“If the Roberts court continues on the course suggested by its first five years, it is likely to allow a greater role for religion in public life, to permit more participation by unions and corporations in elections and to elaborate further on the scope of the Second Amendment’s right to bear arms. Abortion rights are likely to be curtailed, as are affirmative action and protections for people accused of crimes.”

That prediction came in a New York Times analysis by Adam Liptak of Chief Justice John G. Roberts, Jr.’s Supreme Court, which, Liptak writes, has become “the most conservative one in living memory.”

And that is something that will not change for quite some time, given the Court’s makeup. The impact on the Court of President Barack Obama’s two picks so far, Justice Sonia Sotomayor and likely-to-be-confirmed nominee Elena Kagan, is slight, given the fact that they were named to replace justices with similar ideological leanings.

In fact, the article states, the big shift occurred five years ago with one key appointment by President George W. Bush: Justice Samuel Alito, Jr. taking the seat of retired Justice Sandra Day O’Connor.

In other Beltway-related legal news to kick off your week:

Rangel’s failed settlement: The announcement that New York Rep. Charlie Rangel would face a congressional trial over charges of ethics violations came after settlement negotiations between Rangel and the House ethics committee broke down. (New York Times)

Friend in dissent: Right up until the end of his tenure, Justice John Paul Stevens did what he had for decades - sparred with Justice Antonin Scalia in written opinions. (Washington Post)

Right of first recusal: Kagan will have to sit out a dozen or more cases news term, due to her involvement in the cases as solicitor general. But will she have to recuse herself when the healthcare law lands before the Court? (NYT)

Nursing guidance: The U.S. Department of Labor has issued a fact sheet outlining employers’ obligation to give adequate break time to nursing mothers under the health care reform law that went into effect earlier this year. (Lawyers USA)

Justice Sonia Sotomayor has been on the Supreme Court bench for less than a year, but she already knows she can ask for help from her follow justices when she needs it.

While announcing the decision in the civil procedure case Krupski v. Costa Crociere yesterday morning, Sotomayor had trouble with the pronunciation of the defendant company’s Italian name.

“I’m going to ask my colleague Justice Scalia to say it right,” Sotomayor said, according to the Associated Press.

Scalia, whose father was a professor of Romance languages at Brooklyn College, was happy to help.

“Kroo-chee-ER-ay,” said the Italian American jurist.

Sotomayor, whose family hails from Puerto Rico, was grateful for the assist.

“Kroo-chee-ER-ay,” the Bronx-born Sotomayor repeated, adding, “I want to put the Spanish accent on it.”

The Supreme Court oral argument season for October Term 2009 has ended. That means it’s time to name this term’s Funniest Justice - the jurist who earned the most laughs this term.

And, as those of you who have been following the tally all year know, there is no need for a drum roll. This one was a blowout:

Earning 77 laughs during the oral argument season - nearly half the total number of laughs earned by the justices - Justice Antonin Scalia is the winner and three-peat champion. (It may be more than a three-peat, but DC Dicta has only been around for three years to count).

Scalia demonstrated why he dominated this contest during yesterday’s oral arguments in Doe v. Reed, a case considering whether the release of petition signers’ identities is constitutional.

“What about just wanting to know their names so you can criticize them?” Scalia asked petitioners’ attorney James Bopp, earning the first of his four laughs that day. “Is that such a bad thing for democracy?”

“Well, what is bad is not the criticism, it’s the government requiring you to disclose your identity and belief,” Bopp replied.

“But part of the reason is so you can be out there and be responsible for the positions you have taken (so) people can criticize you for the position you have taken,” Scalia said.

“Then why don’t they require both sides if that was the purpose?” Bopp asked.

“What do you mean, ‘both sides’? The other side hasn’t signed anything,” Scalia said, drawing more laughter. “When they sign something, they will be out there for public criticism as well.”

“Okay,” Bopp said. “But this is a one-way street.”

“Oh, this is (so) touchy-feely,” Scalia said to more laughs. “Oh, so sensitive.”

Note that Justice Clarence Thomas has reached a milestone as well - he has completed his fourth full Supreme Court term without offering a single question or comment during oral arguments.

