12-15-09 --
The U.S. Supreme Court said Monday it will decide how much privacy
workers have when they send text messages from company accounts. . .
. The justices said they will review
a federal appeals court ruling that sided with California
police officers who complained that the department improperly
snooped on their electronic exchanges. The 9th U.S. Circuit Court of
Appeals in San Francisco also faulted the text-messaging service for
turning over transcripts of the messages without the officers'
consent. . . . Users of text-messaging services "have a reasonable
expectation of privacy" regarding messages stored on the service
provider's network, 9th Circuit Judge Kim Wardlaw said. Both the
city and
USA Mobility Wireless, Inc., which bought the
text-messaging service involved in the case, appealed the 9th
Circuit ruling.
12-09-09 --
U.S. Supreme Court justices of all stripes appeared sharply critical
on Tuesday of the federal law that makes it a crime to "deprive
another of honest services," leaving the often-used prosecutorial
tool in serious doubt. . . . Justice Stephen Breyer ridiculed the
law's language as so broad that as many as 140 million of the
nation's 150 million workers would violate it with offenses as minor
as telling the boss falsely that they like his hat. . . . Justice
Antonin Scalia, a longtime critic of the law, analogized it to a law
that says "Nobody shall do bad things." He asserted that it is not
the job of the Court to give the law definitions or parameters that
would make it constitutional. . . . Chief Justice John Roberts Jr.
also piled on, saying that the public "has to be able to understand
the law, and if it can't, it is invalid." . . . The comments came
during oral arguments in two cases testing the 21-year-old
law: Black v. U.S.,
involving media mogul Conrad Black, and Weyhrauch v. U.S., brought
by former Alaska legislator Bruce Weyhrauch. Both were convicted
under the law.
12-09-09 --
Federal court orders requiring litigants to disclose information
that they believe is protected by the attorney-client privilege do
not qualify for immediate appeal, the U.S. Supreme Court ruled
Tuesday. . . . In her first opinion since joining the Court, Justice
Sonia Sotomayor wrote that permitting successive, piecemeal appeals
of all adverse attorney-client privilege rulings "would unduly delay
the resolution of district court litigation and needlessly burden
the Courts of Appeals." . . . The Court's unanimous ruling in Mohawk Industries v. Carpenter
(pdf) stemmed from a suit filed in 2007 by Norman Carpenter, a
former shift supervisor at Mohawk, who claimed he was fired by the
Georgia-based flooring company in violation of state and federal
laws because he complained to company officials that several
temporary workers were illegal aliens.
12-09-09 --
Joseph Kindler, a notorious Northeast Philadelphia man convicted of
kidnapping and bashing an accomplice with a baseball bat and
drowning him in 1982, may die by injection after all. . . .
Yesterday, the U.S. Supreme Court overturned a lower-court ruling
that had thrown out the death sentence for Kindler, who escaped from
the Philadelphia Detention Center in 1984, was caught in Quebec, and
while awaiting extradition, escaped again from a Montreal prison a
year later. . . . On Sept. 6, 1988, Kindler, then 30, was captured
in St. John, New Brunswick, three days after he was featured on
"America's Most Wanted." . . . At issue before the high court was
whether a federal appellate judge could disregard state procedural
rules in a review of the case. Attorneys general in Pennsylvania and
25 other states joined the lawsuit.
12-08-09 --
The U.S. Supreme Court appeared inclined to leave well enough alone
Monday and not tinker with the structure of an accounting oversight board
created by the Sarbanes-Oxley Act of 2002. . . . "My goodness, there
are so many shapes and sizes" for government agencies, said Justice
Stephen Breyer at one point during oral argument in Free Enterprise
Fund v. Public Company Accounting Oversight Board. Breyer seemed to
suggest it would be hard to single out the Public Accounting
Oversight Board as uniquely unconstitutional. . . . Congress created
the board in the aftermath of the Enron and WorldCom accounting
scandals, giving the board broad and independent power to regulate
accounting firms, which had been self-regulated before.
12-07-09 --
U.S. Supreme Court Justice Antonin Scalia, who once said that
writing dissents made life worth living, wrote a scorcher last
February. . . . He was mad at his colleagues for denying review in a
case called Sorich v. U.S. that would have forced the Court to
make sense of a 21-year-old federal statute that makes it a crime to
"deprive another of the intangible right of honest services." . . .
The law has been used to penalize "a staggeringly broad swath of
behavior," Scalia wrote, and could, in his view, cover "a salaried
employee's phoning in sick to go to a ball game." Referring to the
wide disagreement in lower courts over the meaning of the law,
Scalia harrumphed that "it seems to me quite irresponsible to let
the current chaos prevail." . . . Scalia's fulminations often go
unheeded by his colleagues, but this one must have struck a chord. A
few months later, the Court started giving similar petitions a
closer look. As a result, beginning on Tuesday, the Court will hear
arguments this term in three cases challenging the "honest services"
fraud statute -- an almost unprecedented multipart investigation
into a single law in a single term. Justices say they don't
consciously seek out issues to resolve, but it would be hard to
chalk up the confluence to coincidence.
12-07-09 --
The U.S. Supreme Court has ruled that officers don’t need “ironclad
proof” of a likely serious, life-threatening injury to enter a home
under the emergency aid exception to the requirement for a search
warrant. . . . The court granted cert and summarily ruled for the
officers in a per curiam
opinion (PDF), Michigan v. Fisher,SCOTUSblog reports. . . . Two dissenters protested that
the court was "micromanaging" the affairs of state tribunals in a
case based on officers' observations and fact-based issues. . . .
The per curiam opinion summarized the situation encountered by
officers responding to a complaint of a disturbance and a report of
a man “going crazy." Through the window they could see a man who was
screaming, bleeding and throwing things. Outside they saw a pickup
truck with its front smashed, damaged fence posts and three broken
windows on the home. When they knocked, the man told officers, “with
accompanying profanity,” to get a warrant.
The
Supreme Court reverses a war hero's death sentence.
Washington Post Editorial
12-07-09 --
INMATES COMMONLY challenge convictions or sentences based on claims
that they were saddled with bad lawyers. Just as common are
decisions by judges to deny such claims. So it is extraordinary that
last week a unanimous Supreme Court tossed out a death sentence
against a Florida inmate who made such an argument. And no wonder. .
. . George Porter Jr., a Korean War veteran with two Purple Hearts,
pleaded guilty to the murder of a former girlfriend and her new
boyfriend and was sentenced to death in 1988. . . . The justices did
not overturn the convictions but lambasted the defense lawyer's
failure to introduce mitigating evidence -- including military
service and possible post-traumatic stress -- that could have led to
a reduced sentence. . . . Had Mr. Porter's counsel been "effective,"
the justices wrote in the unsigned Nov. 30
opinion, the trial judge and jury would have learned
about the kind of "troubled history" that the court has "declared
relevant to assessing a defendant's moral culpability. . . . They
would have heard about (1) Porter's heroic military service in two
of the most critical -- and horrific -- battles of the Korean War,
(2) his struggles to regain normality upon his return from war, (3)
his childhood history of physical abuse, and (4) his brain
abnormality, difficulty reading and writing, and limited schooling."
