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Three justices skip State of the Union

Three years ago, Justice Samuel A. Alito Jr. famously shook his head and mouthed the words “not true” during President Barack Obama’s State of the Union address in response to Obama’s admonition of the justice’s decision in Citizens United. And Alito has not since been seen in the House chamber during the president’s annual address.

Alito was one of three justices to skip the event last night: Justices Antonin G. Scalia and Clarence Thomas were absent as well.

Sotomayor thought Obama was ‘crazy’ to nominate her

Continuing to make the media rounds to promote her memoir, Justice Sonia M. Sotomayor told Oprah Winfrey that she was shocked to ever be nominated to the Supreme Court.

“I thought he was crazy,” Sotomayor said of President Barack Obama in an interview with Winfrey for O Magazine. “No, seriously—I am not a betting woman, but I kept telling my friends, ‘He’s never gonna pick me.’ Not in a million years. I’m very rational, and I’m another New Yorker—at the time there were a few others—and I’d had a very contentious nomination to the Court of Appeals for the Second Circuit. I couldn’t figure out why he’d elect to go into a battle over me. And so I was in total disbelief when I was called that day.”

Scalia’s ‘weird hat’ steals show at inauguration

Four years ago, singer Aretha Franklin’s hat was a surprise star at President Barack Obama’s inauguration ceremony. But this year, the media and Twitterverse were mesmerized by another headpiece: the skullcap of Justice Antonin G. Scalia.

The peaked hat was lampooned on the internet. The New York Daily News described it as “a velvety cap that looked like a beret on steroids.” Folks on Twitter called it everything from a “Vatican Palace Guard’s hat” to a headpiece of a “mad medieval monk.” Even Sen. Claire McCaskill got in on the ribbing, Tweeting pictures (like the one above) of Scalia with snarky comments and the hashtag #Scaliaweirdhat. (To be fair, the senator also goofed on “Breyer’s scaliawannabe hat, Kennedy’s stocking cap” and “Alito in the shades.”)

But it turns out that Scalia’s outfit choice was grounded in tradition. The National Law Journal’s Tony Mauro notes that the black cornered skullcaps have been worn by justices at cold-weather outdoor events for decades, though they’ve fallen in and out of favor over the years. Scalia apparently takes his history quite seriously: law professor Kevin C. Walsh explains that the item Scalia wore yesterday was a custom-made replica of the hat depicted in a famous portrait of St. Thomas More, and was a gift to the justice from the St. Thomas More Society of Richmond.

Roberts gives the oath again – and again and again…

By Monday afternoon, Chief Justice John G. Roberts Jr. should know the presidential oath of office by heart; he will have recited it enough.

Four times, to be exact – although he famously twisted some words the first time he swore President Barack Obama into office, prompting a redo the next day. Roberts officially swears in Obama for his second term in a private ceremony on Sunday, and will repeat the process the next day during the public inauguration ceremony at the Capitol building.

No Supreme Court fete for Obama

There will be plenty of hubbub during the upcoming inauguration season that will kick off President Barack Obama’s second term. But don’t expect a reception at the U.S. Supreme Court; there will be none.

Unlike in 2008, when Chief Justice John G. Roberts Jr. and the other justices welcomed Obama and Vice President Joe Biden at reception at the Court, no such event will be held in January, the Wall Street Journal’s Law Blog reports.

Not every election results in a Supreme Court fete. Reelected presidents like Obama don’t usually get a second Court welcome. But not all newly-elected president’s do either – just ask former President George W. Bush, who didn’t get one at all (perhaps the justices were wary to do so for appearances sake after the Bush v. Gore decision).

Obama: Health care reform may need to be revisited

At a campaign event, President Barack Obama told supporters that the issue of health care reform may have to be revisited in his second term.

As the U.S. Supreme Court considers the constitutionality of the law’s individual mandate as well as other aspects of the statute, Obama’s comments seemed to indicate that the White House is making contingency plans should the Court strike parts or all of the law down with it rules later this month.

More here from Bloomberg News. Visit Lawyers USA‘s Supreme Court Report for more Supreme Court-related news.

Did Scalia hint at a health care law KO?

As several of the justices of the Supreme Court spent the off week attending events around the country, members of the media asked them obligatory questions about the pending challenge to the federal health care law, which was heard last week.

Justices usually demur when faced with such requests, refusing to make out-of-court statements on pending cases and sticking to other subjects, like antelope hunting.

But Justice Antonin Scalia took an interesting approach to not answering a question about President Barack Obama’s much discussed “judicial activism” comment, according to the AP (via the WSJ’s Law Blog):

“We don’t respond to criticism,” Scalia said in comments to students at the University of Southern Mississippi. “Judges use what’s known as the rope-a-dope trick. It’s judicial tradition.”

