How Souter Picked Wood Over Wardlaw in AT&T v. Hulteen Opinion

In today’s Daily Journal, your blogger points out how Justice David H. Souter picked Judge Diane Wood over Judge Kim Wardlaw when he wrote his majority opinion in AT&T v. Hulteen earlier this week.

As your blogger reports (wearing his real journalist hat):

Monday’s 7-2 ruling, which resolved a circuit split, held that telecommunications giant AT&T Corp. could not be held liable for refusing to grant pension benefits to female employees for maternity leave taken before a federal law on the matter was passed in 1978. AT&T Corp. v. Hulteen, DJDAR 7019.

That decision reversed a 9th U.S. Circuit Court of Appeals opinion written by Pasadena-based Judge Kim McLane Wardlaw, who has been promoted by Sen. Dianne Feinstein, D-Calif., and others as a possible replacement for Souter. Although reports suggest Wardlaw has not made Obama’s shortlist, she would be the country’s first Hispanic justice if nominated and confirmed.

At the same time, the Supreme Court’s decision embraced the conclusion of the 7th Circuit in a 2000 case dealing with the same issues written by Judge Diane Wood, a frequently mentioned frontrunner to replace Souter.

The full story is available to subscribers only at

More F-ing Juvenile Humor At The Court

Justice Stevens
Justice Stevens

Justice John Paul Stevens, who turned 89 last week, had a wide grin on his face this morning as he listened to Justice Antonin Scalia talk about Paris Hilton and Nicole Richie. The two celebutantes (Hilton and Richie, that is, not the justices) were the “stars” of Fox “reality” show The Simple Life. Scalia mentioned them as he read a summary of his majority opinion in a major obscenity case arising out of Richie saying “fuck” and “shit” at the Billboard awards in 2003. A year earlier, Cher also said “fuck” at the event. Both episodes got Fox TV into trouble.

Stevens seemed to be amused when Scalia recounted Richie’s comments. Scalia first noted to a hushed courtroom that he would not himself say the naughty words (“what we will call the f-word and the s-word,” was his way of putting it). 

“Ms. Hilton began their interchange by reminding Ms. Richie to “watch the bad language,” but Ms. Richie proceeded to ask the audience, “Why do they even call it The Simple Life? Have you ever tried to get s-word out of a Prada purse? It’s not so f-ing simple.”

Scalia and a majority of the court concluded that the Federal Communications Commission was within its rights to find Richie’s conduct offensive. Apparently, that was for the swearing, not for her lame attempt at humor.

Justice Breyer’s Public Undressing

Justice Stephen G. Breyer unwittingly sparked mass tittering at the U.S. Supreme Court this morning when one of his stream-of-consciousness questions went a little off course.

It was during the oral argument in a high-profile case over whether the strip search of a 13-year-old schoolgirl was constitutional. School officials in Safford, Ariz., suspected the girl, Savana Redding, of hiding prescription-strength pills on her person, possibly in her underwear.

Breyer was attempting to put a hypothetical question to the girl’s lawyer about how common it is for students to be partially undressed while at school, such as when they are changing for gym class.  But, as the transcript shows, it all went a bit wrong.

“So what am I supposed to do? In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, okay? And in my experience, too, people did sometimes stick things in my underwear.”

He stopped in his tracks as the entire courtroom dissolved into laughter. Then he attempted to dig himself out:

“Or not my underwear. Whatever. Whatever. I was the one who did it? I don’t know.”

Whether or not the question was purely hypothetical remains unknown.

Justice Scalia’s Twitter Feed (Or Not)

Browsing Twitter for Supreme Court related feeds, your blogger came across an account said to be that of a certain Antonin Scalia.  It features slightly amusing (but mostly profane, unfunny) posts about life on the court. The writer clearly follows the court’s activities fairly closely. There’s even a reference to a long-running Navajo Nation case decided earlier this week, in which Scalia wrote the majority opinion. The court ruled against the Navajo Nation in a mineral rights case so obscure even SCOTUSblog hardly mentioned it.

