Friday morning docket: the juiced edition

The U.S. Supreme Court is in recess until the New Year. But across the street, Congress is still working to check off all the items on its to-do list before the year ends:

A bill that would boost federal judges’ pay for the first time in about two decades is making its way through Congress. (LT).

Sen. Edward Kennedy and a Democratic member of the National Labor Relations Board blasted the board’s recent decisions as anti-union, as the board’s Republican chairman defended it. (NYT).

The Senate Judiciary Committee voted for contempt citations against White House adviser Karl Rove and White House Chief of Staff Joshua Bolten for failing to comply with its subpoenas for information and testimony related to the 2006 firings of nine U.S. attorneys. (The Hill).

The U.S. Department of Justice filed an amicus brief in favor of an Indiana law requiring voters to present government-issued photo identification at polling places, a move that heats up an already fiery case. (TPM Muckraker).

Meanwhile, visa fees are going up, and we’re not talking about credit cards. (AP via USA Today).

Finally, DC Dicta is very, very sad about the Mo Vaughn allegation, but also very, very happy no players on the 2007 World Champion Red Sox team are on former Sen. George Mitchell’s list. ESPN’s Howard Bryant said the report would never have happened without the power of the federal government. (ESPN).

NLRB under the congressional microscope

This morning members of the National Labor Relations board will testify before a joint House and Senate committee to explain a host of recent board decisions that have some lawmakers wondering if the board is on an anti-union kick.

The hearing, presided over by Sen. Edward M. Kennedy, chairman of the Senate Health, Education, Labor and Pensions Committee, and Rep. George Miller, chairman of the House Education and Labor Committee, will feature testimony from two NLRB members – Republican chairman Robert J. Battista and Democrat member Wilma B. Liebman – as well as union representatives and other experts in the field.

The hearing was called by lawmakers who believe the Bush-appointed board has rolled back long-established workers’ rights by handing down decisions that overturned precedent and established new rules that make it more difficult for workers to organize and easier for employers to fire or refuse to hire union supporters.

As reported by Lawyers USA, the last six decisions issued by the full five-member Board have all been by a 3-2 vote, with the three Republican members voting in favor of management and the two Democratic members dissenting

One decision, Dana Corp. [PDF file] has drawn particular criticism from union groups. In Dana the board modified the “recognition-bar” doctrine. This overruled 41 years of precedent by holding that the voluntary recognition of a union by an employer – usually after a number of employees signed union authorization cards – does not bar rival unions or employees from filing petitions for decertification.

The previous rule, established by the Board’s 1966 decision in Keller Plastics Eastern, Inc. (157 NLRB No. 583), provided that such petitions by rival unions or employees would be barred for a reasonable period of time if the employer voluntarily recognized the union, usually after a card-check process.

But in Dana, the rule was modified to permit petitions if (1) the employees are given notice that the employer has voluntary recognized the union, (2) they are told of their right to file a decertification petition within 45 days, and (3) 45 days pass.

The unions have blasted the labor board, saying the split decisions by the Republican-controlled board were politically motivated. The AFL-CIO has taken these complaints further, filing a formal complaint with an international labor agency alleging that the board’s decisions amount to government-sanctioned attempts to cripple unions.

Commission OKs crack sentence cuts

Yesterday the U.S. Sentencing Commission made its new reduced crack cocaine sentencing guidelines retroactive, clearing the way for more roughly 19,500 federal inmates doing time for offenses involving crack cocaine to petition for an earlier release date. Under the new rules, more than 3,000 prisoners could request a sentence change that would allow them to be released before the end of 2008, according to the Washington Post.

The unanimous vote yesterday afternoon came on the heels of Monday’s Supreme Court decisions giving district court judges the discretion to dip below the federal sentencing guidelines when sentencing defendants. One case dealt specifically with the former 100-to-1 crack-to-powder cocaine sentencing ratio originally set by the commission. The commission eased that ratio with a rule change that went into effect Nov. 1. It will now be applied retroactively starting March 3, 2008.

