Tag Archives: Anthony Kennedy

Kennedy draws laughs with talk of opera and beer

Justice Anthony M. Kennedy may not be one of the funniest Supreme Court justices during oral arguments, but he showed his funny side during a speech Wednesday at the Heritage Foundation in Washington.

Kennedy recounted a story about a casual gathering of lawyers and other judges when he was an 11th Circuit judge. “I said, do you have any questions?” Kennedy said, according to a transcript of the event from Lawyers USA‘s sister company Federal News Service. “And somebody said, ‘how do you read all of those briefs, all that written material?’”

Kennedy replied that he read every brief, and would bring home briefs from the most difficult cases to reread while listening to opera. “I have one-opera and two-opera briefs,” Kennedy said, drawing laughter from the crowd. But after answering, Kennedy said he feared his talk of opera “came across as kind of highfalutin.”

“Here’s this guy talking about the opera, East Coast intellectual or trying to be one,” he said of himself, drawing more laughs. “I thought I kind of lost the audience, but a fellow raised his hand and said, ‘well, I have a rule like that when I write those briefs.’

“I said, ‘oh, yeah?’” Kennedy continued. “He said, ‘I have a one-six-pack brief and two-six-pack brief.’  I said, ‘I remember your last one. I think it was a three-six-pack brief.’”

Get the full transcript here, and find out more about Federal News Service and its transcription and media monitoring services here.


Did Roberts change his vote in the healthcare case?

In the days since the U.S. Supreme Court upheld most of the federal health care law, Supreme Court watchers have been posing a new question about the Court’s deliberations in the case: did Chief Justice John G. Roberts, Jr. change his vote?

According to CBS News’ Jan Crawford, he did – spurring Justice Anthony M. Kennedy to lead a month-long effort to convince Roberts to return to the other side.

“He was relentless,” one of Crawford’s two sources said of Kennedy. “He was very engaged in this.”

According to Crawford’s report:

“It is not known why Roberts changed his view on the mandate and decided to uphold the law. At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation.”

Meanwhile, check out Lawyers USA’s analysis of the decisions legal impact.

The Funniest Justice, week 5: Scalia swings at first pitch

When attorney Aaron M. Panner began making his argument before the U.S. Supreme Court in support of his client, the defendant in a RESPA case, he didn’t realize he was setting up a joke.

“It seems to me that there are two positions that have been articulated before the Court and both are inconsistent with the Court’s prior decisions,” Panner began his argument Monday in the case First American Financial Corp v. Edwards.

Without missing a beat, Justice Antonin Scalia jumped in.

“Not yours and his?” Scalia asked, referring to Panner and the plaintiff’s attorney, and drawing chuckles from the crowd.

Panner clarified.

“That of the plaintiff and that of the government, Your Honor. I should have been more particularized,” Panner said, drawing his own laughter.

Scalia’s quick quip was one of three laugh-inducing comments from the Court’s most senior associate justice, padding his lead in our Funniest Justice tally. Chief Justice John G. Roberts and Justice Stephen Breyer* each earned two laughs this week, and Justice Anthony Kennedy* also made it on the board with one laugh.

Here’s the running tally after five weeks of oral arguments:

Justice Antonin Scalia: 18

Justice Stephen Breyer: 12

Chief Justice John G. Roberts: 9

Justice Anthony Kennedy: 1

Justice Ruth Bader Ginsburg: 1

Justice Elena Kagan: 1

Justice Clarence Thomas (still no peep): 0

Justice Samuel Alito: 0

Justice Sonia Sotomayor: 0

*While DC Dicta usually goes strictly by Court transcripts in determining the laugh tally, this week we made an exception because we witnessed a laugh-inducing comment made by Breyer which was credited to Kennedy in the transcript. Specifically, during arguments in the case Hall v. U.S., we are quite positive that it was Breyer, no Kennedy, who said: “It’s like an Abbott and Costello movie.” (See p. 14 of the transcript). Luckily, Kennedy earned his own laugh in Setser v. U.S. (See pp. 18-19 of the transcript) so he should not feel robbed.

Kennedy: Arbitration keeping ‘big civil cases’ off SCOTUS docket

Justice Anthony Kennedy said the justices of the U.S. Supreme Court don’t see as many of the big money civil lawsuits as they used to. The reason?  Arbitration.

“The docket seems to be changing,” Kennedy told reporters invited to meet with him during the 9th Circuit Judicial Conference Monday, according to the Trial Insider. “A lot of big civil cases are going to arbitration. I don’t see as many of the big civil cases.”

That trend is something that could continue, based on the Court’s own recent precedent. The Court’s ruling last term in AT&T Mobility v. Concepcion broadened companies’ ability to prescribe arbitration for disputes.

In battle over health care law, focus on Supreme Court (access required)

The legal challenges to the health care law overhaul signed into law last year haven’t even made it to the federal appeals courts yet, but already lawmakers are already focused on where the cases are headed: the U.S. Supreme Court.