12-07-09 --
The Supreme Court agreed Monday morning to take up the first
church-state case of the term, a dispute over recognition of the
Christian Legal Society's chapter at the
University of California, Hastings College of the Law.
The case,
Christian Legal Society v. Martinez, stems from the state
law school's denial of official recognition to the Christian student
group because it does not conform to the school's requirement that
membership and leadership positions be open to all. . . . The
Hastings chapter of the society requires members and officials to
sign a statement of faith that vows devotion to Jesus Christ and has
been interpreted to bar those with a "sexually immoral lifestyle."
Student groups that are officially recognized are eligible for
meeting space, means of communicating with students and student
funds for their activities.
12-3-09 --
In the wake of the Supreme Court's refusal early Wednesday morning
to hear the last-minute appeal of a Tennessee death row inmate, two
justices clashed -- one with some bite -- over whether execution
after lengthy delay is cruel and unusual punishment under the Eighth
Amendment. . . . Tennessee executed Cecil Johnson at 1:34 a.m.
Wednesday. Johnson had spent nearly 29 years on death row for three
murders committed during a robbery of a Nashville convenience store.
He was convicted in 1981. . . . A high court majority rejected his
application for a stay of execution and his petition for review in
which he raised the Eighth Amendment challenge. . . . Justice John
Paul Stevens, joined by Justice Stephen Breyer, dissented
(pdf), saying Johnson's situation was "as compelling a case" as he
had encountered raising the constitutional concerns that Stevens
himself raised in a 1995 dissent from another denial of certiorari:
Lackey v. Texas.
12-2-09 --
In a constitutional challenge involving a Minnesota law firm, the
U.S. Supreme Court on Tuesday seemed troubled by a federal
restriction on legal advice to potential bankruptcy clients, but
less concerned about the requirement that lawyers advertise as a
"debt relief agency" if they give bankruptcy advice. . . . The
justices heard arguments in Milavetz, Gallop & Milavetz v. U.S., one
of three bankruptcy cases on the Court's docket this term. . . .
Milavetz,
a general-practice law firm in Edina, Minn., is challenging several provisions
of the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act.
The firm contends that, if those provisions are applied to lawyers,
they would violate the First Amendment, put lawyers in conflict with
state ethics regulations and compel lawyers to make misleading
disclosures in their advertising.
12-2-09 --
As attention to vaccine liability heats up, the justices of the U.S.
Supreme Court are weighing whether to hear a case from Georgia in
which the state high court has said vaccine makers could be held
liable for a boy's neurological problems. . . . In an unusual turn,
the Georgia plaintiffs have dropped their suit for now, meaning that
a similar case from Pennsylvania could be the vehicle by which the
nation's highest court decides the question. . . . At issue is
whether a 1986 federal statute that set up a special compensation system for
vaccine injuries bars
plaintiffs from suing vaccine makers in state courts for design
defects. The so-called federal vaccine court is supposed to work
under a no-fault system in which claimants who can show they were
injured by vaccines can recover from a pool of money maintained
through a vaccine tax. The system caps recovery amounts and has been
criticized as unfair to claimants.
12-1-09 --
The U.S. Supreme Court has rejected another request by former Qwest
Communications International Inc. CEO Joseph Nacchio to review his
insider trading conviction. . . . The Court revealed Monday that it
won't reconsider its decision in October not to take up his case. .
. . Nacchio was convicted in 2007 on 19 counts of
insider trading, and
he reported to prison in April.
11-30-09 -- Returning from its Thanksgiving
break, the Supreme Court on Monday issued a powerful unsigned "per
curiam" opinion agreeing that the ineffective assistance of counsel
for Florida death row inmate George Porter Jr. prejudiced the
sentence he received after his murder trial in 1988. He was
convicted in the murder of a former girlfriend and her boyfriend.
The Florida Supreme Court and the 11th U.S. Circuit Court of Appeals
previously rejected his ineffective assistance claim. . . . Ruling
in Porter v. McCollum, available
here, the Court extensively detailed Porter's "horrible
family life" and his trying Korean War experiences that earned him
two Purple Hearts and other decorations -- none of which was told to
the trial court as mitigating evidence during sentencing. The trial
lawyer's failure to introduce the evidence "did not reflect
reasonable professional judgment" and could well have affected the
outcome of the case, the Court said.
11-30-09 -- Citing a new federal law that allows
the government to withhold photographs of detainees in Afghanistan
and Iraq reportedly being abused by their United States captors, the
nation's top court has overturned an appellate court ruling agreeing
with the American Civil Liberties Union that the Pentagon must make
the images public. . . . In a brief order issued today, the U.S.
Supreme Court remanded the case to the 2nd U.S. Circuit Court of
Appeals and told it to reconsider the release of the photos under
the Freedom of Information Act in light of the new law, according to
the
Associated Press and the
SCOTUS Blog.
11-30-09 -- Alan Milavetz remembers how his
mother, "in typical Jewish-mother fashion," always urged him to be a
doctor, lawyer or engineer when he grew up. "She didn't say doctor,
debt relief agency or engineer," recalled the personal injury
lawyer. . . . For Milavetz and a number of lawyers across the
country, a 2005 federal law requiring them to advertise as a debt
relief agency -- regardless of whether they offer sporadic or
regular bankruptcy advice to clients -- irritates like a pair of
ill-fitting shoes. . . . That requirement is in the Bankruptcy Abuse
Prevention and Consumer Protection Act, a comprehensive package of
reform measures. However, it is not the only reason Milavetz, Gallop & Milavetz, a small general practice
firm in Edina, Minn., has fought the inclusion of lawyers in the
law's debt relief agency provisions all the way to the U.S. Supreme
Court.
11-30-09 -- Employment lawyers are hoping the
U.S. Supreme Court will resolve a conflict in the federal circuits
over the so-called cat's paw theory. That says an employer is liable
for discrimination when a final decision-maker is influenced by a
lower-level employee with discriminatory motives to take an adverse
action against another worker. . . . On Nov. 9, the Supreme Court
asked the solicitor general for the government's views on the case
of Staub v. Proctor Hospital, which raises the cat's paw theory. The
Court is considering whether to hear the case. . . . Vincent Staub,
a member of the Army Reserve, alleges that he was fired from his
hospital technician job in Illinois because of the influence of a
supervisor who was anti-military. Staub claims that the nonbiased,
ultimate decision-maker was influenced by the supervisor. A jury
awarded him $57,640, but the 7th U.S. Circuit Court of Appeals
reversed the verdict in March.
The
justices reverse an appeals court ruling, saying jurists wouldn't
have been swayed by Fernando Belmontes' tough childhood. Belmontes
beat a woman to death with a dumbbell to steal her stereo.
