Author: Lee Ross

How will the Court change with Stevens gone?

More than with the Souter-Sotomayor switch which was predicted to be and has so far proven to be an even swap.

Stevens is the liberal leader of the Court. If not in legal thinking then certainly in leadership/seniority and ability to cull together a five vote majority. It is Stevens who is often credited with bringing Justice Anthony Kennedy to the liberal side in the close 5-4 cases. It is unlikely that a new justice will have that pull.

HOWEVER, the loss of Stevens will put Kennedy in a position of power to craft his own five member majority. Under Court protocol the Chief Justice has the power to assign opinions when he is in the majority. The longest tenured Associate Justice has that power when the Chief Justice is in the minority. Stevens has been in that position for nearly two decades. It will now fall to Justice Antonin Scalia. But since Chief Justice John Roberts and Scalia are often on the same side and unlikely to diverge in the future, Kennedy as next in line has the power to control the outcome of cases unlike ever before. As the notorious swing vote on the Court Kennedy can now effectively hold each side hostage for the outcome he desires. The question is which side will most often bend to what Kennedy demands? My prediction is that Kennedy who is more often than not (by about 2-1) with the conservatives on the close cases will now be leading more rulings with the liberals.

What sort of longevity records are we talking about with Justice Stevens?

Stevens was appointed to the bench by President Ford in 1975 and is the longest serving member of the current court.

He is a bit more than two years away from becoming the longest serving justice of all time. That record is held by William O. Douglas who was the man Stevens replaced on the high court. Here is a link to the current longevity rankings: http://www.oyez.org/length_of_service?order=field_service_length_value&sort=asc&page=4

Stevens is also the second oldest justice to ever sit on the bench. Justice Oliver Wendell Holmes Jr. has the record as the oldest to ever serve having retired a couple of months shy of his 91st birthday.

As for these records Justice Stevens told C-Span last year: “No, I’m not out to break any records, I can assure you of that. I just enjoy the work and each year I’ve thought about it I’ve decided that I could continue to enjoy it and continue to make a contribution.”

The speculation on who will replace Justice John Paul Stevens was going on long before he sent his resignation letter to President Obama Friday. In fact, the topic of Obama’s second high court nomination came up during the battle over his first.

“It wouldn’t at all surprise me if some of the very same people were back in the Oval Office,” White House Chief of Staff David Axelrod said when asked about the next Supreme Court nomination while Sonia Sotomayor’s nomination was still pending before the Senate.

Those same people would include federal appellate court judge Diane Wood, Solicitor General Elena Kagan and Homeland Security Secretary Janet Napolitano. In recent months most attention has been focused on Wood and Kagan.

Wood is well known in legal circles for her strong opinions on the Chicago-based Seventh Circuit U.S. Court of Appeals. She was also part of the faculty at Chicago Law School when Obama taught Constitutional law. She is also very familiar to Stevens who is responsible for overseeing the Seventh Circuit and is a Chicago native. Though that connection would unlikely be a decisive factor into her selection.

Kagan is the former dean of the Harvard Law School and is well-regarded for her performance there in controlling a fractious faculty and reaching out to conservatives. She has already successfully navigated through the Senate Confirmation process to become Solicitor General. Kagan is also something of an unknown entity because she has never been a judge and as a result has a thin paper trail of past positions.

Of course, the president is free to select anyone he wants and speculation will likely run rampant in the weeks to come. Here is how we assess the possible selections:

TIER ONE:

Diane Wood, Judge Seventh Circuit

Elena Kagan, Solicitor General

TIER TWO:

Merrick Garland, Judge DC Circuit COA

Leah Ward Sears, Former Chief Justice of Georgia Supreme Court.

Kathleen Sullivan, Professor and former dean of Stanford Law School

Cass Sunstein, Former Chicago & Harvard Law Professor, leads Obama Administration’s Office of Information and Regulatory Affairs.

Pam Karlan, Stanford Law professor

Janet Napolitano, Secy DHS

Jennifer Granholm, Michigan Governor

 

TIER THREE:

Rosemary Barkett, Judge 11th Circuit

Fortunato Benavides, Judge 5th Circuit

Christine Arguello, U.S. District Court Judge Denver

Ruben Castillo, Judge USDC Northern District of Illinois

Karen Nelson Moore, Judge 6th Circuit

Jose Cabranes, Judge 2nd Circuit

David Tatel, Judge DC Circuit COA

Deval Patrick, Massachusetts Governor

Marsha Berzon, Judge 9th Circuit

Eric Holder, U.S. Attorney General

Charles Ogletree, Law Professor Harvard Law School

Kim Wardlaw, Judge Ninth Circuit

Seth Waxman, Former Solicitor General. Lawyer at Wilmer Hale

Harold Koh, Former Dean Yale Law School–Counsel to State Dept.

