Archive for February, 2016

CLASS ACTION RULING BY LOWER COURTS IN LIMBO DUE TO SCALIA’S DEATH

Thursday, February 18th, 2016

ARTICLE BY Jennifer M. Keas Jay N. Varon
Foley & Lardner LLP CFSL Bulletin

Supreme Court Vacancy Leaves Spokeo Class Action Ruling in Limbo Outcome Even More Uncertain
Thursday, February 18, 2016
The consumer financial services industry is wondering how the sudden passing of United States Supreme Court Justice Antonin Scalia will affect the pending Spokeo, Inc. v. Thomas Robins case. Spokeo is a key case dealing with whether a class action lawsuit may be brought by a consumer who suffered no actual injury, based solely on a claimed technical statutory violation.
This issue affects providers operating under the Fair Credit Reporting Act (FCRA), the Real Estate Settlement Procedures Act (RESPA), the Telephone Consumer Protection Act (TCPA), and other similar statutes. Because many such laws provide for monetary penalties recoverable by affected consumers, the claims are often brought as class action lawsuits, exposing businesses to the threat of overwhelming liability—even if no one can point to any harm caused by the supposed violation.
The federal appeals courts have issued conflicting rulings on this issue. Some courts have held that the U.S. Constitution requires a plaintiff to allege an actual concrete injury to have “standing” to sue in federal court. Other courts—including the Ninth Circuit Court of Appeals in the Spokeo case—have held that Congress, by creating laws that provide for statutory rights or penalties, can authorize uninjured consumers to sue.
The Supreme Court previously took up this issue in 2011, when it agreed to review Edwards v. First American, a no-injury class action arising under RESPA. However, after holding oral argument, the Supreme Court determined that its review of that case was improvidently granted, and therefore it did not decide Edwards after all.
When the Supreme Court took the Spokeo case in 2015, it presented a new opportunity for the high court to offer clarity to businesses and consumers on minimum standing requirements.
Before the sudden passing of Justice Scalia, many of those who followed the Spokeo case and watched the oral argument believed that there was a good chance that the Supreme Court would reverse the Ninth Circuit’s ruling. At that point, observers were forecasting that Justice Kennedy would join a five-justice conservative majority—including Justice Scalia—to hold that a statutory violation cannot confer standing in the absence of actual injury.
Without Scalia, a conservative ruling in the Spokeo case is less likely to issue. Many believe that the Court now will be left evenly divided, with no majority view. If the Court issues a decision in that instance, ruling 4-4, the lower court opinion will stand as if the Supreme Court had never heard the case, with no precedent set by the Supreme Court.
Other conceivable outcomes exist. If the Supreme Court already internally decided the Spokeo case before Justice Scalia’s passing, with Scalia writing or signing on to an opinion in the case, his vote would still count posthumously. Alternatively, there is some chance that a majority could be attained among the current justices, such as if one of the four traditionally liberal justices voted to reverse the Ninth Circuit. Or, the Court could punt, opting to relist the Spokeo case to be heard again next term when there is a full nine-justice bench, or even rejecting the case as improvidently granted.
One way or the other, we should know by early summer. The Supreme Court’s current term, which began in October 2015, will continue until late June or early July. In May and June, the Court will sit only to announce orders and opinions.
© 2016 Foley & Lardner LLP
- See more at: http://www.natlawreview.com/article/supreme-court-vacancy-leaves-spokeo-outcome-even-more-uncertain#sthash.g9CEXfCB.dpuf

The Supreme Court’s Irresponsible Action Threatens Vital Climate Policies

Wednesday, February 17th, 2016

17 FEB 2016: OPINION

The U.S. Supreme Court order blocking President Obama’s plan to cut emissions from coal-burning power plants is an unprecedented step and one of the most environmentally harmful decisions ever made by the nation’s highest court.
by michael b. gerrard

Two unexpected and shocking events last week have left heads swimming about the fate of President Obama’s signature initiative on climate change, the Clean Power Plan, which aims to replace many coal-fired power plants — the largest source of greenhouse gas emissions in the United States — with cleaner sources of energy.

Last Tuesday, the U.S. Supreme Court issued a stay on the Clean Power Plan until the litigation against it is finally resolved, suspending implementation of the plan for the foreseeable future. The vote was 5-4, along the customary ideological lines, and it led to great concern, bordering on quiet despair, among proponents of the plan. who now believed that the Supreme Court would ultimately strike it down. Opponents of the plan, including the coal industry, rejoiced.

Supreme Court Action:
An Opportunity on Climate?

U.S. and Global Climate Policies
Will Survive the Court’s Ruling The court’s order blocking Obama’s Clean Power Plan provides an opportunity for the U.S. to show other nations it has a flexible approach to cutting emissions, David Victor writes.
READ MORE Then last Saturday came news of the sudden passing of Justice Antonin Scalia, who in his 30 years on the Supreme Court had been its most forceful critic of the U.S. Environmental Protection Agency (EPA). Had his death occurred a few days days earlier, the court would have been tied on the question of the Clean Power Act, and no stay would have been issued. Recent history suggests that if a Democratic president ends up appointing Justice Scalia’s successor, he or she will vote to uphold the Clean Power Plan and it will survive. If a Republican is elected later this year, the legal wrangling over the plan will become a moot point because all the Republican candidates have vowed to halt the Clean Power Plan anyway.

The Supreme Court’s stay of the Clean Power Act — one of the most environmentally destructive actions the court has ever taken — has roots going back nearly a decade. In a 2007 ruling in Massachusetts v. EPA, the court declared that the Clean Air Act authorizes the EPA to regulate emissions of carbon dioxide and other planet-warming gases. Justice Scalia dissented. Virtually everyone on both sides of this issue agrees that the 1970 Clean Air Act is not the best way to tackle climate change, and President Obama pushed for an economy-wide cap-and-trade law. The House narrowly passed the Waxman-Markey bill in 2009, but it died in the Senate. Thus the EPA was relegated to using the Clean Air Act. In 2014, the Supreme Court upheld most of the EPA’s initial actions in this direction, including greenhouse gas controls on motor vehicles and on some new stationary sources that already were required to have air pollution permits, such as power plants and oil refineries.

However, the part of the Clean Air statute dealing with old stationary sources, such as coal-fired power plants, is much more cumbersome. Using Most Republican governors opposed the plan, and 27 states signed on to litigation challenging it. that law, the EPA gave each state a greenhouse gas reduction target for its power plants and told it to devise a plan to meet that target. The states would likely meet these targets through a combination of improving the efficiency of the plants; using more natural gas and less coal; building new renewable energy sources, such as wind and solar; and reducing electricity demand by improving energy efficiency.

This plan was ferociously opposed by the coal industry, which was already gasping as a result of low-cost natural gas, plummeting costs of new renewables, and other environmental regulations. Almost every Republican member of Congress publicly opposes climate regulation (and many reject the underlying science), and the leadership in both the House and the Senate vowed to halt the plan; only President Obama’s veto pen has prevented that. Most Republican governors joined the opposition to the plan, and 27 states signed on to the litigation challenging it. (Eighteen states, most with Democratic governors, filed in support of the EPA.)

These cases were all filed in the U.S. Court of Appeals for the District of Columbia. Last month, the court rejected motions for a stay and set an expedited briefing schedule with oral arguments starting on June 2, 2016. This was good news for the EPA, as it meant the states would proceed with the preparation of their plans, at least until the court ruled, most likely this fall.

The challengers, led by West Virginia, filed an emergency motion with Chief Justice John Roberts for a stay. This was generally regarded as a Hail Mary pass; not once had the Supreme Court ever stayed a regulation that was still being reviewed by the Court of Appeals. But last Tuesday, the first thunderbolt struck. The Supreme Court broke all precedent, granted the stay, and took the equally extraordinary action of declaring that the stay would remain in effect not only until the Court of Appeals ruled, but until the Supreme Court was done with the case. That could easily be two years from now.

