CourtArtist.com

The Wind and the Rain Don't Deter the Supremes (for today)

With the rest of the federal government shut down today as hurricane Sandy bore down on Washington, the Supreme Court kept to its schedule and heard arguments in two cases. In the first case, pictured above, the ACLU's Jameel Jaffer argued that American citizens are harmed when their communications are intercepted under the new FISA Amendment Act. 

The second case argued today concerns the resale of books. Normally one can sell or otherwise dispose of an actual printed copy without permission from the copyright holder, but in this case a foreign student at a U.S. university paid for his education by having his familly purchase textbooks in Asia at a lower price which he then resold for profit.

Justice Breyer, known for his elaborate hypotheticals, must have had hurricane Sandy on his mind, for during the first argument he asked Solicitor General Verrilli, "All right, fine. That's why i say certainly....it might not be a storm tomorrow. I mean nothing is certain." and during arguments in the second case, "Now, for example, I believe there is going to be a storm, but it hasn't started yet".

The Court has cancelled tomorrow's session. Tuesday's arguments will be heard on Thursday.

Supreme Court Revisits Affirmative Action

Nine years after deciding that race, though not quotas, could be considered in college admissions a new, somewhat more conservative Supreme Court is reconsidering affirmative action. The case against the University of Texas was brought by Abigail Fisher, a Texas high school student who says she was denied admission because of her race.

The first question for Fisher's attorney, Bert W. Rein, came from Justice Ginsburg, who along with Justices Breyer and Sotomayor, is expected to uphold the Court's earlier position on affirmative action in college admissions. Justice Kagan, whose empty chair can be seen on the right, is not taking part in the case.

The more conservative members of the Court, who had been mostly silent during Rein's argument, sprang into active questioning as Gregory Garre took the lectern to defend the university's program.

Justice Alito, a foe of affirmative action plans who replaced Justice O'Connor, the author of the Court's earlier opinon in Grutter v. Bollinger, asked Garre, "I thought that the whole purpose of affirmative action was to help students ...from underpriviledged backgrounds, ..." "But you say ...it doesn't admit enough African Americans and Hispanics ...from priviledged backgrounds."

Replied Garre, "Because, Your Honor, our point is that we want minorities from different backgrounds"

Justice Kennedy, as usual the swing vote on which the case hinges, said, "So what you're saying is that what counts is race above all."

The term "critical mass", refering to the proportion of minorities in the student body, was bandied back and forth with both Garre and Solicitor General Verrilli trying to avoid making it sound like a number.

Justice Scalia to General Verrilli, "So we should stop calling it mass."

Verrilli, "I agree."

Scalia, "Call it a cloud or something like that."

 

SCOTUSblog's Amy Howe has the Plain English summary here.

The Supreme Court's Health Care Opinion

My sketches from the announcement of the Court's opinion, and dissents, on the Affordable Care Act. 

As they took their seats Justice Breyer was smiling; Sotomayor looked glum.

Justice Scalia was actually sitting as far back from Roberts as possible. Forgive the artistic license, but I wanted to get his expression in the frame.

Announcing the Court's Opinion on Arizona Immigration Law

Sketches of the Supreme Court announcing its opinion in Arizona v. U.S. The Court upheld in part and struck down in part Arizona's law, SB 1070, aimed at curtailing illegal immigration. Justice Kennedy wrote for the majority.....

.....and Justice Scalia dissented.
 

The Tucson Citizen has the story here.

 

 

The Fabulist Justice Scalia

Reading his opinion in a mortgage-settlement kickback case, Freeman v. Quicken Loans, Justice Scalia went to Aesop's fables to illustrate a point.

"Aesop's fable would be just as wryly humorous if the lion's claim to the entirety of the kill he hunted in partnership with less ferocious animals had been translated into English as the "lion's portion" instead of the lion's share," he wrote.

 

This Land Is (Not) Your Land

Things just kept getting better for Arizona governor Jan Brewer, in the right foreground above, and the state's mean-spirited anti-immigration law, SB 1070, especially when the Chief Justice cut off Solicitor General Verrilli before he could even begin his argument saying, “No part of your argument has to do with racial or ethnic profiling, does it?" Which, of course, is the elephant in the room.

When Verrilli later in his argument sought to illustrate the harrasment of legal Latinos by citing population percentages Scalia interjected, "Sounds like racial profiling to me".

The lawyer for Arizona, Paul Clement, on the other hand faced moderate questions from the Justices as he sought to soften the edges of a harsh law.

Dahlia Lithwick's story here.

 

Low Jinks at the High Court

In a playful break of decorum a lawyer at respondent's table stuck the quill pen that is traditionally given to counsel behind his ear. It should be noted that this occured a half-hour before the Justices would take the bench, and spectators had just begun to be seated.

The case being argued was Salazar v. Ramah Navajo Chapter.

Sketches from the Final Day of Health Care Arguments

I'm pretty much cross-eyed after three days of sketching the Supreme Court's health care argument marathon, so I'll just post today's drawings with brief captions.

Paul Clement, shown above, begins his argument on severability.

Justice Scalia needles Deputy Solicitor General Edwin Smiley Kneedler.

Justice Breyer brandishes portions of the Affordable Care Act.

Clement makes his argument on Medicaid Expansion.

Solicitor General Donald Verrilli had a better day today, but too late?

Lyle Denniston's recap of the arguments on severability is here.

And Lyle's recap of the Medicaid arguments is here.

Tough Day for Affordable Care Act

It was hard going for Solicitor General Donald Verrilli, pictured above and below, as a majority of the Justices expressed skepticism about about the individual mandate provision of the new health care law.
Former Solicitior General Paul Clement, now representing the challengers to the Affordable Care Act, appeared to win today's round.
Round three tomorrow.

Mike Sacks has it covered here.

Day 1 of Supreme Court Arguments in Health Care Overhaul

The first issue before the Court was the Anti-Injunction Act of 1867 which says that you can't challenge a tax until it's been collected. Under the new Affordable Care Act if you don't have health insurance you pay a penalty, and because that penalty is assessed depending upon your income and is collected by the IRS it could be seen as a tax. And since that tax has yet to be collected an appeal is premature, a position neither side is claiming and so the Court appointed Washington lawyer Robert A. Long, pictured below, to play devil's advocate, or more properly amicus curiae.
Lyle Denniston's take on today's arguments here.