Under legislation introduced today by Democrats Chris Murphy and Anthony Weiner, Supreme Court Justices would be required to explain their reasons for recusing or not recusing from a particular case, and if a Justice turns down a motion to disqualify it would permit the remaining justices to remove them from the case.

The legislation follows on the heels of a letter signed by more than 100 law professors and legal ethicists urging reform of the recusal process.  Although the consensus of most ethecists is that some kind of reform is needed, Stephen Gillers, a highly respected legal ethicist at New York University School of Law, broke ranks over the recusal issue.  According to Gillers, allowing justices to remove each other could spoil the Court’s collegiality and lead to the perception that a politicized Court is trying to affect the outcome of cases by removing justices that disagree on a particular issue.

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Originalism is a doctrine, or more accurately a family of doctrines, that can be used to interpret the Constitution.  An originalist interpretation of the Constitution looks to the meaning as it was understood at the time of writing.  For example, an originalist interpretation of the 8th amendment, barring cruel and unusual punishment, would only consider a punishment cruel if it was considered cruel in the 18th century.  By contrast, a non originalist reading would stick to the text but would examine modern standards of cruelty to determine if a punishment was in violation.   Justices Scalia and Clarence Thomas are the country’s leading originalists, but the doctrine has become increasingly popular, primarily but not exclusively among the right wing.

The 14th amendment reads in part “nor shall any State … deny to any person within its jurisdiction the equal protection of the laws.”  The Court wasted little time in finding that this clause, referred to as the “equal protection clause”, protected citizens from state sponsored discrimination based on race.  The original rulings were narrow however and permitted the creation of all white and all black schools, for example, so long as the facilities were equal.  The “separate but equal” doctrine was famously overturned in 1954 in Brown v Board of Education.  However, the Court rejected numerous attempts to apply the equal protection clause to cases of discrimination based on gender until a unanimous Court ruled in 1971 that a state could not enforce a law that mandated males be given preference over females as estate executors in probate court (Reed v Reed).  As a side note, one of the attorneys that argued the case was Ruth Bader Ginsburg, herself a Supreme Court Justice today.  It has been a matter of settled law in the years to follow that the government can not discriminate on the basis of gender, along with race and ethnicity.  Yet despite his supposed respect of stare decisis, Scalia was the sole dissenting vote in a 1996 case that forced the Virginia Military Institute to end its practice of denying women the right to attend.

Scalia and the 14th amendment are back in the news because of the recent publication of an interview he gave back in November in which he said, among other things, “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws.”

Justice Scalia apparently believes that the Constitution is meant to be read as a limitation on the rights of the people rather than a limitation on the power of the state.  For nearly a century, women’s rights activists attempted to amend the Constitution to explicitly ban government sponsored discrimination based on sex, and after repeated setbacks the Equal Rights Amendment was finally passed by both houses of Congress in 1972 and sent to the states for ratification.  All told, 35 states ratifies, 3 shy of the 38 required.  Five of those states have since rescinded their ratifications, although the validity of those rescissions is in dispute.  The bill passed by Congress in 1972 required ratification to occur by 1979, later extended to 1982, but no additional states ratified and the amendment is considered to be dead in the water today.  Under Scalia’s interpretation, the failure of the states to ratify is an open invitation for continued discrimination based on gender. 

Although even a rightward leaning Court is unlikely to reverse 40 years of anti discriminatory rulings, Scalia’s interpretation of the 14th amendment has plenty of allies, particularly when it is applied to discrimination based on sexual orientation.  As the Proposition 8 case from California works its way through the system to the almost certain appeal to the Supreme Court, Scalia’s interview leaves little doubt as to how he would rule.