By David
G. Savage, Los Angeles Times
11-16-09 --
Reporting from Washington - The Supreme Court today for the third
time reversed the U.S. 9th Circuit Court of Appeals and restored a
death sentence for a California murderer who bludgeoned and killed a
young woman in 1981 to steal a stereo from her house. . . . In a
unanimous opinion, the justices rejected the notion that the
defendant's rights were violated by his lawyer's "ineffective
assistance of counsel." The appeals court ruled that the lawyer had
failed to stress that Fernando Belmontes had had a very difficult
childhood. . . . However, the justices said such testimony would not
likely have swayed the jury to spare Belmontes. They also said they
"simply cannot comprehend the assertion by the Court of Appeals that
this case did not involve 'needless suffering.' " The victim, Steacy
McConnell, had "her skull crushed by 15 to 20 blows from a steel
dumbbell bar" at the hands of Fernando Belmontes, the defendant. She
fought "a desperate struggle for life" but died hours later, the
court said.
11-16-09 --
Without comment, the Supreme Court on Monday morning denied review
in
Harjo v. Pro-Football Inc., a challenge brought by Native
Americans who assert that the name of the Washington Redskins is
offensive and should be denied trademark status. . . . The
long-running dispute began in 1992 when Native American groups
sought cancellation of the trademark under the provision of
the Lanham Act that prohibits trademarks that disparage
persons "living or dead." But the U.S. Court of Appeals for the D.C.
Circuit ruled that the challenge was barred by the doctrine of
laches, which acts as a statute of limitations to protect defendants
from lawsuits over long-ago violations of rights.
11-12-09 --
The Supreme Court first considered the petition in the closely
watched case of Christian Legal Society v. Martinez at its Sept. 29
closed conference. It did not act then, and according to the Court's
online docket, it has re-listed the case for five subsequent
conferences, including the conference scheduled for this Friday,
Nov. 13 -- an unusually long delay. . . . The petition challenges a
decision of the University of California,
Hastings College of the Law
to deny official recognition to the Christian student group
because it does not conform to the school's requirement that
membership and leadership positions be open to all. The Hastings
chapter of the society requires members to sign a statement of faith
that vows devotion to Jesus Christ and has been interpreted to bar
those with a "sexually immoral lifestyle." The 9th U.S. Circuit
Court of Appeals, in an unpublished two-sentence ruling in March,
said the law school's action was
"viewpoint neutral and reasonable."
11-12-09 --
Judicial Watch, the public interest group that investigates and
prosecutes government corruption, announced today that on November
3rd it filed a "Notice of Appeal"
as a first step in asking the United States Supreme Court to
consider its lawsuit filed on behalf of U.S. Foreign Service Officer
David C. Rodearmel challenging Hillary Clinton's constitutional
eligibility to serve as Secretary of State [Rodearmel
v. Clinton, et al.,
(Civil Action No.09-171) (D.D.C.)]. Following oral argument on
September 16, a special three-judge panel of the U.S. District Court
for the District of Columbia dismissed the challenge
on October 29th, ruling that Mr. Rodearmel lacked "standing" to
bring the lawsuit. The panel did not rule on the constitutional
merits of the lawsuit. . . . Judicial Watch's lawsuit,
filed on January 29, 2009, maintains that the "Ineligibility Clause"
of the U.S. Constitution prohibits Hillary Clinton from serving as
Secretary of State and that Mr. Rodearmel cannot be forced to serve
under the former U.S. Senator, as it would violate the oath he took
as a Foreign Service Officer in 1991 to "support and defend" and
"bear true faith and allegiance" to the Constitution of the United
States.
11-11-09 --
The Supreme Court this week, in an unsigned opinion, reversed relief
granted by the 6th U.S. Circuit Court of Appeals to a death row
inmate because of his lawyer's ineffective assistance. But Justice
Samuel Alito wrote separately -- and curiously -- to emphasize his
view that no "special relevance" should be given to the
American Bar Association's guidelines on the appointment
and performance of defense counsel in death penalty cases. . . . In
Bobby v. Van Hook, the justices found that, among the
6th Circuit panel's errors, was its reliance on ABA guidelines
announced 18 years after Robert Van Hook went to trial. . . . The
per curiam opinion said the Sixth Amendment entitled defendants to
representation that does not fall below an "objective standard of
reasonableness." Restatements of professional standards, the Court
added, can be useful guides as to what reasonableness entails, "but
only to the extent they describe the professional norms prevailing
when the representation took place."
11-10-09 --Protect Marriage Washington has petitioned the U.S.
Supreme Court to block the public release of the names and other
personal information of 138,000 people who signed a petition the
goal of which was to strip gay and lesbian couples of the same
domestic partnership rights enjoyed by married heterosexual couples
in Washington state. . . . The drafters of
Referendum 71, a recent ballot initiative, gained enough
petition signatures to take the issue to the voters after the
Washington Legislature passed a bill extending the domestic
partnerships benefits to gays and lesbians. Under Washington law,
people voting "yes" wanted to retain the benefits. On Nov. 3, "yes"
votes outstripped "no" votes, 52.5 percent to 47.4 percent. . . .
Groups in favor of retaining the benefits, including
KnowThyNeighbor.org, have been demanding release of the
names and addresses of those who signed the Referendum 71 petition.
11-10-09 --
U.S. Supreme Court justices from across the spectrum voiced
skepticism Monday about whether intangible business methods and
other innovations untethered to machines deserved patent protection.
The comments, some of which bordered on the derisive, came in the
long-awaited argument in Bilski v. Kappos, touted by some
as the most important patent case in decades. . . . The case
involves a patent application by Pittsburgh businessmen Bernard Bilski and Rand Warsaw for a way to help utility companies and their
customers to regularize costs by considering factors of supply,
demand, and weather. No justice who spoke seemed to view the process
as patent-eligible, but it was not certain that a vote against the
Bilski-Warsaw patent would sweep away patents for computer software
or medical diagnostics, as some have feared.
Battle over wage-and-hour action against Hertz is all about
location, location, location
Marcia
Coyle, The National Law Journal
11-10-09 --
The auto rental giant
Hertz is incorporated in Delaware, has its headquarters
in New Jersey and does its biggest volume of business in California.
So where is Hertz's "principal place of business?" . . . The answer
depends on which federal appellate court is asking the question.
During the past 51 years, federal courts have used a hodgepodge of
tests to determine a corporation's principal place of business. The
U.S. Supreme Court today, for the first time, will consider what is
the correct test in Hertz Corp. v. Friend, a case involving Hertz
employees who claim the company violated California's wage-and-hour
laws. . . . What the Supreme Court decides, in effect, will
determine the battlefields on which class action and other
litigation involving multistate corporations will be fought. Will it
be what corporations perceive to be the friendlier forum of the
federal courts or the plaintiff-sympathetic state courts?
11-10-09 --
The U.S. Supreme Court appeared divided on Monday over whether
states violate the Constitution by imposing a sentence of life
without parole on juveniles who commit nonhomicide offenses. . . .
The justices heard arguments in two separate cases from Florida in
which lawyers for Terrance Graham, who committed his crime at age
17, and for Joe Sullivan, who was 13 when convicted, argued that the
sentences are cruel and unusual punishment under the Eighth
Amendment. . . . "The sentence is unequivocal and cruel because it
rejects any hope that the adolescent can change," said Graham's
counsel, Bryan Gowdy of
Mills Creed & Gowdy in Jacksonville, Fla., in Graham
v. Florida.
