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Tag Archives: Samuel Alito

Lawmakers call for hearing on Supreme Court recusal bill

First Monday at the U.S. Supreme Court is just around the corner, and some congressional Democrats are stepping up their push to try to make Supreme Court justices step aside in cases where they have financial or political ties.

The issue has received increased attention as the fight over the constitutionality of the federal health care law makes it way to the nation’s highest Court.

In a letter that will be sent to House leaders today, several Democratic lawmakers are calling for a hearing on the Supreme Court Transparency and Disclosure Act, H.R. 862, which would apply the code to Supreme Court justices, require the justices to publicly disclose the reasoning behind any recusal from hearing a case as well as the reason for refusing to recuse after a motion is made for them to do so, and direct the Judicial Conference to establish enforcement mechanisms for the code.

The letter, obtained yesterday by the New York Times, cites “alarming reports of justices – most notably Justices Antonin Scalia, Clarence Thomas and Samuel Alito – attending political events and using their position to fundraise for organizations. These activities would be prohibited if the justices were required to abide by the Judicial Conference Code of Conduct, which currently applies to all other federal judges.”

Scalia and Thomas have come under fire recently for their relationship with conservative political financiers David and Charles Koch, and for the political activities of Thomas’ wife, Virginia. Similarly Republicans have questioned whether Justice Elena Kagan should sit in on the health care challenge because she was solicitor general when the challenge to the law was first filed.

Alito recusal ‘mistake’ cost networks in fleeting expletive case (access required)

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.

Alito defends Thomas’ silence (access required)

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]

Surprising Supreme splits (access required)

When the justices of the Supreme Court are split on a ruling, conventional wisdom is that Justices Antonin Scalia and Clarence Thomas can be found on the same side of the issue. The Roberts Court also has a reputation of being pro-business and hostile to employees alleging bias claims.

But when veteran Supreme Court journalist Linda Greenhouse looked at the numbers for this term, what she found would surprise some Supreme Court watchers.

In split cases this term, Scalia and Thomas have differed more than they agree. In fact, they differed in all three non-unanimous criminal decisions. “In all of the last term, Justices Scalia and Thomas were on opposite sides only six times,” Greenhouse wrote. “Already this term, they have split in five cases. An aberration or a trend? Watch and wait.”

Similarly surprising: in non-unanimous cases so far this term, Chief Justice John G. Roberts sided more frequently with Justices Stephen Breyer and Sonia Sotomayor than with Justices Thomas, Scalia or Samuel A. Alito Jr.

Employees asserting civil rights claims are undefeated this term. And corporate defendants have been dealt wide-margin defeats by the Court in a host of cases – including this week’s ruling that a drug manufacturer’s failure to disclose non-scientific reports of adverse respects may be considered in a securities fraud case.

All this goes to show that with the Supreme Court, you never can tell.

On his way out the door, Specter blasts Roberts, Alito (access required)

Sen. Arlen Specter, the Republican-turned-Democrat veteran Pennsylvania senator whose long Senate career ended with a failed reelection bid, gave his final speech on the floor of the Senate this week – and his words included a sharp jab at two conservative members of the U.S. Supreme Court.

Specter, who once chaired the Senate Judiciary Committee as a Republican, took aim at Bush appointees Chief Justice John G. Roberts and Justice Samuel Alito in his swan song speech, accusing them of “eroding the constitutional mandate of separation of powers,” Politico reports.

Although Specter voted in favor of both justices as a member of the Judiciary Committee, he criticized their votes in cases such as Citizens United v. FEC, which relaxed rules governing campaign contributions by corporations.

“Ignoring a massive congressional record and reversing recent decisions, Chief Justice Roberts and Justice Alito repudiated their confirmation testimony given under oath and provided the key votes to permit corporations and unions to secretly pay for political advertising – thus effectively undermining the basic Democratic principle of the power of one person, one vote,” said Specter. “Chief Justice Roberts promised to just call balls and strikes and then he moved the bases.”

Specter said it was part of a pattern of conservative justices saying one thing during their confirmation hearings and doing another on the bench.

