BREAKING -- Rodney Smith confirmed

CONGRATS to our newest judge -- Rodney Smith.  He was confirmed 78-18 to fill Robin Rosenbaum's slot. 

Judge Ungaro rules for FDA in fight with stem cell clinic

Interesting case.  The NY Times covers it here:

A judicial ruling this month that will stop questionable stem-cell treatments at a clinic in Florida is widely seen as a warning to a flourishing industry that has attracted huge numbers of patients, who pay thousands of dollars for unproven, risky procedures.

But with little regulatory oversight for the hundreds of clinics operating these lucrative businesses across the country, it’s too soon to tell how far the impact might reach.

The decision, by a federal court on June 3, empowered the Food and Drug Administration to stop U.S. Stem Cell, a private clinic in Sunrise, Fla., from injecting patients with an extract made from their own liposuctioned belly fat.

The clinic had claimed that the extract contained stem cells with healing and regenerative powers that could treat a range of illness and injuries, from back problems to Parkinson’s disease, arthritis, and heart and lung diseases.

But medical experts say there is no proof that these treatments work, and three patients, who each paid $5,000 to be treated at U.S. Stem Cell in 2015, went blind after the fat extracts were injected into their eyes to treat macular degeneration.

In granting the F.D.A.’s request for an injunction against the clinic, Judge Ursula Ungaro agreed with the agency that extracting stem cells from fat requires so much processing that it essentially transforms them into a drug. That alteration firmly places such treatments under the jurisdiction of the F.D.A., which has the authority to regulate drugs.

“There is a reasonable likelihood that the defendants will continue to violate the Food, Drug, and Cosmetic Act,” the federal law that gives the F.D.A. its regulatory authority, Judge Ungaro wrote. She also noted that when the agency warned U.S. Stem Cell about unsafe practices at the clinic, the company responded not by correcting the problems, but by arguing that it was exempt from F.D.A. regulation.

Here's the order.

“Given the number of most-watched cases still unannounced, I cannot predict that the relatively low sharp divisions ratio will hold.”

That was RBG speaking at the Second Circuit last week on how the Court so far this Term has been relatively cordial and not split 5-4 (only 11 cases so far). But the gerrymandering case and the census case are still out there with the Term coming to a close.

Lots of other tidbits in this Washington Post article, including Kavanaugh's hiring of all women law clerks, tipping the balance of female law clerks over male for the first time in Court history.

She also said that the retirement of Justice Kennedy was “the event of greatest consequence for the current term, and perhaps for many terms ahead.”

11th Circuit takes grand jury secrecy case en banc

Really interesting issue.  The panel summarized the issue as follows:

In 1946, a crowd of people in Walton County, Georgia gathered as two
African American couples were dragged from a car and shot multiple times.1
Many consider this event, known as the Moore’s Ford Lynching, to be the last
mass lynching in American history. Racial tensions in Georgia were high. African
American citizens were allowed to vote in a Georgia Democratic Party primary for
the first time that year.2 The murders occurred shortly after the primary and
immediately garnered national media attention. National outrage, including
condemnation from then Special Counsel to the NAACP Thurgood Marshall,
ultimately led President Harry Truman to order an FBI investigation. In late 1946,
a district court judge in Georgia convened a grand jury. But after sixteen days of
witness testimony, no one was ever charged. The case remains unsolved.
Over seven decades later, Anthony Pitch, an author and historian, petitioned
the Middle District of Georgia for an order unsealing the grand jury transcripts.
The district court granted his request. The government now appeals, arguing the
district court abused its discretion in unsealing the transcripts. After careful review
and with the benefit of oral argument, we affirm. 

 Politico covers the en banc grant:

A federal appeals court announced Tuesday that its full, 12-judge bench plans to revisit whether judges have the authority to disclose usually secret grand jury information in exceptional cases.
The Atlanta-based 11^th Circuit Court of Appeals said it plans to take up, en banc, a case involving a historian’s request for access to records of a federal grand jury investigation into the 1946 lynching of two African-American couples in Walton County, Ga.
Legal disputes about access to grand jury information are drawing unusual attention at the moment because of a standoff between the House Judiciary Committee and Attorney General Bill Barr over access to various materials related to special counsel Robert Mueller’s Trump-Russia probe.
Part of that fight is a disagreement over whether lawmakers are entitled to see testimony and evidence that is typically kept secret because it was obtained by a grand jury.
The 11^th Circuit’s brief order Tuesday wiped out the victory historian Anthony Pitch won in February, when a court panel voted 2-1, to uphold a lower-court order allowing disclosure of the records.
The Justice Department has steadfastly opposed disclosure in such cases, saying that judges can only permit release through six explicit exceptions to the grand jury secrecy rule. However, government lawyers did not seek en banc rehearing of the decision.
The court’s order Tuesday said an unidentified 11^th Circuit judge acting on his or her own sought a vote on further review of the case. A majority of the court’s active judges agreed.
It’s unclear precisely what triggered the rehearing, but Pitch’s attorney, Joe Bell, told POLITICO he believes it may be some combination of factors including a heated dissent by a district court judge who sat on the 11^th Circuit panel and a conflicting, 2-1 ruling issued in April by the D.C. Circuit on a similar case involving another author, Stuart McKeever. He has asked the full D.C. Circuit to rehear his case, and there was a sign last month that they might do so.
“I know it probably involves the McKeever decision and it might also be that everyone saw what’s going on with Mueller in Washington and they want to come out with some sort of united front,” Bell said.
Whatever the 11^th Circuit ultimately does, it won’t iron out disagreements among courts on the issue.
Other appeals courts, including the New York-based 2nd Circuit and the Chicago-based 7th Circuit, have upheld judges’ right to release grand jury material sought by historians or in other circumstances not mentioned in the rule.

Justice Thomas says he has no stress

Must be nice.

The rest of the lawyers out there are pure bundles of stress. 

Seems like such a weird thing to say, even though it's true.

From SCOTUSblog:

Justice Clarence Thomas told an audience at the U.S. Supreme Court this afternoon that he doesn’t know where rumors of his potential retirement at the end of this term originated.

“My wife gets alerts,” Thomas said, apparently referring to news or web alerts that his spouse, Virginia Thomas, receives. When she showed one such alert to him earlier this term, his response was, “Wow. I didn’t know that.”

“I have no idea where that stuff comes from,” Thomas added during an hourlong conversation with the financier and philanthropist David Rubenstein in the courtroom, before an audience of several hundred members of the Supreme Court Historical Society. “People can say things about you and for you that have nothing to do with you.”

Rubenstein, a trustee of the Historical Society who frequently interviews the mighty and powerful on his show on Bloomberg Television and elsewhere, didn’t specifically ask Thomas to repeat the firm denial of any impending retirement that the justice offered earlier this spring.

Asked about potential retirement at an event at Pepperdine University law school, Thomas said, “I’m not retiring,” and that he had no plans to retire in 20 years or 30 years.

Thomas turns 71 on June 23.

With the court entering the final month of its term, Rubenstein asked Thomas how he relaxes during the term.

“I really don’t have a lot of stress. I cause stress,” Thomas said with a laugh. He goes to Roman Catholic mass, reads and follows the sports exploits of his adopted favorite college, the University of Nebraska. (His wife and mother-in-law attended there.)

 Meantime, check out this weird alignment of Justices, where Ginsburg joins Thomas on a supervised release issue and Gorsuch joins the libs.