Anthony Kennedy

Breaking: Ninth Circuit Issues Landmark Ruling on Gay Marriage

By David Lat

Or, if you prefer, a ruling on marriage equality. We knew this ruling was coming because the Ninth Circuit kindly informed us in advance that its opinion would be issued today: “The Court anticipates filing an opinion tomorrow (Tuesday, February 7) by 10:00 a.m. in Perry v. Brown, case numbers 10-16696 and 11-16577, regarding the constitutionality of Proposition 8 and the denial of a motion to vacate the lower court judgement in the case.”

The Ninth Circuit’s practice of providing advance notice of certain opinion filings is very helpful to those who cover the court. It would be nice if other circuit courts followed the Ninth Circuit’s lead. (Yes, I just typed that sentence.)

Now, let’s find out how the three-judge panel ruled in Perry v. Brown (formerly known as Perry v. Schwarzenegger)….

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2012 Predictions: ATL’s Calendar Goes All the Way to 2013

By Elie Mystal

It's pronounced 'Mystal' like 'Cristal,' not to be confused with Elie's crystal ball.

Welcome back to work. I’m not going to act like a flight attendant and “welcome” you to a place we all got to at the exact same time, but I do hope your 2012 is starting off well.

In case you missed it on New Year’s Eve, we took a look back at our biggest stories of 2011. Now, let’s turn our gaze to the future. What do you think will happen in 2012?

I’ll get us started: The world will not end, nor be impacted in any special way on December 21, 2012….

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Borking Up a Storm: Romney’s High-Profile Legal Adviser Speaks His Mind

By David Lat

Robert Bork

Some lawyers can be so circumspect in speech and so careful in action that they’re just plain boring. Such caution might help you make it to the Supreme Court someday, but it’s not a recipe for a very fun life.

Thankfully, not all brilliant lawyers are afraid of speaking their minds. Take Robert Bork, the former U.S. Solicitor General and D.C. Circuit judge whose Supreme Court nomination famously went down in flames in 1987 — due in part to his loquaciousness during his confirmation hearings.

Judge Bork, now 84, is currently a fellow at the Hudson Institute think tank. He’s not as involved in public life as he once was, but he’s not completely out of the picture. For example, he’s serving as a legal adviser to Republican presidential contender Mitt Romney (a development that some on the left have criticized).

And Judge Bork continues to make controversial pronouncements, most recently in an interview with Newsweek….

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Supreme Court Upholds Order Requiring Release of Thousands of Prisoners

By David Lat

Justice Kennedy says: 'Open Sesame.'

It’s late May, so we’re entering the home stretch of the Supreme Court Term. Over the next few weeks, the Court will be handing down opinions in the most contentious, closely divided cases.

One such opinion came down today: Brown v. Plata (formerly Schwarzenegger v. Plata). In this high-profile case, a three-judge district court issued an order that directed the State of California to reduce its prison population — e.g., by releasing prisoners (as many as 46,000, at the time of the order) — in order to address problems with overcrowding and poor health care for inmates.

When SCOTUS granted cert, I thought that it did so in order to summarily reverse. Federal judges running penal institutions, ordering tens of thousands of convicted criminals to be let out onto the streets? The district court’s order reeked of the kind of Ninth Circuit liberal activism that doesn’t sit well with the Roberts Court. (Note that one of the members of the three-judge panel was the notoriously left-wing Judge Stephen Reinhardt.)

Well, I was wrong. The Court just affirmed, 5-4, in an opinion by (who else?) Justice Anthony Kennedy.

There were two dissents, by Justices Antonin Scalia and Samuel Alito. Justice Scalia’s opinion in particular contains some stinging (but ultimately ineffectual) benchslaps….

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Quote of the Day: Sure, go ahead, he’s only the most powerful judge in America….

By David Lat

It’s always been a dream of mine to interrupt a Supreme Court justice.

– Rep. Kevin Yoder (R-Kan.), a lawyer, after interrupting Justice Anthony Kennedy during Justice Kennedy’s testimony before a subcommittee of the House Appropriations Committee.