Ken Salazar, Interior Secretary

OBAMA’S COURT OF APPEALS NOMINEES

Judge David Hamilton, 6th Circuit

Judge Andre Davis, 4th Circuit

Judge Gerard Lynch, 2nd Circuit

Judge Joseph A. Greenaway, Jr., 3rd Circuit

Judge Beverly B. Martin, 11th Circuit

Jane Branstetter Stranch, 6th Circuit

Judge Thomas Vanaskie, 3rd Circuit

Justice Barbara Milano Keenan, 4th Circuit

Judge Danny Chin, 2nd Circuit

Judge O. Rogeriee Thompson, 1st Circuit

Judge Albert Diaz, 4th Circuit

Judge James Wynn, 4th Circuit

Goodwin Liu: 9th Circuit

Judge Robert N. Chatigny

Scott M. Matheson, Jr., 10th Circuit

Statement of Chief Justice Roberts:

Associate Justice John Paul Stevens has earned the gratitude and admiration of the American people for his nearly 40 years of distinguished service to the Judiciary, including more than 34 years on the Supreme Court. He has enriched the lives of everyone at the Court through his intellect, independence, and warm grace. We have all been blessed to have John as our colleague and his wife Maryan as our friend. We will miss John’s presence in our daily work, but will take joy in his and Maryan’s continued friendship in the years ahead.

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Comment Of Senator Patrick Leahy (D-Vt.),

Chairman, Senate Judiciary Committee,

April 9, 2010

When the Supreme Court recesses on Justice Stevens’ final day on the bench, it will mark the end of an extraordinary judicial career spanning four decades, including 35 years on our highest court.

The last Justice from “the Greatest Generation,” John Paul Stevens first answered the call to service when he joined the Navy during World War II. Our nation called on him again years later, and he returned to public service as an appellate judge before accepting President Ford’s nomination to serve on the Supreme Court. He has since become one of the longest serving Justices on the Court. His confirmation was the first of a dozen Supreme Court nominations I have considered in my years in the Senate. As a young, freshman senator, it was a privilege to support his confirmation in 1975.

Justice Stevens’ unique and enduring perspective is irreplaceable; his stalwart adherence to the rule of law is unparalleled. The federal judiciary, and indeed the entire nation, will miss his principled jurisprudence. While it is with a heavy heart, I wish him the best in his retirement.

As we move forward with preparations for the second Supreme Court nomination of this Congress, I am reminded of the Vermont marble inscribed above the entrance of the Supreme Court which pledges “Equal Justice Under Law.” I hope that Senators on both sides of the aisle will make this process a thoughtful and civil discourse. I expect President Obama to continue his practice of consulting with members on both sides of the aisle as he considers this important nomination. The decisions of the Supreme Court are often made by only five individuals, but they impact the daily lives of each and every American. All Senators should strive to fulfill their constitutional duty of advise and consent, and give fair and thorough consideration to Justice Stevens’ successor.

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HATCH STATEMENT ON SUPREME COURT JUSTICE STEVENS RETIREMENT

SALT LAKE CITY –U.S. Senator Orrin Hatch (R-Utah), a member and former Chairman of the Senate Judiciary Committee, issued the following statement today after Supreme Court Justice John Paul Stevens announced his retirement today:

“Justice Stevens’ has had a profound impact on the judiciary and the law. He is a remarkably dedicated public servant and a profoundly decent human being. All Americans should thank him for his dedicated service and we all wish him a happy and healthy retirement.

“Every President has an obligation to nominate Judges who understand and are committed to their proper role in our system of government. As I have said for many years, someone who would be an activist judge, who would substitute their own views for what the law requires, is not qualified to serve on the federal bench. The confirmation process should be fair and thorough, and the President’s nominee should be judged by this standard. I look forward to participating in this process when the President announces his nominee to the nation’s highest court.”

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McConnell Statement on Justice Stevens

 

LOUISVILLE – U.S. Senate Republican Leader Mitch McConnell made the following statement on Friday regarding the announced retirement of Supreme Court Justice John Paul Stevens:

 

“John Paul Stevens has said that he never felt the need to break any records, but judging by his legendary vigor it seems highly likely that he could have shattered the record for longest-serving Supreme Court justice if he had wanted to. I commend Justice Stevens for his lifelong commitment to public service, from his early days fighting corruption in Chicago, to his work in naval intelligence during the Second World War, to his more than three decades on the nation’s highest court. Even if Justice Stevens’ liberalism has led to many decisions I oppose, I respect his devotion to the institution and the gentlemanly manner in which he always carried out his work. I wish Justice Stevens and his wife Maryan all the best in their future endeavors. 

