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tv   [untitled]  CSPAN  June 29, 2009 9:30pm-10:00pm EDT

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supreme court, as she did to the district court, and then the court of appeals, a wealth of experience in law and in life. and i am so glad no longer to be the lone woman on the court. i look forward to a new colleague well equipped to handle the challenges our work presents. turning to the term of work, i will say some things about case load and lineups. then note a few of the most-watched cases, and after that, describe second circuit decisions on our agenda. last year, i predicted we might hear as many as 100 case this is term. that estimate proved incorrect. not at all to my regret. we in fact heard 78 cases, that was up from 69 the preceding
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term, and next term if the 31 grants of review so far are a fair measure, we will stay in the high 70's range. of the 78 argued cases, opinions to date have been released in 60 . 17 of the 60, or 28%, were by decisions, a rate considerably higher than last term's 16%. there will be more 5-4's in the term's final week. because several of the 16 cases that remain pending involve the most contentious issues. e67b so, our agreement -- even so, our agreement outran our disagreement. we were unanimous in 23 of the bottom line judgments and 17 of those yielded unanimous opinions
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as well. the press tends to focus on splits with the chief justice, justices scalia, kennedy, thomas, and aleta ranged on one side. justices stephens, souter, ginsburg, and bryan on the other. but it is not always so. true, nine of the 175-4 splits did shape up -- of the 17 5-4 splits did shape up in the usual way. but in five, justices stephens, kennedy, souter, ginsburg, and breyer composed the majority and there were unusual lineups as well. i will mention three. the first was oregon v. ice, it posed one of many post-aparen dee questions consistent with our current sixth amendment
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jurisprudence, could a judge rather than a jury find the fact essential to the imposition of consecutive sentences. i answered yes. and in agreement with me were justices stephens, kennedy, breyer, and alito. second, baden against discover bank involved a credit card issuer's resort to a federal court to compel arbitration for a dispute with a cardholder. though the issue itself had commenced that fray, in state court. the hard hold -- the cardholder raised a counterclaim governed by federal law. justices scalia, kennedy, souter and thomas joined me in holding that the issuer had to stay on the state court track and their petition for arbitration, not in
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federal court. if so inclined. the fourth circuit, whose decision we reviewed, had come out the other way, as had the second circuit, although on a different ground than the fourth simbingt. third and by far the most prominent of this set, in arizona v. gant, the court revisited new york v. belton and substantially cut back on the scope of automobile searches incident to an arrest. once the scene has been secured, the court held, police may search the interior of the car, if and only if they reasonably believe that the vehicle contains evidence of the offense for which the defendant was arrested. in other words no search for drugs when the arrest is for speeding.
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justice seevens wrote the opinion, joined by justices scalia, souter, thomas, and me. careful listeners would have noticed that i emerged in these cases as the swing justice. the only member of the court in the majority in all three of those 5-4 decisions. among most-watched cases that did not come to us from the second circuit, i picked three, wythe v. levine, and northwest austin municipal utility district v. holder. wythe had a predecessor the year before in regal v. medtmbing ronic. the court held 8-1 that the f.d.a.'s regime for medical
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devices preempted all state law, charging the device the f.d.a. allowed to be marketed caused physical injuries. i was the lone dissenter in that case. wythe v. levine involved drugs rather than devices and the absence of a preemption clause in that statute. tort suits under state law could be maintained, the court held 6-3, claims for inadequate warnings on drug labels. caperton v. a.t. mass see cole company came with a record resembling john grisham's novel "the appeal." there was a jury verdict in favor of caperton who charged
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the coal company's predatory practices drove him out of business. the west virginia supreme court, dividing 3-2, reversed the judgment for caperton. declared victory for the coal company. there was one problem. justice benjamin who cast the deciding vote in west virginia's highest court was newly elected to the court, the coal company's c.e.o. had spent $3 million to defeat the incumbent, whose seat benjamin won. dividing 5-4, we concluded that benjamin's participation in the case violated caperton's right to due process. justice kennedy's opinion for the court, joined by justices stephens, souter, ginsburg, and breyer, emphasized the truly extraordinary fact the c.e.o.'s significant and disproportionate
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influence on the election and the temporal relationship between the election and the pending case. finally, among these most-watched cases, and perhaps the most important case of the term, northwest austin municipal utility district. at stake is congress' year 2006 25-year renewal of section five of the voting rights act a measure initially enacted in 1965. under the act, nine states, seven in the south, and some designated areas elsewhere, all with histories of discrimination against minority group voters, must obtain federal free cleenches for any change in
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voting practices. the preclearance requirement extends to all local units in a designated state or area and to gain free clearance, the applicant must show that the proposed change has neither the purpose nor the effect of denying our abridging the right to vote on account of race. eight days after congress' latest re-authorization of the voting rights act a small municipal utility district in travis county, texas, formed in the late 1980's, filed suit in federal court alleging that it never engaged in discriminatory voting practices. the utility district sought a statutory exemption from section five coverage, a release from the obligation to preclear called a bailout.