By acting as it did, the Supreme Court shut down the most important actions being taken by the United States to address the greatest environmental challenge ever faced. Though there are legitimate legal The Supreme Court shut down the most important actions being taken by the United States to address global warming. questions about the Clean Power Plan, almost no one expected the Supreme Court to halt the preliminary planning work; after all, the first compliance period does not begin until 2022. The Clean Power Plan was the centerpiece of the U.S. pledges at the Paris climate conference last December, and there was immediate fear that the stay would give other countries an excuse to back off on fulfilling their own pledges.

The second thunderbolt struck three days later with Justice Scalia’s death. All of a sudden the crucial fifth vote — and in many ways the most forceful one — against the Clean Power Plan was gone.

If the Senate Republicans succeed in blocking any nomination made by President Obama to fill Scalia’s seat, it would fall to the next president to name the next justice. And that makes the stakes in the next presidential election even higher.

If an Obama appointee is confirmed, or if Hillary Clinton or Bernie Sanders is the next president, there is a good chance the next justice would vote to uphold the Clean Power Plan. That of course assumes that nominee is confirmed before the case is decided; this would likely be a massive and protracted confirmation battle, given the importance for so many areas of law. If the Supreme Court rules on the case before it is back at full strength, there could well be a four-four split on the Clean Power Plan. When there is a tie vote, the lower court decision stands; so the Court of Appeals decision would be the last word.

But if no Obama appointee is confirmed and if any of the Republican candidates becomes president, a new, conservative Supreme Court justice could well vote to overturn the Clean Power Plan. At that point, though, the suit would not matter so much, as the new Republican president would be hard at work dismantling the rules and regulations that President Obama put in place to slow the march toward destabilizing planetary warming.

Another Perspective: David Victor writes that after the Supreme Court action on the Clean Power Plan, the U.S. must show other nations it has a flexible, multi-faceted approach to cutting emissions.

POSTED ON 17 FEB 2016 IN BUSINESS & INNOVATION CLIMATE ENERGY POLICY & POLITICS POLICY & POLITICS EUROPE NORTH AMERICA

Scalia’s Death May Mean Texas Abortion Case Won’t Set U.S. Precedent

Wednesday, February 17th, 2016

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An American flag flies at half staff in front of the U.S. Supreme Court building in Washington in honor of Supreme Court Justice Antonin Scalia. (AP)
An American flag flies at half staff in front of the U.S. Supreme Court building in Washington in honor of Supreme Court Justice Antonin Scalia. (AP)
By JENNIFER LUDDEN, NPR

The U.S. Supreme Court next month is scheduled to hear its biggest abortion case in at least a decade, and the reach of that decision will likely be impacted by the absence of Justice Antonin Scalia, who died over the weekend.

A Texas law requires that doctors have local admitting privileges, and that clinics make costly building upgrades to operate like out-patient surgical centers. Numerous other states have passed similar laws, and Scalia was widely expected to provide a fifth vote to uphold such restrictions.

Without him, it may not change much for Texas. A 4-4 split in the court would leave in place the 5th Circuit Court of Appeals ruling that upheld these provisions. Ilyse Hogue of NARAL Pro-Choice America says that would shut down a number of clinics that perform abortion. And she says that would come in addition to other Texas restrictions that have already closed about half the state’s clinics, leaving some women to travel hundreds of miles to obtain an abortion.

“We would be looking at an even greater health care crisis in Texas than we’re already facing,” Hogue says.

But a split decision in the Supreme Court would have no national precedent. That means other appeals court rulings striking down similar laws would also stand. And Hogue says there are more cases to come.

“I think this vacancy is far, far greater in terms of its implication than this one case in Texas,” she says. “There are so many laws looking to restrict not only abortion access and abortion rights, but a broader set of reproductive rights in front of the court right now.”

One of them also comes up next month, when the court hears a challenge to the Affordable Care Act’s mandate on covering birth control for female employees.

There’s also been a wave of abortion restrictions passed since Republicans took control of numerous statehouses in 2011, and many of those cases are winding their way through the appeals courts. Abortion opponents had been hoping to have them affirmed by the Supreme Court, with the help of a great ally in Justice Scalia.

“He was one of the two justices on the court who has publicly opposed Roe v. Wade in prior cases and prior votes,” says Clarke Forsythe, senior counsel with Americans United for Life. “And he was probably the most vocal and longstanding, having been there since 1986.”

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Scalia had said that since the U.S. Constitution does not recognize a right to abortion, neither should the Supreme Court. The issue, he wrote, should be left to the states.

Now, if the court flips to a liberal majority, Forsythe foresees a large scale rolling back of decades of abortion restrictions. He can imagine justices overturning the ban on public funding for the procedure. That ban is known as the Hyde Amendment, something presidential candidates Hillary Clinton and Bernie Sanders have both vowed to overturn.

Forsythe also thinks a liberal Supreme Court “will probably throw out all parental notice and parental consent laws in the country, will throw out all informed consent laws in the country, and virtually any regulation, and create an absolute right to abortion for any reason at any time that we haven’t seen in 42 years.”

Abortion rights groups say all that is speculation at best. But with so much at stake, both sides of this contentious issue say they’re throwing themselves into the fierce battle over choosing Scalia’s replacement.

The Supreme Court After Justice Scalia – Why The Senate Should Not Delay Ratification of New Justice

Tuesday, February 16th, 2016

By NEW YORK TIMES THE EDITORIAL BOARD FEB. 14, 2016

When Antonin Scalia was named by President Ronald Reagan to fill a vacancy on the Supreme Court in 1986, the Senate considered the nomination for 85 days, then voted to confirm him. The tally was 98-0.
That unanimity was by no means a measure of widespread agreement with Justice Scalia’s judicial philosophy. Rather it was the Senate’s customary acknowledgment — at least until recently — that the president had fulfilled his constitutional duty and selected a clearly qualified person for the post.
Thirty years later, and within hours of the news that Justice Scalia had died, Senate Republicans, led by Majority Leader Mitch McConnell of Kentucky, rejected that practice outright. It would not matter if President Obama nominated the ghost of Ronald Reagan himself, they appeared to suggest — there will be no confirmation hearings until Mr. Obama has packed his bags and moved out of the White House. Mr. Obama promptly replied that he planned to send a nomination to Congress shortly.
No one would have chosen for the next vacancy on the court to come about in this way, but now that it has, the implications in both the short term and long term are profound. Many of this year’s biggest cases — including those dealing with abortion rights, contraception, immigration, public-sector unions, and redistricting — were likely to be decided by a 5-4 vote. Justice Scalia’s death means the justices may well split 4-4 in many of these decisions.

A tie vote upholds the court ruling below and sets no precedent; it is as though the justices never heard the case in the first place. But this would do more than prolong uncertainty; it could, in some cases, perpetuate harm for great numbers of people — women who have been grievously hurt by proliferating abortion restrictions at the state level, which have been challenged in the court; law-abiding immigrants Mr. Obama has tried to protect from deportation by reforming enforcement policies. The justices may also choose to set cases that end in tie votes for reargument, as they have done in the past. But the bottom line is that either way, people who are due justice are not served by the uncertainty of prolonged judicial paralysis.
Who will Mr. Obama choose? He has his pick among many strong, qualified candidates, any one of whom would be well within the mainstream of American legal thought. Several — including Sri Srinivasan and Paul Watford — are federal appeals court judges whom the Senate already confirmed in bipartisan votes. Mr. Srinivasan, a 48-year-old son of Indian immigrants, was confirmed to the Court of Appeals for the District of Columbia circuit in 2013. The vote was 97-0.
The question now is whether this Senate will weigh any of these candidates on the merits, or whether as its leaders suggest, it will use every trick in the book to deny Mr. Obama his choice. The latest Republican talking point is that for 80 years it has been “standard practice” not to confirm any Supreme Court nominee in an election year. Besides being untrue — Justice Anthony Kennedy was confirmed by a Democratic Senate in 1988 — the claim actually insults Justice Scalia, whose originalist, text-based approach to the Constitution would surely have found room for one of a president’s explicit constitutional obligations.
Senators are free to vote yes or no on any nominee. But not to vote at all is an enormous insult and grave disservice to millions of Americans awaiting justice.
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Cuban-American judge’s name floated as possible U.S. Supreme Court nominee

