Alito in happier times
Everyone knows by now that Justice Samuel A. Alito Jr. wasn’t too pleased about President Barack Obama’s remarks in the State of the Union speech regarding last week’s campaign finance ruling in Citizens United v. FEC. He seemed to mouth something like “that’s not true” as the president spoke. Not exactly “you lie!,” but perhaps a more polite version. So what exactly did Alito take offense to?
Here’s what Obama said:
With all due deference to separation of powers, last week, the Supreme Court reversed a century of law that I believe will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections.
According to the TV footage, Alito starting shaking his head after the “open the floodgates” remark but your blogger would like to speculate that it was the “century of law” comment that really got him riled. That’s because the oldest case that the court specifically overruled in Citizens United was Austin v. Michigan Chamber of Commerce, which was decided in 1990. So, while the court was certainly bucking the trend towards regulating corporate spending in elections, it was not technically reversing a “century of law” in the legal sense (see Politifact for more on the way Democrats have sought to characterize the decision). This type of thing annoys justices, apparently. Whether or not Alito should have kept his thoughts to himself is another question.
After September’s re-argument in Citizens United v. FEC, your blogger wondered how Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. would reconcile overturning two Supreme Court precedents with their humble, anti-judicial activism rhetoric. As the experts I interviewed concluded at the time, Roberts and Alito both left themselves plenty of wiggle room during their confirmation hearings and they certainly took advantage of that today. What’s interesting is how keen the chief justice is to counter accusations that he jettisoned his belief in judicial restraint when it really mattered. The only reason he wrote a 14-page concurring opinion today was to address that point, a fact he openly admits on the first page. And who joined him in that concurrence? Justice Alito, of course.
The U.S. Supreme Court gave some important guidance today to potential jurors: think twice before giving the judge a chocolate penis. It’s also not advisable to give the bailiff a pair of chocolate breasts. Especially in a death penalty case. “The disturbing facts of this case raise serious questions concerning the conduct of the trial,” the per curiam opinion states. Really?
Not everyone agreed with the majority that the edible genitalia situation was sufficient to warrant inmate Marcus Wellons getting another chance to appeal his sentence. The four conservatives all dissented, with Justice Antonin Scalia and Justice Samuel A. Alito Jr. both writing opinions.
The conduct of this particularly odd set of jurors is further explained in the majority opinion. When Wellons’ attorneys tried to contact them to find out more about the gifts and the jurors’ relationship with the court officers “they shed almost no light on what had occurred,” the opinion notes. In particular, the juror who actually gave the penis to the judge was “hostile and refused to talk.” In his dissent, Alito noted that the chocolate genitals were “strange and tasteless,” to which this blogger’s (tongue-in-cheek) response is: how does he know?
It’s not just (fake) Justice Sotomayor and (fake) Justice Scalia who are on Twitter. Your blogger is too. Follow him here for all the latest SCOTUS-related updates.
Your blogger doesn’t want to write about Justice Antonin Scalia every day but, after yesterday’s brouhaha over vocabulary, today he gave a shout-out to international law. It’s a little surprising coming from him, bearing in mind how outraged conservatives get at any reference to foreign law in a Supreme Court opinions. The case argued today is a little different than, say, the death penalty, because it actually involves an international treaty. As such, it’s not surprising that the court would look to how other countries’ courts have interpreted the treaty (in this case, the Hague Convention On International Child Abduction).
The case, Abbott v. Abbott, which your blogger previewed in the Daily Journal Monday (available via How Appealing), hinges on how U.S. courts should interpret the convention when it comes to deciding whether to return a child taken by one parent to another country against the wishes of the other parent.
Perhaps the most interesting quote from Scalia is when he pointed out to one of the lawyers that nearly all the courts in other countries that have interpreted the issue have come out the same way.
“I think we — if it’s a case of some ambiguity, we should try to go along with what seems to be the consensus in other countries that are signatories to the treaty,” he said. In weighing the value of foreign court rulings, he also noted that courts tackling the legal question included “some biggies” such as the U.K. House of Lords (now the U.K. Supreme Court). The U.K. justices, who hosted Scalia for the opening of their new court in October, will no doubt be pleased to hear that they are considered to be one of the biggies.
There’s been plenty of debate recently about Justice Antonin Scalia’s derision for incorrect word usage, especially when it involves the word “choate” (which, according to Scalia, is not a word, although lawyers use it all the time). Even the New York Times Magazine chimed in. During today’s argument in Briscoe v. Virginia, it was the Supreme Court bar’s turn to throw a curve ball to the court stenographer. Lawyer Richard D. Friedman went with “orthogonal” (which apparently means “lying at right angles”) during his argument. This seemed to stump Chief Justice John G. Roberts Jr. It didn’t take long for Scalia to jump in, prompting the following exchange:
JUSTICE SCALIA: What was that adjective? I liked that.
MR. FRIEDMAN: Orthogonal.
CHIEF JUSTICE ROBERTS: Orthogonal.
MR. FRIEDMAN: Right, right.
JUSTICE SCALIA: Orthogonal, ooh.
JUSTICE KENNEDY: I knew this case presented us a problem.
JUSTICE SCALIA: I think we should use that in the opinion …. or the dissent.
Scalia’s last remark was a reference to the fact that the argument was effectively a second go-around at last year’s Melendez-Diaz v. Massachusetts ruling in which Scalia wrote the majority opinion. He’s very much hoping he won’t need to use “orthogonal” in the dissent.
UPDATE: The court has issued a revised transcript in which the chief justice says “…or the dissent…”
Although there was speculation in the summer of last year that U.S. Supreme Court clerks might not be getting $250,000 signing on bonuses during a recession, that hasn’t been the case. While reporting on a feature about clerks (published in today’s Daily Journal), your blogger found out from senior partners at two different firms that they are still offering the full amount, at least for the time being. Recent law school graduates struggling to get hired and laid off associates might not be too pleased, but it certainly shows that Supreme Court clerks are still highly valued even in these difficult times. A signing on bonus would obviously pay for more than a year’s salary of an associate earning $160,000.
In today’s story your blogger attempted to track down a few former clerks in California who had not taken the obvious career path to BigLaw or academia. Perhaps not surprisingly, they turned out to be in the Bay Area. The San Francisco City Attorney’s Office, for example, has two on staff: Vince Chhabria, who clerked for Justice Stephen G. Breyer, and Christine Van Aken, who clerked for Justice David H. Souter. By contrast, a spokesman said the Los Angeles City Attorney’s Office has no former SCOTUS clerks on its roster.