Adam Liptak

C'mon, Your Honors, look lively!

Tonight, as everyone knows, President Barack Obama will deliver his State of the Union address. The speech starts at 9 p.m. (Eastern time). For real-time reactions over Twitter, follow @ATLblog, @DavidLat, @ElieNYC, and @StaciZaretsky. For a post-speech wrap-up, check Above the Law, either late tonight or tomorrow morning.

For Supreme Court nerds, here’s the perennial question: How many members of SCOTUS will show up at the SOTU? Feel free to make your guesses, in the comments.

Here’s some historical perspective to inform your speculation….

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Is that a black rhino or a conservative law prof?

Conservative law professors need help. They don’t want to admit it because conservative orthodoxy holds that the only people who can ask for help in this country are small businessmen and the institution of marriage, but make no mistake, conservatives who want to get a tenure-track job in legal academia need a leg up. That’s because they’ve been discriminated against, both currently and historically. Law school faculties are thought to be a bastion of liberalism, and the problem has gotten so bad that conservative law profs probably need a “plus-factor” in order to overcome this ingrained systemic bias.

Diversity is important in law schools, and if we’re going to have an intellectually diverse faculty, we need to find a way to integrate more conservatives into teaching positions, even if that means a qualified, liberal law professor loses his or her “spot” on the tenure track for a colleague that leans a little harder to the right.

I’d be all for that. But conservatives can’t admit that they made need a diversity program to combat generations of systemic selection bias. So instead, they’re just going to bitch about the fundamental unfairness. Or fire off employment discrimination lawsuits….

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David and Sandra have enjoyed it. I kind of like not having to read a lot of briefs and get reversed by my former colleagues.

– Justice John Paul Stevens, in a humorous quip about the willingness of his fellow retired justices, Sandra Day O’Connor and David H. Souter, to sit by designation on the circuit courts.

(Justice Stevens just published a new book — Five Chiefs: A Supreme Court Memoir (affiliate link) — to coincide with the start of the latest Term of SCOTUS, which got underway this week. Adam Liptak of the New York Times praises the memoir as “engaging and candid.”)

I think that it’s probably wrong, in almost all situations, to use a dictionary in the courtroom. Dictionary definitions are written with a lot of things in mind, but rigorously circumscribing the exact meanings and connotations of terms is not usually one of them.

Jesse Sheidlower, editor at large of the Oxford English Dictionary, quoted in an interesting New York Times piece by Adam Liptak about how Supreme Court justices are consulting and quoting dictionaries more frequently in their opinions.

Justice Stephen G. Breyer

Are justices of the U.S. Supreme Court gods, or men? There’s evidence on both sides. Their brilliant legal minds and dazzling résumés weigh in favor of deity designation. Their ability to make mistakes suggests that they’re mere mortals.

Supreme Court justices: they’re just like us! They get into accidents — as Justice Stephen Breyer did over Memorial Day weekend, while riding his bicycle near his home in Cambridge, Massachusetts. Justice Breyer broke his right collarbone in the incident — ouch (and more evidence to support my dislike of cycling).

This isn’t even the first vehicular mishap for one of the nine in 2011. As you may recall, Justice Antonin Scalia got in a car accident, back in March — and received a ticket for it.

Physical accidents involving federal judges might not be shocking; brainiacs aren’t known for their grace and agility. But ethical oversights might be more surprising.

Let’s look at the latest controversy involving Justice Samuel A. Alito Jr. — and whether the hubbub is justified….

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If I were a Republican on the court, I wouldn’t think twice about this if I thought the law was unconstitutional. I don’t think they’re going to take some giant hit on it.

— Professor Lee Epstein of Northwestern, commenting to the New York Times on how a Republican-appointed Supreme Court justice might rule on a constitutional challenge to health care reform.

Unfortunately, her reasoning has matters exactly backwards. She defers to government officials who regulate private conduct, but attacks those who run government facilities. That basic mindset shows bad intellectual judgment which will lead to a decline in economic and social fortunes that no amount of compassion can cure.

— Professor Richard Epstein, in a piece on Ricochet.com entitled Sonia Sotomayor’s Misplaced “Humanity”.

Justice Antonin Scalia, being interviewed by Jan Crawford of CBS News at the Federalist Society's annual dinner in Washington, DC.

On Thursday evening, I had the great pleasure of attending the annual dinner at the Federalist Society’s National Lawyers Convention, in Washington, D.C. The event — attended by an estimated 1,400 people, and held in the cavernous ballroom at the Omni Shoreham — featured, as always, conservative and libertarian legal luminaries galore.

(Did Judge Diane Sykes just air-kiss Judge Diarmuid O’Scannlain? Isn’t that Ken Cuccinelli over at the bar? What might Judges Brett Kavanaugh and Jeff Sutton be discussing so intently — maybe the latest clerks they’ve placed at the Supreme Court? Whoa — Ted Olson chatting with Justice Samuel Alito! Be still my heart….)

The highlight of the evening was the interview of Justice Antonin Scalia by Jan Crawford, chief legal correspondent of CBS News (who was looking fabulous in a black dress with open sleeves). The justice was in fine form, hilarious and freewheeling in his remarks….

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Today’s New York Times has a meaty and interesting front-page article about political ideology and Supreme Court clerk hiring. The piece, written by SCOTUS correspondent Adam Liptak, reminded us a lot of one that Liptak wrote last year (which we discussed here). But since there’s no such thing as too much talk about The Elect, let’s dig into it.

(By the way, speaking of Supreme Court clerk hiring, we’re working on an update that should come out soon. If you’re aware of a clerk hire that wasn’t included in our last write-up, listing both OT 2010 and OT 2011 clerks, please email us (subject line: “SCOTUS clerk hiring”). Thanks.)

Liptak begins by discussing the fabulosity that is a SCOTUS clerkship:

Each year, 36 young lawyers obtain the most coveted credential in American law: a Supreme Court clerkship. Clerking for a justice is a glittering capstone on a résumé that almost always includes outstanding grades at a top law school, service on a law review and a prestigious clerkship with a federal appeals court judge.

One could quibble with the number of 36, but we’ll get to that later. Let’s focus on the main point of the piece, the growing politicization of high-court clerk hiring….

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Last year, we covered a mistake made in a death penalty case by the white-shoe firm of Sullivan & Cromwell. It was a noteworthy development because of the rarity of the occurrence — S&C doesn’t often make mistakes, at least not ones as elementary as missing a deadline — and because of the stakes involved.

Well, the stakes are getting higher: S&C is now seeking SC review. The firm wants the Supreme Court to step in and essentially forgive the firm’s error in missing the deadline to file an appeal. Adam Liptak tells the tale, in the New York Times:

Sullivan & Cromwell is a law firm with glittering offices in a dozen cities around the world, and some of its partners charge more than $1,000 an hour. The firm’s paying clients, at least, demand impeccable work.

Cory R. Maples, a death row inmate in Alabama, must have been grateful when lawyers from the firm agreed to represent him without charge. But the assistance he got may turn out to be lethal.

Please note: that last sentence originally appeared in the august pages of the Times. Despite its tabloid tone — we can imagine an announcer for Inside Edition intoning darkly, “the assistance he got may turn out to be lethal” — it did not appear first in Above the Law. [FN1]

So how did S&C put a man’s life in jeopardy? Let’s descend into the mailroom at 125 Broad Street….

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