Tag Archives: SCOTUS

First Circuit Nominee Makes SCOTUS Farm Team List

The New Yorker examines the list of potential nominees to the U.S. Supreme Court.  Their includes a nominee to the First Circuit Court of Appeals: David Barron.

David Barron, age forty-six, nominated to the First Circuit. Barron served as acting assistant attorney general during the first two years of the Obama Administration and is now a professor at Harvard Law School. His clerkships were with Stephen Reinhardt (a liberal favorite on the Ninth Circuit) and Justice John Paul Stevens; he has many fans in the White House, though the appointment of a white male would offer few political benefits. Barron’s nomination to the First Circuit has been approved by the Judiciary Committee on a party-line vote, and he has apparently been promised a vote in the full Senate before the mid-term elections. The invocation of the nuclear option—confirmation via a simple majority rather than the three-fifths vote formerly required to overcome a filibuster—should guarantee his appointment, which is obligatory if he is to be a Supreme Court nominee down the line.

Sen. Sheldon Whitehouse (D-RI) has also been mentioned as a potential nominee to the highest Court in the land.

Rhode Island seeks Good Neighbors on Air Pollution at the U.S. Supreme Court

Last week, the Supreme Court of the United States (SCOTUS) heard oral argument in two cases about what it means to be a good neighbor… if you are a state.

The two cases – EPA v. EME Homer City Generation and American Lung Association v. EME Homer City Generation - will likely determine the Environmental Protection Agency’s authority to prevent one state’s air pollution from reaching the air of a neighboring state.

The state of Rhode Island joined 8 other states, the District of Columbia, and five cities in urging the SCOTUS to uphold the Clean Air Act’s requirement that “upwind” states have an independent obligation to fix the impact they have on “downwind” states.  Read the brief that Rhode Island Attorney General Peter Kilmartin filed here.

More background on the case and prospects for SCOTUS’ ruling can be found here on the SCOTUS blog.

In related news, Attorney General Peter Kilmartin joined a coalition of other state attorneys general in submitting comments to the EPA this week arguing that the EPA must combat power plant pollution by both setting strong emission limits and giving states flexibility on how they choose to meet the limits. More details here.

US Senators to Watch in Kagan Confirmation

Via Chris Cillizza at the Fix:

1. With a sedate day one of Elena Kagan’s Supreme Court confirmation behind us, today is expected to be a bit more lively as the question and answer phase begins.Here’s six Senators on the Judiciary Committee to keep an eye on during today’s proceedings:

* Orrin Hatch: The Utah Republican voted to confirm Kagan as Solicitor General in 2009. But, he has also watched his Beehive State colleague Bob Bennett swept out of office last month by conservatives unhappy with some votes they deemed less than acceptable. With Rep. Jason Chaffetz (R) waiting in the wings to challenge Hatch in 2012, can the incumbent afford to be anything but tough on Kagan and then vote against her? And, if he doesn’t, might that be an early indication that a retirement is in the offing?

* Lindsey Graham: Graham is the Republican Democrats have come to love — viewing him as fair-minded and not overly partisan. But Graham is a very savvy politician and understands that he can only venture so far from his conservative base without getting into real trouble. Having already voted to confirm Sonia Sotomayor to the Court, will Graham poke his base in the eye again with a “yes” vote on Kagan? He seemed to be undecided during his opening statement on Monday, telling the nominee that her hearing would be “probative and meaningful”.

* Arlen Specter: Long a titan of the Judiciary Committee as a Republican, Specter, was a, well, specter, of his former self during the Sotomayor confirmation hearings as he used the event to prove to Democrats that he was one of them after switching parties earlier in year. It didn’t work as he lost his primary fight to Rep. Joe Sestak. Now that Specter is unencumbered by electoral concerns and calculations for the first time in decades, how will he treat Kagan?

* Dick Durbin/Chuck Schumer: Durbin, of Illinois, and Schumer, of New York, are competing in a behind-the-scenes battle to become the next Democratic leader of the Senate if Harry Reid (Nev.) loses his re-election fight this fall. Rarely will you get a better chance to see their differing approaches and rate their overall effectiveness than today as the two men will question the nominee within 30 minutes (or so) of one another. You can bet their colleagues will be watching to see which one performs better as the caucus weighs its options if Reid comes up short.

* Al Franken: The Sotomayor hearings amounted to a public debut of sorts for the comedian turned Minnesota Democratic Senator. And, while Franken did occasionally crack wise, he was generally a low-profile presence on the committee. With another year of Senate service under his belt, does Franken take a different approach to this confirmation? With liberals expressing some concerns about Kagan’s past policy positions (or, more accurately, her lack of past policy positions) will Franken take the mantle as liberal champion on the committee and try to draw her out?

