Giles no surprise

I may seem surprising that the Supreme Court would rule that a murder defendant can keep the testimony of the victim out of trial unless the defendant killed the victim for the purpose of preventing the victim from testifying.

But a look back at Lawyers USA’s coverage of oral arguments in Giles v. California shows that the Court’s justices hinted pretty clearly at the way they were leaning.

Keep in mind in reading this excerpt that Justice Antonin Scalia ultimately penned the decision, and Justice Anthony Kennedy joined Justice Stephen Breyer’s dissent in the case. Rapidly leaving the boat, indeed:

At oral arguments [in May], Los Angeles attorney Marilyn Gail Burkhardt, arguing on Giles’ behalf, seemed to have an ally in Justice Antonin Scalia - who jumped in on questions posed by other justices to help Burkhardt out in several instances.

Justice Anthony Kennedy questioned whether the statements were being offered as testimonial evidence or to prove Giles’ state of mind - a crucial issue under the Crawford analysis.

“[It seems] to me that this is responsive to his defense” of self defense, Kennedy said. “And you say: ‘Well, it’s his state of mind, and her testimony was general.’ I think it does go to his state of mind.”

Before Burkhardt could respond, Scalia did.

“I’m not following you,” he said. “Is there an exception to the hearsay rule so long as the hearsay is brought in [during] rebuttal?”

“Not to my knowledge,” Burkhardt answered.

Justice Stephen Breyer turned to 17th and 18th century common law to determine what the purpose of the Confrontation Clause was, noting that testimony by wives, children, atheists and convicted felons was not admitted.

“So now are we supposed to incorporate all of these things into the Confrontation Clause?” Breyer asked.
“Do any of them have anything to do with the Confrontation Clause?” Scalia interjected.

“No,” Burkhardt said.

“It doesn’t have to do with the Confrontation Clause that you couldn’t cross-examine a person who didn’t understand the meaning of the oath?” Breyer persisted.

“The Confrontation Clause sets forth a basic policy, which is that we are to have live testimony in court,” Burkhardt said. “We have to have witnesses available in court.”

Later, Kennedy tried to steer the conversation back to Breyer’s point.

“I think what Justice Breyer’s line of questioning points out is that there were other provisions of the evidence rule followed in England which would not allow the testimony to come in, in the first place,” Kennedy said. “But because of the restrictions he points to, there was never the occasion for the common law to explore the boundaries of the forfeiture exception in the confrontation context.”

Before Burkhardt could answer, Scalia interjected again.

“And besides which, the question that Justice Breyer was asking was already answered in Crawford, wasn’t it?” he asked.

“Yes, it was,” Burkhardt said.

“A case from which he dissented,” Scalia said, referring to Breyer.

“That is right,” Burkhardt added.

Later Breyer corrected Scalia.

“I joined Crawford, and Justice Scalia would like to kick me off the boat, which I’m rapidly leaving in any event,” Breyer said, drawing laughter from the audience.

Court rules on Exxon punitives, death penalty, Confrontation Clause and more

Today, the U.S. Supreme Court handed down some of the term’s most anticipated decisions.

In Exxon v. Baker, the Court vacated a punitive damages award against the oil company based on the actions of its agents in the massive oil spill off Alaska’s coast. Eight justices (Justice Samuel Alito took no part in the case) split evenly on the issue of whether punitive damages are allowed under maritime law, but all the justices found the $2.5 billion punitive award to be excessive, holding that it should not exceed the compensatory award of $507.5 million. (Lawyers USA subscribers can read past coverage of the case here.)

In a 5-4 opinion, with Justice Anthony Kennedy once again in the role o swing voter, the Court in Kennedy v. Louisiana struck down a state statute that made child rape an offense that could be punishable by death. The Court held that only offenses resulting in death can warrant the death penalty under the Eighth Amendment. The case in effect strikes down not only the Louisiana statute, but similar laws in states including Florida, Montana, Oklahoma and Texas.

In Giles v. California, the Court held that a murder defendant does not forfeit his rights under the Confrontation Clause when a witness is unavailable because he killed her. Only the testimony of witnesses killed for the purpose of preventing them from testifying results in a forfeiture.

And finally in Plains Commerce v. Long Family Land and Cattle, the Court held that Indian tribal courts do not have jurisdiction over disputes between companies owned by members of the tribe and companies that are not, even if the non-member company operates on a reservation.

The last three remaining decisions of the term, including the Second Amendment case D.C. v. Heller, will be delivered by the Court tomorrow.

More on these cases today on Lawyers USA’s website. Also keep an eye out for analyses on many of these cases on the website in the days ahead, and in the next issue of the paper.