11-9-09 --
The Supreme Court Monday denied John Allen Muhammad's request to
stay his execution, clearing the way for Virginia to put to death
the man who terrorized the Washington region as the Beltway Sniper.
. . . Justices John Paul Stevens, Ruth Bader Ginsburg and Sonia
Sotomayor objected to the court's haste, saying it "highlights once
again the perversity of executing inmates before their appeals
process have been fully concluded." . . . Stevens, writing for the
three, said Virginia had short-circuited the process by scheduling
Muhammad's execution for Tuesday night, earlier than the court would
normally have reviewed his petition for the court to take his case.
. . . "By denying Muhammad's stay application, we have allowed
Virginia to truncate our deliberative process on a matter --
involving a death row inmate -- that demands the most careful
attention," Stevens wrote.
11-9-09 --
In a summary disposition, the U.S. Supreme Court has ruled a federal
appeals court should not have judged a murder defendant’s
representation based on ABA standards enacted 18 years after his
trial. . . . The U.S. Supreme Court ruled in the case of Robert Van
Hook, convicted of finding his murder victim at a Cincinnati bar
catering to gay men. Prosecutors had accused Van Hook of luring the
victim to his home, then strangling him and killing him with a
kitchen knife. Van Hook was convicted and sentenced to death. . . .
The Cincinnati-based 6th U.S. Circuit Court of Appeals had ruled
that Van Hook’s lawyers were ineffective in their investigation and
presentation of mitigation evidence during the sentencing phase of
his trial. The 6th Circuit relied on ABA guidelines for capital
cases passed in 2003 that expanded on 1980 standards broadly
outlining defense counsel’s duties in all criminal cases.
11-9-09 --
Bernie Bilski and Rand Warsaw were just a couple of "math geeks for
hire" from Pittsburgh when they applied for a patent in 1997. . . .
They had an idea for making the unpredictable predictable for
utility companies: a way to make energy bills consistent, month to
month, no matter what Mother Nature had in store, weatherwise.
WeatherWise USA Inc. is the name of their company, in
fact. . . . What Bilski and Warsaw did not predict is that their
patent application would be rejected and, on appeal, would make its
way to the U.S. Supreme Court 13 years later. The case of Bilski v.
Kappos, set for argument today, has been touted as
the biggest patent case in decades, with implications for
the full range of 21st century-style inventions from software to
medical diagnostics, not just so-called "business methods" like the
one at issue.
11-5-09 --
U.S. Supreme Court justices appeared torn Wednesday over whether
prosecutors deserve total immunity from lawsuits for their official
acts, even when they fabricate evidence in pursuit of a murder
indictment and conviction. . . . The Court heard arguments in
Pottawattamie County v. McGhee and Harrington, brought by two men
who were freed after serving 25 years in prison for murdering a
retired Iowa policeman. Based on recently obtained police files,
Curtis McGhee and Terry Harrington sued prosecutors for violating
their civil rights by coercing and coaching witnesses to falsely
accuse them of the crime, even when evidence pointed toward another
suspect.
11-4-09 --
With corporate America itching for the U.S. Supreme Court to rein in
use of the Alien Torts Statute for suits alleging overseas
wrongdoing, the case that may redefine the parameters of the ATS is
shaping up as a battle of ex-Harvard law professors. On Monday the
Court asked U.S. Solicitor General Elena Kagan (the
former Harvard dean) to weigh in on
Pfizer Inc. v. Rabi Abdullahi, in which the 2nd U.S.
Circuit Court of Appeals revived the claims of Nigerians who allege
they were grievously harmed when they were administered a Pfizer
meningitis drug in a government-approved clinical trial. (Here's
the 2nd Circuit ruling, and here's
our previous coverage of it.)
11-3-09 --
The U.S. Supreme Court appeared wary Monday of second-guessing the
fees that mutual funds pay to the investment advisers who run them.
The Court heard oral arguments in Jones v. Harris Associates, a
closely watched case that could have major impact on the fee
structure in the nation's $10 trillion mutual fund industry. . . .
At issue is whether and when, under the Investment Company Act of
1970, shareholders in mutual funds can challenge what they view as
excessive fees paid to investment advisers by the funds. Business
groups urged the Court to stick with a 27-year-old standard that
gives substantial deference to the funds, but investor groups said
runaway fees have resulted from the overly close relationship
between fund boards of directors and investment advisers.
11-3-09 --
The Supreme Court on Monday agreed to rule on whether the
vacancy-riddled National Labor Relations Board has the authority to
make decisions with only two of its five members currently in
office. . . . The board has been operating with two members since
Jan. 1, 2008, and has issued more than 400 decisions resolving
allegations of unfair labor practices and disputes over union
representation, including cases involving employers' discharges of
employees for exercising their organizational rights; disputes over
secret ballot elections to select a union representative; employers'
unlawful withdrawals of recognition of union representatives, and
refusals by employers or unions to honor their obligation to bargain
in good faith. . . . At least 60 challenges to the validity of
two-member rulings have been filed in the federal appeals courts,
according to the board.
11-3-09 --
It's a rarely used, dusty corner of the Supreme Court's
jurisdiction. And on Monday the Court decided to leave it
undisturbed, rejecting
a request by the 5th U.S. Circuit Court of Appeals to
resolve a question that could affect prosecution of long-ago civil
rights cases in the South. . . . Under federal law dating back to
1802, one way to get a case before the Supreme Court is for a
federal appeals court to certify the question it raises -- in other
words, asking the justices to decide the question and instruct it on
what to do. It has never been a frequently traveled path to the
Supreme Court, but it has been allowed from time to time -- though
not since 1981. In a 1957 case, the Court suggested the appeals
courts should resolve knotty questions themselves without certifying
a question, except in "rare instances." . . . In July, the 5th
Circuit invoked the certificate method to answer a question on which
it had split 9-9: what statute of limitations applies in the federal
prosecution of James Ford Seale, a Ku Klux Klan member accused in
the kidnap and murder of two black teenagers in Mississippi in 1964.
Seale was indicted in 2007. There is no statute of limitations for
capital crimes.
11-2-09 --
The Obama administration will enter the politically tricky
immigration arena, courtesy of the Supreme Court. . . . On Monday,
the court asked the administration for its views in a challenge to
an Arizona law that punishes companies for hiring illegal aliens.
Other states with large immigrant populations will watch the next
steps closely, because their own laws and ballot measures could be
on the line. . . . "This case involves a question of exceptional
national importance: whether state legislatures and municipal
governments may override Congress' judgment concerning United States
immigration policy," attorney Carter Phillips wrote in a legal
brief.
11-2-09 --
Justices John Paul Stevens and Antonin Scalia disagree with the U.S.
Supreme Court’s refusal today to decide whether the statute of
limitations bars prosecution of a Klansman convicted of kidnapping
two black youths who were drowned 45 years ago. . . . “The question
is narrow, debatable and important,” Justice John Paul Stevens wrote
in a statement
(PDF) joined by Justice Antonin Scalia. “I see no benefit and
significant cost to postponing the question’s resolution.” . . .
