May 27th, 2016

Anticipation — Of Getting Sworn in to SCOTUS

Supreme Court United StatesOne of my fantasies failed to materialize: I had hoped that, over the course of the last couple months, some judge would demand that I appear in court on May 31st. “Sorry judge,” I was prepared to say, ” I already have an appearance that day. In front of the Untied States Supreme Court.”

When the opportunity presented itself about two years ago for a group of us to go down to 1 First Street in Washington, DC and be sworn in to the nations’ highest court, I said yes.

Why? I hadn’t figured that part out yet. But I just assumed that over the course of the ensuing two years I would come up with a good excuse for this road trip.

I have no case pending with constitutional questions that would require it.  I have no reason to think such a case will come my way (unless I get sued again for defamation on such brand new theory, that no one ever has ever tried before, which less likely than getting struck by lightning).

So why am I doing it?

Probably for the thrill of it since I can’t seem to rationalize it any other way. Other than, to perhaps, think that one day I will look back at this as one of the good old days, as I’ll have one of my rug rats with me to watch.


January 16th, 2014

Justice Scalia Rips Lawyer for Reading Notes

Justice Antonin Scalia decided to have some fun with a lawyer a couple days ago. By publicly humiliating him.

The crime that needed to punished? The lawyer, Steven Lechner, was reading his argument to the Supreme Court in Marvin Brandt Revocable Trust v. United States. It was his first appearance before SCOTUS. And Scalia didn’t like someone walking into his home to do that — to read.

This was how it played out:

Lechner began with the customary, “Mr. Chief Justice and may it please the Court,” and continued on for about a page in the transcript, when he was interrupted by Justice Scalia.

MR. LECHNER: It is axiomatic that the highest evidence of title in this country is a patent from the government. When the government issues a patent, it divests itself of title except for those interests expressly reserved. Here, the patent did not reserve any interest in the 1875 Act -­

JUSTICE SCALIA: Counsel, you are not reading this, are you?

I feel his pain.

Lyle Denniston, writing at SCOTUSblog follows up with his personal observation after the judicial taunt:

Lechner didn’t answer, simply standing silent for a lengthy embarrassed moment.

Two points to make here.

First, it’s completely understandable that any lawyer appearing before the Supreme Court of the United States for the first time is going to be nervous. Very nervous. As in, it’s-hard-to-sleep-for-months-before nervous. That kind of nervous.

Anyone that’s tried cases or argued appeals, of course, knows this, albeit on a reduced scale. Performing in a local play isn’t the same as your first appearance on Broadway, but it’s enough to scare the bejesus out of most of us. You are about to walk on a high wire and there is no net. We desperately want something to hold onto, a crutch to grab, if you don’t mind me mixing my metaphors of Broadway, high wires and crutches.

The problem with this is that juries and judges hate it when you read to them. There is nothing in the world like the immediacy of eye contact. From a purely tactical standpoint, you don’t want to put your head down and read because it’s less effective. That’s why Presidents use teleprompters.

On those occasions when I must read, because I need to actually quote a piece of testimony, a line from a judicial opinion, or a statute, I will likely apologize for doing so in advance, thereby both keeping the attention of the audience and accentuating (I hope) the words being read.

The solution to the problem is not to take a speech to the lectern. Which is scary. But at that point, you know your case pretty darn well. A one-page outline of points to hit during your remarks should suffice.

Can’t make it fit to one page? Then get rid of extraneous words.  Two to three words is all you are likely to need to remind yourself of the concept you want to address.

But there is a second point about this incident to make, and that is the abuse from Justice Scalia. While this may be his home court and he may be perfectly comfortable up their on the bench, he knows damn well that a rookie appearance before this bench will twist any rational soul up in nerves. He embarrassed someone merely because he could, because he wanted to. In the language du jour, he bullied him just for the sake of it.

Leaving aside his jurisprudence, there is a part of me that has a soft spot for Scalia ever since he gave my brother screenwriting advice on the issue of state secession, as well as for his writing ability. But this conduct was unacceptable.

More, elsewhere:

Oyez! Oyez!: Justice Scalia Confronts Lawyer Over Reading From Notes (Turley)

An Embarrassing Supreme Court Moment (Blog of Legal Times)


November 6th, 2013

Did CJ Roberts Trash His Role as “Umpire” In Facebook Cy Pres Case?