The commission was careful to point out that the vote will not cause prison doors to swing open as floods of inmates go free. From the commission’s announcement:

“Not every crack cocaine offender will be eligible for a lower sentence under the decision. A Federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and how much that sentence should be lowered. That determination will be made only after consideration of many factors, including the Commission’s direction to consider whether lowering the offender’s sentence would pose a danger to public safety. In addition, the overall impact is anticipated to occur incrementally over approximately 30 years, due to the limited nature of the guideline amendment and the fact that many crack cocaine offenders will still be required under Federal law to serve mandatory five- or ten-year sentences because of the amount of crack involved in their offense.”

The commission also explained its thought process a bit, and stressed that the move was to ease the disparities between sentences as a matter of “fundamental fairness” saying:

“The Commission considered a number of factors during its deliberations, including the purpose for lowering crack cocaine sentences, the limit on any reduction allowed by the amendment, whether it would be difficult for the courts to apply the reduction, and whether making the amendment retroactive would raise public safety concerns or cause unwarranted sentencing disparity in the federal system. Ultimately, the Commission determined that the statutory purposes of sentencing are best served by retroactive application of the amendment. Mindful of public safety and judicial resource concerns, the Commission today issued direction to the courts on the limited nature of this and all other retroactive amendments and on the need to consider public safety in each case. The Commission delayed the effective date of its decision on retroactivity in order to give the courts sufficient time to prepare for and process these cases.”

Bill would put justices in front of the camera

Last week a Senate panel debated and ultimately advanced a bill that would allow proceedings before the U.S. Supreme Court to be televised.

According to this report by CNN, not all lawmakers are thrilled with the idea. “The Supreme Court doesn’t tell us how to run our business, and we shouldn’t tell them how to run their business,” said Democratic Sen. Dianne Feinstein of California in response to a bill sponsored by Sens. Charles Schumer of New York, Dick Durbin of Illinois, Russ Feingold of Wisconsin, Arlen Specter of Pennsylvania and Charles Grassley of Iowa.

“With a governmental process you should err on the side of openness,” Schumer said of the measure.

As DC Dicta has noted before, the justices of the Court aren’t all thrilled with the idea of being televised. C-SPAN has a neat little summary of comments the justices have made on the issue in recent years. Justice Antonin Scalia may enjoy being funny in the courtroom, but he does not want to take his act to TV.

“Not a chance,” Scalia said in 2005, “because we don’t want to become entertainment. I think there’s something sick about making entertainment out of other people’s legal problems. I don’t like it in the lower courts, and I don’t particularly like it in the Supreme Court.”

Justice David Souter echoed the sentiment in a more direct way. “The day you see a camera come into our courtroom it’s going to roll over my dead body,” he said in 1996.

Others aren’t so categorically opposed, like Justice Stephen Breyer. “When you say start with the video and see how it goes,” he said in 2005. “And be very, very cautious, I think that would reflect my view.”

Justice John Paul Stevens is on the fence – or at least it seemed so in comments he made in 1985. “In perhaps a dozen cases in the 10 terms in which I have been sitting, literally hundreds of people have stood in line for hour sin order to attend an argument, only to be denied admission because the courtroom was filled…[But TV might have] an adverse impact on the process that cannot be foreseen.”

Justice Clarence Thomas seems to have had a change of heart on the issue. During his 1991 conformation hearings, Thomas said: “I have no objection beyond a concern that the cameras be as unobtrusive as possible…It’s good for the American public to see what’s going on in there.”

But at a congressional hearing last year, Thomas said: “It runs the risk of undermining the manner in which we consider the cases. Certainly it will change our proceedings. And I don’t think for the better.”

Reaction to the sentencing cases

Supreme Court watchers are chiming in on yesterday’s trio of decisions by the U.S. Supreme Court which gave judges greater discretion to venture outside of federal sentencing guidelines.

