Tag Archive | Antonin Scalia

On Love-Making, Regrets, and Footnotes in Appellate Briefs

By Derek Stikeleather

British playwright Noel Coward memorably observed that coming across a footnote is like going downstairs to answer the doorbell while making love. Although this quip has left my mind’s eye with an image it can’t un-see every time I consider dropping a footnote, it has not banished footnotes from my legal writing. But the vivid quote and a recent Maryland federal-court opinion have prompted me to consider more carefully when and when not to use footnotes.

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An Advocate’s View of Judge Garland in Criminal Cases

By Steve Klepper (Twitter: @MDAppeal)

I’ve had the privilege of arguing three cases before D.C Circuit Judge Merrick Garland, who is President Obama’s nominee to the Supreme Court. The media and interest groups are scrutinizing his 19 years’ worth of appellate decisions for insight on his jurisprudence. Much of the criticism from criminal justice advocates (on both the right and the left) is that they see Judge Garland as predisposed to favor prosecutors in criminal appeals. Critics typically cite Tom Goldstein’s 2010 analysis of Judge Garland’s criminal opinions.

My experience, while not necessarily representative, is at odds with this conventional wisdom. Two of my arguments before Judge Garland were as defense counsel in criminal appeals, and he wrote the opinion both times. I would be happy for Judge Garland to be on my panel in every single criminal appeal. Read More…

Seriously, this is a job for Chief Justice Roberts

By Steve Klepper (Twitter: @MDAppeal)

In a February 15 post, I proposed that Chief Justice Roberts publicly address the harm to the judiciary that would result from Senate Republicans’ proposal to turn the November 2016 election into a referendum on filling the Supreme Court vacancy. I cited Chief Justice Hughes’ 1937 letter undermining the “Court-packing plan” as precedent for such an unusual action. A number of commentators – including Lyle Denniston in a post for Constitution Daily, Ruth Marcus in a Washington Post column, and Gabe Roth in an MSNBC op-ed – later echoed the same argument.

I am under no illusion that Chief Justice Roberts would find the idea of a public statement anything but horrifying. But the political landscape, as it has unfolded over the last month, is far more horrifying. Read More…

This is a job for Chief Justice Roberts, judicial statesman

By Steve Klepper (Twitter: @MDAppeal)

February 13 was likely the worst day for Chief Justice Roberts since he joined the Court in 2005. He lost a good friend. He lost an ally. These developments would be awful at any time. The timing, however, turned Justice Scalia’s death into a challenge to the Chief Justice’s quest to preserve the Court’s institutional integrity. Roberts is a student of history, however, and there is precedent for him to take action to defend the judiciary. Read More…