Antonin Scalia

The Best in Benchslappery: A Compendium for OT 2006

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supreme court small frontal Above the Law blog.JPGLate last week, Bill Mears of CNN wrote a helpful round-up of the best benchslaps from the Supreme Court’s most recent Term. It starts off:

One Supreme Court justice says his fellow conservatives are “too dismissive” of government efforts to ensure racial diversity in schools. Another more liberal member says those on the right did “serious violence” to a high school student’s free speech rights. And one conservative slams another for “faux judicial restraint.”

That last bench-slap was one of several delivered by Justice Scalia to Chief Justice Roberts. For more, see this Linda Greenhouse piece.
But after all the verbal roughhousing, the justices go back to being friends. Then they scamper off to a bevy of European countries, where they spend the summer soaking up adulation and cash teaching summer courses in constitutional law.
The members of the SCOTUS regularly complain about the inadequacy of federal judicial pay. But let’s not forget that they — as well as certain other federal judges, like the members of the D.C. Circuit — basically get summers off.
Being a Supreme Court justice: Nice work if you can get it!
Justices take potshots in opinions [CNN via How Appealing]
Even in Agreement, Scalia Puts Roberts to Lash [New York Times]
Supreme Court Justices Hit the Road for the Summer [Legal Times via WSJ Law Blog]

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Supreme Court Clerk Hiring Watch: OT 2008 (Update #1)

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Supreme Court hallway Above the Law Above the Law Above the Law.JPGThe Supreme Court hasn’t yet finished up for October Term 2006 (which should end tomorrow). The law clerks for October Term 2007 will start arriving next month. But many of them have already started hiring clerks for October Term 2008.
We reported on some of those hires back in this post. And now we have more to add:

1. Conservatives hoping for his retirement will be disappointed. Rumor has it Justice John Paul Stevens has hired all of his clerks for OT 2008. The only one whose name we have, however, is Lindsey Powell (Stanford 2007 / Garland).

2. Justice Antonin Scalia has hired Jameson Jones (Stanford 2007 / Sutton). Judge Jeffrey Sutton, a judicial superhottie, is turning into quite the feeder to his former boss.

3. Justice Ruth Bader Ginsburg has hired at least one clerk for October Term 2008 — Miriam Seifter (Harvard 2007 / Garland) — and perhaps more.

So in terms of OT 2008, Stanford Law School and Judge Merrick B. Garland are off to a good start.
If you have more SCOTUS clerk hiring news to add, please email us (subject line: “Supreme Court clerk hiring”).
A list of OT 2008 law clerks thus far appears after the jump.

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Scalia Gets Snarky Over Scienter Standard

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falcon2.jpg
At issue in the SCOTUS’s decision today in Tellabs, Inc. v. Makor Issues & Rights, Ltd.[SCOTUSblogvia How Appealing] was the definition of the term “strong inference”, and therefore what the standard is for determining whether a plaintiff has met the pleading requirements as to scienter in a securities fraud case. Some mildly saucy benchslaps insued.
Justice Scalia expressed his disdain for the majority’s resolution to this issue (authored by Justice Ginsburg) this way in his concurring opinion:

If a jade falcon were stolen from a room to which only A and B had access, could it possibly be said there was a “strong inference” that B was the thief? I think not, and I therefore think that the Court’s test must fail. In my view, the test should be whether the inference of scienter (if any) is more plausible than the inference of innocence.

Well, I don’t know. If a Supreme Court justice uses a really bad analogy from an old movie, could it possibly be said that he had made a “strong argument?”
But Ginsburg wasn’t taking this lying down. Her benchslap back from n.5 of the majority opinion is after the jump.
Also, the SCOTUS issued two other opinions today:
Rita v. United States [SCOTUSblog via How Appealing]
Tennessee Secondary School Athletic Assn. v. Brentwood Academy [SCOTUSblog via How Appealing]

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Supreme Court Clerk Hiring Watch: October Term 2008

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Supreme Court hallway Above the Law Above the Law Above the Law.JPGWe’ve received some news about Supreme Court law clerk hiring for October Term 2008 (not the upcoming Term, but the one after that):

1. We had heard, through the grapevine, that Justice Antonin Scalia had started his OT 2008 interviewing earlier than usual. And it appears to have yielded at least one hire: Yaakov Roth (Harvard 2007 / Boudin).

