Novalawcity

The New Administration and the Supreme Court

The news that Justice Ruth Bader Ginsburg was operated on for pancreatic cancer yesterday has kicked up the level of speculation about the possibility of President Obama making an appointment to the Supreme Court after the end of its present term.  Many feel that he would be very likely to appoint a woman, and the names that have been mentioned include Federal Appeals Court judges Sonia Sotomayer and Diane P. Wood, along with Elena Kagan, who was dean of Harvard's law school and has been nominated to be Solicitor General.  See the story at The New York Times.

Florida Supreme Court Vacancy Filled

Governor Crist has appointed another Florida Supreme Court justice, Judge Ricky Polston, of the First District Court of Appeal, to succeed the retiring Justice Kenneth Bell.  Two more Supreme Court Justices are slated to step down early next year.  In naming their successors, Crist will have appointed a majority of the justices on the court.

Polston is an elder of the Christian Heritage Church, which is part of the International Pentacostal Holiness Church.  He teaches law as an adjunct professor at Florida State University.  See the story at The Florida Bar News

This year's important Supreme Court decisions

In case you want to catch up or refresh your memory, the New York Times has posted summaries of the most important opinions of the Supreme Court's 2007-2008 term.

(edited to add)

Linda Greenhouse's analysis of the term is also available.  It's likely her last, as she is retiring.  Visual thinkers and others may appreciate this illustration of the term's major rulings.

Tip for the latter two links: Southern District of Florida blog.

Hooray for Habeas Corpus!

Apparently our good friend and favorite civil liberty,the Writ of Habeas Corpus, is making a comeback.  In a 5-4 decision, the Supreme Court ruled Thursday that detainees held at Guantánamo Bay have the right to challenge their detention in U.S. civilian courts.  Today's ruling is the third time that the Court has ruled in favor of the detainees.

In writing the majority opinion, Justice Anthony Kennedy said, "The laws and Constitution are designed to survive, and remain in force, in extraordinary times."  Brilliant.

The Court not only affirms that the detainees have rights under the Constitution, but that the system the Bush administration has put in place to classify them as enemy combatants and review those decisions is inadequate.  View the entire slip opinion. (Adobe Acrobat required)

Baseball: you may fantasize freely

Linda Greenhouse reports that the Supreme Court has rejected Major League Baseball's appeal in its case seeking to require fantasy baseball leagues to pay licensing fees for using MLB's player names and stats.

In its appeal to the Supreme Court, Major League Baseball Advanced Media argued that in balancing the right of publicity against the First Amendment, the appeals court had given too much weight to the First Amendment.

The “right of publicity” is a concept based on state law — in this instance, Missouri law — and the appeal argued that the federal appeals court had ignored the way the Missouri state courts would have approached the issue. The decision “resulted in a judicial refusal to enforce state-law publicity rights,” the appeal said.

Back in April, the New York Personal Injury Blog reported that three of the Justices--Alito, Breyer, and Stephens--recused themselves from the case due to their participation in the high courts fantasy baseball league, Articles for Deletion.  However, Justices Ginsburg and Scalia, who play on the same team in the fantasy league along with a federal marshall, did not recuse themselves.

For more baseball-Supreme Court fun, check out Oyez Baseball, an online game that combines baseball and legal trivia.  I would imagine the Justices would be quite good at it!

Scalia to lawyers: read good literature!

Among other tips that come out of the ABA Journal's interview with Justice Antonin Scalia and Bryan Garner, authors of the new book Making Your Case: the Art of Persuading Judges, is this one:

Scalia: ....the average practitioner is not going to be reading Grant Gilmore and Charles Alan Wright and Lon Fuller. He’s going to be reading some miserable judge who issued a terribly written opinion, the only virtue of which is that it’s authoritative. And that is, as we point out in the book, one reason legal writing is so turgid and generally so bad—because we are reading the worst instead of the best.

What we must read is not selected on the basis of whether it’s well-written or even, for that matter, on whether it’s well-reasoned. It’s authoritative and that’s why we have to read it. You read enough of this stuff, and you begin to write that way.

One of the more important recommendations in the book is that lawyers read other stuff. Read good literature, good current literature. If you read only legal opinions, you’re going to write like legal opinions—which is not what you want to do, generally.

Other topics discussed include brevity of briefs, knowing your audience, oral arguments, use of humor, and awareness of when a judge is trying to help you out.  ABA Journal also has an excerpt from the book with some writing tips (n.b. Scalia and Garner acknowledge that their advice often differs from that of other authorities), as well as a transcript of the complete interview in text and audio. Whatever you think of Scalia, if the interview is anything to go by, the book will be an enlightening and enjoyable read.

The library's copy of Scalia and Garner's book is on its way!

New Supreme Court wiki

From the authors of SCOTUS Blog comes another tool for keeping up with the Supreme Court, SCOTUS Wiki.

To learn more about the goals of the project and why the creators of the site chose the wiki format, read the About SCOTUS Wiki page.

Thanks to the University of Baltimore Law Library Blog for the tip.

Supreme Court and 401(k) case

On Monday, the Supreme Court heard a case (LaRue v. DeWolff, Boberg & Associates Inc., No. 06-856) to consider whether individuals can sue if an employer or its agent mishandles a 401(k) account.  The appeals court ruled that the applicable law only allows lawsuits when the whole plan is mismanaged, rather than individual accounts. As Linda Greenhouse reported,

Several justices pressed the lawyer on the other side, Thomas P. Gies, to explain what relief an employee in Mr. LaRue’s position might receive if he could not bring an individual lawsuit. Mr. Gies said that under a different section of Erisa, an employee could seek a court order for the mishandled trade to be executed.

“But it’s much too late,” Justice Ruth Bader Ginsburg objected. “It’s over and done. It wasn’t made.”

That might be true, Mr. Gies acknowledged, but “Erisa is a statute that provides for limited remedies.”

“We think it’s unlikely,” he said, “that Congress intended every one of these ‘he said/she said’ cases to give rise to a cause of action for damages. There would be no end to the kinds of claims that one could imagine.”

Is there a de facto death penalty moratorium?

That's a question explored by Linda Greenhouse in the New York Times today.  She observes:

The Supreme Court has granted two stays of execution and refused to vacate a third in the three weeks since it agreed to hear a challenge to Kentucky’s use of lethal injection.

. . . .

The top criminal court in Texas, a state that accounts for 405 of the 1,099 executions carried out in this country since 1976, has indicated that it will permit no more executions until the Supreme Court rules, sometime next spring. The Nevada Supreme Court this week postponed all executions in that state. The governor of Alabama gave one inmate a 45-day reprieve. The country’s most recent execution took place in Texas on the night of Sept. 25, hours after the Supreme Court announced its review of the Kentucky case.

Supreme Court double round-up

Monday marked the start of the new Supreme Court term, and two law library blogs have rounded up a variety of resources for court watchers.

The Law Librarian blog lists a variety of overviews of the term, and examinations of cases and issues facing the court.

The Ross-Blakley Library blog points to newspapers and websites, including the Supreme Court website, that will provide current information as the term unfolds.