Was Chief Justice's Comment on Special Masters Too Harsh?
The National Law Journal
November 18, 2009
Continuing to reverberate around Supreme Court circles is a comment made by Chief Justice John Roberts Jr. during oral argument last month in a case involving the Court's so-called "original jurisdiction." Roberts bluntly characterized the special masters appointed by the Court in such cases as "more akin to a law clerk than a district judge." It came across to some in the field as a demeaning comparison, but some former special masters refused to talk about the comment, not wanting to cross the chief justice.
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Sotomayor Adds Celebrity Element to High Court
The Associated Press
November 18, 2009
Since becoming the first Hispanic U.S. Supreme Court justice, Sonia Sotomayor has mamboed with movie stars, exchanged smooches with musicians at the White House and thrown out the first pitch for her beloved New York Yankees. A famous jazz composer even wrote a song about her: "Wise Latina Woman." Few Americans can name most of the justices, but Sotomayor has become a celebrity -- all without having made a single major decision at the nation's highest court.
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Sotomayor Emerges as Frequent -- and Tough -- Questioner
The National Law Journal
November 16, 2009
As Sonia Sotomayor wraps up her second full argument cycle as a U.S. Supreme Court justice, it has become clear that she is a prolific and fearless questioner. She can be tenacious and direct, bordering on harsh. She can be impatient when the lawyer does not answer her question precisely. She knows her stuff and clearly loves the give and take. All of which is to say, she fits right in with her new colleagues. What's notable is that Sotomayor has tuned into the high court's wavelength so early in her tenure.
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Justices Grapple With Constitutionality of Juvenile Sentences
The National Law Journal
November 10, 2009
The Supreme Court appeared divided 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 argued that the sentences for their clients constitute cruel and unusual punishment under the Eighth Amendment. Both lawyers relied heavily on the analysis in the Court's 2005 decision striking down the death penalty for juvenile murderers.
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Home Court Showdown at the Supreme Court
The National Law Journal
November 10, 2009
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 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.
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Court Denies Execution Stay in D.C. Sniper Case
The National Law Journal
November 10, 2009
The planned execution tonight of John Allen Muhammad remains set following the U.S. Supreme Court's refusal on Monday to stay the death sentence. Muhammad was convicted in 2003 in state court in Virginia for his role in the 2002 Beltway sniper attacks that killed 10 people. Justices John Paul Stevens, Sonia Sotomayor and Ruth Bader Ginsburg filed a two-page statement, saying: "This case highlights once again the perversity of executing inmates before their appeals process has been fully concluded."
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A Math Geek's Ride to the High Court in Landmark Patent Fight
The National Law Journal
November 09, 2009
Bernie Bilski and Rand Warsaw were just a couple of "math geeks for hire" when they applied for a patent in 1997. The case over that patent application, set for argument at the Supreme Court today, has been touted as the biggest patent case in decades, with implications for inventions from software to medical diagnostics, not just so-called "business methods" like the one at issue. Warsaw said he's "in awe" of the gravity of the dispute, which has drawn 67 amicus briefs from all business sectors and on all sides.
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Note to Justices: Specter Saw You on TV
The National Law Journal
November 06, 2009
Sen. Arlen Specter, D-Pa., has been a longtime advocate of televising sessions of the U.S. Supreme Court, a quest that has repeatedly fallen on deaf ears at the high court. But in a speech on the Senate floor Thursday, Specter noted that the justices haven't exactly been camera-shy of late, appearing in television interviews and a recent C-SPAN documentary. Specter is hoping to line up his colleagues behind a resolution he introduced Thursday that would get the "sense of the Senate" on cameras in the Court.
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Law Schools Help Extend Court Database to 1792
The National Law Journal
November 06, 2009
A group of law schools will help expand an online U.S. Supreme Court database so that it reaches back to the court's first recorded decision in 1792. The schools received an $874,000 National Science Foundation grant to begin the four-year project, which will add 19,675 cases to a database that now extends from the Court's 1953 term through 2008. The group will post 4,400 cases by next summer and add more in installments each year.
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High Court Considers Limits of Prosecutorial Immunity
The National Law Journal
November 05, 2009
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. At issue in the case -- brought by two men who were freed after serving 25 years in prison for murder -- is the scope of immunity for prosecutors who are performing police-like duties before trial and then either participate or don't participate in the trial where they would acquire full immunity.
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Time Gets Away From the Supreme Court
The National Law Journal
November 03, 2009
There was an "Alice in Wonderland" quality to the Supreme Court Monday morning, where clocks throughout the building were off-kilter -- apparently triggered by an unsuccessful effort to turn them back when daylight saving time ended early Sunday morning. Chief Justice John Roberts Jr. took note of the glitch from the bench, and the ancient clocks in the courtroom kept changing times as the morning arguments proceeded.
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Justices to Decide Validity of 2-Member NLRB Decisions
The National Law Journal
November 03, 2009
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 disputes over labor practices and union representation. The federal appeals courts have split over the board's authority to act, and at least 60 challenges to the validity of two-member rulings have been filed.