Stevens noted that the issue of a prosecution deadline reached the
court via a certified question
by the New Orleans-based 5th U.S. Circuit Court of Appeals. “This
certificate presents us with a pure question of law that may well
determine the outcome of a number of cases of ugly racial violence
remaining from the 1960s,” he said.
By
Elizabeth Ahlin, Omaha World-Herald Staff Writer
11-1-09 --
A case that began in a dark used car lot 32 years ago will see the
light of the U.S. Supreme Court chamber this week. . . . The issue
before the high court isn't whether Curtis McGhee and Terry
Harrington, both of Omaha, were wrongly convicted of murdering a
retired Council Bluffs police officer. Or whether the two men were
unjustly imprisoned for 25 years. . . . The court also isn't tasked
with deciding whether county prosecutors fabricated evidence that
led to the men's conviction. . . . Rather, the question is: If
prosecutors in fact fabricated evidence, can they be sued for it? .
. . Of local interest, the high court's ruling will either halt or
propel McGhee and Harrington's lawsuits against Pottawattamie
County. . . . But the case also holds national significance. The
court could redefine the scope of prosecutorial immunity, either
making it easier or more difficult to sue prosecutors for
misconduct.
Cases of two Florida juveniles raise questions about penalty for
non-homicide crimes
By
Robert Barnes, Washington Post Staff Writer
10-29-09 --
It did not take long for the judge to determine that the convicted
rapist in front of him was irredeemable. . . . "He is beyond help,"
Judge Nicholas Geeker said of Joe Harris Sullivan. "I'm going to try
to send him away for as long as I can." . . . And then Geeker
sentenced Sullivan to life in prison without the possibility of
parole. At the time, Sullivan was 13 years old. . . . Now, 20 years
after that sentencing in a courtroom in Pensacola, Fla., the Supreme
Court will consider whether Sullivan's prison term -- and what his
supporters say is an only-in-America phenomenon of extreme sentences
for juveniles -- violates the Constitution's prohibition of cruel
and unusual punishment.
10-21-09 --
Three U.S. Supreme Court justices, including newcomer Sonia
Sotomayor, have criticized a New Jersey judge's use of a means test
to decide that a dating service sued for consumer fraud should pay
the cost of notifying up to 1,600 potential class-action
beneficiaries. . . . "To the extent that New Jersey law allows a
trial court to impose the onerous costs of class notification on a
defendant simply because of the relative wealth of the defendant and
without any consideration of the underlying merits of the suit, a
serious due process question is raised," wrote Justice Anthony
Kennedy, joined by Sotomayor and Chief Justice John Roberts Jr., in
a concurrence accompanying a denial of certiorari in DTD
Enterprises Inc. v. Wells, No. 08-1407. . . . Unlike federal
class action law that puts the onus on plaintiffs to pay the cost of
notification, New Jersey court rules give judges latitude to
allocate notification costs among the litigants.
10-20-09 --
The Supreme Court on Tuesday morning granted review in the first
Guantanamo detainee case to face the Obama Administration at the
high court level. . . . The Court's action was announced in an order
list that was issued in an unusual way. Normally, the Court issues
orders on Mondays, reporting on decisions made at its private
conferences the prior Friday. But because several justices were in London to mark the
opening of the United Kingdom Supreme Court
last Friday, that conference was canceled and held Monday instead,
resulting in the delayed list. Also on the list was the denial of
review in a Virginia drunk driving case, which drew a sharp dissent
from Chief Justice John Roberts Jr. . . . The detainee case, Kiyemba v. Obama,
asks whether federal courts, as part of their habeas powers, have
the authority to order detainees released into the United States.
The petitioners are Chinese Uighurs formerly imprisoned at
Guantanamo but now at a less restrictive facility nearby while they
seek refuge in a country other than China, where they believe they
would be persecuted. Some have already been relocated to other countries.
10-16-09 --Daniel Petrocelli, a partner at O'Melveny & Myers, has
represented former Enron CEO Jeff Skilling since February 2004. But
until Tuesday, Petrocelli had little good news for his
now-imprisoned client. . . . On Tuesday the Supreme Court
handed Skilling his "first breakthrough in eight years of misery,"
Petrocelli said Wednesday in an interview from his Century City,
Calif., office.
The justices agreed to hear his appeal, setting the stage
for arguments early next year. Skilling is challenging the "honest
services" fraud law under which he was convicted, and he also claims
that the massive pretrial publicity and animosity toward him in
Houston should have led a federal trial judge to say yes to his 2004
request for a change of venue.
10-15-09 --
The nine justices of the U.S. Supreme Court are all lawyers, but
most showed little empathy for their fellow attorneys on Wednesday
as they debated whether legal fee awards can be enhanced for
superior performance or exceptional results under a federal
fee-shifting statute. . . . The justices heard arguments in Perdue
v. Kenny A., brought by the state of Georgia to challenge a $4.5
million fee enhancement it was ordered to pay by a district court
judge to reward lawyers who succeeded in reforming the state foster
care system in a long-running class action. The enhancement would be
on top of a $6 million "lodestar" award based on prevailing fees and
hours billed. Lawyers for
Children's Rights Inc. and a private Atlanta firm worked
on the case. . . .
Civil rights groups from across the political spectrum
are watching the dispute, asserting that the prospect of enhanced
fees is necessary to attract quality representation in the lengthy
and complex litigation they pursue. But during the hourlong
argument, several justices seemed more worried about high legal fees
than in encouraging quality lawyers to do public-minded work.
10-15-09 --
During arguments at the Supreme Court Tuesday in a water dispute
that came to the Court under its "original jurisdiction" over
conflicts between states, discussion of the issues led the justices
into some broader questions about the nature of original
jurisdiction cases and the role of special masters appointed by the
Court to assist in their adjudication. . . . Chief Justice John
Roberts Jr. seemed especially protective of the Court's role in such
matters, returning a number of times to the idea that they are a
unique and important subset of the Court's cases. At one point
during the argument he expressed concern that if non-state entities
are allowed to intervene in the cases, "private parties are going to
hijack our original jurisdiction." . . . The case, South Carolina v.
North Carolina, involves a dispute over the apportionment of water
from the Catawba River, which flows between the two states.
10-14-09 --
Lawyer competence was the topic of the day at the U.S. Supreme Court
on Tuesday, as justices heard two cases involving claims of
ineffective assistance of counsel that violated the Sixth Amendment.
. . . In one, a lawyer's flawed advice exposed his client to
deportation. In the other, the defense lawyer in a capital case
called his client sick and twisted during a closing argument, and
minimized mitigating evidence that might have helped avoid the death
penalty. . . . In the first case, Padilla v. Kentucky, a lawyer told
his client Jose Padilla, a permanent resident alien arrested for
drug trafficking, that pleading guilty as part of a plea agreement
would not expose him to deportation. That advice was flat wrong. . .
