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Alito won’t go (access required)

If you are looking forward to a rematch between the Supreme Court opinion scolder President Barack Obama and head-shaking comment disapprover Justice Samuel Alito at next year’s State of the Union address, you are likely out of luck.

“I doubt that I will be there in January,” Alito said last week during remarks at an event hosted by the Manhattan Institute in New York, according to the Associated Press.

Alito famously shook his head and said “not true” during the president’s speech in January after Obama criticized the Court’s campaign finance law ruling in Citizen’s United v. FEC.

Last week Alito – echoing sentiments of Chief Justice John G. Roberts, Jr., and Justices Antonin Scalia and Clarence Thomas – said he feels uncomfortable at an event with such a politicized atmosphere. While rules of decorum require justices to refrain from applauding showing approval of the presidents remarks on policy, he said, failing to applaud also makes them look unpatriotic.

Even seemingly benign comments about the greatness of the nation can bite a justice if he or she shows approval, Alito said.

“Presidents will fake you out,” Alito said, noting that such comments from the president can often end with “because we’re conducting a surge in Iraq or because we’re enacting health care reform.”

Court clerk picks show partisan bent (access required)

Do Supreme Court justices make partisan picks when it comes to their clerks?

Yes, according to The New York Times‘ Adam Liptak.

Since Chief Justice John G. Roberts, Jr. took the center seat on the Court’s bench in 2005, the justices have strongly tended to pick clerks who previously worked for federal judges appointed by the same party the justices were. For example, every clerk selected by Justices Antonin Scalia and Clarence Thomas since 2005 previously clerked for Republican-appointed federal judges (in Thomas’ case, in his 19 years on the bench, he has never selected a clerk who worked for a judges appointed by a Democrat.)

Only two of the 24 clerks that have worked for Justice Samuel Alito worked for Democratic appointees.

On the other side of the political spectrum, only four of Justice Ruth Bader Ginsburg’s last 24 clerks came from GOP-chosen judges.

Compare the late Chief Justice William Rehnquist, whose clerks were split fairly evenly from judges appointed by each party.

So what does this mean?

“We are getting a composition of the clerk work force that is getting to be like the House of Representatives. Each side is putting forward only ideological purists,” said David J. Garrow, a University of Cambridge historian, who told Liptak that the Court’s clerk-hiring patterns show similarities to the political branches of government.

Monday status conference: Conservative estimate

“If the Roberts court continues on the course suggested by its first five years, it is likely to allow a greater role for religion in public life, to permit more participation by unions and corporations in elections and to elaborate further on the scope of the Second Amendment’s right to bear arms. Abortion rights are likely to be curtailed, as are affirmative action and protections for people accused of crimes.”

That prediction came in a New York Times analysis by Adam Liptak of Chief Justice John G. Roberts, Jr.’s Supreme Court, which, Liptak writes, has become “the most conservative one in living memory.”

And that is something that will not change for quite some time, given the Court’s makeup. The impact on the Court of President Barack Obama’s two picks so far, Justice Sonia Sotomayor and likely-to-be-confirmed nominee Elena Kagan, is slight, given the fact that they were named to replace justices with similar ideological leanings.

In fact, the article states, the big shift occurred five years ago with one key appointment by President George W. Bush: Justice Samuel Alito, Jr. taking the seat of retired Justice Sandra Day O’Connor.

In other Beltway-related legal news to kick off your week:

Rangel’s failed settlement: The announcement that New York Rep. Charlie Rangel would face a congressional trial over charges of ethics violations came after settlement negotiations between Rangel and the House ethics committee broke down. (New York Times)

Friend in dissent: Right up until the end of his tenure, Justice John Paul Stevens did what he had for decades – sparred with Justice Antonin Scalia in written opinions. (Washington Post)

Right of first recusal: Kagan will have to sit out a dozen or more cases news term, due to her involvement in the cases as solicitor general. But will she have to recuse herself when the healthcare law lands before the Court? (NYT)

Nursing guidance: The U.S. Department of Labor has issued a fact sheet outlining employers’ obligation to give adequate break time to nursing mothers under the health care reform law that went into effect earlier this year. (Lawyers USA)

Court strikes down animal cruelty “crush video” statute

In its only ruling of the day, the U.S. Supreme struck down a federal statue banning the creation, possession or sale of depictions of animal cruelty.

The law, enacted primarily to bar “crush videos” that sexually fetishize the torture and killing of small animals, is unconstitutionally overbroad, the Court held in the 8-1 ruling in U.S. v. Stevens.

