Constitutional Law

Justice Kagan announced the first opinion of the Court today. She is a funny woman:

“This case presents questions of sovereign immunity and prudential standing, not exactly what you came here today to hear.”

With 113 people being sworn into the bar of the Court, I suspect that most of the people in the audience did not, in fact, come to hear a decision in the health care case. The place is packed with admittees and their families — it’s so full members of the Supreme Court bar are squeezed back into the public section of the courtroom. With this many bar admissions, most of the bodies in the room are here to watch someone they know stand and recite an oath.

This is less true of the scrum of cameras outside the Court. While a few weeks ago there were four for five, now there’s a forest. Though perhaps they only appear to be more of a presence today in the light rain, as umbrellas protect the equipment and the spot where the talent will stand — illuminated by massive lights that are both soft and bright — if only the Court would hurry up and issue the health care opinion already.

Alas, no health care opinion was issued.

But, aside from the case about sovereign immunity and prudential standing, for a certain kind of lawyer, a very important opinion was issued today….

double red triangle arrows Continue reading “The Supreme Court Is Not Kind To Pharmaceutical Sales Reps Or the Confrontation Clause”

In case you’re wondering, there was no major news out of the U.S. Supreme Court this morning. Our friends at SCOTUSblog predict that opinions in the marquee cases, such as the Arizona immigration case and the health care reform case (aka Obamacare), will be issued next week. (Above the Law’s own Supreme Court correspondent, Matt Kaiser, should have a more detailed write-up of this morning’s proceedings later today.)

But we do have some SCOTUS-related news to mention this morning (and not just the latest in law clerk hiring). Did you know that Justice Antonin Scalia has a new book out, hitting stores tomorrow?

double red triangle arrows Continue reading “Justice Scalia and Bryan Garner on the Interpretation of Legal Texts”

Justice Elena Kagan

Sounds like a dumb law.

– Supreme Court Justice Elena Kagan, commenting during her confirmation hearings on Senator Tom Coburn’s attempt to compare the Affordable Care Act to a hypothetical law requiring consumption of fruits and vegetables.

(Senator Coburn wondered if such a law would violate the Commerce Clause. In response, Kagan noted that “whether it’s a dumb law is different from … the question of whether it’s constitutional.”)

Most of the journalistic/legal world is on fire with excitement for the decision in the Affordable Care Act case. The New Yorker has a critical article on the not-yet-but-really-soon-to-be-issued decision and what it means for the Court. Time Magazine has a cover picture of Justice Kennedy — “The Decider” — a close-up so close you can see the lines in his bifocals. New York Magazine wrote about how frustrating it is that Supreme Court clerks don’t leak info so there would finally, for the love of all things holy, be something to report from the Court about the health care reform case.

Folks who don’t have press passes are also keyed up. I heard a rumor from one of my neighbors that the decision would come down this week! A friend of a friend told me that the health care reform case was in the bag for the conservatives. It’s like the finals in American Idol, but no one gets to text in their vote.

For weeks, the world has speculated and waited for an opinion. Each decision day for the past month the speculation has intensified. Each decision day a decision in Obamacare has not come.

What happened at One First Street today?

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Luckily for all the non-Mormons in Idaho, the state doesn't find references to grand tetons offensive to anybody.

It’d be one thing if the state of Idaho banned all alcohol because the state sports a large Mormon population and Mormons don’t drink. That might raise a Con Law question or two, but before we could even litigate it out, the state’s many non-Mormons would rebel against the religious theocracy preventing them from drinking. (They wouldn’t call it a “theocracy” because some Grover Norquist-type would convince them that “redistributive taxes” had empowered a “Communist regime,” and the good people of Idaho would blame the black guy, but I digress.)

Banning all alcohol would be too obvious of an imposition of religious dogma upon a secular concern.

Instead, Idaho is trying to get away with a smaller encroachment of religion upon the public sphere. The state of Idaho has effectively banned the sale of one particular kind of vodka because the state believes the company’s marketing campaign is offensive to Mormons.

And no, the marketing campaign is not “drink some of this vodka and then go make fun of Mormons,” or anything the state could reasonably fear might affect the public safety of the citizens of Idaho….

double red triangle arrows Continue reading “Idaho Bans Specific Vodka For Being Offensive Towards Mormons”

Most news you get in life, you know when you’ll get it. Law school grades are posted on a schedule. Your doctor will tell you when the test results are due back. You know when the polls close on election night, and that it will only take so long to count the ballots (though there are some exceptions).

The Supreme Court isn’t like that. Here they are, the closing days of October Term 2011, and all we know is that the Supreme Court will issue opinions at some point in the next few weeks. We don’t know if today is the day.

