Supreme decisions: employee retaliation, police pat downs, ERISA and more

It’s been a busy day at the U.S. Supreme Court, as the justices handed down six decisions and granted certiorari in three cases.

In the opinion in Crawford v. Nashville and Davidson County, the justices held that Title VII protects employees from retaliation for speaking out about discrimination, whether on her own initiative, or in answering questions during an employer’s internal investigation. See more here on that case from Lawyers USA.

In Van de Kamp v. Goldstein, the Court held that Police are protected by absolute immunity from being sued over the adequacy of supervision, training, and information-system management systems. The Defendant claimed the inadequate system prevented his defense from being given information about deals cut by informant witnesses.

In Arizona v. Johnson, The Court ruled that a pat down of a car passenger during a traffic stop did not violate the Fourth Amendment.

In a case that will have divorce attorneys everywhere paying special attention, the Court ruled in Kennedy v. Plan Administrator for DuPont Savings and Investment Plan that a waiver in a divorce decree is not sufficient to divest interest in a pension plan under ERISA.

The court also ruled on anti-dumping laws’ application to uranium dumping services in U.S. v. Eurodif, and issued a per curiam sentencing guidelines opinion in Nelson v. U.S.

But wait, there’s more:

The court agreed to add three cases to its docket, taking up: Maryland v. Shatzer , which asks whether police can resume questioning of a suspect two years after the suspect asked for a lawyer without running afoul of Miranda; Mohawk Industries v. Carpenter, considering whether a company must give a former employee information they had argued was protected by attorney-client privilege; and McDaniel v. Brown, which considers whether evidence presented during federal habeas review of a sexual assault conviction was clearly insufficient.

More on these cases on Lawyers USA’s website.

DC Dicta’s greatest hits of 2008

With 2008 almost in the history books, it’s a good time to take a look back at the most popular posts of the year here at DC Dicta. Looking back, the hottest items on the blog revolved around presidential campaign moments, Supreme Court shenanigans, celebrity testimony on the Hill, and the beleaguered Justice Department. Let’s count them down:

10. Mukasey: ‘Not every violation of the law is a crime’

Comments made by Attorney General Michael Mukasey in August – particularly the quote: “Not every wrong, or even every violation of the law, is a crime” – circulated around the blogosphere and ultimately became a catchphrase to represent the problems plaguing the Justice Department in recent years.

9. The Funniest Justice: Antonin Scalia

No one leaves ‘em laughing in the courtroom like Justice Antonin Scalia, who handily won the title of Funniest Justice for the October 2007 term.

8. Kennedy winks in EEOC’s direction?

After January oral arguments in Kentucky Retirement Systems v. EEOC, this post noted that Justice Anthony “Swing Vote” Kennedy seemed to indicate pretty clearly that he believed the retirement benefits system in question discriminated on the basis of age – just as the EEOC contended. Although he did go on to find the program discriminatory, he was in the Court’s minority, writing the dissent in a case that did not at all adhere to the Court’s usual conservative vs. liberal breakdown. (Scalia and Ginsburg joined Kennedy’s dissent – when does that every happen?)

7. Actor to lawmakers: Let patients bring pharma suits

Mr. (Dennis) Quaid went to Washington. The actor, whose newborn twin daughters were accidentally given a nearly-lethal dose of the drug herapin, told lawmakers in May that without the right to sue pharmaceutical companies, consumers will become “uninformed and uncompensated lab rats.”

6. U.S. News law school rankings leaked!

When the folks at Above The Law put up a document showing the 2009 U.S. News & World Report law school rankings a few days before they were published in March, we sent you there.

5. McCain’s switch on Souter; Obama: Thomas isn’t too bright

Ah, remember that video of then presidential candidate Barack Obama basically saying Justice Clarence Thomas wasn’t the sharpest knife in the drawer? Of course you do! Many of you watched it right here in August.

