As SCOTUS junkies know, Friday the Justices of the Supreme Court gathered behind closed doors to take that all important first vote on the health care law challenge. But we suspect they also took a little time to wish Justice Samuel Alito a happy birthday weekend.

Alito turned 62 Sunday.

Justice Samuel Alito said he should have recused himself from considering a 2009 Supreme Court case involving federal penalties for televised profanity – a move that would have changed the outcome of the case.

When the Court took up the case FCC v. Fox Television Stations, Alito held about $2,000 worth of stock in Disney, the parent company of ABC, one of the parties in the case, the Associated Press reports. Usually justices who have a financial interest involving any party in a case before the Court will either recuse themselves from considering the case or eliminate the financial interest – usually by selling stock.

But Alito said he failed to do so in that case due to an oversight on the part of aides who routinely check for conflicts before cases are considered by the Court. Alito has since sold the stock, a fact reported on his latest financial disclosures released last week.

“It’s a mistake,” Alito told the AP in an interview.

The mistake had a direct effect on the outcome of the case, in which the Court reversed the 2^nd Circuit and held in a 5-4 vote that the FCC’s policy to ban even an isolated use of an expletive on broadcast television was “entirely rational” under the law that governs federal administrative powers. Had Alito, who voted with the majority, not participated, a 4-4 tie would have resulted in the 2^nd Circuit ruling in the networks’ favor being upheld.

Justice Samuel Alito is not happy with all the ado over the silence of his colleague, Justice Clarence Thomas, during oral arguments.

As readers of this blog know, Thomas has declined to offer a question or comment during oral arguments since Feb. 22, 2006. On the otherwise hot bench, Thomas’ silence is a standout.

But the focus on Thomas’ taciturnity irks Alito, who told an audience at the Bar Association of Metropolitan St. Louis that he was “struck and somewhat displeased” that no one mentions that other famous Supreme Court justices chose not to speak during oral arguments, the St. Louis Beacon reports.

“Justice Thomas’ practice is, as far as I can tell, exactly the same as John Marshall, regarded by many as the greatest justice ever,” Alito said, according to the Associated Press. During Marshall’s tenure from 1801 to 1835, Alito noted, few justices asked questions despite the fact that cases were decided based almost entirely from the oral argument.

DC Dicta does not wish to displease Alito, so next term in the Funniest Justice tally – in which we always note Thomas’ silence – we will try to remember to mention that Marshall was also quiet during arguments.

[Hat tip to our sister publication, Missouri Lawyers Weekly]

Justice Samuel Alito has shown this term that he isn’t afraid to stand alone in dissent. But we are sure the other justices unanimously wish him a happy birthday.

No foolin’ – he turns 61 today.

When the president addresses Congress in his State of the Union speech next month, Justice Stephen Breyer will be front and center.

Despite the controversy stemming from President Obama’s comments during his last annual address, where he criticized a Supreme Court campaign finance ruling and drew a visible reaction from Justice Samuel Alito, Breyer said he believes attending the event is “very important.”

“I will go next year,” Breyer said on “Fox News Sunday,” according to Politico. “I have gone every year. I think it is very, very, very, important, very important for us to show up at that State of the Union – because people today, as you know, are more and more visual. I’d like them to read, but they are visual. And what they see in front of them at that State of the Union is the federal government, every part, the president, the Congress, the Cabinet, military, and I would like them to see the judges too, because federal judges are also part of that government.”

Alito, who famously mouthed the words “not true” and shook his head in response to Obama’s criticism of the Citizens United v. FEC ruling, said he would probably skip the event. Chief Justice John G. Roberts and Justice Antonin Scalia have also expressed discomfort with being in attendance at such a politically charged event, noting that justices are supposed to maintain the appearance of neutrality.

Roberts has said in the past: “The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering, while the court, according to the requirements of protocol, has to sit there expressionless I think is very troubling.”

In his memoir, “Decision Points,” former President George W. Bush seems clearly proud of his Supreme Court legacy – the appointments of Chief Justice John G. Roberts and Justice Samuel Alito. But he’s also still sour over the failed nomination of White House counsel Harriet Miers, blaming Washington conservative elitists for dooming her bid because she wasn’t a “fancy” Ivy Leaguer.

Bush also reveals how close he came to nominating two different people to fill the vacancies that emerged during his administration: Judges Priscilla Owen and Mike Luttig.

Roberts was initially nominated to replace Justice Sandra Day O’Connor, who had announced her retirement. But after Chief Justice William Rehnquist died about six weeks later, Bush nominated Roberts for the chief justice position and renewed his search for a replacement for O’Connor. Be famously selected White House counsel Harriet Miers.

Miers’ tumultuous bid for the Supreme Court ended three weeks later after reports of growing criticism of her lack of judicial experience. But Bush blames conservatives, including Ann Coulter, for torpedoing Miers’ bid because the Southern Methodist University alum was more hoi polloi than Harvard.

“It seemed to me that there was another argument against Harriet, one that went largely unspoken: How could I name someone who did not run in elite legal circles?” Bush wrote, according to the Dallas Morning News. “Harriet had not gone to an Ivy League law school. Her personal style compounded the doubts. She is not glib. She is not fancy. She thinks hard before she speaks – a trait so rare in Washington that it is mistaken for intellectual slowness. As one conservative critic (Coulter) condescendingly put it, ‘However nice, helpful, prompt and tidy she is, Harriet Miers isn’t qualified to play a Supreme Court justice on “The West Wing,” let alone to be a real one.’”

Bush said his biggest regret was putting his friend Miers through the experience at all.

