Category Archives: Bench & Bar

Boston Globe: The high court, in its 3-2 decision, said the state did not prove the lower court erred in leaving the old law in effect pending resolution of the case. Two justices dissented, arguing new laws are presumed constitutional until found otherwise and thus the law should be allowed to be implemented.

Washington Post: Secretary of State Jon Husted asked the U.S. Supreme Court to decide whether the state Legislature or federal courts should set Ohio election laws.

The SCOTUS order list is here.

Eugene Volokh at the Volokh Conspiracy: When NFIB came down, some commentators argued that Chief Justice Roberts’ conclusion that the mandate was not authorized by the Commerce Clause and Necessary and Proper Clause was mere dictum, and therefore not binding precedent for the lower courts. I criticized that view here. It’s worth noting that the Ninth Circuit just treated the Roberts’ Necessary and Proper reasoning from NFIB as if it were binding. In upholding the Sex Offender Registration and Notification Act sex offfender registration requirement, they relied heavily on NFIB’s interpretation of the Necessary and Proper Clause . . .

Seattle Post Intelligencer: Iowa Supreme Court Justice David Wiggins isn’t well known outside the legal community of his state, and even inside that group, isn’t particularly popular. But the question of whether he should keep his job has become one of the most fiercely contested judicial issues on the Nov. 6 ballot because of what he symbolizes in the debate over gay marriage and the role of courts.

Al.com (includes video): “We cannot continue to borrow the future of our children and our grandchildren or we will suffer the consequences. We can’t keep going into debt. We can’t keep disparaging our military and promoting things like same-sex marriage, L-G-B-T. To hear the President of the United States say that we are promoting L-G-B-T. Let’s think about what that is: lesbian, gay, bisexual and transgendered rights,” Moore said. “Same sex marriage will be the ultimate destruction of our country because it destroys the very foundation upon which this nation is based. Divisive, I’ve been accused of being divisive I’ll tell you what’s divisive. It’s this Democratic platform,” Moore said.

LifeSiteNews: Operation Rescue has been informed by the Office of the Disciplinary Administrator that ethics complaints filed against Kansas Attorney General Derek Schmidt and Johnson County District Attorney Steve Howe have been docketed and will be investigated.

Reuters: Facing unprecedented political opposition, three Florida Supreme Court justices are fighting back against Republicans and conservative activists seeking to change the balance in the state’s highest court by getting voters to fire them. Justices Fred Lewis, Barbara Pariente, and Peggy Quince face what is called a “merit retention” vote in November.

AP: “The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state,” Scalia said at the American Enterprise Institute.

MarketWatch: Tucked into the U.S. Supreme Court’s busy agenda this fall is a little-known case that could upend your ability to resell everything from your grandmother’s antique furniture to your iPhone 4.

William J. Haun at National Review Bench Memos: If it is true that much unhappiness in the world has come because of things left unsaid, then we would be wise to turn our attention to an issue left unsaid by both Governor Romney and President Obama during their respective convention speeches: the role of the courts, and their state after four years of liberal judicial nominee

Thomson Reuters: Bigger bucks come to Supreme Court clerks who wait. Top U.S. law firms are offering $280,000 signing bonuses to lure the young attorneys who work with America’s nine top judges. But many do stints with the government first. A new Breakingviews calculator shows how that path can be financially smarter over the long run.

Reuters: A Pennsylvania judge’s decision to block a voter ID law on Tuesday is only the latest in a series of setbacks for new state laws that require voters to show identification before voting. Voter ID laws have also been turned back in Wisconsin and Texas this year and some others may also not go into effect before the U.S. presidential election just five weeks away.

Federalist Society Blog: Today in Washington, D.C. Justice Scalia spoke about his new book Reading Law: The Interpretation of Legal Texts (co-authored by Bryan A. Garner) at an event co-sponsored by the Federalist Society and AEI. He began by emphasizing that “All of the great early justices were originalists and textualists.” He said it was unfortunate that that tradition is rare in legal education: “Text is not taught in law schools. . . . Canons [of interpretation] are picked up haphazardly.” In his view, it is unfortunate that first year courses focus on the Common Law even though most law has been codified.

NY Times: In a bid to remake Florida’s judiciary, Republicans are asking voters to oust three state Supreme Court justices and give the legislature greater power over Supreme Court appointments and judicial rules of procedure.

ABA Journal (includes audio): About a thousand candidates—most if not all of whom have top grades, fascinating backgrounds and served as law review editors—apply for U.S. Supreme Court clerkship slots each year. How do the 36 who get tapped make the cut? Reputation, coupled with a bit of luck, goes a long way, guests tell ABA Journal Podcast moderator Stephanie Francis Ward.

