Patterico's Pontifications

6/28/2010

When the Supreme Court Lacks a Quorom

Filed under: Judiciary — DRJ @ 11:11 pm

[Guest post by DRJ]

A litigant from California won’t have his case heard by the Supreme Court according to this Jonathan H. Adler post at the Volokh Conspiracy:

“Today’s order list had this interesting item:

09–1318 — HENDERSON, GLENN C. V. SONY PICTURES, ET AL.

Because the Court lacks a quorum, 28 U. S. C. §1, and since the only qualified Justice is of the opinion that the case cannot be heard and determined at the next Term of Court, the judgment is affirmed under 28 U. S. C. §2109, which provides that under these circumstances “the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court.” The Chief Justice, Justice Stevens, Justice Scalia, Justice Kennedy, Justice Thomas, Justice Ginsburg, Justice Breyer, and Justice Alito took no part in the consideration or decision of this petition.”

Apparently Plaintiff Henderson had previously sued 8 of the 9 Supreme Court Justices — all but the newest, Justice Sonia Sotomayor — and those 8 essentially recused themselves from the case. Thus, from the comments:

“Jim M. says:

28 USC 2109 provides:

“If a case brought to the Supreme Court by direct appeal from a district court cannot be heard and determined because of the absence of a quorum of [six] qualified justices, the Chief Justice of the United States may order it remitted to the court of appeals for the circuit including the district in which the case arose, to be heard and determined by that court either sitting in banc or specially constituted and composed of the three circuit judges senior in commission who are able to sit, as such order may direct. The decision of such court shall be final and conclusive. In the event of the disqualification or disability of one or more of such circuit judges, such court shall be filled as provided in chapter 15 of this title.

“In any other case brought to the Supreme Court for review, which cannot be heard and determined because of the absence of a quorum of qualified justices, if a majority of the qualified justices shall be of opinion that the case cannot be heard and determined at the next ensuing term, the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court.”

The latter provides the means by which Justice Sotomayor, acting solo as the only qualified justice (not having been sued by the party), was able to dispose of the case.

How many times has that happened? “Henderson v. SONY Pictures” may well be the only instance.

And … Will Mr. Henderson sue Justice Sotomayor next?

Heh.

– DRJ

Stonewalling the Kagan Hearings

Filed under: Judiciary — DRJ @ 9:38 pm

[Guest post by DRJ]

The hearing on Elena Kagan’s nomination to the Supreme Court started today so it’s too early to talk about ending it, although if you watched any I’m sure you feel it can’t end too soon. Nevertheless, Doug Ross provides a reason to hope the hearing never ends:

“An Open Letter to Republican Members of the Senate Judiciary Committee:

Pursuant to the Elena Kagan confirmation process, I would like to call your attention to a little-known fact related to the role of the minority party on the committee. That is, Rule IV of the Judiciary Committee states that “at least one member of the minority party must vote to end debate in committee.”

For Elena Kagan to move to a vote in the Senate, at least one Republican on your committee must accede to end debate. I suggest you hold firm and refuse to end debate.”

I don’t know the Senate rules but assuming this is correct, Ross provides several cogent reasons in support of this tactic. It also gives Democrats another example of GOP stonewalling, although at this point stonewalling Obama, Pelosi and Reid may be a feature instead of a bug.

But here’s the reason I support stonewalling — Kagan’s statement regarding Judge Bork’s confirmation hearing:

“From speech at Case Western Reserve, 1997: “I loved what happened in the Bork hearings. I wrote a review of Stephen Carter’s book recently where I said, ‘no, he has it all wrong. The Bork hearings were great, the Bork hearings were educational. The Bork hearings were the best thing that ever happened to Constitutional Democracy.’”

I’m sure Ms. Kagan would not appreciate a similar lesson directed at her nomination, but wouldn’t it be Karma?

– DRJ

UPDATE: Senator Coburn mentioned Kagan’s Bork comment in his opening statement on Day 1.

Court: School can Refuse to Fund Christian Group

Filed under: Education,Judiciary,Religion — DRJ @ 3:16 pm

[Guest post by DRJ]

In a case involving San Francisco’s Hastings College of Law, the Supreme Court ruled today that the school could refuse to fund a Christian group that violates the school’s nondiscrimination policy by excluding gays. Writing for the majority (the liberals and Justice Kennedy), Justice Ginsburg said the Christian group effectively sought preferential rather than equal treatment by seeking an exemption from the nondiscrimination policy.

Justice Samuel Alito’s dissent described it as “a serious setback for freedom of expression in this country.”