Rumor has it that Roth has one of the highest GPAs in the history of Harvard Law School. So presumably he’s graduating summa cum laude — which happens once in a blue moon at HLS.

2. Justice Samuel Alito continues his trend of hiring from the ranks of his former Third Circuit clerks. Jack L. White (Pepperdine 2003 / Alito) will be reunited with his former boss for 2008-2009.

If you have more SCOTUS clerk hiring news to add, please email us (subject line: “Supreme Court clerk hiring”).
A list of OT 2008 law clerks thus far, combining what we’ve just learned with information currently reflected on Wikipedia, appears after the jump.

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Fathers and Daughters and Celebrity DUIs

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Lindsay Lohan Ann Banaszewski Ann S Banaszewski Justice Antonin Scalia drunk driver drunk driving Above the Law.JPGTime for some celebrity DWI news. It’s like your morning coffee: you can’t get your day started without it.
First, troubled underage starlet Lindsay Lohan (near right) — who is back in rehab, after a drunk driving arrest over the Memorial Day weekend — allegedly suffers from OxyContin addiction, according to her estranged dad, Michael Lohan.
On the one hand, Lohan’s felonious father may not be the most reliable source. But on the other hand, we’re talking about Lindsay Lohan.
Second, an update on someone whose misadventures we have followed quite closely in these pages: Ann Banaszewski (far right), daughter of Justice Antonin Scalia (far right). From the Chicago Tribune:

A daughter of U.S. Supreme Court Justice Antonin Scalia pleaded guilty Wednesday to drunken driving in Wheaton in February….

Banaszewski accepted a plea agreement with prosecutors and was sentenced by DuPage County Judge Daniel Guerin to 18 months of court supervision. She also was ordered to perform 140 hours of public service (of which 40 hours must be beneficial to children), attend counseling and treatment sessions, attend a victim-impact panel and pay $1,500 in fines and fees.

Will his daughter’s brush with the law turn the crustily conservative Nino into a bleeding heart for criminal defendants? Stay tuned.
(Yes, we know — Justice Scalia has handed down numerous rulings favorable to criminal defendants. E.g., Blakely v. Washington; Crawford v. Washington. But he’s far from the most pro-defendant member of the Court.)
Lohan’s Dad: Lindsay Hooked on OxyContin [Associated Press]
Justice’s daughter pleads guilty to DUI [Chicago Tribune]
Scalia’s daughter pleads guilty to drunken driving [Journal-Gazette / Times-Courier]
Earlier: Prior ATL coverage of Ann Banaszewski (scroll down)

Benchslap of the Day: Justice Scalia’s Dissent in Roper

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Antonin Scalia headshot Justice Antonin Scalia Above the Law blog.JPGOkay, make that yesterday. A reader email drew our attention to the saucy conclusion of Justice Antonin Scalia’s dissent in Roper v. Weaver:

The greatest harm is that done to AEDPA, since dismissing the writ of certiorari leaves the Eighth Circuit’s grossly erroneous precedent on the books. (That precedent, by the way, cannot be explained away—as perhaps the Court’s own opinion can—as the product of law-distorting compassion for a defendant wronged by a District Court’s erroneous action. As noted earlier, the Eighth Circuit was not informed of that erroneous action. It presumably really believes that this is the way AEDPA should be applied.)

Other courts should be warned that this Court’s failure to reverse the Eighth Circuit’s decision is a rare manifestation of judicial clemency unrestrained by law. They would be well advised to do unto the Eighth Circuit’s decision just what it did unto AEDPA: ignore it.