“Scalia” wrote:

“Yes! screwing the Navajo Nation on coal leases AGAIN! Even Souter and Stevens concur, but say they’re not through regretting it. Pussies!”

Other posts are in a similar vein:

“Schooled Alito on his puppyish need for approval. Pointed out that ‘boxers or amicus briefs?’ isn’t funny.”

Most of the posts are considerably more puerile. “Scalia” currently has 51 followers on Twitter. Interestingly, “Scalia” himself is following just four other Twitterers,  including Thomas Jefferson and someone called HotAmishChick.

Even Supreme Court Justices Are Laughing At General Motors Now

Ted Olson
Ted Olson

You know you’re in trouble when you’re openly mocked in the U.S. Supreme Court. That’s what happened to General Motors this morning during oral arguments in a campaign finance case that has nothing to do with the troubled Detroit company.

The joker in question was prominent Republican lawyer Ted Olson, who was arguing on behalf of a fairly obscure conservative group called Citizens United. It doesn’t like campaign finance regulations that limit its ability to show a movie that says nasty things about Hillary Clinton.

At one point, Justice Stephen G. Breyer, in attempting to draw a distinction between groups like Citizens United and larger organizations with more financial firepower, invoked General Motors.

“Well,” said Olson without missing a beat. “General Motors may be smaller than the client we are representing.”

As the court’s transcript notes, what follows was:


Several of the justices appeared amused at the quip, although Breyer was all business.

“I want to get an answer to the question,”  he said.

Alito Channels John Lennon

John Lennon, singing
John Lennon, singing

Conservative Justice Samuel A. Alito Jr. probably wouldn’t see eye-to-eye with late Beatle John Lennon on too many issues, but that didn’t stop him making a lengthy reference to one of the musician’s songs in a decision issued today.

In a ruling that allows a town in Utah to decide what public monuments – including religious ones – it wants to put in its park, Alito cited the memorial to Lennon in New York’s Central Park. It includes a mosaic spelling out the word “Imagine.”

“Some observers may ‘imagine’ the musical contributions that John Lennon would have made if he had not been killed,” Alito wrote. “Others may think of the lyrics of the Lennon song that obviously inspired the mosaic and may “imagine” a world without religion, countries, possessions, greed or hunger.”

Alito then helpfully included the entire lyrics to the song in a footnote.

Anyway, the point he was getting at is that monuments can be interpreted by different people in many ways. That doesn’t mean that the government endorses every interpretation when it allows a monument to be erected, the justice added.

Perhaps it will be more of a challenge to reference “I Am The Walrus” next time. Goo-goo-ga-joob.

Breyer And The Empty Printer Cartridge

Justice Stephen Breyer shared a dirty secret with the nation today: he doesn’t recycle his old printer cartridges. He also alleged that millions of his fellow Americans also fail to “put it in the right garbage can,” as he put it. Breyer also referred to himself as a “particularly bad customer” for failing to follow the directions on how to dispose of cartridges as outlined by manufacturers like Hewlett Packard.

Okay, so it was a hypothetical argument he was making in an oral argument in an environmental case this morning, but maybe there’s a grain of truth to it too. Who knows?

The case is a dispute over how much companies have to pay for cleaning up a Superfund site if they had a marginal role in causing the pollution. Breyer’s hypothetical came up when he was discussing with the government’s lawyer whether Shell Oil Co. should have to pay for chemical spills that occurred when it was delivering chemicals to the site near Bakersfield, Calif. More specifically, Shell had directed exactly how the chemicals should be handled during the delivery and storage process. So, Breyer suggested, isn’t Shell’s role similar to that of Hewlett Packard when it distributes its ink cartridges?

“How does that differ from you using your printer? There’s an ink cartridge and you replace them after a while, and mine has a little thing attached that says don’t put it in your ordinary garbage bin because it’s dangerous or whatever it is, put in it in this envelope and do something,” Breyer explained. “Now I’m sure that HP makes those and knows that several million people won’t do it. They will throw it in the garbage bin.”

In response, the government lawyer, Deputy Solicitor General Malcolm Stewart, avoided getting into his own ink cartridge disposal habits.