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The Wind and the Rain Don’t Deter the Supremes

With the rest of the federal government shut down today as hurricane Sandy bore down on Washington, the Supreme Court kept to its schedule and heard arguments in two cases. In the first case, pictured above, the ACLU’s Jameel Jaffer argued that American citizens are harmed when their communications are intercepted under the new FISA Amendment Act.

The second case argued today concerns the resale of books. Normally one can sell or otherwise dispose of an actual printed copy without permission from the copyright holder, but in this case a foreign student at a U.S. university paid for his education by having his familly purchase textbooks in Asia at a lower price which he then resold for profit.

Justice Breyer, known for his elaborate hypotheticals, must have had hurricane Sandy on his mind, for during the first argument he asked Solicitor General Verrilli, “All right, fine. That’s why i say certainly….it might not be a storm tomorrow. I mean nothing is certain.” and during arguments in the second case, “Now, for example, I believe there is going to be a storm, but it hasn’t started yet”.

The Court has cancelled tomorrow’s session. Tuesday’s arguments will be heard on Thursday.

Supreme Court Revisits Affirmative Action


Nine years after deciding that race, though not quotas, could be considered in college admissions a new, somewhat more conservative Supreme Court is reconsidering affirmative action. The case against the University of Texas was brought by Abigail Fisher, a Texas high school student who says she was denied admission because of her race.


The first question for Fisher’s attorney, Bert W. Rein, came from Justice Ginsburg, who along with Justices Breyer and Sotomayor, is expected to uphold the Court’s earlier position on affirmative action in college admissions. Justice Kagan, whose empty chair can be seen on the right, is not taking part in the case.

The more conservative members of the Court, who had been mostly silent during Rein’s argument, sprang into active questioning as Gregory Garre took the lectern to defend the university’s program.

Justice Alito, a foe of affirmative action plans who replaced Justice O’Connor, the author of the Court’s earlier opinon in Grutter v. Bollinger, asked Garre, “I thought that the whole purpose of affirmative action was to help students …from underpriviledged backgrounds, …”
6a00d8341cd0df53ef017d3ca40770970c-800wi“But you say …it doesn’t admit enough African Americans and Hispanics …from priviledged backgrounds.”

Replied Garre, “Because, Your Honor, our point is that we want minorities from different backgrounds”

6a00d8341cd0df53ef017ee41951e2970d-piJustice Kennedy, as usual the swing vote on which the case hinges, said, “So what you’re saying is that what counts is race above all.”

The term “critical mass”, refering to the proportion of minorities in the student body, was bandied back and forth with both Garre and Solicitor General Verrilli trying to avoid making it sound like a number.

Justice Scalia to General Verrilli, “So we should stop calling it mass.”

Verrilli, “I agree.”

Scalia, “Call it a cloud or something like that.”


SCOTUSblog’s Amy Howe has the Plain English summary here.

Sandusky Sentenced

Here are my sketches from the sentencing of Jerry Sandusky in Bellefonte, Pa. Tuesday. A little late in posting them, but better late….









Sara Ganim’s story here.


The Lighter Side of a Mixed Case


Carolyn Kloeckner made a mistake navigating the labyrinth required to file a complaint against her former employer, the U.S. Department of Labor, alleging sex and age discrimination. Actually she filed two separate complaints with the EEOC, appealed to the MSPB and missed a deadline‚Ķit’s complicated.

But there were moments of levity as reflected in the arguments transcript and caught in my sketch :

at 17:13

Justice Kennedy, “I’ve probably led a charmed life, but I’ve never heard of a mixed case until this matter came before us”

at 23:17

Justice Kagan, “Mr. Schnapper, if I disagree with everything that you just said, I can still rule for you in this case, right?”

Schnapper, “you can, and you don’t need to address what I just said.”

The case is Kloeckner v. Solis and the transcript is here.

First Monday . . .

…in October. As usual the Justices stood while the Marshal announced the beginning of the Court’s new term. Justice Sotomayor had her large silver earings and bangle and Ginsburg wore one of her giant lace doily things. The only apparent difference this term, Scalia no longer wears eyeglasses.

The Clerk of the Court is standing on the left, while the foreground is occupied mostly by the press.