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Group wants Scalia to recuse from Wal-Mart case (access required)

An advocacy group supporting the workers in the class action job bias case Wal-Mart Stores v. Dukes wants Justice Antonin Scalia to sit out when the case is heard at the Supreme Court later this month.

Walmart Watch, a union-backed group that “exists to challenge Walmart to more fully embrace its corporate responsibilities,” according to its website, objects to Scalia’s participation in the case because the justice’s son, Eugene, is a partner at the firm Gibson Dunn, where he represented the company.

“Eugene Scalia’s connections to the plaintiff and to one of the Justices hearing the case, his father, Justice Scalia, raise serious concerns over judicial impartiality and may raise the appearance of impropriety,” the group stated on its website, linking to an online petition urging Scalia’s recusal. “The public’s confidence in an impartial judiciary is of utmost importance.”

The group has failed to sway the attorney representing the workers, who are seeking class action status alleging the company systematically underpaid female employees. Joseph Sellers, who represents the women suing Wal-Mart, told Bloomberg News that he was not taking up the recusal cause.

“We’re busy preparing for the argument,” Sellers said. Arguments in the case are scheduled for March 29.

More on the case here from Lawyers USA.

The Funniest Justice, week 10: Comedy hour with Roberts and Scalia (access required)

Despite the disturbing facts underlying the case Camreta v. Greene, oral arguments at the Supreme Court Tuesday was a barrel of laughs, care of Chief Justice John G. Roberts and Justice Antonin Scalia.

(The laughs started even before oral arguments began, with Roberts’ “corny” announcement of the opinion in FCC v. AT&T Inc., as Slate’s Dahlia Lithwick points out.)

When attorney Carolyn A. Kubitschek began her argument asserting that there was “no case or controversy” between the parties, Roberts jumped right in.

“Then why are you here?” asked Roberts, drawing laughter from the crowd. “Why didn’t you just go away?” More laughs.

A little later, Scalia was trying to determine just when questioning a child at school without a parent present may run afoul of the Fourth Amendment.

“You said earlier that your office had advised the county not to seize children,” Scalia said to Oregon Attorney General John R. Kroger. “Are you advising them that they don’t have the right to talk to children? [What if] they are walking along the hall in the school, right? [And they] just come up alongside: “By the way, I wanted to ask you whether your mother–” More laughter.

At one point when Justice Sonia Sotomayor was asking Kubitschek a question, Scalia leaned forward, as if advising a friend, and told Kubitschek: “She’s helping you, I think.” Laughter.

But when Scalia himself was grilling Kubitschek a little later, Roberts pointed out: “He was not trying to help you.” More laughs.

When arguments were over, Roberts and Scalia each had five more laughs in our ongoing Funniest Justice tally.

Here are the full standings after 10 weeks:

Justice Antonin Scalia: 31

Justice Stephen Breyer: 20

Chief Justice John G. Roberts, Jr.: 18

Justice Anthony Kennedy: 7

Justice Ruth Bader Ginsburg: 4

Justice Samuel Alito: 2

Justice Sonia Sotomayor: 1

Justice Elena Kagan: 1

Justice Clarence Thomas: 0 (The silence since Feb. 22, 2006 continues…)

Justices go to “Conjunction Junction” in vaccine preemption ruling (access required)

In answering the question of whether state-law design defect claims against vaccine makers are preempted by state law, the justices of the Supreme Court seem to have looked at the relevant statute and asked themselves the question from the “Schoolhouse Rock!” song: Conjunction Junction, what’s your function?

(Press play and sing along as you read the rest of this post, if you like.)

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In this morning’s ruling in Bruesewitz v. Wyeth – holding that such claims are preempted – Justice Antonin Scalia’s majority ruling as well as Justice Sonia Sotomayor’s dissenting opinion focused on two conjunctions in the National Childhood Vaccine Injury Act: “if” and “even though.”

The relevant statutory text, §22(b)(1), is:

No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine after October 1, 1988, if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings. (Emphasis added).

In determining just what kind of side effect is “unavoidable” under the Act, Scalia parsed the meaning of the “even though” clause.

The “even though” clause clarifies the word that precedes it. It delineates the preventative measures that a vaccine manufacturer must have taken for a side-effect to be considered “unavoidable” under the statute. Provided that there was proper manufacture and warning, any remaining side effects, including those resulting from design defects, are deemed to have been unavoidable. State-law design-defect claims are therefore preempted.

If a manufacturer could be held liable for failure to use a different design, the word “unavoidable” would do no work.

Sotomayor, whose dissent was joined by Justice Ruth Bader Ginsburg, had a different view.

Blackletter products liability law generally recognizes three different types of product defects: design defects, manufacturing defects, and labeling defects (e.g., failure to warn). The reference in the “even though” clause to a “properly prepared” vaccine “accompanied by proper directions and warnings” is an obvious reference to two such defects-manufacturing and labeling defects. The plain terms of the “even though” clause thus indicate that §22(b)(1) applies only where neither kind of defect is present.

…The only remaining kind of product defect recognized under traditional products liability law is a design defect. Thus, “side effects that were unavoidable” must refer to side effects caused by a vaccine’s design that were “unavoidable.”

