Stephen Breyer

Supermogul Logo Dead Horse Media.gifHey, guess what? Above the Law is no longer the most junior member of the Conference Dead Horse Media family of websites. Today marks the launch of
It’s nice not being the most junior member. Just ask Justice Breyer, who was delighted when Justice Alito arrived at the Court. As the most junior justice, Justice Alito took over from Justice Breyer the duty of answering the door — and fetching the coffee — when the justices are meeting in private conference.
So now that Supermogul is around, maybe ATL won’t have to fetch the coffee? Uh, think again. We’re probably still on coffee duty — because we’re the lawyers, and they’re the clients. is a business site for C-level (CEO/CFO/COO/etc.) executives and senior-level managers. Check it out here.
Welcome to Supermogul [Supermogul]
Dead Horse Media Introduces [DealBreaker]

Antonin Scalia Stephen Breyer Above the Law SCOTUS Supreme Court Justices.JPGWe have not forgotten that we owe you a report on the very interesting debate we attended last night, between Justice Antonin Scalia and Justice Stephen G. Breyer, on constitutional interpretation.
Our report, and a handful of photos (not as many as we hoped), will appear… shortly. Alas, it will take us a little time to upload the pictures and review our (copious) notes.
In the meantime, if you really can’t wait for our account, click here, for the AP wire story. It’s a fairly good summary, although not as detailed as our forthcoming report (in which we’ll tell you about how Justice Breyer’s cell phone went off in the middle of the event).
And if you have ninety minutes to spare, and want to experience the proceedings firsthand, then click here, for video of the event. Enjoy!
US Supreme Court justices debate their views of Constitution [Associated Press]
Justices Breyer and Scalia Converse on the Constitution [American Constitution Society]
Earlier: Programming Note: Nino-Breyer Smackdown

We’ll be stepping away shortly to attend what should be a fantastic event: A Conversation on the Constitution: Perspectives from Active Liberty and A Matter of Interpretation. It’s being sponsored by the American Constitution Society and the Federalist Society, and we’re attending as a guest of the ACS (whom we thank for the gracious invitation).
Two Supreme Court heavyweights will be stepping into the ring. In the liberal corner: Justice Stephen G. Breyer, author of Active Liberty. In the conservative corner: Justice Antonin Scalia, author of A Matter of Interpretation. The referee: Jan Crawford Greenburg, of ABC News (who recently interviewed Chief Justice Roberts).
So if our posting is sporadic over the next few hours, it’s because we’re watching Justice Scalia and Justice Breyer trade benchslaps. Check back soon, either later today or tomorrow, for our full report on the jurisprudential battle to the death proceedings. Hasta luego!

supreme court hallway.jpgYesterday the Supreme Court heard oral arguments in two cases concerning the use of race as a factor in assigning students to public schools: Parents Involved in Community Schools v. Seattle School District #1, out of the Ninth Circuit, and Meredith v. Jefferson County Board of Education, out of the Sixth Circuit.
It appears that SCOTUS virgin Teddy Gordon, representing the petitioners in Meredith, did just as badly as many members of the snooty SCOTUS bar expected. For a blow-by-blow account of his ill-fated argument, see this reader comment.
Our commentary on the arguments, plus links to audio-casts and written transcripts, after the jump.

double red triangle arrows Continue reading “Dispatch from One First Street: The Race in Public School Cases”

invention polish dictionary Above the Law.jpgOn Tuesday, the Supreme Court heard oral argument in the case of KSR International v. Teleflex. Here’s our quick-and-dirty summary of the proceedings.
Subject Matter / Question Presented: To qualify for patent protection, an invention must be novel, useful, and not “obvious” to a person of “ordinary skill” in the field. So how do you determine “obviousness” when you have an invention that combines already-existing products? And is the Federal Circuit’s three-part “teaching-suggestion-motivation” test for obviousness a bunch of moronic nonsense?
Money Quote(s):
From the NYT:

When [veteran SCOTUS litigator Tom] Goldstein noted that “every single major patent bar association in the country has filed on our side,” the chief justice interjected: “Well, which way does that cut? That just indicates that this is profitable for the patent bar.” And when Mr. Goldstein referred to experts who had testified that the Teleflex patent was not obvious, the chief justice asked: “Who do you get to be an expert to tell you something’s not obvious? I mean, the least insightful person you can find?”