Profiles of Potential Supreme Court Justice Nominees

The Alliance for Justice has assembled a useful set of profiles of the likely nominees to replace Justice Stevens on the SCOTUS.

All eyes are on President Obama’s pick for the SCOTUS as AFJ’s recently released report, “Unprecedented Injustice: The Political Agenda of the Roberts Court” shows a frighteningly clear pattern: the current court has repeatedly gone out of its way to place corporate interests first and the rights of individuals second.

Sen. Sheldon Whitehouse Condemns Citizens United in Politico

Writing in Politico, Rhode Island’s junior Senator Sheldon Whitehouse, passionately criticizes the recent SCOTUS decision in Citizens United.

The Supreme Court’s recent slim majority decision in Citizens United has opened floodgates that long prevented corporate cash from drowning out the voices of American citizens in election campaigns. Those who care about the integrity of the American political process view this decision with concern and astonishment.

The Senate Judiciary Committee will hold a hearing about this misguided decision Wednesday. The ruling continues an increasingly clear pattern of the court’s activist conservative bloc. First, decisions are by a narrow 5-4 majority. Second, decisions overrule well-established law and well-settled precedent. Third, the outcome favors corporations, the rich and the powerful.

The Constitution has long been understood to allow Congress to protect elections from the corrupting influence of corporate cash. As President Barack Obama has observed, the principle embodied in the 1907 Tillman Act — that inanimate business corporations, creatures of our laws, are not free to spend unlimited dollars to influence election campaigns — has been an established cornerstone of our political system for more than 100 years.

The five-justice conservative bloc of the Supreme Court tossed that principle aside, baldly denying any risk of election corruption, despite numerous congressional findings to the contrary. As my colleague Sen. Chuck Schumer (D-N.Y.) has said: “The Supreme Court [has] predetermined the winners of next November’s elections. It won’t be Republicans. It won’t be Democrats. It will be corporate America.”

I look forward to working with Schumer to limit the harmful effects of the Citizens United opinion: to prevent foreign corporations from influencing U.S. elections; to ban pay-to-play spending by government contractors; to strengthen disclosure laws that ensure voters know who is funding the ads they see; and to enhance corporate disclosure of election spending.


Elections are the lifeblood of democracy. The U.S. Constitution is established by and for “We the People of the United States.” Humans are clearly different from artificial corporations. And nothing in the Constitution gives CEOs the right to amplify their voices over all of ours through the corporations they control.

The activist conservative bloc, currently driving the court to the right, does not seem to appreciate this foundational, common-sense principle of our republic — at least not when corporate interests are concerned.

The court should return to its proper role of providing justice to all Americans, not just the privileged few.

Well done, Senator.  Well done.

Sen. Whitehouse Condemns SCOTUS Decision on Corporate Political Spending

Kudos to Sen. Sheldon Whitehouse for standing up and speaking out on the Senate floor against the 5-4 SCOTUS ruling in Citizens United (whose local impact I analyzed here):



SCOTUS Ruling in Citizens United Could Open Door for Corporate Spending in RI Elections

Today’s Supreme Court ruling in Citizens United v. Federal Election Commission could have a tumultuous effect on Rhode Island politics and allow Republicans to lean on corporate support to become competitive in state races.

In a divided 5-4 ruling, Justice Anthony Kennedy sided with the conservatives in ruling that corporations have a First Amendment right to spend without limits for or against a candidate’s election.

Without having read the entire 183 pages of the decision and the dissents, it appears to me that this decision overturns Rhode Island’s current ban on the use of corporate dollars in a state election.

In other words, the decision appears to make plausible the following scenario.

Textron could spend $500,000 on television ads that urge voters to vote for John Robitaille for Governor.

I agree with Justice Stevens who writes, in relevant part:

The conceit that corporations must be treated identically to natural persons in the politicalsphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.

In the context of election to public office, the distinction between corporate and human speakers is significant.Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure,and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.

NYTimes Urges Corrections to Iqbal Ruling

The New York Times correctly editorialized that changes need to be made in the wake of the Supreme Court’s ruling in Ashcroft v. Iqbal ruling:

In a lamentable 5-to-4 decision earlier this year, the Supreme Court discarded 50 years of legal precedent to make it significantly harder for Americans to assert their legal rights in federal court.

