SCOTUS

The confirmation hearings for Solicitor General Elena Kagan, nominated to replace Justice John Paul Stevens on the Supreme Court, are currently scheduled to start on Monday, June 28. We will, of course, offer extensive coverage, including some liveblogging.

But most observers expect little confirmation drama — which makes sense. Elena Kagan is an eminently qualified nominee who has over the years kept herself out of trouble, personal or political. She enjoys support from a number of notable conservatives, such as Miguel Estrada and former judge Michael McConnell (both of them possible SCOTUS nominees in a Republican administration).

Just today, Vanderbilt law professor Brian Fitzpatrick — a former law clerk to Justice Scalia and a former counsel to Senator John Cornyn (R-TX) — issued an enthusiastic endorsement (PDF) of Kagan, praising her as “a person of utmost integrity, extraordinary legal talent, and relentless generosity.” Such sentiments have been heard from many conservative corners.

So, with Lady Kaga’s confirmation more or less assured, let’s start thinking about what we can expect from a Justice Elena Kagan. Specifically, how will she handle petitions for certiorari, the requests filed by litigants who want the Court to hear their cases?

In other words: Will Justice Kagan plunge into the cert pool? And should she?

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The Tenth Justice Fantasy SCOTUS League.jpgThe Supreme Court is headed down the home stretch. Of the 86 cases argued during the October 2009 term, 59 have been decided and only 27 are remaining.

While we are still waiting for results the biggest cases of the term, including McDonald v. Chicago, Christian Legal Society v. Martinez, and Doe v. Reed, the Supreme Court handed down several significant cases in May: American Needle v. NFL, Graham v. Florida, Carr v. United States, Berghuis v. Thompkins, United States v. Comstock, and Levin v. Commerce Energy.

In this post, we will revisit our predictions and compare them to the outcomes. We will use our standard measures to explain how confident we were of our decisions, and how accurate our forecasts were.

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If you can only name one Supreme Court Justice, let’s hope that it’s Anthony Kennedy. It’s his world now, we’re all just along for the ride.

Today’s big Supreme Court ruling was the case of Berghuis v. Thompkins. At issue was whether a suspect’s silence constituted a waiver of his right to remain silent.

Yes, you read that correctly. There was actually an open question as to whether remaining silent waives your right to do so. More importantly, it does! One must speak in order to be protected by a right guaranteed to you in the Constitution.

Justice Kennedy wrote the opinion for the 5-4 majority…

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Last week, inspired by the pending Supreme Court nomination of Elena Kagan, we embarked upon a fun little imaginative exercise:

What if Supreme Court nominees didn’t have to defend themselves to the American public? What if the U.S. Senate’s constitutional privilege of “advice and consent” was revoked? What would the Court look like if the nominees didn’t have to even pretend to be moderate?

It’s a thought experiment that we’re sure has been done countless times before. But we’ve never done it, so we’ll plunge ahead.

Here are the rules: (1) The nominee should be unconfirmable. (2) The nominees on the right should make Elie angry; the nominees on the left should make Lat uncomfortable. (3) Mealy-mouthed moderates need not apply.

President Elie Mystal kicked things off by nominating his four liberal justices. And they did make me uncomfortable — half of them failed the bar exam.

I was in charge of picking the five conservative justices. So, who are my nominees?

double red triangle arrows Continue reading “The Unconfirmable Supreme Court (Part 2): The Conservatives”

Above the Law has regularly blogged about why the National Football League should not be treated as a single entity under Section 1 of the Sherman Act. See here, here, and here.

Today the Supreme Court agreed, ruling 9-0 to overturn the Seventh Circuit’s ruling in American Needle v. Nat’l Football League , in which the Seventh Circuit had held the NFL clubs sometimes exempt from Section 1 review.

In a concise, 23-page opinion (PDF), the Supreme Court explained that the NFL is not a single entity because “the NFL teams do not possess either the unitary decisionmaking quality or the single aggregation of economic power characteristic of independent action.”

This case will now be remanded to the Northern District of Illinois for further discovery and then review of its antitrust merits under the Rule of Reason. (More detailed discussions of the issues on remand are available here and here).

