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.
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
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)
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.
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
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: ....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!
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.”
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