Non-Sequiturs: 02.07.11

By David Lat & Elie Mystal

Justice Kennedy

* How did Howrey start to unravel? The trouble might have started in Europe. [Washington Post]

* Congratulations to Arvo Mikkanen, a Native American nominee to the federal bench in Oklahoma (and “an all-around great dude,” according to a tipster). [The Atlantic]

* Washington & Lee Law School, which we recently praised for its honesty to prospective law students, gets even more transparent — in an interview with Vault. [Vault's Law Blog]

* In a recent visit to USC, Justice Kennedy presided over a Shakespeare-inspired trial — something he has done before — and denied that the justices think about the news media when making their decisions. Methinks His Honor doth protest too much. [USC News]

'Please don't ship me in a box with no air holes.'

* A New York trial court smacks down a claim of cyberbullying. [Adjunct Law Prof Blog]

* Taxing alcohol to reduce crime? Sounds like that will lead to more muggings for alcohol money. [Going Concern]

* If you try to mail a puppy from Minnesota to Georgia in a box with no airholes, you don’t get your dog back. Also, you get shipped directly to hell. [Runnin' Scared / Village Voice]

* Blawg Review #297: The Hair Shirt Edition. [Big Legal Brain via Blawg Review]

Florida Judge Strikes Down Obamacare

By Elie Mystal

Well this should be fun. Florida federal judge Roger Vinson has struck down the heart of Obama’s health care reform plan, finding that the individual mandate part of the bill is unconstitutional and therefore the whole thing is unconstitutional.

As Ashby Jones points out on the WSJ Law Blog, that makes the score 2 – 2. Two federal judges have upheld the law; two others have struck it down.

You know what that means? It means that very soon America will be operating under the Anthony M. Kennedy health care system. Does Justice Kennedy think that I have a right to health care? Does he think that pre-existing conditions should be covered? Is he comfortable having an entire nation’s health care system held hostage by a few insurance giants?

Exciting questions! I can’t wait to see how a man who nobody elected will decide our medical futures….

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Will SCOTUS Go to the SOTU This Year?

By David Lat

Justice Alito is going to the State of the Union this year? Not true, not true!

Tomorrow night, many of us will tune in to President Barack Obama’s State of the Union address — hoping to catch more catfighting than on an episode of Jersey Shore.

Last year’s SOTU did not disappoint drama-seekers. As you may recall, an Article II vs. Article III smackdown took place: President Obama chided the Supreme Court for its Citizens United decision, with six members of the Court sitting a stone’s throw away from him, and Justice Samuel Alito responded by mouthing “not true” at the POTUS.

(Speaking of Citizens United, the decision celebrated its one-year anniversary last week, on January 21. And as Josh Blackman notes, the world has not come to an end, contrary to the dire predictions of distraught liberals. Of course, experts in this area — including some Obama-supporting liberals — told us that Citizens United wasn’t that big a deal.)

Thanks to last year’s juicy Obama v. Alito showdown, numerous commentators have wondered: Will Supreme Court justices attend the State of the Union this year? If so, which ones?

Let’s make some predictions, justice by justice….

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Money’s Assault on American Politics Is Well Underway — Thanks to the Psychological Effects of Citizens United

By Elie Mystal

I hope Anthony Kennedy is happy. It’s Justice Kennedy’s world now, and we’re all just playing by the rules he lays down. Despite all the talking points you may have heard about how Citizens United really isn’t that big of a deal, what Justice Kennedy calls speech is flooding American politics ahead of this November’s mid-term elections. So reports Michael Luo of the New York Times.

I know what you are thinking, especially if “you” happen to be Justice Alito: Not True! But you have theories about what might happen, while the Times has facts about what is happening.

And the facts speak for themselves. According to the Campaign Media Analysis Group, which monitors political advertising, “television spending by outside interest groups has more than doubled what was spent at this point in the 2006 midterms.”

Of course, at least four Supreme Court justices could have told you that would happen. And I’d imagine that even the other five damn well knew that tons of corporate money would flood into politics, and just didn’t care. What’s marginally more interesting than the “water is wet” fact that money is pouring in is the reason why captains of industry are speaking spending freely…

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Quote of the Day: Already Working on His Gay Marriage Opinion?

By David Lat

[A]ll of us in a pluralistic society have components to our identity; we are Republicans or Democrats, we are Christians or atheists, we are single or married, we are old or young.