This creates an odd frustration and excitement in the section of the courtroom where members of the Supreme Court Bar sit.

Today, a number of lawyers recognize Art Spitzer, the legal director for the D.C. area ACLU, sitting in the section for members of the Supreme Court Bar. He was at the Court last week, too. The lawyers sitting and waiting are starved for information about what’s about to happen next.

As lawyers come in, some recognize Art and ask him what opinions the Court will hand down today. He’s a good guy, and reminds them that the only people who know are putting on black robes as he talks. He amicably complains that last week he schlepped all the way down to the Court only to hear a bankruptcy opinion. Art is not interested in the Court’s bankruptcy jurisprudence.

There’s a lot of conversation about what the Court might do today — is life without parole for juveniles constitutional? Is Obamacare? What about the newest Confrontation Clause case? The section of seating for bar members crackles with lawyers eager to show they know what cases are on the Court’s remaining docket.

The Justices come take their seats on the bench — all but Alito — and the Chief Justice announces that Justice Breyer has the first opinion of the day.

We’re on the edge of our seats as Breyer takes a second to make sure he has the attention of the courtroom. He starts to speak….

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During the United States Supreme Court arguments over Obamacare, the nation got a rare treat: the chance to see (or at least hear) Paul Clement in action. Clement, a former U.S. Solicitor General and current partner at Bancroft PLLC, delivered a brilliant performance before the justices, a veritable master class in appellate advocacy. As Carter Phillips, a veteran SCOTUS litigator himself, told us here at Above the Law, Clement “did a spectacularly good job” and “was just on his game… over a much longer period of time than most of us are required to do it.”

But even Clement couldn’t save Section 3 of the highly problematic Defense of Marriage Act (DOMA) from going down to defeat in the First Circuit. Before a panel with a majority of Republican-appointed judges, in fact.

Let’s find out who was on the panel, whether there were any dissents, and what the court concluded….

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* Man, the economy is so bad, monks are having to go to court to fight for a new revenue stream. [WSJ Law Blog]

* We have peace between a Texas auction house and the President of Mongolia over the ownership of a Tyrannosaur skeleton. While we’re here, should anybody wish to invite me to a pre-screening of their inventive dinosaur park, I’d like to note that I’m not the type of bloodsucking lawyer who leaves children behind. [Heritage Foundation]

* Did you know Sullivan & Cromwell got involved in the birther controversy? The first one, the legitimate one with Mitt Romney’s father. Not the ridiculous one that Romney’s been embracing. [Reuters]

* Speaking of Mittens, did you know he supports for-profit colleges? That’s like supporting people jumping off the Empire State Building, so long as they pay to get in. [Salon]

* Could an accounting firm pull a Dewey? [Going Concern]

* Have an idea for how to improve the Constitution? Share it with the good folks over at Slate. [The Hive / Slate]

* In a Supreme Court decision split across gender lines, prosecutors can now get a do-over on criminal charges without double jeopardy, even if an otherwise deadlocked jury unanimously rejected them. [New York Times]

* And yet another day ended without a verdict in the John Edwards campaign finance trial, but the jury asked to review every exhibit in the case. The former presidential candidate must feel like he’s being punk’d. [CNN]

* The DOJ found that two prosecutors in the Ted Stevens case committed reckless professional misconduct punishable by unpaid time off. Looks like they’ll be getting an extended Memorial Day break. [Blog of Legal Times]

* Hot on the heels of Obama’s announcement in support of gay marriage, yet another California judge has found that DOMA is unconstitutional (along with a provision of the tax code). [Poliglot / Metro Weekly]

* Occupy Wall Street is suing for $48K over the destruction of the group’s “People’s Library” after their eviction from Zuccotti Park. But let’s get real, who wants used books that reek like patchouli and pot? [Bloomberg]

* More than one million “de facto spouses” in Quebec may soon be automatically married by the state against their will. Imagine how much fun it’ll be to get a divorce from someone you never actually married. [Slate]

* Two waitresses who claim they were fired for complaining about their former employer’s “no fatties” policy will get to bring their $15M lawsuit before a jury. Hopefully Peter Griffin isn’t a juror. [Law & Daily Life / FindLaw]

John Yoo

John Yoo teaching constitutional law to the next generation of lawyers and judges is a perverse mockery of what a law school education should be.

Stephanie Tang, a spokesperson for the Bay Area chapter of World Can’t Wait, commenting on the anti-war group’s reasons for protesting Yoo’s continued employment by the law school this morning outside Boalt Hall’s commencement ceremony.

(See what Yoo had to say about today’s protest, after the jump.)

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