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Brooks Kushman Diversity Officer Phyllis Golden Morey was honored among “2010 Women In Law”…

Fish & Richardson was chosen as an elite “National Tier 1″ IP law firm by U.S. News & World Report…

Fourteen attorneys in the Texas offices of McKool Smith were recognized in the 2010 Texas Super Lawyers…

Highly regarded litigator and advisor Elizabeth P. Papez joined Winston & Strawn…

Mintz Levin earned high marks in the U.S. News Law Firm rankings…

Sidley Austin bolstered its international trade practice…

McKool Smith was recognized in the 2010 “Best Law Firms” rankings…

• Brooks Kushman Diversity Officer Phyllis Golden Morey Honored Among “2010 Women In Law”
• Highly Regarded Litigator and Advisor Elizabeth P. Papez Joins Winston & Strawn
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Papez recently served as Deputy Assistant Attorney General in the U.S. Justice Department’s Office of Legal Counsel and as law clerk to U.S. Supreme Court Justice Clarence Thomas. She was also a former appellate and commercial litigation partner at Kirkland & Ellis LLP, and is experienced in Executive Branch and private practice. Additionally, her perspective on the judiciary and top-level appellate work is rare.

As Deputy Assistant Attorney General from 2007 to 2009, Papez advised senior officials at the White House and Executive Branch agencies on a wide range of legislative, regulatory, and enforcement matters concerning financial regulation, national security, intellectual property, and other areas now governed by, among other things, the recently-amended False Claims Act (FCA), the Dodd-Frank Wall Street Financial Reform Act, the Patient Protection & Affordable Care Act (PPACA or Health Reform Bill), and the Foreign Investment & National Security Act (FINSA). She also testified and briefed members of Congress on matters concerning pharmaceutical and intellectual property regulation, government contracting, and whistleblower rights, and represented the United States in several federal appeals before working on a wide range of current legal issues and trends at the Supreme Court.

As a litigator at Kirkland from 2000 to 2007, Papez represented corporate clients in appellate, commercial, and regulatory matters involving federal and state constitutional questions, complex commercial and procedural issues, antitrust, securities, and bankruptcy-related disputes, corporate and consumer fraud, contract, and product claims, and trade and telecommunications regulation. Prior to entering private practice, Papez served as a research analyst in the National Security and International Affairs Division of the White House Office of Science and Technology Policy and as law clerk to the Honorable Danny J. Boggs on the U.S. Court of Appeals for the Sixth Circuit.

In today’s press release at PR Newswire, Thomas Frederick, chair of Winston’s Litigation Department, was quoted as saying: “Elizabeth brings a truly exceptional blend of experience and legal skills gained from her positions in both the public and private sectors.”

Papez earned her J.D. from Harvard Law School, where she was editor of the Harvard Law Review and articles and symposium editor of the Harvard Journal of Law & Technology. She earned a B.S., summa cum laude, from Cornell University.

Winston & Strawn LLP is an international law firm with more than 900 attorneys among 14 offices in Beijing, Charlotte, Chicago, Geneva, Hong Kong, London, Los Angeles, Moscow, New York, Newark, Paris, San Francisco, Shanghai, and Washington, D.C. The firm serves the needs of enterprises of all types and sizes, in both the private and the public sector.

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Some SNR Partners were considering leaving prior to the merger with Denton…

Former White House counsel John Adams joined McGuireWoods…

Skadden snagged rival Global Antitrust head Simon Baxter…

A landmark $82.5 Million verdict was awarded for the death of a man killed in a 2007 natural gas explosion…

Gibson Dunn & Crutcher received Chambers’ annual Award for Excellence in the Antitrust Category…

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According to a McGuireWoods’ press release, Adams counsels clients facing government investigations and handles complex litigation at the trial and appellate level. Practice head Chuck McIntyre called Adams “uniquely qualified” because of his previous government experience.

“John’s breadth of experience, including the Supreme Court, the White House, and as a federal prosecutor, makes him uniquely qualified to advise our clients in the ever-increasing regulated environment,” McIntyre said.

Adams also previously served as a law clerk to Associate Justice Clarence Thomas of the U.S. Supreme Court. While at the White House, he focused primarily on matters arising out of the Department of Defense and State Department that implicated the Office of the President.

McGuireWoods chairman Richard Cullen called the addition of Adams “a great day for our firm.”

“He has experience at the highest levels of government and we look forward to putting that experience to use for our clients,” Cullen said. “He is not only a talented lawyer with a brilliant legal mind, but he has the character to fit right in with our firm.”

