The rat has long been a symbolic figure in union-management battles. But the National Labor Relations Board has cleared the way for union rats to become much bigger players in labor disputes, reports our sister publication The Daily Record.

The Board ruled that a union had the right to use a 16-foot inflatable rat – a common protest prop used by union members – outside the premises of a company’s supplier or other third party business. While threatening or coercive conduct by union members against third parties is barred, a big inflatable rodent was unlikely to make anyone feel frightened or bullied, the Board reasoned.

The “rat balloon itself was symbolic speech,” Chairman Wilma B. Liebman and members Craig Becker and Mark Pearce said of the inflatable creature set up outside a hospital construction project. “It certainly drew attention to the Union’s grievance and cast aspersions on [the contractor], but we perceive nothing in the location, size or features of the balloon that were likely to frighten those entering the hospital, disturb patients or their families, or otherwise interfere with the business of the hospital.”

The U.S. Supreme Court added just one case to its docket yesterday: Ashcroft v. al-Kidd, an appeal by former Attorney General John Ashcroft, will determine whether Ashcroft is immune from a civil suit by a U.S. citizen who claims he was illegally detained as a terrorist.

As is often the case when the Court grants only one cert. petition, more headlines were made over what the Court did not do yesterday.

For example, the Court declined to take up Pitre v. Cain, the appeal of a prisoner who claimed he was punished with hard labor in 100-degree heat for refusing to take his HIV medication. A district court rejected the prisoner’s Eighth Amendment claim, reasoning that he had brought the matter on himself for not taking the drugs.

But Justice Sonia Sotomayor, in a written dissent, opposed the denial of cert., explaining why she believes the 5^th Circuit’s ruling affirming the dismissal of the prisoner’s complaint was wrong.

“The Fifth Circuit’s error in requiring Pitre to produce ‘evidence’ in support of his allegations before a responsive pleading was filed, in and of itself, is sufficient reason to reverse the judgment below,” Sotomayor wrote, citing Bell Atlantic Corp. v. Twombly.

“More fundamentally, however, in focusing on Pitre’s own contribution to his health problems, the courts appear to have misunderstood the nature of Pitre’s Eighth Amendment claim,” Sotomayor wrote. “His pro se complaint and attachments…allege not that respondents denied him medical care but that they punished him for refusing to take medication, or attempted to coerce him to take medication, by subjecting him to hard labor that they knew exceeded his medical limitations.”

She said the prisoner’s complaint was “more than sufficient to state a claim of deliberate indifference” under the Eighth Amendment’s cruel and unusual punishment prohibition.

The Court also, without comment, took a pass on Simmons v. Galvin, a challenge brought by a Massachusetts prisoner claiming the commonwealth’s law prohibiting prisoners from voting violated the Voting Rights Act because a disproportionate number of inmates are black or Hispanic.

The Court also declined to take up a request by the Reporters Committee for Freedom of the Press to unseal filings in the case In Re Grand Jury Proceedings. That case involves an investigation of a doctor accused of unlawfully prescribing pain medication.

A petition by a Texas death row inmate was also rejected by the Court yesterday. The inmate’s attorney argued in Hall v. Thaler that the man should not be executed because he is mentally impaired.

“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)

A member of the FDA advisory panel who cast a vote in favor of keeping the diabetes drug Avandia on the market with no restrictions was paid more than $15,000 by the maker of the drug as an adviser. Meanwhile, another panelist who voted to pull the drug from the market has worked as a consultant for the company that makes a rival diabetes drug.

David Capuzzi was paid $14,750 by GlaxoSmithKline to promote the company’s heart drug Lovaza, according to a report by the Wall Street Journal. He was also paid $750 by the company to serve as a consultant on an advisory board on Avandia, the Journal reports. Capuzzi said that he disclosed his relationship with the company to the FDA.

Capuzzi was part of a 33-member advisory panel which ultimately voted last week in favor of urging the FDA to impose stronger warnings on Avandia labeling and possible restrictions to its sale based on medical reports linking the drug to increased risk of heart attack and other health problems.

A significant number of panelists voted in favor of removing the controversial diabetes drug Avandia from the market altogether. According to another Journal report, one panelist voting in favor if recalling the drug – Abraham Thomas – disclosed yesterday that he has served as a paid speaker for the maker of a rival diabetes drug Actos. Thomas said he also disclose the payments to the FDA.

