Supreme Court Rules Guantanamo
Prisoners Have Right to Sue in U.S. Courts

Michael Doyle
McClatchy Newspapers
June 12, 2008

Bill May Remove 'Loaded'
Words Psychologists' Guidelines at Risk

By M.C. Moewe
Daytona Beach News
May 12, 2008

Thinking they can stop divorcing parents from fighting in court, state officials want to rewrite the laws to replace loaded terms like "custody" with "parenting plan."

To do that, though, they'll strip out guidelines for psychologists that are designed to protect the children.

"It dumbs down the criteria," Coral Gables psychologist Jerome Poliacoff said of the proposal to replace American Psychological Association's guidelines with "standards that a reasonable psychologist would use."

"Who gets to be the reasonable psychologist?" Poliacoff said. "I think it leaves a lot of room for poor work."

The bill, sponsored by Sen. Evelyn Lynn, R-Ormond Beach, passed both the House and Senate last week and is waiting for Gov. Charlie Crist's signature.

The bill's supporters say it's designed to lessen the conflict in some of the state's nastiest divorces.

"The intent was never to limit the standards," said Elisha Roy, who worked on the bill for four years as a member of the family law section of The Florida Bar. "The goal of the bill is to limit litigation."

In contentious divorce cases involving children, psychologists often act as court experts who make recommendations to judges on issues such as where the child should live, how often the other parent sees the child and any mental health treatment the family might need.

Currently, psychologists are presumed to be acting in good faith if they follow the American Psychological Association's guidelines when making recommendations.

Roy said she believes those are the standards psychologists will continue to follow. "That is how I would interpret it," she said.

"I would assume that's what they'd use," added Lynn.

Assumptions, though, leave a lot of wiggle room and, without specific guidelines, judges and lawyers working with the psychologists would have a more difficult time determining the quality of the reports, Poliacoff said. Also, bringing a legal case against a psychologist who did a poor job of considering a child's best interest in an evaluation would also be more difficult.

Adele Guadalupe, president and a founder of Families Against Court Travesties, said standards for psychologists working as court experts are already difficult to enforce, yet the decisions can put heavy and expensive burdens on families.

"You have to dance to the tune of these so-called favored experts and favoritism is constantly rearing its ugly head," said Guadalupe, whose organization for the past four years has sent impartial court watchers to hearings to monitor family court cases. "The poorer parent can't afford to pay all these experts, so usually it's the parent with the money that wins."

The thought behind taking out the standards was because those rules contain the word "custody" and the bill is removing those words from the law, said Roy, the Florida Bar representative, who worked with psychologists in helping to write the bill.

Taking away terms like "primary custody" and replacing them with the term "parenting plan" will stop parents from fighting, she said: "The whole purpose behind (the bill) is to reduce litigation by the removal of labels that don't mean anything."

That the proposed law was vetted by lawyers and psychologists doesn't alleviate Guadalupe's concerns.

"These are the very people who stand to profit," said Guadalupe explaining the costs associated with these court experts often run into the thousands of dollars. "It can leave a parent financially decimated."

Scalia Speaks Out in "60 Minutes" Interview

By Tony Mauro
Legal Times
New York Lawyer
April 28, 2008

WASHINGTON - In his remarkable appearance on "60 Minutes" Sunday night, Supreme Court Justice Antonin Scalia acknowledged he has had "down times" on the bench, periods when he felt he was repeating himself in dissents and unable to move Court doctrine. It was Scalia's first extended broadcast interview in his 22 years on the Court.

In one of the more dramatic moments during the segment, CBS correspondent Lesley Stahl read from Scalia's 1996 letter written to the late Justice Harry Blackmun in which he voiced his melancholy about the preceding term -- a term that had produced Romer v. Evans, a victory for gay rights advocates, and United States v. Virginia, which said the state-run Virginia Military Institute could not admit only males.

Scalia said he "hadn't remembered" writing the letter, which is included in the Blackmun papers at the Library of Congress. But he did say that the final months of a Supreme Court are "usually a disappointment." He also said the situation, from his point of view, was "less dire in more recent years."

When he first joined the Court in 1986, Scalia said he planned to leave the Court "as soon as I could," when he turned 65 and could retire at full pay. But now at 72 and "working for free," Scalia says he is not thinking about retiring any longer. "I can't think what I would do for an encore."

Scalia's tenor during the lengthy segment was, by turns, wary, gently combative, and downright gleeful, as Stahl asked him about his originalism, his religion, and his upbringing in Elmhurst, Queens, in New York City. When Stahl pointed out Scalia was an only child, Scalia said, "Come on, lay off. Yes, I was spoiled." The two visited his neighborhood and even P.S. 13, his elementary school, where he was shown his perfect report cards. His wife Maureen, whom he married in 1960, also appears briefly. If she had married anyone else, she said, "I would have been bored." Justice Scalia added, "Whatever my faults are, I'm not wishy-washy."

It was an overall positive piece, with Scalia's charming side in full display. The segment also spent some time on the book he co-authored, titled, "Making Your Case: The Art of Persuading Judges," which was the occasion for the interview. Co-author Bryan Garner recounted how suprisingly deferential Scalia was during the writing.

First reported in The BLT: The Blog of Legal Times.

Justices Make It Tougher to Sue Medical Device Makers

By Linda Greenhouse
The New York Times
February 21, 2008

WASHINGTON — Makers of medical devices like implantable defibrillators or breast implants are immune from liability for personal injuries as long as the Food and Drug Administration approved the device before it was marketed and it meets the agency’s specifications, the Supreme Court ruled on Wednesday.

The 8-to-1 decision was a victory for the Bush administration, which for years has sought broad authority to pre-empt tougher state regulation.

In 2004, the administration reversed longstanding federal policy and began arguing that "premarket approval" of a new medical device by the F.D.A. overrides most claims for damages under state law. Because federal law makes no provision for damage suits against device makers, injured patients have turned to state law and have won substantial awards.

The Bush administration will continue its push for pre-emption in another F.D.A. case that the court has accepted for its next term, on whether the agency’s approval of a drug, as opposed to a device, pre-empts personal injury suits. Drugs and medical devices are regulated under separate laws.

The case before the court concerned only medical devices that had gone through the premarket approval process specified by the Medical Device Amendments of 1976. Most devices now available reached the market through a different process, under which the F.D.A. found them to be "substantially equivalent" to those marketed before the 1976 law took effect.

The Supreme Court ruled in 1996 that this less rigorous approval process does not pre-empt state damage suits against the manufacturers of "grandfathered" devices.

Devices subject to the premarket approval process, and thus affected by the court’s opinion, tend to be more technologically advanced, expensive and, in some instances, risky.

Examples of devices that have been the subjects of recent lawsuits include an implantable defibrillator, a heart pump, a spinal cord stimulator, a drug-coated stent, an artificial heart valve, and prosthetic hips and knees.