– Justice Anthony M. Kennedy, waxing poetic at oral argument in Snyder v. Phelps (via Jan Crawford).

Supreme Court Clerk Hiring Watch: All of October Term 2010
Plus several hires for October Term 2011.

By David Lat

Earlier this week, the New York Daily News reported that Justice Anthony M. Kennedy has no plans of stepping down from the Supreme Court anytime soon. This wasn’t terribly exciting, since there haven’t been any rumblings of an AMK departure. In addition, Justice Kennedy has already hired at least two law clerks for October Term 2011.

And so have several of his colleagues, including Justices Antonin Scalia and Ruth Bader Ginsburg (who are said to be done with their OT 2011 hiring). Some have wondered whether Justice Ginsburg might be leaving the Court, given her health issues. But RBG’s commitment to the Court appears strong — she took the bench the day after the deeply sad passing of her husband, Marty Ginsburg — and her hiring a full clerk complement for 2011-2012 suggests she isn’t going anywhere.

A full list of the October Term 2010 law clerks, who are starting at One First Street this month, plus news (and rumor) of OT 2011 hires — after the jump.

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Plus several hires for October Term 2011.“

Right to Remain Silent Doesn’t Cover Remaining Silent

By Elie Mystal

If you can only name one Supreme Court Justice, let’s hope that it’s Anthony Kennedy. It’s his world now, we’re all just along for the ride.

Today’s big Supreme Court ruling was the case of Berghuis v. Thompkins. At issue was whether a suspect’s silence constituted a waiver of his right to remain silent.

Yes, you read that correctly. There was actually an open question as to whether remaining silent waives your right to do so. More importantly, it does! One must speak in order to be protected by a right guaranteed to you in the Constitution.

Justice Kennedy wrote the opinion for the 5-4 majority…

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Can Juveniles Be Sentenced to Life Without Parole for Non-Homicide Crimes?

By David Lat

That’s the question the Supreme Court answered in the negative today, in Graham v. Florida. The Court’s opinion was by Justice Kennedy, whose vote usually controls on Eighth Amendment issues, and it was joined by the four liberal justices.

The case generated oodles and oodles of pages and a welter of separate opinions. Thankfully, the AP has a fairly clear and concise summary:

The Supreme Court has ruled that teenagers may not be locked up for life without chance of parole if they haven’t killed anyone.

By a 5-4 vote Monday, the court says the Constitution requires that young people serving life sentences must at least be considered for release.

The court ruled in the case of Terrance Graham, who was implicated in armed robberies when he was 16 and 17. Graham, now 22, is in prison in Florida, which holds more than 70 percent of juvenile defendants locked up for life for crimes other than homicide.

Florida: where it’s good to be an old person.

Interestingly enough, Chief Justice John Roberts — not known as a bleeding heart — agreed with the majority as to Terrance Graham specifically. Because he concurred in the judgment, the vote on the disposition of the case was actually 6-3.

The back-and-forth between the majority and the dissent gets quite heated at times. Justice Thomas wrote the main dissent, which Robert Barnes of the Washington Post described as “stinging.” But given the power that Justice Kennedy wields at One First Street, it’s generally unwise to attack him too harshly.

So the most snarky exchange did not involve Justice Kennedy, but took place between Justice Thomas and his soon-to-be-former colleague, Justice Stevens….

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Justice Kennedy: ‘Courtly and Humorous’

By Elie Mystal

Anthony Kennedy 2 Justice Anthony M Kennedy Above the Law blog.jpgOh, to be old and powerful. SCOTUS Justice Anthony Kennedy must be living the good life. He’s got a lifelong job in the middle of a global recession, and oh yeah, he’s the swing vote on the Supreme Court. I bet he doesn’t even drive a Toyota.
Justice Kennedy gave a talk at Pepperdine School of Law. The ABA Journal reports:

Kennedy’s “courtly and humorous” address at Pepperdine University’s School of Law included criticism of harsh sentences in the United States. He also responded to questions, including this one: “Does Justice Kennedy feel scolded?”
“He doesn’t,” Kennedy replied.

And why would he? As we noted after the State of the Union, the President Obama can talk all he wants, the Court does not have to listen. As the Ventura County Star reports:

His response when asked about President Barack Obama’s comment that the ruling invited special-interest money into politics:
“I’ve got a lifetime job,” Kennedy said. “He doesn’t.”

