CourtSide: May 2009 Archives
CourtSide - The FindLaw Breaking Legal News Blog

May 2009 Archives

Grudges Against Judges Leading to More Threats These Days

A story on CNN right now describes how the number of threats against federal judges has more than doubled in the past five years, from 500 in 2003 to 1,278 in 2008. 

In response to the rise in threats, the U.S. Marshals Service has opened up a threat management center to sift through the all the questionable communications with judges and determine which are legitimate threats and which are simply inappropriate expressions of opinion.

Bush v. Gore Odd Couple Challenge Prop 8 in Federal Court

Ted Olson, who argued for George W. Bush in Bush v. Gore and later became Solicitor General during the Bush administration, and David Boies, who argued on behalf of the Gore camp in Bush v. Gore, have teamed up to challenge California's Proposition 8 in federal court.  Olson has indicated that he expects the case to go all the way to the United States Supreme Court.

The real story here doesn't involve the complaint itself, which pretty much spells out a standard due process and equal protection suit, but instead centers on the lawyers who have brought it.  Olson has acted as a flag-bearer for the conservative movement within the legal world for decades, and as Solicitor General made the Bush administration's most right-wing arguments before the Supreme Court.
In all the hubbub over the Sotomayor nomination and the Prop. 8 decision, we made no mention of the important decisions that came out of the Supreme Court yesterday.  One case overturned a New York law on Supremacy Clause grounds, another ruled that illegal drug buys made over phone lines don't deserve more prison time than face-to-face purchases, and the third did away with Michigan v. Jackson and gave police more leeway when interrogating suspects without their lawyers present.

You can find FindLaw's summaries of the cases and links to the opinions below:
In what had largely been the expected outcome, the California Supreme Court upheld Proposition 8, but allowed the approximately 18,000 marriages that took place while same-sex marriage was legal in California to remain in effect.

Voters passed Prop. 8 last November.  The ballot measure restricted the definition of marriage to include only unions between a man and a woman.  Specifically, the measure added text to the California constitution stating that "Only marriage between a man and a woman is valid or recognized in California."

Obama Announces Sotomayor as Supreme Court Pick

President Barack Obama announced today that he will nominate 2nd Circuit Judge Sonia Sotomayor to replace retiring Justice David Souter on the United States Supreme Court.  If confirmed, she will become the first Latina, and the third woman overall, to serve on the Court.

Judge Sotomayor has been mentioned as the top possibility for the nomination ever since Justice Souter announced his retirement at the end of the Supreme Court's current term.  While some observers felt that Elena Kagan, the Solicitor General, might get the nod, or that the President might select a more obscure figure, Sotomayor's name has always been widely considered to be at the top of the list.

Big Tobacco Gets Smoked by DC Circuit

The DC Circuit Court of Appeals has largely affirmed a lower court ruling against the Big Tobacco companies which held that the companies violated fraud and racketeering laws by engaging in a decades-long deception about the dangers of smoking. 

The court affirmed the district court's limitation on the marketing of light cigarettes, holding that labels such as "light" or "low tar" are impermissible since those cigarettes haven't been found to have any practical safety benefits over regular cigarettes.
Lawyers will often burst into laughter when reading judicial decisions, but that is rarely the author's true intent.

Sometimes, however, judges decide to shake off the seriousness that hangs about those black robes and throw out opinions meant to show that the law, in fact, can be fun. 

(For them, anyway.  I doubt that the losing party ever sees anything funny in opinions.)

Judge Allows Government to Hold Onto Guantanamo Detainees

In a decision that comes just in the nick of time for an Obama administration that is struggling with the question of what to do with the Guantanamo detainees, a district court judge in Washington DC has ruled that the government can continue its detention of individuals so long as they fall under the terms of the congressional authorization of force following the September 11 terrorist attacks and the laws of non-international conflicts.

The judge, District Court Judge John D. Bates, did limit the Obama administration's proposed guidelines for the detentions, ruling that the government can't detain individuals simply because they offered "substantial support" or "directly supported hostilities."  According to Judge Bates, the Authorization for Use of Military Force (AUMF) issues by Congress and the law of non-international conflicts under the Geneva Convention only supported the detention of individuals who were "part of" the groups involved in the 9/11 attacks.  Simply supporting the groups was insufficient under the AUMF and the law of war.
The California Supreme Court ruled on Monday that only the representatives of a class, and not the entire class, must meet standing requirements under amendments to the state's unfair competition law.

The decision came as part of a long-running class-action suit against cigarette manufacturers, and overturned a ruling by the Court of Appeals which decertified the class because not all of its members met the standing requirements as individuals. 

SCOTUS Says Post-9/11 Detainee Didn't Plead Hard Enough

The Supreme Court has stopped a suit by a post-9/11 detainee against former Attorney General John Ashcroft and FBI Director Robert Mueller, overturning the Second Circuit decision that had allowed the case against the officials to move forward.

