Unlike Justice Breyer, Justice Scalia is a techie

I posted last week about how Justice Breyer didn't really understand text messaging or Facebook. Well, Justice Scalia is different -- he even has an iPad and an iPod! From ABT:

By this point, the conversation started to shift into the home stretch, so Jan Crawford turned to fun stuff and lighter fare. She asked Justice Scalia: Do you have an iPod?
One might have expected Scalia, whose jurisprudence often involves traveling back in time to when particular constitutional provisions were enacted, to declare that he listens to all his music on a Victrola — but no. As it turns out, he does have an iPod!
This response seemed to catch Crawford by surprise. She asked him if he uploads the music himself; he said that he does, and that his playlist consists mostly of classical music and opera.
(It’s amusing to imagine Justice Scalia, one of the greatest legal minds in our nation, loading up his own iPod like a mere mortal. Couldn’t he ask a staffer to do it, or maybe one of his many grandchildren? But then again, if Justice Elena Kagan can fetch her own pizza, then Justice Scalia can load his own iPod.)
As it turns out, Scalia is more tech-savvy than one might have expected from a 74-year-old. He composes his opinions on a computer (unlike Chief Justice Roberts, who writes in longhand). In fact, said Scalia, “I can hardly write in longhand anymore” — which he’s reminded of whenever he has to write a handwritten condolence note.
When he has to take materials home for work, he uses a thumb drive, or accesses the Court computer system remotely. And perhaps most excitingly, as I previously reported on Twitter, Scalia has an iPad! He uses it for working at home; staff members load the parties’ briefs on to it.

I wonder whether the SDFLA judges are more like Breyer or Scalia. I know many of them email from their phones (I actually saw one judge recently in her car emailing as she was driving), but do they Facebook, Twitter, read the blogs, etc?

There's lots more fun stuff at ABT on Scalia, so go check it out.

Wesley Snipes surrenders

The judge said it was time: "The defendant Snipes had a fair trial; he has had a full, fair and thorough review of his conviction and sentence. ... The time has come for the judgment to be enforced," the judge wrote in his 16-page decision.

From Bop.gov: 1. WESLEY TRENT SNIPES 43355-018 48-Black-M UNKNOWN IN TRANSIT

Baby steps

The 9th Circuit will air the Prop 8 case on TV!

According to SCOTUSBlog:

The Ninth Circuit Court agreed on Wednesday to allow live and delayed broadcasting of the Dec. 6 oral argument on the constitutionality of Proposition 8 — California’s ban on same-sex marriage. In a brief order, the Court cleared live broadcasting by C-SPAN, the cable network. It also gave permission to a San Francisco station, KGO-TV, an ABC affiliate, to provide coverage.

It's something at least. HT: BL

Judge Camp is going to plead guilty today. I'll post the plea agreement as soon as it's public. The Times Herald reports:

Senior U.S. District Judge Jack Camp is scheduled to enter a plea of guilty today in federal court on two misdemeanor counts and one count of aiding and abetting another’s drug possession, according to Newnan attorney Michael Kam, one of the attorneys representing Camp.

What do you think is a fair sentence?

"It's quite clear, we don't have a Facebook page."

That was Justice Breyer at a speech yesterday. More:

If I'm applying the First Amendment, I have to apply it to a world where there's an Internet, and there's Facebook, and there are movies like ... 'The Social Network,' which I couldn't even understand," he said.
Oy.

It doesn't get better:

Although Breyer was making a point about judicial philosophy, he also touched on the court's sometimes limited grasp of technological developments. For example, Chief Justice John Roberts in a public employee privacy case before the court earlier this year tried to figure out the role of a text-messaging service in enabling an exchange between two people.

"I thought, you know, you push a button; it goes right to the other thing," Roberts said. Responded Justice Antonin Scalia: "You mean it doesn't go right to the other thing?"

And in a recent case dealing with a California law regulating the sale or rental of violent video games to children, Justice Anthony Kennedy pressed a skeptical state lawyer on whether the v-chip blocking device, rather than a state law, could be used to keep children away from the games.

"V-chips won't work?" Kennedy asked, before the lawyer politely explained they are limited to television programming.
I do agree with Breyer here:

Breyer said he disagrees with those who argue that originalism is "a good system because it will keep the subjective impulses of the judge under control."

"If you want to have history solve everything, let's get nine historians and not nine judges," Breyer said. "And you'll discover that the nine historians are fighting about the various points on which these cases turn anyway."

Adam Liptak from the NY Times has an interesting article today about how vague Supreme Court opinions are and how lower courts are struggling trying to figure them out. Here's a passage from the article dealing with the text messaging case:

In the privacy case that infuriated Justice Scalia and mystified Judge Hull, City of Ontario v. Quon, the Supreme Court ruled that a California police department had not violated the constitutional privacy rights of a member of a SWAT team when it audited the text messages on a pager the city had issued him.

Justice Kennedy took the unusual step of accepting three important points in the case only for the sake of argument, and he spent much of his opinion explaining that the court had taken pains to decide as little as possible.

“Cellphone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification,” Justice Kennedy went on. “On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cellphones or similar devices for personal matters can purchase and pay for their own.”

