Oh, 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.

Here’s one talk that Justice Ruth Bader Ginsburg didn’t fall asleep during: her own, a conversation with Nina Totenberg at the 92nd Street Y on Thursday night.

We took note of the fact that RBG dozed off a bit during President Obama’s State of the Union address. As it turns out, Justice Ginsburg has an explanation.

The Roberts court has lost its virginity.

— Linda Greenhouse

Justice Alito was barely able to contain himself during Barack Obama’s State of the Union speech. Justice Ginsburg, on the other hand, was barely able to stay awake:

For Obama, a polite State of the Union [Washington Post]

Earlier: SCOTUS Slammed at SOTU
Breaking: Justice Ginsburg Hospitalized (Again), But Released
Ginsburg Falls Asleep: Media Pretend Not to Notice [News Busters]

Barack Obama just finished up his first State of the Union address. Lots of interesting things: jobs, gays in the military, health reform capitulation c’mon we’re so close we’ve got to do something…. Oh, and nuclear power plants are back on the agenda. CHECK YOU RADIATION LEVELS.

But the biggest legal news, at least from the perspective of your Above the Law editors, was Obama’s smackdown of the Supreme Court — while six of the nine were sitting right in front of his face.

It was so harsh that it inspired Justice Samuel Alito to shake his head and to mouth the words “not true” at the president — very reminiscent of the “you lie” moment from the last time Obama spoke in front of a joint session of Congress.

The video and additional details — plus UPDATES, including a mini-debate between Kash and Lat, and a READER POLL — after the jump.

Ed. note: ATL has teamed up with the 10th Justice to predict how the Supreme Court may decide upcoming cases. CNN has called FantasySCOTUS the “hottest new fantasy-league game.”

Yesterday the Supreme Court handed down Citizens United v. FEC, one of the most anticipated cases of the year. The Hillary Movie case was a showdown between free speech and campaign finance laws. In 2008, the D.C. Circuit ruled in favor of the FEC that Hillary: The Movie could not be shown on television right before the 2008 Democratic primaries under the McCain-Feingold Act. SCOTUSBlog has a fantastic round-up of coverage of this landmark case, which will send shock waves through the 2010 election season.

This is the first blockbuster case of the term, and the first real yardstick for the accuracy of the wisdom of the crowds. Were our 3,500 members able to accurately predict this outcome? How valid is the wisdom of our crowds?

On November 20, 2009, based on 286 predictions, 67% of our members predicted that the Supreme Court would reverse the lower court. Of these 286 predictions, 136 members predicted that the outcome would be a 5-4 reversal. This constituted 70% of all reversal predictions.

But since November, the league acquired over 2,000 new members, who made 600 additional predictions for this case. How did they do? And how did these predictions compare to the Supreme Court’s final opinion?

Also, we update the FantasySCOTUS.net leaderboard. Who is in the top 10?

Read on.

The Supreme Court handed down a tasty opinion [PDF] today. The issues at hand though make for an odd coupling: the death penalty and chocolate genitalia.

In 1993, Marcus Wellons was convicted of the rape and murder of a 15-year-old girl. The jury sentenced him to death.

Apparently the case was a bonding experience for the Georgia judge and jurors. According to the SCOTUS per curiam opinion:

Only after the trial did defense counsel learn that there had been unreported ex parte contacts between the jury and the judge, that jurors and a bailiff had planned a reunion, and that “either during or immediately following the penalty phase, some jury members gave the trial judge chocolate shaped as male genitalia and the bailiff chocolate shaped as female breasts.”

It’s unclear why the jurors gave a chocolate penis and breasts to the judge and bailiff, but the high court is asking the 11th Circuit to reexamine the case as the gifts “raise serious questions concerning the conduct of the trial.”

Justices Scalia, Thomas, Alito and Roberts dissented, apparently feeling nothing raised….

Shortly before 5 p.m., the Supreme Court ruled against broadcast of the Proposition 8 trial, currently taking place in San Francisco. The Court split 5-4, with the majority setting forth its reasoning in a 17-page per curiam opinion. Justice Breyer dissented, joined by Justices Stevens, Ginsburg, and Sotomayor.

