SCOTUS

The [Ninth Circuit] seems to have cherry-picked the aspects of our opinions that gave colorable support to the proposition that the un-constitutionality of the action here was clearly established.

Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects ‘all but the plainly incompetent or those who knowingly violate the law.’ [Former Attorney General John] Ashcroft deserves neither label, not least because eight Court of Appeals judges agreed with his judgment in a case of first impression.

– Justice Antonin Scalia, writing for the Court in Ashcroft v. al-Kidd (via Josh Blackman). (The eight Court of Appeals judges are those who joined Judge O’Scannlain’s dissent from the denial of rehearing en banc.)

It should not be surprising that the two dissents have sharply different views on how to read the statute. That is the sort of thing that can happen when statutory analysis is so untethered from the text.

– Chief Justice John Roberts, benchslapping the dissents by Justices Breyer and Sotomayor in Chamber of Commerce v. Whiting.

(The Court upheld, against a preemption challenge, an Arizona law that provides for suspending or revoking the licenses of businesses that violate state immigration law. Gavel bang: Josh Blackman.)

Justice Kennedy says: 'Open Sesame.'

It’s late May, so we’re entering the home stretch of the Supreme Court Term. Over the next few weeks, the Court will be handing down opinions in the most contentious, closely divided cases.

One such opinion came down today: Brown v. Plata (formerly Schwarzenegger v. Plata). In this high-profile case, a three-judge district court issued an order that directed the State of California to reduce its prison population — e.g., by releasing prisoners (as many as 46,000, at the time of the order) — in order to address problems with overcrowding and poor health care for inmates.

When SCOTUS granted cert, I thought that it did so in order to summarily reverse. Federal judges running penal institutions, ordering tens of thousands of convicted criminals to be let out onto the streets? The district court’s order reeked of the kind of Ninth Circuit liberal activism that doesn’t sit well with the Roberts Court. (Note that one of the members of the three-judge panel was the notoriously left-wing Judge Stephen Reinhardt.)

Well, I was wrong. The Court just affirmed, 5-4, in an opinion by (who else?) Justice Anthony Kennedy.

There were two dissents, by Justices Antonin Scalia and Samuel Alito. Justice Scalia’s opinion in particular contains some stinging (but ultimately ineffectual) benchslaps….

double red triangle arrows Continue reading “Supreme Court Upholds Order Requiring Release of Thousands of Prisoners”


I think there is a disease of illiteracy or laziness, because just the commentary will tell you they haven’t read [the opinions they're critiquing]….

You don’t go to a Georgia fan to get commentary on the University of Florida, because it’s not objective commentary. Unfortunately, much of the commentary about the court is from the standpoint of people who have vested interests in particular outcomes, particular policies or particular results. Do you think you are getting an honest assessment?

– Justice Clarence Thomas, in remarks he delivered at the Augusta Bar Association’s Law Day Banquet. (Gavel bang: ABA Journal; see also Morning Docket.)

I have not the slightest doubt that it was entirely appropriate for U.S. forces to [take out Osama bin Laden]…. I must say I was proud of the SEALs.

– Justice John Paul Stevens, in remarks made yesterday at a dinner in Chicago. (Recall that Justice Stevens served in the Navy during World War II.)

It might interest you to know that if I were still an active justice, I would have joined [Justice Alito's] powerful dissent in the recent case holding that the intentional infliction of severe emotional harm is constitutionally protected speech. The case… involved a verbal assault on the private citizens attending the funeral of their son — a Marine corporal killed in Iraq. To borrow Sam’s phrase, the First Amendment does not transform solemn occasions like funerals into ‘free-fire zones.’

– Justice John Paul Stevens, in a recent speech to the Federal Bar Council in New York City, explaining how he would have voted with Justice Samuel Alito in Snyder v. Phelps (aka the Westboro Baptist Church case).

Maybe RBG is still very young at heart.

Here’s the question swirling through the blogosphere today: Should Justice Ruth Bader Ginsburg resign now — because if she dies under a Republican president, it will be a disaster for every ideal she fights for?

The question was teed up on the WSJ Law Blog this morning after an AP report noted that some liberals were “clamoring” for her resignation (and that of Stephen Breyer, to a lesser extent), just in case Obama loses in 2012.