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if bailout is not available to it, the utility district alternatively argued, then the 2006 voting rights act, the re-authorization of the 1965 act, would be unconstitutional. it would, according to the plaintiff, exceed congress' power to enforce the 14th and 15th amendments. congress had passed the re-authorization act by overwhelming majorities in both houses. a three-judge federal district court in the district of columbia, stressing the deference due to congress, rejected the utility district's argument and upheld the act. what the supreme court will do with this case remains to be seen. the second circuit ranked high on our grant list this term we granted review in nine cases
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from the circuit and have so far decided six. the first four to come out yielded 5-4 decisions reversing the court of appeals in all four. i was among the dissenters. i thought the circuit got it right. but in the two most recently decided case the court affirmed the circuit's judgment. two of the reversals issued on the same, perhaps fitting, day, april 1. one of the two, entergy corporation v. river keeper involved a section of the clean water act specifying that standards governing cooling water intake structures must, quote, reflect the best technology available while minimizing adverse environmental impact. several states hand
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environmental groups challenged as unduly lax the performance standards that the e.p.a. had set for these structures. concluding that the statute did not permit the e.p.a. to use cost benefit analysis, the second circuit remanded the matter to the agency for clarification whether the e.p.a. had relied on that analysis. the supreme court held that the statute reasonably could be read to allow cost benefit balancing, justice stephens, the lead dissenter thought the second circuit was absolutely right and criticized the majority for diluting the strength of congress' best technology available instruction. second of the april 1 decisions, 14 penn ploopla sa v. pyatt, can concerned a collective
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bargaining agreement providing that union members had to ar by trait, not bring suit in court, for complaints under the age discrimination in employment act. relying on a past 1974 decision, alexander v. garden denver, the district court and court of appeals held that a collective bargaining agreement could not waive covered workers' rights to a judicial forum for claims that congress created. the supreme court's reversal shrunk garden of denver to petite size. justice souter writing for the dissenters explained why our 30-year-old precedent remains sound and should have controlled. in 14 penn plaza. f.c.c. v. fox television stations decided at the end of april was, i thought a case that
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should never have gotten off the ground. the court upheld the f.c.c.'s 2004 determination that the broadcast of isolated utterances of the f or s word could be condemned as indecent under federal law. the second circuit had set aside the agency's disposition as arbitrary and capricious under the administrative procedure act and as a post-script, the court of appeals expressed doubt the f.c.c.'s current fleeting expletive regime could survive first amendment inspection. the supreme court reversed, holding that f.c.c. had adequately explained its new policy. because the court of appeals had not ruled on the constitutionality of the f.c.c.'s orders, the court declined to address that issue. justice breyer wrote the
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principal dissent which agreed with the second circuit's analysis and in a separate dissent, i noted the long shadows the first amendment cast over what the commission has done. justice brennan, i recalled, had warned over 30 years ago that the government should take care before enjoining the broadcast of words or expressions spoken by many in our land of cultural pluralism. the word, i'm told, was spoken in the argument before the court of appeals. but the lawyers were alerted that some of the justices might find that unseemly, so only the letters f and s were used in our court.
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in mid may, the court reversed the second circuit for the fourth time. the case was ashcroft v. ichbar. it was initiated by a pakistani muslim, arrested on criminal charges in the wake of 9/11 and held under highly restrictive conditions in brooklyn's metropolitan detention center. as plaintiff in an action, it fostered a number of federal offices -- he sued a number of federal offices alleging his harsh treatment carried out a discriminatory policy in which he was designated a person of high interest because of his race, religion or national origin. former attorney general ashcroft and the director of the f.b.i. were both named defendants. they thought threshold dismisal
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on grounds of qualified immunity. disagreeing with the district court and court of appeals, the supreme court held the plaintiff's pleadings insufficient to state a claim for relief against ashcroft and the f.b.i. director. the majority opinion and justice souter's dissent variously interpreted the court's 2000 decision in bell atlantic corporation v. tromley. under tromley, a plaintiff must allege facts that if taken as true state a plausible basis for relief. well, is district judge lynch with us? jerry didn't create the plausibility standard, but he
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did begin the whole business, so perhaps he can tell us which side got it right in this case. in my personal view, the court messed up the federal rules. justice breyer dissented separately in ichbal to underscore a key point the circuit had made. when a government defendant asserts qualified immunity, the trial court responsible for managing the case can structure discovery in ways that diminish the risk of imposing unwarranted burdens on high level officials. on june 8, the court broke the string of reversals by affirming the second circuit twice. in boyle v. united states, we held that an association
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requires no organizational structure beyond the defendant's predicate acts and in united states ex-ralizen stein v. city of new york, we held unanimously that a plaintiff not joined by the government has the usual 30 days and not the government's 60 days to file a notice of appeal. three cases from the second circuit await decision. the backdrop for one of those cases, travelers indemocratnyity company v. bailey is the 1986 mandel bankruptcy plan, ended to relieve crushing asbestos liability. at issue is travelers' attempt to enjoin lawsuits gevpbs it and other insurers for conduct
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relating to their own coverage of asbestos manufacturers to what they did and no -- and not what johns mandel did. next in cuomo v. clearing-house association, the court is considering a provision of the national bank act limiting the state's exercise of dictatorial powers over national banks. interpreting this provision, the office of the comptroller of the currency adopted a regulation prohibiting states from enforcing against national banks, federal or state, federal or state laws governing banking activities. the comptroller invoked this regulation to gain a federal court injunction against the new york attorney general when that officer attempted to investigate
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national banks lending practices for violations of state and federal anti-discrimination laws. the second circuit affirmed the injunction in principal part, holding that the regulations reasonably interpreted the ambiguous term powers. finally and foremost in importance, ritchie v. stefano concerns the city of new haven's decision not to certify the racially skewed results of a promotional exam for firefighters. ritchie and his fellow plaintiffs, mostly hi white, performed well on the exam, most african americans and hispanic test takers scored low. the city asserted that if it certified the test results, it would be vulnerable to a title 7:00 disparate impact suit.
