Supreme Court

Speaking of the Supreme Court, which Kash visited yesterday, the justices just struck down a 1999 law aimed at banning depictions of animal cruelty — especially so-called “crush videos,” in which women kill animals by stepping on them with fabulous footwear.

The vote was 8-1. The opinion was by Chief Justice Roberts; Justice Alito dissented. For more, see links below.

(Gavel bang: commenters.)

First Amendment left intact [SCOTUSblog]
Supreme Court Strikes Down Law Banning Animal Crush Videos, Cites First Amendment [ABA Journal]
High Court Shoots Down Animal-Cruelty Law [WSJ Law Blog]

Yesterday, I paid a visit to the Supreme Court to sit in on oral argument for City of Ontario v. Quon. The case is about a California SWAT officer who alleged that his privacy and constitutional rights were violated when his superiors reviewed the messages he sent out on his work-issued pager. A good number of them had more to do with scheduling sex romps with his girlfriend and estranged wife than housing raids.

The facts in the case make it complicated enough to warrant SCOTUS review. But what seemed especially complicated to The Nine were the technological issues.

Stepping into One First Street is like stepping back into the 1950s. No Blackberries or electronic devices allowed. No cameras (in spite of C-SPAN’s fervent wishes). The most technologically advanced items in the courtroom are the microphones. So it seemed appropriate then that many of the justices’ questions strayed away from reasonable expectations of privacy and proper searches, and got into how exactly texting works…

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Shortly after Justice John Paul Stevens announced his upcoming retirement from the Supreme Court, Solicitor General Elena Kagan emerged as a leading candidate to fill his seat. The phrase “Team Kagan” started popping up all over the place (as we noted in our Twitter feed). Numerous users of Twitter and Facebook, as well as many bloggers and observers of the Court, proudly proclaimed themselves members of “Team Kagan.”

Over the weekend, Team Kagan may have gained another prominent member: former President Bill Clinton. In an interview with ABC’s “This Week,” Clinton said that he and his wife, Secretary of State Hillary Clinton, are simply too old for SCOTUS. “I’d like to see [President Obama] put someone in there, late 40s, early 50s, on the court and someone with a lot of energy for the job,” Clinton said.

Hmm…. Of the three leading candidates for the Court — Elena Kagan, Judge Diane Wood (7th Cir.), and Judge Merrick Garland (D.C. Cir.) — only one, Kagan, fits the “late forties / early fifties” demographic. Kagan is 49, turning 50 later this month (on April 28). Wood is 59 — although she’s in great health, and looks like a million bucks. Garland is 57.

Then ex-president Clinton took another step towards openly endorsing Kagan. He urged Obama to consider someone from outside the judiciary. Again, of the three leading candidates, Kagan is the only non-judge. (Judges Wood and Garland were appointed to their judicial posts — by President Clinton, as a matter of fact — in 1995 and 1997, respectively.)

Going into this weekend, Solicitor General Kagan was already viewed as the frontrunner for JPS’s seat. We’ve said so here at Above the Law (here and here), and she’s also the nominee predicted by our readers (and by Fantasy SCOTUS players, too). Tom Goldstein, over at SCOTUSblog, has flat-out declared that “[o]n October 4, 2010, Elena Kagan will ask her first question as a Supreme Court justice.”

The apparent support of a former president can only increase Kagan’s lead. But what about the issue of her (real or perceived) sexual orientation?

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And what team does Elena Kagan play for?

Who will replace Justice John Paul Stevens? While pundits, savants, and oracles across the SCOTUSphere pontificate and read Article III tea leaves, FantasySCOTUS.net conducted extensive and detailed polling to predict the next Justice. We have invited our nearly 5,000 members–who represent some of the closest and most ardent Court watchers–to weigh in on the vacancy, rank the candidates on the short list, and give their views on the potential nominees.

(We are still collecting data. Sign up for free at www.fantasyscotus.net and voice your opinion.)

This is the first in a series of posts breaking down his data, as we attempt to add some certainty to the vast amounts of uncertainty emanating from the penumbras of the upcoming vacancy…

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Today Supreme Court Justices Clarence Thomas and Stephen Breyer made a rare appearance on Capitol Hill to testify before the House Appropriations Subcommittee, regarding the Court’s budget. It started out jovially, with Justice Thomas poking fun at Justice Breyer for agreeing with him for the very first time (at the 15 minute mark, regarding taking questions from the committee).

But an hour in, things got testy between the congressmen and the justices. Josh Blackman brought to our attention that the issue of Supreme Court clerk diversity came up. Congressman Ander Crenshaw asked the Justices why the members of the Elect are overwhelmingly graduates from Yale and Harvard. He delicately asked if they’re more qualified or if there are a disproportionate number of them applying for clerkships.

This led to a fifteen-minute discussion about clerkship diversity that started with alma maters, then moved to ethnic diversity. In response, Thomas threw the other SCOTUS justices under the bus (e.g., “MY clerks are diverse”), then threw feeder judges under the bus, and then threw law schools under the bus (e.g., “that pool comes from the law schools”).

But then Congresswoman Barbara Lee hit him with the bus…

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office of solicitor general.gifIn our reader poll on possible Supreme Court nominees — which is still open, by the way — Solicitor General Elena Kagan is leading the pack, at least in terms of the predictive poll. At the current time, a majority of respondents believe that she will be nominated by President Obama to the seat of Justice John Paul Stevens. (On the prescriptive side, i.e., who SHOULD be nominated to replace JPS, a plurality of you want to see Judge Diane Wood get the nod.)

