The front of the Supreme Court building: ‘Equal Justice Under Law.’ (Click to enlarge.)
The Supreme Court was called to order at 10:00 a.m. sharp. The Chief Justice announced, “Justice Kennedy has our first opinion of the day in case number 12-307, United States v. Windsor. Everyone, in the bar members section at least, knew that this was the Defense of Marriage Act case.
That Justice Kennedy was announcing the opinion was significant; he wrote Lawrence v. Texas. Still, no one knew if the Court would reach the merits, since the Solicitor General had announced that the Executive Branch would not defend the constitutionality of DOMA.
Justice Kennedy is an orderly man. He set out the procedural background – Edith Windsor and Thea Spyer were married legally in Canada, then came home to New York. Their same-sex marriage is lawful where it was performed and where they lived. Spyer died and left her estate to Windsor. Windsor sought to claim an estate tax exemption for the death of a spouse. DOMA prevented the IRS from recognizing Spyer as Windsor’s spouse. Windsor paid the tax, then challenged DOMA. She won in the district court and the Second Circuit. Justice Kennedy explained how a bipartisan committee found counsel to defend DOMA, and how DOMA was defended ably in the Supreme Court.
(As an aside, Paul Clement took heat for defending DOMA for Congress. When you think about it, if he hadn’t defended it well, the Supreme Court may not have thought it could reach the issue. Paul Clement may be the unsung hero of the DOMA decision.)
So, Kennedy concluded, the Court could reach the merits of whether DOMA is constitutional.
Though a hopeful sign for those who would cheer the demise of DOMA, the decision wasn’t entirely clear….
Not the whole act, mind you. The prohibition on any “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color” is still constitutionally permissible. And folks can sue to enforce that.
But the preclearance requbirement is now effectively gone. That’s the rule that the federal government has to approve changes to voting laws in certain jurisdictions that haven’t been so great about race – in that folks registering black people to vote had been murdered in there, or, they’d had really bad records of African-American voter turnout in the past.
Strictly speaking, the preclearance requirement is not gone — it just no longer applies to any jurisdiction in the country any longer. The Court invalidated the method by which it is determined which jurisdictions are subject to preclearance, rather than preclearance itself. So, now no jurisdiction is subject to preclearance — the preclearance formula is gone.
Many people who are concerned about whether black people are allowed to vote think that the preclearance requirement has been an important tool to make sure black people enjoy the right to vote.
The front of the Supreme Court building: ‘Equal Justice Under Law.’ (Click to enlarge.)
Justice O’Connor, Justice Stevens, Ted Olson, David Boies, Jeffrey Toobin.
All of them were at the Supreme Court today, eager to hear what the Court had to say. New gay-marriage crusading BFFs Olson and Boies sat together. Also in attendance were lots of other fancy folks — like Solicitor General Don Verrilli and Nina Totenberg — who are there more often.
There’s nothing like late June at One First Street.
At the start of the day, 11 cases remained to be decided, four of them blockbusters. The issues on deck: the Defense of Marriage Act, Prop 8, the Voting Rights Act, and the University of Texas’s use of a form of affirmative action. Today, one of the big cases was resolved; with five others coming out, there are only six remaining.
Today, the Supreme Court, in an opinion by Justice Kennedy, addressed the University of Texas’s use of affirmative action. As the Chief Justice announced that Justice Kennedy had the opinion and would start reading it, a rush swept through the courtroom. People leaned forward. Papers rustled….
The third week of June is a frustrating time to follow the Supreme Court.
If there’s any institution in contemporary America that understands ceremony, it’s the Court. Such a self-consciously dramatic institution is, in no way, going to underestimate the importance of timing in issuing opinions. The Justices know that there’s a big difference between a story — or a history book — that starts “On the last day of the Term, the Supreme Court decided,” versus “On the third to last day of the Term….”
There is, in short, just about zero chance that this close to the end, yet not quite at the end, the Supreme Court is going to issue an opinion in the Texas affirmative action case, the Voting Rights Act case, the challenge to the Defense of Marriage Act, or the California Proposition 8 case.
And yet, the Court still issues opinions. And we still line up to hear them, or push SCOTUSblog’s liveblog viewer-count to even higher numbers, even if we all know, or should know, that the opinions we get are not opinions that will resonate through the ages.
Today, the Supreme Court did issue three opinions. And one of them is important, if only for disaffected teenagers. The rest you may not care about, unless you’re a felon with a gun or you ever signed an arbitration agreement….
(1) Monopolies are generally illegal.
(2) Like baseball, patents make monopoly laws get a little funky.
(3) Courts really really really like to encourage settlements.
So, when two companies get together, and work out a settlement that makes a whole patent infringement lawsuit go away, and the only objection is that pesky Federal Trade Commission complaining that the settlement is anticompetitive, you can understand why a federal court could meditate on points (2) and (3) and dismiss that FTC complaint.