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disappointed minority firefighters would target the examinations' failure to identify and test for the skills most vellvant -- most relevant to leadership post. ritchie, on the other hand, sees the city's refusele to al to certify zest results as a clear case of reverse discrimination, prointed by title 7:00 and the equal protection clause. new haven prevailed on summary judgment in the district court and the second circuit affirmed, relying on the opinion of district judge arthurton. the supreme court decision, one can safely predict, will be among the last to come out this term. in addition to the nine second circuit cases we heard this term we reviewed 15 cases raising
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questions on which the circuit issued an opinion. we agreed with the second circuit in seven of those and disagreed in four. one of the four, still to be decided, is forest grove school district v. t.a. that case raises a question that divided the supreme court 4-4 last term when we considered the second circuit's decision in board of education v. tom f. the question presented, under the individual's -- individuals with disabilities education act, may parents gain reimbursement for private school tuition when their child had not previously received special education in a public school. next term, we have already granted petitions in three cases from the second circuit. first, reid elsevere, v.
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muchnik. we'll determine whether courts have copyright infringement over class actions when most members of the class have not registered their copyrights. second in hemme group v. city of new york, we determine whether the city can meet rico's standing requirements by alleging injury resulting from nonpayment of taxes. third, shady grove orthopedic associates, the allstate insurance company presents an issue procedure teachers will follow with rapt attention. may a state legislature forbid recourse to class actions for claims arising under state law but filed as diversity cases in federal corbet? that completes my report -- in
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federal court? that completes my report on the 2008-2009 term. i invite judge livingston and judge kravitz to join me in conversation. [applause] >> you're watching public affairs programming on c-span. up next, from the federalist society of dallas, a former bush administration justice department official talks about judge sonia sotomayor's nomination knot supreme court. after that, secretary of state clinton talks about honduras and iran. after that, president obama announces new energy efficiency standards for light bulbs. >> how is c-span funded?
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>> publicly funded. >> donations, maybe? i have no idea. >> government? >> c-span gets its funding through the taxes. >> federal funding. >> sort of a public funding thing. >> maybe, i don't know. >> how is c-span funded? 30 years ago, america's cable companies created c-span as a publicer ises -- as a public service. no government mandate, no government money. >> thomas dupri a former bush administration justice department official talks about judge sonia sotomajor's nomination to the supreme court. he's argued cases before judge sotomayor he spoke at the federalist society of dallas for about 40 minutes.
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>> hello and welcome. i'm the president of the federalist society dallas chapter. i'm glad you're able to join me for what is a timely and i hope you'll agree interesting event. the generalties for this event was -- the genesis for this event was the may 1 announce by justice souter, or as i call him, the justice who should have been edith jones, that he was going to resign from the court. he's been serving since 1990, that means the fourth-longest serving justice. lifetime tenure is literal. that drives home how important the members of the court are. and when on may 26, president obama nominated judge sotomayor from the second circuit court of appeals to replace him on the supreme court without -- that really gave us focus as to what exactly a justice sotomayor might be like, what the
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confirmation process for her will be like and what this would mean for the future of the court. fortunately, we have with us a guest from -- who is in from washington who is more than qualified to talk about all those subjects. i'm proud to be able to introduce to you the honorable thomas h. dupri jr., former deputy assistant attorney general of the united states. mr. dupri is a graduate of williams college as well as the university of chicago law school, who once clerked for jerry smith at the fifth circuit court of appeals. in his private practice he played a key role in bush v. gore, more recently in his stint in the federal government he oversaw the civil division of the department of justice, including the civil appellate practice of justice. he's appeared in front of the supreme court and all 13 appeals courts.
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he's appeared before jouge sotomayor in the second circuit court. i'm interested in what he has to say, i hope you all are as well. let's give him a warm welcome to the dallas chapter, tom dupri. [applause] >> good afternoon. thank you very much for inviting me here today and thank you, dan, for the kind introduction. it's always a pleasure for me to return to texas. as he mentioned, i clerked a little bit down the road in houston. it's wonderful to come back and have a chance to catch up with old friends and escape the summertime heat in washington, d.c. thank you very much for having me here today. what i thought i'd do is talk a little bit about president obama's -- the way he selected judge sotomayor to fill the souter vacancy and then talk about


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