So Kagan may soon be leaving the SG’s office. But new talent is coming aboard, starting in September or so, through the Bristow Fellowship program. These staggeringly prestigious fellowships allow recent law school graduates, typically coming out of clerkships with federal appellate judges (often feeder judges), to get involved in the work of the Solicitor General’s office, representing the United States before the Supreme Court.

We’re a little late in bringing you the news of the Bristow hires — they were notified weeks (even months) ago — but better late than never. A reader email reminded us that we hadn’t covered the announcement. So we did some digging and obtained their names.

So who are the new Bristow Fellows? Do we know their law schools and clerkships?

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The speculation continues over who will be nominated to replace Justice John Paul Stevens on the U.S. Supreme Court. If you’re looking to follow all the latest news and rumor, in addition to reading the usual suspects, like SCOTUSblog, check out the particularly comprehensive coverage over at The Ninth Justice, a blog of the National Journal devoted to the hunt for the next Supreme Court nominee.

According to Jan Crawford of CBS News (and several other reporters), the White House is currently considering about ten possible nominees. Most of the names being bandied about are familiar, especially the three leading candidates: Judge Merrick Garland, 57, of the D.C. Circuit; Solicitor General Elena Kagan, 49; and Judge Diane Wood, 59, of the Seventh Circuit. Professor Orin Kerr has a very funny post over at the Volokh Conspiracy showing just how “diverse” this trio is.

One notable name is out of the running: Secretary of State Hillary Rodham Clinton. The White House has indicated that it’s very happy with the work Secretary Clinton is doing in her current post, according to The Caucus blog.

And one notable name has been added to the SCOTUS speculation: Judge Sidney R. Thomas, of the Ninth Circuit (and next in line to lead that court, after current Chief Judge Alex Kozinski passes the gavel).

We know Judge Thomas — we clerked on the Ninth, presented cases to him on a screening panel, and hung out with him a bit at last year’s judicial conference — and we could see him as a Supreme Court nominee. He’s very smart and very progressive, but charming and strategic about his liberal politics, which can’t be said for all of his colleagues. In addition, as Jan Crawford notes, “he is a quintessential DC-outsider,” a graduate of the University of Montana law school whose nomination “would further a populist storyline.” So, even though he’s a white male from the Ninth Circuit — which would give Republican senators an opportunity to bash that (in)famously left-wing court — we could certainly see Judge Thomas as a possible nominee.

But a few former Ninth Circuit clerks whom we contacted about SRT (as he’s known on the Ninth) were more skeptical. Said one: “Can’t believe it is serious. Makes no sense. Some former clerk floated him for vanity purposes.”

As it turns out, a former Sid Thomas clerk might be involved in his appearance on the short list….

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Plus a pair of reader polls.

Potential Supreme Court nominees?

For weeks, the media laundry machine has been circulating news of Supreme Court Justice John Paul Stevens’s impending retirement. Now that the buzzer has gone off on that, it’s time to switch to the next cycle: speculation as to who President Barack Obama will nominate to replace him.

President Obama has been dragging his feet in his appointment of federal judges. We are relieved to hear that he is going to pick up the pace for announcing his Supreme Court pick. ABC News reports that the White House is prepared — thanks to Stevens’s public pondering — and that the announcement will come “within weeks.” Which isn’t really very helpful at all. Two weeks? Four weeks? Twelve weeks?

BLT reports on Obama’s speech from the Rose Garden today:

“While we cannot replace Justice Stevens’ experience or wisdom, I will seek someone in the coming weeks with similar qualities — an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law, and a keen understanding of how the law affects the daily lives of the American people,” Obama said. “It will also be someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”

Please make it fast, Obama. We’re ready to move on to the confirmation hearing cycle!

Let’s speculate until then, though…

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Supreme Court Justice John Paul Stevens is done with his teasing. He’s been hinting for weeks that he could announce his plans to retire at any moment. Today, he finally made it official.

He sent a letter to President Barack Obama this morning — available after the jump — consisting of a single sentence (Souter did it with two):

Having concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court’s next Term, I shall retire from regular active service as an Associate Justice, under the provisions of 28 U.S.C. § 371(b), effective the next day after the Court rises for the summer recess this year.

This means Obama will have his second opportunity to make an addition to the Supreme Court. U.S. Solicitor General Elena Kagan is considered by many to be the frontrunner for the nomination.

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With apologies to John Paul “I’m not dead yet” Stevens, speculation has been rampant about who will replace him, if he decides to retire.

Many of the names that came up after Souter retired are bubbling back to the surface, but U.S. Solicitor General Elena Kagan has to be considered the front runner. Obama hasn’t said anything and Stevens is, you know, still there — but that didn’t stop the Harvard Crimson from handicapping the chances of former Harvard Law School Dean Kagan:

In the face of Justice John Paul Stevens’ impending retirement, the nomination of former Harvard Law School Dean Elena Kagan for the open seat on the Supreme Court has become a likely prospect.

If she is selected as President Barack Obama’s nominee, Kagan—who currently serves as the nation’s first female Solicitor General—will face a number of challenges on the road toward confirmation, including her lack of experience as a judge, her religious background, and her stance on the military.

Man, the “impending retirement” of J.P. Stevens is turning into a a Monty Python skit. But, so long as we’re here, let’s take another look at that religious question. It might be the only thing that could scuttle Kagan’s ascendancy to the high Court…

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