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Brobdingnagian Class-Action

A gigantic class-action suit brought against megastore Wal-Mart for its biased treatment of female employees seemed to run into trouble in the Supreme Court today.  Wal-Mart took some tough questions from Ginsburg, Sotomayor and Kagan.

Justice Ginsburg to Wal-Mart’s lawyer, Theodore Boutrous : “Isn’t there some responsibility on the company to say, is gender discrimination at work, and if it is, isn’t there an obligation to stop it?”.

But when it was the turn of the women’s lawyer, Joseph Sellers, Justice Kennedy said, “Your complaint faces in two directions.  Number one, …headquarters knows everything that’s going on.  Then in the next breath you say . . . these supervisors have too much discretion.”

Said Justice Scalia, “I’m getting whipsawed here.” ( note: Scalia got into a multi-car fender-bender on his way to court this morning, so he may have been suffering whiplash as well. )

If you really want to know about the arguments read Lyle Denniston’s recap.

I just wanted to use the word brobdingnagian.


One More Cut at Campaign Finance Reform?

Under Arizona’s Citizens Clean Elections Act candidates who accept public funding receive grants matching dollar for dollar ( up to twice their initial grant and with adjustments ) the amounts spent on the campaign of a privately funded candidate.

The lawyer arguing against the Arizona law, William Maurer said, “…this case is about whether the government can turn my act of speaking into the vehicle by which my political opponents benefit….”

When the lawyer for Arizona’s Secretary of State, Bradley Phillips, referred to testimony that never was money withheld from a race for fear of triggering matching funds Chief Justice Roberts cut him off saying, “Oh that, there’s a back and forth about the record and common sense.  As a matter of common sense . . . if you knew that a $10,000 expenditure that you would make . . . would result in $30,000, 40,000, 50,000, depending on how many opposition candidates there were . . ., wouldn’t you think twice about it?

As the arguments were wrapping up Justice Breyer, a supporter of campaign finance reforms, said to the Justice Department lawyer, “Answer this if you wish, don’t if you don’t want to . . . as I hear this argument, what’s going through my mind is we are deeply into the details of a very complex bill.  McCain-Feingold is hundreds of pages, and we cannot possibly test each provision which is related to the others on such a test of whether it equalizes or incentivizes or some other thing, because the answer is normally we don’t know. And,” he continued, “it is better to say that it’s all illegal than to subject these things to death by a thousand cuts, because we don’t know what will happen when we start tinkering with one provision rather than another.  That thought went through my mind as I’ve heard this discussion.”

AP story here.


Bring Your Children Cases to Court Day

The two cases argued before the Supreme Court today involved the welfare of children.  In the first, Turner v. Rogers, the Court was asked if deadbeat dads who fail to pay child support have a right to counsel when facing incarceration.

The second case, J.D.B v. North Carolina, concerned the Miranda warning, and whether the age of a juvenile should be taken into consideration when determining if the child is in custody.  Pictured below is the attorney representing the juvenile, J.D.B.


Among the Justices favoring making age a Miranda factor was Justice Breyer who referred to his dissenting opinion in an earlier Miranda case, Yarbourough v. Alvarado.

Justice Breyer to NC Attorney General Roy Cooper :  “You know the sentence I’m referring to in my dissent, presumably?  We hope.  When I have set forth the test which was not accepted.”

At which point Justice Scalia interjected, “Some people don’t  – – some people don’t read the sentence.  He may not have read it.”

AP story here.


Roberts Court Not So Business Friendly

Until recently the Supreme Court under Chief Justice Roberts has had a reputation of being friendly to business, but in two decisions delivered today the court continues a recent trend of rulings less favorable to business.

In the first opinion, authored by Justice Sotomayor, a unanimous Court said that stockholders could sue the makers of Zicam nasal spray.

And in a 6-2 opinion ( Justice Kagan took no part ) Justice Breyer wrote that a worker at a plastics factory was protected from retaliatory actions.

Click here for Robert Barnes’ WaPo article.


I stuck around to hear/watch arguments in a case,  Borough of Duryea v. Guarnieri, concerning the First Amendment’s petition clause.  Some of the historical precedent cited reached back as far as Robin Hood’s Sherwood Forest.   Respondent’s lawyer, Eric Schnapper :  “If you had a problem in England, if the undersheriff took your cow, you could go to the sheriff, but historically, that wasn’t called a petition.  If you went to the king, that was a petition,”

Now that’s entertainment!