FedSoc Blog

Justice Elena Kagan recused herself from hearing ten more cases in the upcoming U.S. Supreme Court Term this week, reports The Blog of Legal Times. The new total of cases in which Kagan has recused is 21 out of the 40 cases the Supreme Court has agreed to hear next Term. In many of these cases, Justice Kagan had earlier signed a document indicating whether the U.S. Solicitor General's office would participate as a friend of the Court. The Court revealed the ten new recusals September 7 in unannounced entries on its docket.

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The New York Times reports that Judge Virginia A. Phillips of the U.S. District Court for the Central District of California ruled late Thursday that the military's "don't ask, don't tell" policy for gay members is in violation of the Fifth and First Amendments to the U.S. Constitution. Judge Phillips found that the government did not meet its burden of showing that "the 'don't ask, don't tell' act was necessary to significantly further the government's important interests in military readiness and unit cohesion."

The ruling will not immediately end the policy, as the court asked the plaintiffs, the Log Cabin Republicans, to submit a proposed injunction by September 16th. Click here to read the court's 86-page opinion.

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In an effort to increase dialogue about state court jurisprudence, the Federalist Society presents State Court Docket Watch. This newsletter is one component of the State Courts Project, presenting original research on state court jurisprudence and illustrating new trends and ground-breaking decisions in the state courts. This special edition includes the thoughts of four experts on a panel hosted by the Federalist Society in May 2010 on California 17200, an initiative adopted in California in 2004 that restricts private lawsuits against a company only to those where an individual is actually injured by and suffers a financial loss due to an unfair, unlawful, or fraudulent business practice.

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On March 30, the Supreme Court announced its decision in Berghuis v. Smith. The Court held that the Michigan Supreme Court's rejection of the fair cross-section claim did not involve an unreasonable application of clearly established federal law as determined by the Supreme Court. To discuss the case, we have Thomas F. Gede, who is a principal in the Bingham Consulting Group and of counsel to Bingham McCutchen LLP.

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The U.S. Court of Appeals for the D.C. Circuit issued a temporary stay this morning of the District Court for the District of Columbia's preliminary injunction prohibiting the funding of embryonic stem cell research by the National Institutes of Health, reports The Blog of Legal Times. The stay is in response to an emergency motion from the Justice Department yesterday asking the D.C. Circuit to stay the injunction "to avoid immediate loss of ongoing medical research aimed at curing the most devastating illnesses afflicting Americans."

The order, issued by Judges Karen LeCraft Henderson, Janice Rogers Brown, and Thomas Griffith, gave the plaintiff researchers until September 14 to file a response to the motion.

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Marie Gryphon has an article on The National Law Journal website looking at the difference between how conservative Justices have treated criminal defendants when confronted with constitutional issues and how they treat these defendants when they must decide issues of statutory interpretation of criminal laws. Her conclusion? While conservative Justices have generally sided against criminal defendants on constitutional issues, "in the nine criminal cases the Court decided last term that raised questions of statutory rather than constitutional interpretation, Justice Antonin Scalia, Chief Justice John Roberts Jr. and Justice Anthony Kennedy...sided with the criminal defendants...eight out of nine times."

According to Gryphon, this result is due to the fact that, just as conservative judges are likely to interpret the Constitution strictly to not grant broad rights to criminal suspects and defendants, they are likely to interpret criminal statutes strictly against the government, without much regard for the lawmakers' "overarching policy goal."

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Following Adam Liptak's article yesterday in The New York Times about the increasing polarization of Supreme Court clerks to fit the ideological preferences of the Justices for whom they work (click here for the original FedSoc Blog post on this topic), Jason Mazzone posted on Balkinization that the greater hiring of clerks from Republican-appointed judges could simply correspond to the greater number of judges who have been appointed by Republicans to the federal circuit courts in recent years. He also takes issue with Liptak's suggestion that clerks tend to influence the way Justices vote in specific cases, arguing that the influence is much more likely to occur in the opposite direction (the Justice will change the mind of the clerk).

Echoing Mazzone's final point, Orin Kerr argues on Volokh Conspiracy that the increasing polarization in clerk-hiring is merely an indication that the Justices are attempting to solve the principal-agent problem by choosing like-minded employees to write their opinions.

The Associated Press reports that President Obama is having fewer judges confirmed in the U.S. Senate than any President since Richard Nixon at this point in his first term. Currently, 102 out of 854 judgeships are vacant, and fewer than half of the President's judicial nominees have been confirmed, even though the Democrats have controlled either 59 or 60 seats throughout Obama's term.