McGuireWoods is a full-service law firm with approximately 900 lawyers in 17 offices in the U.S., Europe and Central Asia.

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Fish & Richardson nabbed the communications team from McDermott…

A recent poll found nearly two-thirds of Americans are unable to name a single member of the U.S. Supreme Court…

U.S.–based Kirkland Ellis bolstered its London office with the addition of two highly-regarded private equity partners…

Three more partners left Nixon Peabody for rival DLA Piper…

AM Law’s second Hundred also took a hit in ‘09…

Littler Mendelson added a partner to its Philadelphia Office…

A former Kirkland IP Partner launched hiw own IP firm…

Wilson Sonsini Goodrich & Rosati added an expert patent litigation partner to its IP Practice…

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“It is not much fun to go because you put on a black robe and march in and you’re seated in the front row,” O’Connor told the Associated Press. “(You) put your hands in your lap and have no expression on your face throughout the proceedings. You can clap when the president comes in and when he leaves and that’s it. It’s very awkward.”

She noted that Justice John Paul Stevens hasn’t attended a State of the Union in years and that Justice Clarence Thomas rarely goes. The issue of Supreme Court justices attending the annual address came to the forefront earlier this year following President Obama’s State of the Union.

After Obama criticized a Supreme Court decision that dealt with corporate campaign financing, Justice Samuel Alito could be seen shaking his head and saying “not true.”

“You might see a diminution in numbers,” O’Connor said. “It’s always been uncomfortable. There were always people who thought, ‘God, do we have to go? Let’s don’t.’ So it’s been kind of a struggle to get them there anyway.”

Earlier this month, Chief Justice John Roberts also questioned attendance by members of the high court. He called Obama’s criticism “very troubling” and said that State of the Union addresses have “degenerated into a political pep rally.”

Among other topics touched on by O’Connor, who served 25 years on the Supreme Court before retiring in 2006, included diversity on the court.  She said it should be more inclusive of women, non-judges and Protestants.

“I think that religion should not be the basis for an appointment, but if that were the case, one would expect somewhere in the nine to see a Protestant or two,” she said. “You’ll probably see someone eventually.”

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The Albritton Lecture was created by Judge William Harold Albritton III, a 1960 alumnus and a judge on the U.S. District Court of the Middle District of Alabama. Justice Clarence Thomas presented a lecture at the school last fall. The event will be broadcast on CSPAN.

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According to the NLJ, the Court as a whole has become more talkative in recent years, with the number of questions and interruptions steadily increasing – for all except Justice Thomas, who hasn’t asked a question since 2006.

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Ginsburg, who spoke at New England Law’s annual “Law Day,” said the nine justices only take pictures together when a new member is added. “We haven’t had any of those for some time, but surely we will soon.”

She did not elaborate and did not take questions from reporters.

The most likely candidates to either step down or drop dead are Ginsburg; 88-year-old John Paul Stevens; and 69-year-old David Souter. All three are from the “liberal” side of the court, which is a criminal abuse of the word “liberal” — “conservative but not insane” might be a better term.

None of the justices have expressed any desire to retire; including the crazy ones, Samuel Alito, Clarence Thomas and Sith Lord Antonin Scalia.

The 76-year-old Ginsburg had surgery last month for pancreatic cancer, but returned to the bench without missing work. She was treated for colon cancer in 1999, but has said she wants to match the tenure of Justice Louis Brandeis, who served for more than two decades until age 82.

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Jack Thompson is hoping that the United States Supreme Court will consider his appeal of the Florida Supreme Court ruling that disbarred him for life.

In mid-December the anti-game attorney requested from the U.S. Superme Court an extension of a Christmas Eve deadline in which to file what is known as a petition for a writ of certiorari.

Supreme Court Justice Clarence Thomas has granted Thompson’s request, meaning that the embattled anti-game violence advocate will have until February 18th to petition for cert with the Supreme Court.

I’m not surprised that Thomas would back Thompson — they’re both famous, media-friendly lawyers, terrible at their jobs, who subscribe to the dumbass Sarah Palin wing of the Conservative movement.

Via GamePolitics.

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