From the Legal Times:

“Three imponderable nouns,” is how Justice Antonin Scalia dismissed the test, also calling it “gobbledygook” for good measure.

Likely Outcome: The Federal Circuit will probably get benchslapped by the SCOTUS. As Tony Mauro notes:

[W]hen Justice Stephen Breyer said he had read the briefs in the case “15 times” and still could not understand the “motivation” prong of the test, Scalia chimed in, “Like Justice Breyer, I don’t understand.”

The implied message to the Federal Circuit seemed to be: If two of the brainier justices on the Supreme Court don’t have a clue what you are talking about, a new test might be in order.

For those of you looking for a substantive, eyewitness account of the argument, we reprint below the report of Joseph (Jay) R. DelMaster, Jr., a partner at Drinker Biddle & Reath in Washington. His account includes advice about how to proceed in patent prosecutions while we await the Supreme Court’s decision.
Check it out, after the jump.

double red triangle arrows Continue reading “Dispatch from One First Street: KSR v. Teleflex”

Tim Wu Timothy Wu Above the Law.jpgAlthough we mentioned it in passing, we didn’t give adequate attention to Anna Schneider-Mayerson’s delightful profile of Tim Wu when it appeared earlier this month in the New York Observer. (It was discussed on several other prominent blogs.)
Now we have an excuse to double back and correct the error: We’ve received an email from the good professor! Here it is (reprinted with permission):

Hi this isn’t exactly a tip — I just read your entry for above the law and the FedSoc conference, and wanted to say sorry I couldn’t meet you at the Net Neutrality panel…. It turned out I had the wrong date and it conflicted with my Thursday copyright class, so I couldn’t come….

I hope to run into you in person one of these days.


Wow! When we received this email, we giggled girlishly with excitement. First, Professor Wu is brilliant. As noted in the profile, he was nicknamed “the Genius Wu” by no less an authority than Judge Richard Posner, who knows genius when he sees it (e.g., when he looks in the mirror).
Second, Professor Wu is quite handsome (see photo). How many other Columbia Law School professors have earned themselves a music video tribute (“Ain’t No Other Man But Wu”) from their students?
(Our only grooming suggestion to Professor Wu: Have those eyebrows thinned. We go to someone very good for ours, but she’s probably not convenient for you given that you’re in New York.)
Finally, we were glad to learn why Professor Wu missed the Federalist Society panel: he misread his calendar. It’s nice to know that a member of the Elect — and not just any old Supreme Court clerk, but one who has been called “indefatigable” and “a valuable man in chambers” by his former boss, Justice Breyer — makes scheduling mistakes. How utterly charming!
Wu-Hoo! Nutty Professor Is Voice of a Generation [New York Observer]
Tim Wu, Voice of a Generation [Volokh Conspiracy]
George Clooney’s Got Nothing On Tim Wu [WSJ Law Blog]
“I Heart Wu” [YouTube]