The White House and other Democratic groups put the blame on delay tactics by the Republican minority, while some Senate Republicans argue that their attempts to block judicial confirmations are partly political payback for the Democrats' delays of judicial nominations under President Bush, and partly due to the fact that President Obama has in fact made very few of these nominations.

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Adam Liptak has another story in The New York Times today on Supreme Court clerk hiring (click here to see the FedSoc Blog post from earlier today on the ideology of clerks) in which he reports that about half of the U.S. Supreme Court clerks hired since the appointment of Chief Justice Roberts attended law school either at Harvard or Yale, and that a quarter more attended law school at Virginia, Stanford, Chicago, or Columbia. These numbers seem to reflect the Justices' own history, as six of the current Justices attended Harvard Law and the remaining three attended Yale Law.

This trend toward Harvard and Yale clerks does not hold true for Justice Thomas, who, in remarks to students at the University of Florida in February, explained his practice of picking students from a variety of schools: "I have a preference, actually, for non-Ivy League law clerks, simply because I think clerks should come from a wide range of backgrounds."

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Time's Wellness Blog discusses the recent bedbug comeback throughout the U.S. and reports that those affected by the infestation have often responded by using agricultural pesticides in their homes. The Department of Health in Ohio petitioned the EPA to approve the indoor use of the pesticide propoxur, which is listed as a probable carcinogen and is potentially toxic to children, to help control the outbreak, but the EPA has refused because of the risks involved in using the pesticide.

Jonathan Adler posted yesterday on The Volokh Conspiracy about the bedbug issue, arguing that the EPA should defer to a state's weighing of the risk involved in spraying propoxur in one's home and save its own determinations on this issue for situations in which such use might cause a "spillover" in another state.

Adam Liptak reports today in The New York Times that conservative U.S. Supreme Court Justices increasingly have been hiring clerks who previously served as clerks for Republican-appointed appeals court judges, while liberal Justices increasingly have been selecting clerks who have served for appeals court judges appointed by Democrats. Over the course of the Roberts Court, according to Liptak, none of the five more conservative Justices, whom he identifies as Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito, have picked more than 20 percent of their clerks from Democrat-appointed judges, and three of the four "more liberal" Justices, Justices Stevens, Ginsburg, and Sotomayor, hired between 12 and 35 percent of their clerks from Republican-appointed judges. Justice Breyer hired around half of his clerks from judges appointed by both parties.

What are the consequences of increasing polarization among Supreme Court clerks? Liptak points to a 2008 study in the DePaul Law Review finding that clerks who identify themselves as either side of the ideological spectrum tend to influence in that direction the votes of the Justices for whom they work.

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On June 14, the Supreme Court announced its decision in Holland v. Florida. The Court held that the AEDPA statute of limitation was subject to equitable tolling; and that counsel's failure to file a timely habeas petition might constitute extraordinary circumstances warranting tolling in this case. To discuss the case in this post-decision edition of SCOTUScast, we have Ronald Eisenberg, who is the Deputy District Attorney for the Law Division of the Philadelphia District Attorney's Office.

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The Blog of Legal Times reports that Justice Elena Kagan has indicated that she will recuse herself in a twelfth case set to come before the Supreme Court, Bruesewitz v. Wyeth, after having announced during the confirmation process that she would recuse herself in eleven pending cases. The reason for the recusal appears to be that she signed a brief filed by the Solicitor General's office in a related case on vaccine liability called American Home Products v. Ferrari. On the other hand, Chief Justice Roberts, who had recused himself in earlier stages of Bruesewitz, may once again be participating in the case.

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Eugene Volokh has a post on Volokh Conspiracy this morning noting a contracts decision in the 7th Circuit Court of Appeals in which Judges Eastebrook, Posner, and Wood debated the way in which foreign law is interpreted in U.S. courts. Judges Easterbrook and Posner argue that courts should rely on English-language translations and treatises to determine what the foreign law actually is, whereas Judge Wood contends that such a method could lead to mistakes in interpretation and thus that judges can allow the parties to use experts to offer potentially competing interpretations of foreign law.

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The Florida Supreme Court ruled Tuesday that a state ballot initiative purporting to give residents the right not to buy health insurance, in light of the federal individual mandate passed in March, is "misleading" and contains "ambiguous language," and that it therefore cannot be placed on the ballot for the next election, reports International Business Times. Missouri has already voted for such a measure, and Arizona, Oklahoma, and Colorado will still vote in November on state constitutional amendments attempting to block the federal mandate provision from taking effect.

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