You can read the per curiam opinion and Justice Breyer’s (excellent) dissent over here. Analysis and commentary, from Lyle Denniston and Chris Geidner, can be accessed at SCOTUSblog and Law Dork.

(We’ve already told you how we feel about this issue. In addition, about 80 percent of you support broadcast of the Prop 8 trial.)

Prop 8 Court TV blocked [SCOTUSblog]
SCOTUS Blocks Broadcast [Law Dork]

Earlier: Cameras in the Prop 8 Courtroom: Why Not?

Tomorrow, the Supreme Court will begin hearing oral arguments in the case American Needle v. National Football League for the purposes of determining whether the NFL clubs’ collective licensing of individual club trademarks is exempt from Section 1 of the Sherman Act under antitrust law’s single entity defense.

American Needle, which is represented by the law firm Jones Day, will argue that the Supreme Court should uphold the ruling of at least seven lower courts, each of which has found that the business practices of the NFL clubs are subject to Section 1 of the Sherman Act (American Needle’s briefs are available here and here). By contrast, the NFL, which is represented by the law firm Covington & Burling, will argue that, despite these lower court rulings, the NFL is really more akin to a single company and should be treated as such for antitrust purposes (The NFL’s brief is available here).

More details after the jump.

Because when you want to argue against average Americans having access to a basic civil right, you want to make sure nobody sees you doing it. From the Associated Press:

The Supreme Court is blocking a broadcast of the trial on California’s same-sex marriage ban, at least for the first few days.

The federal trial is scheduled to begin later Monday in San Francisco. It will consider whether the Proposition 8 gay marriage ban approved by California voters in November 2008 is legal.

The high court on Monday said it will not allow video of the trial to be posted on YouTube.com, even with a delay, until the justices have more time to consider the issue. It said that Monday’s order will be in place at least until Wednesday. Opponents of the broadcast say they fear witness testimony might be affected if cameras are present. Justice Stephen Breyer said he would have allowed cameras while the court considers the matter.

Whatever. I’d be more worked up about this, but I’m still waiting for FIFA to realize that there is a thing called instant replay. Old people, organizations, and institutions tend to react really slowly to obvious technological changes.

UPDATE: After the jump, SCOTUSblog opines on why the Court mandated the delay.

You can’t go two clicks on the internet today without hearing something about the new term of the Supreme Court (or the NFL playoffs, or porn). I’ve got to agree with the WSJ Law Blog’s Ashby Jones that the most interesting SCOTUS related piece comes via Bloomberg and talks about Solicitor General Elena Kagan’s willingness to defend shareholder rights. The Law Blog summarizes Kagan’s pro-shareholder stances:

Exhibit A: In a case against Merck, Kagan’s office is asking the court to let shareholders wait longer to sue companies for securities fraud. The justices are considering whether to allow a lawsuit by investors who say the drugmaker deceived them about the risks posed by its Vioxx painkiller.

But Exhibit B is the case folks are buzzing about: Kagan and SEC lawyers are urging the court to ease the way for investors to sue mutual fund managers over their fees. The fund industry aims to avert more lawsuits by the 90 million investors who together hold $11 trillion in U.S. mutual funds.

Why worry about potentially messy government regulation of business when you can just sue the bastards?

More details from the Bloomberg article after the jump.

The most recent New Yorker features a profile of the newest resident of the High Court, Justice Sonia Sotomayor. Given the tone of the piece, you might think One First Street is turning into Melrose Place. Journalist Lauren Collins describes Sotomayor as “the first celebrity Justice”: a “diabetic, a divorcée, a dental-bill debtor, a person who, the night before her investiture ceremony, belted out “We Are Family” in a karaoke bar at a Red Roof Inn.”

The profile covers some familiar territory, highlighting attacks on Sotomayor’s intellect during the confirmation process and indignation over her aggressive questioning during oral arguments since taking a seat on the High bench.

Overall, though, it’s more favorable in tone than the profile of John Roberts in the magazine last year. As the WSJ Law Blog notes, Sotomayor comes across as “eminently personable” and as a “stickler for preparation.”

