Ginsburg, Scalia on opposites sides of torture debate

April 13, 2009

As we know, Supreme Court Justice Antonin Scalia – a fan of 24 character Jack Bauer – sees nothing wrong with roughing up a terrorism suspect if it yields information that can help stem an attack. His colleague and frequent opera companion Justice Ruth Bader Ginsburg, however, has a different view.

ginsburg“The police think that a suspect they have apprehended knows where and when a bomb is going to go off,” Ginsburg said during a speech at Moritz College of Law at Ohio State University, according to a New York Times report. “Can the police use torture to extract that information? And in an eloquent decision by Aharon Barak, then the chief justice of Israel, the court said: ‘Torture? Never.'”

Ginsburg also said that she wishes that she were not the only woman on the bench. “There I am all alone,” she said, “and it doesn’t look right.”

One thing that she did not talk about, The Washington Post reported, was any desire to step down. Ginsburg, 76, underwent cancer surgery this past winter, and is now undergoing chemotherapy treatments. Still, she hasn’t missed an oral argument – or even a beat, for that matter. At the event, during a videotaped tribute to Ginsburg, Chief Justice John G. Roberts, Jr. offered “my warm congratulations on the occasion of your reaching the midpoint of your tenure.”

You can watch the webcast of the symposium here on Moritz College of Law’s website.


Camera-shy Scalia

April 7, 2009

scaliahandsSupreme Court Justice Antonin Scalia loves talking about the Constitution. He’s not afraid to discuss hot-button topics like the death penalty and gay marriage. But apparently, he’s not a big fan of getting his picture taken.

Yesterday, during a speech at William Carey University in Mississippi, Scalia was busy talking about constitutional originalism while a media photographer, who was authorized to take still shots of the justice, was snapping away. Still, Scalia was displeased.

“Could we stop the photos please?” Scalia said, according to a report by The Hattiesburg American.

Interestingly, the last time Scalia spoke in Hattiesburg was in 2004, when a free speech battle was spurred after a federal marshal seized the tape recorders of reporters from the American and the Associated Press covering Scalia’s talk. The news organizations sued the U.S. Marshals Service and won, and Scalia later apologized to the reporters and they got their tape recorders back.

Yesterday during Scalia’s talk, he touched on the issue of gay marriage just over a week after Rep. Barney Frank made headlines for calling the justice a “homophobe.” Although Scalia declined to comment on Frank’s comments at the time, yesterday Scalia said that the Fourteenth Amendment does not provide a right for gays to marry any more than it provided a right for women to vote. It is for legislators to carve out any such right, Scalia said – just as they did by passing the 19th amendment guaranteeing women’s suffrage.

He acknowledged that not all Supreme Court justices share his views.

“There are four justices who have sat beside me who believe that the death penalty is now unconstitutional … and they believe it to be unconstitutional, because they think it ought to be,” he said. No word yet on whether the ears of Justices Ginsburg, Stevens, Souter or Breyer began to burn.

One footnote, since Scalia was en route to Mississippi during yesterday’s brief Supreme Court session, Chief Justice John G. Roberts, Jr. announced Scalia’s opinion in U.S. v. Navajo Nation, according to Legal Times BLT blog.


The Funniest Justice, week 12: Fair and funny

April 2, 2009

breyer“I didn’t want to complicate it,” Justice Stephen Breyer said to attorney Carter Phillips Tuesday during oral arguments in Gross v. FBL Financial Services. “But that may work in your favor to complicate it, and I want to be fair.”

scaliafunnyThat is one of the two comments made by Breyer that drew laughs from the audience at the Supreme Court this week. But in the funniest justice contest, it is Justice Antonin Scalia who extended his lead a little by garnering three laughs.

Here are the laugh standings as of yesterday:

Justice Antonin Scalia: 39

Justice Stephen Breyer: 32

Chief Justice John Roberts: 26

Justice David Souter: 11

Justice Anthony Kennedy: 10

Justice John Paul Stevens: 10

Justice Ruth Bader Ginsburg: 5

Justice Samuel Alito: 2

Justice Clarence Thomas: 0 (No oral argument questions or comments since Feb. 22, 2006).