It was not immediately clear how many of the thousands of lawsuits against medical device manufacturers would be affected, though some pending cases will almost certainly be nullified.

The decision, for example, does not foreclose lawsuits claiming that a device was made improperly, in violation of F.D.A. specifications. Cases may also be brought under state laws that mirror federal rules, as opposed to supplementing them.

Next Monday, the court will hear another F.D.A. pre-emption case, on whether a state case can be based on the claim that a drug maker committed fraud by misrepresenting or withholding information from the agency during the approval process. The administration is supporting the manufacturer in that case, Warner-Lambert Co. v. Kent, No. 06-1498, which concerns the diabetes drug Rezulin.

Writing for the majority in Wednesday’s case, Riegel v. Medtronic Inc., No. 06-179, Justice Antonin Scalia said that permitting state juries to impose liability on the maker of an approved device "disrupts the federal scheme," under which the F.D.A. has the responsibility for evaluating the risks and benefits of a new device and assuring that it is safe and effective for its intended use.

A jury, looking only at the injured plaintiff, will tend to weigh only the dangers of a device and "is not concerned with its benefits," Justice Scalia said, adding, "the patients who reaped those benefits are not represented in court."

The decision affirmed the dismissal of a lawsuit by a patient who was injured during an angioplasty when a balloon catheter burst while being inserted to dilate a coronary artery. The device won F.D.A. premarket approval in 1994, two years before the incident. The patient, Charles R. Riegel, died after the lawsuit was filed, and the case was carried on by his widow, Donna.

The medical device statute contains a pre-emption clause that bars states from imposing "any requirement" related to a medical device that is "different from, or in addition to" a federal requirement. The question of statutory interpretation at the heart of the case turned on what Congress meant by "any requirement."

Justice Scalia said that state tort law, by imposing duties of care on product makers, amounted to such an additional requirement. He said the 1976 law "speaks clearly to the point at issue," regardless of the federal government’s previous or current positions.

Justice Ruth Bader Ginsburg, the solitary dissenter, said the court had misconstrued Congress’s intent in adding the pre-emption clause to the 1976 law. The purpose, she said, was to prevent individual states from imposing their own premarket approval process on new medical devices. Devices were not regulated under federal law at the time, and California and other states had stepped in to fill the vacuum by setting up their own regulatory systems.

That was all that Congress had in mind, Justice Ginsburg said, not "a radical curtailment of state common-law suits seeking compensation for injuries caused by defectively designed or labeled medical devices." She said that Congress had passed the 1976 law "to protect consumer safety," not to oust the states from "a domain historically occupied by state law." The decision was at odds with the "central purpose" of the 1976 law, Justice Ginsburg added.

Crucial Democratic lawmakers appear to agree with Justice Ginsburg, including Senator Edward M. Kennedy, Democrat of Massachusetts, who heads the Health, Education, Labor and Pensions Committee and was the sole Senate sponsor of the 1976 legislation in question.

"In enacting legislation on medical devices, Congress never intended that F.D.A. approval would give blanket immunity to manufacturers from liability for injuries caused by faulty devices," Mr. Kennedy said in a statement. He added: "Congress obviously needs to correct the court’s decision."

Representative Henry Waxman, the California Democrat who is chairman of the House Committee on Oversight and Government Reform and was on the House panel that approved the 1976 bill, expressed a similar view.

"The Supreme Court’s decision strips consumers of the rights they’ve had for decades," Mr. Waxman said. "This isn’t what Congress intended, and we’ll pass legislation as quickly as possible to fix this nonsensical situation."

The Food, Drug and Cosmetic Act of 1938, under which the F.D.A. regulates pharmaceuticals, does not contain a pre-emption clause. Nonetheless, the administration is arguing in the case the court has accepted for its next term, Wyeth v. Levine, No. 06-1249, that pre-emption is implicit in the structure of the statute.

The Supreme Court’s interest in pre-emption is not limited to the medical arena. In a similar case decided on Wednesday, this one unanimously, the court ruled that the federal law that deregulated the trucking industry in 1980 pre-empted two recent laws adopted by the State of Maine to regulate the shipment of tobacco products into the state.

The state laws were intended to prevent children who were not of legal age to buy cigarettes from ordering them over the Internet. The laws placed responsibility on shippers and delivery companies to verify the recipient’s identity and age.

Justice Stephen G. Breyer, writing for the court in this case, Rowe v. New Hampshire Motor Transport Association, No. 06-457, said the state law "produces the very effect that the federal law sought to avoid, namely, a state’s direct substitution of its own governmental commands for competitive market forces" in a deregulated environment.

Barnaby Feder contributed reporting from New York and Gardiner Harris from Washington.

Supreme Court Says 401(k) Participants Can Sue

By the Associated Press
The New York Times
February 20, 2008

WASHINGTON (AP) -- The Supreme Court ruled Wednesday that individual participants in the most common type of retirement plan can sue under a pension protection law to recover their losses.

The unanimous decision has implications for 50 million workers with $2.7 trillion invested in 401(k) retirement plans.

James LaRue of Southlake, Texas, said the value of his stock market holdings plunged $150,000 when administrators at his retirement plan failed to follow his instructions to switch to safer investments.

The issue in the LaRue case was whether the Employee Retirement Income Security Act permits an individual account holder to sue plan administrators for breaching their fiduciary duties.

The language of the law refers to recovering money for the ''plan'' rather than for an individual, raising the question of whether a participant can sue solely for himself.

Justice John Paul Stevens, in his opinion for the court, said that such lawsuits are allowed. ''Fiduciary misconduct need not threaten the solvency of the entire plan to reduce benefits below the amount that participants would otherwise receive,'' Stevens said.

The decision overturned a ruling by the 4th U.S. Circuit Court of Appeals in Richmond, Va.

Unlike people enrolled in traditional pension plans, employees in 401(k) plans, which have exploded in number in the past two decades, choose from a menu of options on where to invest their money. That puts workers squarely in the middle of decision-making about their pensions and inevitably leads to the kind of disputes LaRue has with his plan's administrators.

''Defined contribution plans dominate the retirement plan scene today,'' unlike when ERISA was enacted in the mid-1970s, Stevens said.

Many traditional pension plans guaranteeing a fixed monthly benefit have either been frozen or terminated, and 401(k) plans are the main source of retirement income, said the Air Line Pilots Association, which represents 60,000 pilots at 41 air carriers.

The Bush administration argued in support of workers. The government said the appeals court ruling barring LaRue's lawsuit would leave 401(k) participants without a meaningful remedy from any federal, state or local court when plan administrators fail to live up to their duties.

Business groups supported LaRue's employer. They argued that ERISA is aimed at encouraging employers to set up pension plans, while guarding against administrative abuses involving the plan as a whole. The law doesn't permit individual lawsuits like LaRue's, the business groups said.

