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.


Monday status conference: Egg rolls, billable hours and a puppy

April 13, 2009

bo1This week begins on the leisurely note for most of the folks at the top of the three government branches. The Supreme Court and Congress are in recess until April 20. And today the White House hosts the event has become the hottest ticket in town: the Easter Egg Roll. Perhaps Bo, the First Pup, will make an appearance.

And as you search for recipes to help you use those leftover boiled eggs and latkes this week, take a look at some legal news:

Point-counterpoint: The federal judiciary will soon debate a controversial Rule 56 change that would set up  a “point-counterpoint” procedure,  requiring the moving party to furnish an enumerated statement of facts with citations to the record for each statement of fact. The opposing party would then respond by accepting or disputing each statement of fact. The possible result? “A lot more billable hours (for the defense bar), but I don’t think it will help judges,” says one attorney. (Lawyers USA)

Pirate prosecution: The Justice Department is mulling whether Washington or New York will be the site of the criminal trial of to the Somali pirate captured in the dramatic rescue of an American merchant vessel captain that left three other pirates dead. It would be the nation’s first piracy case in recent memory. (AP)

Teflon AG: Last week was not a good one for the Justice Department – yet unlike his recent predecessors Attorney General Eric Holder isn’t being skewered over the misfortunes – he’s even garnering praise. (Legal Times)

FDA safety check: Federal regulators will ask makers of some of the riskiest medical devices to prove that their products were safe and effective – a step that critics have said was long overdue. (NYT)

Supreme Court agrees to agree

April 8, 2009

supremebenchDon’t let this week’s 5-4 Supreme Court decision in Corley v. U.S. – where the justices split along ideological lines with Justice Anthony Kennedy again serving as swing voter – fool you. This term, the justices are opting more often to agree to agree.

So far this term, nearly half of the Court’s opinions have either been unanimous or nearly so, reports AP’s Mark Sherman.

Corley is the eighth decision this term in which the Court split 5-4. In six of those splits, Kennedy was the swing voter, joining the Court’s so-called conservative bloc four times, and the liberals twice. Two 5-4 opinions had no clear ideological connection.

Since the Court developed a reputation as having a strong ideological divide in its October 2006 term, Chief Justice John G. Roberts, Jr. has often expressed a desire to see more consensus among the justices. In 2007, Roberts said: “The court functions most effectively as a judicial institution saying what the law is when it can deliver one clear and focused opinion of the court.”

It is unclear whether Roberts’ stewardship is behind the justices seeing more eye to eye.

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.

High court: Delayed confessions can be inadmissible

April 6, 2009

supremesA confession by a defendant who had been in police custody for more than six hours without being presented to a magistrate is inadmissible, the U.S. Supreme Court has ruled.

In the 5-4 opinion in Corley v. U.S., the Supreme Court found that 18 U.S.C. §3501 – which holds that admissions “shall be admissible if it is voluntarily given” within six hours of an arrest – did not supplant the McNabb-Mallory rule, which requires police to take a defendant “without unnecessary delay” before a magistrate judge.

“Today presentment is the point at which the judge is required to take several key steps to foreclose government overreaching: informing the defendant of the charges against him, his right to remain silent, his right to counsel, the availability of bail, and any right to a preliminary hearing; giving the defendant a chance to consult with counsel; and deciding between detention or release,” wrote Justice David Souter for the majority. “In a world without McNabb-Mallory, federal agents would be free to question suspects for extended periods before bringing them out in the open, and we have always known what custodial secrecy leads to.”

Justice Anthony Kennedy joined the majority, leaving the Court’s conservative bloc to file a dissent. More here on Corley from Lawyers USA.

He Court also ruled in U.S. v. Navajo Nation that The Navajo Nation has no claim for damages under the Indian TuckerAct) for an asserted breach of fiduciary duty by the Secretary of the Interior in connection with his failure promptly to approve a royalty rate increase under a coal lease the Tribe executed in 1964.

Monday status conference: Championship edition

April 6, 2009

This morning the U.S. Supreme Court could announce new grants of certiorari and/or freshly minted opinions. We’ll bring you more on any newsworthy developments here later.

President Barack Obama wraps up his weeklong European tour in Turkey this morning. When he returns he’ll take a look at the budget passed last week by Congress to see all the ways it differs from his own plan.msu

Meanwhile, as you plan your snacks for today’s NCAA championship game (Great Lakes State-born DC Dicta isn’t even going to try to be impartial today) here is a look at the legal news kicking off this week:

Writing’s on the drywall: Lawmakers have introduced a bill that would impose an immediate ban on defective drywall being imported from China, and an immediate recall on such materials already in the country.  A number of class action lawsuits have already been filed over the materials. (Lawyers USA)

Crash deaths curtailed: Here’s an upshot of the terrible economy – fewer people are driving on the roads, and as a result crash-related fatalities are at their lowest levels since the Kennedy administration. (AP)

Judging the Justice Department: The corruption case against former Sen. Ted Stevens, whose conviction is soon to be tossed amid allegations of prosecutorial misconduct, has some experts calling for more oversight at the Justice Department. (ABA Journal)

Documents demand:  Meanwhile, a federal judge yesterday ordered the Justice Department to give him documents concerning allegations of misconduct by the team that prosecuted Stevens. (WaPo)

Buyer’s market? Whether the reason is the sagging economy or the retirement of baby boomers, the number of law practices for sale is rising. (Lawyers USA)

Court blocks release of dozens of convicted sex offenders

April 6, 2009

cjrobertsLate Friday, Chief Justice John G. Roberts, Jr. issued an order that prevents the release of some sex offenders who have completed their prison terms, but remain under civil confinement.

The portion of the federal law allowing such civil confinement had been invalidated by the 4th Circuit Court of Appeals, which ruled that Congress overstepped its authority by allowing convicted sex offenders who served their terms, but were deemed dangerous by the government, to be held civilly.  The law, the Adam Walsh Child Protection and Safety Act, was passed by Congress and sighed into law by President George W. Bush in 2006.

Friday Solicitor General Elena Kagan asked the high court to grant an immediate interim stay of the federal appellate court ruling while considering a permanent stay request. Roberts, in turn, granted the permanent stay pending consideration of certiorari in the case.

Roberts’ ruling will keep about 77 convicted offenders to remain in custody in North Carolina. Without the stay, the inmates could have been released as early as next week.

More here from the AP and here from SCOTUSBlog.