As members of the Senate prepare to vote on a measure that would repeal the law – which is expected to fail – lawmakers are also opining on how the justices should rule on the challenge to the law’s constitutionality.

“I would hope the four so-called liberals on the court would recognize that personal liberty is involved here,” said Utah GOP Sen. Orrin Hatch according to The Hill. “I think there are some very good Democrats there on the Court, or I should say more liberal people on the Court, who have to recognize these constitutional issues.”

Iowa Democrat and Health, Education, Labor and Pensions Committee chairman Sen. Tom Harkin focused on another justice.

“[Justice Antonin] Scalia, interestingly enough, has argued for years that barring any overly gross action by Congress, the court should let the Congress make its laws and if people don’t like them, let them decide at the ballot box,” Harkin told The Hill. “So it will be interesting to see how Scalia goes about this.”

But everyone involved in or watching the ongoing debate are aware that the vote on the health care law cold come down to one jurist. As lawyer and a former congressman Joe Scarborough of MSNBC put it, according to USA Today‘s The Oval blog: “It’s going to come down to Anthony Kennedy.”

The Funniest Justice, week 7: Could it be…Satan?!? (access required)

During oral arguments Monday in the securities fraud case Matrixx Initiatives, Inc. v. Siracusano, attorney David Frederick explained some of the things that could affect a product’s stock sales.

“If there is a product, say, that has some link to satanic influences, and there is some reason to think that a large body of followers [may believe that], a cautious, reasonably prudent investor might want to know that,” Frederick said.

“I don’t know what kind of product has particular satanic susceptibility,” said Chief Justice John G. Roberts, Jr., getting a laugh from the courtroom spectators. “Are you saying it matters if it’s something that Satan’s not going to be interested in? I don’t understand.” More laughs.

Those were two of the whopping seven laughs the chief justice received this week, making him the week’s funniest justice by a long shot. The ever-funny Justice Antonin Scalia came in second with four laughs, Justice Anthony Kennedy earned two rounds of chuckles, and Justices Stephen Breyer and Elena Kagan each got one laugh. That marks the first time this term that Kagan received a laugh that was noted in the Court’s official transcript. Well, isn’t that special?

Here are the standings for the term after seven weeks of arguments:

Justice Antonin Scalia: 20

Justice Stephen Breyer: 16

Chief Justice John G. Roberts, Jr.: 13

Justice Anthony Kennedy: 7

Justice Ruth Bader Ginsburg: 3

Justice Samuel Alito: 2

Justice Elena Kagan: 1

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

Justice Sonia Sotomayor: 0

[Note about the Funniest Justice tally: DC Dicta and other keen courtroom observers have noted that, unlike past years when any amount of laughter would be noted on the Court’s transcript, this year it takes a really, really big laugh to be noted. This has made a difference in our count (for example, by our ears, Justice Sonia Sotomayor has earned at least three laughs this term, but they weren’t loud enough to get a notation on the transcript, so she still has a goose egg on our score sheet). We know it’s not perfect, but since DC Dicta is at most, but not all, oral arguments, the transcript is still the best and most fair way of keeping tally of the laughs.]

Was the Prop 8 judge speaking to Justice Kennedy? (access required)

Yesterday’s federal district court ruling striking down California’s voter-imposed ban on same-sex marriage began what will surely be a long legal battle leading to the U.S. Supreme Court.

So did Judge Vaughan R. Walker, in his 136-page opinion striking down the law as violative of Californians’ equal protection and due process rights, lay out his factual and legal analysis in a way to appeal to Justice Anthony Kennedy?

Walker “is speaking to Justice Kennedy,” Doug NeJaime, an associate professor at Loyola Law School, Los Angeles told The New York Times of yesterday’s ruling.

According to NeJaime and other legal experts, there is a particular focus on Kennedy for many reasons. As the Court’s so-called “swing voter” cases that split the Court along ideological lines, the final decision may ultimately rest with Kennedy. Furthermore, in cases where the Chief Justice John G. Roberts, Jr. is not in the majority, Kennedy has the extra responsibility of assigning opinions when he is in the majority – meaning that if the Court ultimately upholds Judge Walker’s analysis, Kennedy could assign the duty of writing that opinion to himself.

Perhaps Walker had this possibility in mind when he wrote his opinion, which applied the “rational basis” test to the law – the lowest constitutional hurdle a law can face – and found that it still did not pass. A similar approach was taken by Kennedy himself in the 2003 Supreme Court case Lawrence v. Texas, where the Court struck down a Texas law criminalizing sodomy, holding it violated the due process clause. By laying out the California case in a way that allows the Court to use the approach already taken by Kennedy, Walker may have been trying to add some extra sticking power it his ruling, experts said.

Legal scholars admit, however, that there is really no way of knowing what will happen once the case reaches One First Street, NE.

“I have no way of predicting how [Kennedy]’d come down on this and I don’t think he does, either, at this point,” Jesse H. Choper, a professor of law at the University of California, Berkeley, told the Times.