Adam Liptak at the NY Times: In June, the Supreme Court pulled off a neat trick. By upholding President Obama’s health care law, it simultaneously bolstered public support for the law and hurt its own reputation.

Christian Science Monitor: On Day 1 of its term, the US Supreme Court heard a case involving allegations by 12 Nigerians that a foreign oil firm abetted human rights abuses in Nigeria 20 years ago. Alien Tort Statute, originally aimed at allowing legal action against pirates, lies at heart of the case.

Des Moines Register: “If he’s under a majority, I think that is a good sign for us,” Vander Plaats said, noting that retention opponents spent much of their time in 2010 educating voters on how a retention election works. “I really believe we’re in better shape than we were two years ago.”

U.S. Court of Appeals for the Fifth Circuit: On October 1, 2012, Judge Carl E. Stewart of Shreveport, Louisiana, becomes the Chief Judge of
the United States Court of Appeals for the Fifth Circuit, which hears appeals from federal courts in
Louisiana, Texas, and Mississippi. Judge Stewart succeeds Chief Judge Edith H. Jones,

AZ Central: Since she took office in January 2009, 35 of her 38 appointments to the Arizona Supreme Court, Court of Appeals, and the Superior Courts of Maricopa and Pima counties have been Republicans, according to records from the Arizona Supreme Court, which oversees all courts.

AP: The Supreme Court term that begins Monday holds the prospect for major rulings about affirmative action, gay marriage and voting rights.
A look at cases the court already has agreed to hear and other top cases in the pipeline . . .

AP: The Supreme Court won’t stop Minnesota from blocking its judicial candidates from endorsing candidates in other elections and soliciting campaign contributions.

Carrie Severino at Politico: How can the Supreme Court remain subject to the will of the people when it overturns laws passed by the people’s elected representatives? The answer is actually simple — by overturning only unconstitutional laws. But behind this simple answer lies two fundamental assumptions. First, that the Constitution itself represents the will of the American people, indeed, in its highest form. And second, that Supreme Court Justices must faithfully apply the text and original understanding of the Constitution.

Here.

Texas Lawyer: Fifth U.S. Circuit Court of Appeals Chief Judge Edith Jones says she will relinquish the “chief” title on Oct. 1, three months before her seven-year term was scheduled to end. Fifth Circuit Judge Carl Stewart will replace Jones as chief. Judges become chief based on senio

Wall Street Journal (via Google): Wisconsin Governor Scott Walker’s recall victory in June was a stinging defeat for organized labor. But just when Wisconsinites thought they were getting past this fight, the left is staging a last gasp coup in the courts. On Monday, the Seventh Circuit Court of Appeals in Chicago heard oral arguments in a federal case challenging the law’s limits on collective bargaining for government unions

Findlaw: The goal of most law firm associates is to make partner. But what about junior partner? Is that worth striving for too? Obviously in some ways junior partner is a worthy title if only because it’s the stepping stone to become a full or senior partner. For some, it may be a goal in itself.

Harvard Law School (includes video): During the event, their discussion touched on many topics ranging from Kagan’s current reading group at HLS on the Supreme Court’s 2011 Term to courtroom issues—including the role oral argument plays and the use of cameras in the courtroom. Said Kagan when asked about the role of the justices’ clerks: “They’re a fount of ideas, they’re a fount of information. They wander around the building and find out a lot about what other people are thinking. There’s a kind of clerks gossip network, and I encourage them to schmooze.”

SCOTUS Blog: The Supreme Court opens its new Term at 10 a.m. on Monday, and starts with one hour of oral argument on the reach of a 1789 law that seeks to impose liability in U.S. courts on those who …

Washington Times: Republican senators on Wednesday joined a lawsuit arguing President Obama violated the Constitution when he used his recess appointment powers earlier this year to fill several controversial jobs.

NBC: There are still 42 days and four debates left before the presidential election and many signs point to a close outcome, but recent polling both nationally and in key battleground states like Ohio has conservatives concerned about the impact President Obama could have on the judiciary in a second term.

SCOTUS Blog reports.

Business Week: The U.S. Supreme Court upheld West Virginia’s congressional voting boundaries, saying the population among districts can vary to protect incumbents and keep counties and cities intact. In an unsigned opinion with no dissents . . . | SCOTUS Blog report and link to the opinion.

Findlaw: As a 1L, figuring out when to start your summer job search is tricky. You’re still trying to keep up with your new schedule of reading, while trying to wrap your brain around new concepts like the much-dreaded Rule Against Perpetuities.

Wall Street Journal: Law school graduates aren’t the only ones saying less emphasis should be placed on law school rankings. Justice Clarence Thomas went on record Friday criticizing the popular U.S. News & World Report list.

Blog of the Legal Times: The Senate confirmed Gonzalo Curiel for the Southern District of California and Robert Shelby for the District of Utah, posts that are considered judicial emergencies because of the workload faced in the districts.