 

“As we await the President’s nominee to replace Justice Stevens at the end of his term, Americans can expect Senate Republicans to make a sustained and vigorous case for judicial restraint and the fundamental importance of an even-handed reading of the law.”

 

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CHAMBERS OF

JUSTICE JOHN PAUL STEVENS

April 9, 2010

My dear Mr. President:

Having concluded that it would be in the best

interests of the Court to have my successor appointed

and confirmed well in advance of the commencement of

the Court’s next Term, I shall retire from regular

active service as an Associate Justice, under the

provisions of 28 D.S.C. § 371(b), effective the next

day after the Court rises for the summer recess this

year.

Most respectfully yours,

John Paul Stevens

The President

The White House

Washington, D.C. 20500

In a move that was widely expected, Supreme Court Justice John Paul Stevens announced his intention to resign from the high court in a letter to President Obama dated Friday. Stevens resignation gives Obama his second opportunity to make a lifetime appointment to the Supreme Court and sets up a near certain Senate confirmation battle this summer.

In his letter to the president, Stevens concluded that “it would be in the best interests of the Court to have my successor appointed and confirmed” before the next high court term starts in October. He will remain on the bench through the end of the current term which is likely end in late June.

Stevens has been on the bench longer than any other current member of the Supreme Court and was a federal appellate judge in Chicago in 1975 when President Gerald Ford picked him for the high court.

Chief Justice John Roberts issued a statement Friday saying Stevens “has enriched the lives of everyone at the Court through his intellect, independence, and warm grace. “

Stevens impact in the bench was immediate as his vote helped forge a narrow majority to reinstate the death penalty. But by 2008, Stevens concluded the way capital punishment was carried out by states was pointless and “patently excessive and cruel and unusual punishment.”

It was “a conclusion that the stable ground that he thought he found early on wasn’t proving as stable as he would have liked,” Stewart Baker, a former Stevens law clerk told Fox News.

Stevens was born in 1920 and raised in his beloved hometown of Chicago. His family ran the old Stevens Hotel on Michigan Avenue until the Great Depression knocked them out of business. In between his college studies at the University of Chicago and Northwestern Law School where he finished first in his class he served in the U.S. Navy during World War II. He was awarded a bronze star for his work as part of the famous Codebreakers stationed in Hawaii.

In 1947, Stevens did a one year clerkship for Justice Wiley Rutledge. A man Stevens would later call a hero. It is perhaps because of this experience that Stevens would make sure he engaged his clerks in the day-to-day operations of the Court.

“That may not sound that unusual but in many of the other chambers,” observed Abner Greene, a former clerk and now law professor at Fordham University. “A lot of work was done by memo writing. The clerks would write memos to the justice. There would be set meetings every week to talk to the justice. But with Justice Stevens, it was an on-going legal discussion. Which is the best opportunity”

While Stevens has remained a prolific writer, his voice on the Court didn’t really emerge until the 1990’s when he became the longest-serving associate justice. This position–second only to the Chief Justice in influence–allowed him to craft close majorities in dozens of cases. This skill enabled Stevens to pick up the crucial fifth vote in a string of War on Terror cases from 2004-2008 challenging the Bush Administration’s handling of terror suspects at Guantanamo Bay.

“In all of those cases, it’s Justice Stevens who is assigning the opinion to Justice Kennedy. It’s not like Justice Kennedy walks in and picks it up,” Green observed.

Stevens is known for his intellect and even temperament and as a rabid Chicago Cubs fan who a few years ago threw out the ceremonial first pitch at Wrigley Field. And he was there in 1932 as a 12 year old boy and saw Babe Ruth hit his famous “called shot” home run in the World Series.

“He really did it. There’s no doubt about it,” Stevens said several years ago. “I saw it and I remember it. Of course, there are millions of people who claim to have been here. But I really was.”

In 2000, the Supreme Court was called upon to effectively decide that year’s presidential election. Stevens came out on the short end of that decision. “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

In recent years, Stevens maintained that his conservative principles never changed during his time on the Court. Rather it was the justices around him and perhaps the country too that became more conservative than he.

One of the interested entities in the investment case that the Court ruled on Tuesday is the Investment Company Institute. It filed a brief with the high court in support of the plaintiffs.

It is a trade association that represents the interests of investment companies, mutual funds and other financial industry partners.

ICI’s President and CEO Paul Schott Stevens issued the following statement shortly after the ruling:

“The Supreme Court’s unanimous decision brings stability and certainty for mutual funds, their directors, and almost 90 million investors, by endorsing the long-standing framework under which courts consider claims of excessive fund advisory fees. The Court’s decision recognizes that this framework has worked for funds, advisers, boards, courts, and—most importantly—fund shareholders, who have seen their cost of investing fall by half in the last 20 years, making it easier for them to meet retirement, education, and other vital financial goals.”

In a unanimous ruling penned by Justice Samuel Alito, The Supreme Court has upheld a several decade long standard by which investment companies are expected to conduct its business. The term of art that’s used is “fiduciary duty.”

The decision affirms a standard that says to face liability “an investment adviser must charge a fee that is so disproportionately large that it bears no reasonable relationship to the services rendered and could not have been the product of arm’s length bargaining.”

But the Court is very wishy-washy on drawing any hard and fast rules about how to make a liability determination. A key area of dispute is the comparison of fees charged to mutual fund clients (higher) than those to institutional clients (lower) like pension funds. The Court’s ruling says the discrepancy may be used as part of a court’s analysis in determining if fees charged to mutual fund shareholders are too high. “We do not think that there can be any categorical rule regarding the comparisons of the fees charged different types of clients,” Alito wrote.

Even in upholding the standard the Court acknowledges it lacks “sharp analytical clarity, but it accurately reflects the compromise embodied in [the Investment Company Act of 1940] as to the appropriate method of testing investment adviser compensation, and it has provided a workable standard for nearly three decades.”

Today’s ruling vacates the decision of the lower court and remands the case for further consideration thus making it a minor victory for the investors who sued.

Here is my backgrounder on the case: Nearly 1/3 of all Americans own mutual funds which are the favored investment vehicle for 401k retirement plans. There are about 8,000 of these funds totaling $10 trillion in assets. The managers of these funds also pocket about $100 million annually for their services but some groups including the Obama Administration feel that amount is too high and that current industry practices violate federal law regulating the mutual fund industry.

The question presented to the Court in this case is if fund advisors breech a legally required “fiduciary duty” when they charge fees that are deemed to be disproportionate. A lower appellate court didn’t think so when it ruled last year that Harris Associates management of Oakmark mutual funds were within federal law. But the judge who spearheaded that ruling went even further when he wrote “a fiduciary must make full disclosure and play no tricks but is not subject to a cap on compensation.”

The suggestion that barring any malfeasance on the part of the advisor, market forces were sufficient to determine fees–no matter how large– rankled other members of the Seventh Circuit Court of Appeals who were unable to muster the votes to rehear the case. “Mutual funds are a component of the financial services industry, where abuses have been rampant,” Judge Richard Posner declared.

It doesn’t appear that fees charged by Harris Associates were out of bounds relative to other mutual fund advisors. In fact, given the outstanding performance of the Oakleaf funds it could be argued shareholders were getting tremendous value from Harris’ management. The objection rests in the suggestion that Harris’ fees when compared to the fees it charged for funds it did not manage was disproportionate. By and large, Harris’ fee schedule was in bounds compared to industry norms.

For that reason, a ruling in this case could have a huge impact on mutual fund managers. The AARP and a number of consumer groups have submitted briefs to the Court decrying the Seventh Circuit’s ruling and call for stricter controls on fund managers. The AARP brief argues the “imposition of excessive mutual fund investment fees jeopardizes the ability of countless current workers to become financially self-sufficient in retirement.”

On the other side of the argument are various financial groups who contend the mutual fund marketplace is working properly. They point to principles of supply and demand that show investors are loath to put their money in funds where managers charge above average fees. They further argue that a ruling against Harris will invariably lead to increased litigation and inconsistent rulings from judges who are not fully capable of determining fair compensation. They also see the lawsuit as nothing more than an attempt to jump on a bandwagon of popular opinion against high executive salaries. “This Court’s task is interpreting statutes, not ‘sending messages,’” says Richard Bernstein, lawyer for the U.S. Chamber of Commerce. He says it would be a “radical departure” for the federal government–especially judges–to get involved in regulating executive compensation.

Attention college students: Pimlico Race Course wants you to come back and drink lots of its beer.

That appears to be the message coming from the operators of Pimlico Race Course in Baltimore, Maryland, home of the Preakness Stakes, the middle jewel of horse racing’s Triple Crown.

Last year’s running will be remembered by racing fans for Rachel Alexander’s brilliant victory that propelled her to horse of the year honors. But it will also be noted for the steep drop in attendance–especially in the track’s infield–attributed to an alcohol policy that made the annual event less desirable for young adults.

For this year’s running on May 15, Pimlico officials are offering infield patrons an all you can drink option. For $20 people get a souvenir mug and the ability to drink all of the beer they can consume.

The infield scene at Pimlico on Preakness day had become well-known for its rowdiness with mostly college-aged people jamming into the spacious center of the historic track. Mass drunkenness was commonplace as people were allowed to bring in as much of their own alcohol as they could physically carry–often in coolers wheeled in the early hours of race day.

Prompted by safety concerns, Pimlico changed its policy in 2009 and prohibited anyone from bringing in their own alcohol. Attendance dropped by more than 30% from the year before. By post time of the Preakness, vast stretches of green grass were visible, an unusual sight from past years including 2007 when a record 121,263 people attended the race.

The $20 all you can drink deal comes with a catch: it’ll cost you $50 on race day ($40 in advance) to buy your ticket to get into the infield.

It is also restricted to a certain part of the infield that Pimlico is calling the “Mug Club” and is only accessible to people who are at least 21 years old.

WASHINGTON — A Massachusetts law mandating a 35 foot “no speech zone” around abortion clinics will not be given further review by the Supreme Court the justices announced Monday.

The law was upheld by a lower court last year. Opponents contend the law improperly carves out an exception to First Amendment protections. “The statute makes it a crime to stand on the public sidewalk and display signs, distribute leaflets, pray in silence, or converse with willing listeners, even when there are no incoming patients in or near the zone,” lawyers for five Massachusetts residents wrote to the high court asking the justices to take the case.

Anyone who violates the 2007 law is subject to a small fine and up to three months in jail but the law’s opponents law contend there was no need for the Massachusetts legislature to act. They say there is no record of anyone in Massachusetts who was prosecuted under a previous state law imposing a six foot perimeter. These opponents also object to the language of the statute that makes it specific to abortion clinics rather than all health facilities and the exemptions given to people who have business in the clinics.

In asking the justices to keep out of the case and effectively uphold the law, Massachusetts officials argued the new legislation is necessary to protect public safety and to ensure people have access to abortion clinics.

The beautiful strains of “Ave Maria” will not echo through the marbled walls of the Supreme Court, nor will arguments, over Justice Samuel Alito’s objections, in a case about the playing of the standard at a high school graduation.

On Monday the high court announced it will not hear the appeal of Kathryn Nurre who with other classmates was prohibited from performing an instrumental version of the popular tune at their graduation ceremony from an Everett, Washington high school.

The school’s principal after consultation with other officials struck the song from the graduation program. District superintendent Carol Whitehead justified the decision by reasoning that “many people would see [the song] as religious in nature.”

Nurre sued the school district claiming its decision violated her constitutional rights. Lower courts have ruled in favor of the district but in their petition to the Supreme Court, Nurre’s lawyers contend “the censorship in this case involves political correctness run amuck.”

They take issue with the lower court’s reasoning that the district’s action was justified because of concerns that people would complain about the song in a reprise of an issue raised following a previous graduation ceremony. Nurre’s lawyers further argued the school district’s decision justifies the sacrifice of artistic and student expression “to a heckler’s veto that seeks to sanitize even the remotest vestige of religion from public life.”

Justice Alito announced his disagreement with the high court’s decision to stay out of the case by writing the Ninth Circuit U.S. Court of Appeals decision “is not easy to square with our free speech jurisprudence.”

Lawyers for the school district asked the justices not to take case claiming the Ninth Circuit ruling last year was correct and that the issues presented by Nurre failed to offer the type of significant legal conflict that is normally resolved by the high court. Furthermore it defended the decision as within its authority to maintain “the orderly administration” of education for its students.

The school district concluded its argument to the justices by saying it does not seek “to deprive students of learning opportunities, nor is it seeking to purge altogether religious-inspired works from public education. Instead, it simply sought to provide an atmosphere in which all graduates could celebrate their academic achievements, free from controversial messages….the District simply had no choice but to act as it did, within the confines of the law.”

Alito was sharply critical of the school officials and their decision. He said that when the school gives students the opportunity to express themselves they must respect the students’ right to free speech. “School administrators may not behave like puppet masters who create the illusion that students are engaging in personal expression when in fact the school administration is pulling the strings,” Alito wrote.

Sec. Clinton just wrapped up a bilat w/ Irish Foreign Minister Michael Martin and was firm in reiterating the united state’s support of Israel and a Mideast Peace.

“We are committed to a two state solution…there is too much at stake”

“We have a close and unshakable bond” with Israel.

But the dust-up over Israel has clearly bothered Clinton and Obama Administration. Clinton said she “we’ll see what the next few days hold” about demands made of Prime Minister Netanyahu over the construction of housing units in East Jerusalem. Clinton tossed aside the recent remark of Israeli Amb. Michael Oren that the current U.S.-Israeli relations are at a 35 year low. “I don’t buy that,” Clinton said.

UPDATED:

Reena Ninan, my Fox News colleague in Jerusalem, just interviewed Danny Danon, from Netanyahu’s Likud party. He said:

“Hilary Clinton needs to keep her hands off Jerusalem.”

