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

Ginsburg On Status As Lone Woman On The Court

Justice Ruth Bader Ginsburg seemed to be referring to comments made by Justice Stephen G. Breyer at a recent argument when she complained in a USA Today interview with Joan Biskupic about the problems she faces as the only woman on the court.

Her status as the court’s lone woman was especially poignant during a recent case involving a 13-year-old girl who had been strip-searched by Arizona school officials looking for drugs. During oral arguments, some other justices minimized the girl’s lasting humiliation, but Ginsburg stood out in her concern for the teenager.

“They have never been a 13-year-old girl,” she told USA TODAY later when asked about her colleagues’ comments during the arguments. “It’s a very sensitive age for a girl. I didn’t think that my colleagues, some of them, quite understood.”

If nominated, Judge Sonia Sotomayor of the 2nd U.S. Circuit Court of Appeals, who seems to have a reputation as a forthright participant in oral argument (to put it mildly), would no doubt put Breyer straight.

Chief Justice Roberts And The Bumbling Bank Robber

Raymond Chandler, yesterday
Raymond Chandler, yesterday

Not for the first time, Chief Justice John G. Roberts Jr. showed his apparent affinity with detective fiction writers this morning. Last October, in Pennsylvania v. Dunlap, he wrote several paragraphs in the style of genre detective fiction. This time around, in Dean v. United States, he adopted the tone of a narrator in a crime TV show, c. 1960, when announcing the decision from the bench.

“This is the case of the bumbling bank robber,” was his introduction to the story of Christopher Dean.  The convicted felon claimed his sentence for attempting to rob a bank should be reduced because, yes, he did discharge his gun, but, your honor, he didn’t mean to.

Not surprisingly, the court wasn’t too sympathetic, ruling 7-2 against Dean. Roberts, with tongue in cheek, had some advice for other wannabe bank robbers:

Those criminals wishing to avoid the penalty for an inadvertant discharge can lock or unload the firearm, handle it with care during the underlying violence or drug trafficking crime, leave the gun at home, or – best yet – avoid committing the felony in the first place.

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.