Nonprofit bipartisan think tank the Constitution Project applauded the decision in Kimbrough. “The sentencing guidelines in crack-cocaine cases are woefully unfair and dramatically limit the ability of independent judges to do their jobs,” said Virginia Sloan, president of the Constitution Project. “The Supreme Court’s decision reinvigorates our system of justice with a sense that penalties should be proportionate to crimes.”

Marc Mauer, Executive Director of The Sentencing Project, also cheered the decision “At a time of heightened public awareness regarding excessive penalties and disparate treatment within the justice system, today’s ruling affirming judges’ sentencing discretion is critical,” Mauer said. “Harsh mandatory sentences, particularly those for offenses involving crack cocaine, have created unjust racial disparity and excessive punishment for low-level offenses.”

Douglas A. Berman, professor at the Ohio State University Michael E. Moritz College of Law, commented that despite the much talked about rightward lean of the Roberts Court, on sentencing issues the Court seems to be solidly liberal. (Both Justices Antonin Scalia and Chief Justice John Roberts joined the majority in all three sentencing cases yesterday.)

“The vote breakdown was very interesting, especially with Chief Justice Roberts and Justice Alito on different sides,” Berman said. “This case proves once again that the Supreme Court might be the most liberal appellate court in the country when it comes to sentencing issues.”

He also summed up the winners and losers in the case “This is a major victory for some criminal defendants, district court judges, and the U.S. Sentencing Commission,” he said. “The losers are the Circuit Courts of Appeals, who take a beating in the opinions for not giving enough respect to either the Supreme Court’s decision in Booker to make the guidelines advisory or to district court efforts to take seriously the idea that the guidelines are truly just advisory, and defendants who did not properly preserve their appeal. Of course, defendants in cases where the judge decides to use his or her discretion to increase a sentence will also be big losers.”

[More after the jump]

Monday status conference: Supreme trio

In its busiest (and newsiest) decision day yet, today the U.S. Supreme Court issued three decisions dealing with criminal sentencing, holding that:

(1) judges have the discretion to impose shorter sentences for crack cocaine offenses than required under the federal sentencing guidelines;

(2) a court of appeals incorrectly threw out a sentence for a drug dealing offence below the sentencing guidelines where it was not supported by “extraordinary circumstances,” and

(3) receiving a gun in a trade for drugs does not constitute gun “use” for purposes of a statute that imposes a higher sentence for crimes where a gun is used.

That cases together take the Court’s 2005 decision in U.S. v. Booker -which held that the guidelines were advisory in nature – even further, holding that judges have broad discretion that cannot be overturned absent a clear abuse of discretion. It also sanctions judges’ ability to issue shorter sentences for crack cocaine offenses than the 100-to-1 crack-to-powder cocaine sentence under the guidelines.

The decisions, Kimbrough v. U.S., No. 06-6330, authored by Justice Ruth Bader Ginsburg, Gall v. U.S., No. 06-799, penned by Justice John Paul Stevens, and Watson v. U.S., No. 06-571, written by Justice David Souter, can be found on the Court’s website here. More on the decisions on this blog later, tomorrow on Lawyers USA’s website, and Monday in the next issue of Lawyers USA.

You can also read more about the oral arguments in the cases from Lawyers USA’s archives here and here (sub. Req’d).

Friday morning docket

As the Supreme Court winds down for the holidays, things under the dome of the Capitol building are starting to heat up:

Today the Supreme Court justices meet in a private conference, and they have one non-argument session scheduled for Monday – the last time they will meet in calendar year 2007. The next oral arguments are scheduled for Jan. 7.

Things will be much busier on the other side of the street this month, as lawmakers are scrambling to finish a lot of business before the holidays, including the war funding bill. (AP).