– DRJ

Supreme Court Extends Gun Rights to States

Filed under: Judiciary,Second Amendment — DRJ @ 2:59 pm

[Guest post by DRJ]

In McDonald vs City of Chicago (opinion here; oral argument transcript here), the U.S. Supreme Court today extended the Heller 2nd Amendment protections to states but allowed some restrictions on gun ownership. Chicago’s Mayor Daley plans to find the limit of those restrictions.

After Heller, will this 5-4 decision end the 2nd Amendment debate or is it just beginning? It’s clearly just beginning at the state and local levels, where governments will be asked to craft standards that satisfy the courts and citizens.

– DRJ

6/27/2010

Martin Ginsburg (1932-2010)

Filed under: Judiciary — DRJ @ 7:06 pm

[Guest post by DRJ]

My condolences to Justice Ruth Bader Ginsburg on the death of her husband, Martin Ginsburg, who died today of cancer at age 78. They met as students at Cornell and had been married 56 years last week.

– DRJ

6/26/2010

Kagan Witness List Released

Filed under: Judiciary — DRJ @ 12:23 pm

[Guest post by DRJ]

The witness lists for Elena Kagan’s Supreme Court hearing have been released. The Majority Witness List suggests we’ll hear that Kagan is a good choice because she’s a woman, cares about the poor and disadvantaged, and really likes the military despite banning them from recruiting them at Harvard Law.

The confirmation hearing is scheduled to begin Monday at 12:30 p.m. EST.

– DRJ

6/19/2010

Separate But Equal at Harvard Law

Filed under: Civil Liberties,Judiciary — DRJ @ 4:09 pm

[Guest post by DRJ]

The Obama Administration claims a new email shows Supreme Court nominee Elena Kagan did not thwart military recruiting at Harvard Law School because military recruiters were allowed to interview through another organization. They argue that even though Kagan banned military recruiters from using the HLS Office of Career Services — the office designed and funded to help potential employers schedule interviews with students — Kagan should be forgiven for denying military recruiters those services because they had access through another venue.

If that shows how fair Kagan is, I’m interested in her position on America’s ‘separate but equal’ laws.

– DRJ

6/5/2010

Clinton Library Releases Kagan Documents

Filed under: Judiciary,Obama — DRJ @ 1:16 pm

[Guest post by DRJ]

Have any spare time? Dive into the 74 boxes of Kagan documents that were recently released by the Clinton Library.

– DRJ

5/30/2010

Christian Judges

Filed under: Judiciary,Religion — DRJ @ 12:45 pm

[Guest post by DRJ]

The LA Times AP reports on four San Diego lawyers who are running for Superior Court judgeships based on a Christian platform:

“A group of conservative attorneys say they are on a mission from God to unseat four California judges in a rare challenge that is turning a traditionally snooze-button election into what both sides call a battle for the integrity of U.S. courts.

Vowing to be God’s ambassadors on the bench, the four San Diego Superior Court candidates are backed by pastors, gun enthusiasts, and opponents of abortion and same-sex marriages.

“We believe our country is under assault and needs Christian values,” said Craig Candelore, a family law attorney who is one of the group’s candidates. “Unfortunately, God has called upon us to do this only with the judiciary.”

The challenge is unheard of in California, one of 33 states to directly elect judges. Critics say the campaign is aimed at packing the courts with judges who adhere to the religious right’s moral agenda and threatens both the impartiality of the court system and the separation of church and state.”

Elected officials often espouse support for Christian or religious values but I don’t recall any judicial candidates who embraced Christianity as part of their judicial philosophy.

What do you think?

– DRJ

5/24/2010

Elena Kagan’s “Judicial Hero”

Filed under: Judiciary,Obama — DRJ @ 10:42 am

[Guest post by DRJ]

Elena Kagan considers Israeli supreme court justice Aharon Barak her “judicial hero” and that worries Paul Mirengoff at PowerLine:

“According to Kagan, Barak “is the judge who has best advanced democracy, human rights, the rule of law, and justice.”

However, it would appear that Kagan’s judicial hero actually has very little regard for the rule of law and, indeed, is the antithesis of what a judge should be. That, at least, has been my understanding of Barak. It is also the view of Judge Richard Posner, and he makes a compelling case:

“[A]lthough he is familiar with the American legal system and supposes himself to be in some sort of sync with liberal American judges, he actually inhabits a completely different–and,to an American, a weirdly different–juristic universe. I have my differences with Robert Bork, but when he remarked, in a review of [Barak's book] The Judge in a Democracy, that Barak “establishes a world record for judicial hubris,” he came very near the truth.”

Details from Posner and Mirengoff are at the link.

– DRJ

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