Will Campaign Finance Case Impact Vote on Sotomayor?
The National Law Journal
July 01, 2009
The Supreme Court's unusual order Monday delaying a decision in Citizens United v. Federal Election Commission and setting it for re-argument Sept. 9 may introduce more pressure on the Senate to confirm Supreme Court nominee Sonia Sotomayor and have her on the bench by then. Retired Justice David Souter was a reliable vote in favor of campaign finance regulations and Sotomayor's record suggests she would be a likely supporter too. Without her, the outcome on an eight-member Court would be uncertain.
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High Court Losses Stun Environmentalists
The National Law Journal
July 01, 2009
Environmentalists suffered a stunning 0-for-5 outcome in the U.S. Supreme Court this term, their "worst term ever," according to advocates and scholars. The defeats left the environmental community -- and even its traditional antagonist in these cases, the business community -- wondering where the Court is heading in this increasingly important area of the law. Is the Roberts Court pro-business, anti-environment, pro-government -- or something else?
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Justices Rule in Firefighters Bias Case, Bid Farewell to Souter
The National Law Journal
June 30, 2009
In a dramatic ending before its summer recess, the Supreme Court on Monday ruled, 5-4, that the city of New Haven, Conn., violated the civil rights of white and Hispanic firefighters when it tossed out the results of a promotion exam after no African-Americans passed it. The ruling had a quick, if uncertain, impact on the nomination of Judge Sonia Sotomayor, who was part of the 2nd Circuit panel that upheld New Haven's action. The Court also bade farewell to Justice David Souter on his final day on the bench.
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Chief Justice Advocates for Shorter Briefs, Fewer Questions
The National Law Journal
June 30, 2009
Speaking at the conference of the 4th U.S. Circuit Court of Appeals on Saturday, Chief Justice John Roberts Jr. said briefs before the high court are running too long, while the justices themselves are asking too many questions at oral argument. "I think we're getting carried away" with questioning, Roberts said. "It is a little too much domination by the bench." He even suggested giving justices timers as in speed chess, so they can see how much time they are eating up with their questions.
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Scalia Discusses Conjunctions, Contractions and Pet Peeves at Texas Bar Event
Texas Lawyer
June 29, 2009
At the State Bar of Texas' annual meeting, Supreme Court Justice Antonin Scalia and Bryan A. Garner, co-authors of the book "Making Your Case: The Art of Persuading Judges," served up tips on legal writing and oral argument -- the justice in his customary saucy and sarcastic manner. Scalia discussed some pet peeves, such as when lawyers respond to a hypothetical example by saying it is "not this case." Going through his mind at that point, Scalia said, is the thought, "I know it's not this case, you idiot."
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The Supreme Court Confirmation Process: Q&A With Sen. Ted Kaufman
The National Law Journal
June 29, 2009
Sen. Ted Kaufman, D-Del., worked behind the scenes on Supreme Court nominations for much of the last three decades, as an adviser and chief of staff to then-Sen. Joe Biden. Now, as Biden's successor and a member of the Senate Judiciary Committee, Kaufman will have the chance to question and vote on a nominee when the Senate weighs in on Judge Sonia Sotomayor. Kaufman sat down with The National Law Journal to reflect on his experiences, discuss how the process has changed -- and offer some predictions.
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Can the Voting Rights Act Survive Another Challenge?
The National Law Journal
June 29, 2009
With its ruling rescuing the Voting Rights Act from constitutional oblivion, the U.S. Supreme Court widened the escape hatch for localities chafing under federal supervision of their election procedures. The decision also gave the Court itself an escape route to avoid confronting the politically divisive choice of striking down Section 5 of the law -- the preclearance requirement that many localities dislike. Now the question is whether, and for how long, the ruling can really stave off a constitutional decision.
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Closing In on Term's End, High Court Rules in School Strip Search Case, 3 Others
The National Law Journal
June 26, 2009
Ruling in a case that struck a chord with families nationwide, the Supreme Court on Thursday said that the strip search of a middle school girl in pursuit of drugs was a violation of her Fourth Amendment right against improper search and seizure. The justices also issued rulings in a Sixth Amendment case concerning forensic evidence, a dispute regarding the adequacy of programs for English language learners and a maritime law matter. The Court indicated that Monday will be the final decision day of the term.