Dellinger: Lack of 5-4 splits due to a term without hot topics

As we wait for the last of the Supreme Court decisions of the term to come down tomorrow (and perhaps Thursday too), Court-watchers have already been chatting about the absence of the sharply-divided, passionately-dissented, 5-4 opinions that defined the term that ended a year ago.

What is the reason for the bigger Court majorities this term? Is a shift in the Court’s collective ideology the cause? Has Chief Justice John G. Roberts, Jr. become more successful in his desire to bring greater consensus among the jurists?

No, said expert Supreme Court litigator Walter Dellinger this morning, speaking at a media briefing hosted by the National Chamber Litigation Center, the public policy law arm of the chamber of Commerce. There were fewer 5-4 splits this term, Dellinger said, because there were fewer hot-button issues before the Court like desegregation, abortion, and religion.

“I’m doubtful as to whether it’s a trend” toward consensus said Dellinger, who argued several cases before the Court this term, including the still pending cases of D.C. v. Heller and Exxon v. Baker. “I think there are fewer 5-4 cases on the docket.”

Dellinger said that when the Court tackled the hotly-debated last term, they normal minimalist approach to the Court’s decision making often gave way to wide, farther reaching opinions that spurred the sharp slits and passionate dissenting and concurring opinsions.

“I think the justices did more than they had to in the [school desegregation case],” he said, adding that he same approach was taken in the partial-birth abortion case. “None of those cases are up this term.”

The Supreme Court keeps up the suspense

Today the Court handed down three decisions - none of which deal with the death penalty, the Second Amendment, the Confrontation Clause or the Exxon Valdez oil spill. We’ll have to wait until Wednesday or Thursday for those.

The Court did rule that, absent an appeal or cross appeal by the government, a federal appellate court cannot increase the sentence of a criminal defendant sua sponte in Greenlaw v. U.S.

The Court also ruled in Rothgery v. Gillespie County that the right to counsel under the Sixth Amendment is implicated when a defendant was denied counsel at the time of his initial hearing for being a felon in possession of a firearm even when the hearing was conducted without the involvement of a prosecutor.

In the last of today’s three decisions, the Court ruled that third-party companies hired to collect on behalf of pay-phone operators have standing to sue telecommunication companies over the amount of the fees in Sprint Communications v. APCC Services.

Monday status conference: The Supremes, one week only

DC Dicta can say with certainty that the Supreme Court decisions dealing with Washington, D.C.’s gun ban, the death penalty for child rape, and an accused murderer’s confrontation clause rights will be handed down this week - because this is the last week for opinions this term. Whether they will be handed down today - well, that’s another matter. But we will brief you on today’s Supreme Court decisions later this morning.

Meanwhile,

The Washington Post reports that the White House officials ignored the legal advice they received warning that courts may not see the Guantanamo Bay situation the way they do. (WaPo)

The White House is again invoking executive privilege - this time in its refusal to provide documents related to its greenhouse gas emissions policy, and lawmakers are considering how to respond. (WaPo)

Meanwhile, the executive privilege argument involving the sought testimony of two white house officials will soon be tested in court. (AP)

The use of trademarks sold as “keywords” by Google and other search engines to trigger “sponsored links” on the side of a search page continues to be a hot button issue for any business with a website - including law firms. (Lawyers USA)

Friday morning docket: Almost summer vacay edition

Rarely can we predict exactly what the Supreme Court will do during any period of time. But we can authoritatively say that within the next week, the Court will release 10 opinions. That’s all that’s left this term, and next week is the last week before Court’s out for summer. They’ll begin Monday morning at 10 a.m.

Meanwhile, things are heating up across the street under the Capitol dome:

Despite President George W. Bush’s threat of a veto, lawmakers are pushing ahead with a bill aimed at helping the mortgage crisis. (CNNMoney).

The House passed a compromise bill to extend unemployment benefits. (Reuters)

A Congressional ethics panel is examining allegations that two Senate Democrats, including the sponsor of a major housing bill, received preferential loans by troubled mortgage lender Countrywide Financial Corp. (Reuters)

President Bush officially sent the nomination of Gregory Garre for Solicitor General to the Senate. (White House)

Thursday, the Supreme Court put into immediate effect its ruling a week ago on detainees’ legal rights in Boumediene v. Bush. (SCOTUSBlog)

Ruling on ADEA proof burden a hot topic

The Supreme Court’s decision in Meacham v. Knolls Atomic Power Laboratory, placing the burdens of both production and persuasion on the employer in age discrimination cases, is hot news today. Some are seeing the pro-worker decision - one of several this term (Subscribers can read the Lawyers USA article about that here) - as a big contrast to the Court’s 2006-07 term, where notable pro-employer decisions including Ledbetter seemed to be the standard.

Business groups were taken by surprise by the ruling. Robin S. Conrad, executive vice president of the National Chamber Litigation Center, told the New York Times’ Linda Greenhouse that the previous term had been “our best term ever.” Now “it’s back to the drawing board,” she said. “To achieve our objectives, we’ll have to battle it out case by case.”

