Category Archives: SCOTUS

Listen to Audio in Sports Betting Case – Murphy vs. NCAA

At this link, you can listen to oral arguments for Murphy vs. NCAA via the United States Supreme Court.

Many states and state budgets are hoping for and/or relying on the Supreme Court to issue an opinion that would open the door for legalized sports betting.

SCOTUSBLOG, which has all of the case documents here, speculates that there are at least 5 votes trending in this direction.


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.

SCOTUS to determine whether Insanity Defense is a Constitutional Right

The Washington Post has an interesting article about an Idaho shooter who wants to claim an insanity defense in a state – Idaho – that is 1 of 4 states that does not recognize the defense.  Now, he is appealing to the SCOTUS and asking for his right to make an insanity defense be deemed a constitutional right:

Delling’s lawyers are now at the Supreme Court, asking the justices to rule that the Constitution mandates that such a defense be available for those who, because of mental illness, are not responsible for the mayhem they create.

“For centuries, the moral integrity of the criminal law has depended, in part, on the insanity defense,” Stanford law professor Jeffrey L. Fisher wrote in a petition on Delling’s behalf.

Punishment is traditionally justified on the basis of an individual consciously choosing evil over good, Fisher wrote. “Laws such as Idaho’s abandon that basic tenet,” he said.

Fisher contends that Idaho’s law violates the Constitution’s guarantee of due process of law, as well as the Eighth Amendment’s prohibition of cruel and unusual punishment.

All states and the federal government once allowed the insanity defense. But that changed with the public outrage over John W. Hinckley Jr.’s acquittal for reasons of insanity in his assassination attempt on President Ronald Reagan in 1981.


SCOTUS, with Chief Justice Roberts, Upholds Health Care Law

With a vote of 5-4, the Supreme Court of the United States has upheld the Health Care Reform legislation with the exception that the federal government’s power to terminate states’ Medicaid funds is narrowly read.  Read the opinion here.

While Justice Anthony Kennedy was thought to be the swing vote, he ultimately dissented and Chief Justice John Roberts’ vote ultimately saved the historic legislation.

Here is a summary:

  • Justices Kennedy, Scalia, Alito and Thomas voted that the entire Act was unconstitutional.
  • Justices Ginsburg, Kagan, Sotomayor and Breyer voted to uphold the Act as constitutional.
  • Chief Justice Roberts forged a middle ground stating that the Act was constitutional under Congress’ power to tax, but unconstitutional under the Commerce Clause.  However, the Act is ultimately constitutional because of the former.

Regarding the Medicaid issue, CJ Roberts notes that “[n]othing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.”

Having upheld the individual mandate, the Court does not reach severability issues.

The SCOTUSblog summarizes as follows:

The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn’t comply with the new requirements, rather than all of their funding.

Judge Posner Criticizes Justice Scalia

Highly regarded conservative Judge Richard A. Posner, of the 7th Circuit Court of Appeals, has taken Supreme Court Justice Antonin Scalia to task for his outspoken dissent in the Arizona immigration decision Monday – especially his singling out of President Obama’s suspension of deportation of young people.  Here is an except from Posner’s Slate article regarding Scalia.

“Justice Scalia says that it ‘boggles the mind’ to think that Arizona ” could not enforce parts of federal immigration law “that the president declines to enforce,” Posner wrote, adding that Scalia also said the federal government was “‘refus[ing] to enforce the nation’s immigration laws.’”

“These are fighting words,” Posner wrote, while “the nation is in the midst of a hard-fought presidential campaign” and “illegal immigration is a campaign issue.”

“The program that appalls Justice Scalia was announced almost two months after the oral argument in the Arizona case,” Posner notes. “It seems rather a belated development to figure in an opinion in that case.”


Attorney General Kilmartin Comments on SCOTUS Decision Upholding Citizens United

Rhode Island Attorney General Peter Kilmartin commented on the Supreme Court decision reversing, without hearing arguments or accepting briefs, a Montana Supreme Court ruling that affirmed the state’s right to impose its own ban on independent spending by corporations.

