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Remembering Alice Lee: Alabama Supreme Court justice, former Circuit Court judge share thoughts on a ‘dynamo’
Al.com: Once described as “Atticus Finch in a skirt,” longtime attorney Alice Lee was a woman who broke down barriers and built bridges. And yet, in the wake of her death at 103 on Monday, those remembering her speak of someone far greater than a fictional character created more than 50 years ago.
Five Thirty Eight: While it’s still unclear whether Obama will get to nominate another justice, the Republican gains in November make it unlikely a liberal nominee, such as Justice Thurgood Marshall, would be confirmed. And a nominee like the two Obama-appointed justices currently sitting on the court, Elena Kagan and Sonia Sotomayor, would face a possible filibuster.
Prawfs Blawg: I quite enjoyed Jessica Lowe’s article, Radicalism’s Legacy: American Legal History Since 1998. An economical 12 pages, it surveys developments in American legal history scholarship in the past decade and a half or so, framing it around the continuing influence of Robert Gordon’s famous piece Critical Legal Histories.
Dorf on Law: Last week, Justice Thomas, joined by Justice Scalia, issued a brief statement respecting the denial of the stay application in Maricopa County v. Lopez-Valenzuela. The statement made waves because it criticized the Court’s failure (thus far) to grant certiorari in the same-sex marriage (SSM) cases, even though Maricopa County was not a SSM case.
Constitution Daily: There is no such thing as objective constitutional law, or objective law in any area. Supreme Court justices inevitably must make value choices in deciding cases, and these decisions inherently are a product of their life experiences and views.
Maryland Appellate Blog: Judge Harris impressed upon the gathered attorneys how collaborative the decision-making process is at the Fourth Circuit. Most practitioners understand that the Fourth Circuit is an uncommonly civil – even genteel – environment for practicing law.
Three questions about the legality of the Obama Administration’s anti-sexual assault on campus policies
The Washington Post: Kudos to Yale law professor Jed Rubenfeld for a thoughtful piece in the New York Times explaining why the Obama Administration’s decision to force campus kangaroo court disciplinary tribunals to go full marsupial with regard to sexual assault allegations is a bad approach to reducing sexual assault.
National Law Journal (Subscription required): For U.S. Supreme Court Justice Sonia Sotomayor, retirement is almost certainly years or decades off. But the 60-year-old justice is already thinking about it, and she said recently she’d like to preside over trials again when she retires.
National Law Journal: U.S. Supreme Court Justice Antonin Scalia on Thursday gave a history lesson on the Magna Carta before an annual gathering of conservative lawyers in Washington, keeping any opinions on contemporary high court matters to himself.
IJ Review: That John Gruber is guilty of the crime of Candor in the First Degree is not a matter for the Supreme Court. However, his remarks do highlight the dangerous hubris of those that are ‘smarter’ and ‘know what’s best.’
National Constitution Center: The governing arrangements of religious denominations often reflect matters of faith or doctrine, and those may conflict with principles of property law.
National Review: We the undersigned are strongly committed to the appointment of judges who put the law and the Constitution ahead of their own political and policy preferences. The integrity of the judicial confirmation process and the function of the Senate are essential for the appointment of such judges, which is why we strongly oppose efforts to revive the judicial filibuster.
Washington Post: No, despite what this AL.com headlines (and some other sources say as well). The amendment would largely just restate that courts may not use foreign law in those cases when “doing so would violate any state law or a right guaranteed by the Constitution of this state or of the United States.”
National Law Journal (Subscription required): The U.S. Supreme Court is often accused, rightly or wrongly, of “turning the clock back” on one doctrine or another. But when it came to turning the clock back—literally—at the court building on Monday, it seemed not to be up to the task.
North Carolina judges: Instead of stepping down for refusing to perform same-sex marriage, should stay on the bench
The Christian Post: Over the weekend, many Americans became aware of the now six North Carolina judges who have resigned after being told they will be forced to conduct marriage ceremonies for same-sex couples.