The FDA issued a statement saying they would examine any relationship between panel members and drug companies internally. “If any member of the advisory committee is found to have a conflict of interest, FDA can consider that information as we make our final decision on the status of the drug,” the statement said.

If you created a new blend of a certain medicinal herb, and you wanted to trademark a name like “Jack and Jackie’s Wacky Tobacky” or “McDuff’s Puff Stuff,” you may have thought you were in luck.

After all, in April the U.S. Patent and Trademark Office quietly created a brand new trademark category: “Processed plant matter for medicinal purposes, namely medical marijuana.” In other words, marijuana growers could get government protection for their herbal product!

That is, until last week. After a Wall Street Journal reporter began asking the patent office about the new trademark category, federal officials said the new designation was about to go up in smoke – per the advice of the office’s lawyers.

“It raises examination issues,” PTO spokesman Peter Pappas told the Journal. “It was a mistake and we have removed it.”

Removing the federal approval of pot products was probably a wise move, considering that selling marijuana – even for medicinal purposes – remains a federal crime, even though some states allow it. Although Attorney General Eric Holder signaled a change in federal policy back in March by announcing the Justice Department will no longer go after producers of medical marijuana, there has been no law change yet.

Pot producers can still file applications for trademarks without the special chronic category. But, patent officials said a pot trademark has never been granted, and the chances of one being granted in the future are bleak. So don’t hold your breath. Well, at least not over this.

CNN is reporting that Obama administration sources have confirmed that the Justice Department will fill a lawsuit today over Arizona’s controversial immigration law.

The suit will allege that the law is preempted by federal immigration law.

The Washington Post reports that some legal experts believe that the argument of preemption – a doctrine that has been well-established and upheld by the Supreme Court – should very well persuade the federal district court judge that the state law, which allows police to question anyone if they have a “reasonable suspicion” that the person is an illegal immigrant, is a violation of the Constitution’s supremacy clause. The law is scheduled to go into effect later this month.

Secretary of State Hillary Rodham Clinton first indicated last month that a lawsuit would be forthcoming, prompting Gov. Jan Brewer, who signed the measure into law in April, to chide federal officials for telling the news media about its plans to sue before telling Arizona state officials.

National Labor Relations Board Chairman Wilma B. Liebman has issued a statement in response to today’s Supreme Court ruling in New Process Steel v. NLRB that the Board lacked authority to act with only two members, as it did for more than two years.

“When the Board went to two members in January 2008, Member [Peter C.] Schaumber and I made a difficult decision in difficult circumstances,” said Chairman Liebman. “In proceeding to issue decisions in nearly 600 cases where we were able to reach agreement, we brought finality to labor disputes and remedies to individuals whose rights under our statute may have been violated.  We believed that our position was legally correct and that it served the public interest in preventing a Board shut-down. We are of course disappointed with the outcome, but we will now do our best to rectify the situation in accordance with the Supreme Court’s decision.”

Last week, during oral arguments at the Supreme Court, Deputy Solicitor General Neal K. Katyal urged the justices to find that the National Labor Relations Board had authority to act and issue opinions with only two members – as it had for more than two years.

The fact that the Senate had held up the confirmation of President Obama’s three nominees to the board – and had in fact blocked one of the candidates, union attorney Craig Becker, with a failed cloture vote – “underscores the general contentious nature of the appointment process with respect to this set of issues,” Katyal told the justices.

“And the recess appointment power doesn’t work why?” asked Chief Justice John G. Roberts, Jr.

Over the weekend Obama showed that the power does indeed work. With the Senate in recess for more than three days, Obama made 15 recess appointments to administration posts – including Becker to the NLRB.

Late last week Republican senators as well as the U.S. Chamber of Commerce urged Obama not the use the recess appointment power for Becker. They argued that Becker represented a campaign promise made by Obama to unions during the election, and that Becker would essentially push to authorize “card check” unionizations in worplaces after legislation that would have done so lost steam in Congress. Much more on the Becker brouhaha here from Lawyers USA.

Meanwhile oral arguments continue today at the Supreme Court. The justices will hear arguments in cases involving double jeopardy and securities law.