The ruling isn’t much of a surprise for anyone who attended or read about oral arguments in the case back in October.  Several justices noted the law could prohibit hunting videos and other forms of speech that are a far cry from depictions of women crushing kittens under their stilettos. When an attorney for the government tried to argue that the statute didn’t violate the First Amendment because its language limited the ban to depictions of animals being “maimed, mutilated, tortured, wounded, or killed,” Justice Antonin Scalia leaned forward and interrupted him.

“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.”

It was Chief Justice John G. Roberts, Jr. who wrote the opinion, though. In it, the Court acknowledged  the long history of American laws outlawing animal cruelty. But it declined to carve out a specific First Amendment exclusion for depictions of such acts.

And when the law was put to the constitutional test, Roberts wrote, it failed. Badly.

“We read §48 to create a criminal prohibition of alarming breadth,” Roberts wrote, echoing Scalia oral argument sentiment. “To begin with, the text of the statute’s ban on a ‘depiction of animal cruelty’ nowhere requires that the depicted conduct be cruel. That text applies to ‘any . . . depiction’ in which ‘a living animal is intentionally maimed, mutilated, tortured, wounded, or killed.’ ‘[M]aimed, mutilated, [and] tortured’ convey cruelty, but ‘wounded’ or ‘killed’ do not suggest any such limitation.”

In a lengthy dissent, Justice Samuel Alito disagreed with the Court’s decision to strike down a “valuable statute” aimed at banning “depraved entertainment that has no social value.”

Alito said an overbreadth ruling is “strong medicine” that should be reserved only for the most extreme of laws.

“Instead of applying the doctrine of overbreadth, I would vacate the decision below and instruct the Court of Appeals on remand to decide whether the videos that respondent sold are constitutionally protected,” Alito wrote. “If the question of overbreadth is to be decided, however, I do not think the present record supports the Court’s conclusion that [the law] bans a substantial quantity of protected speech.”

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.

Alito on curve balls, playing second, and Stevens’ Babe Ruth moment

During the last World Series, DC Dicta wondered if there were any friendly wagers between lifelong Phillies fan Justice Samuel Alito and Justices Antonin Scalia and Sonia Sotomayor, lifelong Yankees backers.

Turns out, there was!

“Yes. Unfortunately I had a bet with Justice Sotomayor about the outcome of the World Series,” Alito told the Philadelphia Daily News in a baseball-themed Q&A. “She’s a Yankees fan. Justice Scalia is a Yankees fan. So we had a bet, cheesesteaks vs. Nathan’s hot dogs and I had to provide Nathan’s hot dogs.”

Alito, whose Supreme Court chambers is filled with Phillies gear and memorabilia, took his entire staff to see the Phillies play at Nationals Park for the first game of the season earlier this month.  The Trenton native – who played second base from little league until high school when nearsightedness and the use of curve balls put an end to his baseball career – told the paper that he could have easily been a Yankees fan like his two colleagues.

“I could have,” he said. “My father was a Phillies fan, so I guess that’s the explanation. But, yeah, my neighborhood was split down the middle. My friend across the street and his father were rabid Yankees fans. In those days there were some [Brooklyn] Dodgers fans and New York Giants fans, but I was a Phillies fan from the beginning, when I first became interested in baseball.”

And baseball is a popular topic among the justices of the Court, he said.

“Justice [Stephen] Breyer is a Red Sox fan and Justice [John Paul] Stevens is a Cubs fan. He claims to have been present when Babe Ruth called his shot [in the 1932 World Series] at Wrigley Field,” Alito said with a smile. “Although about 200,000 people claim to have been in attendance at that game, I trust him that he actually was.”

Biden backs Obama’s Citizens United slam

As some political and legal pundits spend the morning debating whether it was proper for President Barack Obama to call out the Supreme Court during his State of the Union address last night, others are pondering whether it was fitting for Justice Samuel Alito to make his disapproval of Obama’s comments visibly apparent.

But Vice President Joe Biden took to the airways this morning to defend the president’s remarks about the ruling in Citizens United v. FEC, calling the ruling, which removed limits on corporate spending in federal election campaigns, “the last thing we need.”

“The president didn’t question the integrity of the court. He questioned the judgment of it,” Biden said on “Good Morning America” this morning, according to the AP. “A lot of these multinational corporations are owned as much by foreign interests as they are by domestic interests.”

“I think it’s an outrageous decision,” Biden said later. “Not outrageous in the fact that these guys are bad guys, but outrageous in the way you read the Constitution [to allow] excessive amounts of money be able to influence the outcome of elections.”

He echoed Obama’s call for a congressional remedy. “I think it was dead wrong and we have to correct it,” said Biden.

Justice Alito’s head shake heard ’round the Union

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:

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

“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