Additional analysis and background, after the jump.

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The Tenth Justice Fantasy SCOTUS League.jpgWith Kagan’s nomination set, and all oral arguments for the October 2009 Term completed, we are still waiting for some major decisions — specifically, McDonald v. Chicago, Christian Legal Society v. Martinez, Free Enterprise v. PCAOB, Bilski v. Kappos, and Doe v. Reed. In this post, we will offer predictions for these huge cases. Additionally, our statistics might also give us an insight into what is causing the delay within the SCOTUS on handing down these opinions.

double red triangle arrows Continue reading “FantasySCOTUS: What’s Taking Them So Long? Predictions for McDonald, CLS, PCAOB, Doe, and Bilksi”

Update: Check out Part 2: The Conservatives.

As we were planning Above the Law’s Elena Kagan confirmation coverage, we got to thinking (always a dangerous thing around these parts): What if Supreme Court nominees didn’t have to defend themselves to the American public? What if the U.S. Senate’s constitutional privilege of “advice and consent” was revoked? What would the Court look like if the nominees didn’t have to even pretend to be moderate?

It’s a thought experiment that we’re sure has been done countless times before. But we’ve never done it, so we’ll plunge ahead.

Here are the rules: (1) The nominee should be unconfirmable. (2) The nominees on the right should make Elie angry; the nominees on the left should make Lat uncomfortable. (3) Mealy-mouthed moderates need not apply.

We decided to keep the five-four ideological balance of the current Court. Sure, we know that some people think that without the Senate, Presidents would nominate apolitical justices who have no discernible political slant. Sadly, apolitical justices = yawn.

In this post, Elie picks four pinko commie scumbags. In a future post, Lat will select five right-wing fascist nutjobs. Should be fun…

So, who are the SCOTUS nominees in the administration of President Elie Mystal?

double red triangle arrows Continue reading “The Unconfirmable Supreme Court (Part 1): The Liberals”

Now that the sex lives of Supreme Court justices have become grist for commentators, we are finally free to discuss a question formerly only whispered about in the shadows: Why does Justice Antonin Scalia, by common consent the leading intellectual force on the Court, have nine children? Is this normal? Or should I say ‘normal,’ as some people choose to define it? Can he represent the views of ordinary Americans when he practices such a minority lifestyle? After all, having nine children is far more unusual in this country than, say, being a lesbian.

– The Atlantic’s Michael Kinsley (via Political Wire)

Elena Kagan has the face that launched a thousand comparisons. TMZ thought she looked like Kevin James. The man wooing her via Craigslist thinks she’s a cross between Carrie Fisher, Laura Linney, and Bette Midler.

We polled you, and the results are in. Who is the winner of the Elena Kagan Look-Alike Contest?

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That’s the question the Supreme Court answered in the negative today, in Graham v. Florida. The Court’s opinion was by Justice Kennedy, whose vote usually controls on Eighth Amendment issues, and it was joined by the four liberal justices.

The case generated oodles and oodles of pages and a welter of separate opinions. Thankfully, the AP has a fairly clear and concise summary:

The Supreme Court has ruled that teenagers may not be locked up for life without chance of parole if they haven’t killed anyone.

By a 5-4 vote Monday, the court says the Constitution requires that young people serving life sentences must at least be considered for release.

The court ruled in the case of Terrance Graham, who was implicated in armed robberies when he was 16 and 17. Graham, now 22, is in prison in Florida, which holds more than 70 percent of juvenile defendants locked up for life for crimes other than homicide.

Florida: where it’s good to be an old person.

Interestingly enough, Chief Justice John Roberts — not known as a bleeding heart — agreed with the majority as to Terrance Graham specifically. Because he concurred in the judgment, the vote on the disposition of the case was actually 6-3.

The back-and-forth between the majority and the dissent gets quite heated at times. Justice Thomas wrote the main dissent, which Robert Barnes of the Washington Post described as “stinging.” But given the power that Justice Kennedy wields at One First Street, it’s generally unwise to attack him too harshly.

So the most snarky exchange did not involve Justice Kennedy, but took place between Justice Thomas and his soon-to-be-former colleague, Justice Stevens….

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