WHACK! As our correspondent notes: “Scalia manages to benchslap both the majority opinion and the 8th Circuit all in the same paragraph.”
Some of Justice Scalia’s colleagues get cheeky on occasion. Another tipster drew our attention to Part IV of Justice Stevens’s Bell Atlantic v. Twombly dissent — which Justice Ginsburg expressly declined to join, perhaps due to its ‘tude.
But at the end of the day, there’s no disputing this truth: When it comes to benchslaps, nobody does it like Nino.
Roper v. Weaver [FindLaw]
Bell Atlantic v. Twombly [FindLaw]

Online Video Clips: Not Just for Porn Anymore

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police car chase Scott Harris Above the Law blog.jpgAn astute observation about today’s opinion in Scott v. Harris, from Howard Bashman:

Here’s a first — A U.S. Supreme Court decision issued today has its own accompanying video: Talk about multimedia rulings! The Court’s opinion today in Scott v. Harris, No. 05-1631 — a dispute about the lawfulness of a high-speed police chase captured on video — appears online at the Supreme Court’s web site with this 91.7 MB RealPlayer video file. No word yet from the Court on whether the volume of U.S. Reports in which this decision will appear will include its own embedded video player.

The dueling opinions — Justice Scalia’s majority opinion, and Justice Stevens’s dissent — discuss the video extensively.
Some brief discussion, of the video and of the opinions, after the jump.

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‘I Tawt I Taw… A Judicial Conservative!’

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tweety bird Ruth Bader Ginsburg Justice Ginsburg Above the Law blog.jpgWe’ve been learning all sorts of things about Justice Ruth Bader Ginsburg lately. Like her history as a high school cheerleader (which is, by the way, a perilous pursuit).
And now we learn her secret nickname at One First Street. From the Washington Examiner:

Anyone who has seen Supreme Court Justice Ruth Bader Ginsburg knows that, although she’s big on law, she’s short on physical stature. Some of the employees who work around her in the Supreme Court Building find her diminutive size rather endearing and have taken to calling her Little Tweety Bird, a moniker they use only within their small circle.

But, lest you think that Ginsburg might rule such a nickname as “out of order,” that same circle insists that it’s a kind nickname, and one meant to reflect the notion that they feel very protective of Ginsburg.

Does that make Justice Scalia into Sylvester the Cat? Probably not. Justices Scalia and Ginsburg are close personal friends. They share a love of opera, and their families sometimes spend New Year’s Eve together.
We nominate Justice Thomas for the role of Sylvester the Cat. In the 1947 cartoon Tweetie Pie, the Sylvester the Cat character went by the name “Thomas.” MEOW!
A nickname for Ginsburg [Washington Examiner / Yeas and Nays]

Arthur Miller Deals Justice Scalia a Reverse Bench-Slap

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Arthur Miller Professor Arthur R Miller Above the Law blog.jpgOh no he didn’t… Oh yes he did! Check out this account of yesterday’s Supreme Court argument, by the AP:

Longtime Harvard law professor Arthur Miller (at right)… was arguing on behalf of shareholders who want to sue companies for fraud. Miller is a frequent television commentator, prolific writer and possibly the inspiration for an abrasive professor in a popular account of life at Harvard.

Justice Antonin Scalia and Miller were contemporaries at Harvard Law School in the late 1950s. Miller graduated in 1958, two years ahead of Scalia.

Scalia clearly was on the side of the companies, chiming in from time to time to make Miller’s difficult task a bit harder.

After one remark, Miller let loose: “Is that because you never met a plaintiff you really liked?”

OUCH. And it must have been ten times better in person:

There was laughter and an “ooh” from spectators. Justices Stephen Breyer and Clarence Thomas laughed for several seconds, even after arguments resumed.

Miller, perhaps sensing he crossed a line, quickly added, “I took a liberty there with the justice.”