The Court also ruled in CSX Transportation v. Alabama Department of Revenue that a railroad carrier may challenge a non-property tax on the grounds that the tax contains discriminatory exemptions.

Group asks DOJ to probe Scalia and Thomas (access required)

A liberal lobbying organization has asked the Department of Justice to investigate Supreme Court Justices Antonin Scalia and Clarence Thomas for possible conflicts of interest based on the justices’ association with a top conservative financier.

The group, Common Cause, filed a petition with the Justice Department after Charles Koch sent out an invitation to a political retreat for conservatives, and noted that past attendees included the justices. The petition asserts that the justices’ participation in the event should have disqualified them from hearing the controversial campaign finance case Citizens United v. FEC, which lifted some campaign finance restrictions on corporations. The group notes that Koch Industries is the nation’s second largest privately held company.

Citizens United provided a political advantage to Koch Industries and its corporate allies, many of whom helped pump nearly $300 million into the 2010 elections,” the group says in a statement on its website. “Common Cause believes that if sufficient grounds for disqualification of either Justice exist, the Solicitor General should seek to vacate the Citizens United judgment”

Common Cause’s petition also raised questions about the political activities of Thomas’ wife, Virginia “Ginni” Thomas.

But according to The New York Times, group’s officials know that the challenge and effort to get the decision vacated will be a tough sell.

“We’re treading in new territory here for us,” Arn H. Pearson, Common Cause’s vice president for programs told the Times. “But a situation like this raises fundamental questions about public confidence in the Supreme Court.”

Sometimes even Scalia looks to foreign law (access required)

Supreme Court junkies like DC Dicta know that Justice Antonin Scalia is no fan of U.S. courts citing foreign law.

But a few eagle-eyed Court watchers noted that yesterday Scalia did just that. Twice, actually.

In his dissent in the bankruptcy case Ransom v. FIA Card Services, Scalia wrote: “A House of Lords opinion holds, for example, that in the phrase ‘in addition to and not in derogation of’ the last part adds nothing but emphasis. …It seems to me that is the situation here.”

And DC Dicta noticed during yesterday’s oral argument in the civil procedure case Goodyear Dunlop Tires Operations v. Brown, Scalia also made mention of a foreign law.

“Countries can make it a crime – in fact I think Italy does – to kill an Italian citizen abroad, and that person can be tried for that crime in Italy,” Scalia said. “So I assume that that is an acceptable basis of jurisdiction. So why don’t we say that there’s a specialized jurisdiction when a citizen of North Carolina is injured abroad?”

So has Scalia flip-flopped on his strong stance against the use of foreign law?

Not really.

Scalia is an opponent of citing foreign law in constitutional cases. As Scalia once explained at a 2006 event where he appeared with Justice Stephen Breyer (who doesn’t mind looking to foreign law) and was asked about the laws of other lands:

“Well, most of those questions should be addressed to Justice Breyer because I do not use foreign law in the interpretation of the United States Constitution,” Scalia said to laughter. “Now, I will use it in the interpretation of a treaty. In fact, in a recent case I dissented from the Court, including most of my brethren who like to use foreign law, because this treaty had been interpreted a certain way by every foreign court [and] I thought [we] should defer to the views of other signatories, much as we defer to the views of agencies…

“But apart from that, if you talk about using it constitutional law, [we] don’t have the same moral and legal framework as the rest of the world, and never have. If you told the framers of the Constitution that [we’d] do something that will be just like Europe, they would have been appalled. And if you read the Federalist Papers, it’s full of statements that make very clear they didn’t have a whole lot of respect for many of the rules in European countries.”

So there you have it.

Scalia: TV characters – and maybe Californians – are vulgar (access required)

“I occasionally watch movies or television shows in which the f-word is used constantly, not by the criminal class but by supposedly elegant, well-educated, well-to-do people. The society I move in doesn’t behave that way. Who imagines this? Maybe here in California. I don’t know, you guys really talk this way?”

~ Justice Antonin Scalia in an interview with California Lawyer (HT, ABA Journal), during which he also reiterated his stance that the 14th Amendment does not prohibit discrimination on the basis of gender or sexual orientation.

The Funniest Justice, week 6: The big laugh theory (access required)

During oral arguments Tuesday in the case Thompson v. North American Stainless, Justice Stephen Breyer was wondering out loud if there was a way to allow a Title VII retaliation suit to be brought by a man who was fired after his fiancée complained of job discrimination without opening the litigation floodgates.

“I’m just playing with the thought,” Breyer said at the beginning of a long and somewhat complicated theory.

Breyer wondered if “the way to limit this is to say that where … a Person B is hurt in order to retaliate against Person A, … B can bring the suit? But if B is a person who is injured only because you retaliated against A, but really wasn’t the means, B can’t bring the suit?”

“But, Your Honor,” began attorney Leigh Gross Latherow,  “respectfully, there’s no basis in the statute to adopt that rule.”

“That is the problem with my theory!” said Justice Stephen Breyer, drawing a round of laughter from the courtroom spectators.