Friday morning docket: Heat on House member

Lawmakers have just one more week of work before heading out for summer recess, but one congressman might be feeling the heat a little more than others.

New York Rep. Charlie Rangel has been hit with charges of ethics violations by investigators for the House Committee on Standards and Official Conduct. The move means the 20-term Democrat – who is also running for reelection – will face a trial-like proceeding with House counsel acting as prosecutors and Rangel being defended by his own lawyers. The investigation into alleged ethical lapses by Rangel caused him to relinquish the chairmanship of the powerful House Ways and Means committee earlier this year.

Although the panel has not specified what charges Rangel will face, the lawmaker has been under fire for allegedly failing to pay taxes on a Caribbean home, failing to fully disclose assets, and using a New York rent-controlled apartment for political purposes. Rangel has denied any wrongdoing, and yesterday said the upcoming hearing is “what I’ve been waiting for.”

“It gives me an opportunity to respond to my friends and constituents who have supported me for 40 years,” Rangel said. “All I’ve been able to give them is ‘trust me.’ ”

The House ethics trial process hasn’t been used since 2002 when Ohio Rep. James Traficant faced the ethics panel. He was later convicted of racketeering.

Meanwhile, Supreme Court junkies looking for a reason to have a piece of cake today can celebrate the fact that Justice Anthony Kennedy turns 74 today. Happy birthday, Justice!

In other news:

Jobless benefits bill passed: The House of Representatives voted 272-152 Thursday to pass a bill that restores unemployment benefits for 2.5 million Americans. (Courthouse News Service)

Crushing animal cruelty, take two: After their first attempt was struck down by the Supreme Court as overbroad, the House has passed new, narrower legislation to outlaw video depictions of animal torture. (Detroit Free Press)

Longer arm for lawsuits: Legislation that would make it easier for victims of defective foreign-made products to file suit against foreign manufacturers has been advanced by a House committee. (Lawyers USA)

Arbitration curbs: The sweeping financial overhaul legislation signed into law Wednesday by President Barack Obama contains a provision that allows federal regulators to limit the use of pre-dispute mandatory arbitration clauses in financial contracts. (Lawyers USA)

Report: Justice Kennedy says he’ll stay put

Any of you making bets on which Supreme Court justice will retire next may want to avoid putting any money on Justice Anthony Kennedy.

According to a report by The New York Daily News [hat tip to ABA Journal], the justice recently told friends that he is not going anywhere – at least not for the next three years or so.

Kennedy, who turns 74 later this month, reportedly told pals that he will still be on the bench after President Obama’s first term concludes. The story, which attributes Kennedy’s comments to anonymous sources, notes that a spokesperson for the Supreme Court said Kennedy could not be reached for official comment.

Known as the Court’s “swing” voter for often casting the deciding vote in crucial 5-4 rulings, Kennedy’s potential retirement next term could have wide implications for the Court. If Obama were to win a second term, Kennedy’s departure could give him the chance to change the political balance of the court with a more liberal-leaning jurist. If a Republican is seated in the White House, the addition of a conservative judge could tilt the largely divided Court to the right.

Technical difficulties at the Supreme Court

During oral arguments today in the case City of Ontario v. Quon, which considers whether police officers had an expectation of privacy in personal (and sexually explicit) text messages sent on pagers issued to them by the city, the justices of the Supreme Court at times seemed to struggle with the technology involved.

The first sign was about midway through the argument, when Chief Justice John G. Roberts, Jr. – who is known to write out his opinions in long hand with pen and paper instead of a computer – asked what the difference was “between email and a pager?” *

Other justices’ questions showed that they probably don’t spend a lot of time texting and tweeting away from their iPhones either.

At one point, Justice Anthony Kennedy asked what would happen if a text message was sent to an officer at the same time he was sending one to someone else.

“Does it say: ‘Your call is important to us, and we will get back to you?'” Kennedy asked.

Justice Antonin Scalia wrangled a bit with the idea of a service provider.

“You mean (the text) doesn’t go right to me?” he asked.

Then he asked whether they can be printed out in hard copy.

“Could Quon print these spicy little conversations and send them to his buddies?” Scalia asked.

It wasn’t just the justices who had technical difficulties. When Justice Samuel Alito asked Quon’s attorney Dieter Dammeier if officers could delete text messages from their pagers in a way that would prevent the city from retrieving them from the wireless carrier later, Dammeier said that they could.

A few minutes later, Alito gave Dammeier another shot at that question.

“Are you sure about your answer on deletion?” Alito asked.

Dammeier admitted that he didn’t know. “I couldn’t be certain,” he said.

More on oral arguments in the case here on Lawyers USA Online.

* UPDATE: As several commentators have noted, the Court’s official transcript quotes Justice Roberts as asking, “what is the difference between the pager and the e-mail?” – suggesting he may have been inquiring in this context, and not more generally.