You sure did, Professor Miller — but it could have been worse. E.g.: “Yo mama is so stupid, she relies on legislative history!”
Scalia and Harvard Law Professor Trade Barbs in Court [AP via Law.com]

Nino’s Grandkids Need A Ride to Soccer Practice

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Ann Banaszewski Ann S Banaszewski Justice Antonin Scalia drunk driver drunk driving Above the Law.jpgHer high-profile father continues to criss-cross the country, preaching the gospel of originalism.
But Ann S. Banaszewski, daughter of Justice Antonin Scalia, probably won’t be doing much traveling in the next six months. Unless someone else is at the wheel.
(Justice Scalia, as far as we know, hasn’t gotten any traffic tickets lately. But rumor has it that he can be an impatient driver himself.)
Scalia Daughter Won’t Fight Driver’s License Suspension [Chicago Tribune]
Judicial SIGHT-ation: The Wheels of Justice Scalia [UTR]

Headline of the Day

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Does the copy editor of the DuPage Daily Herald, like Professor Jeffrey Rosen, think that Justice Antonin Scalia “is a huge dick”?
If so, it would make sense. Animus towards Justice Scalia might explain this amusingly salacious headline:
Woman Tied to Scalia Headline Above the Law.GIF
This innocent little headline, just seven words long, makes it sound like Justice Scalia has a mistress. Who’s a lush. And a criminal.
It’s an impressive feat, in its own way.
Woman tied to Scalia faces DUI charge [DuPage County Daily Herald]
Earlier: Justice Scalia’s Daughter Joins the Ranks of Paris Hilton, Nicole Richie, and State Court Judges

Justice Scalia’s Daughter Joins the Ranks of Paris Hilton, Nicole Richie, and State Court Judges

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Ann Banaszewski Ann S Banaszewski Justice Antonin Scalia drunk driver drunk driving Above the Law.jpgIf your mom or dad is a federal judge, that makes them perfect (by definition). But Article III infallibility does not extend to you, their offspring. Do YOU have a commission signed by the President? Where’s your fancy black robe?
In fact, federal judicial kids get into all sorts of embarrassing scrapes. For example, sometimes they spill coffee on airplanes.*
And sometimes they get into much bigger trouble. From the Chicago Tribune:

A daughter of U.S. Supreme Court Justice Antonin Scalia was arrested Monday night in Wheaton and charged with driving under the influence of alcohol and child endangerment, Wheaton Deputy Police Chief Thomas Meloni said.

Ann S. Banaszewski, 45, was stopped about 7:25 p.m. in a 1996 Ford Econoline van near Gamon Road and Longfellow Drive after a citizen reported a possible drunken driver was at the McDonald’s restaurant near there, Meloni said.

Three of Banaszewski’s “small children” were in the van with her at the time, leading to the child endangerment charge, Meloni said.

Quips our tipster: “Now that I have kids, it really makes me mad to see someone drinking and driving with their kids in the car.”
(Similarly troubling: Banaszewski’s taste in vehicles. A 1996 Ford Econoline van? Not nearly as nice as the BMW her father tools around Washington in.)
Mrs. Banaszweski wasn’t eager to chat about the incident:

Banaszewski, reached by phone at home, declined to speak about the arrest, or whether she was Scalia’s daughter.

“I have no information and I certainly would not speak with a reporter about my father,” she said.

Some unsolicited advice: Next time, Ann, just say “no comment.” We don’t mean to be annoying or pedantic — we’re guessing you don’t speak to the media much — but saying you “have no information” about an episode in which you’re the protagonist isn’t true.
Anyway, we must say we’re rather surprised by this news. The offspring of Justice Scalia are an upstanding bunch. They include a priest, a military officer, and a hot ERISA lawyer. And given Justice Scalia’s emphasis on morality and personal responsibility, we think he’d be displeased to learn that his daughter was allegedly driving under the influence, with his three grandchildren in the car.
* For those of you who care, yes, we will (eventually) respond to Judge Alex Kozinski’s open letter to us. We’ve just been very, very busy.
Daughter of Supreme Court Justice Charged in DUI [Chicago Tribune]
Earlier: Flying the Friendly, Federal Judicial Skies
Judges of the Day: Patrick Young and Jan Fiss
The Honorable Nicole Richie?