Supreme Court

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 What if the U.S. Senate’s constitutional privilege of “advice and consent” was revoked?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.

double red triangle arrows Continue reading “Sports and the Law: Supreme Court Rules the NFL Is Not a Single Entity”

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?

double red triangle arrows Continue reading “Elena Kagan’s Celebrity Doppelgänger Is…”

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….

double red triangle arrows Continue reading “Can Juveniles Be Sentenced to Life Without Parole for Non-Homicide Crimes?”

There’s a long tradition of seeking Supreme Court love via Craigslist (see here and here). And the tradition continues.

From a Craigslist posting entitled 40-something SJM ISO Elena Kagan (we’ve added some links to clarify various references):

I’ve had a crush on you for almost twenty years (and you deservedly made fun of me when I got tongue-tied in front of you), but it never seemed appropriate to move on it. Either I was dating someone, or you were in another city…

But now! Our careers seem to have settled in DC. I’m single. Politico and Eliot Spitzer tell me you’re single. We have so much in common: I love the law (even civil procedure!) and can’t get enough of it. I like books and baseball and poker and New York City and Medici pizza. I admire Thurgood Marshall. Like you, I love the Federalist Society. My mother was the first bas mitzvah in her Orthodox synagogue, but I’m relatively non-observant. We disagree on some First Amendment issues, to be sure, but I’ll never ask you to watch a dogfighting video. Ok, you’re smarter than me, but I’m no slouch (like you, I turned down Yale Law), and I’m cool being Mr. Ginsburg to your Ruth Bader if you are.

This is not a joke. I am gaga for Lady KaGa. I understand you have other priorities in the next few weeks, and Andrew Sullivan and Glenn Greenwald would be scandalized if we started dating, but I’ve waited for you this long, I can wait until after the inevitable investiture. Just send me a signal: mention your love of the Mets in your opening statement before the Senate Judiciary Committee, and I’ll know to send you a dinner date invitation for the first Friday in October. We’ll go for Chinese food at a restaurant better than City Lights.

Finally, some suspense for the Kagan hearings: Will she mention the Mets? Tune in and find out.

We interviewed the Craigslist poster about his wacky plan….

double red triangle arrows Continue reading “Soliciting a Date from the Solicitor General: Man Woos Kagan — Over Craigslist?”

Le Fou and Le Kagan

Solicitor General Elena Kagan is a woman to be respected. She’s a product of Princeton, Oxford, and Harvard Law School. She’s one of the Elect (OT 1987 / Marshall). She’s taught at two of the nation’s top law schools and served as dean of one of them. She’s America’s lawyer, and if confirmed this summer, she’ll become the 112th justice of the U.S. Supreme Court — and the fourth woman to hold that position.

She’s inspiring.

She inspires in other ways too, though. Ever since photos of her started gracing websites and newspapers across the land, she has inspired comparisons to numerous other people and fictional characters when it comes to her looks, ranging from Kevin James of King of Queens to Kathy Bates.

She just has one of those faces. BuzzFeed picked up on our post about who she looks like and came up with a list of 24 people she resembles.

Let’s settle this. Who does she MOST resemble? Vote, after the jump.

double red triangle arrows Continue reading “The Elena Kagan Look-A-Like Contest: Who does she most resemble?”

Now that the question of Elena Kagan’s sexuality has been settled (kind of), critical attention seems to be turning to her lack of judicial and litigation experience. Although ABA President Carolyn Lamm tells NBC that she doesn’t think “not being a judge is particularly persuasive one way or the other,” some Republican senators have expressed concern over the fact that she’s never warmed a bench.

It’s not as if Kagan doesn’t know what a courtroom looks like, though. She clerked on the powerful and prestigious D.C. Circuit, for the legendary liberal J. Abner Mikva, and then spent time at One First Street, clerking for Justice Thurgood Marshall (OT 1987). As solicitor general, she’s argued before the High Court a half dozen times (although she wasn’t able to win over the Five of the Nine in Citizens United v. FEC).

But hey, at least she has a law degree. Not that she needs it to sit on the bench at One First Street…

double red triangle arrows Continue reading “You Don’t Need No Stinkin’ Law Degree to be on the Supreme Court”

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