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Baseball Bats and Rotten Tomatoes

The lawyer for a home mortgage loan fraudfeasor (I learned a new word today) had a number of colorful hypotheticals tossed at him by the Justices as they tackled a question of restitution. Here’s what he had to juggle, starting with Justice Breyer who is the Talmudic scholar of hypotheticals:

Breyer: “Mrs. Smith, I have a bridge I’d like to sell you.”. . “But I also gave her my valuable Babe Ruth bat.”

Alito: “Suppose what the person who perpetrated the fraud returns is a truckload of tomatoes . . . and by the time the tomatoes can be sold they’re all rotten.”

Scalia: “You’re really confusing me. I . . I . .both the baseball bat and the truckload of tomatoes?”

The case is Robers v. United States

 

 

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Justices Hear Arguments On EPA’s “Tailoring Rule”

Even before the Justices took the bench for what might have, mistakenly, seemed like a blockbuster argument on global warming – there was even a demonstrator in polar bear costume on the plaza – the spotlight shifted to the Court’s decision not to hear two NRA challenges to gun regulation laws.

Today’s case, actually six different lawsuits rolled into one, was not about the Environmental Protection Agency‘s power to regulate greenhouse gases. That was settled seven years ago in Massachusetts v. EPA. The arguments heard by the Justices today focused on the EPA’s “tailoring rule” under which the agency adjusts, or tailors, the threshold at which certain pollutants must be regulated.

Under the Clean Air Act limits were established for stationary sources of pollution such as factories and refineries, but the limits for those traditional pollutants like sulfur and nitrous oxides, 100-250 tons per year, are much too low for greenhouse gases which are emitted in much higher volumes.

It is interesting that the usually pro-regulation side supporting the EPA was today arguing for less regulation, saying that applying the limits, without tailoring, would mean regulating every mom & pop factory and overburden an already overburdened bureaucracy. The EPA’s opponents, on the other hand, hope that overturning the rule and expanding regulation to include small sources will cause a backlash against the agency.

Lyle Denniston’s recap of the arguments in Utility Air Regulatory Group v. EPA is here.

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“Don We Now Our Gay Apparel . . . “

. . said Justice Scalia as he delivered the opinion in Sandifer v. U.S. Steel, explaining the use in this case of the somewhat archaic terms “don” and “doff”, as in “a well bred gentleman still doffs his hat to a lady”.In this case the union had an agreement with U.S. Steel that “time spent in changing clothes at the beginning or end of each workday” would not be compensated. The petitioners argued that they weren’t changing clothes, but donning and doffing protective gear. The Court did not go as far as U.S. Steel wanted and say “everything that a person wears” is clothing, but everything else is “de minims non curate lex”*.

* Trans.: the law does not take account of trifles

There once was a lawyer named Rex
With minuscule organs of sex.
        Arraigned for exposure,
        He maintained with composure,
"De minimis non curat lex."

 

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Posted in Opinions, Supreme Court

SCOTUS In The Cold

Even the turtles holding up the Bronze lamps on the Supreme Court plaza seemed to want to pull in their heads from today’s frigid temperatures.

Inside, the Justices heard arguments in two puzzling cases.The first, Paroline v. U.S., presented the Court with the problem of apportioning restitution to victims of child pornography. In this digital age, where the same image can be downloaded by many participants in the sexual exploitation of a child, to what extent is each viewer responsible for the humiliation and damage suffered?The lawyer for the victim, Utah law professor Paul Cassell, in this case insisted that each perpetrator should be responsible for the entire $3.4 million award. “You’re not claiming - or are you” asked Justice Kagan, “that she’s been victimized to the tune of $3.4 million as a result of this particular defendant’s offense?”

“He contributed to the entire amount,” said Cassell.

The second case, Abramski v. U.S., concerns the so-called “Straw Purchaser” law that is supposed to prevent sales to those not entitled to own firearms, such as convicted felons, by requiring gun dealers to have buyers fill out a form. The form asks, ”Are you the actual transferee/buyer of the firearm listed on this form?”Justice Breyer, pictured above on the left, known for often posing convoluted hypotheticals had an esoteric analysis of the term ‘Straw Purchaser’. “It comes from ‘straw bail’,” he told petitioner’s lawyer, RichardDietz, “where someone else put up the bail and it was called straw because the people who made a career of that used to wear straw in their shoes. Interesting.”

“He made that up,” Justice Scalia interjected.

Lyle Denniston’s analyses of the arguments are here, and here.

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The 35 Foot Abortion Clinic Buffer Zone . . .

. . . and the considerably larger Supreme Court chamber.A challenge to the Massachusetts law creating a 35 foot buffer zone around the entrance to abortion clinics, McCullen v. Coakley, was argued before the Supreme Court today. The last time the Court visited this issue was in 2000 when it approve a protective “bubble” for anyone entering a clinic. Catholic University law professor Mark L. Rienzi, pictured above, argued for the 77 year-old grandmother, Eleanor McCullen, who has stood outside a Boston Planned Parenthood clinic a couple days a week for the past ten years, or so.