Tuesday, February 16th, 2016

Published February 16, 2016
Fox News Latino

Adalberto J. Jordan, 54, came to the United States from Cuba at the age of 6.
A Latino judge who clerked for Justice Sandra Day O’Connor and now sits on a federal appellate court is among about half a dozen people judicial experts say President Barack Obama may choose from to succeed U.S. Supreme Court Justice Antonin Scalia, who died Saturday at the age of 79.
Adalberto J. Jordan, who is 54 and came to the United States from Cuba at the age of 6, serves on the 11th Circuit Court of Appeals, which covers Florida, Georgia and Alabama.
Jordan would be the second Hispanic and first Cuban-American to serve on the U.S. Supreme Court.
President Bill Clinton appointed Jordan, who graduated from the University of Miami School of Law, to the Federal District Court in 1999 and Obama promoted him to the appeals court 2012, according to the New York Times, which listed Jordan as one of six possible contenders for the court.
Republican presidential candidates and congressional leaders have vowed to block any nominee Obama puts forth to succeed Scalia, the court’s most vocal conservative.
Jordan would be no stranger to nomination fights.
He waited four months for Senate approval of his confirmation, which was held up by partisan bickering between the Obama administration and Republicans in the Senate. Senate Republicans filibustered his nomination, which was endorsed by Florida Sen. Marco Rubio, over objections they had to several Obama appointments that occurred during a legislative recess.
Sen. Patrick Leahy, a Vermont Democrat, released a statement in 2012 assailing his colleagues for holding up Adalberto’s confirmation.
“Judge Adalberto Jordan is the kind of nominee who in the past would have been confirmed without delay, rather than wait four months for Senators to consent to proceed on his nomination,” Leahy wrote. “Judge Adalberto Jordan is precisely the type of qualified, consensus nominee the Senate should be confirming without delay…Senator Rubio praised his knowledge of the law, his experience, and his participation in his community, stating that he looks forward to [Judge Jordan’s] appointment.”
Various judicial watch web sites depict Jordan as liberal-leaning.
Last year, Jordan ruled that Florida’s healthcare system for poor and disabled children violated federal laws. Healthcare providers had long fought for the state to pay enough to cover proper treatment to low-income and disabled children.
In a ruling that spanned 153 pages, Jordan accused lawmakers of setting the state’s Medicaid budget artificially low, driving many healthcare providers who catered to children not to participate in the program.
“This is a great day for the children in this state,” said Dr. Louis B. St. Petery, a Tallahassee pediatrician who was at the forefront of taking the state to court, to reporters. “This action was taken because we found that children weren’t being treated properly if they were on Medicaid.”
“Our position as pediatricians,” Petery said, “is that children do not choose their parents. They don’t have a choice to be born into a rich family or a poor family.”
In 2014, Jordan was part of a three-judge panel that rejected a request by Florida’s secretaries of health and management services and a county clerk to extend a hold on same-sex marriages – basically allowing gay marriage to move forward in Florida.
A judge previously had ruled that Florida’s gay marriage ban was unconstitutional, but stayed the ruling to give the officials a chance to file their appeal.
“It means that relief is finally in sight for the same-sex married couples suffering under Florida’s refusal to recognize their legal unions,” SAVE Executive Director Tony Lima said in a statement to the media.

STOLL, KEENON AND OGDEN HAVE NEW MANAGER

Tuesday, February 16th, 2016

BY CHERYL TRUMAN
ctruman@herald-leader.com
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P. Douglas Barr has been named managing director at the law firm Stoll Keenon Ogden.

Barr is the fourth person in the firm’s 119-year history to manage operations and strategic direction. Barr replaces Bill Lear, who served as Stoll Keenon Ogden’s managing director and chairman for 26 years. Lear is continuing his law practice at the firm.

In a news release from the law firm, Barr said that under Lear’s leadership the firm, “has experienced unprecedented growth and is recognized among the top law firms in the nation.”

Barr is a graduate of the University of Kentucky and earned his law degree from the Moritz College of Law at Ohio State University. He joined Stoll Keenon Ogden in 1986. Barr has served on the firm’s Board of Directors and in leadership roles including as chair of the firm’s client service committee.

Lear has been with Stoll Keenon Ogden for 35 years and served 22 years as the firm’s managing director and four years as chairman of the board. From 1985 to 1994, Lear was a Kentucky state representative.

“It was humbling to realize that my colleagues had the confidence to choose me to manage the operations of our firm for so long,” Lear said in a release.

Later his year, Lear will begin a one-year term as board chair for the Kentucky Chamber of Commerce.

Stoll Keenon Ogden has 140 attorneys and offices in Louisville, Lexington and Frankfort in Kentucky, as well as Evansville, Ind., and Pittsburgh, Penn.

Read more here: http://www.kentucky.com/news/business/article60451886.html#emlnl=Afternoon_Newsletter#storylink=cpy

GSU Symposium Panelists Call for Cameras at US Supreme Court

Tuesday, February 16th, 2016

Katheryn Hayes Tucker, Daily Report
February 17, 2016 | 0 Comments
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L-R Robert Barnes, Dahlia Lithwick and Adam Liptak take part in the Keynote discussion at the GSU College of Law symposium Invisible Justices. Thursday February 11th 2016.
L-R Robert Barnes, Dahlia Lithwick and Adam Liptak take part in the Keynote discussion at the GSU College of Law symposium Invisible Justices. Thursday February 11th 2016.
John Disney/Daily Report
The absence of cameras at the U.S. Supreme Court dominated discussion and debate among judges, professors, students and lawyers at Georgia State University last week.
The conversations took place at a GSU College of Law symposium titled “Invisible Justices: Supreme Court Transparency in the Age of Social Media.”
Organizers— Professor Eric Segall and Law Review editors Luke Donohue and Christine Lee—took care to bring in a mix of voices. For example, Professor Nancy Marder of Illinois Institute of Technology Chicago-Kent College of Law said that putting the high court on visual display would not further the cause of justice. And attention was paid to the justices themselves arguing against cameras, fearing that news clips from their proceedings would be misleading.
But the consensus was clearly on the side of bringing the high court technologically into the 21st century.
“It’s a government proceeding that we have a right to see,” said Texas Supreme Court Justice Don Willett. He noted that his court’s arguments have been recorded by cameras for years. The results have been “uniformly positive,” with none of the drawbacks predicted by opponents of cameras at the highest court.
Willett was introduced with an unusual distinction: having the most Twitter followers of any Supreme Court justice in the country. He has 29,900 followers, and has tweeted 20,100 times—including once during his own panel discussion. He said Twitter is a useful tool for busy judges who face election deadlines.
“I wouldn’t tweet so much if I didn’t have to run for office,” Willett said.
A highlight of the camera and tweeting discussion came when Judge Richard Posner of the Seventh U.S. Circuit Court of Appeals—appearing via Skype and looming overhead on a screen—pulled out his own smartphone and began to take pictures, then texting and tweeting them. Laughter filled the auditorium. The moderator, Brigham Young University law school Associate Dean RonNell Jones, asked if someone would please take Posner’s picture and tweet it. Georgia Court of Appeals Judge Stephen Dillard obliged and tweeted it within a few seconds.
With regard to cameras in court, Georgia Supreme Court Justice David Nahmias stood on the side of change.
“We have cameras in our courtroom. Shock,” Nahmias said, adding that most state supreme courts do. “It works fine.”
Cameras at the U.S. Supreme Court would have a dramatic effect on news reporting, suggested Segall, who is a faculty advisor to the law review and author of a book on the court, “Supreme Myths.”
Network news under-reports on the Supreme Court because they don’t have cameras inside, he said, adding. “The national news would spend more time on the Supreme Court if they could roll the tape.” Segall said that justices only go on television when they want to sell their books.
In addition to judges and professors, the symposium also included journalists covering the U.S. Supreme Court. Segall and Donohue moderated a lunch presentation with three Supreme Court reporters: Adam Liptak of The New York Times, Dahlia Lithwick of Slate and Newsweek and Robert Barnes of The Washington Post.
Another question on the table was whether justices should have term limits. Liptak said the founders may not have counted on longevity in framing lifetime appointments, although he noted no difference in performance of justices by age. And he added that the average justice is still younger than the average member of the Rolling Stones. (The discussion took place on Friday, two days before Justice Antonin Scalia died suddenly at age 79).