Congress enacted ERISA after some widely publicized failures by companies and labor unions to pay promised pensions. Workers in class-action lawsuits have long relied on the law, most recently in the scandal-ridden collapses of companies like Enron and its 401(k) plan for workers.

The term 401(k) refers to a section of the Internal Revenue Code.

Participants in 401(k) plans do not know how much money they will receive in retirement. Employees invest a certain amount each month and how much they get back depends on how well their chosen investments have performed.

The case is LaRue v. DeWolff, 06-856.

Justice Souter Considered Resigning
 After Bush v. Gore, New Book Says

By Mark Sherman
The Associated Press
New York Lawyer
September 7, 2007

WASHINGTON -- Justice David Souter contemplated resigning from the Supreme Court because he was so upset by the decision that sealed the 2000 presidential election for George W. Bush, a new book says.

Souter, one of the four dissenting justices in the case, believed his five colleagues in the majority acted in a "crudely partisan" manner in siding with Bush to shut down the recount of votes in Florida in December 2000, author Jeffrey Toobin writes in "The Nine, Inside the Secret World of the Supreme Court." A day after the decision in Bush v. Gore, Vice President Al Gore formally conceded the election.

"Souter seriously considered resigning. For many months, it was not at all clear whether he would remain as a justice," Toobin writes. "At the urging of a handful of close friends, he decided to stay on, but his attitude toward the court was never the same. There were times when David Souter thought of Bush v. Gore and wept."

The reclusive Souter, 67, typically returns to his home in New Hampshire as soon as the court finishes work in late June and heads back to Washington only in time for the start of the next term. He was named to the court by the first President Bush in 1990.

Toobin does not say how he learned that Souter thought about retiring, although he says generally that his sources include the justices themselves.

But one of Souter's close friends, former New Hampshire Sen. Warren Rudman, called Toobin's account "absolutely false."

"It's laughable. Obviously he dissented strongly. He felt the court was very wrong and he didn't think it was good for the court, never mind the issue itself," Rudman said in an interview. "But he never, ever considered resigning over that or anything else."

Souter declined to comment on the report, court spokeswoman Kathy Arberg said.

The book will be available to the public beginning Sept. 18.

Justices End 96Year-Old Ban on Price Floors

By Stephen Labaton
New York Times
June 29 , 2007

WASHINGTON— Striking down an antitrust rule nearly a century old, the Supreme Court ruled today that it is no longer automatically unlawful for manufacturers and distributors to agree on setting minimum retail prices.

The decision will give producers significantly more leeway, though not unlimited power, to dictate retail prices and to restrict the flexibility of discounters.

Five justices said the new rule could, in some instances, lead to more competition and better service. But four dissenting justices agreed with the submission of 37 states and consumer groups that the abandonment of the old rule would lead to significantly higher prices and less competition for consumer and other goods.

The court struck down the 96-year-old rule that resale price maintenance agreements were an automatic, or per se, violation of the Sherman Antitrust Act. In its place, the court instructed judges considering such agreements for possible antitrust violations to apply a case-by-case approach, known as a "rule of reason," to assess their impact on competition.

The decision was the latest in a string of opinions this term to overturn Supreme Court precedents. It marked the latest in a line of Supreme Court victories for big businesses and antitrust defendants. And it was the latest of the court’s antitrust decisions in recent years to reject rules that had prohibited various marketing agreements between companies.

The Bush administration, along with economists of the Chicago school, had argued that the blanket prohibition against resale price maintenance agreements was archaic and counterproductive because, they said, some resale price agreements actually promote competition.

For example, they said, such agreements can make it easier for a new producer by assuring retailers that they will be able to recoup their investments in helping to market the product. And they said some distributors could be unfairly harmed by others — like Internet-based retailers — that could offer discounts because they would not be incurring the expenses of providing product demonstrations and other specialized consumer services.

A majority of the court agreed that the flat ban on price agreements discouraged these and other marketing practices that could be helpful to competition.

"In sum, it is a flawed antitrust doctrine that serves the interests of lawyers — by creating legal distinctions that operate as traps for the unaware — more than the interests of consumers — by requiring manufacturers to choose second-best options to achieve sound business objectives," the court said in an opinion by Justice Anthony M. Kennedy and signed by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.

But in his dissent, portions of which he read from the bench, Justice Stephen G. Breyer said there was no compelling reason to overturn a century’s worth of Supreme Court decisions that had affirmed the prohibition on resale maintenance agreements.

"The only safe predictions to make about today’s decision are that it will likely raise the price of goods at retail and that it will create considerable legal turbulence as lower courts seek to develop workable principles," he wrote. "I do not believe that the majority has shown new or changed conditions sufficient to warrant overruling a decision of such long standing."

During the period from 1937 to 1975 when Congress allowed the states to adopt laws that permitted retail price fixing, economists estimated that such agreements covered about 10 percent of consumer good purchases. In today’s dollars, Justice Breyer estimated that the agreements translate to a higher annual average bill for a family of four of roughly $750 to $1,000.

The dissent was signed by Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg.

The case involved an appeal of a judgment of $1.2 million against Leegin Creative Leather Products Inc. after it cut off Kay’s Kloset, a suburban Dallas shop, for refusing to honor Leegin’s no-discount policy. The judgment was automatically tripled under antitrust law.

Leegin’s marketing strategy for finding a niche in the highly competitive world of small leather goods was to sell its "Brighton" line of fashion accessories through small boutiques that could offer personalized service. Retailers were required to accept a no-discounting policy.

After the United States Court of Appeals for the Fifth Circuit, in New Orleans, upheld the judgment and said it was bound by Supreme Court precedent, Leegin took the case to the Supreme Court. Unless it is settled, the case, Leegin Creative Leather Products v. PSK Inc., will now be sent down to a lower court to apply the new standard.

The Supreme Court adopted the flat ban on resale price agreements between manufacturers and retailers in 1911, when it founded that the Dr. Miles Medical Company had violated the Sherman act. The company had sought to sell medicine only to distributors who agreed to resell them at set prices. The court said such agreements benefit only the distributors, not consumers, and set a rule making such agreements unlawful.

Justice Kennedy said today that the court was not bound by the 1911 precedent because of the "widespread agreement" among economists that resale price maintenance agreements can promote competition.

"Vertical agreements establishing minimum resale prices can have either pro-competitive or anticompetitive effects, depending upon the circumstances in which they are formed," he wrote.

But Justice Breyer said in his dissent that the court had failed to justify the overturning of the rule, or that there was significant evidence to show that price agreements would often benefit consumers. He said courts would have a difficult time sorting out the price agreements that help consumers from those that harm them.