You can see why liberals are nervous. The Court already has a 5 – 4 conservative majority (if you really think Justice Anthony Kennedy is a “swing” vote, you’re a Republican who likes to pretend to be an independent). Justice Ginsburg has had health problems, and some are not confident that she’ll last until 2016 — and it’s unlikely that either the 78-year-old RBG or the 72-year-old Breyer would make it to 2020, if a two-term Republican president is on the horizon.

The stakes couldn’t be higher. Which is why I think my answer is going to surprise people…

double red triangle arrows Continue reading “Should Ruthie Stay Or Should She Go?”

* BP has its granny panties in a bunch over Transocean’s liability for the oil spill. So they’re suing. [Bloomberg]

* Major League Baseball sought to take over the Dodgers from Frank McCourt yesterday. Your move, Wilpon. [Los Angeles Times]

* Tax Lady Roni DEUTCH may be thrown in jail. I’m not entirely sure what’s going on in this video, but definitely wait for the thrown dog. [ABA Journal]

* Juvenile killers are hoping to reach the Supreme Court in an effort to overturn their life sentences. If their cases make it that far, they’ll undoubtedly find a certain justice who only cares about inferior MP3 players and Emilio Estefan. [New York Times]

* Something called the Second Amendment Foundation has sued Massachusetts over their law forbidding legal immigrants from owning handguns. Crocodile Dundee didn’t need a handgun. [Fox News Latino]

* The Supreme Court heard arguments yesterday in a lawsuit asking courts to force major companies to reduce greenhouse gas emissions. Sotomayor spent the entire oral argument asking attorneys how she could fit more Miami Sound Machine on her Zune. [New York Times]

* Louisiana Governor Bobby Jindal, who can be seen every Thursday night on 30 Rock playing Kenneth the Page, shares none of Jan Brewer’s qualms about a “birther bill.” [Politico]

* The Ecuadorean Slapfight (also the name of my ska band in high school) between Patton Boggs, Gibson Dunn, and Chevron was squashed by a judge yesterday. [Reuters]

* Baker Hostetler is balling out of control on L’Affaire Madoff. [WSJ Law Blog]

Judge Vaughn Walker

* Tiger Blogger Vivia Chen wants white guys to be hunted like animals. [The Careerist]

* A copyright troll has found a way to exact a toll without actually owning any copyrights. No word yet on whether anyone has gained entrance into the boy’s hole. [Wired via ABA Journal]

* Alleged Wikileaker Bradley Manning is being transferred to another prison. Julian Assange celebrated the news by going dancing. [Fox News]

* Sponsors of Proposition 8 are mad that retired judge Vaughn Walker, who presided over Prop 8’s defeat in court, is giving lectures around the country that feature a three-minute clip of the trial. They say the video should remain in the closet. Or a desk drawer of some sort. [Los Angeles Times]

* Arizona Gov. Jan Brewer tapped the brakes on the Insane Train yesterday, vetoing one measure that would allow guns at schools and another that would require presidential candidates to prove they weren’t Kenyan immigrants hellbent on the destruction of Lee Greenwood. [TucsonSentinel.com]

* Microsoft went before the Supreme Court yesterday to argue that patents should be easier to challenge. Sotomayor spent the entire oral argument asking the Microsoft attorney how she could fit more Miami Sound Machine on her Zune. [Reuters]

* Customer accounts have been frozen following the indictment of online poker companies. Bloomberg decided this was the perfect time to upload their stock poker photo, featuring the caption “A royal flush, circa 1950.” [Bloomberg]

* And here’s a rundown of the potential attorneys and firms who will work the defense side in said p-p-p-poker case. [Am Law Daily]

* The Taco Bell soylent beef lawsuit was dropped yesterday. Posting will be light today while Elie makes a run for the border. [NPR]

* Yo, Mr. Dopeman, you think you’re slick. You sold crack to my sister and now she’s sick. But if she happens to die because of your drug, federal judges will have a difficult time sentencing you. Oof, that N.W.A. lyric took a weird turn, didn’t it? [New York Times]

* The Supreme Court rejected an appeal by five Uyghurs being detained in Guantanamo Bay. On a related note, I just wasted a good ten minutes listening to this pronunciation of Uyghur. [CNN]

* Match.com will begin cross-checking users against sex offender registries after being sued. Whatever, juggalove.com is more my speed anyway. [WSJ Law Blog]

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