Chief Justice John RobertsWhen Chief Justice John Roberts appeared before the Senate in 2005 for confirmation, he famously stated that his role as Chief Justice would be “to call balls and strikes and not to pitch or bat.”

He seems now to have fully discarded the umpire’s uniform in his pursuit of making policy.

On Monday the Court denied certiorari in Marek v. Lane, which was a cy press settlement matter. Cy pres is where class action settlement proceeds don’t go to the victims due to the difficulties or expense of distribution, but go instead to a charity of some kind as being “as near as” possible to getting the funds to the actual victims. This was, as per Adam Steinman (Civil Procedure and Federal Courts Blog):

closely watched class action against Facebook. Four class members had objected to the settlement of that class action, which included as a cy pres remedy “the establishment of a new charitable foundation that would help fund organizations dedicated to educating the public about online privacy.” The settlement was approved by the district court and on appeal to the Ninth Circuit, prompting a petition for certiorari by one of the objectors.

But while the issue of whether it’s appropriate to send the funds to a charity is a hotly debated one, created in a legislative vacuum, neither its rightness or wrongness is the issue I want to address. (See Public Justice Foundation in favor and Ilya Shapiro at Cato for opposing view.)

Instead, I draw your attention to a statement issued by C.J. Roberts (via Overlawyered), accompanying the denial of certiorari, where he discusses his desire not to call the balls and strikes, but rather, to affirmatively make decisions about policy:

I agree with this Court’s decision to deny the petition for certiorari. Marek’s challenge is focused on the particular features of the specific cy pres settlement at issue. Grant­ing review of this case might not have afforded the Court an opportunity to address more fundamental concerns surrounding the use of such remedies in class action liti­gation, including when, if ever, such relief should be con­sidered; how to assess its fairness as a general matter; whether new entities may be established as part of such relief; if not, how existing entities should be selected; what the respective roles of the judge and parties are in shaping a cy pres remedy; how closely the goals of any enlisted organization must correspond to the interests of the class; and so on. This Court has not previously addressed any of these issues. Cy pres remedies, however, are a growing feature of class action settlements. See Redish, Julian, & Zyontz, Cy Pres Relief and the Pathologies of the Modern Class Action: A Normative and Empirical Analysis, 62 Fla. L. Rev. 617, 653–656 (2010). In a suitable case, this Court may need to clarify the limits on the use of such remedies.

This call to action (‘Send me a good case so we can put our imprimatur on the issue!’),  goes quite a ways away from merely umpiring for the people on different sides of an issue.

Roberts didn’t  ask Congress to step up to the plate, he asked instead for a suitable case so that the judiciary can perform a legislative function.

In a blog post back in 2009, the Drug and Device Law Blog — very much a defense oriented blog — raised the same issue in excoriating the concept of cy pres. They wrote:

Under our tripartite system of government, the legislature is supposed to make the laws and the executive to enforce them. Where is the law or regulation allowing, as a consequence of some legal violation, one private person’s money to be taken away and given to some other private person(s) whom the violator didn’t injure? There isn’t any. If there were, there’d be no need to resort to cy pres, because the statute or rule (assuming it were constitutional – which is a stretch) itself would provide the distribution scheme, not some vague notion of “equity.” The government can impose civil or criminal fines for conduct that’s illegal, without regard to causation or damages, but the money in those situations goes to the government as the sovereign enforcer of the laws.

But while they argued there shouldn’t be any such thing as cy pres, C.J. Roberts isn’t suggesting that it be abolished (though he is certainly open to it). What he asks is that the judiciary regulate them, hence his conclusion that the Supreme Court “may need to clarify the limits on the use of such remedies.”

And you will not find any mention in his statement suggesting that Congress resolve the matter.


April 1st, 2013

April Fools’ Day Quiz, Justice Alito, and Baseball

Justice Sam Alito (or not?)

Today is April 1st. It’s also opening day for most baseball teams. So if you’re a Mets fan like I am, it’s an interesting happenstance, no?

But if you came here hoping for an April Fools’ Day gag, you’re going to be disappointed. It’s just a quickie quiz on Supreme Court Justice Samuel Alito and baseball.