"The upshot is, as many economists suggest, sometimes resale price maintenance can prove harmful, sometimes it can bring benefits," he wrote. "But before concluding that courts should consequently apply a rule of reason, I would ask such questions as, how often are harms or benefits likely to occur? How easy is it to separate the beneficial sheep from the antitrust goats?"

"My own answer," he concluded, "is not very easily."

Supreme Court Oks Abortion Procedure Ban

By Mark Sherman
Associated Press
April 18, 2007

WASHINGTON (AP) - The Supreme Court's conservative majority handed anti-abortion forces a major victory Wednesday in a decision that bans a controversial abortion procedure and set the stage for further restrictions.

For the first time since the court established a woman's right to an abortion in 1973, the justices upheld a nationwide ban on a specific (AP) Anti abortion demonstrator                   abortion method, labeled partial-birth abortion Joshua Alcorn stands outside the             by its opponents.
 

The 5-4 decision written by Justice Anthony  Kennedy said the Partial Birth Abortion Ban Act that Congress passed and President Bush signed into law in 2003 does not violate a woman's constitutional right to an abortion.

The law is constitutional despite not containing an exception that would allow the procedure if needed to preserve a woman's health, Kennedy
said. "The law need not give abortion doctors (AP) National Clergy Council President       unfettered choice in the course of their medical Rev. Rob Schenck holds a copy of the          practice," he wrote in the majority opinion.

Doctors who violate the law face up to two years in federal prison.

Kennedy's opinion, joined by Bush's two appointees, Chief Justice John Roberts and Justice Samuel Alito, was a long-awaited resounding win that abortion opponents expected from the more conservative bench.

The administration defended the law as drawing a bright line between abortion and infanticide.

Reacting to the ruling, Bush said that it affirms the progress his administration has made to defend the "sanctity of life."

"I am pleased that the Supreme Court has upheld a law that prohibits the abhorrent procedure of partial birth abortion," he said. "Today's decision affirms that the Constitution does not stand in the way of the people's representatives enacting laws reflecting the compassion and humanity of America."

Justices Clarence Thomas and Antonin Scalia also were in the majority.

It was the first time the court banned a specific procedure in a case over how - not whether - to perform an abortion.

Abortion rights groups as well as the leading association of obstetricians and gynecologists have said the procedure sometimes is the safest for a woman. They also said that such a ruling could threaten most abortions after 12 weeks of pregnancy, although Kennedy said alternate, more widely used procedures remain legal.

The outcome is likely to spur efforts at the state level to place more restrictions on abortions.

"I applaud the Court for its ruling today, and my hope is that it sets the stage for further progress in the fight to ensure our nation's laws respect the sanctity of unborn human life," said Rep. John Boehner of Ohio, Republican leader in the House of Representatives.

Said Eve Gartner of the Planned Parenthood Federation of America: "This ruling flies in the face of 30 years of Supreme Court precedent and the best interest of women's health and safety. ... This ruling tells women that politicians, not doctors, will make their health care decisions for them." She had argued that point before the justices.

More than 1 million abortions are performed in the United States each year, according to recent statistics. Nearly 90 percent of those occur in the first 12 weeks of pregnancy, and are not affected by Wednesday's ruling. The Guttmacher Institute says 2,200 dilation and extraction procedures - the medical term most often used by doctors - were performed in 2000, the latest figures available.

Six federal courts have said the law that was in focus Wednesday is an impermissible restriction on a woman's constitutional right to an abortion.

The law bans a method of ending a pregnancy, rather than limiting when an abortion can be performed.

"Today's decision is alarming," Justice Ruth Bader Ginsburg wrote in dissent. She said the ruling "refuses to take ... seriously" previous Supreme Court decisions on abortion.

Ginsburg said the latest decision "tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists."

Ginsburg said that for the first time since the court established a woman's right to an abortion in 1973, "the court blesses a prohibition with no exception safeguarding a woman's health."

She was joined by Justices Stephen Breyer, David Souter and John Paul Stevens.

The procedure at issue involves partially removing the fetus intact from a woman's uterus, then crushing or cutting its skull to complete the abortion.

Abortion opponents say the law will not reduce the number of abortions performed because an alternate method - dismembering the fetus in the uterus - is available and, indeed, much more common.

In 2000, the court with key differences in its membership struck down a state ban on partial-birth abortions. Writing for a 5-4 majority at that time, Justice Breyer said the law imposed an undue burden on a woman's right to make an abortion decision in part because it lacked a health exception.

The Republican-controlled Congress responded in 2003 by passing a federal law that asserted the procedure is gruesome, inhumane and never medically necessary to preserve a woman's health. That statement was designed to overcome the health exception to restrictions that the court has demanded in abortion cases.

But federal judges in California, Nebraska and New York said the law was unconstitutional, and three appellate courts agreed. The Supreme Court accepted appeals from California and Nebraska, setting up Wednesday's ruling.

Kennedy's dissent in 2000 was so strong that few court watchers expected him to take a different view of the current case.

Kennedy acknowledged continuing disagreement about the procedure within the medical community. In the past, courts have cited that uncertainty as a reason to allow the disputed procedure.

"The medical uncertainty over whether the Act's prohibition creates significant health risks provides a sufficient basis to conclude ... that the Act does not impose an undue burden," Kennedy said Wednesday.

While the court upheld the law against a broad attack on its constitutionality, Kennedy said the court could entertain a challenge in which a doctor found it necessary to perform the banned procedure on a patient suffering certain medical complications.

The law allows the procedure to be performed when a woman's life is in jeopardy.

The cases are Gonzales v. Carhart, 05-380, and Gonzales v. Planned Parenthood, 05-1382.

Kennedy Recuses From Antitrust Case
 Involving Son's Company

Tony Mauro
Legal Times
March 21, 2007

Supreme Court Justice Anthony Kennedy's son Gregory is a managing director of Credit Suisse, the investment banking firm that is a party in a major antitrust case set for argument before his father's court March 27.

It is apparently because of his son's employment that Kennedy on Monday suddenly recused in the case, Credit Suisse v. Billing, after having participated in the decision last December to grant review.

Kennedy's late-stage recusal triggered an unusual sequence of events in the case, announced on an otherwise routine order list Monday. The Court vacated its December grant of review in the case, "having been advised by Justice Kennedy that he now realizes that he should have recused himself from participation in this case, and does now recuse himself."

But then, the order continued, the Court reconsidered the Credit Suisse petition, without the participation of Kennedy or Chief Justice John Roberts Jr., who had previously recused. Minus the two justices, the Court granted review again, and the case will be argued as previously scheduled -- though before a seven-member Court. At issue in the case is whether investment firms and underwriters like Credit Suisse are immune from antitrust lawsuits over alleged manipulation of prices of stocks sold in initial public offerings.