The ruling, in the case of Ashcroft v. Iqbal, involved a Muslim man swept up on immigrations charges after the Sept. 11 attacks. The court’s conservative majority decided that he could not sue the high-ranking federal officials he deemed responsible for setting the policies behind the terrible abuse he said he suffered in detention.

But the ruling’s damage went beyond the case or the national security sphere. The court altered the procedural rules for initiating a lawsuit, raising the bar in a fashion destined to make it far harder to bring valid actions and to allow wrongdoers to avoid accountability.

For decades, a plaintiff filing a lawsuit needed to file only a short, clear statement of his claim and its legal grounds. That standard recognized that much of the evidence needed to prove claims may be in the hands of the defendant and not available before the pretrial discovery process. The Iqbal ruling, which followed a similar 2007 ruling applying to antitrust claims, abandoned that approach. Under the court’s new regimen, judges must assess the “plausibility” of the facts of an allegation before allowing the plaintiff to begin collecting evidence. That gives judges excessive latitude to bury cases based on their subjective views before the evidence emerges and can be fairly weighed.

The practical impact in, say, an employment discrimination case, is to disadvantage the wronged employee, who is unlikely to have access at the outset to the records needed to prove wrongful conduct. Testifying at a Senate Judiciary Committee hearing earlier this month, John Payton, the president of the NAACP Legal Defense and Education Fund, expressed doubt that some of the major cases of the civil rights era could have survived the heightened standard. The courts have already applied Iqbal to dismiss numerous lawsuits prematurely.

Representative Jerrold Nadler, a Democrat of New York, has introduced corrective legislation in the House. Senator Arlen Specter, a Pennsylvania Democrat, has introduced another bill targeting the problem. It is the responsibility of Congress to reopen the courthouse doors.

Soldier’s family petitions SCOTUS to reconsider Feres Doctrine

WJXX-TV reports that “[t]he death of Petty Officer Nathan Hafterson is being used in a petition filed with U.S. Supreme Court asking the high court to allow active duty military personnel to sue the government. Hafterson, 21, died on March 26, 2006, at Naval Hospital Jacksonville after being admitted for trouble breathing.” Attorneys Sean Cronin and Bryan Gowdy “are teaming up to petition the Supreme Court to reconsider a decision that dates back to 1950″ – Feres v. United States.  “It would be a landmark case,” said Gowdy.  “It would put military members on the same footing as civilians under the Federal Tort Claims Act.”

Sen. Whitehouse’s Remarks on Sotomayor Vote

On the Web: Read the Release, Watch the Video

Thank you, Chairman, and thank you for your wise and fair leadership of these confirmation proceedings.  I also thank the ranking member for his fairness and courtesy throughout the proceedings.  I will be proud to vote in support of Judge Sotomayor’s confirmation to the United States Supreme Court.

I appreciate, as I know the Chairman and others do, her background as a prosecutor, and I believe her non-controversial seventeen-year record as a federal judge makes clear that she is dedicated to the rule of law, has a proper judicial temperament, and gives every party before her a fair hearing.

I also believe the unequivocal pledge that Judge Sotomayor gave me: that she will respect the role of Congress as representatives of the American people; that she will decide cases based on the law and the facts; that she will not prejudge any case, but listen to every party that comes before her; and that she will respect precedent and limit herself to the issues that the Court must decide; in short, that she will use the broad discretion of a Supreme Court Justice wisely.  She promised that and I take her at her word.

Mr. Chairman I think we are witness here to an effort to define justice in America in alignment with a particular point of view.  My colleagues are entitled to their point of view.  They are entitled to their view about guns, they are entitled to their point of view about property rights, they are entitled to their point of view about other issues.  What I resist is any effort to define that point of view as a judicial norm against which any other point of view is to be seen as an aberration, as “biases and prejudices,” to use one quotation.  In this case, I further believe that their definition of justice in America – their definition – is just plain wrong both as history and as justice.  In particular I do not wish to force, as the new judicial norm, the sort of judges who, to paraphrase a recent article on the Supreme Court “in every major case vote for the corporation against the individual, for the government against the criminal defendant, and for the executive branch against the legislature.”  I do not wish judges without empathy, who will ignore the long and proud history of the courtroom, as the last stand for many beleaguered Americans where they can get fearless justice even when all of the forces of politics, of proper opinion, and of corporate power may be arrayed against them – with judges willing to provide that fearless justice, even if it completely upsets the status quo.

I would add that I find no fault in judges who won’t, as the price of entry to the court, commit to expanding our newly minted individual right to own guns, a right that no Supreme Court for 220 years had previously noticed and that was created in a 5-4 decision by a divided court.