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False Claims Act Case Makes Second Trip to Supreme Court
The American Lawyer
June 24, 2009
The Supreme Court on Monday granted certiorari on the issue of what constitutes public disclosure under the False Claims Act. The suit itself, which is making an unexpected return trip to the high court, is no blockbuster -- "a dinky little case," in the words of John Boese of Fried, Frank, Harris, Shriver & Jacobson, who authored one of five briefs filed by high-powered amici asking the Court to grant certiorari. But the case is poised to make important law and resolve a nearly even circuit split.
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Restaurateurs Seek Supreme Court Review of San Francisco Health Insurance Mandate
The National Law Journal
June 24, 2009
An association representing the restaurant industry has filed a petition for writ of certiorari before the U.S. Supreme Court to overturn a ruling by the 9th Circuit upholding a law requiring San Francisco employers to provide health insurance to employees. A Nixon Peabody attorney who represents the Golden Gate Restaurant Association says the 9th Circuit ruling is inconsistent with Supreme Court precedent and is based on a novel theory.
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High Court's Narrow Ruling on Voting Rights Act Evokes Surprise
The National Law Journal
June 23, 2009
A U.S. Supreme Court ruling Monday that avoided a major showdown over the constitutionality of the Voting Rights Act both surprised and pleased civil rights advocates, who were nearly certain after oral arguments that the Court was poised to strike down the law outright, eliminating what they view as a crucial weapon in the struggle for political equality. But some warned that the ruling expressed serious doubt about the law's constitutionality and could form the basis of a future challenge.
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Supreme Court Sides With Student's Family in Special Ed Funding Case
The American Lawyer
June 23, 2009
Experts are already debating the impact of Monday's U.S. Supreme Court ruling in a case pitting the family of a special needs high school student against the school district that had been ordered to pay the student's private school tuition. Educators and public school officials everywhere were watching the case, and they had claimed that millions -- maybe hundreds of millions -- of dollars in public money was at stake. On Monday the Court sided, 6-3, with the student's family.
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In-Chambers Opinions: A Footnote to the Chrysler Case
The National Law Journal
June 22, 2009
The Supreme Court's handling of the fast-moving Chrysler sale continues to yield glimpses into unfamiliar corners of Supreme Court practices and traditions. The Court's per curiam opinion that cleared the way for the Chrysler sale cited a recent "in-chambers" opinion written by Justice Ruth Bader Ginsburg -- a sort of one-justice ruling that is rare and hard to categorize. Its colorful history includes a decision left on a tree stump when lawyers once tracked down a justice on a camping trip.
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Supreme Court Increases Burden on Age Bias Plaintiffs
The National Law Journal
June 19, 2009
A sharply divided U.S. Supreme Court on Thursday made it more difficult for employees to prove age discrimination charges against their employers. The majority ruled that a worker cannot establish discrimination under the Age Discrimination in Employment Act by showing that age was one motivating factor for the employer's action, but instead must show that age was the decisive factor. The practical effect of the decision, said employment lawyers, is to eliminate so-called mixed-motives cases under the ADEA.
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High Court Rejects Post-Conviction DNA Access
The National Law Journal
June 19, 2009
Criminal defendants have no federal constitutional right of access to DNA evidence after they are convicted, the U.S. Supreme Court ruled on Thursday. By a 5-4 vote, the Court concluded that establishing rules on DNA evidence should be the job of legislators, not justices. The ruling may have largely symbolic meaning, sending a mixed message about how the high court regards the power of DNA evidence, which has been available for more than 20 years and has recently exonerated more than 200 people.
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High Court Rules in Favor of Former Enron Exec in Double Jeopardy Case
The Associated Press
June 19, 2009
The Supreme Court on Thursday sided with a former Enron Corp. executive in a ruling that makes it unlikely he can be tried a second time on charges related to financial fraud at the one-time energy giant. The issue before the Court was whether a variation on the Constitution's guarantee against double jeopardy applies when the jury votes not guilty on some charges, but fails to reach a verdict on others that are based upon the same essential facts as the charges that resulted in acquittal.
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Supreme Court Rules for Travelers in 'Worst Advice' Case
The American Lawyer
June 19, 2009
Though the U.S. Supreme Court didn't pick sides in the kerfuffle between Travelers Indemnity counsel Barry Ostrager of Simpson, Thacher & Bartlett and the firm that he said offered "the worst advice any lawyer ever gave a client," Cozen O'Connor, the high court on Thursday gave Ostrager the win that really mattered, finding that Travelers is protected from asbestos-related suits by an order of the bankruptcy judge who approved the 1986 Johns-Manville asbestos trust. The ruling, however, was narrowly tailored.