4. Biden calls Court a Supreme campaign issue

During the campaign season, now Vice President-elect Joe Biden was one of the most frequently searched subjects leading to DC Dicta. When he talked about the importance of the election in terms of potential Supreme Court nominees in August, the related post was one of the most popular blog items for weeks afterwards.

3. Cover blown off Chief Justice’s school visit

Who knew Chief Justice John G. Roberts, Jr. was so popular? Well, he obviously does – since he tried to clandestinely visit a local high school in March for a talk with students. But somehow word got out, newspaper reporters were there waiting for him, and DC Dicta readers wanted to know all about it.

2. 400 requests for reduced crack sentences in two days

When new reduced federal sentencing guidelines for crack cocaine offenses, approved last year by the U.S. Sentencing Commission, went into effect retroactively in March, one day later more than 400 court orders from around the country slashing prison terms had been processed by the Federal Bureau of Prisons.

And the most hit blog post of the year (drumroll, please!):

1. High court denies Enron investors’ petition

This Jan. 22 post noted that the Supreme Court, on the heels of its decision in Stoneridge Investment Partners v. Scientific-Atlanta Inc., denied a petition by Enron investors seeking to pursue similar claims against bankers from firms including Merrill Lynch and Credit Suisse Group. The move ended the investors’ actions claiming the bank companies colluded with Enron officials’ fraud.

400 requests for reduced crack sentences in two days

There has been quick action after federal authorities reduced the mandatory sentencing guidelines for some drug offenses.

As you know, the new reduced federal sentencing guidelines for crack cocaine offenses, approved last year by the U.S. Sentencing Commission, went into effect retroactively on Monday. By Tuesday, about 400 court orders from around the country modifying prison terms had been processed by the Federal Bureau of Prisons.

Under the new guidelines, about 1,600 prisoners could petition for immediate release. Roughly 3,000 prisoners are eligible to petition for prison term reductions that could allow their release within a year. As many as 20,000 can petition for some reduction in their prison terms.

In the nearby Eastern District of Virginia – which has the largest number of crack cocaine convictions with nearly 2,000 inmates are eligible for release within the next year – one federal public defender has submitted petitions for the release of 16 clients, one of whom was freed yesterday.

More from the Washington Post.

Former prez regrets not ending crack/powder disparity

Former President Bill Clinton said he regrets not bringing an end to the disparity in sentencing between offenses for crack and power cocaine during his administration.

“I regret more than I can say that we didn’t do more on it,” he said last week during a keynote address last week at a University of Pennsylvania symposium commemorating the 40th anniversary of the Kerner Commission report on the causes of racial disturbances in the 1960s, according to a USA Today report. “I’m prepared to spend a significant portion of whatever life I’ve got left on the earth trying to fix this because I think it’s a cancer,” he said, referring to the disparate impact the sentencing imbalance has had on blacks.

The U.S. Sentencing Commission reduced, but did not eliminate, the difference in the mandatory sentencing guidelines for crack and power cocaine offenses, and the revised guidelines went into effect retroactively on Monday.

Lawmakers blast AG’s request on crack sentencing

Yesterday, lawmakers refused Attorney General Michael Mukasey’s request to stop the new retroactive crack cocaine sentence guidelines from going into effect in March.

Senate Judiciary Committee Chairman Pat Leahy said that the measure will not cause a sudden release of violent criminals, and added that he was disappointed in “this administration’s failure to support even modest reforms of unjust, overreaching mandatory drug penalties.”

“As the Attorney General, himself a former Federal judge, should have known, and as he had to concede when questioned before [the House Judiciary] Committee, no one can be released without a hearing before a Federal judge who is obligated to evaluate each case and to consider factors such as the criminal history and violence,” Leahy said in a statement. “And the Justice Department participates in those hearings.”

Sen. Edward Kennedy blasted Mukasey for using “scare tactics.”

“In testimony before the House Judiciary Committee last week, he warned that the improvements in the law would result in the release of ‘violent gang members’ and cause more crime,” Kennedy said in testimony entered into the record of yesterday’s hearing. “We can’t let such scare tactics by the Administration deter us from our goal of achieving fairness and legitimacy in the criminal justice system.”