In other news:

Predicting Stevens’ replacement: Since no one else is waiting for Justice John Paul Stevens to actually retire before opining about who might replace him, we won’t either. (Lawyers USA)

Gun law ok’d: A a federal court has upheld the gun regulations enacted in the District of Columbia after the Supreme Court’s ruling in D.C. v. Heller. (The BLT Blog)

Money talk: What’s the impact of the latest federal court ruling rejecting a constitutional challenge by the Republican Party to some federal limits on donations to political parties? SCOTUSblog explains. (SCOTUSblog)

Things should be quiet at the U.S. Supreme Court for most of this week. The justices are not set to meet until a private conference this Friday. The break allows Justice Ruth Bader Ginsburg time away from the office to celebrate her birthday. Ginsburg turns 77 today. Oral arguments at the Court resume next week.

Meanwhile, Justice John Paul Stevens told the New Yorker‘s Jeffrey Toobin that he’ll decide within the next month whether this term will be his last on the Court. Speculation about Stevens’ future swirled since last fall when the Justice hired only one law clerk for the 2010 term instead of the customary four. Retired justices traditionally have one clerk while active justices have four.

Stevens told Toobin that his bases are covered should be decide to return.

“Well, I still have my options open,” Stevens said. “When I decided to just hire one clerk, three of my four clerks last year said they’d work for me next year if I wanted them to. So I have my options still. And then I’ll have to decide soon.” See Toobin’s full profile of Stevens here.

And in other justice-related news, an effort by Butler University students to invite Chief Justice John G. Roberts, Jr. to speak at the commencement ceremony on May – where Roberts’ niece will be among the graduating class – was nixed by school officials. The reason? Supreme Court justices are just way too political, officials said.

“We try to steer clear of political divides if possible,” pharmacy school Professor Jeanne VanTyle, president of Butler’s faculty senate, told the Indianapolis Star.

The decision not to allow Roberts, who grew up in Indiana, to speak drew the ire of some students and conservative faculty members.

And in other headlines:

Reid’s wife recovering: Senate Majority Leader Harry Reid’s wife has been released from a Metro D.C. hospital, where she was taken after being seriously injured in a traffic accident last week. (AP)

Open discussion: The Food and Drug Administration is seeking input from the industry it regulates on how the agency can improve its training and education about the regulatory process. (Lawyers USA)

Ginsburg’s with O’Connor: Justice Ginsburg said she believes states should give up the practice of electing judges. Retired Justice Sandra Day O’Connor has been campaigning against judicial elections since leaving the Court in 2006. (The Washington Post)

Behind the plate: Justice Stevens is on a set of baseball cards. He is the catcher on the Supreme Court Sluggers team. (ABA Journal)

Will the SCOTUS-POTUS beef ever end? White House senior adviser David Axelrod defended President Barack Obama’s scathing criticism of the Supreme Court’s recent campaign finance decision during his state of the Union address. (AP)

After a four-week midterm break, the U.S. Supreme Court returned to a flurry of activity.

On Friday both the Obama administration and a group of leading tobacco companies petitioned the Court to review a 2006 racketeering conviction against the companies – and the outcome could cost the tobacco companies billions.

The Department of Justice asked the Court to review the RICO case to allow the trial judge to seek past profits from the industry’s “ill-gotten gains” to the tune of $280 billion. Although the cigarette companies lost the case, the court barred the government from collecting the large monetary award.

On the other side, the tobacco companies petitioned the Court to review and overturn the conviction. The Court is expected to decide whether to take up the case in the upcoming weeks.

Today the justices of the Court return to hear oral arguments in two cases, one asking whether an attorneys’ fee award under the Equal Access to Justice Act is payable to the “prevailing party” or the party’s attorney (Astrue v. Ratliff) and the other considering whether the statute of limitations for an EEOC bias charge begins when an employer announces an alleged discriminatory practice, or when the employer implements it (Lewis v. City of Chicago).

Before arguments start, the Court could announce orders, including cert grants. Stay tuned for updates later on this blog.

Meanwhile,

New ADEA rules: The Employment Opportunity Commission has published new proposed rules clarifying the meaning of “reasonable factors other than age” under the Age Discrimination in Employment Act. (Lawyers USA)

Make safe baby gear – or else: The head of the Consumer Product Safety Commission is warning manufacturers of children’s products such as toys and cribs that failure to respond to complaints quickly and adhere to safety warnings may result in tough penalties, including fines and lawsuits. (Lawyers USA)

Oh, what a feeling: Toyota executives – and their lobbyists – are heading to Washington for congressional hearings over the safety of the company’s vehicles. (The Washington Post)

FDA drug warning: An FDA study, released as part of a Senate investigation, recommend that GlaxoSmithKline’s Avandia, a diabetes medicine, get pulled from the market because it is linked to heart attacks. (The Wall Street Journal)