In All Things: As I’ve been teaching American Constitutional Law for the past several years, I have had the opportunity to teach many of these cases to students, and I often find myself thinking, “I really wish everyone were more aware of these,” particularly with regard to some cases that impact important issues in Christian circles.
Lawyerist: There is a lot of discussion lately about the need for lower-cost legal fees. This is an important discussion for lawyers to have, but I think it is also important to stop and reflect on why hiring a lawyer is so expensive in the first place.
National Law Journal: The Department of the Army discriminated against a civilian worker who was transitioning from male to female, the U.S. Office of Special Counsel announced Thursday.
National Law Journal: A federal judge in Washington on Thursday dismissed claims in two lawsuits against the Internal Revenue Service brought by groups who alleged they were improperly targeted while applying for tax-exempt status.
Townhall: I know this from personal experience as U.S. District Court Judge Raymond Jackson has decided the facts don’t matter and the First Amendment is unworthy of consideration in The Radiance Foundation v. National Association for the Advancement of Colored People The NAACP is abusing trademark law to censor me while Alliance Defending Freedom is fighting for my civil rights. Judges gone wild don’t care about the truth. They care about their worldview. Impartiality be damned.
National Law Journal: Surrounded by friends, rivals, judges, family and even some clients, former solicitor general Paul Clement celebrated an enviable milestone Wednesday night: his 75th oral argument before the U.S. Supreme Court.
The Wall Street Journal: Comments made by Justice Ruth Bader Ginsburg in a magazine interview have reignited a long-simmering ethical debate confronting the Supreme Court over when a justice ought to sit out a case.
The New York Times: There are lots of open questions about the road the Supreme Court justices will take to a final decision about whether the Constitution guarantees a right to same-sex marriage. But one thing seems clear: the answer will arrive next June.
Bloomberg View: What happens if conservative Supreme Court justices retire strategically (that is, their departure is timed so that like-minded replacements can be named and confirmed), and liberal justices don’t? The answer is obvious, and depressing for liberals. And yet that appears to be the situation now, and there’s not much anyone can do about it.
The Washington Post: Several news organizations are reporting that Attorney General Eric Holder will step down as soon as his replacement can be named and confirmed. Longtime VC readers may recall that we’ve not always been AG Holder’s biggest fans. Indeed, some of us were critical of Holder even before he was confirmed.
NPR: Eric Holder Jr., the nation’s first black U.S. attorney general, will resign his post after a tumultuous tenure marked by civil rights advances, national security threats, reforms to the criminal justice system and 5 1/2 years of fights with Republicans in Congress.
Slate: One of the oddities of our constitutional system is the random way in which a normal, unremarkable human person can become synonymous with an entire legal rule or principle. The names of the plaintiffs in some of the most famous cases in Supreme Court history may be remembered for centuries. But do we remember their faces?
Via Wall Street Journal (accessible via Google): Those who prevail against the federal government in a lawsuit can sometimes recoup attorneys’ fees under a law called the Equal Access to Justice Act. The government doesn’t have to pay, however, if it can show that its position in the litigation was “substantially justified.”
Slate: Earlier this month, a federal judge ruled BP was not only negligent, but reckless in its operations that led to the 2010 Deepwater Horizon oil spill in the Gulf of Mexico. On Monday, the very same judge issued another order to BP and its legal team—grow up.
National Review: Rejecting incumbent Democrat Robert Cooper, the Tennessee supreme court has selected Herbert Slatery III, the first Republican in state history to serve as the state’s next attorney general, the Tennessean reports.
National Review: Posner was clearly leaving himself wiggle room on the issue, and has used it. At some point between 1998 and 2012, the Blade notes, Posner changed his mind about same-sex marriage, announcing the change in a rambling posting on his blog that cited his newfound conclusions (based in part, it seems, on a Wikipedia entry).
The New York Times: Democrats have reversed the partisan imbalance on the federal appeals courts that long favored conservatives, a little-noticed shift with far-reaching consequences for the law and President Obama’s legacy.
