The comedy duo of Scalia and Breyer may have some competition on the bench when it comes to tag-team humor. Yesterday during oral arguments in Peugh v. U.S., it was the Alito and Sotomayor Show.
“I’m told that [in] the Eastern District of New York now, only 30 percent of the defendants receive within- guidelines sentences,” Justice Samuel A. Alito Jr. said, making the point about the steady increase in sentences outside of federal guidelines since the rules became advisory.
“You’re assuming that’s changed over time,” said Justice Sonia M. Sotomayor, drawing laughs (though not noted in the transcript) from folks in the room who were aware that the New York native was a prosecutor and 2nd Circuit appellate judge before she reached the high court.
Alito, a native New Jerseyan and former 3rd Circuit judge, gently jabbed at his colleague.
“Well, when I was on the court of appeals we thought it was our responsibility to ensure that the district courts were complying with the Sentencing Reform Act,” Alito said. “That might not have been true across the river, but…” More laughs.
Without missing a beat, Sotomayor shot back: “It wasn’t.” Laughter ensued on the bench and in the crowd.
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.
Justice Samuel A. Alito Jr. was the featured speaker at a the Federalist Society’s 30th Anniversary Gala Dinner last night, and according to event attendee and FantasySCOTUS.net founder Josh Blackman, the justice touched on everything from his days as a Yale Law student to his thoughts on the health care challenge.
According to Blackman, Alito said his experience as a student of Constitutional Law professor and counterculturalist Charles Reich was less than stellar, and that he “learned nothing.” “Alito joked that his opponents will seize this story as proof of why he doesn’t understand constitutional law,” Blackman observed.
Touching on last term’s Supreme Court cases, Alito reinforced the notion that the Court isn’t too keen on the idea of GPS devices being placed on everyone’s car, and said that Solicitor General Donald B. Verrilli Jr., in his argument in the health care case, “attempted to land a one-two punch that would have sent federalism to the mat.”
The 9th Circuit conference, held in Maui (which is, indeed, in the 9th Circuit, after all) drew the ire of Sens. Charles Grassley, R-Iowa, and Jeff Sessions, R-Ala., who balked at the meeting’s $1 million price tab and urged Chief Judge Alex Kozinski to call the whole thing off, the Washington Examiner reports.
But in a letter to the lawmakers last week, Kozinski said that it was too late to cancel the event without facing pricey penalties, and because many of the event’s attendees – which included Justice Anthony M. Kennedy and Justice Samuel A. Alito, Jr. – had already purchased nonrefundable tickets.
“In hindsight, had we foreseen the nation’s current fiscal problems, we may have chosen a different site for this year’s conference,” Kozinski wrote to the senators, adding that future conferences will be held in California, closer to where most judges live. More on this weekend’s program from the Atlanta Journal-Constitution.
Retired Justice John Paul Stevens said his former colleagues may be ruing the day the Citizens United v. FEC decision was handed down.
In a speech last night at the University of Arkansas, Stevens said the Supreme Court will soon have to decide whether the decision, which held that the right of corporations, unions and other groups to make unlimited super PAC contributions in election campaigns is protected by the First Amendment, also applies to foreign groups including terrorist organizations.
Stevens said based on the words “not true” famously uttered by Justice Samuel A. Alito, Jr. in response to President Barack Obama’s criticism of the Citizens United decision at the 2010 State of the Union address, “there will not be five votes” to extend Citizens United to foreign entities.
“The court must then explain its abandonment of, or at least qualify reliance upon, the proposition that the identity of the speaker is an impermissible basis for regulating campaign speech,” Stevens said, according to CNN’s Bill Mears. “It will be necessary to explain why the First Amendment provides greater protection for some nonvoters than that of other nonvoters.
If you were wondering whether to put off your Fourth of July travel plans for fear that you will miss the Supreme Court’s landmark decision in the health care law case or in the Arizona immigration law challenge, fear not.
The justices will almost surely wrap up the term, pending blockbuster cases included, by the end of June – the Court’s traditional conclusion time frame. That’s because, according to the AP, the justices have planes to catch.
Several of the justices, who often accept teaching positions during the summers in exotic locales, are set to begin professorial gigs the first week of July, the AP reports. Chief Justice John G. Roberts, Jr. will be jetting off to Malta. Justices Antonin G. Scalia and Justice Ruth Bader Ginsburg are headed to Austria. Justice Samuel A. Alito, Jr. will be going to Italy.
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 2nd 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 2nd 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]