Here is the final tally:

Justice Antonin Scalia: 77

Justice Stephen Breyer: 44

Chief Justice John G. Roberts, Jr.: 26

Justice Anthony Kennedy: 8

Justice Samuel Alito: 6

Justice John Paul Stevens: 3

Justice Ruth Bader Ginsburg: 1

Justice Sonia Sotomayor: 1

Justice Clarence Thomas: 0 (Thomas has maintained oral argument silence since Feb. 22, 2006)

Are the justices of the Supreme Court drunk on fame? Have they become “celebrities in robes?” Do they need a cure for their “unnecessary and unhealthy flamboyance?”

That is what two George Mason University School of Law professors believe. And they have a cure, they say.

In a paper set to be published in the George Washington Law Review, Profs. Craig S. Lerner and Nelson Lund lament the fact that the justices write self-indulgent opinions and dissents while on the job, then hobnob with celebrities like J.Lo and mambo in public (you listening, Justice Sotomayor?) or serve as Grand Marshall of Manhattan’s Columbus Day Parade and then light a cigarette for Sarah Jessica Parker (hear that, Justice Scalia?).

To put a stop to all this attention seeking, the professors propose, among other things, that the Court issue unsigned opinions.

“Truly unpretentious judicial servants should have no need to put their personal stamp on the law, and the practice of doing so has contributed to unnecessary and unhealthy flamboyance in the Court’s work,” the professors write. That would mean no more crime novel-themed opinions. (Sorry Mr. Chief Justice!)

Other suggestions the professors have for keeping a check on the bigness of the justices’ britches include barring law clerks from drafting opinions and requiring justices to ride the circuits on the lower courts.

HT: ABA Journal

Solicitor General Elena Kagan, considered to be the frontrunner on President Obama’s list to replace retiring Justice John Paul Stevens, may have only argued her first Supreme Court case last year.

But since that time, she has wasted no opportunity to show her funny side - which makes DC Dicta wonder: Could she be the next Funniest Justice?

Those of you keeping watch of our ongoing tally know that the title currently rests comfortably in the hands of Justice Antonin Scalia, who has handily earned the most laughs of any justices for the past two terms, and is set to three-peat when oral arguments for this term wrap up at the end of the month.

But in her appearances before the Court, Kagan has shown that she too has a funny bone.

After walking up the podium to argue the case Holder v. Humanitarian Law Project in February, Kagan - whose stature is much shorter than other attorneys who regularly argue before the justices - began cranking the lever to lower the lectern.

“With your permission, Mr. Chief Justice. This may take some time,” Kagan said, drawing laughter from the audience as well as the justices.

During arguments last month in the case Robertson v. U.S., Justice Scalia asked Kagan if the Court whether the prosecutor in the case was acting as an agent of the court or the city.

“Who would you like the person be an agent of, Justice Scalia?” Kagan asked.

As the crowd laughed, Scalia answered: “Well, I’m not making the argument.”

“Usually we have questions the other way,” Chief Justice John G. Roberts, Jr. said.

“I apologize,” Kagan answered, with a smile.

In January, during oral arguments in U.S. v. Comstock, Kagan started to refer to Scalia as “Chief Justice.”

“Excuse me, Justice Scalia,” Kagan said, “I didn’t mean to promote you quite so quickly.”

As the crow laughed, Roberts said: “Thanks for thinking it was a promotion!”

Lawyers have a constitutional obligation to inform their clients that a criminal plea could result in deportation, the U.S. Supreme Court held today.

In his opinion in the case Padilla v. Kentucky, Justice John Paul Stevens held that an attorney who told his client not to worry about the consequences of a guilty plea - and  whose client was later subject to a deportation order because of his conviction - gave constitutionally deficient representation.

“It is our responsibility under the Constitution to ensure that no criminal defendant - whether a citizen or not - is left to the ‘mercies of incompetent counsel,’” Stevens wrote. “To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation.”

The 7-2 ruling was assailed in a dissent by Justice Antonin Scalia, who accused the majority of ignoring the text of the Sixth Amendment in order to achieve the result it wanted.

“Constitution [is] not an all-purpose tool for judicial construction of a perfect world; and when we ignore the text in order to make it that, we often find ourselves swinging a sledge where a tack hammer is needed,” Scalia wrote.

In the other opinion handed down this morning, Shady Grove Orthopedic Associates v. Allstate Insurance, the Court held that a New York state law barring class actions for “penalty” fees cannot prevent a diversity jurisdiction class action claim because the state rule conflicts with Federal Rule of Civil Procedure 23. The plurality opinion, authored by Justice Antonin Scalia, found that the conflict between state and federal rules must be resolved in favor of the federal rule, which allows such claims.