Prawfs Blawg: Erin Morrow Hawley has written a fascinating short piece entitled “The Jurisdictional Question in Hobby Lobby.” Hawley’s basic claim is that all nine Justices in Hobby Lobby made “a serious mistake” in failing to address, much less mention, a jurisdictional problem. This incident calls to mind the Court’s controversial rule against ascribing precedential force to implicit jurisdictional findings.
The New York Times: The Supreme Court received more than 80 friend-of-the-court briefs in the Hobby Lobby case. Most of these filings, also called amicus briefs, were dull and repetitive recitations of familiar legal arguments.
The Washington Post: Some versions of originalism are more elitist and others more populist. For the sake of convenience, I start with the most elitist and work my way through to the opposite side of the spectrum.
The Washington Times: Loretta Rush was formally sworn in Monday as Indiana’s first female chief justice, but her gender hardly was mentioned during the ceremony. “Quite simply, she was the best choice,” Gov. Mike Pence told a crowd of onlookers and media crammed into the law library at the Statehouse shortly before he administered the oath of office to the 56-year-old former juvenile court judge.
Constitution Daily: Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at how the process of picking and processing new Justices of the Supreme Court has only grown more politically sensitive in recent years.
SCOTUS Blog: On September 1, the Court will put into place a new staffing structure for the Clerk’s office. With the retirement of Chris Vasil as chief deputy clerk, that position will be abolished.
Public Discourse: In Robert Bolt’s great play, A Man for All Seasons, Thomas More’s daughter confronts him with the ominous news that Parliament has mandated an oath of allegiance to the king. This oath will probably include some reference to the king as head of the Church, which More knows he could not truthfully affirm. Seeking a way out, he asks about the wording of the oath. Daughter Margaret replies that the wording is irrelevant because “we know what it will mean.” More, ever the lawyer’s lawyer, replies: “It will mean what the words say.”
The Detroit News: Just a few years ago, you could count on one hand the number of unanimous opinions. This term, the Michigan Supreme Court spoke unanimously 15 times – roughly 40 percent of our opinions. What does this mean? In resolving some of the most contentious issues involving interpretation of statutes and our constitutions, the seven justices saw eye to eye.
The Washington post: Ever since a divided panel of the U.S. Court of Appeals for the D.C. Circuit held in Halbig v. Burwell that the PPACA does not authorize tax credits and cost-sharing subsidies for the purchase of health insurance on federally established exchanges, most commentators have assumed that the decision would be reversed by the full D.C. Circuit, rehearing the case en banc. Senior Judge Harry Edwards even called the majority’s decision a “proposed judgment” in his dissent.
Reuters: U.S. judges have their work cut out for them untangling a legal knot created on Tuesday when two federal appeals courts released conflicting rulings hours apart going to the heart of the role the federal government will play in Obamacare.
The Washington Times: President Barack Obama’s health care law is snarled in another big legal battle, with two federal appeals courts issuing contradictory rulings on a key financing issue within hours of each other Tuesday.
Breitbart: President Obama’s un-Constitutional practice of lawlessly ignoring and rewriting laws to suit his left-wing political agenda has come back to bite his signature domestic achievement. Tuesday morning a federal appeals court dealt what USA Today describes as a “potentially major blow” to ObamaCare with a 2-1 ruling against the Obama administration’s end-run around Congress to disburse federal subsidies.
The Washington Post: A handful of times every year, the Supreme Court summarily reverses an opinion below. That is, on the basis of the petition for certiorari and the opposing brief, the court decides to just issue a merits opinion without ever accepting merits briefing or oral argument.
In 2005, pro-life advocates Steve Lefemine and Columbia Christians for Life fought for their right to engage in free speech regarding abortion. The appellate court has now ordered the trial court to award the pro-life advocates the fees they are entitled to both as the victors of the initial law suit as well as those required to appeal the trial court’s obstinate rulings. The matter is now back before the trial court to determine the amount of the award.
SCOTUS Blog: Anyone who follows the Supreme Court knows that its docket is driven by its interest in resolving circuit splits. But harder questions lurk behind that observation. Does the Court usually agree with the majority of circuits’ views on a contested questions, does it side with the minority, or does it reach an entirely independent conclusion?
