari in 10 cases, ranging from Fifth Amendment rights of indigent defendants to liability under CERCLA for environmental cleanup costs. The order list can be found here. More coverage of those grants will be coming up later on this blog and on the Lawyers USA website.

I may seem surprising that the Supreme Court would rule that a murder defendant can keep the testimony of the victim out of trial unless the defendant killed the victim for the purpose of preventing the victim from testifying.

But a look back at Lawyers USA‘s coverage of oral arguments in Giles v. California shows that the Court’s justices hinted pretty clearly at the way they were leaning.

Keep in mind in reading this excerpt that Justice Antonin Scalia ultimately penned the decision, and Justice Anthony Kennedy joined Justice Stephen Breyer’s dissent in the case. Rapidly leaving the boat, indeed:

At oral arguments [in May], Los Angeles attorney Marilyn Gail Burkhardt, arguing on Giles’ behalf, seemed to have an ally in Justice Antonin Scalia – who jumped in on questions posed by other justices to help Burkhardt out in several instances.

Justice Anthony Kennedy questioned whether the statements were being offered as testimonial evidence or to prove Giles’ state of mind – a crucial issue under the Crawford analysis.

“[It seems] to me that this is responsive to his defense” of self defense, Kennedy said. “And you say: ‘Well, it’s his state of mind, and her testimony was general.’ I think it does go to his state of mind.”

Before Burkhardt could respond, Scalia did.

“I’m not following you,” he said. “Is there an exception to the hearsay rule so long as the hearsay is brought in [during] rebuttal?”

“Not to my knowledge,” Burkhardt answered.

Justice Stephen Breyer turned to 17th and 18th century common law to determine what the purpose of the Confrontation Clause was, noting that testimony by wives, children, atheists and convicted felons was not admitted.

“So now are we supposed to incorporate all of these things into the Confrontation Clause?” Breyer asked.
“Do any of them have anything to do with the Confrontation Clause?” Scalia interjected.

“No,” Burkhardt said.

“It doesn’t have to do with the Confrontation Clause that you couldn’t cross-examine a person who didn’t understand the meaning of the oath?” Breyer persisted.

“The Confrontation Clause sets forth a basic policy, which is that we are to have live testimony in court,” Burkhardt said. “We have to have witnesses available in court.”

Later, Kennedy tried to steer the conversation back to Breyer’s point.

“I think what Justice Breyer’s line of questioning points out is that there were other provisions of the evidence rule followed in England which would not allow the testimony to come in, in the first place,” Kennedy said. “But because of the restrictions he points to, there was never the occasion for the common law to explore the boundaries of the forfeiture exception in the confrontation context.”

Before Burkhardt could answer, Scalia interjected again.

“And besides which, the question that Justice Breyer was asking was already answered in Crawford, wasn’t it?” he asked.

“Yes, it was,” Burkhardt said.

“A case from which he dissented,” Scalia said, referring to Breyer.

“That is right,” Burkhardt added.

Later Breyer corrected Scalia.

“I joined Crawford, and Justice Scalia would like to kick me off the boat, which I’m rapidly leaving in any event,” Breyer said, drawing laughter from the audience.

Has your case been granted cert by the Supreme Court? Well, congrats — but before you write a word of your brief or prep for oral argument, you’d better check one website that will help you out more than unshakable legal precedent on your side.

Tony Mauro at Legal Times found a website featuring video footage of eight of the nine Supreme Court justices very candidly speaking – often griping – about their appellate advocacy pet peeves. And they make for good watching, even if you aren’t preparing to argue before the high court.

The videos are the product of Bryan Garner, legal writing specialist who sat down and videotaped each justice [except for Justice David Souter, who declined to chat on tape] as they candidly gave their views – as well as an insight into their personalities.

We already knew Justice Antonin Scalia can get testy if lawyers don’t prepare their briefs properly. But in his video, he unleashes.

For example, speaking about lawyers who respond to hypotheticals by saying “That’s not my case,” Scalia snipes: “Boy, no. I mark it down. Absolutely, absolutely. I would rule against it if I could, just on [that point.] No, if I had to grade advocates in addition to deciding the case, what you would really get a ‘C’ for is saying that is not this case.”

And don’t make a verb by tacking an “-ize” on the end of a noun if you want to get Justice Anthony Kennedy – a crucial swing voter – on your side. Such a linguistic trick is “like wearing a very ugly cravat,” he said.

Scalia eschews the argument summaries in briefs, but don’t leave them out if you go before the Court. Justice Clarence Thomas loves them. They are “like giving you, you know, what’s going to be on TV next week.”

You can watch all of the videos - we sure will – on the website of LawProse, Inc. DC Dicta will round up a choice sample of quotes from the justices here later on.

Today the Supreme Court ruled that an EEOC intake questionnaire filled out by a FedEx employee constituted a “charge” of discrimination, triggering the agency’s duty to notify the employer and giving the employee, after a period of time, the ability to file a discrimination suit.

If you recall, it was during oral arguments in this case, Federal Express Corp. v. Holowecki, that justice Antonin Scalia expressed his serious dismay at the agency for failing to make clear to claimants what a “charge” is, and admonished the agency to “get its act in order.”

Today, Justice Anthony Kennedy’s opinion did not set a hard and fast rule that such questionnaires always constitute a charge, but rather held that “a filing is deemed a charge if the document reasonably can be construed to request agency action and appropriate relief on the employee’s behalf.”

As to whether the employee in the case met that test, Kennedy wrote: “The agency says it does, and we agree.”

Justice Clarence Thomas, who once helmed the EEOC, did not agree. In a dissent joined by Scalia, Thomas wrote: “Because the standard the Court applies is broader than the ordinary meaning of the term “charge,” and because it is so malleable that it effectively absolves the EEOC of its obligation to administer the ADEA according to discernable standards, I respectfully dissent.”

The opinion can be found on the Court’s website here.