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Supreme Court Rejects Certified Question From 5th Circuit in Kidnap Case
The National Law Journal
November 03, 2009
Under federal law dating back to 1802, one way for a case to wind up before the Supreme Court is for a federal appeals court to certify a question to the justices. It has never been a frequently traveled path to the high court, but it has been allowed from time to time -- though not since 1981. On Monday the justices rejected such a request by the 5th Circuit to resolve a statute-of-limitations issue that could affect prosecution of long-ago civil rights cases in the South.
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Argument Report: Who Can Intervene in Original Jurisdiction Cases?
Law.com
October 15, 2009
During arguments in a water dispute that came to the Supreme Court under its "original jurisdiction" over conflicts between states, the justices considered 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.
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High Court Justices Doubt Lawyers Should Be Paid Extra for Winning
The National Law Journal
October 15, 2009
All the Supreme Court justices are 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. Civil rights groups assert that the prospect of enhanced fees is necessary to attract quality representation in the litigation they pursue. But several justices seemed more worried about high legal fees than encouraging lawyers to do public-minded work.
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Conservative, Liberal Groups Unite in Legal Fee Case at High Court
The National Law Journal
October 14, 2009
An attorney fee case the U.S. Supreme Court will hear on Wednesday -- the first of two important fee challenges to be decided by the Court this term -- has created an unusual alliance among a host of public interest legal organizations spanning the political spectrum. 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.
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A Day About Bad Lawyering at the High Court
The National Law Journal
October 14, 2009
Lawyer competence was the topic of the day at the U.S. Supreme Court on
Tuesday, as the justices heard two cases involving claims of ineffective
assistance of counsel that violated the Sixth Amendment. In one case
being tracked by immigrant rights advocates, 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.
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First-Day Recusals From the Justices
The National Law Journal
October 07, 2009
The Supreme Court's 91-page orders list from Monday disposed of more than 2,000 cases that accumulated over the summer. The list noted several justices recusing in some of the cases. New Justice Sonia Sotomayor recused most often, bowing out of 76 cases on the list. That's to be expected, because she sat on the 2nd U.S. Circuit Court of Appeals before becoming a justice this summer.
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Hypotheticals Dominate Animal Cruelty Argument at High Court
The National Law Journal
October 07, 2009
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. The justices discussed scenarios including a video depicting "stuffing geese for pate de foie gras" and a pay-per-view "Human Sacrifice Channel." By the end of the riveting hour of argument, it seemed likely that a sizable majority of the Court was ready to strike down the law as too broad or too vague.
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Court-Appointed Supreme Court Counsel Takes On Copyright Case
The National Law Journal
October 07, 2009
Law professor Deborah Jones Merritt readily confessed that she feels like "the Erin Brockovich of the Supreme Court" these days. That's because, when she rises to argue for the respondent in the copyright case Reed Elsevier v. Muchnick today, there will be "so many lawyers on the other side." That's how it sometimes is for uncompensated, court-appointed counsel like Merritt. "I got a call out of the blue, and of course I said yes," said Merritt, who will be making her first argument before the Court.
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High Court Debates Value of Attorney-Client Privilege
The National Law Journal
October 06, 2009
A Georgia company's efforts to resist disclosure of communications with its lawyer provoked a rare discussion at the U.S. Supreme Court over the importance of attorney-client privilege. The case asks whether a party can file an interlocutory appeal of a judge's finding that it has waived the privilege in an order releasing material for discovery. Several justices seemed skeptical that the attorney-client privilege should be protected any more strongly than other privileges or other grounds for appealing judicial orders.
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Supreme Court Opens New Term With a New Justice
The National Law Journal
October 06, 2009
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. Unlike some new justices who start off asking few, if any, questions, Sotomayor was a frequent interrogator, often formulating her queries as declarative statements about an aspect of the case, followed by the question, "Correct?"
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First Argument of Supreme Court Term Postponed
The National Law Journal
October 05, 2009
In an extremely rare move, the Supreme Court has postponed the first oral argument scheduled for its new term Monday, South Carolina v. North Carolina. An announcement from the Court came Sunday night. The official reason given was that "family illness" has left Eric Miller, assistant to the U.S. Solicitor General, unable to argue in the case. The case is an important dispute over which parties are entitled to intervene in so-called "original jurisdiction" cases.
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Corporate Disputes Dominate the Docket as a New Justice Joins the Court
The National Law Journal
September 29, 2009
The Supreme Court's business-heavy docket this term seems almost tailor-made to engage and challenge its newest member, Justice Sonia Sotomayor. A one-time intellectual property litigator and a veteran judge from the 2nd Circuit, Sotomayor is unlikely to hesitate to jump into the mix on corporate issues. In fact, during a special Sept. 9 reargument of a campaign finance case, Sotomayor made a comment that has some wondering if she has a re-examination of the foundations of corporate law on her to-do list.