Kennedy, like most justices, never publicly explains his reasons for recusal. But his son's employment is almost certainly the cause, since no financial conflict of interest is apparent from Kennedy's latest financial disclosure form. Gregory Kennedy, who works in Credit Suisse's New York offices, declined comment and referred calls to the firm's public relations office, which also declined comment. Mayer, Brown Rowe & Maw partner Stephen Shapiro, who will argue the case for Credit Suisse next week, says he was not aware that Kennedy's son worked for the firm.

What is unclear so far is why Justice Kennedy did not recuse in the Credit Suisse case last December, even though his son has been a managing director at Credit Suisse since August 2005.

Kennedy was among seven justices who signed a statement in 1993 specifying that in cases in which their lawyer-spouses or lawyer-children had a connection, they would recuse only when the justices knew their relative had an interest that could be "substantially affected," or when the justice's impartiality "might reasonably be questioned."

Gregory Kennedy, a 1992 graduate of Stanford Law School, formerly practiced law at Sullivan & Cromwell in New York. At that time he, like Eugene Scalia, a son of Justice Antonin Scalia who works at Gibson, Dunn & Crutcher, structured his compensation so that it was not dependent on Supreme Court litigation.

But once the younger Kennedy left the law for Wall Street, the 1993 agreement no longer applied. The statute governing the recusal of federal judges makes it unnecessary to recuse in most cases in which a judge's close adult relatives are involved in a case before the judge.

Northwestern University judicial ethics expert Steven Lubet says that in such a situation the judge must recuse only if the relative is "known by the judge to have an interest" that would be substantially affected by the outcome of the case. Typically, if a relative of a judge is a salaried employee of a company in a case that falls short of life-or-death importance for that company, recusal is not required, Lubet says.

But on Wall Street, managing directors are typically compensated with a combination of salary and stock. A Credit Suisse spokesman declined to say if Gregory Kennedy's compensation includes stock.

But assuming that is the case for the young Kennedy, his father may have decided to act because the outcome of the Credit Suisse case could conceivably affect its stock value, Lubet says.

"He probably came to the belated conclusion that his son had an interest that could be substantially affected by the case," Lubet says.

Lubet says Kennedy "was prudent to be concerned" about the ethical issue, though he wishes Kennedy -- and his colleagues -- would be more open in their decision-making. "It is frustrating, baffling, and unjustifiable that they make this all so mysterious."

Roberts did not explain his recusal in the Credit Suisse case last December, but his 2005 disclosure form reveals he has investments with several of the firms connected to the case, including: Merrill Lynch, Pierce, Fenner & Smith; Fidelity; and Janus.

Case of the Dwindling Docket Mystifies the Supreme Court

Linda Greenhouse
The New York Times
December 7, 2006

WASHINGTON, Dec. 6 — On the Supreme Court’s color-coded master calendar, which was distributed months before the term began on the first Monday in October, Dec. 6 is marked in red to signify a day when the justices are scheduled to be on the bench, hearing arguments.

The courtroom, however, was empty on Wednesday, and for a simple reason: The court was out of cases. The question is, where have all the cases gone?

Last year, during his Senate confirmation hearing, Chief Justice John G. Roberts Jr. said he thought the court had room on its docket and that it "could contribute more to the clarity and uniformity of the law by taking more cases."

But that has not happened. The court has taken about 40 percent fewer cases so far this term than last. It now faces noticeable gaps in its calendar for late winter and early spring. The December shortfall is the result of a pipeline empty of cases granted last term and carried over to this one.

The number of cases the court decided with signed opinions last term, 69, was the lowest since 1953 and fewer than half the number the court was deciding as recently as the mid-1980s. And aside from the school integration and global warming cases the court heard last week, along with the terrorism-related cases it has decided in the last few years, relatively few of the cases it is deciding speak to the core of the country’s concerns.

The reasons for the decline all grow out of forces building for decades. The federal government has been losing fewer cases in the lower courts and so has less reason to appeal. As Congress enacts fewer laws, the justices have fewer statutes to interpret. And justices who think they might end up on the losing side of an important case might vote not to take it.

In a divided court, in a divided country, the court’s reduced role is perhaps not surprising, nor is it necessarily a bad thing. "In the post-Bush v. Gore era, the court may be concerned about taking the wrong case and making an unpopular decision," said Frederick Schauer, a professor at the John F. Kennedy School of Government at Harvard, in an interview.

Professor Schauer argued in a recent and much-discussed Harvard Law Review article that the court’s work "had only minimal direct engagement with the central issues of the nation’s public and policy agenda." In an interview, he said, "I think they like being under the radar."

In private conversations, the justices themselves insist that nothing so profound is going on, but rather seem mystified at what they perceive as a paucity of cases that meet the court’s standard criteria. The most important of those criteria is whether a case raises a question that has produced conflicting decisions among the lower federal courts.

But there are still plenty of lower-court conflicts that go unresolved, said Thomas C. Goldstein, a Supreme Court practitioner and close student of court statistics who wrote last week on the popular Scotusblog that the justices were "on the cusp of the greatest shortfall in filling the court’s docket in recent memory, and likely in its modern history."

"I don’t think we’re at the end of history and have fixed all the problems," Mr. Goldstein said in an interview.

One theory is that the court is so closely divided that neither the liberals nor the conservatives want to risk granting a case in which, at the end of the day, they might not prevail. To grant a case takes four votes, which can be a heartbreaking distance from the five votes it takes to win. Scholars of the court call this risk-averse behavior "defensive denial."

While such behavior may account for a portion of the shortfall, it can hardly provide a global explanation, because only a relative handful of the 8,000 appeals that reach the court each term are ideologically charged.

Other, more neutral explanations provide likely pieces of the puzzle.

One is the decreasing number of appeals filed on behalf of the federal government by the solicitor general’s office. Over the decades, the Supreme Court has granted cases filed by the solicitor general’s office at a high rate. In the mid-1980s, the office was filing more than 50 petitions per term. But as the lower federal courts have become more conservative and the government has lost fewer cases, the number has plummeted, opening a substantial hole in the court’s docket.

As recently as the court’s 2000 term, the solicitor general filed 24 petitions, of which 17 were granted. Last term, it filed 10, of which the court granted 4. This term, the solicitor general has filed 13 petitions; the court has granted 5, denied 3 and is still considering the rest.

Another explanation lies across the street from the Supreme Court, in Congress.

Over the years, about half the court’s docket has been made up not of constitutional cases, but of cases requiring the justices to interpret federal statutes. Statutes from the 1970s, including major environmental laws, antidiscrimination laws and Erisa, the employee-benefits law, have been staples of the court’s docket for decades. But as Congress’s willingness to pass new laws has waned, the flow of statutory cases has begun to dry up.

Another possible explanation is the method by which the justices screen the thousands of petitions. Eight of the justices, all except Justice John Paul Stevens, pool their law clerks and have only one clerk make the initial recommendation for each case.

