In James v. US, a case interpreting the Armed Career Criminal Act (I confess I had no idea this law existed before today), Justice Scalia and Alito disagreed. Justice Alito, writing for the Court, opined that "attempted burglary," as defined by Florida law, is a "violent offense" under the ACCA, relevant to the sentencing of James. Three prior "violent offenses" convictions, as defined by the ACCA, mandated a 15 year sentence.

In dissent, Justice Scalia objected to Alito's opinion, arguing that Alito gave no guidance to lower courts for determining what "residual offenses" would fall under the ACCA's "violent offenses" provision, labeling Alito's approach "entirely ad hoc."

Of special interest in today's SCOTUS decision upholding a late term abortion ban is that the mantra "leave abortion to the States" has been utterly abandoned by the Republican Party and anti-choice forces. This is a federal ban. This line from Justice Thomas' concurrence is ironic:

I also note that whether the Act constitutes a legitimate exercise of the Congress' Commerce Power is not before the Court.

For those of you who might have thought the conservative Justices were conceding the point.

From Justice Ginsburg's dissent:

One wonders how long a line that saves no fetus will hold in the face of the Court's "moral concerns." . . . The Court's hostility to the right Casey and Roe secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists not by the title of their medical specialties, but by the pejorative label "abortion doctors."

These Senators voted to not filibuster the nomination of Samuel Alito to the Supreme Court:

Akaka (D-HI) Alexander (R-TN) Allard (R-CO) Allen (R-VA) Baucus (D-MT)Bennett (R-UT) Bingaman (D-NM) Bond (R-MO)Brownback (R-KS) Bunning (R-KY) Burns (R-MT) Burr (R-NC) Byrd (D-WV) Cantwell (D-WA) Carper (D-DE) Chafee (R-RI) Chambliss (R-GA) Coburn (R-OK) Cochran (R-MS) Coleman (R-MN)Collins (R-ME) Conrad (D-ND) Cornyn (R-TX)Craig (R-ID) Crapo (R-ID) DeMint (R-SC) DeWine (R-OH) Dole (R-NC) Domenici (R-NM) Dorgan (D-ND) Enzi (R-WY) Frist (R-TN) Graham (R-SC)Grassley (R-IA) Gregg (R-NH) Hatch (R-UT)Hutchison (R-TX) Inhofe (R-OK) Inouye (D-HI) Isakson (R-GA) Johnson (D-SD) Kohl (D-WI) Kyl (R-AZ) Landrieu (D-LA) Lieberman (D-CT) Lincoln (D-AR) Lott (R-MS) Lugar (R-IN) Martinez (R-FL) McCain (R-AZ) McConnell (R-KY) Murkowski (R-AK) Nelson (D-FL) Nelson (D-NE)Pryor (D-AR) Roberts (R-KS) Rockefeller (D-WV) Salazar (D-CO) Santorum (R-PA)Sessions (R-AL) Shelby (R-AL) Smith (R-OR) Snowe (R-ME) Specter (R-PA) Stevens (R-AK) Sununu (R-NH) Talent (R-MO) Thomas (R-WY) Thune (R-SD) Vitter (R-LA) Voinovich (R-OH) Warner (R-VA)

Are judges permitted to express their opinions, or do they shed their First Amendment rights when they don a robe? Adam Liptak calls attention to a disciplinary proceeding against Arkansas Judge Wendell Griffen, who may lose his job (or at least face a suspension) because he made a speech that criticized the president’s decision to wage war with Iraq.

Last month, the commission voted to hold a hearing in the matter, saying there is probable cause to believe that Judge Griffen had damaged public confidence in the integrity and impartiality of the judiciary. In an interview, James A. Badami, the commission’s executive director, elaborated. “If you are a staunch Republican and a Bush supporter and have to come before this judge,” Mr. Badami said, sounding exasperated, “and this judge has now said some terrible things about Bush and the Bush administration — and now those people are having to appear before him?”