Properly buoyant with that sense of unelected, inscrutable power, Justice Kennedy took a couple of lighthearted shots at the other branches of government.

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FantasySCOTUS.net Predictions of the 10th Justice: Forecasting the Swing Vote of Justice Kennedy.

By The 10th Justice

The Tenth Justice Fantasy SCOTUS League.jpgEd. note: ATL has teamed up with FantasySCOTUS, the premier Supreme Court fantasy league. (For more background, check out this WSJ Law Blog post.) On Fridays, the 10th Justice will analyze league voting to predict how the Supreme Court may decide upcoming cases.
Welcome to the second installment of Predictions of the 10th Justice, brought to you by FantasySCOTUS.net. The league has over 1,800 members, who have made predictions on all cases currently pending before the Supreme Court. Recently, Justice Stephen G. Breyer was asked in an interview about FantasySCOTUS.net. His response, “I don’t think I will bet on it.”
In this feature, we try to predict the votes of the decisive swing-vote on the court, Justice Kennedy. We will look at four important cases where Justice Kennedy is likely to cast the deciding fifth swing vote, and compare the predictions of the FantasySCOTUS.net faithful to the mathematically precise predictions of Yale Professor Ian Ayres’s “Predict Justice Kennedy’s Vote” Program.

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Supreme Court Clerk Hiring Watch: OT 2008 (Update #7)

By David Lat

aileen mcgrath aileen marie mcgrath jason gillenwater jason e gillenwater.jpgIn October 2006, when LEWW reviewed her wedding, we wrote of Aileen McGrath (at right, with handsome hubby Jason Gillenwater):

Aileen is the President of the Harvard Law Review. HELLO!!! And this isn’t mentioned in the announcement, but we’ve learned that she’ll be clerking next year for Chief Judge Michael Boudin, of the First Circuit — feeder judge extraordinaire.

So, Aileen, have you picked which Supreme Court justice you’d like to clerk for?

She has. We’ve learned that Aileen McGrath (Harvard 2007 / Boudin) has accepted an offer to clerk for Justice Stephen G. Breyer in October Term 2008. One source tells us: “[S]he’s universally recognized as brilliant. She was president of the law review and a Sears Prize winner.”
We also hear that the fourth clerk to Justice Clarence Thomas for OT 2008 is a D.C. Circuit clerk (believed to be clerking for Judge David Sentelle). Will someone please give up the name?
Update: Her name is Claire Evans. She’s a 2002 graduate of Rutgers School of Law – Camden, and she’s the first alum of the school to score a SCOTUS clerkship. She clerked for Judge Jerome Simandle (D.N.J.) in 2003, and then for Michael Chertoff, back when he was still on the Third Circuit. Reports our source:

“Chertoff liked Claire so much that he took her to the Department of Homeland Security when he left the bench for Washington. Apparently, Claire continues to amaze and has now secured the most coveted of credentials — a U.S. Supreme Court clerkship.”

“[S]he holds the highest cumulative grade point average in the history of Rutgers School of Law – Camden. And, because of a grading change implemented the year after Claire graduated, it is now mathematically impossible for Claire’s epic GPA to ever be topped.”

Finally, expect more SCOTUS clerk hires in the near future. From an in-the-know tipster:

There’s movement among the justices now. At least Alito, Roberts, Kennedy & Breyer have scheduled interviews in the last few days. Kennedy has scheduled pre-screen interviews, at least some of which are with Judge Kozinski.

The current tally of OT 2008 Supreme Court clerks, with Aileen McGrath and Claire Evans added, appears after the jump.

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Legal Eagle Wedding Watch 07.22.07: Seeds of Love

By Laurie Lin

Legal%20Eagle%20Wedding%20Watch%20NYT%20wedding%20announcements%20Above%20the%20Law.jpg
Apart from our three finalist couples, there isn’t much to highlight for you this week: just some minor WGWAG action, and, in the Vows column, a nice shout-out to LEWW’s temporary home city.
So without further ado, we bring you our fabulous finalists:

1. Nykeesha Davis and Chad Peterman
2. Deborah Bernstein and David Foster
3. Ellen Bradford and Todd McIntosh

More about these couples, after the jump.

