Constitutional Law

On Tuesday, the Supreme Court released opinions in two habeas cases, McQuiggin v. Perkins and Trevino v. Thaler. The holdings reek of liberal judicial activism, however well-intentioned.

In Perkins, my least favorite of Tuesday’s cases, the Court held that a showing of “actual innocence” is sufficient to circumvent the Antiterrorism and Effective Death Penalty Act’s (AEDPA) statute of limitations. In effect, a narrow majority decided to judicially amend a validly enacted statute, creating an exception that the majority admits that the statute itself does not contain. On top of that, this particular case may have been a pretty defective vehicle for addressing the limitations question anyway. There’s a pesky matter, discussed at oral argument, about the procedural posture of the case, making it pretty dubious whether the Court should have even gotten to the merits here.

(Cases like Perkins make me want to appropriate my own version of Dan Savage’s “DTMFA” — shorthand for “Dump the Mother-F*cker Already.” Too often, it would be useful to just be able to write “DTMFA” for “DIG the Mother-F*cker Already” for cases that I wish that SCOTUS would dismiss as improvidently granted. But, alas, you probably have to be a syndicated sex columnist for the privilege of coining long-but-useful acronyms.)

Dark days for the fair application of AEDPA….

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Amanda Bynes

* Let’s get ready to rumble! Some of the Supreme Court’s most controversial opinions yet are expected to be rolled out in the coming weeks — and maybe even today. Stay tuned for news. [CNN]

* Let’s see what happens when Obama nominates three judges at once to the D.C. Circuit. How many of them will be confirmed as quickly as Sri Srinivasan? Probably not many. [New York Times]

* White House counsel and leading litigatrix Kathryn Ruemmler is best known for her fabulous shoes, but this week, she’s taking some flak for her involvement in the IRS scandal. [New York Times]

* “I don’t know whether the Lord Himself could get confirmed at this point.” It looks like poor Attorney General Eric Holder doesn’t have very many people left to turn to thanks to executive and congressional inaction. [Bloomberg]

* When it comes to recent diversity efforts in Biglaw there’s an ebb, but not really a flow, and it’s all being blamed on the recession. Also, “diversity fatigue” is apparently a thing now. [New York Times]

* The $200 million gender discrimination suit filed against Greenberg Traurig over the firm’s alleged “old boys club” has been settled for an undisclosed amount. You go girl! [Thomson Reuters News & Insight]

* According to Judge Murray Snow, Arizona’s most beloved sheriff, Joe Arpaio, has been violating the constitutional rights of all of the Latinos whom he supposedly “hadn’t” been racially profiling. [Reuters]

* My, how things change: David Blankenhorn, a man who once testified as an expert witness in support of Proposition 8 at trial, has come forward to condemn anti-marriage equality laws. [Los Angeles Times]

* Stewart Schwab, the dean of Cornell Law School, will step down in June 2014. Perhaps the next dean will crack down on the number of cam girls pleasuring themselves in the law library. [Cornell Chronicle]

* Law schools tend to be “bastions of liberalism,” which makes it hard for students to find intellectual diversity. It’s a good thing we’ve got the Federalist Society to balance things out. [Washington Times]

* People who think Washington needs another law school propose one for students “who can’t afford to … go into debt … to get their legal degree.” This won’t sit well with the legal academy. [News Tribune]

* With Lindsay Lohan stuck in rehab, Amanda Bynes decided it was her turn to go wild. The retired actress says she’s suing the NYPD for unlawful arrest and sexual harassment. [New York Daily News]

* Alton Lemon, the Supreme Court plaintiff behind the eponymous Lemon test, RIP. [New York Times]

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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‘Oh my God! My career! Nooooooooooo!’

A few weeks ago, we learned that when it comes to failed professional endeavors, hell hath no fury like a patent attorney scorned. Now we know the same sentiment applies to their failed romantic wranglings.

What would a patent partner do if a summer associate turned away his sexual advances? He’d do what any dork would: in the hopes of ruining her budding career, he’d obtain a movie clip of the girl in a state of undress and pass it around via email to more than 50 Biglaw attorneys.

