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Government scores in two high court criminal rulings

Today, before hearing the term’s last oral argument, the U.S. Supreme Court handed down a pair of decisions siding with the government in criminal matters.

In Dean. v. U.S., the Court held that a statute boosting the criminal penalty for discharging a firearm during commission of a felony applies even if the gun is fired accidentally. Chief Justice John G. Roberts, Jr., writing for the 7-2 majority, started the opinion with the observation: “Accidents happen.”

In Kansas v. Ventris, the Court held that a defendant’s statement to a jailhouse undercover informant, obtained in violation of the Sixth Amendment, can still be admissible at trial for impeachment purposes. “Our precedents make clear that the game of excluding tainted evidence for impeachment purposes is not worth the candle,” Justice Antonin Scalia wrote for the majority in the 7-2 opinion.

Supreme Court: No S@*#!

Today the U.S. Supreme Court upheld a federal rule barring the use of expletives on prime-time broadcast television even if the words are uttered in a fleeting manner.

The case, FCC v. Fox Television Stations, stems from remarks made by celebrities during the 2002 and 2003 broadcasts of the Billboard Music Awards on the Fox network.

Justice Antonin Scalia, who made an unusually long statement from the bench in announcing the case this morning, seemed to have fun recounting the facts of the case including remarks made by Cher and Nicole Richie.

“In the first broadcast, the entertainer Cher exclaimed: ‘I’ve also had critics for the last 40 years saying that I was on my way out every year. Right. So eff ‘em!'” Scalia explained in the courtroom, just in case anyone missed the original broadcast.

In the other broadcast. Scalia explained, “Ms. Richie proceeded to ask the audience: ‘Why do they even call it The Simple Life? Have you ever tried to get cow s— out of a Prada purse? It’s not so effing simple.” Too bad opinion announcements don’t count in the Funniest Justice standings, or Scalia would have padded his lead a bit more.

As for the law, the 5-4 opinion of the Court held that the FCC’s decision to cite the television statement for the fleeting expletives was neither arbitrary nor capricious. “Even when used as an expletive, the F-word’s power to insult and offend derives from its sexual meaning,” Scalia explained. “And the FCC’s decision to look at the patent offensiveness of even isolated uses of sexual and excretory words fits with the context-based approach we [have] sanctioned.”

The Court also granted a new hearing in federal court for a Tennessee death row inmate who was deprived of key evidence at his trial in Cone v. Bell. Justice John Paul Stevens wrote and announced the opinion in that case.

The Funniest Justice: Absolutely comical

During oral arguments in the case Ricci v. DeStefano yesterday, Supreme Court Justice John Paul Stevens asked attorney Christopher Meade if the controversial test at the heart of the job discrimination case was replaced by another, and the results ended up the same, would the results have to be certified or would some other action be necessary.

After some clarifications, Meade answered: “Absolutely.”

Then Stevens and Chief Justice John G. Roberts, Jr. leaned forward and asked in unison: “Absolutely what?”

The crowd laughed, as did Stevens and Roberts. Then Meade replied: “Absolutely yes.”

Justice Antonin Scalia, apparently seeing the Who’s-On-First-type comedy opportunity, leaned forward and asked: “Absolutely, positively?” More laughter.

“Absolutely, positively,” Meade said.

“Absolutely yes – of what?” Roberts finally queried.

Meade finally got it. “Yes, they would have to certify the results,” he said. “Sorry I was unclear.”

Perhaps looking for some levity to balance the weighty legal issues before the Court this week – like whether race can be a factor in employment decisions, or when school officials can strip search students – all of the oral arguments at the Supreme Court this week were punctuated by lots of laughter.

We already know which justice got the biggest laugh, but it’s time to check in to see who is the funniest justice so far. With just one week of oral arguments left, Scalia is pulling away:

Here are the laugh standings:

Justice Antonin Scalia: 43 (Seven laughs this week alone, far more than any other justice)

Justice Stephen Breyer: 34

Chief Justice John Roberts: 27

Justice David Souter: 13

Justice John Paul Stevens: 12 (Passed Kennedy in the standings by getting three laughs)

Justice Anthony Kennedy: 11

Justice Ruth Bader Ginsburg: 5

Justice Samuel Alito: 3

Justice Clarence Thomas: 0 (No oral argument question or comment from him since Feb. 22, 2006).