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Justices to Take Up Lawyer Ethics, Errors
The National Law Journal
September 28, 2009
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, or even none, involving lawyering. The upswing may reflect a larger movement toward greater scrutiny of the legal profession, particularly in the wake of corporate and government scandals involving lawyers.
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Justice Stevens and the NRA: Unlikely Allies in Campaign Finance Case?
The National Law Journal
September 14, 2009
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.
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The 'Citizens United' Argument, by the Numbers
The National Law Journal
September 14, 2009
Supreme Court scholars and others have pointed to some statistical research about oral arguments that seems too simple to be accurate. Namely, if you want a good predictor of how a case will turn out, count up the questions from justices aimed at each side. Much more often than not, the party that gets the most questions loses. The National Law Journal tackled the transcript of the closely watched argument in Citizens United v. Federal Election Commission. So what did the numbers say?
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Sotomayor Takes Her Seat on Supreme Court
The National Law Journal
September 09, 2009
With President Barack Obama and Vice President Joe Biden watching, new Supreme Court Justice Sonia Sotomayor formally took her seat on the Court on Tuesday afternoon as Chief Justice John Roberts Jr. wished her a "long and happy career in our common calling." A beaming Sotomayor was joined in the courtroom by family, friends and a star-studded list of legal heavyweights, including her predecessor, David Souter.
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Ga. Solo Eyes Second High Court Trip in Another Tax Dispute
Fulton County Daily Report
September 08, 2009
An Atlanta solo practitioner may get his second trip to the U.S. Supreme Court to defend a victory he won at the Supreme Court of Kentucky that is potentially worth more than $212 million. Last year, C. Christopher Trower was a Supreme Court novice when he won the Kentucky government's fight over the taxation of municipal bonds. Both he and his opposing counsel in the latest case say there are good reasons for the nation's highest court to take up the latest Kentucky tax case, too.
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Supreme Court Opens Up to C-SPAN
The National Law Journal
September 08, 2009
A new justice joining the Supreme Court is something of a mixed blessing, it turns out. While Chief Justice John Roberts Jr. called it "an exciting part of life at the Court," Justice Clarence Thomas noted, "You have to start all over; the chemistry is different." Justice Anthony Kennedy added, "It's stressful for us, because we so admire our colleagues." These comments and more will be aired on C-SPAN as part of a series that resulted from unusual access to the Court and to the justices for cable channel.
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In Revealing New Memoir, a Friend Remembers Rehnquist
The National Law Journal
September 08, 2009
A soon-to-be-published memoir by a friend of the late Chief Justice William Rehnquist offers a revealing personal glimpse of the justice's later years, including his handling of the impeachment trial of President Bill Clinton in 1999 and the Bush v. Gore case of 2000. Herman Obermayer's book also offers the first public account of Rehnquist's battle with thyroid cancer and suggests that, until late July 2005, the justice fervently believed he would survive and be able to remain on the Court.
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After Striking Out With Ginsburg, Attorney for Catholic Diocese Tries Scalia
The National Law Journal
September 03, 2009
If at first you don't succeed, try another Supreme Court justice. That's what Mayer Brown's Philip Lacovara did on behalf of his client, the Roman Catholic Diocese of Bridgeport, Conn., in seeking to delay release of thousands of pages of documents in sexual abuse cases brought against priests. After Justice Ruth Bader Ginsburg denied a stay of the release, Lacovara renewed his request to Justice Antonin Scalia. The stay application has now been referred to the full Court for consideration later this month.
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Stevens Slows Clerk Hiring, Fueling Retirement Speculation
The Associated Press
September 02, 2009
Supreme Court Justice John Paul Stevens has hired fewer law clerks than usual, generating speculation that the leader of the Court's liberals will retire next year. If Stevens does step down, he would give President Barack Obama his second high court opening in two years. Obama chose Justice Sonia Sotomayor for the Court when Justice David Souter announced his retirement in May. Souter's failure to hire clerks was the first signal that he was contemplating leaving the Court.
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Souter Blocks Access to His Papers for 50 Years
The National Law Journal
August 27, 2009
The New Hampshire Historical Society has announced that retired Supreme Court Justice David Souter is donating his personal and professional papers to the society. But Souter has placed an extraordinarily long restriction on public access to his papers, barring anyone -- researchers, historians, friends, journalists -- from viewing the material for 50 years. That's a lengthier seal than any justice has placed on papers in recent memory.
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High Court Justices Among Those Paying Tribute to Sen. Kennedy
The National Law Journal
August 27, 2009
The Supreme Court on Wednesday issued a pair of statements on the death of Sen. Ted Kennedy, D-Mass. -- one from Chief Justice John Roberts Jr., and the other from Justice Stephen Breyer, who worked for Kennedy 30 years ago as chief counsel to the Senate Judiciary Committee. And a handwritten note found in the recently released papers of the late Chief Justice William Rehnquist serves as an example of Kennedy's talent for making alliances and extending courtesies across the aisle and with adversaries.
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