Journal Star: A federal judge who got national attention last year for telling Congress where to go in his blog has made waves again by offering unsolicited advice to the U.S. Supreme Court on the heels of its controversial Hobby Lobby decision.
Above the Law: This time around, everyone and their mother and their dog mistook the SCOTUSblog Twitter feed for an official Twitter feed of the U.S. Supreme Court in the wake of the Hobby Lobby decision. Members of the public were enraged, and took to the social media platform to shake their virtual fists in anger in tweets directed at SCOTUSblog.
SCOTUS Blog: Today we are happy to present the final SCOTUSblog Stat Pack for October Term 2013. Weighing in at sixty-two pages, this is also our most comprehensive Stat Pack released to-date.
The Washington Times: When the Supreme Court ruled last year in United States v. Windsor that Section 3 of the federal Defense of Marriage Act was unconstitutional, it announced that its “opinion and its holding are confined” to those couples “joined in same-sex marriages made lawful by the State.” Because the definition and regulation of marriage has almost exclusively been within the province of the States, the Court noted repeatedly, it violated equal protection for the federal government not to give the same recognition to same-sex marriages sanctioned by a particular state that it gave to heterosexual marriages. On that reasoning, States that choose a different policy judgment about marriage, one that would preserve marriage as an institution between one man and one woman, should remain free to do so.
National Review: Chris Christie rose to national prominence in 2010 in part on his reputation for taking on unpopular battles, entrenched interests, and vocal critics at town-hall meetings across his heavily Democratic state.
The Federalist: The First Amendment and executive power are the major themes for this term’s remaining cases. Here is the run-down on the most important cases yet to be decided this term. Monday, June 23, is the Court’s next official decision day, with more decisions likely to be handed down later in the week.
AP: Corporations are claiming the right to exercise religious objections to covering women’s contraceptives under their employee health insurance plans, despite the new health law’s requirement that birth control be among a range of no-cost preventive services included in health plans.
Cato Institute: As we head into the last month of the Supreme Court term – the Court releases its final, typically highest profile, opinions the last week of June – it’s time to take a deep breath and survey the lay of the land.
SCOTUS Blog: We are happy to present the next edition of our October Term 2013 Stat Pack. As the Court turns the corner into the last month of the Term, several key trends are beginning to reveal themselves.
Religion Clause: Washington state Governor Jay Inslee announced last week that he has appointed state trial court judge Mary Yu to the Washington state Supreme Court to fill a vacancy created by the retirement of Justice Jim Johnson.
Above the Law: For most law firms — especially newer firms and start-ups — there is no brand name; that leaves the lawyers as the only assets. And for brand-name law firms, if the talent starts to leave, eventually the brand dies.
Orin Kerr at The Volokh Conspiracy: “In the last five years, legal education has witnessed a dramatic reduction in demand. Applications are down, forcing many schools to shrink class size and discount tuition to attract students through “merit” scholarships (and more recently, in rare cases, across-the-board tuition cuts). With income down, schools must cut expenses, the largest chunk of which are faculty salaries. Many schools have encouraged senior faculty to retire, and faculty hiring across the board has been sharply curtailed. As I see it, we’re seeing a return to the period before the boom decade of about 1999-2009. In that window, many law schools had lots of extra cash that they spent on new buildings, better amenities and more and better-salaried professors. The boom is over, and a lot of schools are trying to adjust.”
The Denver Post: “President George H.W. Bush had appointed University of Notre Dame graduate Paul J. Kelly Jr., and Bush’s son George W. Bush selected Jerome Holmes, who has an impeccable conservative track record in writing death penalty and affirmative action case law, Leong said. But Holmes, the first black jurist to serve on the 10th Circuit, did something recently that stunned court watchers: When conservative stronghold Utah petitioned the 10th Circuit to stay a federal judge’s decision striking down that state’s gay rights ban, Holmes said no.”
Politico: “Problems getting judges confirmed by the Senate have been a constant complaint for this White House — but this week, President Barack Obama’s aides are celebrating a confirmation count that outpaces President George W. Bush’s.”