“Sesame Street” viewers on Thursday got to see something almost unheard of on TV: a Supreme Court justice deciding a case. Justice Sonia Sotomayor was having coffee with her friend Maria when Baby Bear showed up with a complaint against Goldilocks. Sotomayor quickly changed into her black robe and heard the arguments.

Baby Bear said Goldilocks came into his house–”uninvited, mind you”–sat on his chair and broke it. Goldilocks responded she was sorry, she had been tired, the chair fit just right and it broke by accident.

“Accidents do happen,” Sotomayor mused, and suggested a settlement in which Goldilocks would help Baby Bear fix the chair with glue.

Before Maria and the justice could resume their coffee, three little pigs and a wolf showed up seeking certiorari.

There was no word on whether “Sesame Street” will get to televise March’s arguments on the health care case.

The U.S. Supreme Court today agreed to consider a controversial sentencing issue that the 11^th U.S. Circuit Court of Appeals had set for a February en banc hearing.

The two certiorari grants came in a pair of 7^th Circuit cases, but the issue is one that has divided appellate judges across the country. The question is whether defendants who committed drug crimes before President Barack Obama signed the federal Fair Sentencing Act into law on Aug. 3, 2010, but weren’t sentenced until after the bill became  law, can get the benefits of recalibrated mandatory minimums. The new law sought to reduce disparities between crack sentences and powder cocaine sentences by raising the drug quantities required to trigger a mandatory minimum sentence.

The issue divided the federal courts, with the 7^th Circuit siding with prosecutors’ initial argument that defendants who committed their crimes before the new statute became law were ineligible for the new mandatory minimum rules, regardless of whether they had been sentenced yet. One 11^th Circuit panel sided with the government in an unpublished May opinion, but in June another 11th Circuit panel, siding with the 1^st Circuit, went the other way in the circuit’s first published on the issue.

Attorney General Eric H. Holder Jr. subsequently told prosecutors the Justice Department would reverse its position, meaning both defendants and prosecutors were on the same side. But the 11^th Circuit nonetheless decided to take up the matter en banc, setting the case for a February argument, a schedule put in doubt by today’s Supreme Court cert grants. The 11^th Circuit announced that if the government elected to continue siding with the defense, it would appoint another attorney to defend the district court determinations that the Fair Sentencing Act’s revised mandatory minimums didn’t apply to the defendants.

In agreeing with defense arguments that the Supreme Court should take up the issue, the Justice Department said the matter “will potentially affect the sentences of thousands of current and future federal defendants.”

Coverage of today’s Supreme Court cert grants can be found here and here.

The typical U.S. Supreme Court argument lasts one hour, or 30 minutes for each side, but the justices today set aside a whopping five and a half hours to review the federal health care law. (That is just 11 minutes less than what it would take someone to watch the legal movie classics “To Kill a Mockingbird,” “12 Angry Men” and “Witness for the Prosecution.”)

Our colleagues at the National Law Journal have their initial take on the story here.

Scholars at the American Enterprise Institute and the Brookings Institution have pondered a sobering offshoot to terrorist scenarios in which large numbers of people at the White House and the Capitol are killed: what happens if the Supreme Court is similarly decimated? The answers are important, the authors say, especially if the remaining members of the government compete for control.

The 16-page report issued today has some interesting suggestions, such as this amendment to a law requiring a quorum of six justices to act on a case: “If the absence of a quorum is due to the death or incapacitation of more than three judges, and not due to judicial recusals, a majority of the surviving and able Justices may remit the appeal to an emergency interim court. Decisions of the Interim Emergency Court shall be eligible for appeal to the Supreme Court once it has achieved a quorum.”

A good idea?  Let us know. 

The U.S. Supreme Court has rejected the U.S. solicitor general’s request to participate in next month’s argument over a Georgia case concerning allegedly false grand jury testimony.

The case involves Charles Rehberg’s claims that Dougherty County authorities improperly pursued a criminal investigation against him as a political favor to Albany’s Phoebe Putney Memorial Hospital. Three times Rehberg, an accountant who had sent anonymous faxes criticizing the hospital, was indicted on various charges, including making harassing phone calls. But three times the charges were dismissed. 

Rehberg’s suit alleges Dougherty County DA’s office investigator James Paulk lied to the grand jury. Paulk’s lawyer has said his client didn’t make any false statements to the grand jury. The 11th Circuit ruled that Paulk was entitled to immunity for his grand jury testimony. But on Rehberg’s request, the high court in March agreed to consider that question.