The recommendation is not binding, of course. But there is a built-in "institutional conservatism" in which law clerks are afraid to look overly credulous and so are reluctant to recommend a grant, according to Stephen M. Shapiro, a former deputy solicitor general who practices law in Chicago with Mayer, Brown, Rowe and Maw.

"Perhaps the clerks have been trained to be naysayers for so long that they don’t know any other way," Mr. Shapiro said in an interview.

The sharpest drop in opinions came after William H. Rehnquist became chief justice in 1986. He had made clear his belief that the court under Chief Justice Warren E. Burger was taking too many cases, and Congress assisted in 1988 by eliminating from the court’s jurisdiction a category of "mandatory" appeals to which the justices collectively had long objected.

In the early 1990s, after the number of decisions dropped to 107 from 145 in the space of five terms, Chief Justice Rehnquist responded to reporters’ questions by commenting wryly that the Supreme Court would be the first institution of American government to fulfill Karl Marx’s prophecy of the withering away of the state.

He was kidding, of course. The late chief justice believed in a muscular role for the court, and went on to show that he could accomplish more with less.

The question now, on a docket dominated by cases that only a law professor could love, is how much less.

"It’s not obvious to me that the court should be doing more," said Orin Kerr, a visiting professor at the University of Chicago Law School who wrote on his blog that constitutional law scholars "are kind of bored these days."

In an interview, Professor Kerr said that while it was easy to say that the court should be doing something different, "no two people would agree on how it should change."

Alito Urges Judges to Show Restraint

By Mark Sherman
The Associated Press
New York Lawyer
November 17, 2006

WASHINGTON -- Supreme Court Justice Samuel Alito on Thursday called for judicial restraint, saying courts are not "the center of the universe" when it comes to legal questions.

"Life-tenured, appointed judges must exercise restraint in construing" the constitution, Alito told a meeitng of the Federalist Society in a hotel ballroom packed with prominent conservatives.

Alito joined the court earlier this year, helped by society members who mounted an aggressive campaign to build support for his confirmation in the Senate.

The newest justice proudly called himself a 20-year member of the group and embraced its ideal of limited government.

He said the executive and legislative branches of government should play an active role in determining the constitutionality of proposed laws and enforcement actions and not leave that function solely to the judiciary.

"It is wrong to think that the courts are the center of the universe when it comes to all legal questions," Alito said.

He spoke after the group marked Justice Antonin Scalia's 20th anniversary on the court. Alito jokingly complained that after Scalia's 98-0 confirmation in 1986, he expected all Italian-American jurists from New Jersey to have an equally smooth path to the court.

"It didn't quite turn out that way, but what's 40 votes?" Alito asked, recalling opposition to his nomination from liberal groups and some Democratic senators.

Alito was confirmed in the Senate by a vote of 58-42 earlier this year.

Alito and a half dozen other federal judges nominated by President Bush are taking part in the Federalist Society's annual convention, a measure of the conservative organization's influence in the nation's legal system.

Solicitor General Paul Clement, the Bush administration's lawyer at the Supreme Court, kicked off the meeting Thursday morning with the prediction that with two new Bush-appointed conservative justices, the high court will have ample opportunity in coming years to spell out its views on limited government, a Federalist Society hallmark.

Clement said an early test for the court would be the upcoming case in which 12 states, three cities and environmental groups are trying to compel the Environmental Protection Agency to recognize carbon dioxide and other greenhouse gas emissions from cars as harmful pollutants that should be regulated.

Clement said he will be defending the government's "discretion not to regulate" in this area. The administration has been strongly criticized by environmentalists and others for its lack of action to address global warming.

The Federalist Society for Law and Public Policy Studies was founded in 1982 as a debating society by students who believed professors at the top law schools were too liberal. It now claims 35,000 members, including prominent members of the Bush administration, the federal judiciary and Congress.

Vice President Dick Cheney and Homeland Security Secretary Michael Chertoff are scheduled to address the convention Friday.

Abortion Cases Draw Throngs to High Court
Lawyers Focus on Justice Kennedy in Arguments

By Joan Biskupic
USAa Today
November 9, 2006

WASHINGTON — The Supreme Court was packed and demonstrators gathered outside under drizzly skies Wednesday as the justices heard arguments in what probably will be two of the most significant abortion rights cases in decades.

The disputes over Congress' ban of a procedure it calls "partial birth" abortion represent a key test of whether the court led by Chief Justice John Roberts will take a harder line against abortion rights now that Justice Sandra Day O'Connor, a key supporter of such rights, has retired.

However, as the two-hour court session played out, neither Roberts nor the conservative justice who replaced O'Connor, Samuel Alito, were the key players. Instead, everything seemed choreographed around Anthony Kennedy, the justice who is at the ideological center of the divided, nine-member court. Kennedy, who has supported abortion rights but voted against striking down a state ban on "partial birth" abortion six years ago, is widely viewed as the key vote in the cases.

As he seemed to struggle with whether the Republican-led Congress' ban on the midterm procedure should be upheld, lawyers in the case focused on him in their arguments. Liberal justices such as Ruth Bader Ginsburg and John Paul Stevens suggested the ban restricted the right to abortion and appeared to try to lure Kennedy to their side by asking leading questions of lawyers.

In 2000, the court rejected state bans on "partial birth" abortion that did not include an exception for situations in which a woman's health was in danger. A key issue Wednesday was whether Congress can outlaw the procedure by declaring that it is "never" necessary for maternal health.

Kennedy expressed concern about how often the banned method — known medically as "intact dilation and evacuation" or "dilation and extraction" — is used and whether alternatives are readily available. The procedure involves removing a fetus so it partially emerges from the vagina intact, rather than dismembering the fetus in the uterus.

The court's 350-seat courtroom was filled; members of the public began lining up at 3:30 p.m. Tuesday for a chance to hear the arguments. Scores of protesters from both sides of the abortion debate, along with TV news crews and others who failed to get a prized seat inside, gathered in front of the building.

The arguments were jarringly broken 40 minutes into the session by the screaming of a spectator who opposed abortion. Several police officers wrestled him out of the courtroom.

Roberts, who appeared to support the ban, asked several questions, but the court's other conservatives were unusually quiet. Alito said nothing; the usually talkative Antonin Scalia made few queries. (Another conservative, Clarence Thomas, was absent because of illness; Roberts said Thomas would still participate in the case.)

The conservatives seemed content to let U.S. Solicitor General Paul Clement defend the 2003 ban. "Congress was entitled to make a judgment … to ban a particularly gruesome procedure that blurred the line between abortion and infanticide," he said.

Kennedy, who often votes with the conservatives, has vacillated on abortion. In 1989, he joined an opinion that would have undermined Roe v. Wade. In 1992, he reversed course and became the critical fifth vote to uphold Roe. In 2000, he split from his abortion rights colleagues and dissented from the ruling that said states could not ban the procedure without a health exception.