Yet, in FTC v. Actavis, the Supreme Court yesterday made it harder to settle some patent infringement suits, saying that sometimes a settlement of a lawsuit can be an antitrust problem.
If you’ve been arrested, and the police want to interrogate you, they will tell you that you have the right to remain silent.
How do you assert that right?
One way would be to say something like “I would like to remain silent.” Saying “I want a lawyer” should also stop the questioning.
But today, in Salinas v. Texas, the Supreme Court of the United States held that you do not assert your right to remain silent by remaining silent. If you want to remain silent, you’ll need to be prepared to talk about it.
No one will be surprised that this result came from the Justice least likely to be voted most beloved by those in our nation’s prison systems, Justice Alito.
It used to be, back before 2005, that the federal sentencing guidelines were mandatory. If you were going to be checking into the United States Bureau of Prisons, the sentencing guidelines determined how long your reservation would be for.
And, it used to be, that if you committed a federal crime, and, between when you committed the crime and were sentenced, the sentencing guidelines went up, the judge had to apply the lower sentencing guidelines from when you committed the crime.
To do otherwise would violate the Ex Post Facto clause.
The sentencing guidelines changed, though, with Booker. Now they aren’t mandatory – they’re just something important that a federal judge has to look at and a federal judge may be risking reversal if she doesn’t follow them.
Got that? The guidelines are totally discretionary. But for the appellate review. Also most federal judges follow the guidelines almost every time. But that’s just a coincidence.
So, since the guidelines are no longer mandatory, but, rather, now just followed in the vast majority of cases, what happens to the Ex Post Facto clause?
Justice Kennedy announced the majority opinion in a long anticipated case today. It was met with a blistering dissent by Justice Scalia.
Unfortunately for most Court watchers, it was not the opinion in Fisher v. University of Texas, the latest in the Court’s attempts to resolve whether affirmative action in higher education is constitutional. Some observers expressed annoyance.
Instead, the Supreme Court issued a ruling in Maryland v. King, which Justice Alito previously identified as potentially the most important law enforcement decision in decades. The Court held that the police can take your DNA any time you’ve been arrested for a “serious” crime.
Today, the Supreme Court, in an opinion by Chief Justice Roberts, held that a citizen of a foreign country who is abused by a foreign corporation in a foreign country cannot sue in a U.S. Court under the Alien Tort Statute because, basically, multinational corporations are very different than pirates.
After Citizens United, we knew that corporations are people. We’re learning what kind of people they are (not pirates). Yet to be decided is whether you’d want to invite them to a dinner party. Or whether they’d accept.
Imagine you’re in a negotiation to buy a used car. You use the Blue Book — the Kelley Blue Book, not the legal Bluebook — to set the starting point on the price. You do your research at home based on the blue book that’s online, which says the starting point for the car you want is $10,000.
Then, when you get to the used car dealer, you find out that they have a new blue book, one that just came out that day. It says that the starting point for the car you want is really $12,000.
You’d probably be annoyed, maybe angry. The whole starting point for your conversation about the price of the car changed.
Yet, the dealer could tell you, and you could still agree with him to pay any amount you’d like for the car. The starting point doesn’t necessarily set the ending point.
This was, basically, the situation the Supreme Court was called in to referee in this morning’s oral argument in Peugh v. United States….
Ed. note: The Asia Chronicles column is authored by Kinney Recruiting. Kinney has made more placements of U.S. associates, counsels and partners in Asia than any other recruiting firm in each of the past seven years. You can reach them by email: email@example.com.
It’s that time of year again when JDs are starting to apply for 2L summer jobs and 2L summers are deciding which practice area to focus on.
For those JDs with an interest in potentially lateraling to or transferring to Asia in the future, please feel free to reach out to Kinney for advice on firm choices, interviewing and practice choices, relating to future marketability in Asia, or for a general discussion on your particular Asia markets of interest. This is of course a free of cost service for those who some years in the future may be our future industry contacts or perhaps even clients.
For some years now Kinney’s Asia head, Evan Jowers, has been formally advising Harvard Law students with such questions, as the Asia expert in Harvard Law’s “Ask The Experts Market Program” each summer and fall, with podcasts and scheduled phone calls. This has been an enjoyable and productive experience for all involved.
Whether you’re fresh off the bar exam or hitting your stride after hanging a shingle a few years ago, one thing’s for certain: independent attorneys who start a solo or small-law practice live with a certain amount of stress.
Non-attorneys would think the stress comes from preparing for a big trial, deposing a hostile witness, or crafting the perfect contract for a picky client.
But that’s nothing compared to the constant, nagging, real-life kind, the kind you get from the day-to-day grind of being a law-abiding attorney.
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