Read more: http://www.dailyreportonline.com/id=1202749781561/GSU-Symposium-Panelists-Call-for-Cameras-at-US-Supreme-Court#ixzz40MZXgdjq

CLEAN POWER PLAN: Backers of Obama carbon rule see window in Supreme Court rebalancing

Tuesday, February 16th, 2016

CLEAN POWER PLAN:
Backers of Obama carbon rule see window in Supreme Court rebalancing
Ellen M. Gilmer, E&E reporter
EnergyWire: Tuesday, February 16, 2016
The death of U.S. Supreme Court Justice Antonin Scalia has sparked a tidal wave of speculation over what a rebalancing of the court and political chaos around Scalia’s replacement means for U.S. EPA’s Clean Power Plan.

Scalia, 79, was famous for his strict interpretation of the Constitution and aversion to programs aimed at expanding the reach of the executive branch. He stuck with the court’s conservative wing last Tuesday in a 5-4 decision freezing the Obama administration’s landmark climate program while legal challenges move forward in the U.S. Court of Appeals for the District of Columbia Circuit.

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Some legal experts saw the decision as ominous, speculating the same majority would ultimately strike down the rule.

Now, without Scalia, the high court is split between the liberal wing — Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor — and the conservative wing — Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and perennial swing vote Anthony Kennedy.

“It’s a potential game-changer,” Columbia Law School professor Michael Gerrard said. “The odds of the Clean Power Plan ultimately surviving judicial review have gone up significantly.”

The Supreme Court’s hold on the climate rule scrambled conventional wisdom about how legal challenges would play out in the early stages. It recharged the well-organized opposition to President Obama’s use of the Clean Air Act to force electric utilities to cut carbon dioxide emissions.

Efforts to fill Scalia’s seat have already sparked a political battle expected to dominate this election year. Obama announced plans to nominate a new justice “in due time,” but Senate Republican leaders have signaled their opposition, saying Obama should defer to his successor.

The strategy is considered a gamble. If the Senate successfully blocks a nominee and a Republican wins the presidency, the GOP may get the conservative justice it wants. But if a Democrat takes the White House, the president-elect’s Supreme Court nominee could be a tougher pill to swallow than any moderate liberal Obama is expected to choose. And the fate of many major cases heading to the high court hangs in the balance.

“The CPP will get there eventually,” Dorsey & Whitney LLP attorney James Rubin said, “and the question will be: How many justices are there, and who are they?”

Here’s how the potential scenarios play out for the climate rule.

Option 1: A new liberal-leaning justice

A new liberal-leaning justice on the Supreme Court is the most favorable plot for defenders of EPA’s Clean Power Plan, who say a rebalancing of the court could mean new life for the rule after last week’s legal setback.

“There were four strong dissents,” Environmental Law & Policy Center Executive Director Howard Learner said. “Clearly Justice Scalia’s unfortunate passing shifts the balance on the court, depending on the next appointment. Had Justice Scalia not voted on the stay motion, it would have been declined in a 4-4 vote.”

If the Supreme Court ultimately takes up the case and the justices split on ideological lines, a 5-4 decision would uphold the rule. But those are big ifs, said Bracewell LLP attorney Scott Segal, who is representing energy groups challenging the climate rule.

“I don’t think mere ideology is enough to resolve the issue,” he said. “There are statutory, constitutional and practical arguments that are all before the court, and those don’t go away.”

If the court does become more liberal, Kennedy remains a crucial wild card. Though the moderate justice joined the conservative wing in voting for a stay of the Clean Power Plan, his vote on the merits of the case is still considered uncertain (EnergyWire, Feb. 11).

He could even wield power over whether the court agrees to take up an appeal at all. Kennedy could view a D.C. Circuit decision upholding the rule and decide he no longer has legal concerns about it. He could then join with the liberal justices to block the conservative wing from taking up the case. Stranger things have happened, experts say, but the Supreme Court will likely want to leave its imprint on the Clean Power Plan no matter who’s on the bench.

“This is such an important case — the Clean Air Act with greenhouse gases — I would have a hard time thinking the Supreme Court wouldn’t take a pass at this one,” Rubin said.

Another unknown with many contingencies: the impacts of an appointment of short-listed D.C. Circuit Judge Sri Srinivasan, who is on the appellate panel considering the Clean Power Plan case. If nominated, it’s unclear whether the judge would recuse himself from D.C. Circuit arguments — opening the possibility of a more conservative judge on the panel — or, if confirmed, later recuse himself from Supreme Court consideration of the case.

Option 2: A new conservative-leaning justice

Clean Power Plan opponents have the best prospects if another conservative justice is appointed to the court. This will likely happen if the Senate successfully blocks an Obama appointee and a Republican takes the White House.

In that case, the ideological balance on the Supreme Court remains roughly the same. UCLA School of Law professor Ann Carlson noted, though, that Scalia is a tough act to follow, and a conservative successor may not have the same impact.

“I suspect that Justice Scalia was very forceful in persuading his colleagues to grant the stay,” she said. “What happens when you lose Justice Scalia’s influence, even on decisions about whether to grant cert?”

While Scalia was known for scathing dissents in many high-profile cases before the court, he often found himself in the majority in environmental cases, writing several landmark decisions that shaped environmental law (Greenwire, Feb. 15).

Rubin added that it’s not certain a conservative appointee to the court would align ideologically with Scalia.

“Scalia was very unique because he wore his opinions on his sleeve. On the Clean Power Plan, he would have come out punching,” he said. “If they have someone just like that, it would be the same as if the court had not changed. But the court could come out different.”

Former Justice David Souter, for example, was appointed by President George H.W. Bush but ended up joining ranks with the court’s liberal wing.

Conversely, he noted, a new liberal appointment to the court — likely relatively moderate unless Democrats take the White House and the Senate next year — doesn’t guarantee a predictable vote.

“A liberal appointment of a liberal judge does not always mean a liberal justice on the court,” Rubin said.

Option 3: A long vacancy

A third possibility for the Supreme Court is that no new justice is confirmed before the court takes up the Clean Power Plan. If the Senate blocks Obama’s nominee and wrangles over the next president’s nominee, the court could be down one justice well into next year.

Along ideological lines, an eight-justice court is considered favorable for the carbon rule. If the Supreme Court reaches a 4-4 split on appeal, no new precedent is set and the lower court’s decision stands, unless the court decides to have the case reargued when a new justice is appointed. The Clean Power Plan’s advantage in a split decision depends on the D.C. Circuit upholding the rule — which is not guaranteed but generally anticipated.

“The mainstream view among Democratic appointees to the bench is likely to remain one of deference,” Carlson said. “With that said, the Clean Power Plan is a pretty unusual regulation. It’s massive, it’s complicated.”

An eight-justice court would also put additional attention on Kennedy. If he joined the liberal wing of the court on the merits, the 5-3 vote would be precedential — meaning other courts would have to accept the legal conclusions when facing similar questions.

But Segal, the industry lawyer, warned against viewing an ideological split or a repeat of the stay decision as a foregone conclusion.

“Who even knows if it would be a 4-4 at the Supreme Court,” he said. “Some of the justices who opposed a stay might still have legal misgivings about the rule, but just didn’t think it met the test for a stay.”

Segal also noted the prospect of the D.C. Circuit affirming a portion of the rule, like EPA’s general authority under the Clean Air Act, and rejecting another, like the agency’s “beyond the fenceline” approach to regulation. In that case, the exact legal question presented to the Supreme Court could change the tide of an ideological breakdown, he said.

“Do they take the middle course, and if they do, how does a divided Supreme Court or a newly impaneled justice view that?” he asked. “It’s not knowable because we don’t know what orientation the rule will be in by the time it hits the Supreme Court.”

