Monthly Archives: October 2009

Last week, the Supreme Court stopped the 9th U.S. Circuit Court of Appeals from authorizing the release of the names of people who signed a petition to put Referendum 71, Washington state’s equivalent of Proposition 8, on the November ballot. If it passes the ballot initiative would repeal the state’s recently passed same sex domestic partnership law.

Stephen Colbert takes it up here.

Not that they are suckers for pageantry or anything, but three U.S. Supreme Court justices tagged along when the U.K. Supreme Court was opened earlier today.  They rubbed shoulders with the likes of Queen Elizabeth II, Prime Minister Gordon Brown and the Archbishop of Canterbury (none of that separation of church and state nonsense back in the old country).

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Stephen G. Breyer also had the chance to chat with a bunch of judges from other countries, including the top judges from France, Germany and other European countries. Also in attendance were chief justices from various remote areas with British links, such as the Falkland Islands and the Pitcairn Islands.

Video is available here, although none of the U.S. contingent appeared to have speaking roles.

The U.S. Supreme Court public information office just issued a release stating that Justice Ruth Bader Ginsburg was hospitalized again Wednesday night after “an apparent adverse reaction to a sleeping aid combined with cold medication” that she took before boarding a flight to London. The justice “experienced extreme drowsiness causing her to fall from her seat,” the release said. She was taken to Washington Hospital Center “as a precaution” and, after staying overnight, was released this morning.

Ginsburg was on her way to London for the official opening of the new U.K. Supreme Court along with Chief Justice John G. Roberts Jr., Justice Stephen G. Breyer and Justice Antonin Scalia. Breyer was the only one of the other justices to be on the same flight. He disembarked with Ginsburg but then took a later flight to London, according to the court.

This is the second time in the last month that Ginsburg, who was diagnosed with pancreatic cancer early this year, has been hospitalized.

If you thought Chief Justice John G. Roberts Jr.’s remarks about judges being umpires who are “servants of the law” was just a cute soundbite designed to win confirmation to the Supreme Court, then think again.
Although not talking about judges, he touched upon a related issue about whether lawyers can affect the outcome of cases at this morning’s argument. It was a case concerning whether public interest lawyers can get enhanced attorneys’ fees based purely on exceptional performance (Perdue v. Kenny).
Roberts seemed to be questioning whether lawyers really make much difference because it’s only the law itself that matters.
“I don’t understand the concept of extraordinary success or results obtained,” said Roberts, who was an extraordinarily successful appellate lawyer earlier in his career. “The results that are obtained are presumably the results that are dictated or … required under the law.”
He went on to say that cases are resolved on the law and not on whether the parties involved have good or bad attorneys.
“The results obtained under our theory should be what the law requires and not different results because you have different lawyers,” he added.
Paul Clement, a former solicitor general during the Bush administration who was representing the public interest lawyers that won the enhanced fees, took the bait.
“Well, Mr. Chief Justice, I mean, I defer to you , but I’m not sure that comports with my experience,” he responded.
In Clement’s view “the quality of the performance and the results obtained do depend on the lawyers’ performance.”
That led to the following exchange in which Clement touched upon Roberts’ earlier career as a highly-paid advocate:

Roberts: Maybe we have a different perspective. You think the lawyers are responsible for a good result and I think the judges are.
Clement: And maybe your perspective has changed, Your Honor.

Cue laughter. But the debating contest wasn’t over. Next, Roberts – perhaps in a dig at Clement’s own involvement in the case – questioned whether other factors should be taken into account when considering fees, such as when a law firm takes on a high-profile case to improve its image. Some even offer to do the work pro bono, he added. Clement conceded the point but had another punchline ready:
“Sometimes, I think you get what you pay for,” he said. “But that’s a different subject.”

Your blogger was a little disappointed with the episode of C-Span’s Supreme Court series that focused on the reporters who cover the court.  There was a little bit too much discussion of the justices and the inner workings of the court (although Lyle Denniston and Joan Biskupic did a perfectly good job of explaining everything) and not enough about what it’s actually like to cover the court. And yours truly isn’t saying that just because he can only be spotted for a few seconds at around the 29 minute 30 second mark of the 35 minute broadcast. Oh no.

During  today’s U.S. Supreme Court argument about a cross that sits in the middle of nowhere in the Mojave Desert, Justice Antonin Scalia and a lawyer for the ACLU got into a bit of a tussle.
Although the confrontation might not make it onto Justice Samuel Alito’s “Human Sacrifice Channel,” it was still fairly lively.
Scalia and the ACLU of Southern California’s Peter Eliasberg (who was arguing his first case before the court) didn’t agree on whether a cross could, in fact, be used as a symbol to celebrate all of America’s veterans and not just those who are Christians.
The cross in question was erected as a tribute to World War One veterans.
Scalia seemed genuinely taken aback that a cross could not be erected “in honor of all the war dead.”
The cross, he said, “is the most common symbol of … the resting place of the dead.”
In response, Eliasberg, who is Jewish, was keen to remind the justice that not everyone gets a kick out of Christian symbols.
“The cross is the most common symbol of the resting place of Christians,” he said. “I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew.”
The public tittered at Eliasberg’s smackdown, but it probably won’t have any impact on the outcome of the case (Salazar v. Buono).
The ACLU is still likely to lose.

It’s only the second day of the term, but the justices of the U.S. Supreme Court are already indulging in their love for colorful hypothetical questions seemingly aimed at flummoxing the lawyers appearing before them.
This morning, in a high-profile First Amendment case about whether a criminal statute that bans the depiction of animal cruelty (U.S. v. Stevens), Justice Samuel A. Alito Jr. was to blame.
Although the statute in question only applies to images of animal cruelty, such as dog fighting, Alito repeatedly asked one of the lawyers whether Congress, in theory, has the power to ban depictions of cruelty to humans.
Alito proposed a hypothetical “Human Sacrifice Channel” that could make sacrifices available live on pay-per-view.
As an alternative, he wondered whether a broadcast of Roman style gladiatorial combat could also be legal.
Probing further, Alito finally came up with “The Ethnic Cleansing Channel.”
It would certainly make a change from Law & Order re-runs.

It seems like the new U.K. Supreme Court is not quite so transparent as we were expecting. Yes, all hearings will be televised, unlike the U.S. Supreme Court, but, as the UK Press Gazette reports, press were barred from the official swearing in of the new justices Thursday.

Apparently, the court’s own team filmed the swearing in while the press waited outside. The new justices then stepped outside to have their photographs taken before processing to Westminster Abbey for the service that traditionally marks the beginning of the legal year in England and Wales.

Back in the U.S., some press were at least allowed to watch a ceremonial swearing in of Justice Sonia Sotomayor this summer and her investiture ceremony in the courtroom was open to all the press.

Honors even for the two high courts? Not quite: The U.K. court still has a way better website.