Senate Majority Leader Harry Reid said there is still much work to do on the energy bill. (CNNMoney)

Meanwhile lawmakers add copyright law reform to their growing to-do list. (CNET)

After President Bush and lenders agree to a plan to freeze some subprime mortgage rates, some are expressing some resentment over the bailout for others. (WaPo)

Justice Antonin Scalia: O.J. did it! (Baltimore Sun’s The Swamp)

Chief Justice John Roberts is bewildering. (WSJ Law Blog)

Attorney General Michael Mukasey paints a rosy picture of the Justice Department’s Civil Rights Division on its 50th anniversary. (BLT)

Nino the comic

If Justice Antonin Scalia ever grows weary of being in the judiciary, a second career as a comic could be an option for him according to DC Dicta’s latest survey of official court transcripts, which shows that so far this term Scalia is “The Funniest Justice” by a long shot.

After yesterday’s oral arguments – the last of this month – Scalia has made the crowd in the courtroom laugh a whopping 28 times. Chief Justice John G. Roberts, Jr. is still in second place – now distantly – with 11 laughs.

But there has been some movement in the rankings since last time: Justices David Souter and Stephen Breyer both have eight laughs apiece now, and both have passed Justice John Paul Stevens, who drops from third place to fifth place with six laughs, as he didn’t crack anyone up this month.

Justice Anthony Kennedy has four laughs, Justice Samuel Alito has two, and although DC Dicta swears it heard Justice Ruth Bader Ginsburg make two funnies on Tuesday, the official record reflects only one, and that is the number we must use in our nowhere-near-scientific survey.

The ever-silent Justice Clarence Thomas has still not uttered a comment or question this term.

High court blocks another execution

Yesterday afternoon, the U.S. Supreme Court blocked the execution of yet another death row inmate as it prepares this term to determine whether a three-drug lethal injection cocktail amounts to an unconstitutionally cruel and unusual punishment in the case Baze v. Rees. [PDF file]

Less than a day before he was to be executed, Alabama inmate Thomas Arthur was granted a stay by the nation’s highest court. The Associated Press has more here. The Court’s order can be found here. [PDF file]

Justices ponder O.J. and the race card

During yesterday’s oral argument in the case of Snyder v. Lousiana – a fact-oriented reexamination of a Louisiana prosecutor’s use of peremptory strikes to dismiss black jurors in a black defendant’s capital murder trial – the Supreme Court justices examined what role comments by the prosecutor comparing the case to the O.J. Simpson trial played in evidencing that the juror strikes were racially-motivated.

The attorney for defendant/petitioner Allen Snyder, who was convicted and sentenced to death for fatally stabbing his wife’s male companion, argued that the prosecutor’s comments in the press that the case was “his O.J. trial” and that he would not let Snyder “get away with it” as O.J. did, as well as comments about the Simpson case in his closing argument, showed that the prosecutor wanted to prejudice the defendant in the eyes of the all-white jury.

But Louisiana Assistant Attorney General Terry M. Boudreaux argued that the Simpson reference did not refer to race. The prosecutor, Boudreaux argued, was simply pointing out that both cases involved men who had attacked their estranged wives and their companions.

Justice David Souter was not easily sold on Boudreaux’s argument.

First, focusing on the role the trial judge played, Souter pressed Boudreaux on the matter. “There isn’t much reason, is there, to think that the trial court was being very critical of the prosecutor’s answers?” Souter began. “My recollection is that, after the O.J. Simpson remark had been made in final argument, that the ultimate resolution of that involved the trial judge saying that one reason that was not a racially significant remark was that the prosecutor had mentioned neither the race of the defendant nor the race of O.J. Simpson.

“Now that is not a critical mind at work, is it?” Souter queried, drawing laughter from the audience.

“I would suppose not, Your Honor,” Boudreaux acquiesced. More laughter.

“And because you suppose not and I certainly suppose not,” Souter continued, “the fact is that we have to consider the O.J. Simpson remark in trying to evaluate what went on, in trying to evaluate [the prosecutor’s conduct]. And that, in fact, is a fair and potent argument that the other side has, isn’t it?”

“Yes, Your Honor” Boudreaux said, but added: “The reference to the O.J. Simpson case was based on the factual similarities involving the O.J. Simpson case and this case.”

Souter was still skeptical.

[More after the jump]