Twitter: @ellengilmer Email: egilmer@eenews.net

DEATH OF SCALIA AFFECTS ANTI-UNION LAWSUIT

Tuesday, February 16th, 2016

Michael Hiltzik Contact Reporter

The Economy Hub
The anti-union lawsuit known as Friedrichs vs. California Teachers Assn. is widely viewed as one of the leading casualties of Supreme Court Justice Antonin Scalia’s death.
What’s less well-known is how the anti-union plaintiffs connived to fast-track the case through the federal judiciary in order to get it before the court while it still harbored a conservative majority. Their method was to encourage the lower courts to rule against them, so they could file a quick appeal. But Scalia’s passing is likely to leave a 4-4 deadlock over the case, so the last ruling, in which the U.S. 9th Circuit Court of Appeals ruled for the teachers union, remains in force.
Everything that is collectively bargained with the government is within the political sphere, almost by definition.-
This wasn’t how the anti-union group behind the lawsuit, the Center for Individual Rights, expected things to work out. As we write, the group’s website still features a photograph of nominal plaintiff Rebecca Friedrichs and the center’s lawyers standing in front of the Supreme Court on Jan. 10, looking plenty chuffed about that morning’s oral arguments, which plainly went their way. The poet Robert Burns had a line for the subsequent developments: “The best-laid schemes o’ mice an’ men gang aft agley.”*
Here’s the background, drawn in part from our previous coverage here and here.
The target of the Friedrichs lawsuit, and several others just like it, is the “agency” or “fair share” fee. Under the law and according to a 1977 Supreme Court decision known as the Abood case, unionized public employees can be assessed nonmember fees to cover solely the cost of negotiations and contract enforcement, without being compelled to join the union and support its political activities by paying full union dues. That’s the arrangement in California.

The anti-union case being heard today by the Supreme Court: A backgrounder:
For decades, union opponents have been trying to get Abood overruled. Friedrichs, like the other cases, paints the challenges as blows on behalf of free speech; the argument is that the public employees compelled to pay agency fees are being forced to support political positions taken by their unions with which they disagree, and therefore their freedom of speech is being infringed. In truth, however, these lawsuits aren’t about free speech or improving education for children. They’re about silencing the political voice of teacher unions by cutting off their revenues.
Abood as a precedent has withstood previous attacks, but the conservative Supreme Court majority had begun to signal that it was primed to overturn Abood, notably in cases in 2012 and 2014. Friedrichs was the stiffest test yet.
Plainly aware that Abood was hanging by a thread, the Center for Individual Rights strived to speed the Friedrichs case through the lower court after it was filed in 2013. It did so by conceding in both federal court in Santa Ana and at the 9th Circuit that both would be bound by the Abood precedent; therefore, it asked both courts to simply rule in the teacher union’s favor so it could promptly carry the appeal to the Supreme Court. Both lower courts did so.
This doesn’t mean that the the lower courts were seriously expected to rule against the union on their own. The 9th Circuit Appeals Court, for one thing, is a generally liberal court that was likely to reject the anti-union challenge in any event. But the strategy greased the way for the ultimate appeal by avoiding the time-consuming briefings and arguments usually employed to build a factual record to bring to Washington. The center formally petitioned the court to accept the case in January 2015, and the Court agreed in June.

How Justice Scalia could become the savior of public employee unions
At oral arguments last month, the strategy appeared to have borne fruit. Observers almost unanimously concluded from the questions posed by the justices that Abood was on the verge of being scrapped, by a 5-4 vote.
Scalia, as it happens, had been a question mark on Abood, in part because of a concurring opinion he had written in 1991 that upheld agency fees. “Where the state imposes upon the union a duty to deliver services,” he wrote then, “it may permit the union to demand reimbursement for them; or, looked at from the other end, where the state creates in the nonmembers a legal entitlement from the union, it may compel them to pay the cost.”
On the other hand, Scalia had concurred in the most direct attack on Abood yet, a 2014 opinion by Justice Samuel A. Alito Jr. that called the precedent “questionable,” “troubling” and “unsupported.” (Alito’s ruling ultimately relied on grounds other than the Abood rule, so the precedent stood — for the moment.)
At the oral arguments in Friedrich, Scalia seemed to lean against Abood and the union, implying at one point that it might be hard to distinguish permissible nonpolitical fee charges from impermissible political charges because “everything that is collectively bargained with the government is within the political sphere, almost by definition.” By general reckoning, he was ready to kill Abood.
Now that reckoning, of course, is moot. The implications of Scalia’s death for Friedrichs are a bit uncertain. Some experts say the appellate ruling in favor of the union would be effectively affirmed by an evenly divided court. Others believe the court will ask for re-argument of the same case next term, presumably after it gets back up to full nine-member strength by the appointment and confirmation of successor to Scalia. If the Senate sticks to what it says is its determination to not even consider approving a new justice until after a new president is sworn in next January, the delay could keep the Abood challenge at bay at least until late 2017. For now, at least, the unions have won. But only for now.
* “go oft awry.”
————
FOR THE RECORD: An earlier version of this column said the U.S. 9th Circuit Appeals Court is in Santa Ana. The court is in San Francisco.

How to Bring the Supreme Court Back Down to Earth

Tuesday, February 16th, 2016

By EMILY BAZELONFEB. 15, 2016 COMMENT
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Seven of the eight justices on the Supreme Court today all come from the federal appeals courts. (So did Justice Antonin Scalia, who died Saturday.) Only Justice Anthony M. Kennedy, who was a judge in California, served outside the East Coast cities of Boston, New York, Philadelphia and Washington. All eight attended law school at Harvard or Yale. None ever held elected office. Today’s court is “in some ways the most insulated and homogenous in American history,” as Adam Liptak wrote in 2009.

And so, here’s a question for President Obama, as he and his advisers are making their short list and checking it twice: Should the next justice bring a diversity of professional experience not currently on the court? Would a nominee who comes from outside the bench excite the country?

If every justice must have credentials like those currently serving on the Supreme Court, then the definition of who is qualified has become exceedingly narrow. “At a time when Americans are worried that the elite are running the country, and not doing a good job of it, this is the most elite group you could have,” says Benjamin Barton, a law professor at the University of Tennessee, Knoxville, who has studied the pre-appointment experience of Supreme Court justices. “And it didn’t used to be this way.”

That’s true. Since 1987, when a Democratic Senate rejected Robert H. Bork, President Ronald Reagan’s nominee to replace Justice Lewis F. Powell Jr., for his unapologetic far-right views, presidents have often played it safe by nominating innocuous-seeming federal judges, with short or bland paper trails. But former federal judges were in the minority on the Supreme Court until the 1970s. During the three decades before that, the historian David Garrow writes, “president after president named experienced politicians to the high bench.” Among President Franklin D. Roosevelt’s appointments were two Southern senators, a chairman of the Securities and Exchange Commission and a governor of Michigan. President Harry S. Truman nominated his Treasury secretary (who’d also been a member of the House of Representatives), his attorney general and two Midwestern senators.

The politician who left the greatest mark on the court is probably Earl Warren, a former governor of California. President Dwight D. Eisenhower nominated him as a reward for his help securing the 1952 Republican presidential nomination. Chief Justice Warren’s selection “might be regarded as a scandalous act of using a Supreme Court seat as simple political barter,” Mr. Garrow points out. Instead, he is generally regarded as one of the nation’s most successful chief justices, because the country reaped the benefit of his leadership experience. He led the court to its unanimous and historic 1954 ruling against school segregation, in Brown v. Board of Education, and to an ensuing series of decisions protecting civil rights and expanding due process in criminal cases. His closest partner on the court, Justice William J. Brennan Jr., came from the New Jersey Supreme Court, rather than the federal bench.

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When he ran for president, Mr. Obama expressed interest in nominating someone like Chief Justice Warren to the court. So far, however, he has chosen justices with conventional résumés. Justice Sonia Sotomayor was a prosecutor, a federal trial judge and a federal appellate judge. Justice Elena Kagan, a former dean of Harvard Law School and solicitor general, was nominated to the federal appeals court in 1999 by Bill Clinton after working for his administration, but the Senate didn’t vote on her nomination and it lapsed. They increased the number of women on the court to three from one, and Justice Sotomayor is the first Latina member of the court. But the diversity they bring doesn’t extend to their professional experience. (To be fair, it would be hard for a single nominee to break all the barriers at once.)