. Padilla sued in 2004, claiming ineffective assistance that
deprived him of his constitutional rights. But the Kentucky Supreme
Court ruled that incorrect advice on matters that are collateral to
the criminal case don't make out a case of ineffective assistance
under the Supreme Court's
Strickland v. Washington standard.
10-14-09 --
With two cases on its docket already addressing the federal law on
"honest services" fraud, it's fair to wonder why the Supreme Court
added a third, but that's what the justices did Tuesday morning,
granting review of an appeal filed by one-time Enron CEO Jeffrey
Skilling. . . . The Court will hear arguments in December on what is
needed to prove such a fraud in a case involving former media mogul
Conrad Black (Black v. United States) and another where the
defendant is a state official accused of mail fraud (Weyhrauch v.
United States.) Skilling even filed an amicus brief in the Black
case, and Solicitor General Elena Kagan urged the Court to hold
Skilling's appeal pending the outcome of Black. Skilling's case
addresses a slightly different aspect of the law, but Kagan said the
outcome of the Black case could define the scope of the law in ways
that would affect Skilling's appeal.
Editor's note: Details of the case
may be disturbing to some readers.
10-13-09 --
The Supreme Court will delve into the shadowy world of sadomasochism
next year as it looks into the case of a sex trafficker, known as
the "S&M Svengali," whose criminal conviction had been set aside. .
. . The justices Tuesday agreed to accept the government's appeal of
a case involving Glenn Marcus, who had been sentenced to nine years
in prison for the sexual abuse, physical mutilation and
psychological humiliation of a woman who had agreed to be
photographed as his "sex slave." . . . A federal appeals court threw
out the conviction, saying some of the offenses occurred before the
2000 Trafficking Victims Protection Act, which was used to prosecute
Marcus. . . . Justice Sonia Sotomayor -- who was on that appeals
court -- did not take part in the high court's consideration of
whether to accept the appeal, and is not likely to attend oral
arguments, which would take place early next year.
The
Supreme Court Wednesday looks at whether Chicago officials took too
long to return property seized in drug busts to owners who turned
out to be innocent.
By
Warren Richey | Staff writer of The Christian Science Monitor
10-13-09 --
Asset forfeiture is one of law enforcement's most potent weapons
against drug crimes. When private property such as cars, boats,
houses, and money are used in a narcotics transaction, US laws allow
the police not only to seize those assets but to profit from the
seizures. . . . But a problem arises when the confiscated property
belongs to someone unaware that crimes were taking place. In such
instances, it can take a year or more for the owner to get back the
seized property. . . . The US Supreme Court Wednesday takes up a
case examining whether a federal appeals court was right when it
ruled that officials in Chicago were taking too long to return
property to innocent owners. . . . The case, Alvarez v. Smith, involves six individuals who filed
a class action lawsuit challenging Illinois' Drug Asset Forfeiture
Procedures Act (DAFPA). Three claims sought return of seized cash,
three others involved cars. . . . The law provides for a series of
administrative steps that can take from three to six months from the
time of the seizure until a forfeiture hearing is held before a
judge. The plaintiffs complained that was too long for an innocent
owner to wait.
10-13-09 --
An attorney fee case -- the first of two important fee challenges to
be decided by the Supreme Court this term -- has created an unusual
alliance among a host of public interest legal organizations
spanning the political spectrum. . . . From the conservative
Liberty Legal Institute in Texas to the liberal
American Civil Liberties Union, the groups are backing
Children's Rights Inc. in New York, in Perdue v. Kenny
A., which the justices will hear on Wednesday. . . . The high court
case asks whether an attorney fee award under a federal fee-shifting
statute can ever be increased above the basic fee calculation
because of the attorneys' outstanding performance and the results
they obtained.
10-13-09 --
Last February, Justice Antonin Scalia launched one of the verbal
broadsides for which he is so well known — this time, a blast at the
federal “honest services” law, a law that dates from 1988. Though
that law “consists of only 28 words,” Scalia noted, it has been
“invoked to impose criminal penalties upon a staggeringly broad
swath of behavior, including misconduct not only by public officials
and employees but also by private employees and corporate
fiduciaries…Without some coherent limiting principle to define what
‘the intangible right of honest services’ is, whence it derives, and
how it is violated, this expansive phrase invites abuse by
headline-grabbing prosecutors in pursuit of local officials, state
legislators, and corporate CEOs who engage in any manner of
unappealing or ethically questionable conduct.”
10-8-09 --
The U.S. Supreme Court on Wednesday grappled with a major
establishment clause dispute over a Latin cross that has stood for
more than 70 years as a war memorial on federal land in the Mojave
Desert of California. Justices seemed to be seeking a narrow way to
decide the case, often getting bogged down in procedural matters,
but there were also moments of drama. . . . At one point late in the
arguments in Salazar v. Buono, American Civil Liberties Union
lawyer Peter Eliasberg, in challenging the placement of the cross on
public land, suggested the cross honored "just Christians." Justice
Antonin Scalia, who is Catholic, angrily interjected, "The cross
doesn't honor non-Christians who fought in the war?" He added, "I
assume it is erected in honor of all of the war dead. The cross is
the most common symbol of the resting place of the dead." . . . To
which Eliasberg replied, "The cross is the most common symbol of the
resting place of Christians. I have been in Jewish cemeteries. There
is never a cross on a tombstone of a Jew." . . . Scalia's quick
retort was, "I don't think you can leap from that to the conclusion
that the only war dead that cross honors are the Christian war dead.
I think that's an outrageous conclusion."
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10-7-09 --
It was a day of wild hypotheticals Tuesday, as the U.S. Supreme
Court reached far and wide for help in deciding whether a federal
law that makes it a crime to depict animal cruelty violates the
First Amendment. . . . By the end of the riveting hour of argument
in United States v. Stevens, it seemed likely that a sizable
majority of the Court was ready to strike down the law as too broad
or too vague. . . . "Certainly the tone of the argument would
suggest that the statute is in trouble," said
Andrew Tauber of Mayer Brown, who attended the argument
and filed a brief against the law for the
National Coalition Against Censorship. The law sweeps so
broadly, Tauber added, that "it takes very little imagination to
come up with dozens of hypotheticals" of depictions that could be
vulnerable to prosecution but should be protected by the First
Amendment. . . . That's just what the Court did, for much of the
hour.
10-6-09 --
Supreme Court Justice Sonia Sotomayor lived up to her billing as a
forceful questioner Monday as the Court opened its fall term with
two oral arguments and an order list disposing of hundreds of cases
that piled up on its doorstep over the summer. . . . Though she and
the rest of the Court sat for
a special session in a reargued case from last term from
last term on Sept. 9, Monday was the first routine oral argument
sitting of the new term. Unlike some new justices who start off
asking few, if any, questions, Sotomayor was a frequent
interrogator, often formulating her queries as a prosecutor or trial
lawyer might: declarative statements about an aspect of the case,
followed by the question, "Correct?" She addressed lawyers 19 times
in the first case and 36 times in the second argument, at one point
apologizing for cutting off Justice Stephen Breyer. . . . When she
was first
nominated to the high court in May, detractors said that
Sotomayor had a reputation for bullying the lawyers before her
during her tenure on the 2nd U.S. Circuit Court of Appeals.