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Happy Birthday, Justice Kennedy!

By David Lat

Anthony Kennedy Justice Anthony M Kennedy Above the Law blog.jpgSome helpful tipsters reminded us: today is the birthday of [swing] Justice Anthony M. Kennedy. Happy Birthday, Justice Kennedy!
We asked one reader, aspiring lawyer Andrew Cohen,* for thoughts on writing up a short post. His response:

“You don’t. You write a ridiculously long post that both praises and denigrates him, pretending to come out clearly one way or another, but writing so murkily that no one can tell how you actually feel.”

And let’s throw in some flowery rhetoric, too. Considering that it’s AMK’s birthday, a shout-out to the “mystery of life” would be quite apropos.
Update: Thanks for the reminder. Birthday wishes also go out to Justice Kennedy’s most famous former clerk: Judge Alex Kozinski!
Justice Kennedy Turns 71 [How Appealing]
* We include Mr. Cohen’s name with his permission (and wish him good luck on the bar exam tomorrow). But our default rule at ATL is anonymity for all correspondents.

The Supreme Court’s Last Penultimate Day: Say Goodbye to October Term 2006

By David Lat

supreme court 2.JPGDavid Souter is signing Ruth Bader Ginsburg’s yearbook. Sam Alito is hoping he’ll get a better locker next year. Nino Scalia is mapping out which European restaurants he’s going to hit this summer. Yes, that’s right: today is the last scheduled day of the Supreme Court’s Term.
The justices are handing down opinions as we type. We’ll have coverage and links pertaining to today’s decisions in a subsequent post.
Will there be any surprises? Or will the paramount importance of Justice Kennedy simply be further confirmed — as if this fact, noted by the astute Jim Ho, wasn’t revealing enough?
Check back soon for more.
Update / correction: Today was, according to the Court’s OT 2006 calendar (PDF), the last scheduled non-argument session. But because the justices didn’t hand down all of the Term’s opinions today, they will issue more decisions on Thursday.
Batting 1.000 [Volokh Conspiracy]

Liberal Law Professors and Guns: An Improbable Romance

By David Lat

gun pistol firearm Second Amendment Above the Law blog.jpgLiberal law professors can be pretty predictable in their tastes. Volvo stationwagons. Fair trade coffee. Guns.
Guns? Yes, guns. No, not gunners — guns. Firearms. Bang bang. The good ol’ Second Amendment.
According to a very interesting NYT article, by Adam Liptak:

In March, for the first time in the nation’s history, a federal appeals court struck down a gun control law on Second Amendment grounds. Only a few decades ago, the decision would have been unimaginable.

There used to be an almost complete scholarly and judicial consensus that the Second Amendment protects only a collective right of the states to maintain militias. That consensus no longer exists — thanks largely to the work over the last 20 years of several leading liberal law professors, who have come to embrace the view that the Second Amendment protects an individual right to own guns.

In those two decades, breakneck speed by the standards of constitutional law, they have helped to reshape the debate over gun rights in the United States. Their work culminated in the March decision, Parker v. District of Columbia, and it will doubtless play a major role should the case reach the United States Supreme Court.

Legal academic debate with real-world ramifications? Wow. This truly is newsworthy.
Thoughtful blogospheric reactions from Jonathan Adler, Jack Balkin, Randy Barnett, and Michael Dorf, among others. We were most amused by Professor Dorf, who blog-slaps Liptak, before concluding his post in delightfully catty fashion:

Full disclosure: I spoke with Mr. Liptak last week and expressed skepticism (along the lines described above) about his causal claim. I guess I didn’t say anything quote-worthy.

HA. Hell hath no fury like a law professor not name-checked.
(Sorry, Professor Dorf — not everyone is as susceptible to your charms as Justice Kennedy. You may spend your entire life searching for a jurisprudential romance to match what you had with AMK at One First Street, back in the heady days of October Term 1991.)
A Liberal Case for the Individual Right to Own Guns Helps Sway the Federal Judiciary [New York Times]
Scholarship and the Second Amendment in the Courts [Dorf on Law]
How Liberals Saved the Second Amendment [Volokh Conspiracy]
Scholars and the Second Amendment [Volokh Conspiracy]
The Second Amendment is Embarrassing No More [Balkinization]