There may be a pragmatic rationale for Mr. Obama to stick with the Sotomayor-Kagan strategy this time around. Before the president said a word about who his nominee would be, Senate Republicans, including the majority leader, Mitch McConnell, demanded that Justice Scalia’s seat be left open until the next president is chosen in November. One plausible riposte would be to nominate an apparent moderate with a traditional résumé who was recently confirmed by the Senate to an appeals court, with plenty of Republican support or even unanimously. (Three examples: Judge Srikanth Srinivasan of the United States Court of Appeals for the District of Columbia Circuit; confirmed 97 to 0. Judge Jane L. Kelly of the Court of Appeals for the Eighth Circuit; confirmed 96 to 0. Judge Paul J. Watford of the Court of Appeals for the Ninth Circuit; confirmed 61 to 34.) Such a choice would put pressure on Republicans by allowing the president to argue that blocking it is an act of pure obstructionism.

Or conversely, maybe Mr. Obama only has a prayer if he goes bold, and comes up with someone outside the appellate courts who he can “really whip up support for, and make the Republicans nervous about the consequences if they won’t bring up for a vote,” says Lee Epstein, a political scientist and law professor. For instance: a politician or other figure from a swing state, or from a minority group, who could lay claim to a constituency that Republicans — or at least some senators who are up for election — care about. Mr. Obama could try to come up with his own Earl Warren: a politician with a source of popular support, who would bring firsthand knowledge of how the other branches of government operate.

This kind of diversity, in itself, would benefit the court, Judge Richard A. Posner of the Court of Appeals for the Seventh Circuit, argues in his new book, “Divergent Paths.” “That is how it should be,” Judge Posner wrote in an email, looking back to the days when politicians were well represented on the court. He pointed to the result in Clinton v. Jones, a widely criticized 1997 ruling that said that a sitting president could be sued in civil court, despite it being a burdensome distraction. “If there had been a politician on the court, the Paula Jones case would have come out differently — the politician would have told the other justices: no sex case for a president! Let him serve out his two remaining years, then throw him to the courts.”

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The campaign finance case Citizens United v. Federal Election Commission is another example. Could a justice who’d held elected office have prodded the majority to think harder about its claim that political contributions to “independent” groups “do not give rise to corruption or the appearance of corruption”?

The last justice with experience in elected office was Justice Sandra Day O’Connor, who had served in the Arizona State Legislature. “She was always vaguely looking for where the public was,” Professor Epstein said. “I think that affected her decision making. We haven’t had someone like that in a long time.”

Justice Thurgood Marshall offers another model for Mr. Obama. When President Lyndon B. Johnson chose Justice Marshall for the court in 1967, he had been a federal appellate judge and had served as solicitor general — but most important, he had worked for decades as a civil rights lawyer. Justice Marshall fought segregation in education, and won in the Brown case. He successfully challenged racially restrictive real estate covenants. He tried a case in Oklahoma in which his client “‘voluntarily’ confessed after he was beaten up for six days,” Justice Marshall said. He represented defendants who faced the death penalty. A colleague, Justice Byron R. White — whose résumé included a stint as a professional football player — credited Justice Marshall with conveying to the other members of the court “much that we did not know due to the limitations of our own experience.”

Today’s court includes two former prosecutors (Justices Sotomayor and Samuel A. Alito Jr.) and no former defense lawyers. What difference does that make? In The Washington Post, Radley Balko has argued that the court has a “massive blind spot” when it comes to abuses by the police and prosecutors. Sherrilyn Ifill, the president of the NAACP Legal Defense and Educational Fund Inc., wrote a 2012 article in The Nation headlined “A Court Out of Touch” and points to Florence v. Board of Chosen Freeholders, a 2012 case in which the court decided 5 to 4 that someone who has been arrested can be strip-searched in jail without reasonable suspicion — in other words, even if they presented no threat.

“When you think about the increased likelihood that African-Americans will be stopped and arrested, it’s fairly astonishing that a perfectly innocent person who has been arrested, and has made no indication that he is a threat, can be strip searched,” Ms. Ifill told me. “What Marshall did on the bench, when the justices conference about a case, was to say, ‘Let me tell you how it happens.’”

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That kind of perspective doesn’t necessarily change the outcome of a case. But it can. In 2009, the court heard the appeal of Savana Redding, who was strip-searched in school when she was 13, after a report that she’d given a classmate prescription-strength ibuprofen. At oral argument, some of the male justices shrugged off the impact of a strip search. Justice Stephen G. Breyer compared it to changing for gym. Justice Ruth Bader Ginsburg gave a pointed interview to USA Today a few weeks later. “They have never been a 13-year-old girl,” she said of her colleagues. “It’s a very sensitive age for a girl. I didn’t think that my colleagues, some of them, quite understood.” A month later, in June, the court ruled in Ms. Redding’s favor, 8 to 1, saying that the search violated her constitutional rights.

There’s no way to eliminate an individual’s blind spots; we all have them. But a group of nine people offers the possibility of correcting for at least some of them. Ms. Ifill argues that rather than accepting the narrowed constraints on the nominees for today’s court, Mr. Obama could view the Republican opposition as freeing. “I’m struck by Reagan’s appointment of Sandra Day O’Connor,” Ms. Ifill says. “He probed and he found someone who wasn’t obvious.”

Maybe it’s time for a magic ingredient — one that would bring a kind of wisdom to the court it currently lacks and would shake up the inevitable political battle to come, by introducing an element of surprise.

Correction: February 16, 2016
An earlier version of this article misstated Justice Elena Kagan’s experience prior to her appointment to the Supreme Court. While she was nominated to the federal appeals court, she never served as a federal appellate judge. The earlier version also described Sherrilyn Ifill currently calling the Supreme Court “out of touch.” That phrase appeared in the headline of a 2012 article by Ifill.

JUDGE OLE STEPHANS REMOVED FROM CRIMINAL CASE BY CJ MINTON

Monday, February 15th, 2016

Kentucky Chief Justice removes Judge Olu Stevens from handling criminal trial
Posted: Jan 11, 2016 3:09 PM ESTUpdated: Jan 11, 2016 3:23 PM EST
By Jason Riley

LOUISVILLE, Ky. (WDRB) – Embattled Jefferson Circuit Court Judge Olu Stevens has once again been removed from handling a criminal trial that was set to begin on Tuesday.
On Monday, at the request of prosecutors, Kentucky Chief Justice John Minton disqualified Stevens from presiding over the burglary and theft trial of Tracy Anthony.
Minton ordered Chief Jefferson Circuit Court Judge Charles Cunningham to appoint a special judge to handle Anthony’s trial, finding that prosecutors had “demonstrated disqualifying circumstances.”
Jefferson Commonwealth’s Attorney Tom Wine filed a motion last week claiming Stevens would not provide a fair trial given the statements he has made about Wine and other prosecutors regarding the race of juries.
Wine had asked the Kentucky Supreme Court to decide whether Stevens has the authority to dismiss juries for having too few black members, as the judge has done twice. The state Judicial Conduct Commission is investigating Stevens, in part, for insinuating on Facebook that Wine is racist and wanted “all-white juries.”
While prosecutors have repeatedly made requests to remove Stevens from handling criminal cases, this is the first time since November that Minton has ordered he be disqualified.
As part of the most recent request, Wine cited recent “additional information that seems to confirm the depth of Judge Stevens’ extreme distaste for my office and our actions in pursuing legitimate and constitutional and statutory remedies.”
And Wine claimed prosecutors had heard from victims — including those in the Anthony case — concerned that Stevens would not give them a fair trial.
Among the new information included in the motion is a Nov. 12 presentation Stevens gave at a Louisville Bar Association event in which the judge repeatedly criticized Wine for taking the jury issue to the Supreme Court.
“He impugned my motives,” Wine wrote of the speech, which he first saw on Dec. 23. “He announced that I would live in infamy. … He said that I was impeding progress and compared me with those who stood in doorways of schools to prevent desegregation. His speech was grandiose, exaggerated, and acrimonious.”
Also, according to the motion, Stevens called himself a “community activist” and said that he was “screaming from the mountaintops” about this issue.
Given the statements, Wine said “there is no question in my mind that his negative opinions and attitude toward me and those who serve as my agents must be intensified and will – if not intentionally, subconsciously – infect his handling of this case.”
Asked on Monday if his office would request Minton to remove Stevens from all criminal trials, Wine would only say that prosecutors would look at it on a “case by case basis.”
Prosecutors have repeatedly asked Stevens to recuse himself from criminal cases, arguing comments he has made on Facebook about Wine regarding the race of jurors shows bias. Stevens has refused to recuse himself.
Last month, Minton denied a request to disqualify Stevens from criminal cases, saying it was way beyond the scope of his responsibility and, if granted, would essentially amount to removing Stevens from the bench.
Minton harshly criticized Stevens but referred the request to the Judicial Conduct Commission for possible disciplinary action.
It is unknown when the commission will rule on whether Stevens has violated the code of judicial conduct.
Stevens’ Facebook postings came after a WDRB story in October reporting that Wine had asked the state Supreme Court to determine whether the judge was abusing his power by dismissing a jury because he felt it was lacking enough black people.
Stevens has written on Facebook that Wine was going to the Kentucky Supreme Court to “protect the right to impanel all-white juries” and that “is not what we need to be in 2015. Do not sit silently. Stand up. Speak up.”
In October, Stevens halted a drug trial and dismissed the entire jury panel, asking for a new group to be sent up because the potential jurors were “not representative of the community.”
And on Nov. 18, 2014, after a 13-member jury chosen for a theft trial ended up with no black jurors, Stevens found it “troublesome” and dismissed the panel at the request of a defense attorney.
“There is not a single African-American on this jury and (the defendant) is an African-American man,” Stevens said, according to a video of the trial. “I cannot in good conscience go forward with this jury.”
The high court has agreed to hear arguments.
Copyright 2016 WDRB Media. All rights reserved.