Sotomayor's calm demeanor at
her confirmation hearing appeared to neutralize that
criticism.
10-6-09 --
The U.S. Supreme Court delayed action Monday on employer fees in San
Francisco's groundbreaking health care program and instead sought
advice from the Obama administration, even as the president
struggles to overhaul health coverage nationwide. . . . The
president has made health care reform a top domestic priority, yet
his administration has been noticeably quiet during the legal fight
over San Francisco's program - one touted by some experts as a
potential model for the nation. The Bush administration had urged
two federal courts to overturn the city law, which requires
companies with more than 20 employees to provide health insurance
benefits or pay fees that cover the employees' health care at city
hospitals and clinics. . . . The question of whether employers
should be required to provide health insurance or pay into a public
pot is a central dispute in the national debate.
Tony
Mauro and Marcia Coyle, The National Law Journal
10-1-09 -- The U.S. Supreme Court on Wednesday
waded back into the contentious debate over the Second Amendment,
agreeing to consider a Chicago case that will answer a question it
left unanswered last year: whether the individual right to bear arms
applies against state and local gun restrictions as well as federal.
. . . The case, McDonald v. Chicago, could also intensify a debate
within the Court and academia about the best way to apply or
incorporate rights embodied in the U.S. Constitution to states.
"This case is about a lot more than guns," said Doug Kendall of the
Constitutional Accountability Center, a liberal group that favors
incorporation of rights based on the privileges or immunities clause
of the 14th Amendment. . . . Acting on pending petitions filed
before and during its summer recess, the Court announced it would
add 12 new cases to its argument docket, including the Chicago case,
a sequel to the landmark D.C. v. Heller decision from June 2008. In
Heller,
the Court for the first time declared an individual right to bear
arms. But because the case was from the District of
Columbia, a federal enclave, the Court declined to rule whether the
right also applies when states and localities enact restrictions on
gun use.
9-30-09 --
The U.S. Supreme Court has agreed to decide whether a defendant’s
Sixth Amendment rights were violated because there were only three
African Americans among the jury pool available to hear his case.
The Supreme Court granted certiorari
today in the case of Diapolis Smith, who was found guilty of a
second-degree murder by an all-white jury in Kent County, Mich., in
1991, the
Associated Press reports. The pool of 60 to 100
prospective jurors for Smith’s case had only three blacks. At issue
is whether Smith’s right to a fair cross section of the jury was
violated, according to the
petition for certiorari (PDF posted by SCOTUSblog).
9-29-09 --
Fighting for the First Amendment often makes for odd bedfellows. In
pending cases for the coming Supreme Court term, free-speech
advocates find themselves on the side of corporations seeking to
influence elections, creators of videos depicting animal cruelty
and, oh, yes, bankruptcy lawyers. All in a day’s work. . . . . Also
on the Court’s short but provocative First Amendment docket for the
fall is a case asking whether an establishment-clause problem
created by a Christian cross displayed on federal Mojave Desert land
can be cured by Congress' selling the land on which it stands to
private owners — and who has standing to challenge the move. . . . .
The most controversial First Amendment case on the docket,
United States v. Stevens, is a challenge to a 1999
federal law criminalizing the depiction of animal cruelty, as well
as the sale or possession of those depictions. Even though the law
contains an exemption for journalistic or educational depictions,
First Amendment advocates — as well as a range of organizations for
nature photographers and for fishing, hunting and outdoor
enthusiasts — say the law sweeps too broadly and would create the
first major new exception to freedom of expression in 25 years.
9-28-09 --
The U.S. Supreme Court begins its term Oct. 5 with new Justice Sonia
Sotomayor on board and a docket dominated by corporate disputes. So
far, no employment law cases and no environmental disputes have been
granted review and, for the first time in a while, no pre-emption
cases. But there are potential blockbusters on patents, separation
of powers, antitrust law and white-collar crime. The justices will
also consider cases involving the legal profession that could
dramatically alter the day-to-day practice of law.
Six
cases on the calendar will have direct consequences for the practice
of law
Marcia Coyle, The National Law Journal
9-28-09 --
How lawyers do their jobs -- from the type of advice they give
clients to the calculation of fees -- moves to the fore in the new
U.S. Supreme Court term in six cases that could dramatically alter
the day-to-day practice of law. . . . The justices in recent terms
typically have taken two or three cases -- and sometimes none --
involving the legal profession. The six cases this term have roots
in the First Amendment, habeas corpus, bankruptcy law, civil
procedure, privileged materials and the Sixth Amendment. . . . "At
the beginning of every term, there is an effort to try to paint the
term with one brush," said Stephen Vladeck of American University
Washington College of Law. "The brush that seems most apt at this
point is: This is a term about lawyering."
9-21-09 --
On May 18, the U.S. Supreme Court
gave corporate defendants a gift that keeps on giving:
the Iqbal decision, which has made it easier than ever for
defendants to shut down lawsuits before they get to the costly
discovery stage. . . . Now, four months later, civil rights and
consumer groups and trial lawyers are beginning to push back. They
met on Sept. 14 in Washington, D.C., to lay plans for a two-pronged
battle to undo what they see as a devastating blow to their
lifeblood litigation. The campaign will be aimed at Congress as well
as the rulemaking process for federal courts. Hearings are being
planned for October in the House and the Senate. . . . "This ruling
has threatened to upend the way we have been doing things for a very
long time," said John Payton of the NAACP Legal Defense and
Educational Fund, which is part of the growing coalition. "The alarm
is quite real." . . . In Ashcroft v. Iqbal (pdf), which built on the 2007 Bell Atlantic Corp. v. Twombly (pdf) decision, the
Court said plaintiffs must include in their initial pleadings
substantial, not "threadbare," factual assertions that give "facial
plausibility" to their claims -- a major shift from the tradition of
"notice pleading," which required only a simple statement of the
case against the defendant.
9-18-09 --
The next great First Amendment battle in the Supreme Court concerns,
of all things, dogfight videos. . . . The ones at issue in the case
are old and grainy, and they feature commentary from the defendant,
Robert J. Stevens, an author and small-time film producer. Mr.
Stevens calls himself an educator, and his subject is the history
and status of pit bulls. . . . “For centuries,” Mr. Stevens
exclaimed on one videotape, “the American pit bull terrier has
reigned supreme as the gladiator of the pit!” . . . Mr. Stevens, 69,
had nothing to do with the dogfights themselves. But he did compile
and sell tapes showing them, and that was enough to earn him a
37-month sentence under
a 1999 federal law that bans trafficking in “depictions
of animal cruelty.”