Rehberg’s suit also named former Dougherty DA and 2010 Democratic attorney general nominee Ken Hodges as a defendant, as well as then-Houston Circuit DA Kelly R. Burke, who took over the matter after Hodges recused. The 11th Circuit decided Hodges and Burke should have immunity on all of the claims against them.

One of Rehberg’s lawyers has said although his client’s certiorari petition said it concerned only the claims against Paulk, a win at the Supreme Court could revive a conspiracy claim against the two former DAs, an assessment Hodges has disputed.

The U.S. solicitor general—whose relationship with the court is so tight that he is sometimes referred to as “the 10th justice”—has filed an amicus brief that Lyle Denniston at SCOTUSblog says clearly sides with the investigator.

The SG tried to take five minutes from each side’s time at the oral argument scheduled for Nov. 1—a proposal Rehberg’s lawyers protested.

The high court on Tuesday denied without explanation the SG’s request for argument time.

Ken Starr, the former judge, solicitor general and independent counsel, wrote in today’s New York Times that sessions of the U.S. Supreme Court should be televised.

“The benefits of increased access and transparency are many,” wrote Starr (who coincidentally is a player in an Oct. 4 Daily Report story on how legal threats slowed football conference expansion). “Democracy’s first principles strongly support the people’s right to know how their government works. This would seem to be underscored by this court’s stubborn insistence on freedom of communication in a democratic society.”

We can take cameras to the state appeals courts and, often, the state’s trial courts. But the federal courts are closed to cameras. What do you think of Starr’s arguments?

Courtesy of The Washington Post, you have to love this New Jersey man’s enthusiasm for the Big Nine. Read here.



 Washington, D.C. appellate lawyer and SCOTUSblog founder Tom Goldstein weighed in today on yesterday’s news that the Justice Department would not ask the full 11^th U.S. Circuit Court of Appeals to review the 2010 federal health care overhaul:

Seeking en banc review in the Eleventh Circuit would have made sense only if the government was going to press the Supreme Court to defer reviewing the constitutional question until next Term (including by denying review of the pending Sixth Circuit case).  So, the United States would have been making a choice to delay a final answer – because Supreme Court review is inevitable – for a year.  I expect that the agencies involved strongly resisted that delay, and the Solicitor General decided that the upside of potentially getting the panel opinion reversed was not actually that great, because any victory could itself be temporary.

The 11^th Circuit divided 2-1 last month in declaring unconstitutional the part of the statute that requires many Americans to secure health insurance, with Chief Judge Joel F. Dubina and Judge Frank M. Hull co-writing the majority opinion and Judge Stanley Marcus dissenting. The deadline to seek en banc review of that decision was yesterday.

The constitutionality of the 2010 law has divided the nation’s appellate judges, and Goldstein’s SCOTUSblog colleague Lyle Denniston analyzes here how the 11^th Circuit case fits into the bigger picture.

The recently released Jacqueline Kennedy oral history interviews reveal she found Justice Arthur Goldberg insufferable and had some of the same frustration with the court’s “isolation” that the court’s critics might express today.

Goldberg, who rose to prominence as a union lawyer, first served as Kennedy’s secretary of labor and the president named him to the U.S. Supreme Court when Felix Frankfurter stepped down.

Jackie told interviewer Arthur M.  Schlesinger Jr.  that Goldberg “never stopped talking about himself.” She called him “the biggest egomaniac of any man I’ve ever seen in my life.”

She said of Goldberg in another part of the interview, “I just think it’s such a shame to be so pleased with yourself.”

Her husband’s treatment by the Dallas Morning News, which ran a full-page ad the day of the assassination saying Kennedy was soft on communism, was still an open wound for Jackie, and she tied that into her feelings about Goldberg. Jackie recalled that Goldberg voted with the court in a case “where you can write anything about people in public office.”

She continued elsewhere in the interview, “And I thought, that’s right after that ad of the day in Dallas—‘Wanted for Treason.’ And there you, his appointee, go and say that everything, even this, is all right? But it’s because the Supreme Court is so isolated. They’re never affected by newspapers, anything.”

She added, “When you think, ads like that in the paper was partly what killed Jack. They get so detached from life up in the Supreme Court.”

She was referring to New York Times v. Sullivan, the 1964 case where a unanimous court established the “actual malice” standard in defamation cases involving public figures.

In addition to the ad in the Dallas Morning News the day of the assassination, a “Wanted for Treason” leaflet with the president’s picture was distributed in Dallas that day.