The plaintiff in the case, Javaid Iqbal, was one of the thousands of Muslims who were detained as part of the dragnet that targeted people with potential connections to the September 11th hijackings.  He alleges that officers at a Brooklyn detention center subjected him to "harsh conditions of confinement" based on his race, ethnicity and nationality, and he accuses Ashcroft and Mueller of planning and executing the policy that gave rise to his unconstitutional confinement.
The AP is reporting that gay rights groups have come out against Georgia Chief Justice Leah Ward Sears' decision to join a think tank founded by an opponent of gay marriage.

Some consider Sears - the first black chief justice of a state supreme court - to be in the running to fill the seat on the Supreme Court vacated by Justice Souter's retirement. 
Having never been President of the United States, I can't imagine how difficult it must be to narrow down the roster of potential Supreme Court nominees to a short list, and then to a single individual. 

Not only are there the issues of whether or not the individual is a talented jurist, in line with the President's ideology, a student of history, plays well with others, etc., but there's also the pesky question of whether the Senate will actually confirm the nominee.  Not to mention the possibility of a long-closeted skeleton hopping out and dancing a jig on the Senate floor while accepting tips and loud praise from the Republican side of the aisle.
The LA Times is reporting on a new Gallup poll that found most Americans don't place a premium on diversity when considering President Obama's first appointment to the Supreme Court.

According to the LA Times, the poll found that "64% [of respondents] say it 'doesn't matter' to them if the president appoints a woman and that 68% and 74% do not care whether a Hispanic or black person, respectively, is named."

Of course, the article also quotes Frank Newport, editor in chief of the Gallup Poll, as saying that "[i]t is unclear how much the average American knows about the current demographic composition of the Supreme Court." 
The Cook County Circuit Court, which serves the city of Chicago, is about to begin an experiment allowing a small number of attorneys to e-file documents for commercial litigation cases, according to an article in the Chicago Tribune.

The clerk's office has scheduled this pilot project to go on for two years, with the ultimate goal of expanding it to other types of cases.  No word on how long that expansion will take, though.
After many years on the bench, and many sentences delivered, U.S. District Judge Samuel Kent had to sit on the other side of the courtroom today and listen to a judge hand down a 33 month sentence against him for obstruction of justice during an investigation into alleged sexual abuse.

Two former workers at the Galveston courthouse where Kent sat as a district judge claimed that Kent had engaged in non-consensual sexual contact with them.  A federal grand jury indicted Kent on sexual abuse and obstruction of justice charges last August.

The Not-So-Civil Court

Two civil court judges in Texas apparently mixed it up a little in one of the judge's chambers yesterday, according to the Dallas News Crime Blog.

The Judge Fight involved Judge Carlos Cortez of the 44th Civil District Court and Judge Eric V. Moyé of the 14th Civil District Court. 

According to Judge Cortez' attorney, Roger Mandel, "Judge Cortez was physically assaulted by Judge Moye in Judge Cortez's chambers."  Judge Moyé's account differs a little, though:
Many organizations have begun calling for the resignation or impeachment of Judge Jay Bybee of the Ninth Circuit Court of Appeals in Nevada after the Obama administration's released Bush-era torture memos in which the Office of Legal Counsel at the Justice Department sanctioned the use of interrogation devices that many characterize as torture.

Judge Bybee was the head of that office at the time, and he signed the legal memorandums that approved of such coercive techniques as waterboarding, wall-slamming and sleep deprivation.  Then-President George Bush later appointed Bybee to the Ninth Circuit.
Many of the people whose names are being bounced around as possible candidates to fill the seat vacated by Justice David Souter have extensive holdings in companies whose cases might end up before the Supreme Court.

If selected to the Court, those candidates will have to decide whether to recuse themselves if such a case does come before the court, or whether to just get rid of the stock altogether.
Republicans have indicated that Senator Jeff Sessions (R-AL) will become the ranking Republican member of the Senate Judiciary Committee - the committee that could eventually block President Barack Obama's nominee to replace Justice David Souter on the Supreme Court. 

Sessions replaces Sen. Arlen Specter (D-PA), who recently crossed the aisle to join the Democrats after a long career as a Republican.
In a gift to legal bloggers everywhere, the Supreme Court has made sure that we will have Janet Jackson's infamous "wardrobe malfunction" to write about for some time to come.

The Court vacated a judgment of the Third Circuit Court of appeals and remanded the case back to the lower court for reconsideration in light of FCC v. Fox Tel. Stations, Inc., last week's opinion that upheld the FCC's decision to change its regulations of fleeting expletives.

The FCC fined CBS $550,000 for Jackson's breast-baring halftime show performance, but the Third Circuit overturned the fine after it determined that the agency had violated its own policy of treating words and images under the same standards for when considering claims of indecency. 

Justice David Souter Retires from the Supreme Court

Let the nomination games begin:

After 19 years on the nation's highest court, Justice David Souter will retire from the Supreme Court after the conclusion of the Court's business in June, according to a source close to the justice.

Souter will finally be able to leave Washington DC - a city for which the Justice made no attempt to conceal his disdain - once and for all and return permanently to his beloved New Hampshire.