“The Supreme Court has been eating Congress’ lunch by invalidating legislation with judicial activism after nominees commit under oath in confirmation proceedings to respect congressional fact finding and precedents,” Specter said.

Despite controversy, Breyer will attend State of the Union (access required)

When the president addresses Congress in his State of the Union speech next month, Justice Stephen Breyer will be front and center.

Despite the controversy stemming from President Obama’s comments during his last annual address, where he criticized a Supreme Court campaign finance ruling and drew a visible reaction from Justice Samuel Alito, Breyer said he believes attending the event is “very important.”

“I will go next year,” Breyer said on “Fox News Sunday,” according to Politico. “I have gone every year. I think it is very, very, very, important, very important for us to show up at that State of the Union – because people today, as you know, are more and more visual. I’d like them to read, but they are visual. And what they see in front of them at that State of the Union is the federal government, every part, the president, the Congress, the Cabinet, military, and I would like them to see the judges too, because federal judges are also part of that government.”

Alito, who famously mouthed the words “not true” and shook his head in response to Obama’s criticism of the Citizens United v. FEC ruling, said he would probably skip the event. Chief Justice John G. Roberts and Justice Antonin Scalia have also expressed discomfort with being in attendance at such a politically charged event, noting that justices are supposed to maintain the appearance of neutrality.

Roberts has said in the past: “The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering, while the court, according to the requirements of protocol, has to sit there expressionless I think is very troubling.”

Court toughens §1983 standard, tackles ERISA and prisoner release (access required)

Tuesday a unanimous (except for the recused Justice Elena Kagan) Supreme Court held that plaintiffs bringing §1983 actions against a municipality must show that their injury was caused by a municipal policy or custom, regardless of whether the action is for monetary, injunctive or declarative relief. The ruling in Los Angeles County v. Humphries was the only opinion the Court handed down yesterday.

The Court then heard oral arguments in two cases: a case that will determine the reliance standard in ERISA actions, and a controversial case involving a California judicial ruling authorizing the release of tens of thousands of prisoners in an effort to relieve prisoner overcrowding.

As news reports of the oral argument in Schwarzenegger v. Plata demonstrate, the issue seemed to divide the court.

Some, like Justices Sonia Sotomayor and Ruth Bader Ginsburg, seemed to stress the slow progress of other attempts to relieve prison overcrowding – a situation that has led to horrendous living condition in correctional facilities.

“When are you going to avoid the needless deaths?” Justice Sonia Sotomayor asked attorney Carter G. Phillips, according to this McClatchy report. “When are you going to avoid or get around people sitting in their own feces for days in a dazed state?”

“How much longer do we have to wait (for improvements)? Another 20 years?” pressed Ginsburg.

But other justices, including Justice Samuel Alito, worried of the consequences of a mass release.

“If I were a citizen of California, I’d be very concerned about the release of 40,000 prisoners,” Alito said according to the AP.

SCOTUSblog’s Lyle Denniston suggests that this case could split the Court, leaving the deciding vote in the hands of Justice Anthony Kennedy.

“And, if what Kennedy said controls how he would be voting on the final outcome, it seemed that he would not be willing to overturn that release order in its entirety, but would find ways to indicate that the remedy had to be reshaped or pared down in its scope,” Denniston wrote.

Bush: Miers opposed for not being ‘glib’ and ‘fancy’ (access required)

In his memoir, “Decision Points,” former President George W. Bush seems clearly proud of his Supreme Court legacy – the appointments of Chief Justice John G. Roberts and Justice Samuel Alito. But he’s also still sour over the failed nomination of White House counsel Harriet Miers, blaming Washington conservative elitists for dooming her bid because she wasn’t a “fancy” Ivy Leaguer.

Bush also reveals how close he came to nominating two different people to fill the vacancies that emerged during his administration: Judges Priscilla Owen and Mike Luttig.