Kennedy's comments Wednesday suggested he is not locked into that position, but it was unclear how he might vote. "In how many … instances is there serious health risk to the mother that requires the procedure, as opposed to (it) simply being an elective procedure?" he asked.

Priscilla Smith, representing Nebraska physician LeRoy Carhart, said no hard data exist. But she said that for some doctors whose patients face cancer, hemorrhaging or other serious medical conditions, the procedure is common.

Lawyer Eve Gartner, representing Planned Parenthood Federation of America, said that although the number of women affected by the ban might not be high, "in some cases, this procedure averts catastrophic health consequences for the woman."

Some of Kennedy's questions suggested he was worried about the risks to women who might not have access to the procedure some physicians say is more protective of a woman's uterus. He also seemed concerned that doctors might inadvertently violate the law by starting to do one procedure, then ending up doing the banned one.

Half of New Supreme Court Cases Term Touch on Business

By Mark H. Anderson
Market Watch
September 29, 2006

WASHINGTON (MarketWatch) -- The U.S. Supreme Court so far has filled half of its 2006-2007 docket with business cases, cutting a wide swath across important legal issues for the corporate world.

Topping the list is a punitive damages case that is being closely followed across business sectors. But the justices have also taken up several cases on antitrust, intellectual property and environmental regulation, continuing a recent trend where the court has shown particular interest in these areas.

"When the Supreme Court returns from its summer recess, it will hear a great number of cases important to the business community," said Robin Conrad, senior vice president at the U.S. Chamber of Commerce's litigation unit. "We applaud the Supreme Court for recognizing that business cases belong on its docket and deserve to be addressed."

Mark Levy, an appellate lawyer at Kilpatrick Stockton LLP, said that by his count the Supreme Court is reviewing 19 business-related appeals of the 38 issues taken up so far for the 2006-2007 term set to begin on Monday, Oct. 2. The Supreme Court's accepts between 70 and 80 cases each term and will fill the second half of the docket between now and January 2007.

Levy said last year the court's docket was about 30% business matters. "The difference between 30% and 50% is significant," he said.

Earlier this week the justices added several more business cases when they granted nine new cases from almost 2,000 appeals that were filed with the high court over the summer. Among those appeals is a case on the "willfulness" liability test in the Fair Credit Reporting Act. The justices, reviewing class-action lawsuits on credit scoring and insurance coverage, will be deciding the standard for when insurance companies must tell consumers when low credit scores have resulted in higher quoted rates for coverage.

Here is a look at some of the important business cases already slated for review this fall:

- In late October the Supreme Court will hear an appeal filed by Altria Group Inc.'s (MO) Philip Morris USA unit challenging a $79.5 million punitive damages award to a smoker's widow. Punitive damages cases against companies is a high-profile legal business issue and how the court rules in this case is being closely watched by a number of corporate interests.

In addition to further clarifying limits on the size of punitive damages in relation to actual damages in liability suits, Levy said this case is well positioned to provide additional insights on how new Chief Justice John Roberts Jr. and Justice Samuel Alito will reshape the Supreme Court.

The last Supreme Court decision on punitive damages came in 2003 on a vote of 6-3 in the court's State Farm decision. Two of the majority votes came from former Chief Justice William Rehnquist and former Justice Sandra Day O'Connor, who declined to join the most conservative members of the court in rejecting limits on punitive damages.

"We don't know what they think about punitive damages," Levy said of Roberts and Alito. He added the case could say something about how far the new justices will go in respecting legal precedent, or stare decisis, which was a major issue during their confirmation hearings last year.

An incremental approach to punitive damages by the two justices would extend limits imposed by State Farm by the courts moderate and liberal justices. A vote with conservatives who have rejected judicial limits on jury awards could overturn the recent precedent that generally limits punitive damages to single digit ratios with actual damages.

- The Supreme Court will continue a recent trend of reviewing patent law and intellectual property rulings out of the Federal U.S. Circuit Court of Appeals, a special Washington-based court that rules on patent law appeals.

The most significant patent case is the Supreme Court's review of so-called obviousness standards in patent law, which determines when an invention is too obvious to warrant patent protection. In the case before the court, Teleflex Inc. (TFX) has claimed KSR International Inc. of Canada has violated patents it owns for gas pedal designs. Teleflex's claims were initially dismissed, but the Federal Circuit ruled additional analysis was necessary and spelled out what some patent experts believe are lower standards for obviousness claims.

- The justices have also so far taken up two cases that continue another recent trend of reviewing antitrust case law. Additional antitrust appeals that could be granted are in the pipeline. One case already on the docket, however, is a civil antitrust lawsuit against regional phone companies Verizon Communications Inc. (VZ), BellSouth Corp. (BLS), AT&T Inc.'s (T) SBC Communications unit and Quest Communications International Inc. (Q).

The issue in the phone company case is what the plaintiffs must prove in arguing the companies engaged in an anti-competitive conspiracy that violated civil antitrust law before their case can proceed to legal discovery. The phone companies argue the 2nd U.S. Circuit Court of Appeals, New York, issued a ruling that set the standards too low and will expose corporations to more costly litigation if allowed to stand.

The other antitrust case reviews a $78.77 million judgment against Weyerhaeuser Co. (WY) for allegedly engaging in predatory buying in the Pacific Northwest lumber market. The case could alter standards for what triggers an antitrust violation when a company buys up raw materials at inflated prices with the aim of choking off competition.

- The court is also hearing a pair of environmental regulation appeals that simultaneously review federal clean air regulation standards and probe presidential administration powers. "They both fit into a political template," Levy said of the clean air regulation appeals.

The first case involves an appeal from 12 states and several environmental groups that are trying to force the Environmental Protection Agency to regulate automobile emissions under the Clean Air Act. The second case probes whether plant upgrades by Duke Energy Corp. (DUK) are subject to EPA regulations to limit pollution at coal-fired power plants

In Loss for Bush, Supreme Court
Blocks War-Crimes Trials at Guantanamo

New York Lawyer
By The Associated Press
June 29, 2006

Washington - The Supreme Court ruled Thursday that President Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees.

The ruling, a rebuke to the administration and its aggressive anti-terror policies, was written by Justice John Paul Stevens, who said the proposed trials were illegal under U.S. law and Geneva conventions.

The case focused on Salim Ahmed Hamdan, a Yemeni who worked as a bodyguard and driver for Osama bin Laden. Hamdan, 36, has spent four years in the U.S. prison in Cuba. He faces a single count of conspiring against U.S. citizens from 1996 to November 2001.

Two years ago, the court rejected Bush's claim to have the authority to seize and detain terrorism suspects and indefinitely deny them access to courts or lawyers. In this followup case, the justices focused solely on the issue of trials for some of the men.