“Israelis support the Prime Minister on the issue of Jerusalem.”

“This will blow over. During Pres Clinton’s time Madeline Albright told us not to build in the settlement of Har Homa. I can take you there today. It’s thriving and it didn’t damage US-Israeli relations.”

WASHINGTON — The health care overhaul pending in Congress puts too much of a financial burden on states, particularly when it comes to picking up the additional costs associated with expanded Medicaid, four rural state governors said Monday as they split over whether the bill should become law.

“We are concerned about the overall mandate laid out by the federal government coming down and what the cost would be to the state on an annual basis as the federal subsidy that’s being proposed for Medicaid starts to goes away,” said Gov. Mike Rounds, R-S.D.

“There’s a hole is this whole process for the states,” said Democratic Gov. Ted Kulongoski of Oregon.

“I don’t know whether if what ultimately passes will have that amount of flexibility or not,” added Vermont Republican Gov. Jim Douglas.

The two Republicans argued that the legislation is “unsatisfying” because it’s not something all Americans can embrace, but Kulongoski and West Virginia Gov. Joe Manchin, a Democrat, said while they have their own concerns, the legislation should pass.

It is “a quantum leap forward” from the present system, Kulongoski said, praising President Obama’s efforts to pass the bill.

However, Manchin did object to the lack of collaboration coming from Washington. The Democrat said the states are laboratories of ideas and can bring a lot of good suggestions to the table, but governors were excluded from the brainstorming process.

“Were we really asked to be a part of this process? … Did they bring us in? Absolutely not,” he said.

 

Beyond Medicaid, the governors expressed concerns on other issues they say lawmakers in Washington are ignoring. Kulongoski cited the problems associated with long-term care and the impending retirement of baby boomers who have seen huge reductions in their retirement savings.

“This is the next great crisis facing us,” Kulongoski said.

Rounds said part of the fix is to promote health care policies that encourage doctors and patients to be proactive in their care.

“Rather than just simply waiting until the accident happens, eliminate the problem in the first place or delay the onset of a long-term chronic illness,” he suggested.

Another popular solution for keeping costs under control is the ability of states to maximize their purchasing power by increasing their leverage over insurers and negotiating favorable deals. The broad idea of health insurance exchanges is favored by these governors provided the federal government is flexible enough to allow the states to marshal resources.

“This ability for the states to have purchasing power with their public dollars is a critical factor in actually bringing about reform to the system,” Kulongoski said.

WASHINGTON — The Supreme Court announced Monday that it will give further consideration to three cases including one that involves the rights of a man to protest at a fallen Marine’s funeral.

The facts of the case are largely undisputed and revolve around the March 2006 funeral of Marine Lance Corporal Matthew A. Snyder who was killed in the line of duty in Iraq. In the eyes of his father, Albert Snyder, a quiet day of private grief turned into a “circus-like atmosphere” because of the protests that had nothing to do with the Snyder family.

Snyder’s burial service took place at a church in his hometown Westminster, Maryland. In addition to the family and friends who gathered to mourn, Fred Phelps of Topeka, Kansas attended the service to protest. Phelps and his associates were at this time making regular appearances at military funerals to protest what they believe is an overly tolerant attitude towards homosexuality by the United States government and the military.

At the Snyder funeral, Phelps, the founder of the Westboro Baptist Church in Topeka and others from his congregation–all relatives–held a variety of protest signs. Some read “God Hates the USA” and “America is doomed.” In advance of the funeral, Phelps sent out press releases to news organizations promoting the protest. Albert Snyder saw the signs on a television report about the funeral protest.

Snyder sued Phelps for the trauma of that day and was very emotional in the court at times breaking down in tears. He testified that “for the rest of my life, I will remember what they did to me and it has tarnished the memory of my son’s last hour on earth.” A jury convicted Phelps who was ordered to pay $5 million in damages.

The Fourth Circuit U.S. Court of Appeals overturned the ruling concluded that the First Amendment’s guarantee of free speech protects the protestors. Even though the court found the signs “distasteful and repugnant” it concluded that “no reasonable reader could interpret any of these signs as asserting actual and objectively verifiable facts about Snyder or his son.”

In their appeal to the high court, lawyers for Snyder argue the “the Fourth Circuit necessarily determined that the freedom of religion and peaceful assembly is subordinate to freedom of speech. The Fourth Circuit chose one individual’s First Amendment rights over those of another.”

In the other two cases granted further consideration by the Court, the justices will hear a dispute over the background checks NASA does for some of its contract workers. Also, whether a part of the National Childhood Vaccine Injury Act expressly preempts some claims against vaccine manufacturers “if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings.”

 

An emergency appeal to stop a District of Columbia gay marriage law from taking effect Wednesday was denied by Chief Justice John Roberts late Tuesday afternoon.