THE EFFECT OF SCALIA’S DEATH

Monday, February 15th, 2016

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THE TRAGEDY OF SCALIA’S PASSING

Monday, February 15th, 2016

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SUPREME COURT JUSTICE SCALIA’S DEATH LEAVE IMPORTANT CASES ON DOCKET

Monday, February 15th, 2016

How Scalia’s Death Affects This Term’s Biggest Supreme Court Cases
By Jordan Weissmann Fare thee well, Nino.
Drew Angerer/Getty Images
Because of the death of Justice Antonin Scalia, the Supreme Court will likely be left with just eight justices for the rest of its term—four reliable liberals, three reliable conservatives, and one Anthony Kennedy, who leans to the right but has traditionally acted as the court’s swing vote. Since Senate Republicans have already said they are not in any hurry to confirm a new justice so long as President Obama remains in office, we’re probably about to witness a number of deeply important cases end in a 4-to-4 split this year.
And what happens then? When a Supreme Court case winds up in a tie, the justices typically issue a short per curiam opinion upholding the decision of the lower appeals court. That means this term’s heavily anticipated rulings on public sector unions and voting representation are likely to end in liberal victories by default. But there’s a catch: Those lower court rulings won’t apply outside of their own jurisdictions, meaning the issues could be litigated all over again in future cases brought elsewhere in the country. Meanwhile, cases on immigration and abortion rights are still sitting in Kennedy’s hands and thus could still result in at least temporary conservative victories. Finally, affirmative action
Here’s a brief rundown of how Scalia’s passing will (or won’t) affect the biggest cases of this term.
Case: Friedrichs v. California Teachers Association
Issue: Public sector union rights
Outcome in a split: The liberals win.
Not to be too blunt, but presenting this case before a post-Scalia court is an enormous break for American labor unions. In Friedrichs v. California Teachers Association, the court is considering whether public servants can be forced under “fair share” laws to pay fees to unions in order to cover the cost of collective bargaining on their behalf, even if they’re not members. A ruling against the teachers’ unions would effectively extend right-to-work laws to government employees across the nation and significantly cut into public-sector union revenue. And as of oral arguments, it looked as if that was about to happen. But with Scalia no longer on the court, the decision by the U.S. Court of Appeals for the 9th Circuit, which upheld fair share rules, may still stand.
Case: Evenwel v. Abbott
Issue: One-person, one-vote
Outcome in a split: Liberals win.
This case had the potential to drastically change the way that states draw legislative maps. Now, not so much.
Under the principle of one-person, one-vote, states have traditionally tried to create legislative districts that have rougly equal total populations. In Evenwel, the plaintiffs argued that districts should be based on the total number of potential voters. That would exclude minors, unnaturalized immigrants, and felons who had been stripped of their voting rights from the calculation, likely tilting the process in favor of conservatives. The lower court, however, said it was fine for states to continue using total population. In the event of a 4-4 split, that decision will stand.
Case: U.S. v. Texas
Issue: Whether states can challenge federal immigration policy
Outcome in a split: Conservatives win.
In November 2014, President Obama issued a controversial executive action allowing certain undocumented immigrants to apply for temporary legal status if they had children who were citizens or green-card holders. However, 26 states including Texas sued to block the action, and a federal appeals court put the policy on hold while the litigation unfolded. The Supremes have been asked to decide whether states even have the right to sue over the issue, and so a 4-4 nondecision would mean that the lower court decision stands.
Case: Whole Woman’s Health v. Hellerstedt
Issue: Abortion
Outcome in a split: Conservatives win.
The plaintiffs in this blockbuster reproductive rights case are challenging a Texas law that, as Sarah Kliff of Vox notes, has forced half the state’s abortion clinics to close since 2013 by requiring them to get admitting privileges at local hospitals. Were it to stand, additional providers would likely shutter and a legal blueprint would be left in place for more anti-abortion state legistures to limit access. Scalia was a staunch abortion foe. But in the event of a tie, the case would still turn into a conservative win, at least in the states covered by the 5th Circuit, as the U.S. Court of Appeals for the 5th Circuit had previously upheld the Texas law. Thus, this case still comes down to Kennedy’s vote.
Case: Fisher v. Texas
Issue: Affirmative action
Outcome in a split: There won’t be a split.
Abigail Fisher sued University of Texas at Austin over its affirmative action policy after the school rejected her, claiming that the insitution violated the constitution’s equal protection clause by considering race in admissions. Again, Scalia was an almost sure vote to end racial preferences, but his passing doesn’t matter all that much in this instance, since Justice Elena Kagan has recused herself from the suit. (She was solicitor general when the Obama administration filed a friend-of-the-court brief in the case.)
Where does Kennedy stand? He’s not known as an affirmative action fan, and two years ago, he wrote the decision sending Fisher back to the lower court for a more stringent review. But during the last oral argument, he largely complained that the most recent version of the case hadn’t brought any new facts to light and didn’t exactly tip his hand.
Case: Zubik v. Burwell
Issue: Obamacare’s contraception mandate
Outcome in a split: The law will be different depending where you live in the country.
If this case ends in a split, things are going to get a bit weird for Obamacare’s contraception mandate. You probably remember the Hobby Lobby case from 2014, in which the court ruled that private businesses could exempt themselves from the Affordable Care Act’s rules requiring employer-based health plans to cover birth control, so long as their owners had deep religious convictions. After that decision, the Obama administration came up with an “accommodation,” which essentially let those companies off the hook while making sure their workers got their free contraception. However, a number of religiously affiliated nonprofits have sued once again, basically saying the accommodation isn’t good enough. Most courts have ruled against them, except for the U.S. Court of Appeals for the 8th Circuit. So, if this one ends in a tie, nothing will be settled, and the law will still differ judicial district to judicial district. Just one good reason among many we might want to get a new justice on the Supreme Court soon.
Jordan Weissmann is Slate’s senior business and economics correspondent.

SHOULD JUDGES HAVE LEGISLATIVE EXPERIENCE?

Monday, February 15th, 2016

IS IT A PROBLEM THAT JUDGES NO LONGER HAVE EXPERIENCE WORKING IN CONGRESS?

