Elena Kagan

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….

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Hint: the smallest justice may have the biggest net worth.

If you said Justice Sonia Sotomayor, that wouldn’t be a bad guess. She has earned millions of dollars in royalties from her bestselling book, My Beloved World (affiliate link). Her days of dental debts are behind her.

But she’s still far from the richest member of the Court. That honor would appear to belong to another woman, whose stature might be small but whose net worth is gigantic….

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* How often are you sitting around wondering about all the legal ins-and-outs of the assassination of James Garfield? Wonder no more. [The Legal Geeks]

* A love poem with citations to the U.C.C. You know, if you never plan on getting laid again. [Law Poetry]

* Justice Kagan dials 867-5309. [Slate]

* Underage models in New York are now covered by child labor laws. In related news, American Apparel stops making any ads whatsoever. [Fashionista]

* When a bank nixes your merger, just go ahead and do it another way and bury the bank’s opinion. There’s not much the SEC can do about it anyway. [Dealbreaker]

* Pepper Hamilton’s Nina Gussack is making it rain. [The Careerist]

* Eric Posner has no beef with the NSA. [Constitutional Daily]

* States: The New (Patent) Troll Slayers [Slate]


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?

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Everyone smile and say “certiorari”!

One of our favorite legal blogs is Noncuratlex.com, authored by Professor Kyle Graham of Santa Clara Law. The site is extremely funny and insightful, especially if you’re a legal nerd (we plead guilty), and we link to it regularly.

Professor Graham shares a number of our interests, such as legally themed vanity license plates. And, of course, the U.S. Supreme Court.

Which SCOTUS justice would you be? Find out by taking the Noncuratlex.com personality quiz….

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More trustworthy than any SCOTUS justice.

I suppose that’s a rhetorical question. When you live in a nation that’s been reduced to an army of mindless reality-TV-watching drones, it’s not exactly surprising that the average citizen is more inclined to trust a television judge than a jurist who’s been appointed to the highest court in the land.

We care more about the matching camouflage wedding couture Honey Boo Boo’s parents, Mama June and Sugar Bear, wore when they tied the knot this past weekend than the next round of controversial decisions that will be soon be handed down by the Supreme Court. We care more about the Kimye baby bump than the very existence of the Supreme Court, much less the names of the justices sitting on its esteemed bench.

No one who’s been paying any attention is taken aback by the fact that Americans care more about the people they see on television on a daily basis than names they once read in a textbook. That’s why the results of the latest Reader’s Digest Trust Poll as to this country’s judges are expected, and sad, and not at all surprising….

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Late last week, Time magazine released the Time 100, its annual list of the 100 most influential people in the world. This year, even more lawyers were present on the list than in last year’s troop, and many of them are considered household names.

Although lawyers now represent about 14 percent of this list, only a handful of them were recognized for their work in the legal profession. Some of the representative career alternatives for attorneys on this list include leaders of the free world, fashion icons, and arbiters of athletic fairness.

So which legal eagles soared into the Time 100, and were there any repeat honorees? Let’s find out….

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Too bad Princeton doesn’t have a law school.

I don’t want to alarm you, but this is going to be bad news for some of you — possibly even a lot of you. The last few days have been tough for all of us. Emotional. Controversial. Traumatic, even. News like this comes along once, maybe twice, in a lifetime. Obviously, I’m referring to the treatise that was recently released in Princeton University’s student newspaper, the Daily Princetonian, in the form of a letter to the editor addressed to “the young women of Princeton.”

The author of this editorial, noted socio-anthropological scholar divorced former housewife and Princeton alum, Susan A. Patton, caused quite a stir when she implored — nay, demanded — that the young women of Princeton “find a husband on campus before you graduate” because “for most of you, the cornerstone of your future and happiness will be inextricably linked to the man you marry, and you will never again have this concentration of men who are worthy of you.” She then drove the point home by noting that she recently completed a “horrible” divorce, after 27 years of marriage, to a man whose “academic background was not as luxurious as mine, and that was a source of some stress.” Indeed.

Susan A. Patton, while I admire your grammar, I have to respectfully disagree with you. Because you failed to cite one obvious point: Even if a young lady has managed to escape the wilds of New Jersey without nailing down a trip to Zales, she still has one more shot: law school. Well, let’s be clear — a T14 law school….

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Looking back, the part of last week’s arguments at the U.S. Supreme Court that stands out most for me is the last hour (DOMA merits) — a fitting finale to two days of historic argument on same-sex marriage.

The way things unfolded, the last hour is why we all came. It is why people slept on the sidewalk for days. It is why Americans tuned in and logged on for updates. It is why the attorneys signed up to argue.

We were there to discuss the future of marriage in this country, how different people see it, and where state and federal governments fit in.

The Prop 8 argument went to those core issues the day before, but in fits and starts. A muddy hybrid of standing and merits.

The last hour of DOMA went there and stayed there. Merits were the only thing on the menu, and we ate it up….

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[S]uppose a State said that, “Because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55.” Would that be constitutional?

– Justice Elena Kagan, in response to Charles Cooper’s contention that marriage is an institution that’s been historically and traditionally linked to procreative purposes, during yesterday’s oral arguments on California’s Proposition 8.

(This exchange led to a wildly entertaining political ad parody about the dangers of old people marrying, produced by the Daily Dolt. Because if there’s anything that’s “worse” than gay marriage, it’s gray marriage! Please continue reading to see the video; you can thank us later.)

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