Roberts says it is the practice of the Supreme Court to defer to the rulings of D.C. courts matters that are of local concern. He also notes that Congress with its authority to overrule D.C. laws within 30 days has refused to do so.

Roberts writes that “while these considerations are of course not determinative of the legal issues, they do weigh against granting petitioners’ request for a stay…”

WASHINGTON — For the third time in as many months the Supreme Court on Monday will hear arguments on a criminal statute that some blast as unconstitutionally vague and could be used against virtually every worker in the United States.

 

Monday’s case before the high court involves former Enron CEO Jeffrey Skilling who is serving a 24 year prison sentence for his role in the epic collapse of the once powerful energy giant.

 

Prosecutors in Skilling’s case used a federal law known as “honest services” to help secure their conviction.  The premise of law is that it gives prosecutors an additional tool in going after defendants who abuse their workplace positions by improperly profiting from their ventures.

 

Skilling claims there’s no way he violated the “honest services” demanded of his position because his conduct at Enron wasn’t to achieve private gain but rather to advance the company’s interests.

 

The justices heard a pair of similar cases about the “honest services” law in December. In both the government defended the law but at one point Justice Stephen Breyer expressed concern over its reach wondering how the government’s theory of the case “does not make this statute potentially criminalizing 100 million workers in the United States…?”

 

Breyer’s question mirrors the concern expressed by Justice Antonia Scalia who in an earlier case decried the law’s breadth by concluding it could logically be used by a rogue prosecutor to go after “a mayor’s attempt to use the prestige of his office to obtain a restaurant table without a reservation; a public employee’s recommendation of his incompetent friend for a public contract….Indeed, it would seemingly cover a salaried employee’s phoning in sick to go to a ball game.”

 

The December cases involved a former Alaska lawmaker and former newspaper publisher Conrad Black.  The justices have not returned an opinion in either case, likely waiting to hear arguments in the Skilling case before reaching any final conclusions.

 

The uncertainty of the law before the Court has forced the hand of prosecutors in Chicago who are hoping to put former Illinois Governor Rod Blagojevich on trial this summer.  Blagojevich is accused of failing to provide “honest services” to the people of Illinois.  Given the uncertainty of the law before the Court, Blagojevich’s lawyers asked the trial court judge to delay his case pending the outcome of the trio of “honest services” cases in Washington.  Last month a grand jury returned a new indictment with additional charges to bolster the case against the ousted governor.

 

As for Skilling, because of sweeping nature of his crimes, a victory on the “honest services” part of his case is unlikely to do more than shave a few years off his sentence. However, there is a second unrelated issue he’s presenting to the Court about the make-up of the Houston jury pool that was called for his case. 

 

Skilling argues he did not receive a fair trial because of the extensive publicity surrounding Enron’s collapse and the real life impact it had on the Houston community where he was tried. His lawyers argue that “Skilling not only was tried by jurors drawn from a community passionately committed to convicting him, but he was prosecuted under a vague statute that virtually ensured jurors would vindicate that objective.”

 

A number of media organization joined in a brief to the Court expressing concern that a ruling in Skilling’s favor on the jury issue could impact the standards by which future trials are left open to the public for news coverage.  One of those entities, Dow Jones & Company, Inc. is the publisher of the Wall Street Journal and is owned by the parent company of Fox News.

WASHINGTON — The Supreme Court announced Monday it will not hear arguments in a case brought by the publishers of Hustler Magazine which published ten decades-old nude photographs of a woman after she was murdered by her professional wrestler husband.

 

Last year, a three judge appellate court ruled that the magazine did not have the right to publish its two-page spread in violation of Georgia’s privacy laws.  Monday’s decision by the high court effectively affirms that ruling.

 

Nancy Benoit’s death made national headlines in June 2007 when she and her son were killed by professional wrestler Christopher Benoit who then committed suicide.  The skin magazine published its piece in March 2008.

 

The Atlanta-based Eleventh Circuit U.S. Court of Appeals ruled that the nude photographs taken from a 20 year-old videotape were not appropriate for publication. It ruled that the existence of nude pictures was not of news value and the accompanying biographical text in the magazine didn’t make it a “newsworthy article.”

 

In their petition to the Supreme Court, lawyers for the magazine blasted the ruling saying it was “premised on the faulty notion that the First Amendment right to publish need be weighed against community morals.”

 

Nancy Benoit’s mother, Maureen Toffoloni, asked the justices to leave the lower court ruling in place. Her lawyers told the Court the judges below did their job in carefully reviewing the facts and balancing whether the photographs were a matter of legitimate public concern.  They praised the judges for determining that there was “no connection between a newsworthy event and the nude pictorial…”

 

The justices, as is custom, offered no reason for why they refused to take the case.

