Supremes rule on arbitration, environmental and appointed counsel cases

April 1, 2009

supremesToday the U.S. Supreme Court held that collective bargaining agreements that require employees to arbitration discrimination claims, thus waiving their right to sue on court, are enforceable as a matter of federal law. The 5-4 opinion, split down the Court’s ideological lines with Justice Anthony Kennedy joining Justice Clarence Thomas’ majority opinion, came in 14 Penn Plaza LLC v. Pyett. More soon on that case from Lawyers USA.

The Court also held in Entergy Corp. v. Riverkeeper, Inc. that that EPA can rely on cost-benefit analysis in setting some of the national performance standards governing power plants.

In Harbison v. Bell the Court held that federally appointed counsel may represent their clients in state clemency proceedings and they are entitled to compensation for that representation.

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Thomas: Self-indulgent Americans don’t sacrifice

March 17, 2009

thomas3At a time when the government is being called on more and more to help businesses and citizens struggling in a faltering economy, Supreme Court Justice Clarence Thomas admonished Americans for being self-indulgent, and expecting a lot while sacrificing little.

“Today the message seems to be, ‘Ask not what you can do for yourselves and your country, but what your country can do for you,'” Thomas said during a speech at Virginia’s Washington and Lee University yesterday.

He contrasted his own experience as a southern boy – an experience recounted in his recent autobiography. While his grandfather taught him the value of pulling one’s self up by the bootstraps, Thomas said, Americans today are waiting for the government to help.

“These days, there seems to be little emphasis on responsibility, sacrifice and self-denial,” Thomas said. “Rarely do we hear a message of sacrifice, unless it is used as a justification of taxation of others or a transfer of wealth to others.”

More here from The Richmand Times-Dispatch.


Scalia: Thomas should talk

March 12, 2009

scaliawaveAdd Justice Antonin Scalia to the list of people who are puzzled by Justice Clarence Thomas’ refusal to participate in Supreme Court oral arguments.

At an appearance this week at Pepperdine School of Law, Scalia noted that oral arguments serve an important role, and Thomas would benefit himself and the other justices by speaking up, according to an account by attorney Benjamin Shatz posted on En Banc, the blog of the Los Angeles County Bar. thomas2Thomas, as DC Dicta readers know, hasn’t asked a question during the Court’s oral hearings since Feb. 22, 2006.

Without active questioning by the justices, lawyers arguing before the Court simply “regurgitate their ‘blessed’ briefs,” Scalia said, according to Shatz. Since the justices have already read the briefs, Scalia said, such recitation is like listening to a book on tape after reading the book, Shatz wrote.

During the Pepperdine talk, Scalia also lamented that federal judgeships aren’t as prestigious as they used to be. Federal judges used to be the best of the best – the “knights of the bar” – but now federal benches are made up mostly of career government people who have “had their snouts in the public trough their whole lives.”

And despite being known for his keen legal mind, his wife calls him “Mr. Clueless,” according to the blog post.

Scalia also noted that when it comes to the Court’s opinions, it is “always better to be in the majority, except when the majority is wrong.” But later at Town Hall Los Angeles event, he said dissents allow him to cut loose.

“Dissents are more fun,” Scalia said, according to the Los Angeles Times. “You’re writing for yourself. You can really let it rip.”

[HT: ABA Journal]


Justice debate death penalty in cert denial

March 10, 2009

The denial of a certiorari petition gave several justice of the Supreme Court an opportunity to argue about the death penalty.

The disagreement – carried out through a statement by Justice John Paul Stevens, a dissent by Justice Stephen Breyer and a concurrence by Justice Clarence Thomas – came after the Court declined to take up the case of Thompson v. McNeil, which presented the issue of whether being on death row for 32 years constitutes unconstitutionally cruel and unusual punishment.

jpstevensStevens, who has recently been vocal in his opposition to the death penalty, stopped short of dissenting in the cert denial. But in his accompanying opinion, he pointed out that the case – like many others – evidences the need for reconsideration of the way capital punishment is administered.

“As he awaits execution, petitioner has endured especially severe conditions of confinement, spending up to 23 hours per day in isolation in a 6- by 9-foot cell,” Stevens wrote of the defendant, William Lee Thompson. “Two death warrants have been signed against him and stayed only shortly before he was scheduled to be put to death. The dehumanizing effects of such treatment are undeniable.”