Crack sentencing focus of Senate hearing

Just days after Attorney General Michael Mukasey urged lawmakers to block the implementation of new retroactive federal sentencing guidelines for crack cocaine offenses, Judge Ricardo H. Hinojosa, chairman of the U.S. Sentencing Commission, which authorized the retroactive rule, will testify before lawmakers today.

Hinojosa will testify at a hearing on “Federal Cocaine Sentencing Laws: Reforming the 100-to-1 Crack/Powder Disparity” before the Senate Judiciary Subcommittee on Crime and Drugs this afternoon. Sen. Joe Biden, who filed a bill that would end the disparity between crack and powder cocaine sentences, will preside.

In December, in reaction from a number of U.S. Supreme Court decisions giving judges greater discretion in going outside the federal guidelines in sentencing cases, including those involving crack cocaine, the Commission voted to retroactively lower the penalty range prescribed by the guidelines for crack offenses, effective March 3, 2008.

Others scheduled to testify this afternoon include: United States District Judge Reggie B. Walton, a member of the Federal Judicial Conference’s Criminal Law Committee; Dr. Nora Volkow, director of the National Institute on Drug Abuse at the U.S. Department of Health & Human Services; Oklahoma U.S. Attorney John Richter; and James Felman co-chairman of the Sentencing Committee of the American Bar Association’s Criminal Justice Section.

Mukasey to Congress: block crack sentencing cuts

Attorney General Michael Mukasey will tell a congressional panel today that he is no fan of the recent decision of the U.S Sentencing Commission to retroactively reduce guidelines for convictions involving crack cocaine.

According to testimony Mukasey prepared in advance to his appearance today before the House Judiciary Committee, Mukasey said that he is willing to go along with the new sentencing guidelines, which are slated to go into effect next month, but only for new, nonviolent first-time offenders.

In the meantime, he wants Congress to act before next month to block the new rules from going in place. The new rules would allow nearly 20,000 inmates to request a reduction of their sentences, and nearly 1,600 could request a reduction that would allow them to be released immediately.

“We think it is imperative for Congress to pass legislation to address the Sentencing Commission’s decision,” Mukasey wrote to the House committee. “I emphasize that we are not asking this committee to prolong the sentences of those offenders who pose the least threat to their communities, such as first-time, nonviolent offenders.”

The Commission’s decision to retroactively reduce crack sentencing guidelines came after a trio of U.S. Supreme Court decisions in December which gave judges broader discretion in venturing outside of federal guidelines in sentencing.

Source: AP

Friday morning docket: pre-Groundhog Day edition

While we wait for tomorrow’s forecast from Punxsutawney Phil, (UPDATE: Phil has a lawyer! Meet him here on WSJ’s Law Blog) let’s take a look at what’s happening inside the beltway and beyond:

The U.S. Supreme Court will remain in recess next week, but this week the Court released its oral argument schedule for April, which will be a busy month for the justices. The Court is scheduled to consider whether the death penalty is constitutional as a punishment for child rape (Kentucky v. Louisiana), tackle more federal sentencing guideline issues (Greenlaw v. U.S. and Irizarry v. U.S.) and consider when hearsay evidence from the deceased victim in a murder trial can be admitted (Giles v. California) among other cases. (Supreme Court website) SCOTUSBlog examines how the effects of late-term “docket crunch” makes things a lot more stressful for attorneys arguing before the court in the spring than for those arguing in the fall. (SCOTUSBlog).

Meanwhile, across the street, the Senate Judiciary Committee advanced a measure that will give federal judges from the circuits to the Supremes a pay raise. (AP)

The Senate put off a vote on that House-passed cash-back economic stimulus plan, apparently worried that they couldn’t get stuff done without Hillary and Barack, who were in California being nice to each other in front of a bunch of celebrities. (WaPo, NYTimes)

The economic stimulus bill hasn’t even been passed yet, but already some thieves have been taking advantage of the rebate check proposal by creating a new scheme for stealing people’s identities, the IRS warns. (IRS)

If Federal Reserve Chairman Ben Bernanke thought he had won over investors with his two interest rate cuts in just over a week, another think will soon be coming to him. (AP)

Will your email address change from “@yahoo.com” to “@microsoft.com”?
(CNNMoney)

Judge taps his inner Letterman

Look out Justice Antonin Scalia - there is another judge who knows how to get some laughs from Supreme Court cases.