“Today’s decision is a clear indication that the Supreme Court will not reconsider its Citizens United ruling.  Citizens United has resulted in a torrent of undisclosed corporate and special interest money into the electoral process due to the flourishing of corporate spending.  This presidential election cycle has seen hundreds of millions of dollars thrown into the race on both sides to sway the American electorate, with very little oversight or accountability.  It is undermining the fairness of elections and distorting the electoral process.

“Therefore, the only way to address the damage caused by that decision is to amend the United States Constitution.  I recognize that amending the Constitution is not an easy task and should not be done lightly.  It should only be amended when it is in the absolute best interest of the nation and its citizens.  Undoing the damage of Citizens United is in the best interest of our country, and is the only way to put the electoral process back in the hands of the people, not special interests.”

In April, Kilmartin called on Congress in a letter to amend the U.S. Constitution to reverse the U.S. Supreme Court decision in Citizens United v. Federal Election Commission.  In May, Kilmartin and 22 attorneys general filed an amicus brief asking the Supreme Court to reconsider the 2010 Citizens United decision, citing that unrestricted independent campaign expenditures may distort political races, promote corruption or require corporate shareholders to fund political communication that they oppose.  The states argued that all state laws governing corporate campaign expenditures seek to ensure that such expenditures did not undermine principles of accountability and integrity in state and local elections, while protecting residents’ rights to participate in the electoral process.

Martha Minnow to Speak at Roger Williams Law School

Roger Williams University School of Law will be hosting their annual Thurgood Marshall Memorial Lecture on April 3 and have a great speaker lined up.

Harvard Law School Dean and Professor Martha Minnow will lecture on “Pursuing Justice in Multicultural Societies: Gender, Religion, Conflict and Compromise.”

The event is Tuesday, April 3, 2012 from 4:00 – 5:00 p.m. in the Roger Williams University School of Law Appellate Courtroom 283 located at Ten Metacom Avenue, Bristol, Rhode Island. There will be a reception immediately following lecture. Space is limited. Reservations are required. Please contact the Office of Alumni, Programs & Events at or 401-254-4659.

The School of Law presents its fifth lecture in this series, which honors the memory of Thurgood Marshall, a key architect of the legal strategy that convinced the Supreme Court to declare unconstitutional the doctrine of “separate but equal,” which had allowed racial segregation in public education and many other aspects of American life. Thurgood Marshall later served with distinction and as a protector of civil rights as Solicitor General of the United States and as the first African-American Justice on the United States Supreme Court.

The event is sponsored by Hinckley Allen Snyder LLP.

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.

Legal Battle Ends with Release of Michael O’Laughlin

The Boston Globe reports on the complex criminal trial of Michael O’Laughlin which went from the trial court to the Appellate Divison to the Supreme Judicial Court to the First Circuit Court of Appeals to the United States Supreme Court and back to the US District Court in Massachusetts:

O’Laughlin was convicted of bludgeoning Annmarie Kotowski, a Dalton elementary school teacher, two years earlier in her apartment in Lee. The attack, which authorities theorized had been carried out with a baseball bat, fractured her skull, and she could not recall who beat her.

The state Department of Correction, through Coakley’s office, then asked the US Supreme Court to stay the order while it sought a review of the case by the full court. But Justice Stephen G. Breyer rejected the request on Aug. 26 and said he doubted the full court will hear the case, based on the state’s likelihood of success.

O’Laughlin, who lived two doors down and was a maintenance worker in the complex, was sentenced to 35 to 50 years in prison.

The order was the first of its kind by the circuit and one of only a few such rulings by federal appeals courts in the country, according to O’Laughlin’s appellate lawyer, Kenneth I. Seiger of Brookline, an opinion echoed by other veteran criminal lawyers.

A state Appeals Court panel later reversed the conviction. But the state Supreme Judicial Court subsequently reinstated it, prompting O’Laughlin to file a challenge in the federal courts. The US Court of Appeals for the First Circuit ordered O’Laughlin freed and barred prosecutors from retrying him, saying the evidence was too flimsy and speculative for a jury to convict him.

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.