Ginsburg, Scalia on opposites sides of torture debate

As we know, Supreme Court Justice Antonin Scalia – a fan of 24 character Jack Bauer – sees nothing wrong with roughing up a terrorism suspect if it yields information that can help stem an attack. His colleague and frequent opera companion Justice Ruth Bader Ginsburg, however, has a different view.

ginsburg“The police think that a suspect they have apprehended knows where and when a bomb is going to go off,” Ginsburg said during a speech at Moritz College of Law at Ohio State University, according to a New York Times report. “Can the police use torture to extract that information? And in an eloquent decision by Aharon Barak, then the chief justice of Israel, the court said: ‘Torture? Never.'”

Ginsburg also said that she wishes that she were not the only woman on the bench. “There I am all alone,” she said, “and it doesn’t look right.”

One thing that she did not talk about, The Washington Post reported, was any desire to step down. Ginsburg, 76, underwent cancer surgery this past winter, and is now undergoing chemotherapy treatments. Still, she hasn’t missed an oral argument – or even a beat, for that matter. At the event, during a videotaped tribute to Ginsburg, Chief Justice John G. Roberts, Jr. offered “my warm congratulations on the occasion of your reaching the midpoint of your tenure.”

You can watched the webcast of the symposium here on Moritz College of Law’s website.

Camera-shy Scalia

scaliahandsSupreme Court Justice Antonin Scalia loves talking about the Constitution. He’s not afraid to discuss hot-button topics like the death penalty and gay marriage. But apparently, he’s not a big fan of getting his picture taken.

Yesterday, during a speech at William Carey University in Mississippi, Scalia was busy talking about constitutional originalism while a media photographer, who was authorized to take still shots of the justice, was snapping away. Still, Scalia was displeased.

“Could we stop the photos please?” Scalia said, according to a report by The Hattiesburg American.

Interestingly, the last time Scalia spoke in Hattiesburg was in 2004, when a free speech battle was spurred after a federal marshal seized the tape recorders of reporters from the American and the Associated Press covering Scalia’s talk. The news organizations sued the U.S. Marshals Service and won, and Scalia later apologized to the reporters and they got their tape recorders back.

Yesterday during Scalia’s talk, he touched on the issue of gay marriage just over a week after Rep. Barney Frank made headlines for calling the justice a “homophobe.” Although Scalia declined to comment on Frank’s comments at the time, yesterday Scalia said that the Fourteenth Amendment does not provide a right for gays to marry any more than it provided a right for women to vote. It is for legislators to carve out any such right, Scalia said – just as they did by passing the 19th amendment guaranteeing women’s suffrage.

He acknowledged that not all Supreme Court justices share his views.

“There are four justices who have sat beside me who believe that the death penalty is now unconstitutional … and they believe it to be unconstitutional, because they think it ought to be,” he said. No word yet on whether the ears of Justices Ginsburg, Stevens, Souter or Breyer began to burn.

One footnote, since Scalia was en route to Mississippi during yesterday’s brief Supreme Court session, Chief Justice John G. Roberts, Jr. announced Scalia’s opinion in U.S. v. Navajo Nation, according to Legal Times BLT blog.

The Funniest Justice, week 12: Fair and funny

breyer“I didn’t want to complicate it,” Justice Stephen Breyer said to attorney Carter Phillips Tuesday during oral arguments in Gross v. FBL Financial Services. “But that may work in your favor to complicate it, and I want to be fair.”

scaliafunnyThat is one of the two comments made by Breyer that drew laughs from the audience at the Supreme Court this week. But in the funniest justice contest, it is Justice Antonin Scalia who extended his lead a little by garnering three laughs.

Here are the laugh standings as of yesterday:

Justice Antonin Scalia: 39

Justice Stephen Breyer: 32

Chief Justice John Roberts: 26

Justice David Souter: 11

Justice Anthony Kennedy: 10

Justice John Paul Stevens: 10

Justice Ruth Bader Ginsburg: 5

Justice Samuel Alito: 2

Justice Clarence Thomas: 0 (No oral argument questions or comments since Feb. 22, 2006).

The Funniest Justice, week 11: Hail to the Chief

During oral arguments Tuesday in the case Citizens United v. FEC,  Justice John Paul Stevens asked attorney Ted Olson his view on a point of legal precedent.