During the final week of oral arguments in this calendar year, Breyer put on his funny hat. The four laughs he earned easily made him the Funniest Justice of the week. Justice Antonin Scalia dialed back his usual humor a bit, making only one laugh-garnering wisecrack.

Here are the standings after six weeks of arguments:

Justice Antonin Scalia: 16

Justice Stephen Breyer: 15

Chief Justice John G. Roberts, Jr.: 6

Justice Anthony Kennedy: 5

Justice Ruth Bader Ginsburg: 3

Justice Samuel Alito: 2

Justice Clarence Thomas: 0 (Not a peep during oral arguments since Feb. 22, 2006)

Justice Sonia Sotomayor: 0 (DC Dicta heard her get a laugh Monday, but it didn’t show up on the transcript. Sorry, Justice!)

Justice Elena Kagan: 0

Scalia loves his gadgets (access required)

Justice Antonin Scalia may not fully understand how text messaging works, but that doesn’t mean he’s not hip to the latest gadgets.

In fact, during a recent Federalist Society event, Scalia told the audience that he has both an iPod and an iPad – and that he’s hooked on them.

The Supreme Court’s most senior associate justice is not exactly using a quill to draft his opinions, either. He told the crowd that he does so much work on his computer that he “can hardly write in longhand anymore,” according to the Associated Press.

Scalia’s iPod is filled with classical music – which he uploaded all by himself, he said. The iPad comes in handy too, Scalia said, allowing him to read hefty legal briefs in electronic form instead of having to “schlep the briefs around.”

“It’s a brave new world,” Scalia said.

But his embrace of electronic media only goes so far. When it comes to television cameras, it stops at the courthouse doors.

Allowing Supreme Court proceedings to be televised would lead to broadcast outlets using snippets and sound bites that distort the process, he said.

“Familiarity breeds contempt,” Scalia explained. “The fact that the court is somewhat removed is a good thing.”

Scalia and Breyer take sparring match on the road (access required)

If you’ve ever visited the U.S. Supreme Court to watch oral arguments, changes are good that you saw a little verbal jousting between Justices Antonin Scalia and Stephen Breyer. The Court’s two most verbal (and funniest) jurists don’t see eye to eye on a number of judicial philosophies.

But an audience in Lubbock Texas didn’t have to travel to Washington to see the two justices spar Friday. Scalia and Breyer brought their battle to the Lubbock Memorial Civic Center.

Round 1: The death penalty

“There’s not an ounceworth of room for debate as to whether it constitutes cruel and unusual punishment because, at the time the Eighth Amendment was adopted – the cruel and unusual punishments clause – it was the only punishment for a felony,” said the Sicilian orginalist from Queens, according to the Associated Press. “It was the definition of a felony. It’s why we have Western movies because horse thieving was a felony.”

“”And indeed there were whipping posts where people were flogged virtually to death up until the middle of the 19th century,” said the pragmatist Frisco Kid. “If we had a case like that today I’d like to see how you’d vote.”

“There’s a lot of stuff that’s stupid that’s not unconstitutional.” Scalia retorted later.

Round 2: Statutory interpretation

“There are ways of determine how and what the legislature was thinking of … to determine what is the object of this law,” Breyer said, The Lubbock Avalanche-Journal reports.

“The only thing you know for sure is the words of the statute,” Scalia said. II don’t at all look to what I think the legislature thought. I frankly don’t care what the legislature thought.”

“That’s the problem,” Breyer quipped.

Round 3: Changing the Constitution

“There’s very little that I would change,” Scalia said. “I would change it back to what they wrote, in some respects. The 17th Amendment [which provides for U.S. senators to be elected by people instead of state legislatures] has changed things enormously. We changed that in a burst of progressivism in 1913, and you can trace the decline of so-called states’ rights throughout the rest of the 20th century. So, don’t mess with the Constitution.”

“There have been lots of ups and downs in the enforcement of this Constitution, and one of the things that’s been quite ugly – didn’t save us from the Civil War – is that there is a system of changing the Constitution through amendment,” Breyer said. “It’s possible to do but not too easy.”

While the verbal fireworks are fun, Breyer said the two don’t always lock rams.

“From the outside you think we disagree about everything, but we’re unanimous in our court about 40 percent of the time,” Breyer said.

But, Breyer added later: “We can disagree about almost anything.”

The Funniest Justice, week 3: Uncontrollable laughter (access required)

“Juries are not controllable. That’s the wonderful thing about juries – also the worst thing about juries.”

Justice Antonin Scalia had the crowd laughing with that comment during Tuesday’s oral arguments in the case Schwarzenegger v. Entertainment Merchants Assn., one of three laughs the justice earned this week. Justices Breyer and Kennedy also showed their funny sides, drawing two rounds of laughter each from the bench.

There are the standings after three weeks:

Justice Antonin Scalia: 9

Justice Stephen Breyer: 7

Justice Anthony Kennedy: 4

Justice Ruth Bader Ginsburg: 3

Chief Justice John G. Roberts, Jr.: 2

Justice Samuel Alito: 2

Justice Clarence Thomas: 0 (Last oral argument utterance: Feb. 22, 2006)

Justice Sonia Sotomayor: 0

Justice Elena Kagan: 0