What is a “rope-a-dope,” you ask? Law Blog explains that it’s a boxing move used by Muhammad Ali, whereby a boxer leans against the ropes as his opponent pummels away. The shots that are not blocked are absorbed by the rope’s elasticity. Once the opponent is tired, the boxer has conserved enough energy to make a knockout punch.

So did Scalia suggest that he’d take Obama’s shots for now, only to come back with a ruling that knocks out the health care law? Only nine people know for sure – the justices took their initial vote on the case during a closed-door session last Friday.

O’Connor’s got jokes

When retired Justice Sandra Day O’Connor cracks political jokes, people laugh.

That was the case last weekend at an exclusive black-tie gathering of Washington’s elite when O’Connor drew the biggest laugh of the night, according to attendees.

At the Alfalfa Club dinner, which drew President Barack Obama, Chief Justice John G. Roberts, Jr. and Justice Anthony Kennedy among others, O’Connor quipped about GOP presidential candidates Mitt Romney and Newt Gingrich, noting: “one is a practicing polygamist, and he’s not even the Mormon,” the Huffington Post reports.

Brewer and Obama bicker publicly as immigration battle looms

We already knew the pending Supreme Court showdown between Arizona Gov. Jan Brewer and the Obama administration over the controversial Arizona immigration law SB 1070 would be explosive. But yesterday we got a glimpse of the bubbling animosity between the parties.

As the Court prepares to hear the debate over whether the state statute directing police to check the immigration status of detainees believed to be in the country illegally is preempted by federal immigration law, Brewer and President Obama had a heated exchange yesterday.

After Brewer greeted Obama as he stepped off Air Force One outside of Phoenix, she handed him a letter and then the two engaged in a heated discussion. According to the Associated Press, both Brewer and Obama appeared to be smiling, but speaking over each other for several moments. At one point, Brewer waved her finger in the president’s face.

Asked about the exchange afterward, Brewer said: “He was a little disturbed about my book.”

In her recent book “Scorpions for Breakfast,” Brewer described a meeting she had with Obama at the White House to discuss immigration. “I felt a little bit like I was being lectured to, and I was a little kid in a classroom, if you will, and he was this wise professor and I was this little kid, and this little kid knows what the problem is and I felt minimized to say the least,” Brewer said.

According to Brewer, Obama objected to the book’s implication that she was mistreated at the White House

“I said to him, you know, I have always respected the office of the president and that the book is what the book is,” Brewer said. “I said that I was sorry that he felt that way. Anyway, we’re glad he’s here, and we’ll regroup.”

Brewer said the letter she handed Obama was an invitation to have lunch and visit the border.

Here’s hoping oral arguments at the Supreme Court in April are as exciting.

The looming fight over recess

Washington is looking a bit like a schoolyard, because there is about to be a big fight over recess.

In this case, it’s a battle over the constitutional definition of recess that is poised to head to the courts. On one side, President Barack Obama, who yesterday made four controversial recess appointments despite some Republican lawmakers’ efforts to stop him by gaveling in and out of pro forma sessions over the holiday break. (It’s a move Democrats used to thwart President George W. Bush a few years back as well).

On the other side, Senate Republicans and business groups who say that Obama lacked the congressional authority to make the appointments.

The agencies in question – the Consumer Financial Protection Agency and the National Labor Relations Board – have been political flashpoints between the White House and Congress since Obama took office. Senate Republicans, angered over the agencies’ power and actions, made no bones about their willingness to block the nomination of anyone to either agency until changes were made.

All these factors make a potential court battle over the president’s recess appointment a juicy and almost certain proposition. But who will win?

That is unclear – as is the Constitution, which doesn’t define recess or specify how long one has to be for the recess appointment power to take effect. The White House said the president acted on the advice of counsel, essentially calling the pro forma sessions shams.

“The President’s counsel has determined that the Senate has been in recess for weeks and will be in recess for weeks,” said White House Press Secretary Jay Carney yesterday. “The Constitution guarantees the President the right, provides the President the right to make appointments during Senate recesses, and the President will use that authority to make this appointment.”

Senate Minority Leader Mitch McConnell had a different view. “This recess appointment represents a sharp departure from a long-standing precedent that has limited the President to recess appointments only when the Senate is in a recess of 10 days or longer,” McConnell said in a statement. “Breaking from this precedent lands this appointee in uncertain legal territory, threatens the confirmation process and fundamentally endangers the Congress’s role in providing a check on the excesses of the executive branch.”

The next stop in the fight will undoubtedly be a courtroom.

Addendum: This statement just landed in DC Dicta’s inbox, and reminds us why we’ll miss Rep. Barney Frank, D-Mass: “Republican’s complaints about the President’s decision to make this recess appointment are equivalent to objections leveled by arsonists at people who use the fire door to escape a burning building.”

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