Tina Brown of the Daily Beast, a former editor of the New Yorker, is a bit more graphic in her reaction to the piece for NPR:

Brown says the justice comes across as an “up-from-the-bootstraps woman who loves to bust out a poker game and knock back a scotch.” But, Brown adds, she also comes across as meticulous, rigorous and heavily influenced by her mother, a nurse, who emphasized education above all else…

“Sotomayor is not a great prose styler, not a fancy-flourish merchant,” says Brown. “She’s not a person who’s going to reinvent the philosophical approach to law, but she does believe that the law is to be understood by the common man in the street. And I think that there’s a lot to be said for that, actually.”

We concur with Brown’s ruling on the piece. We’ve excerpted our favorite anecdote from the profile after the jump. Clerking for Sotomayor sounds fun….

Ed. note: ATL has teamed up with the 10th Justice to predict how the Supreme Court may decide upcoming cases. CNN has called FantasySCOTUS the “hottest new fantasy-league game.”

One of the most anticipated cases before the Supreme Court this term is McDonald v. Chicago. McDonald considers whether Chicago’s handgun ban violates the Second Amendment. While District of Columbia v. Heller established that the Second Amendment protects the right to keep and bear arms from infringement by the federal government, McDonald changes the target to the states.

McDonald pits the right to keep and bear arms against the rights of the states to enact gun control laws. Which argument has more firepower?

On Monday, Adam Liptak had an interesting article about Supreme Court clerk hiring and possible political polarization. From the New York Times:

A new study has found that former clerks have started to take jobs that reflect the ideologies of the justices for whom they worked.

“It’s cause for concern mainly because it’s a further piece of evidence of the polarization of the court,” said William E. Nelson, a law professor at New York University and one of the authors of the study.

Now, anyone who follows SCOTUS clerk hiring today might yawn at this. Is it really surprising that, as reported in the study, the Bush Administration hired more clerks from the conservative justices, the Clinton Administration hired more clerks from the liberal justices, and certain firms skew conservative (Kirkland & Ellis) or liberal (WilmerHale) in their hiring of former Supreme Court clerks?

But here’s the interesting part:

Until about 1990, the study shows, there was no particular correlation between a justice’s ideological leanings and what his or her clerks did with their lives…. Before the 1990s, the study found, all sorts of former clerks served in the government under all sorts of administrations….

In addition, there have been changes with respect to clerks entering academia:

From about 1940 to 1990, the study found, about a third of all clerks became law professors. There was variation among the chambers, but it was not correlated to the justices’ ideological leanings…. [But now] clerks from conservative chambers are less likely to teach. If they do, they are more likely to join the faculties of conservative and religious law schools.

We’ve heard anecdotally about anti-conservative bias in law faculty hiring (similar to what you sometimes see in law firm hiring). Does this study support the sense of some conservatives that the legal academy is hostile to their ideas?

More discussion of the article, plus the latest in Supreme Court clerk hiring news, after the jump.

As Quinn Emanuel folks are well aware (“CHECK YOU EMAILS”), there are many employees out there who are expected to be chained to their work at all times. The BlackBerry goes to bed with you, and not just because of its vibrate function. Sometimes the bedroom talk makes its way onto the BlackBerry.

Such was the case for Jeff Quon, a SWAT officer in California. He was fired after his lieutenant read hundreds of steamy text messages sent from Quon’s work pager. Quon sued the police department, arguing that the search of his texts was a violation of his Fourth Amendment rights.

Funny, we didn’t know SWAT officers even knew that there was a Fourth Amendment.

Now SCOTUS will be weighing in on privacy rights for personal communications on work-issued devices. Emily Bazelon sketches out the case’s path to One First Street over at Slate:

In June 2008, the U.S. Court of Appeals for the Ninth Circuit agreed with [Quon]. He had a reasonable expectation of privacy, the court said, given what his supervisor told him about paying for extra messages — the department’s “operational reality.” The court also found that there were other, less intrusive ways for the police chief to figure out whether Quon was frittering away his time: Warning him ahead of time to quit sending so many messages, asking him to count the characters himself, or asking him to cross out the personal parts before the department reviewed them.

This ruling, by Judge Kim McLane Wardlaw for a panel of three judges, implicitly recognizes that company pagers and e-mail accounts often turn into personal ones.