supreme court 2006.jpgYou may recall our recent Above the Law reader polls for Most Favorite Supreme Court Justice and Least Favorite Supreme Court Justice. The results of those polls are available here and here, respectively.
One of you had an interesting suggestion: Combine the results of the two polls to generate “net popularity scores” for the justices. These scores, combining measures of how much each justice is liked and disliked, could be viewed as measuring “overall” popularity.
We thought it would be interesting to see the results, so we went ahead and did this. We took the percentage of the vote each justice received in the “Most Favorite” poll, then subtracted from it the percentage of the vote received in the “Least Favorite” poll. We labeled the result the justice’s “Net Popularity Score” (NPS).
Here are the results of this number-crunching, with the justices ranked by NPS, from highest to lowest:
net popularity score 2.jpg
A few quick thoughts:
1. The rankings strike us as decent measures of overall popularity. Two of the top three finishers are favorites of their respective ideological wings. Justice Scalia, a cult figure among conservatives, comes in first; Justice Stevens, a hero of the liberals, places third.
2. The Chief is like Sara Lee: Nobody doesn’t like him. He got zero percent of the votes in the “Least Favorite” poll (just 24 votes out of 6,290). And, presumably due to his good looks and great resume — since he doesn’t have many opinions to be judged by yet — he won 16 percent of the “Most Favorite” vote. This gave him an NPS of 16, almost enough to beat Nino.
3. The next three justices — Justices Breyer, Thomas, and Alito — have net popularity scores close to zero. This makes sense too: as jurists, they don’t excite grand passion (even if Justice Thomas, prior to his confirmation, was a controversial figure).
4. Justice Alito, a fairly low-key personality, earns a “perfect” score of zero. Two percent of voters picked him as their favorite; two percent picked him as their least favorite. He’s like The Justice Who Wasn’t There (although, in fairness to Justice Alito, he’s too new to the bench to have made many enemies or fans).
5. Three justices have negative net popularity scores: Justices Kennedy, Souter, and Ginsburg. Their negative scores may have been affected by the fact that the voter pool in the “Least Favorite Justice” pool skewed to the right (thanks in large part to an Instapundit link).
6. As for why Justice Ginsburg attracted such a high percentage of the “least favorite” votes, Ann Althouse — and her commenters — have some interesting thoughts on the matter.
Earlier: ATL Poll Results: Your LEAST Favorite Supreme Court Justice
ATL Poll Results: Your Favorite Supreme Court Justice

* “Colombian Supreme Court: grabbing a woman’s behind is a crime.” [Herald-Tribune via How Appealing]
* One week until elections — there must be some litigation somewhere. [Wall Street Journal via [How Appealing]
* Justice O’Connor spoke in Utah this week, and she and Justice Breyer shed some politico-rhetoric in Washington. [CNN]
(For related links, see yesterday’s MD.)
* A second plea bargain has been reached in the Iraqi civilian murder case. [MSNBC]
* For you trusts-and-estates buffs, check out Kenneth Lay’s will. Notice he leaves much of his assets in the “Ken Lay Trust,” which seems oxymoronic. [Slate]

After finding out your Favorite Supreme Court Justice (answer: Justice Scalia), we asked about your LEAST Favorite Supreme Court justice. And the result was surprising, at least to us.
Voter turnout was massive, with over 6,000 votes cast. Maybe everyone’s in a voting frame of mind, with Election Day so close. Here’s how you voted:
least favorite supreme court justice poll results.JPG
The “winner”: Justice Ruth Bader Ginsburg, with a whopping 40 percent of ballots cast. Second place went to Justice David H. Souter, with 19 percent of the vote.
Thank you to the voters — all 6,000 of you. And thanks to everyone who linked to the poll, especially Glenn Reynolds, Ann Althouse, and Jason Harrow (of SCOTUSblog).
We have a few cursory observations on these results, which appear after the jump.

double red triangle arrows Continue reading “ATL Poll Results: Your LEAST Favorite Supreme Court Justice”

supreme court 2006.jpgNot much explanation required. This is just the flip-side of our recently concluded Favorite Supreme Court Justice poll (in which Justice Scalia easily prevailed).
Now we want to learn which of the Nine Robed Ones is your LEAST favorite jurist.
We’ll keep the polls open until we get at least 1,000 responses, so that the result can be viewed as a fairly reliable indicator of ATL reader sentiment. Here’s the poll:

Who is your LEAST favorite U.S. Supreme Court justice?
Chief Justice John G. Roberts, Jr.
Justice John Paul Stevens
Justice Antonin Scalia
Justice Anthony M. Kennedy
Justice David H. Souter
Justice Clarence Thomas
Justice Ruth Bader Ginsburg
Justice Stephen G. Breyer
Justice Samuel A. Alito, Jr.
Free polls from

Please cast your vote, and spread the word to others who might be interested. Thanks!
Earlier: ATL Poll Results: Your Favorite Supreme Court Justice

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