So I will with pride support Judge Sotomayor’s nomination.  It is an honor to serve on this committee and to vote for such a talented and exceptional person.  We all realize that Judge Sotomayor will be an historic justice, but I think we can all expect that most important she will be an excellent justice.

Sen. Sheldon Whitehouse Questions Sotomayor

Supreme Court Rules School’s Strip Search Unconstitutional

The Supreme Court issued an 8-1 opinion today which held that Arizona public school officials violated the constitutional rights of a teenage girl when they subjected her to a strip search while acting on an anonymous tip that the girl had prescription-strength ibuprofen.

“The issue here is whether a 13-year-old student’s Fourth Amendment right was violated when she was subjected to a search of her bra and underpants by school officials acting on reasonable suspicion that she had brought forbidden prescription and over-the-counter drugs to school,” Justice David Souter wrote in Safford Unified School District v. Redding. “Because there were no reasons to suspect the drugs presented a danger or were concealed in her underwear, we hold that the search did violate the Constitution ….” The justices, however, overturned a federal appeals court decision that found the school official who performed the search could be held personally liable.

Adam Wolf, an attorney with the ACLU who argued the case before the Court, said today:

We are pleased that the Supreme Court recognized that school officials had no reason to strip search Savana Redding and that the decision to do so was unconstitutional. Today’s ruling affirms that schools are not constitutional dead zones. While we are disappointed with the Court’s conclusion that the law was not clear before today and therefore school officials were not found liable, at least other students will not have to go through what Savana experienced.

Let us not forget that famous quote from Tinker v. Des Moines Independent Community School District:

It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

Judicial Independence & Campaign Contributions

Update: Great news!  In a 5-4 decision released today, the SCOTUS reversed the West Virginia Supreme Court.  Justice Kennedy authored the opinion and was joined by Justices Souter, Stevens, Ginsberg and Breyer.  Chief Justice Roberts and Justice Scalia authored dissents.

Original Post: Any fan of Damages would undoubtedly be intrigued with Caperton v. A.T. Massey Coal Company, Inc. – a case before the US Supreme Court.  Robert Rothman, the chair of the ABA’s section on Litigation, has a good article examining this case within the larger context of campaign contributions for the election of state court judges.

Here’s the broader context first.

With a high-profile case now pending before the U.S. Supreme Court, we may soon have guidance on whether, and under what circumstances, a campaign contribution to a successful judicial candidate will cause disqualification in cases involving the contributors. The Court’s grant of certiorari last November in Caperton v. A.T. Massey Coal Company, Inc., comes amid increasing focus on the impact of skyrocketing judicial campaign fundraising and independent campaign committee expenditures on the public’s perception of judicial fairness and impartiality.

The American Bar Association’s Standing Committee on Judicial Independence recently issued a draft of a report of the Judicial Disqualification Project, in which it observes that “In the past five years, disqualification has emerged as a major part of both the problem and the solution in the ongoing national effort to preserve and promote an independent judiciary.” In particular, the report notes that in several highly publicized cases, judges have been severely criticized for refusing to disqualify themselves from cases “where the judge had an undisclosed financial interest in, received sizable campaign contributions from, or had a personal relationship with one of the parties.”

Why the increasing concern? As the ABA report notes, “With interest groups pouring money into judicial elections, it is unsurprising that the public thinks that judges are influenced by the campaign contributions they receive.” Surveys in Texas, Ohio, and Pennsylvania found that 80 to 90 percent of respondents believed judicial decisions are influenced by campaign contributions—and these surveys were taken well before the current boom in contributions.

And the facts of this case:

The dispute involves two coal companies, Harman Mining Corporation and A.T. Massey Coal Company. Harman sued Massey in the Circuit Court of Boone County, West Virginia, alleging unlawful interference with Harman’s business and fraud in connection with negotiations to purchase the Harman Mine. In August 2002, the jury returned a verdict in favor of Harman for approximately $50 million in compensatory and punitive damages.

For a variety of reasons, Massey’s petition for discretionary review in the West Virginia Supreme Court was not filed until October 2006. During the interim, there was a contested election for a seat on the West Virginia Supreme Court, which is the sole appellate court in a state that does not allow appeals as a matter of right. In that election, Brent Benjamin defeated the incumbent, Warren McGraw. During the campaign, the president, chief executive officer, and chairman of Massey, Don L. Blankenship, contributed $2.46 million to an organization known as And for the Sake of the Kids, an independent group that actively opposed the reelection of Justice McGraw. Blankenship also spent more than $500,000 supporting the Benjamin campaign through payments to media outlets for advertising.