The vote was split 5-3, with moderate Justice Anthony M. Kennedy joining the court's liberal members in ruling against the Bush administration. Chief Justice John Roberts, named to the lead the court last September by Bush, was sidelined in the case because as an appeals court judge he had backed the government over Hamdan.

Thursday's ruling overturned that decision.

Courtroom Camera Bill Stirs Debate

By Matthew Chayes
Chicago Tribune
May. 03, 2006

WASHINGTON - As far as opinions go, Justice David Souter has made it clear what he thinks of TV cameras in Supreme Court hearings.

"I think the case is so strong," Souter told a House subcommittee in 1996, "that I can tell you the day you see a camera come into our courtroom it's going to roll over my dead body."

But now a bill sponsored by Sen. Arlen Specter, R-Pa., and approved by the Senate Judiciary Committee he leads would force the Supreme Court to let cameras into its hallowed halls, one of the few public spaces in Washington, along with other federal courts, where cameras are banned.

That prospect miffed two other justices, Anthony Kennedy and Clarence Thomas, who told a House subcommittee early this month that if Congress authorized the use of cameras at the court, it would mar the Supreme Court's decorum, endanger the justices' personal security and raise constitutional questions over the proper role of each branch of government.

Supporters of cameras in the Supreme Court, including Sen. Dick Durbin, D-Ill., say that opening the court to cameras would teach the nation an important civics lesson.

"Unfortunately, a lot of people think this is all about Judge Judy, and that is not how justice is handed down in America," Durbin said, referring to the television judge. "This is an institution, one of the most important in our government, a government that prides itself on being open and accessible. Eliminating the mystery of these proceedings will help people understand what justice really means."

Laurence Tribe, a Harvard law professor who supports cameras at the high court, agreed, noting that only the "privileged few" get to witness the justices in court.

"Unfortunately, only the most naive idealist believes that the general public reads the court's opinions," said Tribe, whose first argument before the Supreme Court in 1980 established that the Constitution guarantees the public's right to attend criminal trials.

The move to allow cameras comes after Chief Justice John Roberts Jr. said in his confirmation hearings that he would be willing to consider televising Supreme Court sessions.

Last year, when the courts refused to step in to order that Terri Schiavo be kept alive, lawmakers demanded more accountability from the courts. When Specter introduced his camera measure in September, he complained that the Supreme Court has become a "virtual super legislature."

The same week, Sen. Charles Grassley, R-Iowa, and Rep. James Sensenbrenner, R-Wis., chairman of the House Judiciary Committee, proposed separate measures to install a watchdog over the nation's courts, that would "provide for the detection and prevention of inappropriate conduct in the federal judiciary."

Judge Boyce Martin of the 6th U.S. Circuit Court of Appeals based in Cincinnati said, "Televising proceedings is one of the more important new innovations that's gonna help the judiciary be appreciated more by the public as a whole."

Supporters of courtroom cameras dismiss Kennedy's assertion on legal grounds that forcing cameras into the court would raise separation-of-powers concerns. They note that Congress sets the judiciary's budget, its jurisdiction and the number of justices.

"For him to say that we couldn't say that you have cameras in the courtroom is just idiotic," said Grassley, who has proposed legislation that would let judges decide whether to televise proceedings in their courtrooms. The Specter measure would force the nine justices to admit cameras into the court although they could on a case-by-case basis have them banned.

Judge Alex Kozinski, who sits on the 9th U.S. Circuit Court of Appeals based in California, where cameras film some appellate proceedings, said he believes that giving jurists the choice is the right approach. But he opposes having legislators force it on the judiciary.

"I think cameras work fine if the judges involved are comfortable with having them there," he said, but he insists it should be an evolution in their thinking, not a mandate.

The Supreme Court now makes audio recordings and transcripts of the oral arguments available later each term. Recordings for noteworthy cases are released immediately after a hearing.

Kozinski said that televising all federal court proceedings is probably inevitable but that the push should come from the judiciary.

At the state level, numerous states allow cameras and televising of trials.

Several Supreme Court justices have at various times said they don't want cameras in the courtroom because they value their privacy, helping protect them from people who might physically attack them because they disagree with decisions.

But attacks on Supreme Court justices are rare.

Justice Byron White, during a speech in Utah in 1982, was punched by a screaming man critical of the court's decisions on school integration and pornography. Justice Ruth Bader Ginsburg and retired Justice Sandra Day O'Connor recently disclosed they got death threats.

White suffered minor bruising, but some attacks on judges have ended tragically, including last year's murders in Chicago of the husband and mother of U.S. District Judge Joan Lefkow by a disgruntled plaintiff.

But lawmakers pushing for televised court proceedings say judges would be in no more danger than members of the other two branches of government.

"Since I live in a world of televised Senate proceedings and vote on controversial bills and make speeches on a regular basis, I don't think that that jeopardizes my security," Durbin said.

Plus, camera supporters argue, the identities of most federal court jurists are publicly available anyway.

"Anybody who really wants to know what I look like can just put my name into Google," Kozinski said, "and a Google image will come up with any number of pictures of what I look like."

Ginsburg Calls Proposed
Congressional Watchdog for Courts "Scary"

By Gina Holland
The Associated Press
May 3, 2006

WASHINGTON -- Supreme Court Justice Ruth Bader Ginsburg said Tuesday that a Republican proposal in Congress to set up a watchdog over the federal courts is a "really scary idea."

Ginsburg told a gathering of the American Bar Association that lawyers should stick up for judges when they are criticized by congressional leaders.

"My sense now is that the judiciary is under assault in a way that I haven't seen before," she said.

As an example, she mentioned proposals by senior Republicans who want an inspector general to police judges' acceptance of free trips or their possible financial interests with groups that could appear before them.

"It sounds to me very much like the Soviet Union was .... That's a really scary idea," said Ginsburg, who was put on the court by President Clinton and is one of its liberal members.

Ginsburg said her confirmation hearings in 1993, and those the following year for Justice Stephen Breyer, were long but friendly. "That bipartisan spirit has broken down," she said.

Sen. Charles Grassley, R-Iowa, said last week that the judiciary wasn't doing enough policing of itself. His plan would create an inspector general to oversee federal courts including the Supreme Court. The inspector general would be directed to report any judicial misconduct to the Justice Department.

House Judiciary Committee Chairman James Sensenbrenner, R-Wis., has proposed a separate plan to cover lower federal courts only.

Ginsburg said her concerns were about the legislative branch setting up a so-called guardian for the judicial branch. She also said there have been discussions in Congress about limiting the scope of courts.

American Bar Association President Michael Greco asked Ginsburg what lawyers could do. She said attorneys can speak up and "say these efforts are wrong." Judges, she said, cannot lobby on their own behalf.

http://judiciary.house.gov/media/pdfs/judgeIGintro42706.pdf