More on these cases today and in the days to come on Lawyers USA online.

We know that Justice Antonin Scalia is a singer, and that that he usually does the honors of crooning “Happy Birthday” during celebrations for his colleagues. But if you happen to see him today, you can do the same for him.

Justice Scalia was born on this day 74 years ago.

During oral arguments Tuesday in Holder v. Humanitarian Law Project, a case that challenges a federal law making it unlawful to provide “material support” to terrorist groups:

“Under the definition of this statute, teaching these members to play the harmonica would be unlawful,” Justice Sonia Sotomayor said to Solicitor General Elena Kagan.

“Well, maybe playing a harmonica is a specialized activity,” Kagan said. “I think the first thing I would say is there are not a whole lot of people going around trying to teach Al-Qaeda how to play harmonicas.”

“Well, Mohamed Atta and his harmonica quartet might tour the country and make a lot of money. Right?” deadpanned Justice Antonin Scalia. And laughter filled the courtroom.

Scalia is making this term’s Funniest Justice contest a runaway race at this point, earning five additional laughs this week and bringing his total chuckle count to 50.

Justice Stephen Breyer earned two laughs, and Chief Justice John G. Roberts, Jr. and Justice Anthony Kennedy each added one laugh to the totals.

Here are the standings as of this week:

Justice Antonin Scalia: 50

Justice Stephen Breyer: 28

Chief Justice John G. Roberts, Jr.: 18

Justice Anthony Kennedy: 7

Justice Samuel Alito: 3

Justice John Paul Stevens: 2

Justice Clarence Thomas: 0 (The oral argument silence that began after Feb. 22, 2006 continues)

Justice Ruth Bader Ginsburg: 0

Justice Sonia Sotomayor: 0 (Despite the assist, the laugh goes to Scalia)

Say you are a screenwriter, and you are writing a story about the attempt by a state to secede and become a part of Canada, leading to a court battle that goes all the way to the U. S. Supreme Court. Who might you consult to find out the feasibility of such a storyline?

Well, back in 2006, one screenwriter sought the ultimate legal technical advisors: the justices of the U.S. Supreme Court. He wrote a letter to each sitting justice, as well as to retired Justice Sandra Day O’Connor, asking their thoughts on the story.

The screenwriter’s brother - who happens to be New York Personal Injury Law Blog author Eric Turkewitz - thought the request would end up in the wastebasket of the jurists. But surprisingly, one justice responded.

“I am afraid I cannot be of much help with your problem, principally because I cannot imagine that such a question could ever reach the Supreme Court,” replied Justice Antonin Scalia in a letter written on Supreme Court letterhead. “To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, ‘one Nation, indivisible.’)”

DC Dicta wonders if Scalia left out the “under God” part to avoid a whole different constitutional discussion, but we digress…

“Secondly,” Scalia continued, “I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.

“I am sure that poetic license can overcome all that — but you do not need legal advice for that. Good luck with your screenplay,” Scalia concluded.

Turkewitz noted that the letter is evidence that at least one Supreme Court justice firmly believes any notion among members of the Tea Party movement that secession is an option is simply wishful thinking.

We know that Justice Antonin Scalia won’t tolerate made-up words during oral arguments. But when a genuine 50-cent vocabulary word comes up, Scalia really enjoys it.

Yesterday during oral arguments in the case Briscoe v. Virginia, Richard D. Friedman, a professor at University of Michigan Law School, dropped the phrase “entirely orthogonal” into his argument.

“I’m sorry - entirely what?” asked Chief Justice John G. Roberts, Jr.

“Orthogonal,” Friedman repeated before rattling off synonyms. “Right Angle. Unrelated. Irrelevant.”

Scalia jumped in. “What was that adjective? I liked that,” Scalia said.

“Orthogonal,” Friedman said.

“Orthogonal,” Roberts repeated.

“Orthogonal, ooh!” Scalia said with delight, as the other justices and the audience laughed.

“I knew this case presented us a problem,” said Justice Antony Kennedy, spurring more laughter.

“I think we should use that in the opinion!” Scalia said. And then, as if to avoid tipping his hand in the case, he added: “Or in the dissent.”

More on the oral arguments in Briscoe here on Lawyers USA.