Benchslap

Righteous Indignation: Conservatives Benchslapping Conservatives

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Ed. note: This is the latest installment of Righteous Indignation, our new column for conservative-minded lawyers.

On Monday, the Supreme Court decided City of Arlington v. FCC. The question before SCOTUS was whether courts must defer to a federal regulatory agency’s interpretation of a statutory ambiguity even when that ambiguity involves the scope of the agency’s authority — its own jurisdiction.

Justice Scalia wrote for the majority, holding that even in cases such as this one, agencies are entitled to the usual deference established in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. — aka Chevron deference. Chief Justice Roberts dissented, joined by Justices Kennedy and Alito.

The outcome of City of Arlington should be noteworthy to Court watchers — and conservatives in particular — for several reasons. First, the Scalia-Roberts split quiets the simplistic refrain that SCOTUS decides cases down rigid liberal-conservative lines. Second, it highlights an ongoing debate among conservative members of the Court about fundamental issues concerning the separation of powers and constitutional governance. Third, the Scalia and Roberts opinions demonstrate that, far from reserving their barbs for the left, conservatives can be pretty darn snarky amongst themselves.

So, let’s have a closer look….

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Benchslap of the Day: Ninth Circuit Smacks Copyright Trolls

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Abraham Lincoln told a story about a lawyer who tried to establish that a calf had five legs by calling its tail a leg. But the calf had only four legs, Lincoln observed, because calling a tail a leg does not make it so…. Heeding Lincoln’s wisdom, and the requirements of the Copyright Act, we conclude that merely calling someone a copyright owner does not make it so.

– Judge Richard Clifton, writing for a unanimous panel of the Ninth Circuit in Righthaven LLC v. Hoehn.

(Additional commentary about this interesting case, after the jump.)

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Prenda Boldly Benchslapped Where No One Has Gone Before

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When an opinion opens with a quote from The Wrath of Khan, something is about to happen.

What followed was a straightforward benchslap littered with Star Trek references. More than a little fitting that an opinion about allegedly illegal porn downloads would focus on the pop culture universe most closely associated with 40-year-old virgins.

It’s not the cohesive, brilliant opinion about strip clubs that we recently got out of Judge Fred Biery. Instead, the opinion draws wry smiles for laying out nothing but a string of references to Star Trek seemingly designed just to prove to his fellow nerds that the Judge knows Star Trek.

Which, in a sense, makes this opinion the most “Star Trek” thing ever…

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One Supreme Benchslap, Coming Right Up!

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Don’t try to answer my question with your own question.

– Justice Antonin Scalia, in response to Ted Olson’s attempt to ask the justice a rhetorical question during today’s oral arguments on California’s Proposition 8 at the Supreme Court.

(We’ll have additional analysis of the Hollingsworth v. Perry proceedings later today, courtesy of Michelle Olsen of Appellate Daily. You can follow Michelle’s real-time coverage on Twitter.)

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Benchslap of the Day: The VA Needs To Do Better By Veterans

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Given the Government’s conduct in this case, the court orders the Government to show cause why it should not be sanctioned under this court’s inherent authority. It seems that sanctions may be needed to motivate VA in the future to treat its commitments and representations to this court and opposing counsel with the seriousness to which they are entitled.

– Judge S. Jay Plager, reprimanding counsel for the Department of Veterans Affairs in National Organization of Veterans Advocates, Inc. v. Secretary of Veterans Affairs (Fed. Cir. Mar 21, 2013), a case concerning the due process rights of veterans seeking benefits.

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Reverse Benchslap of the Day: Arizona Attorney General Predicts SCOTUS Smackdown of Ninth Circuit

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Debra Milke

We will be appealing this decision to the U.S. Supreme Court. If the Court takes the appeal, I will argue it personally as I have done in two previous cases over the past five months. In my last case, the Supreme Court accepted my argument and overruled the Ninth Circuit’s decision unanimously.

– Arizona Attorney General Tom Horne, commenting on the Ninth Circuit’s grant of federal habeas relief to Debra Milke, who has been on Arizona’s death row for 22 years.

(Why is Milke sometimes called the “Arizona sister” of Casey Anthony? Keep reading….)

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Benchslap of the Day: Kozinski & Co. Overturn a Murder Conviction

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Chief Judge Alex Kozinski speaking at Yale Law School last year.

Perhaps this should be “benchslap of a few days ago,” since it happened last week. But it’s never too late to read about Chief Judge Alex Kozinski, right?

This latest benchslap involves the Ninth Circuit setting aside a murder conviction. So you might expect the benchslap to be coming from a unanimous Supreme Court in a summary reversal.

But no. The benchslap — actually, make that benchslaps, plural — come from the Ninth Circuit. On the receiving end: the police, prosecutors, a state judge, and a federal judge. Names are named.

And I wouldn’t hold my breath while waiting for SCOTUS to reverse. This decision looks pretty safe….

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Benchslap of the Day: Justice Sotomayor Thinks You Should Turn Off Your Racist Light Bulb

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Justice Sotomayor: you wouldn’t like her when she’s angry.

As we recently observed, Justice Sonia Sotomayor could be thought of as the people’s justice. The Wise Latina is also the Warm Latina.

Justice Sotomayor shows up on Sesame Street as well as One First Street. She hugs little girls on her book tour. She hires law clerks from outside the top 14 law schools.

But you need to stay on her good side; if you tick her off, woe unto you. Let’s check out the Beloved World (affiliate link) — of pain — that Her Honor just inflicted on a federal prosecutor down in Texas….

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Benchslap Update: Skadden Partners Learn Their Fates

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Earlier this week, we wrote about a pair of prominent partners at Skadden Arps who got hit with a big-time benchslap. A federal judge in Chicago issued an order to show cause, requiring the Skadden lawyers to explain why they should not be sanctioned for failing to cite a highly relevant (arguably dispositive) Seventh Circuit case when briefing a motion to dismiss. The judge also set “a status hearing in open court…. [at which the attorneys] are all directed to appear in person.”

The Skadden partners filed a contrite response. They apologized profusely to the court, explained why they viewed the Seventh Circuit as distinguishable, and argued that even though they erred, their conduct didn’t merit sanctions. They announced to the court that they had settled the case in question, with Skadden “contributing to the settlement amount in order to personally redress plaintiffs’ counsel for responding to the motion to dismiss.” (In a classy move, they also extracted their associate from under the bus, explaining that he played no substantive role in the briefing.)

Despite the apology and the settlement, the status hearing went forward as scheduled yesterday. What happened?

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Benchslap of the Day: Skadden, Smacked, Eats Crow

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On the transactional side, things seem to be going gangbusters for Skadden Arps. As we noted yesterday, the firm took the top spot in three separate rankings of 2012 M&A work. In 2011, a different firm sat atop each set of rankings, but in 2012, Skadden ruled them all.

On the litigation side, though, the new year has brought new headaches for Skadden. Earlier this month, a high-profile partner at the firm, along with another partner and an associate, got hit with a big benchslap. A federal judge issued an order to show cause, asking the Skadden lawyers to explain why they should not be sanctioned, and set “a status hearing in open court…. [at which the attorneys] are all directed to appear in person.” Ouch.

Skadden recently filed its response to the OSC. Let’s review the benchslap, then see what the Skadden lawyers had to say for themselves….

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