Even before Massey filed its petition in the West Virginia Supreme Court, Harman filed a motion asking Justice Benjamin to recuse himself. Justice Benjamin declined, finding there was no objective evidence of bias and that the motion was based on “surmise, conjecture, and political rhetoric.” Thereafter, he voted to grant review and, subsequently, with the 3-2 majority, to reverse the judgment against Massey.

While a motion for reconsideration was pending, photographs became public showing another member of the majority, Chief Justice Elliott Maynard, with Blankenship on the French Riviera during the pendency of the appeal. The chief justice and one other justice, who had been in the minority and publicly critical of Blankenship, then recused themselves from further participation in the case. Justice Benjamin, however, denied a renewed recusal motion from Harman and, as acting chief justice, appointed two new members of the court to fill in for the recused justices. He then voted to reconsider the appeal and, on reconsideration, again sided with the majority in a 3-2 decision reversing the judgment against Massey.

As we have seen in the Blagojevich affair, appointments can be as tainted as elections and the money that powers them.  Yet, it will be interesting to see how the SCOTUS manages the competing concerns of free speech, free and fair elections and judicial independence (both real and perceived).

Sotomayor Submits Questionnaire to Senate Judiciary

Yesterday, Judge Sonia Sotomayor submitted her finished questionnaire to the Senate Judiciary Committee.  The questionnaire and its associated attachments are available here.   Items of interest include her writings, speeches, rulings, personal assets and White House contact.

While President Barack Obama and Judiciary chairman Patrick Leahy have asserted that they want a full Senate vote on Sotomayor’s confirmation before the Senate’s August recess, it seems more and more likely – based on Sen. Harry Reid’s comments – that Sotomayor will not get a vote until September.

“I don’t want anyone subjecting this good woman to criticism because of some arbitrary deadline I set,” Senate Majority Leader Reid said today at a news conference.

…Speaking on the Senate floor, Reid said “we have to make decisions as to whether or not we’re going to be able to do the Supreme Court nomination during the next work period, or [if] that will spill over until the next period, which would be September. I have spoken to the Republican leader about that and he’s indicated that he is going to be communicating with me as to what he thinks should be done in more detail than our brief conversation.”

One possibility is that the Judiciary Committee could hold its hearing in the final week of July or early August. That would grant Republicans 60 days, which they note was the average time between the nomination and opening of hearings for the last three Supreme Court nominees. But it would require waiting until September for the final Senate vote.

Leahy, who determines when the Judiciary Committee will act, has said it would be “irresponsible” to delay the hearing until September. Reid will set the schedule for the floor vote.

SCOTUS Overturns Michigan v. Jackson

The ACS Blog reports on more big news out of the SCOTUS yesterday:

The U.S. Supreme Court today overturned precedent on the rights of criminal suspects in custody. In a 5-4 ruling, the high court overturned a 1986 case that barred police from interrogating suspects after they requested a right to counsel. Writing for the majority in Montejo v. Louisiana, Justice Antonin Scalia said the 1986 ruling on Sixth Amendment right to counsel provided suspects only “marginal benefits.” Justice John Paul Stevens, who wrote the 1986 majority opinion in Michigan v. Jackson, filed a dissent in Montejo. Stevens said the majority’s decision “can only diminish the public’s confidence in the reliability and fairness of our system of justice.”

Justice Stevens, in an unusual move, read his dissent aloud from the bench.  This rare move might be attributed to the fact that the Michigan v. Jackson opinion was written by Justice Stevens, the only current justice who was on the court at the time.  Here’s the beginning of his scathing dissent:

JUSTICE STEVENS, with whom JUSTICE SOUTER and JUSTICE GINSBURG join, and with whom JUSTICE BREYER joins, except for footnote 5, dissenting.  Today the Court properly concludes that the Louisiana Supreme Court’s parsimonious reading of our decision in Michigan v. Jackson, 475 U. S. 625 (1986), is indefensible.Yet the Court does not reverse. Rather, on its own initia-tive and without any evidence that the longstanding SixthAmendment protections established in Jackson have caused any harm to the workings of the criminal justice system, the Court rejects Jackson outright on the groundthat it is “untenable as a theoretical and doctrinal mat-ter.” Ante, at 6. That conclusion rests on a misinterpreta-tion of Jackson’s rationale and a gross undervaluation ofthe rule of stare decisis. The police interrogation in thiscase clearly violated petitioner’s Sixth Amendment right to counsel.