Justice Scalia repeatedly made the point that “it’s a counseling case . . . not a protest case”, and that 35 feet was too far to hold a conversation. Justice Kagan seemed to agree when she said to Assistant Attorney General Jennifer Miller, “. . it’s more than a few feet. You know, 35 feet is a ways. It’s from this bench to the end of the court.” At this several in the courtroom started to scratch their heads. According to the visitor’s guide the courtroom measures 82 by 91 feet.

Lyle has the story here.

 

 

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Today’s Sketches

No single big story at the Supreme Court today. That will come tomorrow when the Court hears the first abortion argument it has considered in several years regarding the buffer zone around clinics in Boston. So tune in tomorrow.

In the meantime here a today’s sketches of one opinion, delivered by Justice Ginsburg, and the two morning arguments (there was a third argument in the afternoon – unusual these days – but I didn’t attend).Justice Ginsburg announced the opinion of the Court that Daimler, the parent company of Mercedes-Benz, could not be sued in California under the Alien Tort Act for crimes committed by its Argentinian subsidiary during that country’s “Dirty War”. I covered the arguments here.

The first argument, Executive Benefits v. Arkinson, about whether the power granted bankruptcy judges violates Article III of the constitution went in one ear and out the other, so you’ll have to read about it here. Same thing with the next argument, Brandt Revocable Trust v. U.S., although I did catch that it might have something to do with “Rails to Trails” and the possibility that someone might ride a bicycle through your house. SCOTUSblog’s Lyle Denniston recaps the argument here.

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Posted in Arguments, Opinions, Supreme Court

Recess Appointments Draws A Crowd (and so do I)

The Supreme Court chamber was packed today as lawyers argued, in NLRB v. Canning, the Constitution’s Article II clause on recess appointments. White House spokesman, Jay Carney, lately sporting a beard, sat on the same bench , though at different ends,as Senate Minority Leader Mitch McConnell.

At the conclusion of the arguments, as spectators and lawyers exited and the lawyer for the next case to be argued took his place at the lectern Chief Justice Roberts said, “We’re still here”.

Below are a few more sketches from the argument.

You can read about it here.

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No SCOTUS Sketches This Week

A family emergency has me out of town. I hope to be back at the Court next week. In the meantime here’s a doodle from the 2011 Term.SCOTUS sketch, 4/18/12

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Gambling on Nevada Venue Not a Sure Thing

When professional gamblers Gina Fiore and Keith Gipson passed through the Atlanta airport on their way home to Nevada after a gambling trip to Puerto Rico a search of their bags turned up $97,000 in cash. The DEA was contacted and Fiore and Gipson were detained for questioning. They told Anthony Walden, a local police officer deputized as DEA agent, that they learned the cash legitimately at the gambling tables. Nevertheless the cash was seized and Walden told them that they would get it back once they provided proper documentation.

Upon their return to Las Vegas they sent the necessary documentation, but the DEA continued to hold on to the cash based on a questionable affidavit drafted by Walden. Eventually the money was returned and the gamblers filed a lawsuit against officer Walden in Nevada federal court.

The question before the Supreme Court at Monday’s argument in Walden v. Fiore is whether the court in Nevada has jurisdiction over an officer doing his job in Georgia and where should the case be tried. The above sketch shows Walden’s lawyer, Jeffrey S. Bucholtz, arguing that the case belongs in Georgia.

Tom Goldstein, on the other hand, argued that the injury occurred in Nevada and, as the Ninth Circuit concluded, should be tried there. He concluded by warning, “. . . if that’s not enough, you are closing the door absolutely to all internet cases . . . where someone sits at the computer and targets someone in another State.

 

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A Lively Argument on Government Prayer

Prayer at public government sessions was back before the Supreme Court this morning. It’s been thirty years since the Court last visited the issue when it ruled that it was constitutional for the Nebraska legislature to begin the day with a prayer. This time the prayer is at local government meetings of the Town of Greece, New York.

There was enough interest in the case for a group of law students spent the night in line outside the Court. Once they finally got their seat passes this morning, the Court’s cafeteria was a good place for a nap.Also in the cafeteria were several clergy, and I spied a group of nuns in the courtroom admiring the friezes, buttocks and all.

Attorney Thomas Hungar argued for the Town of Greece. As Hungar began Justice Kagan interrupted him to read an overtly Christian prayer from the record and asked if that would be permissible here at the Supreme Court.

University of Virginia law professor Douglas Laycock, representing the two women who are challenging the town’s prayer, Susan Galloway and Linda Stephens, was asked by Justice Alito to give an example of a prayer that would not offend anyone. “I don’t think it’s possible,” said Alito, “to compose anything that you could call a prayer that will be acceptable to all of these groups.” “You can’t treat everyone equally without getting rid of prayer altogether,” Laycock responded.

The case is Town of Greece v. Galloway

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