Washington Post: U.S. Supreme Court Justice Elena Kagan gave University of Richmond law school students and faculty a firsthand account of the inner workings of the nation’s highest court Thursday, covering topics ranging from the influence and role of the justices’ clerks to her own opinion-writing style.

The Independent Record: While a federal court says political parties can now endorse nonpartisan judicial candidates in Montana, the two candidates for an open state Supreme Court seat said this week they won’t accept the endorsements — because a state judicial ethics code forbids it.

Gainesville.com: Thomas told students to stay positive and not give in to the idea that those attending Ivy League law schools are better than they are. The Ivy League-educated can be seen as a new form of nobility, he said, but are no smarter or more capable than any of the students sitting in the courtyard with him.

How Appealing reports.

Business Week: New York will require lawyers to perform 50 hours of pro bono work as a condition for getting a license under a rule that will take full effect in 2015, judicial officials said Wednesday.

Statesman.com: Texas Supreme Court Justice Dale Wainwright will step down at the end of this month to join the Bracewell & Giuliani law firm’s Austin office, the court announced Wednesday.

Reason.com: Does the Takings Clause still have any teeth left at all? We may soon learn the answer. On October 3 the Supreme Court will hear oral argument in the case of Arkansas Game & Fish Commission v. United States. At issue is whether a series of recurring floods sanctioned by the U.S. Army Corps of Engineers qualifies as a Fifth Amendment taking.

AP: With four justices in their seventies, odds are good that whoever is elected president in November will have a chance to fill at least one Supreme Court seat. The next justice could dramatically alter the direction of a court closely divided between conservatives and liberals.

Huffington Post: Ginsburg said with a smile that she couldn’t answer the question. She said she could not talk about matters that would come to the court, and that the Defense of Marriage Act would probably be up soon. “I think it’s most likely that we will have that issue before the court toward the end of the current term,” she said.

American Lawyer: According to a new survey conducted by legal search consultant Major, Lindsey & Africa and Am Law Daily affiliate ALM Legal Intelligence, partners at Am Law 200, NLJ 350, and American Lawyer Global 100 firms saw their annual compensation rise, on average, 6.4 percent to $681,000 over the past two years. The jump was apparently driven, at least in part, by an uptick in the average rate those partners are billing, from $555 per hour in 2010 to $585 today.

Balkinization: Of the dozen-plus misrepresentation lawsuits filed against law schools by their former students, in recent months three have been dismissed (several have survived motions to dismiss and are in discovery). The core basis for the dismissal is the same in all three: prospective students cannot reasonably rely upon employment data posted by law schools . . . These three law schools, and others facing similar suits, undoubtedly count these decisions as victories. But I cannot shake the sense that they mark a deep wound to the standing of law schools.

St. John’s Law School: From the contraception mandate in the Affordable Care Act to the so-called “ministerial exception” to the civil rights laws, religious liberty issues figure prominently in the current presidential campaign. Please join us for an informative debate on these issues between two leading law and religion scholars. Time will be reserved for audience Q&A.

Reuters: If words alone must determine outcome, let’s take a look at what Scalia had to say when Adler asked a question posed by an audience member who wanted to hear the justice’s opinion on term limits for judges. Scalia called term limits “a solution without a problem,” arguing that, in his experience, William Douglas is the only justice who stayed on the Supreme Court too long. The question also led Scalia to muse, however, on how judicial salaries affect the composition of the federal judiciary. “The salaries of federal judges are so low that you’re not getting the best lawyers anyway,” Scalia said. “You’re (not) getting the, the best private lawyers. You may be getting good people, but they’re people who have been an assistant U.S. attorney, then they’re … you know, a minor state judge, then a bankruptcy judge, and then a magistrate judge. And, you know, they finally get appointed to a federal district court. A huge percentage of our federal judges now have never practiced law privately.”

Volokh Conspiracy: In a recent public forum, Supreme Court Justice Clarence Thomas made news by conceding that blacks were not part of “We the People” at the time of the Founding in the 1780s . . .

Justin Dyer at Public Discourse: Slavery was a great evil, but the Constitution was neither its source nor its guarantor.

PBN.com: Although it may be surprising to see tiny Rhode Island in a legal fight with the U.S. Justice Department over the custody of an accused murderer – a battle that could go all the way to the U.S. Supreme Court – in many ways it befits the state’s unique political geography.

SCOTUS Blog’s Petition of the Day is the Windsor case.

Ammon Simon at National Review Bench Memos: The New York Times last week denounced the West Virginia supreme court’s decision to deny Allen Loughry, a candidate for their court, supplemental public campaign financing; the financing would have violated the political speech rights of his opponent, Justice Davis.