Schlesinger also asked Jackie about Justice William O. Douglas, whom he suggested was a “great friend” of the president. Jackie corrected him, allowing that Douglas was a friend of the president’s father and his brother, then-Attorney General Robert F. Kennedy. “We never really saw Bill Douglas much, but I think he liked him.”

Unwilling to let go of the line of questioning, Schlesinger asked if Douglas came around the White House. “Never ,” Jackie replied, adding that “none of those people,” came to the White House, presumably referring to the other justices.

As has been reported, Jackie called Martin Luther King a “phony,” and “a tricky person” because of his dalliances outside his marriage.

The remarks should be viewed in the context of what Jackie had been told about King. Not long before the interview,  Jackie was told that King made jokes about the president’s funeral while he was watching it on TV and ridiculed Cardinal Richard Cushing, the archbishop of Boston who married the Kennedys and celebrated his funeral mass.  That information came from FBI Director J. Edgar Hoover, who had a well-known vendetta against King. Former Atlanta Mayor Andrew Young, an aide to King, told Fox 5 last week that King admired the president and that Hoover fabricated the information. A footnote in the book refers to an FBI tape of King’s purported remarks.

Jackie and Robert Kennedy later attended King’s funeral in Atlanta and Jackie also said in the interview  that her husband “never really said anything against Martin Luther King.” The president “said what an incredible speaker he was during that freedom march thing,” and didn’t pass judgment on the reports he was receiving from Hoover on King’s personal life.

Caroline Kennedy,  who gave  permission for her mother’s interviews to be  released,  cautions in the forward to the book that her mother gave the interviews—one of only three times she spoke to a journalist about her White House years—when she “was a young widow in the extreme stages of grief. The interviews were conducted just four months after she had lost her husband, her home, and her sense of purpose. She had two young children to raise alone. It isn’t surprising that there are some statements she would later have considered too personal, and others too harsh.”

Though she was often the subject of press reports and gossip rags, Jackie, who died in 1994, guarded her privacy and never wrote a memoir.  She gave these interviews in 1964 on the condition that they be locked in a vault during her lifetime. The book, “Jacqueline Kennedy, Historic conversations on life with John F. Kennedy,” is accompanied by CDs of the entire interview with Schlesinger, a Kennedy aide and one-time Harvard history professor. Schlesinger, who died in 2007, won the Pulitzer Prize for his history of the Kennedy presidency, “A Thousand Days.”

The U.S. Supreme Court likely won’t rule on the constitutionality of the 2010 federal health care overhaul  until after the 2012 presidential election, Emory University School of Law’s Robert Schapiro writes in an essay on SCOTUSblog.

Schapiro says that based on the way the federal courts of appeal have handled challenges to the health care law so far, it’s unlikely the Supreme Court will face an injunction barring implementation of the new law. His assessment includes his read on the arguments heard in June by Chief Judge Joel F. Dubina and Judges Frank M. Hull and Stanley Marcus at the 11^th U.S. Circuit Court of Appeals. That court is reviewing a decision by Senior U.S. District Judge Roger Vinson of Pensacola, who stayed his own ruling that declared the entire statute invalid.

Schapiro, who is serving as Emory  Law’s interim dean, recounts the 6^th Circuit’s rejection of a challenge to the law, delivered last month by none other than Judge Jeffrey Sutton, an appointee of President George W. Bush with, as Schapiro puts it, “impeccable conservative credentials.” He explains that Sutton rejects what Schapiro says would be a new category of the sort of thing Congress may not touch with its commerce clause power—“inactivity,” i.e., individual decisions not to obtain health insurance. Then he gives his impressions of the 11^th Circuit argument:

The oral argument in the United States Court of Appeals for the Eleventh Circuit suggested that a majority of that panel, as well, was not inclined to recognize the new category.  Judge Frank Hull rejected the proposed activity/inactivity distinction as unhelpful.  Judge Stanley Marcus emphasized due process, rather than the Commerce Clause, as the proper framework for addressing intrusions on individual liberty.  Predictions based on oral arguments are always hazardous, but the Fourth Circuit panel also seemed sympathetic to the defense of the Act.

In view of the Sixth Circuit’s ruling and the tenor of the other appellate arguments, it appears unlikely that the Court will confront an injunction restraining the implementation of the Affordable Care Act.  The Supreme Court eventually will want to provide a definitive ruling on such a significant piece of legislation with such a broad impact.  However, without a decision striking down the law, much less a split in the circuits, the Court can wait until after the elections to decide the issue.

Interested readers also can find on SCOTUSblog an essay by Northwestern University School of Law Professor Stephen B. Presser arguing that, like the district courts that have considered the health care law, the circuit courts are likely to split on the matter.