Here’s a better question: when a judge issues campaign promises to be “tough on crime” by making sure that offenders stay behind bars, touts her past experience as a “law and order prosecutor,” and trumpets her endorsement by law enforcement officers across the state, how will someone who is accused of a crime feel about having to appear before the judge? After all, the judge will rarely know whether a party appearing in court is a Republican or Democrat, but the judge will surely know that the party is on the wrong side of criminal prosecution. Isn’t there a greater risk of partiality when the judge has made campaign statements suggesting that she will favor the prosecution over the defense and will follow a uniformly harsh sentencing policy rather than tailoring sentences to the specific offender?

The Supreme Court is a lonely place for women ... or the woman, now that Justice O'Connor has been replaced by Justice Alito.

U.S. Supreme Court Justice Ruth Bader Ginsburg said Friday that she dislikes being "all alone on the court" nearly a year after the retirement of Sandra Day O'Connor. Ginsburg, who spoke to an assembly at Suffolk University Law School, said she sees more women in law school, arguing before the court and sitting as federal judges.

"My consolation is that if you look at the federal courts altogether, you get a much different picture than you do if you look only at the U.S. Supreme Court," she said.

Justice Ginsburg noted that her male colleagues lack "certain sensitivities." Would anyone care to guess what they might be?

The first good result from the November elections...

William Haynes, William G. Myers III and Terrence Boyle had all decided to abandon their quest for confirmation. Another nominee, Michael Wallace, let it be known last month that he, too, had asked Bush to withdraw his nomination.

Sen. Patrick Leahy says only consensus nominees have a chance of being confirmed.

The FBI has released its files on the late Chief Justice William Rehnquist. Among the details:

The documents also reveal that while Rehnquist was hospitalized for back pain in 1981, he experienced withdrawal symptoms related to his use of Placidyl, a powerful prescription pain medicine. Rehnquist had taken the medication for ten years, the documents show, but doctors refused to give it to him while he was hospitalized. According to the FBI documents, Rehnquist became agitated and experienced hallucinations during his withdrawal from Placidyl. He attempted to leave the hospital in his pajamas and told doctors that he believed the CIA was plotting against him.

I wrote a long post about Rehnquist's use of Placidyl and the implications in 2005.

Talk about intemperate, this may take the cake.

A judge who jailed 11 people because they were late for traffic court after being directed to the wrong courtroom lost his job Thursday, as the state Supreme Court ruled he was unfit to remain on the bench.

In a unanimous decision, the court said the jailing and strip-searching of the 11 motorists capped a series of conduct complaints against Seminole County Judge John Sloop, 57.

"Judge Sloop's indifference to the anxiety, humiliation and hardship imposed upon these 11 citizens reflects a callous disregard for others that is among the most egregious examples we have seen of abuse of judicial authority and lack of proper judicial temperament," the high court wrote in an unsigned opinion.

Remember the Macomb County, Michigan woman who got 30 days in jail because her parties were too loud? The sentence is a joke, but you don't want to say that to the judge's face.

A 17-year-old woman was ordered to jail for 30 days for contempt of court for telling the judge, "You're a joke."

Same judge. Thirty days for a loud party, 30 for an insult. Another young man got 13 days for jaywalking.

Local residents are starting to notice District Court Judge Norene Redmond's excessive reliance on incarceration to punish minor offenses.

Author and lawyer Scott Turow opines in the New York Times Magazine today that Justice Anton Scalia is a civil libertarian who may decide against the Administration in terror cases.

On Scalia's originalist philosophy:

Justice Scalia is led to these seemingly divergent positions by his unyielding adherence to a school of constitutional interpretation called originalism. To Scalia, the Bill of Rights means exactly what it did in 1791, no more, no less. The needs of an evolving society, he says, should be addressed by legislation rather than the courts.

On the warrantless wiretap challenge when it gets to the high court:

Mitch McConnell, Senate Minority Leader-elect, says:

Forty-nine is not a bad number of Senators to have, in a chamber that requires sixty to control. And I can assure you that our Democratic friends will give President Bush's judicial nominees a floor vote - if they want to get anything done, in a chamber that requires 60 to control.