Hoaxes have simply become too complicated and difficult for me to coordinate. The last couple of years I went through hundreds of emails setting up elaborate cock-and-bull stories. In 2011 it involved a 23-blog web ring. Last year I created a new web site just to hide what I was doing with over a dozen co-conspirators, since so many people were assuming I would use this site for trickery. If I did this again, my wife would kill me. Then she would divorce my rotting carcass. Even fun has its limits.

Also, it’s nice to retire before I go stale and start putting out lame crap.

But just because I’ve retired from gags doesn’t mean I can’t bring you a modest little quiz regarding law and baseball and focusing on Justice Alito pictured here at right on a baseball card from a fantasy baseball camp.

Or maybe it’s a fake card. This is, after all, April Fools’ Day and do you really believe anything I write? I can almost see your brain cells pulsing as you look to see who will get hornswaggled.

Cheating on this poll is easy, as anyone over the age of eight can use the Google. But if you cheat, a kitten will die and someone will turn you into an anti-kitten Facebook meme that will quickly devour the web because that’s what the web does best and it would really suck for you and then your spouse, kids and siblings would divorce your dead rotting carcass. I’m sure you don’t want to test that theory.

And you know I’m right, anyway, or you wouldn’t have read this far.

Where was I? Oh yeah, the poll.

Each question has a link. The link contains the actual answer. But you have to answer the poll first before you click the links to see if you were right. It’s all about the kittens, remember? If you didn’t remember the kittens from three short paragraphs ago then you’ve got bigger problems than I can deal with here.

But cheating is also about your soul. Don’t screw with your soul, it ain’t worth it for a little quiz, and someone might scratch “cheater” on your headstone one day, and that one day will probably be April 1st just for the karmic kicks.

In this quiz, everything below is true, except for one item. Which item below is false for SCOTUS Justice Alito?

1. He once went to a Philadelphia Phillies fantasy baseball camp that produced the baseball card you see above (link)

2. He was born on April Fools’ Day (link)

3.  Because he plays in a fantasy baseball league he recused himself on a case dealing with the sale of baseball statistics to statistical services for fantasy leagues (link)

4.  There is a website that compares all Supreme Court justices to people in baseball.  John Jay, for example, is compared  to the first baseball commissioner, Kenesaw Mountain Landis. Justice Alito  is compared to flame-throwing right-hander Jonathan Papelbon, because Papelbon was supposed to be the next Roger Clemens while Alito was touted at his confirmation as the next Scalia. (Papelbon is now with Alito’s beloved Phillies.) (link)

5.  His childhood ambition was to become commissioner of baseball. (link)

Which of the above statements is false?

View Results

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You didn’t cheat, did you?


May 8th, 2011

Would Scalia Like The Original Supreme Court?

The poorly lit Old Supreme Court Chamber, as it existed on April 22, 2011 when I visited

Scott Greenfield reports that there are major problems over at the US Supreme Court due to ongoing renovation. Seems that the Court would like to continue using the building while the renovators due to their thing. Anyone that has ever lived in a house while it is being renovated can appreciate the predictable problems. As Greenfield notes (via a walled off Tony Mauro story):

U.S. Supreme Court Justice Antonin Scalia was making a presentation to foreign dignitaries at the court a few years ago when the sound of a hammer drill erupted nearby.

In 2006, Chief Justice John Roberts Jr. was in the midst of a filming session when a noisy construction worker interrupted.

Vignettes like these from the long-running $75 million renovation of the court’s majestic building in Washington are central to a sharp dispute that has broken out between the construction company doing the work and the government agency overseeing the project.

Conflicts between the Court’s desire to continue using the building and the contractor wanting to get the job done have resulted in$40M in overruns. And some of that work has even taken place while the Court is in session:

In another incident in 2006, Grunley [Construction]  workers were found using a hammer drill and pouring concrete while the court was in session.

“When questioned, Grunley’s superintendent was not even aware that it was a court day,” according to a report from the Architect of the Capitol.

So this is my humble suggestion, which should go over well with the originalists on the court: Use the original Court. It was used from 1810-1860 and sits vacant in the basement of the Capitol building across the street. Chief Justice John Marshall presided here, as did Roger Taney who succeeded him. The robe rack for Taney is still there, labeled with his name, and waiting for his ghost or a successor to come use it.

I visited two weeks ago, and took the pictures you see here. Yeah, it’s a bit dark and dungeon-like (hence the low quality picture quickly snapped with an iPhone), but hey, it’s original. Who can argue with that?

(More history and virtual tour at this Senate site)