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Whistleblower Free Speech and Breyer Holds Up Some Fingers

Edward Lane was fired from his job at an Alabama community college after testifying truthfully before a grand jury and at trial about corruption at the college. Lane sued saying he was let go in retaliation, but the lower courts, citing an earlier Supreme Court opinion, ruled against him. He was represented at the Court by lawyer Tejinder Singh, who I have to say was fun to draw.

On the other side of the argument were Alabama’s Attorney General, who’s drawing I never finished, and lawyer Mark Waggoner, who was at the lectern a bit longer.

You can read about it here.

Earlier, the Court heard arguments in a patent case, Nautilus v. Biosig Instruments. Biosig has a patent on a device used in exercise machines to measure heart rate. It’s basically a bar with incorporated electrodes that receive signals from contact with a person’s hands. Nautilus claims the patent is too vague, particularly in describing the placement of the electrodes.

Now comes Justice Breyer, “I’m a little confused here. Imagine there are two kinds of electrodes, a blue one and a green one, and you have a blue one and green one on left hand and a blue one and green one on right hand. . . you cannot let them touch . . .  I got that. And suppose on your left hand you put the blue one here and the green one there. And in the right hand, you put the blue in here and the green in here. . . . Does it work or not?”

And so it goes for awhile until Justice Scalia interrupts, “Let the record show that [Justice Breyer] is holding his fingers in the air.”

Anyway, it’s all “insolubly ambiguous”.

 

Old News or Yesterday’s Sketches Today

Overshadowed by yesterday’s affirmative action opinion in Schuette were arguments in two newsworthy cases, Susan B. Anthony List v. Driehaus, and ABC v. Aereo.

“Ministry of Truth” was the Orwellian label SBA List’s lawyer, Michael Carvin, used when referring to an Ohio law that makes it a crime to use false statement in an election campaign.

The lawyer for the State of Ohio reminded the Court that issue is not the constitutionality of the law, but whether plaintiffs can show harm.

The second case argued was about a company, Aereo, Inc., that stores broadcast TV programs, which it then makes available to consumers who pay for an individual “antenna”. The broadcast networks say this is simply a work around to avoid copyright.

The lawyer for Aereo, David Frederick, tried to convince the Justices that his client only “is attempting to entice consumers to replicate on the cloud what they can do at home at lower cap costs and more efficiency.”

“. . if all they have is a gimmick,” said Clement in rebuttal, “then they probably will go out of business and nobody should cry a tear over that.”

 

 

 

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

Campaign Finance Back Before the Supremes

A long line of spectators and a smattering of demonstrators, some with halloween themed placards – as well as two suspected C-span interns with a crappy banner that demanded “Cameras in the Court NOW!” – were on the Supreme Court plaza this morning for the Court’s latest go at campaign finance.

The case, McCutcheon v. FEC, is brought by a wealthy Alabama businessman who is challenging the limit on total contributions during a two-year election cycle. Current law limits individual contributions to candidates to $48,600 and $74,600 to parties and PACs during the two-year cycle. That the law limits the number of candidates to whom he could donate $1776 Shaun McCutcheon considers a violation of his First Amendment right to free speech.

A lawyer for Senator Mitch McConnell argued that limits on the aggregate contributions should meet the test of strict scrutiny to pass constitutionality.

While Solicitor General Donald Verrilli warned that without the limits elections could be dominated by wealthy donors.

Lyle Denniston’s story here.

 

 

 

Funeral-Picketing Case Heard

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A few sketches from today’s Supreme Court arguments in Snyder v. Phelps.  Fred W. Phelps and his Westboro Baptist Church, whose members are primarily family, have a practice of picketing the funerals of dead soldiers with signs reading “Thank God for Dead Soldiers,” “Fag Troops” and “God Hates You”.  The father of one of those fallen soldiers, Lance Cpl Matthew Snyder, sued the church in court and won, but the judgement was overturned on appeal.  The lawyer representing the bereaved father – Sean Summers, pictured below and above – began his argument : “We’re talking about a funeral. Mr. Snyder simply wanted to bury his son in a private, dignified manner”

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On the other side, with the bigots, is the 1st Amendment freedom of speech.  Numerous news organizations and First Amendment organizations filed briefs supporting the Kansas church.  Arguing the free speech side was the daughter of the church’s pastor, Margie Phelps, pictured below.

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After the argument Ms. Phelps predicted her side would win. “They’re going to uphold the law of the land that you may express a contrary view in a public forum without being sued.”

Dahlia Lithwick sums it up best here.