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'Home Court' Advantage for High Court Justices
The National Law Journal
June 18, 2009
The last-minute challenges to the Chrysler Group LLC sale last week focused a rare spotlight on a little-known aspect of the Supreme Court's work: the justices' federal circuit court assignments. When Justice David Souter retires this summer, the Court will make new circuit assignments that, by a rare happenstance, could have special significance because they may end up giving almost all of the justices "home court" circuits -- circuits where they were raised or once served as judges.
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Sotomayor Defends Membership in All Women's Group
The Associated Press
June 18, 2009
Defending her membership in an elite all-women's club, Supreme Court nominee Sonia Sotomayor said in a letter submitted to the Senate Judiciary Committee that the group doesn't discriminate unfairly by gender and includes men in many of its activities. GOP senators questioned Sotomayor's membership in the Belizean Grove, a group of prominent professional women, because federal judges are bound by a code that says they shouldn't join any organization that discriminates by race, sex, religion or nationality.
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High Court to Decide Cases on Student Loan Debt, Fla. Beach Erosion
The Associated Press
June 17, 2009
The Supreme Court said Monday that it will decide whether student loans can be dismissed through bankruptcy with just a notice to the collector instead of a hearing proving that paying the money back would cause an "undue hardship." The justices also stepped into a property-rights dispute over plans to rebuild eroded beaches on Florida's Gulf coast and a case brought by Shell gas station operators who claim the oil company tried to drive them out of business.
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Senate Lawyers Prepare for Sotomayor Hearings
The National Law Journal
June 17, 2009
When the curtain goes up on Sonia Sotomayor's Supreme Court confirmation hearing next month, the stars of the show will be the nominee and the 19 members of the Senate Judiciary Committee. But this production is scripted mostly by a handful of Republican and Democratic lawyers on Capitol Hill who are currently digging through documents and drafting questions. And while the theme of an almost certain confirmation remains, one or two discoveries could alter that story line before hearings begin on July 13.
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Tonnage Clause Day at the Supreme Court
The National Law Journal
June 16, 2009
If you've forgotten that the Constitution contains a clause barring states from imposing "any duty of tonnage" without congressional consent, Supreme Court Justice Stephen Breyer forgives you. As Breyer announced a ruling Monday in Polar Tankers Inc. v. City of Valdez, which is all about the clause, his tone was almost sheepish, as if he did not want to bore the spectators in the Court. At the end, he told the audience, "You know now more about the tonnage clause than many."
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Study Shows SG's Influence in Certs Granted
The National Law Journal
June 16, 2009
So you've taken your client's case all the way to the U.S. Supreme Court and the justices have asked the solicitor general of the United States whether they should grant review. What are your chances of a nod in your favor? Not bad, according to an unusual study of two of the high court's most important "information-gathering" tools -- a call for the views of the solicitor general, known as a CVSG, and a call for a response, or CFR, to a petition for certiorari.
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Justice Ginsburg Welcomes Sotomayor Nomination
The National Law Journal
June 16, 2009
Supreme Court Justice Ruth Bader Ginsburg, addressing the 2nd Circuit's annual conference, signaled her admiration for Judge Sonia Sotomayor, saying that the nominee will bring to the Court "a wealth of experience in law and in life." She said she will be "so glad no longer to be the lone woman on the Court." Ginsburg also dropped some clues about big rulings to come, and revealed a reason why the profanities at issue in the so-called "fleeting expletives" case last fall weren't actually uttered at the high court.
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Lower Hiring Bonuses Expected for High Court Clerks
The National Law Journal
June 15, 2009
The Supreme Court law clerk hiring season has begun. It is a pricey mating dance in which hiring bonuses for the much-prized clerks have escalated rapidly, reaching $250,000 last year. But that was before the economy tanked, bringing down law firms along with everyone else. So when the clerks sit down with top partners during the summer to talk about job openings, will the $250,000 be on the table with them? For firms that have bled during the current recession, the answer will be no.
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Supreme Court Turns Down Conrad Black Bail Request
The Associated Press
June 12, 2009
The Supreme Court on Thursday turned down former media executive Conrad Black's request to be released from a Florida prison while he appeals his fraud conviction. Black has served nearly 15 months of a 6 1/2-year prison term following his conviction in connection with payments of $5.5 million he and other former executives of Hollinger International media company received from a Hollinger subsidiary.
