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    Justice Alito’s head shake heard ’round the Union

    January 27th, 2010

    Within minutes of the conclusion of President Barack Obama’s first State of the Union address Wednesday night, the internet was already abuzz over what Justice Samuel Alito did as the president criticized last week’s Supreme Court campaign finance ruling.

    Before the packed House chamber – which included six of the nine justices of the nation’s highest court – Obama, blasted the Citizens United v. FEC decision and urged Congress to move to reverse it.

    “With all due deference to separation of powers, last week the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections,” Obama said, as Chief Justice John G. Roberts, Jr. and Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Alito and Sonia Sotomayor sat in the front two rows, just feet away from the president. “Well, I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.”

    Normal protocol calls for Supreme Court justices in attendance at State of the Union addresses to remain silent, even when members of Congress erupt in cheers, boos or other reactions.

    But as soon as Obama uttered the words “special interests,” Alito – who joined the opinion’s 5-4 majority – seemed to break that tradition. The justice furrowed his brow, shook his head, and seemed to mouth the words: “not true.”

    That gesture wasn’t exactly a Rep. Joe Wilson-esque “You lie!” moment, but the reaction by bloggers, tweeters and online news and commentary sites was almost immediate. (“Oh, snap! Did Alito just heckle Obama?!” chirped one comment that popped up on my computer screen as I watched the address.)

    UPDATE: And TPM has the video:

    YouTube Preview Image

    The Funniest Justice, week 5: Sam and Nino’s spring break party

    December 3rd, 2009

    “Suppose that a city decided [it] wanted to attract more students who were going to the beach in Florida for spring break, and so therefore it decided it was going to create a huge beach in front of privately owned homes,” pondered Supreme Court Justice Samuel Alito yesterday during oral arguments in a takings case about a law expanding beaches to allow public access. “So you could have televised spring break beach parties in front of somebody’s house.”

    Justice Antonin Scalia even had a name for such a law.

    “It’s the Spring Break Act of 2010,” Scalia said, earning a round of laughter from the audience.

    During oral arguments in the five cases before the Supreme Court this week, Scalia cracked wise a total of four times, padding his lead in the Funniest Justice standings. And Alito did more than play the set-up guy – he earned a laugh on his own this week. Chief Justice John G. Roberts, Jr. and Justice Stephen Breyer also displayed their senses of humor. Roberts earned one laugh this week and Breyer earned three, according to Court transcripts.

    Here is the laugh count so far this term:

    Here are the laugh standings:

    Justice Antonin Scalia: 23

    Chief Justice John G. Roberts, Jr.: 11

    Justice Stephen Breyer: 9

    Justice Anthony Kennedy: 3

    Justice John Paul Stevens: 2

    Justice Samuel Alito: 2

    Justice Clarence Thomas (Thomas has remained silent during oral arguments since Feb. 22, 2006): 0

    Justice Ruth Bader Ginsburg: 0

    Justice Sonia Sotomayor: 0


    Supremes debate dog fighting, the definition of ‘kill’ and The Human Sacrifice Channel

    October 6th, 2009

    A federal law criminalizing the sale of videos depicting animal cruelty seems in constitutional peril, after Supreme Court oral arguments today.

    In arguments in U.S. v. Stevens, a challenge to a law that makes it illegal to create or sell depictions of animal cruelty, most of the justices seemed to indicate that the statute cuts too broad an encroachment on the First Amendment.

    For example, some justices were not at all moved by deputy Solicitor General Neal Katyal’s argument that the law – passed in an effort to ban so-called “crush videos” depicting women crushing small animals to death with their stilettos, dominatrix-style – could not be applied to hunting videos.

    “Some depictions of hunting are pretty gruesome,” said Justice Anthony Kennedy.

    When Katyal pointed out that the statute was limited depictions of cruelty, defined as “maimed, mutilated, tortured, wounded, or killed,” Justice Antonin Scalia jumped in.

    “Or ‘killed!’” Scalia exclaimed. “How do you limit ‘killed?’ …‘Kill’ has one meaning, which is ‘kill!’ … You don’t have a single case in which an absolutely clear word like ‘kill’ is given a more narrow meaning because of other words that are different from that word.”

    Of course that didn’t mean that Patricia Millett, the attorney arguing against the statute, didn’t get some memorable questions.

    When Millett pointed out that the underlying dog fighting in the video at issue in the case wasn’t illegal because it took place in another country where it was allowed, Justice Samuel Alito asked: “What if [people] like to see human sacrifices?  Suppose that is legally taking place someplace in the world. I mean, people here would probably love to see it. Live, pay-per-view, on The Human Sacrifice Channel. Is that ok?”

    As people in the courtroom laughed, Millett tired to qualify her answer by saying Congress must act in an “even-handed” way. Alito had more questions.

    “Suppose you have The Ethnic Cleansing Channel on cable TV, and [said ethnic cleansing] is taking place in a country that’s beyond our power to influence. Congress couldn’t prohibit that?”

    “The fact that conduct is repulsive or offensive does not mean we automatically ban the speech,” Millett answered.


    Alito has a working birthday

    April 1st, 2009

    alito1Some jobs allow for a day off on one’s birthday. (Even DC Dicta took a day!) Being a Supreme Court justice is not one of those jobs.

    Today, Justice Samuel Alito, who was on the bench hearing oral arguments in the case Polar Tankers, Inc. v. City of Valdez,  turned 59.


    Friday morning docket: Challenges, pleas and jabs

    December 5th, 2008

    supremeleftThe Supreme Court justices meet today to consider a number of cert petitions – including one arising from lawsuits challenging President-elect Barack Obama’s citizenship and asking the Court to halt certification of some states’ electoral votes. Stay tuned to DC Dicta for updates on any newsworthy cert grants or other orders from the Court.

    Meanwhile,

    Plea from the Big Three: After a day of pleading for help from members of the Senate yesterday, executives from Detroit’s automotive companies will make their case before the House today – and the White House will be listening as well. (Reuters)

    No fury like a justice scorned? Apparently Justice Samuel Alito hasn’t forgotten Vice President-elect Joe Biden’s tough questioning when he was a senator during Alito’s confirmation hearings. During a speech Alito took a swipe at Biden’s past plagiarism issues. (AP)

    Lawyers and generals: A dozen retired generals met with President-elect Barack Obama’s top legal advisers – attorney general pick Eric Holder and incoming White House counsel Greg Craig. The generals pressed their case to overturn some of the Bush administration’s terrorism-fighting policies. (AP)

    All good opinions come to those who wait: Attorney General Michael Mukasey said that members of the new administration’s Justice Department team may not gain access to the Bush administration’s most sensitive legal opinions until after the January inauguration. (WaPo).

    Death and taxes: A new report by a tax research and advocacy group urges President-elect Barack Obama to revise his plan for reforming the estate tax, saying the plan would be too generous to the wealthy.  (Lawyers USA)