Roberts was initially nominated to replace Justice Sandra Day O’Connor, who had announced her retirement. But after Chief Justice William Rehnquist died about six weeks later, Bush nominated Roberts for the chief justice position and renewed his search for a replacement for O’Connor. Be famously selected White House counsel Harriet Miers.

Miers’ tumultuous bid for the Supreme Court ended three weeks later after reports of growing criticism of her lack of judicial experience. But Bush blames conservatives, including Ann Coulter, for torpedoing Miers’ bid because the Southern Methodist University alum was more hoi polloi than Harvard.

“It seemed to me that there was another argument against Harriet, one that went largely unspoken: How could I name someone who did not run in elite legal circles?” Bush wrote, according to the Dallas Morning News. “Harriet had not gone to an Ivy League law school. Her personal style compounded the doubts. She is not glib. She is not fancy. She thinks hard before she speaks – a trait so rare in Washington that it is mistaken for intellectual slowness. As one conservative critic (Coulter) condescendingly put it, ‘However nice, helpful, prompt and tidy she is, Harriet Miers isn’t qualified to play a Supreme Court justice on “The West Wing,” let alone to be a real one.'”

Bush said his biggest regret was putting his friend Miers through the experience at all.

“While I know Harriet would have made a fine justice, I didn’t think enough about how the selection would be perceived by others,” Mr. Bush writes. “I put my friend in an impossible situation. If I had to do it over again, I would not have thrown Harriet to the wolves of Washington.”

Bush also revealed that he also seriously considered nominating Owen instead of Miers, but feared that Democrats may filibuster Owens’ bid, CBS News’ Jan Crawford reports.

Wanting an easier confirmation, he turned to Miers instead.

After Miers’ withdrawal, Bush nominated Alito. During a visit by Alito and his family to the White House after his confirmation, Bush said to him: “Sam, you ought to thank Harriet Miers for making this possible.” Alito responded: “Mr. President, you’re exactly right.”

Bush also reveals that Vice President Dick Cheney and Attorney General Alberto Gonzales didn’t initially back Roberts. Instead they preferred Luttig.

He also was keenly aware of his father’s disappointment in his pawn Supreme Court pick: Justice David Souter. Souter had “evolved into a different kind of judge than he expected,” Bush wrote.

Justices talk sex, torture and video games (access required)

While most news organizations are recapping yesterday’s elections (if you hadn’t heard, Republican took the House and Democrats held onto the Senate), today’s Supreme Court-related headlines are all about sex, violence and video games.

“What common sense is there in having a state of the law that [a] 13-year-old cannot go in and buy a picture of a naked woman, but the 13-year-old child can go in and buy one of these video games?” Asked Justice Stephen Breyer during yesterday’s oral arguments in Schwarzenegger vs. Entertainment Merchants Assn., which considers the constitutionality of a California law banning the sale of violent video games to minors.

Those in the press galley took particular note of Justice Samuel Alito, who seemed to disagree with his colleague Justice Antonin Scalia’s approach to determining whether the law violated free speech rights.

Scalia, ever the originalist, argued that prohibiting violent content was never contemplated by those who drafted and ratified the First Amendment.

“You are asking us to create a whole new prohibition which the American people never ratified when they ratified the First Amendment,” Scalia said. “They knew [that] obscenity was bad, but what’s next after violence? Drinking? Smoking? Movies that show smoking can’t be shown to children?”

Alito had a different view.

“Well, I think what Justice Scalia wants to know is what James Madison thought about video games,” Alito said, drawing a round of laughter. “Did he enjoy them?”

“No, I want to know what James Madison thought about violence,” Scalia answered.

Later, Alito explained his view.

“We have here a new medium that cannot possibly have been envisioned at the time when the First Amendment was ratified,” Alito said. “[T]his presents a question that could not have been specifically contemplated at the time when the First Amendment was adopted,” and to suggest that it could have been “is entirely artificial.”

How Appealing’s Howard Bashman has a roundup of all the coverage of yesterday’s argument.

For more on today’s oral argument in the highly anticipated seatbelt preemption case Williamson v. Mazda Motor of America, check back later on this blog and on Lawyers USA Online.