Of course, this led to a disciplinary action in which the brokenhearted patent practitioner employed some pretty wild defenses, the most entertaining one being that his slut-shaming was beyond ethical reproach because it was constitutionally protected speech….

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After a year-long break, we returned to law-related vanity license plates about a week ago. You heeded our call for submissions, and while we’ve been overrun with them, we’re always looking for more photos. If you’re a fan of the Law License Plates series, please send some in via email (subject line: “Vanity License Plate”).

Today, we’ll be taking a look at what some of the lawyers in our nation’s capital have displayed on their vanity plates. Unlike some of the submissions we’ve spoken about in the past, these plates aren’t direct invitations to get rear-ended, but that’s only because they’re too cryptic for laypeople to understand.

Get ready for some constitutional law nerd action….

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Cheerleading is a big deal in Texas. It’s the sort of thing that can get you killed if you’re not careful.

So when a bunch of high school cheerleaders started cheering less “Be Aggressive!” and more “Be Not Afraid, the Lord Is With Thee,” it stirred up the usual hornets’ nest of grandstanding atheists and civil libertarians complaining about freedom of religion, and an equal number of grandstanding conservative politicos complaining about the “War on Christians.”

Yesterday, the cheerleaders won their case — at least for now — opening the door to a new batch of inspirational cheers ripped from Christian Mingle ads. After looking at the signs (some pics below), the real issue is not constitutional, but practical: these are just terrible cheers….

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Justice Antonin Scalia

In the light of the evolving standards of decency, somehow we at the Supreme Court, we Harvard and Yale lawyers, we somehow can perceive these evolving standards of decency because we learned all this stuff at Harvard Law School.

– Justice Antonin Scalia, joking about the justices of the Supreme Court bench and their ability to interpret constitutional law based solely on the prestigious law schools they attended.

* The Obama administration asked the Supreme Court to wade into the constitutional contretemps of recess appointments, but if the high court refuses to take up the case, it may be back to the drawing board for the NLRB. [National Law Journal]

* The Am Law 100 law firm rankings are out, and it looks like there’s a new leader of the pack in terms of gross revenue. But which firm could it be? Not Skadden or Baker & McKenzie. We’ll likely have coverage on this later. [American Lawyer]

* Apparently the FBI wanted to continue questioning Dzhokhar Tsarnaev under Miranda’s public-safety exception, but a judge read the accused bomber his rights anyway. [Wall Street Journal (sub. req.)]

* “This case is over. Someone should put it out of its misery.” Be that as it may, New York’s attorney general is desperate to get AIG’s Maurice Greenberg on the stand at trial. [DealBook / New York Times]

* “I have had it with these motherf**king snakes in my motherf**king files!” This spring, clerks in this old Mississippi courthouse are finding more and more snakes filed under “Ssssssss.” [Associated Press]

So they finally read Dzhokhar Tsarnaev his rights. Good thing we have that public safety exception to the Constitution. Who can be bothered to hold fast to our most sacred rights and liberties when there might be something bad happening! Obviously, once he was read his rights Tsarnaev immediately stopped talking and the government was unable to protect us from… oh wait, that didn’t happen. Tsarnaev kept talking (or nodding, as it were), even after informed of the basic rights guaranteed to him as a U.S. citizen.

But he did communicate that he couldn’t afford a lawyer. Luckily for him, the magistrate judge who read him his rights at his hospital bedside came with federal public defender in tow.

Let’s meet the people who will do this distasteful work so the rest of us can crucify the guy while being confident he’ll get a fair trial…

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So yesterday I was flipping between Fox and MSNBC as they continued their battle to see who could be the first to report that the other one was wrong. During the “they made an arrest in the Boston Marathon bombings… oh no they didn’t” kerfuffle, I got sucked into the Megyn Kelly program which devolved into a discussion on whether or not the ALLEGED suspect should be Mirandized when he is caught, or “sent right down to Guantanamo.”

It occurred to me that there are whole throngs of humans out there, Americans, who honestly believe that reading somebody his rights or making sure a suspect has access to a lawyer is deleterious to justice, as opposed to being one of ways we ensure justice is done.

I trust there aren’t any real lawyers out there who believe that rights hurts the administration of justice as if life is one big freaking episode of The Closer….

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