Given that, he said, the case should be decided on grounds so narrow that the decision would have almost no precedential effect. “The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear,” he wrote.

In his concurrence, Justice Scalia decried this approach.

“Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case, we have no choice,” he wrote. “The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.”

Many scholars say there is an important place in Supreme Court jurisprudence for incremental rulings, purposeful ambiguity and the delegation of discretion to lower court judges.

“If the goal is to clear up any conflict in the lower court opinions, then you may want a clearer opinion,” Professor Spriggs said. “But a real bright line may create some injustices in the system.”

We're # 2!!

From the New Times: "MIA Ranked Second Most Hellish Airport in U.S. for Second Year Running". We were bested by Newark. Newark!

I actually like the new D terminal, despite the really long walks. The train 3 floors up isn't really convenient. But at least there are some restaurants along the way.

Howard Stern & Billy Joel

Okay, I know this is way off topic, but I couldn't get out of my car this morning, listening to Howard Stern interview Billy Joel. It was fantastic hearing him play his music in the studio and explaining how the song was written, etc. Here's one of his best to get your Tuesday morning started:




Okay, one more:

Monday morning quick hits

-- No word yet on who has interviews from the JNC. We do know that interviews will take place on November 30.

-- The NY Times covers Miami cyber-criminal Albert Gonzalez in a lengthy article. It's a fascinating piece about how Gonzalez fell back into a life of crime after cooperating with the feds. He explains that he would have been better off just serving his time instead of snitching in the first place.

-- Does anyone really think that we should still have judicial elections? This is ridiculous.

-- First opinions of the Term come out today. Check out ScotusBlog around 10am.

-- Judge Cooke won't be in trial this week. She's in Atlanta sitting as a visiting judge on the 11th Circuit.

UPDATE -- the Supreme Court decided one case, Abbott v. United States, No. 09-479, holding that Section 924(c) and does not preclude the imposition of mandatory minimum sentences for different counts of conviction.

Who's the most at blame here?

The trial judge, the appellate judges, the prosecutor or the defense attorney? Via Volokh, you'll see totally absurd events unfold:

Here’s what happened in the middle of a trial of parents for killing their child through child abuse (felony murder under Georgia law):

[T]he prosecutor, in the final moments of her concluding argument on behalf of
the State, “clicked” her fingers at which signal one of the deputies in the
courtroom turned out the lights and an associate prosecutor “popped out a cake
out of a grocery bag” complete with eight candles, which were then lit with a
lighter brought into the courtroom; the prosecutor and her associate then
proceeded to sing to “dear Josef,” i.e., the deceased victim, the celebratory
words to “Happy Birthday.”

The dissent (in Smith v. State, decided Monday by the Georgia Supreme Court) argued that this was prosecutorial misconduct that required reversing the convictions, even though the defense lawyer did not object:

There was no legitimate reason for what the prosecutor did. It was neither
argument nor rebuttal, because there is nothing at all in the record about
birthdays and birthday cakes to raise even the slightest possibility that the
prosecutor was drawing a reasonable inference from the evidence presented or the arguments made by defense counsel. To the contrary, the evidence established that the victim’s family followed an austere lifestyle, including dietary
restrictions, that eliminated the possibility of the victim experiencing the
type of birthday event dramatized by the prosecutor. The prosecutor’s birthday
production was not meant to be argument or rebuttal: it was a theatrical stunt
spun out of pure fantasy. Its sole purpose was to prejudice the rights of
appellants before the jury in an impermissible attempt to invoke the jury’s
passions and divert the jury from the evidence. It offended the dignity and
decorum of the court and violated every precept of professionalism and fair
play. Yet the trial court did absolutely nothing. The event played itself out
without the trial judge performing his duty to maintain decorum in the
courtroom. Moreover, after observing this “‘preposterous’” performance, the
trial court took no steps of any kind to minimize the prejudice. There was no
rebuke to counsel; there was no direction to the jury to ignore the spectacle
they had just witnessed; there was no charge to the jury that sympathy for the
victim was to play no role in their verdict.

[Footnote: I am giving the prosecutor the benefit of the doubt by concluding that her motive for pulling this stunt was simply to evoke sympathy for the victim in an unprofessional attempt to obtain guilty verdicts at any cost, as this motive is less offensive than the other possible motive raised by this case, i.e., that she was
deliberately pandering to the television audience observing the proceedings on
Court TV. See defense counsel’s testimony at the hearing on appellants’ motion
for new trial (“I understand the cameras were rolling and everybody wants to be
Nancy Grace’s friend”).]

The majority agreed the prosecutor’s behavior was improper, but concluded that the defense lawyer’s decision not to object was a strategic judgment, and therefore not grounds for reversal. (“Arora testified at the motion for new trial hearing that he made a strategic decision not to object to the ‘Happy Birthday’ song during closing argument. Specifically, Arora thought that the ‘Happy Brithday’ song was so ‘preposterous,’ ‘absurd,’ and ‘over the top’ that ‘it would turn the jurors off,’ and that he should not call any more attention to it by objecting to it.”)

HT: MC