Nebraska U.S. District Judge Richard G. Kopf, clearly not a fan of some the high court’s recent decisions on criminal sentencing, made a David Letterman-style “Top 10″ list jabbing at the Courts’ rulings and posted it on the blog of the Ohio State Journal of Criminal Law.

“As a district judge, I read with interest, and even tried to follow, the Supreme Court’s sentencing opinions in Apprendi, Blakely, Booker, Rita, Kimbrough and Gall,” Kopf wrote on the blog*.  “With tongue partly in cheek, here, in descending order, are the top ten things I learned from those missives:”

[DC Dicta would insert drum roll here]

10. Following the Court’s approach, always put off to tomorrow what you can do today.

9. You don’t need experience in actually sentencing people in order to totally screw up the law of sentencing. It is telling and painfully obvious that not a single Justice ever had to look a federal defendant in the eye while not knowing what law to apply.

8. Footnote 9 in Blakely (”The Federal Guidelines are not before us, and we express no opinion on them.”) is the biggest practical joke in the history of American law. See lesson One below.

7. The “merits” and “remedial” opinions in Booker satisfy George Orwell’s definition of “Doublethink.” That is, the two opinions, and Justice Ginsburg’s swing vote to make both the law, reveal “the power of holding two contradictory beliefs in one’s mind simultaneously, and accepting both of them.”

6. Never impose a sentence that is too harsh or too lenient. To quote Baby Bear, make it “just right” or, perhaps more importantly, to satisfy Justice Breyer, make sure it is just “reasonable.”

5. Some sentencing judges used to take the Supreme Court seriously, but that got harder and harder beginning with and following Apprendi.

4. In an Ivy League sort of way, it makes sense to address the “crack” question fifteen years after everyone else knew something was terribly wrong. See lesson One below.

3. Justice Scalia’s dictum should be rewritten this way: The rule of law is the law of rules except when it isn’t.

2. Sentencing judges can be divided into two groups-those who are damn sure they’re right and those (like me) who have no clue.

1. There are a lot of really good, hard-working people “in the field” plus tens of thousands of defendants who deserved far better than the seven years of “water boarding” that ensued between Apprendi and Gall.

*Despite the fact he posted the list to a blog, being a federal judge, he still listed his preferred law journal-style citation for the funny list, and we will comply: Richard G. Kopf, The Top Ten Things I learned From Apprendi, Blakely, Booker, Rita, Kimbrough, and Gall, OSJCL AMICI: VIEWS FROM THE FIELD (January 2008), at http://osjcl.blogspot.com.

HT: Legal Times, BLT

Supreme tidbits

This morning the U.S. Supreme Court issued 21 GVRs (grant, vacate and remand orders) on certiorari petitions concerning the use of federal sentencing guidelines in light of the decisions this term in Gall v. U.S. and Kimbrough v. U.S., and the decision last term in Rita v. U.S., all of which examined – and expanded – courts’ discretion in handing down criminal sentences outside the guidelines established by the U.S. Sentencing Commission. That brings the GVR tally in sentencing cases this term to over 100. the order list is here [PDF file].

TV’s “Judge Alex” Ferrer was indeed in Court today, listening to the justices and attorneys engage in a surprisingly lively debate over the reach of arbitration agreements in a case arising out of Ferrer’s contract dispute with his former manager.

More on oral arguments in the case of Preston v. Ferrer and also on today’s arguments in Virginia v. Moore – which asks whether evidence obtained during a probable cause stop and search should be excluded where an arrest was illegal under state law – later today on this blog, and tomorrow on Lawyers USA’s website.