9-17-09 --
In her maiden Supreme Court appearance last week, Justice Sonia
Sotomayor made a provocative comment that probed the foundations of
corporate law. . . . During arguments in a campaign-finance case,
the court's majority conservatives seemed persuaded that
corporations have broad First Amendment rights and that recent
precedents upholding limits on corporate political spending should
be overruled. . . . But Justice Sotomayor suggested the majority
might have it all wrong -- and that instead the court should
reconsider the 19th century rulings that first afforded corporations
the same rights flesh-and-blood people have. . . . Judges "created
corporations as persons, gave birth to corporations as persons," she
said. "There could be an argument made that that was the court's
error to start with...[imbuing] a creature of state law with human
characteristics." . . . After a confirmation process that revealed
little of her legal philosophy, the remark offered an early hint of
the direction Justice Sotomayor might want to take the court.
9-14-09 --
During last week's extraordinary Supreme Court oral
argument in Citizens
United v. Federal Election Commission, some of the more remarkable
moments came when Justice John Paul Stevens repeatedly referred,
with approval, to a brief filed in the case by the National Rifle Association.
Not a pairing you might expect, but Stevens saw in the brief a
possible way to rule on the case narrowly, without totally upending
major Court precedents on corporate and union spending in election
campaigns. . . . The NRA brief, authored by Charles Cooper of Cooper & Kirk
in Washington, D.C., joined the opponents of spending restrictions
by agreeing with Citizens United that the precedents, Austin v.
Michigan Chamber of Commerce and a section of McConnell v. FEC,
should be overturned. But Cooper also suggested a more limited
alternative that caught Stevens' eye: reversing those precedents
only to the extent that they permit the government to restrict
campaign spending by non-profit advocacy groups -- like the NRA, he
said -- that use individual donations to fund political speech. That
would have the effect of striking down the so-called Wellstone
Amendment in the McCain-Feingold law, which included such non-profit
groups in the ban on campaign spending.
9-10-09 --A
majority of the U.S. Supreme Court appeared poised Wednesday to
reverse or limit a line of precedents with roots -- some more than a
century old -- that has allowed the government to ban corporate and
union expenditures in election campaigns. . . . After an
extraordinary 90 minutes of oral argument in Citizens United v.
Federal Election Commission, it seemed likely that the Court,
swayed by arguments in favor of First Amendment rights for
corporations, was ready to embark on a new course that critics say
could unleash a flood of corporate wealth into elections that are
already awash in more regulated kinds of campaign spending.
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July 2009
"Packing
the Court: The Rise of Judicial Power and the Coming Crisis of the
Supreme Court.
6-29-09 --
The Supreme Court ruled Monday that white firefighters in New Haven,
Conn., were unfairly denied promotions because of their race,
reversing
a decision that high court nominee Sonia Sotomayor endorsed as an
appeals court judge. . . . New Haven was wrong to scrap a
promotion exam because no African-Americans and only two Hispanic
firefighters were likely to be made lieutenants or captains based on
the results, the court said Monday in a 5-4 decision. The city said
that it had acted to avoid a lawsuit from minorities. . . . The
ruling could alter employment practices nationwide, potentially
limiting the circumstances in which employers can be held liable for
decisions when there is no evidence of intentional discrimination
against minorities. . . . "Fear of litigation alone cannot justify
an employer's reliance on race to the detriment of individuals who
passed the examinations and qualified for promotions," Justice
Anthony Kennedy said in his opinion for the court. He was joined by
Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia
and Clarence Thomas. . . . In dissent, Justice Ruth Bader Ginsburg
said the white firefighters "understandably attract this court's
sympathy. But they had no vested right to promotion. Nor have other
persons received promotions in preference to them."
6-29-09 --
In the now famous "white firefighter" affirmative action case --
Ricci v. DeStefano -- the Supreme Court today, in a
5-4 ruling (.pdf), reversed the decision of a unanimous
Second Circuit Court of Appeals panel (which included Judge Sonia
Sotomayor) and held that the firefighters were the victims of
unlawful racial discrimination. The Court split along standard
ideological lines (Roberts, Thomas, Scalia, Alito and Kennedy in the
majority), with Kennedy writing the Court's opinion. Four Justices
agreed with the Second Circuit's panel, including David Souter, the
Justice whom Sotomayor has been nominated to replace. Several
points are noteworthy about this decision: . . . (1) In light of
today's ruling, it's a bit difficult -- actually, impossible -- for
a rational person to argue that Sotomayor's Ricci decision places
her outside the judicial mainstream when: (a) she was affirming the
decision of the federal district court judge; (b) she was joined in
her decision by the two other Second Circuit judges who, along with
her, comprised a unanimous panel; (c) a majority of Second Circuit
judges refused to reverse that panel's ruling; and now: (d) four out
of the nine Supreme Court Justices -- including the ones she is to
replace -- agree with her. . . . Put another way, 11 out of the 21
federal judges to rule on Ricci ruled as Sotomayor did. It's
perfectly reasonable to argue that she ruled erroneously, but it's
definitively unreasonable to claim that her Ricci ruling places her
on some sort of judicial fringe.
6-29-09 --
The U.S. Supreme Court has ruled that federal law does not preclude
states from suing over discriminatory lending practices of national
banks. . . . Justice Antonin Scalia wrote the majority opinion in
the case, and was joined by liberal Justices Ruth Bader Ginsburg,
David H. Souter, John Paul Stevens and Stephen G. Breyer,
SCOTUSblog reports. . . . The Office of the Comptroller
of the Currency had argued that the National Bank Act prevents
states from examining lending practices of national banks suspected
of charging higher mortgage interest rates to minorities. In an
opinion turning on statutory construction and Supreme Court
precedent, Scalia found no pre-emption of state efforts. . . . At
issue, Scalia wrote, is whether a regulation purporting to bar state
law enforcement efforts is a reasonable interpretation of the
National Bank Act. A provision in the federal law bars federal banks
from being subjected to “visitorial powers.” Scalia said the phrase,
although slightly ambiguous, did not include a ban on ordinary
enforcement of state law. Regulations purporting to pre-empt such
state actions went too far, he wrote. / The case is Cuomo v. The
Clearing House Association.
Lawyers say release from federal supervision may get easier in wake
of Supreme Court ruling
Tony
Mauro, The National Law Journal
6-29-09 --
Within 24 hours of
the U.S. Supreme Court's June 22 ruling rescuing the
Voting Rights Act from constitutional oblivion, the decision
produced a potential client for
J. Gerald Hebert. . . . Hebert got a call from a North
Carolina town that, before the ruling, was not eligible to get out
from under the federal supervision of its election procedures
required under the act. . . . But now that the Supreme Court had
loosened the definition of eligibility in its 8-1 decision in Northwest Austin Municipal Utility District Number One v. Holder,
Hebert said the town -- and possibly many more jurisdictions like it
-- is interested in obtaining what is called a "bailout" from the
statute so it can take back control of its voting laws.
"[T]he
opinion which gives to the judges the right to decide what laws are
constitutional and what not, not only for themselves, in their, own
sphere of action, but for the Legislature and Executive also in their
spheres, would make the Judiciary a despotic branch."
--
Thomas Jefferson (letter to Abigail Adams, 11 September 1804) --
Reference: Original Intent, Barton (265-66);
original Memoir, Correspondence, and Miscellanies, From the Papers of
Thomas Jefferson
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