By Alyx Mark February 10

These days, it seems that members of Congress are increasingly annoyed with the courts — or at least, more willing to criticize them.
Why? When government is divided and the parties are so polarized that they can’t reach a compromise, the courts are often left to interpret the resulting vague and complex legislation coming out of Congress. This means that Congress relies on the judiciary to understand its preferences and interpret the statutes as intended. Not surprisingly, when the interpretation doesn’t go their way, members of Congress are quite willing to complain about what they see as the judiciary’s failure to correctly understand the law.
This happens in part because the laws that get passed are vague enough that they could be interpreted in a variety of ways – an effect of trying to pass legislation appealing to a diverse coalition. Whichever way a court interprets a law, one side or another will say that’s not what the law meant.
But there is another reason as well: The percentage of judicial nominees who’ve worked in the legislative branch is the lowest in history. Fewer than 4 percent of federal judges confirmed since 2010 have worked in Congress. It is more common for judges and justices to reach the bench via the bureaucracy, academia, or through the judicial hierarchy itself. This may contribute to misunderstandings between the branches.
How can the branches understand one another?
Why aren’t judges coming to the courts from Congress anymore?
The answer might be supply and demand. At present, there is not a high demand from the president – or senators from states with open seats on the bench – for judicial candidates with legislative experience. On the supply side, there aren’t many incentives for ex-legislative branch workers to seek judgeships.
[Is there a revolving door between Congress and lobbying?]
On the demand side, presidential nominations priorities have shifted away from those with political backgrounds in general and toward candidates with academic or bureaucratic backgrounds. On the Supreme Court, we see examples of this shift: Roberts, Alito and Scalia all worked in the Department of Justice.
Why? Some fear that candidates with political backgrounds won’t be able to ignore their past political biases and become impartial judges, basing decisions purely on the law. And it’s harder to get someone with a known ideological record through the confirmation process. This could also be true for other nominees; writing law review articles also can reveal controversial political leanings.
On the supply side, fewer people with legislative experience are considering entering the pool. Maybe they don’t want to face the hostile nominations process with a record that is easy to attack. Or maybe they believe that they’re simply on a different track since each branch has become more professionalized, with very different training and experience expected to be successful in each. Or perhaps those in Congress prefer to use the skills they’ve learned and the connections they’ve made to take lucrative jobs in the private sector, rather than continuing in public service.
[Which members of Congress become lobbyists?]
Whatever the reason, the president isn’t nominating, and Congress isn’t confirming, judges with political experience. And that might actually be making it harder for the branches to understand each other.
This summer, I interviewed 27 of the federal judges and justices who have experience working in Congress, or 44 percent of all the judges with such experience. I asked how that experience influenced their perception of the relationship among the branches and how they work as judges.
But some judges remember learning about law by helping to make laws
Judges who have worked in Congress sometimes believe they have a different perspective on the law than do their colleagues. Firsthand experience making policy helps them see that the judiciary plays an important but equal role in the federal policymaking process.
As one former legislative staffer-turned-federal judge said, the experience “gives you an understanding … that we are an integral part of the dynamic of government. If you just went to law school, became a professor … and they put you on the bench, you might not have that frame of mind.”
This interviewee echoed the perspective of many such judges, who felt that legislative experience situates you within the branches in a way that judges coming from academia may not understand. The “inside track” provides judges with an informed view of the policymaking process that colors their view on their roles and their branch.
They’re more patient with the how laws get made
Members of the federal bench with legislative experience can be more likely to understand that every policy and statute comes out of a particular political context – and to respect that context.
As a result, they say, they search for information about laws instead of just trying to interpret the statute’s text as if it were a standalone object. Judges with congressional experience, on the whole, said they were more likely to defer to the legislature’s intent—having learned to respect it firsthand.
“The legislature might not do a perfect job of explaining its intent,” another judge told me. “But it isn’t for lack of trying … [As a result of my experience,] I am more patient with the government.”
Yet another judge noted how useful it was to investigate a law’s history, saying, “No human being can think of [what] every possible meaning of every set of words should be – legislative history is helpful to guide judges. It clarifies what these words mean.”
They can help colleagues without legislative experience
Judges who have worked in Congress see themselves as able to educate their fellow judges when those judges want to understand the politics behind a given law — or behind lawmaking in general, and how it results in ambiguous statutes.
“We judges get together for lunch every day,” yet another federal judge told me. “It is not impossible for one judge or another to say, ‘What on earth was Congress thinking of when they did this?’ and there is a good chance that I’ll be able to answer that question.”
Understanding compromise
Presidents and members of Congress may worry that firsthand political experience would make judges more “political” – and more likely to try to bend legislation to what they’d prefer than to interpret it faithfully. But they might have it backwards. They’re more likely to understand and respect the complicated compromises that go into turning a bill into law. Judges who’ve worked with legislators might be just what the judiciary needs.
Alyx Mark is an assistant professor of political science at North Central College in Naperville, Ill.

ATTORNEY GENERAL SUES FERGUSON CITY

Monday, February 15th, 2016

Dept. of Justice sues Ferguson Michigan
By Mark Berman, Sari Horwitz and Wesley Lowery February 11 at 7:52 AM
The Department of Justice filed a 56-page civil lawsuit Wednesday against the City of Ferguson, Mo. alleging that, 18 months after the police shooting of Michael Brown, the city’s police and court system continue to violate black residents’ civil rights.
The suit — a contentious next-step in what has been a months-long negotiation process between federal and city officials over potential reforms — says these “ongoing and pervasive” violations come from the city’s use of law enforcement to generate revenue.
“Residents of Ferguson have suffered the deprivation of their constitutional rights — the rights guaranteed to all Americans — for decades,” Attorney General Loretta Lynch said during a news conference Wednesday in which she was impassioned as she spoke about the urgent need for reform in Ferguson. “They have waited decades for justice. They should not be forced to wait any longer.”
The lawsuit, filed in the U.S. District Court for the Eastern District of Missouri, alleges that Ferguson’s police department and municipal courts engage in an unconstitutional “patterns and practices” of using force without legal justification and “engaging in racially discriminatory law enforcement conduct.”
Federal officials say the civil rights violations stem from the city’s failure to properly train and supervise its law enforcement officers, echoing the findings of the 2014 Justice Department investigation into Ferguson’s police force.
The Justice Department bluntly states in the suit that Ferguson’s focus on revenue is the reason the city’s officials have never changed politics to try and “decrease or eliminate police misconduct, including discriminatory policing, unconstitutional stops, searches and arrests, and the use of unreasonable force.”
While the suit acknowledges that the city has made some reforms since the Justice Department conducted its investigation, it also states that they are insufficient to both eliminate the practices and prevent them from happening in the future.
The lawsuit comes one day after city officials requested several changes to a tentative agreement reached by city and federal negotiators following the Justice Department’s investigation into the city’s police and court practices — which concluded that the city engaged in practices that were racially discriminatory and violated residents’ civil rights.
“Our investigation found that Ferguson’s policing and municipal court practices violate the Constitution, erode trust and undermine public safety,” said Vanita Gupta, the DOJ’s principal deputy assistant attorney general.
The tentative agreement reached last month was in the form of a 131-page consent decree that, among other things, would establish long-term programs promoting interactions between the police and youths and ensure that officers are provided the training, supervision and support they need to police effectively but also “lawfully and ethically.”
Ferguson’s city council members voted unanimously on Tuesday night to accept the Justice Department’s proposed reforms only if federal officials agreed to seven changes, which included: changing the deadlines in the agreement, not mandating any salary increases for police officers and altering certain fees.
The Justice Department quickly disparaged the city council’s actions as an unfair development after extensive negotiations. Gupta, who heads the department’s Civil Rights Division, vowed that the federal government “will take the necessary legal actions” to reform the city’s courts and policing practices.
A spokesman for Ferguson did not respond to a request for comment about the lawsuit, though in the hours before the suit was announced, city officials had said they were still open to negotiating with the Justice Department.

Under powers granted to the federal government by legislation passed after the police beating of Rodney King in Los Angeles, the Justice Department can force police agencies to undergo reforms if it concludes a department’s current policies permit civil rights violations, and can sue a municipality to force such changes if city officials do not cooperate.
The negotiations stem from the federal investigation into the police shooting of Michael Brown, an unarmed black man whose death prompted nationwide protests, as well as a parallel investigation into the city police force’s “patterns and practices.” The Ferguson probe is one of more than two dozen such investigations into police departments conducted by the Justice Department under the Obama Administration, and the city joins at least two other police agencies currently in litigation.