WASHINGTON —   The Supreme Court announced Monday it will not hear a case over the ordered removal of a Ten Commandments monument on a county courthouse lawn.

 

Five years ago the high court issued a pair of sharply divided rulings that both upheld and overturned public displays of the Ten Commandments.

 

The dispute the justices refused to give further consideration to comes from Haskell County, Oklahoma where ten donated permanent monuments are on display outside on the courthouse lawn.  Those monuments include war memorials and another honoring the Choctaw Nation. James Green and the ACLU sued to remove the one inscribed with the Ten Commandments arguing its placement on the public lawn is unconstitutional.

 

A trial court upheld the county’s decision to erect the privately-funded monument but last year a three judge panel of the Tenth Circuit U.S. Court of Appeals unanimously overturned that ruling in favor of Green and the ACLU.  An evenly split panel (6-6) of the entire Tenth Circuit decided against taking another look at the case which led to Haskell County’s appeal to the Supreme Court.

 

In its petition asking the justices to take the case, lawyers for Haskell County argued their case offers the justices a straightforward opportunity to clarify the procedures by which judges can determine if the Constitution is infringed.  The County contends a “well-informed and reasonable observer” test is the proper standard to figure out if the display is impermissible. In other words, would a well-informed and reasonable person conclude that this monument in its exact location represents an improper government endorsement of a specific religious belief?

 

In asking the justices to deny further review, lawyers for the ACLU argued there is nothing for the Court to clarify and that context matters for trial judges to figure out if a monument crosses the line.  “The Tenth Circuit and other courts of appeals have faithfully heeded this fact-sensitive approach,” wrote Daniel Mach on behalf of Green and the ACLU.

 

In 2005, the high court issued a pair of 5-4 rulings that prohibited the display of the Ten Commandments inside a Kentucky courthouse but allowed for the erection of a monument on the grounds of the Texas Capitol in Austin. They reasoned the Kentucky display was impermissible because it favorably viewed a particular religious belief while the Texas monument was acceptable because it emphasized the historical and educational importance of the Ten Commandments.

The battle over the meaning of the Second Amendment returns to the Supreme Court Tuesday when the justices hear a case that is a follow-up to their historic ruling in 2008 that individuals have a Constitutional right to keep and bear arms. On Sunday, Fox’s Shannon Bream spoke with a couple of key figures in the gun rights debate: lawyer Alan Gura and Dennis Henigan of the Brady Center to Prevent Gun Violence. Gura argued and won D.C. v. Heller two years ago and will appear before the Court Tuesday.

Even though the Supreme Court ruled two years ago that the Second Amendment protects an individual’s right to keep and bear arms, that historic ruling overturning a Washington D.C. gun ban doesn’t apply to the 50 states. On Tuesday, the justices will be asked to do just that. The legal term is called “incorporation” but all that means is extending the federal protections of the Bill of Rights–including the Second Amendment–to the states. The case challenges Chicago’s restrictive gun law. Dozens of groups have added their voices to the case including the National Rifle Association and the Educational Fund to Stop Gun Violence.

Gura represents Otis McDonald who is challenging the Chicago law. “Virtually the entire Bill of Rights has been applied against states and local governments. The Second Amendment is a normal part of the Bill of Rights. It protects a meaningful individual right which is very important to people in this country and throughout American history,” Gura said.

Henigan says the case is Gura’s to lose based on the premise that the same five judges who were part of the Heller majority will join together and carry the day in this case. But Henigan emphasizes another part of the Heller decision where he says “the Court implicitly recognized that there is still broad legislative authority to enact reasonable laws to reduce the risk from that right. And we hope the Court gives similar assurances in this case.”

 

 

Chile’s top official in the United States says he is extremely grateful for all of the support his country has received in the wake of this morning’s powerful earthquake. Chilean Ambassador Jose Goni told Fox News that government officials in Chile are still assessing the damage and it is too early to know what assistance, if any, is necessary. “We have received a very strong reaction and very strong solidarity from the government, from the White House, the Department of State, the Department of Defense and private institutions,” Jose Goni said late Saturday afternoon.

 

Amb. Goni said the earthquake is a shock for the Chilean people and estimates that 1.5 million homes are damaged with 500,000 of those inhabitable.  An official in Chile says more than 200 people were killed by the earthquake. 

 

Goni talked about a conversation he had with National Security Advisor Jim Jones who offered American assistance. “We are extremely grateful for all of this support and concern,” Goni said.  Earlier in the day, the White House released a statement detailing a phone call between President Obama and Chilean President Michelle Bachelet.  The end of that statement said Bachelet thanked Obama for his call and that she would follow up if her country needs support.