The Funniest Justice, week 11: Hail to the Chief

March 26, 2009

During oral arguments Tuesday in the case Citizens United v. FEC,  Justice John Paul Stevens asked attorney Ted Olson his view on a point of legal precedent.

“Do you think the Chief Justice’s opinion in that case correctly stated the law?” Stevens asked.

“Of course,” Olson said obediently, drawing laughter. “By definition.”

scalia1“Good answer,” deadpanned Justice Antonin Scalia, prompting more laughter.

That last laugh get helped Scalia maintain his six-laugh lead in his bid to be this term’s funniest justice. But with just nine oral argument days left in the term, Justice Stephen Breyer and Chief Justice John Roberts remain in the running, trailing Scalia by ten laughs or less.

Here are the laugh standings as if today:

Justice Antonin Scalia: 36

Justice Stephen Breyer: 30

Chief Justice John Roberts: 26

Justice David Souter: 11

Justice Anthony Kennedy: 10

Justice John Paul Stevens: 10

Justice Ruth Bader Ginsburg: 4

Justice Samuel Alito: 2

Justice Clarence Thomas: 0 (Thomas hasn’t offered an oral argument question or comment since Feb. 22, 2006).


Court rules in plain-error forfeiture case

March 25, 2009

usscpoolToday the U.S. Supreme Court ruled in Puckett v. U.S. that the plain-error test must be used to determine whether a defendant’s claim that the government breached a plea agreement is forfeited. The case involved a defendant who agreed to plead guilty in exchange for a reduced sentence, but committed another crime before sentencing, causing the prosecutors to seek – and the judge to impose – a harsher sentence. On appeal, the defendant raised for the first time the claim that the government breached the plea agreement. The appellate court applying the plain-error standard, found that the defendant did not show we was prejudiced by the error.

Writing for the 7-2 majority affirming the decision, Justice Antonin Scalia said requiring defendants to raise such an issue at the trial level is important to prevent defendants from “gaming” the system by waiting to see what sentence he gets and “then seeking a second bite at the apple by raising the claim” on appeal. Justices David Souter and John Paul Stevens dissented.

The opinion is available here.


Frank explains Scalia ‘homophobe’ comment

March 25, 2009

frank2After sparking controversy by calling U.S. Supreme Court Justice Antonin Scalia a ‘homophobe,’ this morning Massachusetts Rep. Barney Frank stood by his comment, saying that Scalia has repeatedly condemned homosexual conduct in his written opinions.

In an interview on CNN, Frank pointed to “opinions written by Justice Scalia in which he makes it very clear that he thinks it’s a terrible idea for people who are gay or lesbian to have equal rights.”

scaliabigIn a dissent in the 2003 case Lawrence v. Texas, in which the Court struck down an anti-sodomy law as unconstitutional, Scalia said the Court’s majority “signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

Frank said that unlike Justice Clarence Thomas, who also dissented on the constitutional question, but called the law “silly” and said he’d vote to repeal it if he were a state lawmaker, Scalia attacked the issue on a moral ground.

“He is so angry about those of us who may be gay or lesbian, that he thinks it’s taking sides in a culture war to say that people shouldn’t be sent to prison for private consensual acts,” Frank said.

CNN said it reached out to the Supreme Court for comment from Scalia, and the justice declined.

See Frank’s original comment here:


Frank: Scalia is a ‘homophobe’

March 24, 2009

barneyfrankRep. Barney Frank, the outspoken Massachusetts lawmaker who chairs the House Financial Services Committee, called U.S. Supreme Court Justice Antonin Scalia a “homophobe” during a recent interview about gay rights issues.

Frank, who is gay, was interviewed by the news website 365gay.com. In the video interview, available on the website, Frank was asked about of the Defense of Marriage Act, the 1996 law that prevents the federal government from recognizing gay marriages and gives states the right not to recognize gay marriages even if legal in another state. Frank said the only way to end the law would be through a constitutional challenge before the nation’s highest court.

scalia1“I do think that [the] argument that it is unconstitutional for the federal government to pick and choose as to which marriages it will accept is a good one,” Frank said. “At some point it’s got to go to the United States Supreme Court.

“I wouldn’t want it to go to the United States Supreme Court now,” Frank added, “because that homophobe Antonin Scalia has got too many votes on this current Court.”

According to he Associated Press, Scalia declined to comment to Frank’s remark Monday.