Karen Harned of the National Federation of Independent Business told USA Today’s Joan Biskupic that the ruling “ties the hands of employers to respond to market changes and new technology without fearing … a baseless” ADEA lawsuit.

Others cheered the opinion. In a statement, David Certner, AARP’s chief legislative counsel said “the Meacham ruling is vital to the creation and maintenance of a work place that is fair and free of age bias.”

Big employment law decision day at the Court

Well, we were right about the ERISA decision, at least!

For those who are just waiting for the release of the Exxon and gun ban decisions from the Court, you will be disappointed today, because they were not handed down.

But it was a hot day on the employment law front, as the Court handed down five decisions, four of which are employment-related.

In the ERISA decision, MetLife v. Glenn, the Court held that when an ERISA claim administrator also funds the plan, that constitutes a conflict of interest that must be weighed when a court reviews the decision.

In a case that clarifies the burden-shifting scheme in ADEA disparate impact claims, the Court held in Meacham v. Knolls Atomic Power Laboratory that the employer bears both the burdens of production and persuasion on the issue of whether the employment decision was based on a “reasonable factor other than age.”

In Kentucky Retirement Systems v. EEOC, the Court held that where age is not a motivating factor for a pension calculation, there is no violation of the ADEA.

In Chamber of Commerce v. Brown, the Court issued yet another pro-federal preemption decision, finding that federal labor law preempts a California law barring the use of state funds by employers to influence union organizing.

Finally, in the criminal case, the Court held in Indiana v. Edwards, that a finding that a defendant is competent to stand trial does not mean that the defendant has the constitutional right to represent himself.

More later on this blog the impact of Meacham and the employment cases, and more tomorrow on all of these cases in Lawyers USA’s website.

Decisions, decisions

DC Dicta has grown weary of wondering with bated breath if each Supreme Court decision day will be The Big Day all the hot cases are handed down. We’re going to pretend like all the Court will give us today is an ERISA decision. Suffice it to say we’ll be back later this morning with a wrap of whatever it is the justices do. Just don’t expect any big news.*

(*Note, this is DC Dicta’s attempt at working some reverse psychology mojo on the Court. Let’s see if it works!)

Are aging liberals behind the Court’s rightward shift?

Does the apparent rightward momentum of the U.S. Supreme Court have more to do with the age of the justices?

That is a theory one member of the Supreme Court press corps put forth Saturday during the American Constitutional Society’s National Convention here in Washington.

Dahlia Lithwick, who covers the Court for Slate said that the conservatives on the court benefit from the youthfulness of the Court’s newest members: Chief Justice John G. Roberts, Jr. and Justice Samuel Alito, Jr.

“It’s like watching a very young, very, very energized bloc of four conservatives on the Court playing keep away with the ball,” Lithwick said of oral arguments at the Court. “You have this sense that it almost a machine, the way Roberts and Alito and Scalia at oral arguments are throwing the ball to one another. There is a sense that they are working in concert, they are all playing from the same playbook. There is no analogous sense from the left of the court. You have a sense that energy has shifted.”

Leaving swing voter Justice Anthony Kennedy aside, the average age of the Court’s so-called liberal bloc - Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer - is 75. The average age of the conservative counter-faction - Roberts, Alito and Justices Antonin Scalia and Clarence Thomas - is 60.5.

“It really does highlight the age of the liberals on the Court,” Lithwick said. “It highlights some sense that ‘our time has passed’ and you really see that oral argument. . . . There is a colossal jolt of energy on one side that you just don’t see on the other.”

Tony Mauro, who covers the Court for Legal Times, said the recent book tours of Scalia and Thomas helped to bring more attention to the conservative jurists.

“It’s remarkable how talkative the justices become when they have books to sell,” Mauro said. . . . “They have this forum on 60 Minutes and elsewhere. I think we are hearing a lot more from the conservative side.”

Mauro also pointed out that the ‘L’ word is has a different meaning on the Court nowadays.

“The fact that the liberals aren’t in many respects liberals in the sense of [Justices William] Brennan and [Thurgood] Marshall,” he said. ”Breyer and Ginsburg are fairly moderate in a lot of ways.”

The New York Times’ Linda Greenhouse told the audience that the one reason for the apparent shift in energy is the recent spate of close-call decisions won by the conservatives.

“It’s harder to get energized when you are playing defense,” Greenhouse said. “So I think actually that [Breyer, Souter, Ginsberg and Stevens] have a lot of intellectual energy. I wouldn’t want give the impression that they sort of are asleep at the switch. I think their role as they see it now is to keep [too-conservative rulings] from happening. That is not as visibly an energetic position to be standing on.”

You can watch the video of the panel discussion here.