“Do you think the Chief Justice’s opinion in that case correctly stated the law?” Stevens asked.

“Of course,” Olson said obediently, drawing laughter. “By definition.”

scalia1“Good answer,” deadpanned Justice Antonin Scalia, prompting more laughter.

That last laugh get helped Scalia maintain his six-laugh lead in his bid to be this term’s funniest justice. But with just nine oral argument days left in the term, Justice Stephen Breyer and Chief Justice John Roberts remain in the running, trailing Scalia by ten laughs or less.

Here are the laugh standings as of today:

Justice Antonin Scalia: 36

Justice Stephen Breyer: 30

Chief Justice John Roberts: 26

Justice David Souter: 11

Justice Anthony Kennedy: 10

Justice John Paul Stevens: 10

Justice Ruth Bader Ginsburg: 4

Justice Samuel Alito: 2

Justice Clarence Thomas: 0 (Thomas hasn’t offered an oral argument question or comment since Feb. 22, 2006).

Court rules in plain-error forfeiture case

usscpoolToday the U.S. Supreme Court ruled in Puckett v. U.S. that the plain-error test must be used to determine whether a defendant’s claim that the government breached a plea agreement is forfeited. The case involved a defendant who agreed to plead guilty in exchange for a reduced sentence, but committed another crime before sentencing, causing the prosecutors to seek – and the judge to impose – a harsher sentence. On appeal, the defendant raised for the first time the claim that the government breached the plea agreement. The appellate court applying the plain-error standard, found that the defendant did not show we was prejudiced by the error.

Writing for the 7-2 majority affirming the decision, Justice Antonin Scalia said requiring defendants to raise such an issue at the trial level is important to prevent defendants from “gaming” the system by waiting to see what sentence he gets and “then seeking a second bite at the apple by raising the claim” on appeal. Justices David Souter and John Paul Stevens dissented.

The opinion is available here.

Frank explains Scalia ‘homophobe’ comment

frank2After sparking controversy by calling U.S. Supreme Court Justice Antonin Scalia a ‘homophobe,’ this morning Massachusetts Rep. Barney Frank stood by his comment, saying that Scalia has repeatedly condemned homosexual conduct in his written opinions.

In an interview on CNN, Frank pointed to “opinions written by Justice Scalia in which he makes it very clear that he thinks it’s a terrible idea for people who are gay or lesbian to have equal rights.”

scaliabigIn a dissent in the 2003 case Lawrence v. Texas, in which the Court struck down an anti-sodomy law as unconstitutional, Scalia said the Court’s majority “signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

Frank said that unlike Justice Clarence Thomas, who also dissented on the constitutional question, but called the law “silly” and said he’d vote to repeal it if he were a state lawmaker, Scalia attacked the issue on a moral ground.

“He is so angry about those of us who may be gay or lesbian, that he thinks it’s taking sides in a culture war to say that people shouldn’t be sent to prison for private consensual acts,” Frank said.

CNN said it reached out to the Supreme Court for comment from Scalia, and the justice declined.

See Frank’s original comment here:

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Frank explains Scalia ‘homophobe’ comment

frank2After sparking controversy by calling U.S. Supreme Court Justice Antonin Scalia a ‘homophobe,’ this morning Massachusetts Rep. Barney Frank stood by his comment, saying that Scalia has repeatedly condemned homosexual conduct in his written opinions.

In an interview on CNN, Frank pointed to “opinions written by Justice Scalia in which he makes it very clear that he thinks it’s a terrible idea for people who are gay or lesbian to have equal rights.”

scaliabigIn a dissent in the 2003 case Lawrence v. Texas, in which the Court struck down an anti-sodomy law as unconstitutional, Scalia said the Court’s majority “signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

Frank said that unlike Justice Clarence Thomas, who also dissented on the constitutional question, but called the law “silly” and said he’d vote to repeal it if he were a state lawmaker, Scalia attacked the issue on a moral ground.

“He is so angry about those of us who may be gay or lesbian, that he thinks it’s taking sides in a culture war to say that people shouldn’t be sent to prison for private consensual acts,” Frank said.

CNN said it reached out to the Supreme Court for comment from Scalia, and the justice declined.

See Frank’s original comment here:

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