Blog of the Legal Times: Senate Republicans have concerns about something in the background of Justice Department nominee William Baer, and this week they are considering taking the unusual step of discussing them in secret.

ABA Journal: Justice Antonin Scalia was “enraged” when Chief Justice John G. Roberts Jr. switched his vote and created the majority needed to uphold the Obama administration’s health care law, according to a new book by journalist Jeffrey Toobin.

Boston Globe: U.S. Supreme Court Justice Samuel A. Alito Jr. expressed frustration Friday at what he said were inaccuracies in the media about the court and its decisions, saying it’s difficult to sit by when opinions are misinterpreted.

National Journal: Time Magazine named Olson one of the 100 most influential people in the world in 2010. His high profile cases have included the Bush v. Gore recount in 2000 and the 2009 lawsuit against Proposition 8, California’s constitutional amendment banning same-sex marriage.

The link to the broadcast is here. Justice Scalia and co-author Bryan A. Garner will discuss their new book: Read the Law: The Interpretation of Legal Texts. Hat tip: SCOTUS Blog.

Radio Free Europe: Russia’s Supreme Court has ruled that a controversial ban on gay propaganda does not extend to public demonstrations and discussions of gay rights.

Sacramento Bee: The 10th Circuit Court of Appeals said Thursday the constitutional amendment that created a nominating commission more than a half century ago is a testament to the state’s commitment to judicial independence.

Above the Law: Most SCOTUS clerks come in as third-year associates (at least), based on credit for their two (or more) clerkship years. Assuming a firm is on the standard Biglaw salary scale, that’s a base salary of $185,000. Add that to $280,000, and you’re looking at $465,000. Toss in another $15,000 — the year-end bonus for a third-year associate, according to the 2011 Cravath scale — and you’re looking at total cash comp of $480,000. Very nice.

U.S. Chamber of Commerce: The 2012 State Liability Systems Ranking Study was conducted for the U.S. Chamber Institute for Legal Reform to explore how fair and reasonable the states’ tort liability systems are perceived to be by U.S. businesses.

Radio Iowa: New poll: 48% of Iowans support court’s same-sex marriage decision
The poll found 48% of those surveyed agreed with the court’s decision on that same-sex marriage case, a dramatic shift compared to a 2009 survey which found 58% disagreed with the decision. The poll was commissioned by the “Justice, Not Politics” group and released to The Cedar Rapids Gazette . . .

AP: Supreme Court Justice Clarence Thomas says the same arguments the Founding Fathers fought over during the creation of the United States are still raging today.

SCOTUS Blog has listed Brewer v. Diaz as its Petition of the Day. Links to Center for Arizona Policy Amicus prepared by Alliance Defending Freedom Attorneys.

Charlotte Observer: HHS Secretary Kathleen Sebelius violated federal law when she made “extemporaneous political remarks” during a February speech to the Human Rights Campaign Gala in Charlotte, the U.S. Office of Special Counsel ruled Wednesday.

Blog of the Legal Times: Senate Judiciary Committee Chairman Sen. Patrick Leahy (D-Vt.) had just one reaction to the colorful testimony Wednesday on Capitol Hill from Jones Day partner Michael Carvin: “We should probably give you the award for saying the highest level of sarcasm we’ve heard before this committee in a long time.”

Gregg Nunziata at USA Today: The stakes are high in this presidential election, and one of the most consequential questions before the voters concerns the branch of government that is not officially on the ballot. In November, Americans will set the direction of the U.S. Supreme Court for decades to come.

Blog of the Legal Times: With a confirmation of a woman to the District Court of the Southern District of Iowa late Monday afternoon, Obama had confirmed as many women to the federal bench in his first term—72—than George W. Bush did in his two terms in office, a White House spokesman said in an email to media.

USCourts.gov: The Judicial Conference of the United States today agreed to close six non-resident federal court facilities—the latest in a series of cost-cutting measures implemented by the federal Judiciary’s national policy-making body.

Carrie Severino at National Review: Last Friday the West Virginia Supreme Court stopped Allan Loughry, a candidate for the West Virginia supreme court, from receiving additional public funding — funding that was triggered after the campaign expenditures of Mr. Loughrey’s opponent, Justice Robin Davis, crossed a certain threshold. The court found, in part, that because Mr. Laughrey’s additional public funding could neutralize Justice Davis’s campaign expenditures, the funds would violate Justice Davis’s political speech rights.

Jonathan Adler discusses the issue at the Volokh Conspiracy.

Heritage Foundation: The Supreme Court’s last term ended with a bang, but the upcoming term is shaping up to be arguably as significant. Just days before the High Court’s next term begins, The Heritage Foundation will preview the likely blockbuster cases, with Supreme Court luminaries Paul Clement and Tom Goldstein . . .