John Roberts

Ed. note: Above the Law will not be publishing on Monday, May 27, in observance of the Memorial Day holiday.

* Manhattan Justice Paul Wooten has ordered CBS to produce all emails between it and the Brooklyn DA’s office concerning “Brooklyn D.A.” and ordered a hearing this afternoon. CBS attorneys are irritated. Now they know how everyone feels when they have to watch Two and a Half Men. [WiseLaw NY]

* Lois Lerner, the embattled IRS supervisor at the heart of the recent scandal, invoked the Fifth Amendment in her congressional hearing, but in a way that may open the door to contempt. Ironically, maintaining innocence while invoking the Fifth opens one up to “heightened scrutiny.” As noted in Morning Docket, she’s been put on administrative leave. [Simple Justice]

* T.J. Duane, a co-founder of Lateral Link, was named one of the 17 Stanford business students who is going to change the world. Duane is working on technology to “provid[e] solo and boutique attorneys the benefits without the drawbacks of big law.” That’s much better than my proposal to provide solo and boutique attorneys the drawbacks without the benefits of big law, which is just a device that passive-aggressively second-guesses every decision a lawyer makes. [Business Insider]

* The U.S. Chamber of Commerce has asked the Supreme Court to uphold the D.C. Circuit’s decision holding Obama’s NLRB recess appointments unconstitutional because the appointments caused “major confusion for both employers and employees alike.” They’ve got a point. Not having a quorum on the NLRB because the Senate refuses to confirm anyone and plays parliamentary games does provide certainty… the certainty that the NLRB cannot function and it’s a free-for-all against workers. [Free Enterprise]

* Law school applications are down, but not as drastically as expected. [Faculty Lounge]

* In any event, law schools are facing an economic reckoning dubbed “Peak Law School.” [Lawyers, Guns & Money]

* A new CBO report analyzes the impact of a carbon tax, in case you’re preparing to start papering cap-and-trade deals. [Breaking Energy]

* Do potential clients really care about social media? I “Like” this story. [Associate's Mind]

* Courtesy of the ABA Journal, you can check out the swag Chief Justice Roberts and Eric Holder got from foreign nations in 2010 after the jump…

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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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This morning, the New York Times published an op-ed by actress Angelina Jolie discussing her decision to get a preventative double mastectomy.

Jolie is being hailed as an inspiration for coming forward with this story, which marks an amazing turn-around for a woman who used to make out with her brother and carry vials of her then-husband’s blood around her neck.

The actress decided to take the preventative measure after genetic testing determined that she had an 87 percent risk of breast cancer and a 50 percent risk of ovarian cancer.

Now, Jolie is a movie star married to another movie star, so the decision to undergo an expensive procedure did not deter her like it will many women in the United States.

Not the mastectomy. Insurance usually covers that if the patient presents such risks. No, the expensive procedure is the initial genetic testing. And the Supreme Court might be able to do something about that in the next couple of months…

double red triangle arrows Continue reading “Yes, It Is Worth Making A Federal Case Over Angelina Jolie’s Boobs”


More trustworthy than any SCOTUS justice.

I suppose that’s a rhetorical question. When you live in a nation that’s been reduced to an army of mindless reality-TV-watching drones, it’s not exactly surprising that the average citizen is more inclined to trust a television judge than a jurist who’s been appointed to the highest court in the land.

We care more about the matching camouflage wedding couture Honey Boo Boo’s parents, Mama June and Sugar Bear, wore when they tied the knot this past weekend than the next round of controversial decisions that will be soon be handed down by the Supreme Court. We care more about the Kimye baby bump than the very existence of the Supreme Court, much less the names of the justices sitting on its esteemed bench.

No one who’s been paying any attention is taken aback by the fact that Americans care more about the people they see on television on a daily basis than names they once read in a textbook. That’s why the results of the latest Reader’s Digest Trust Poll as to this country’s judges are expected, and sad, and not at all surprising….

double red triangle arrows Continue reading “Is Anybody Shocked That Americans Trust TV Judges More Than Supreme Court Justices?”

* It’s springtime, and the nation’s highest court is getting ready to drop some of its biggest decisions yet. If Tolkien had written this, Justice Kennedy would be the one to bear the One Vote. [UPI]

* But for SCOTUS to maintain legitimacy in the eyes of the people, its justices must do battle against a “modern-day tsunami of special interests.” How well are they doing? [National Law Journal]

* To answer that question, let’s look at their record. Political labels aside, thus far, the Roberts court has shaped up to be “the most pro-business court since the mid-1930s.” [New York Times]

* Meanwhile, Justice Thomas has been busy taking shots at President Obama, noting that he always knew the first black president had to be pre-screened by “the elites” and “the media.” [Mother Jones]

* Sometimes even federal prosecutors are willing to take pity upon rich old white men: Mel Weiss, formerly of Milberg LLP, won’t be returning to jail after his foray into DUI territory. [Am Law Daily]

* “Chevron can afford to litigate this case ‘until hell freezes over.’ But [Steven] Donziger can’t.” As it turns out, clients who can’t pay their bills are problematic for John Keker of Keker & Van Nest. [Reuters]

* Penn State Law is continuing with its plans to fleece students at two separately accredited sites, because clearly what the world needs right now is MOAR LAW SCHOOLS. [Centre Daily Times]

Today, the Supreme Court, in an opinion by Chief Justice Roberts, held that a citizen of a foreign country who is abused by a foreign corporation in a foreign country cannot sue in a U.S. Court under the Alien Tort Statute because, basically, multinational corporations are very different than pirates.

After Citizens United, we knew that corporations are people. We’re learning what kind of people they are (not pirates). Yet to be decided is whether you’d want to invite them to a dinner party. Or whether they’d accept.

How did we get here?

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The title is phrased like a joke, because this whole story plays like a joke: full of misunderstandings and dumb decisions. Hm. Typing that out made me realize that also describes most of the weekends of my adult life if you just add the phrase, “I’ll have another Manhattan.”

We set the stage for this joke in my home town of Portland, Oregon, and the campus of the Northwestern School of Law at Lewis & Clark College. Last week, Chief Justice John Roberts visited the school to judge a moot court competition.

But the real controversy began after the Chief skipped town and the Dean started monkeying with the press coverage of the event — and blaming his actions on the Supreme Court…

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Despite his status as an Article III demigod, Chief Justice John Roberts is a man of the people. Instead of reclining on a divan while eating frozen grapes fed to him by eunuch law clerks, which is how I’d roll if I were the Chief Justice of the United States, JGR patronizes places like Cosi, Au Bon Pain, and Carmine’s.

And the chief even goes to Starbucks — where His Honor recently revealed something surprising about himself….

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Looking at my notes from today’s United States v. Windsor argument on DOMA at the U.S. Supreme Court, “$Q” is everywhere. That’s my shorthand for “money quote.” The merits part of the argument was $Q after $Q, moments that made an impact, in some cases if only to show where a justice might be headed.

Here are five. Look forward to bringing you more in-depth analysis of the argument in the next couple of days.

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The scene outside One First Street after the argument.

Dearly beloved, we were gathered together at SCOTUS today to argue about these fourteen words: “Only marriage between a man and a woman is valid or recognized in California.”

But we talked a lot about standing. And we did a lot of standing.

What time did I get to the Court?

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