Stevens pointed out that such a case is not rare. “Today, condemned inmates await execution for an average of nearly 13 years,” Stevens wrote. “To my mind, this figure underscores the fundamental inhumanity and unworkability of the death penalty as it is administered in the United States.”

Stevens went on the say that the existence of such “inescapable” delays “reinforces my opinion that contemporary decisions to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process.”

thomas2But Thomas took issue with that characterization.

“[B]ecause petitioner chose to challenge his death sentence, [Stevens and Breyer] suggest that the subsequent delay caused by petitioner’s 32 years of litigation creates an Eighth Amendment problem,” Thomas wrote.

Thomas added: “Justice Stevens criticizes the ‘dehumanizing effects’ of the manner in which petitioner has been confined, but he never pauses to consider whether there is a legitimate penological reason for keeping certain inmates in restrictive confinement.”

Finally, Thomas notes that Stevens “refuses to take into consideration the gruesome nature of the crimes” for which Thompson was convicted, and Thomas then recounts the grizzly facts in his opinion.

breyer1Breyer addresses Thomas’ point by noting “it is the punishment, not the gruesome nature of the crime, which is at issue.”

As for Thomas’ point that the defendant is partially to blame for the delay in his time on death row, Breyer writes: “I do not believe that petitioner’s decision to exercise his right to seek appellate review of his death sentence automatically waives a claim that the Eighth Amendment proscribes a delay of more than 30 years.”

Breyer went on to write that “the delay here resulted in significant part from constitutionally defective death penalty procedures for which petitioner was not responsible. In particular, the delay was partly caused by the sentencing judge’s failure to allow the presentation and jury consideration of non statutory mitigating circumstances, an approach which we have unanimously held constitutionally forbidden.”


DC Dicta’s greatest hits of 2008

December 22, 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’

mukaseyagComments 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

scaliasideNo 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?

kennedy2After 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

quaidMr. (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

thomas2Ah, 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

bidenDuring 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

robertssmallWho 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

crackWhen 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

enronThis 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.


Supremes take a pass on Obama challenge

December 8, 2008

supremesThis morning the U.S. Supreme Court without comment declined to take up a case challenging the citizenship of President-elect Barack Obama.

The court declined to take up a host of cases including Donofrio v. Wells, a case that had been the subject of much chatter on political blogs in recent days after Justice David Souter denied injunctive action in the obama6case, and Justice Clarence Thomas placed the case on the list of items considered by the Court at its conference Friday. Most news organizations noted that this case, like most before the Court, had little chance of being granted cert by the high court.

The case is one of several lawsuits launched challenging Obama’s citizenship – most claim that since Obama’s father was born in Kenya and was therefore a British subject, Obama was not a “natural born” citizen. More here from The Washington Post.


Thomas credits Holmes’ wisdom to Hendrix

September 30, 2008

The start of oral arguments at the U.S. Supreme Court is just a few days away. People who have seen oral arguments before the high court know that there are two things you can count on: (1) Justice Antonin Scalia speaking a lot (and probably saying something funny) and (2) Justice Clarence Thomas saying absolutely nothing.

Thomas was asked about his silence on the bench at a lecture earlier this month at Pepperdine University School of Law. After chiding other justices for talking far too much, Thomas used the example of a student who recently visited the Court to explain the virtue of silence. When Thomas asked the student why she was so quiet, she replied: “Well, wisdom listens and knowledge speaks.”

“I said, ‘Woo! That’s pretty good!” Thomas said, drawing laughs from the crowd. “So I scooted out and checked it out on the internet and found out it was Jimi Hendrix!”

Well, DC Dicta checked the internet as well, and discovered that Hendrix did indeed once say: “Knowledge speaks, but wisdom listens.”

But Hendrix took the sentiment from someone else: Oliver Wendell Holmes, Sr. – father of Supreme Court Justice Oliver Wendell Holmes, Jr. The elder Holmes said: “It is the province of knowledge to speak and it is the privilege of wisdom to listen.”

Here is video of the remarks – and a chance for you to hear what his voice sounds like.

By the way, the questioner is Ken Starr, dean of the law school (perhaps better known as the author of the Starr Report).