“While I know Harriet would have made a fine justice, I didn’t think enough about how the selection would be perceived by others,” Mr. Bush writes. “I put my friend in an impossible situation. If I had to do it over again, I would not have thrown Harriet to the wolves of Washington.”

Bush also revealed that he also seriously considered nominating Owen instead of Miers, but feared that Democrats may filibuster Owens’ bid, CBS News’ Jan Crawford reports.

Wanting an easier confirmation, he turned to Miers instead.

After Miers’ withdrawal, Bush nominated Alito. During a visit by Alito and his family to the White House after his confirmation, Bush said to him: “Sam, you ought to thank Harriet Miers for making this possible.” Alito responded: “Mr. President, you’re exactly right.”

Bush also reveals that Vice President Dick Cheney and Attorney General Alberto Gonzales didn’t initially back Roberts. Instead they preferred Luttig.

He also was keenly aware of his father’s disappointment in his pawn Supreme Court pick: Justice David Souter. Souter had “evolved into a different kind of judge than he expected,” Bush wrote.

Justice Stephen Breyer’s media blitz in promotion of his new book took him to CNN’s “Larry King Live” last night, were he talked about everything from his relationship with the other justices to his dismay at the fact that few Americans can name three Supreme Court justices, yet most can name all Three Stooges.

King asked Breyer, whose views often differ sharply from those of benchmates like Justice Antonin Scalia – with whom Breyer often spars during oral arguments – if jurists ever carry grudges outside the courthouse.

“No. Because you make an effort,” said Breyer, who is promoting his book “Making Our Democracy Work: A Judge’s View.”

Breyer said the justices don’t take their disagreements personally because they “understand that the job of the Court is to make decisions” and that “harmful personal relationships will hurt the Court.”

On the subject of the president’s State of the Union Address, although several of his colleagues – including Chief Justice John G. Roberts, Jr., Scalia and Justice Clarence Thomas – have expressed unease about being present in such a politicized atmosphere, Breyer said he thinks it’s important for him to attend.

“I think it is important for people to see – that is [all three branches of] the government,” Breyer said. “I will go.”

He demurred when asked by King whether it was appropriate for Justice Samuel Alito to visibly show his disagreement with the President Obama’s remarks about the Court’s ruling in a case dealing with campaign finance law earlier this year.

“What people say or don’t say when they are in that room or out of that room is their affair,” Breyer said.

King asked Breyer how he felt about having three women on the nation’s highest court.

“How do I feel? Fine,” Breyer said.”Does it change things? Yes. How? Probably for the better.”

When asked what the most surprising thing about being a Supreme Court justice was, Breyer responded: “It’s more work than I thought!”

“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)

It seems like no-one is getting along here in Washington. The drama demonstrated between members of Congress, the Supreme Court and the White House shows no signs of abating.

Before lawmakers and White House officials went on the Sunday talk shows to blast each other, President Barack Obama himself tussled with GOP lawmakers in a rare, face-to-face televised confrontation.

President Obama had been invited to a Republican gathering in Baltimore in an effort to show that both parties were ready to cooperate. But, the Associated Press reports, it didn’t turn out that way. Instead, Obama and GOP members including House Republican leader John Boehner exchanged point-by-point barbs with one another.

Meanwhile, Senate Democrats are still steaming over Justice Samuel Alito’s visible dismay during President Barack Obama’s State of the Union Address.

Sen. Dick Durbin of Illinois said Alito’s behavior “crossed the line,” and accused Alito and Chief Justice John G. Roberts, Jr. of misleading the Senate during their confirmation hearings.

“You bet they misled,” Durbin told Politico, saying the decision in Citizens United v. FEC contradicted the justices promise to uphold precedent. The ruling overturned a 2003 decision with upheld portions of the McCain-Feingold campaign finance law that Citizens United struck down.

Sen. Dianne Feinstein accused Roberts of judicial activism, telling Politico: “He’s not somebody who just measures balls and strikes. It’s been the most activist court that I’ve seen in my 17 years in the committee.”

But Senate Minority Whip Jon Kyl disagreed. “I really believe that an injustice was done to the First Amendment and political speech in the earlier decision,” Kyl said. “I don’t think that’s activism.”

In other news:

Budget day! Obama releases his $3.8 trillion budget today. (Washington Post)

Feds issue Chinese drywall guidance: A group of federal agencies has issued guidelines designed to help homeowners identify potentially problematic drywall in their homes. (Lawyers USA)

Why Briscoe went bust: It looked like a potential blockbuster. But the forensic lab testimony case that started out with a roar ended Monday with a whimper. So what happened? (Lawyers USA)

Taking some heat off corporations? The U.S. Sentencing Commission has proposed reducing the criminal penalties corporations may face for their employees’ actions. (WSJ’s Law Blog)

As some political and legal pundits spend the morning debating whether it was proper for President Barack Obama to call out the Supreme Court during his State of the Union address last night, others are pondering whether it was fitting for Justice Samuel Alito to make his disapproval of Obama’s comments visibly apparent.

But Vice President Joe Biden took to the airways this morning to defend the president’s remarks about the ruling in Citizens United v. FEC, calling the ruling, which removed limits on corporate spending in federal election campaigns, “the last thing we need.”

“The president didn’t question the integrity of the court. He questioned the judgment of it,” Biden said on “Good Morning America” this morning, according to the AP. “A lot of these multinational corporations are owned as much by foreign interests as they are by domestic interests.”

“I think it’s an outrageous decision,” Biden said later. “Not outrageous in the fact that these guys are bad guys, but outrageous in the way you read the Constitution [to allow] excessive amounts of money be able to influence the outcome of elections.”

He echoed Obama’s call for a congressional remedy. “I think it was dead wrong and we have to correct it,” said Biden.