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Coping With 'Caperton': A Q&A With Former Texas Chief Justice
The National Law Journal
June 11, 2009
This week's U.S. Supreme Court decision in Caperton v. Massey Coal Company has already been given a range of interpretations by commentators. By a 5-4 vote, the Court said the constitutional right to due process can sometimes require an elected judge to recuse in a case involving a campaign benefactor. To sort out the meaning and implications of the Caperton ruling, The National Law Journal's Tony Mauro spoke with former Texas Chief Justice Thomas Phillips, now a partner at Baker Botts.
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GM Bankruptcy May Come Calling at Supreme Court Next
The National Law Journal
June 11, 2009
Although the U.S. Supreme Court refused to halt the Chrysler sale on Tuesday night, the justices' traditionally quiet summer may be interrupted when the same opponents to that sale raise similar challenges to the pending General Motors bankruptcy. "We would not rule out going to the Supreme Court again," said Barry Bressler, counsel to the Ad Hoc Committee of Consumer Victims of Chrysler and the Committee of Consumer Victims of General Motors. And the Chrysler case is not completely finished at the high court.
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High Court Clears Way for Chrysler Sale
The Associated Press
June 10, 2009
The Supreme Court on Tuesday cleared the way for Chrysler LLC's sale to Fiat, turning down a last-ditch appeal by opponents that included consumer groups and three Indiana pension plans. Chrysler, Fiat and the Obama administration had warned that the high court's intervention could have scuttled the sale. Justice Ruth Bader Ginsburg had ordered a temporary delay just before a 4 p.m. deadline on Monday. A little more than 24 hours later, the Court freed the automakers to complete their deal.
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Justices to Weigh Constitutionality of Controversial Bankruptcy Reform Act
The National Law Journal
June 09, 2009
The Supreme Court has agreed to resolve a long-simmering debate over the constitutionality of provisions in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 that include lawyers as "debt relief agencies" and restrict the advice they can give to clients. The Obama administration is challenging an 8th Circuit ruling that struck down a provision prohibiting debt relief agencies from advising consumer clients "to incur any additional debt when the assisted person is contemplating bankruptcy."
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Supreme Court Says Iraq Can't Be Held Liable for Actions of Saddam Hussein's Regime
The Associated Press
June 09, 2009
Iraq's current government cannot be sued for the actions of Saddam Hussein's regime, the U.S. Supreme Court said Monday as it threw out lawsuits filed by Americans who were held by the government of the now-deceased dictator. Foreign nations usually are immune from lawsuits in U.S. courts, but federal law strips that protection from countries that support terrorism. The Iraqi government argued that the U.S.-led invasion that deposed Saddam and a 2003 federal law restored Iraq's immunity to suits in American courts.
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Is Sotomayor a Judicial Activist? New Studies May Shed Some Light
The National Law Journal
June 08, 2009
In her Supreme Court confirmation hearings, Judge Sonia Sotomayor will soon answer her critics' accusations of judicial activism -- a familiar drumbeat today wherever a judge or a nominee sits on the political spectrum. The quest of legal scholars and political scientists to give more meaning to the phrase has sparked new studies seeking to measure judicial activism in federal appellate judges and current and former Supreme Court justices. So what can they tell us about Sotomayor?
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Supreme Court Issues Landmark Ruling on Judicial Recusal
The National Law Journal
June 08, 2009
In a landmark ruling that could affect state judicial elections nationwide, the Supreme Court on Monday ruled that due process requires a state judge to recuse when a party in a case before him or her has had a "significant or disproportionate" influence on placing the judge on the court through a large campaign donation.
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Justice Ginsburg Stays Chrysler Sale, For Now
The National Law Journal
June 08, 2009
Supreme Court Justice Ruth Bader Ginsburg has temporarily stayed the sale of Chrysler LLC to a group led by Fiat. But her action appears to be only a brief hold meant to stop the clock as a 4 p.m. deadline for high court action on Monday came and went. Over the weekend, three separate parties filed significant challenges to the sale, in the wake of a decision on Friday by a panel of the 2nd U.S. Circuit Court of Appeals upholding the sale of the automaker's assets.
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Sotomayor Is No Activist Judge, Says Author
The National Law Journal
June 08, 2009
Supreme Court nominee Sonia Sotomayor's published majority opinions in the last eight years do not paint a portrait of an activist judge, according to Stefanie Lindquist, the co-author of the new book, "Measuring Judicial Activism." To evaluate Sotomayor's decisions, Lindquist applied the political science tools and activism classifications used in her book to examine Supreme Court justices' votes over the last five decades. She is co-author with Frank Cross, also of the University of Texas School of Law.
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