Should Quon be protected against the eyes of the boss, and in this case the law, reading the responses to “What R U wearing?”

Ed. 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 third installment of Predictions of the 10th Justice, brought to you by FantasySCOTUS.net. The league has over 2,000 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.”

Our obsession with Supreme Court clerks is longstanding, dating back to our blogging for Underneath Their Robes (where we used to profile SCOTUS clerks). And it seems we’re not alone in lusting after the Elect.

Apparently oral argument makes people think of other oral activities. Check out this “Missed Connection” from Craigslist:

Law clerk at SCOTUS honest services argument - w4m (Supreme Court Building)

We were both there to hear the honest services arguments, which were fascinating. You were siting with the law clerks, I think, so I’m wondering if you’re one of them. You looked slightly older and more mature than the rest of the people you were sitting with. You’re quite handsome and I enjoyed watching you as you followed the arguments. Too bad you left at the case break—I’d been trying to catch your eye. (I was sitting in the front row of reserved seating.) I promise that if you agree to meet me for dinner that I won’t mention Black or Weyhrauch. What say you?

If you’ll forgive the quibbling, this posting is subpar; it’s missing some information. First, the poster has omitted her age (which typically goes after the “w4m”). Second, she offers little identifying information about herself (e.g., “I was wearing a red scarf”). Third, she offers little identifying information about the clerk, other than that he’s “more mature” and “quite handsome.” We suspect that every male Supreme Court clerk fancies himself “more mature” and “quite handsome.”

Typically a missed connection involves, well, a “connection.” The lack of identifying information suggests that no such connection was forged here. But we admire the poster’s effort.

This is not, by the way, the first time a CL “Missed Connection” has arisen out of a Supreme Court argument.

Ed. 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.

Sensible shoes are for liberal chicks. Say hello to fabulous Federalist footwear!

As you may have noticed, from our two posts late on Monday night and one from Tuesday morning, we’re engaging in some after-the-fact blogging of last week’s Federalist Society National Lawyers Convention.

As in past years, the social highlight of the conference was the Thursday night banquet (black tie optional; and many availed themselves of the option, ‘cause that’s how conservatives roll). The speaker at the dinner was none other than Justice Samuel A. Alito, who delivered an insightful and hilarious speech that was a delight to listen to. Just as one might say of, say, a newscast by Jon Stewart, much of the entertainment value was in the delivery — Justice Alito is so dry and deadpan, and yet his remarks make you bust out laughing.

Interestingly enough, we haven’t come across many news accounts of Justice Alito’s speech. There was also no video recording allowed at the address. So we feel we can add some value with this write-up, despite its belated nature.

There may have been some confusion over the ground rules governing reporting about the speech. From the BLT:

Justice Samuel Alito Jr. spoke to the Federalist Society [last Thursday] night, but photos of him doing so are hard to come by. That’s because photographers other than the Federalist Society’s own were barred from the event. Keith Appell, a spokesman for the Federalist Society, said cameras were prohibited by Alito’s security detail….

Kathy Arberg, the court spokeswoman, said “The justice’s policy was that the event was open to still cameras and pencil press,” and that the Federalist Society was informed of that policy before the event.

Well, photos from the event aren’t hard to come by on Above the Law. Nobody told us that we couldn’t take photographs — so we did. And, as members of the “pencil press,” we jotted down notes in our reporter’s notebook. (We left the laptop at the hotel that night.)

Check out a slideshow of our pictures, along with a discussion of Justice Alito’s highly engaging and entertaining address, after the jump.

The Supreme Court decided it wants no part of the Redskins case, and Quinn remains victorious over Native American activists who want to change the team’s racially charged moniker. The WSJ Law blog reports:

The Redskins on Monday got a bit of good news from the U.S. Supreme Court, which declined cert filed by Native American activists who claim the Redskins’ team name is so offensive that it does not deserve trademark protection. The ruling essentially lets stand a lower court ruling that the activists waited too long to bring the challenge.

Mmmm … laches.

Regular Above the Law readers know that this case sparked some internal controversy at Quinn Emanuel when a then-associate at the firm took offense to Robert Raskopf’s celebratory lower court victory email.

The associate argued that Quinn was on the wrong side of history, but it appears the firm is on the right side of the law.