Anyone working today?

Schools are open but courts are closed, so this is a weird Monday morning. Here's what's happening:

1. Judges win cost of living increase case that they brought in the Federal Circuit.

SCOTUSBlog says that the case is likely headed to the Supremes (because, of course, the Executive branch is opposing the COLA increases):

After battling for years to get a pay raise that they say Congress had once promised them, six federal judges finally won in a specialized federal court on Friday.  If the ruling withstands a likely trip to the Supreme Court, those judges – and presumably others – will get annual cost-of-living increases that have been specifically vetoed by Congress.   The ten-to-two decision by the Federal Circuit is here.
The Court ruled that, in a 1989 law upon which the judges have been relying, Congress triggered the judges’ right under the Constitution not to have their pay level diminished.  The Compensation Clause itself, the decision said, creates “basic expectations and protections” on judges’ pay.
Thus, it concluded, “in the unique context of the 1989 act, the Constitution prevents Congress from abrogating that statute’s precise and definite commitment to automatic yearly cost of living adjustments for sitting members of the judiciary.”
In reaching its decision, the Federal Circuit overruled a decision it had reached in 2001 – one that the Supreme Court had refused to disturb in 2002– and it found that it was not bound by a 1980 decision of the Supreme Court.  Both of those rulings had gone against judges claiming that they were unconstitutionally denied pay raises.

2.  Justice Sotomayor is a nice person.  Here's a letter she sent after eating at a DC restaurant.

3.  Shouldn't federal agencies track whether informants are committing crimes?  According to this USA Today article, many don't:

The nation's top drug and gun enforcement agencies do not track how often they give their informants permission to break the law on the government's behalf.
U.S. Justice Department rules put strict limits on when and how agents at the FBI, Drug Enforcement Administration and Bureau of Alcohol, Tobacco, Firearms and Explosives can authorize their informants — often drawn from the ranks of the criminals they are investigating — to commit a crime. But both the ATF and DEA acknowledged, in response to open-records requests and in written statements, that they do not track how often such permission is given.
That routine, if controversial, tactic has come under renewed scrutiny in the wake of the bungled "Fast and Furious" gun-trafficking investigation, which allowed 2,000 weapons to fall into the hands of Mexican drug cartels and other criminals. A report by the Justice Department's Inspector General found that ATF agents failed to get authorization from their superiors before they allowed gun dealers to sell weapons to suspected cartel operatives.
The report, delivered in September, is the latest internal probe to find agents ignoring the rules. And the department continues to face accusations that its agents overlook crimes by their informants, including one case this year involving an alleged Boston mob captain who was working for the FBI.
"The way we use confidential informants is a huge aspect of the daily operation and also the legitimacy of the criminal justice system," said Alexandra Natapoff, a professor at Loyola Law School Los Angeles. "It's insane that even the law enforcement agencies that actually carry out this policy may not always know how their operatives are doing it."

 4.  REVOLUTION!  Well, at least another potential sentencing revolution.  The Supreme Court is taking another look at Harris, the case that says that prosecutors need not prove to a jury facts that increase minimum mandatories.  From SCOTUSBlog:

Just as the Supreme Court set off a revolution in criminal sentencing with its 2000 ruling in Apprendi v. New Jersey, on Friday it set the stage for another — tied directly to the Apprendi precedent.  The Court agreed to consider overruling one of its own precedents that allowed judges, rather than juries, to rule on facts that would allow more than a minimum sentence to be imposed.  Until now, the “Apprendi rule” had only insisted that juries find the facts to raise a sentence beyond a maximum, not a minimum.
At issue is the continuing validity of the 2002 decision in Harris v. United States, in which the Court was widely splintered.  The strength of that ruling as a precedent now appears to depend upon whether the Justice who cast the fifth vote to make a majority for the result there – Justice Stephen G. Breyer  — has changed his mind.  There have been signs that he may have done just that.  In any event, there were at least four votes to face the issue anew.
The one facet of this issue that might limit the scope of an overruling of Harris is whether a decision that a jury must find the facts necessary to raise a sentence only applied to an enhancement of a minimum that was mandatory, but not necessarily to any increase in the floor sentence within a range.  The Court might have to confront, if it were to cast Harris aside, whether such a ruling would apply across the board to enhanced sentencing, above any floor even if not mandated as the minimum.   The new case does involve a mandatory minimum.

The newly granted case is Alleyne v. United States (docket 11-9335), growing out of the robbery of a convenience store owner in Richmond, Va.   Allen R. Alleyne got eighty-four months added to his basic sentence for the robbery, on the theory that he would have known that his accomplice in the robbery would wield a gun as they carried out the robbery.  The added sentence was based upon the finding by the judge, not the jury, that Alleyne would have known about the plan to “brandish” a gun — a factor that leads to a mandatory minimum sentence beyond a basic sentence for the crime itself.

5.  Your moment (hour and a half) of Zen.  The Rumble in the Air-Conditioned Auditorium: