Two days after U.S. District Court Judge Royce Lamberth refused to stay his order blocking federal funding for embryonic stem cell research, the U.S. Court of Appeals for the D.C. Circuit granted the Obama administration's emergency request for a stay.

In its order, the court used "standard language" indicating that the stay would give the court time to consider the merits of the motion, and should not be read as a ruling on the merits, The Blog of the Legal Times reports. The court set deadlines for the plaintiffs to respond to the stay request, and for a Department of Justice rebuttal.

In its request for a stay, the administration argued that "[d]isruption of ongoing research will result in irreparable setbacks and, in many cases, may destroy a project altogether," and that the injunction is at odds with the intent of Congress when it passed the law, Reuters reports.

Law and biosciences expert Hank Greely wrote in an ACSblog post that Judge Lamberth's initial opinion was "disappointingly bad," and predicted that the D.C. Circuit would first stay the order and then reverse it.

 

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By Hank Greely, a professor of law and genetics at Stanford University, and director of both The Center for Law and the Biosciences and the Stanford Interdisciplinary Group on Neuroscience and Society.

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I was shocked last week when I learned that Judge Royce Lamberth had enjoined federal support for human embryonic stem cell (hESC) research. As a lawyer, I was even more shocked when I read the opinion, which seems to me, when considered solely as a legal matter, clearly wrong.

Last week's decision came on the plaintiffs' motion for a preliminary injunction. The law allows a judge to issue a preliminary injunction when the moving party establishes, in Judge Lamberth's words:

(1) that there is a substantial likelihood of success on the merits; (2) that the plaintiff would suffer irreparable injury absent an injunction; (3) that an injunction would not substantially injure other interested parties; and (4) that an injunction would further public interest.

In this case, the merits turn on the so-called Dickey-Wicker amendment. This amendment was first added to the HHS appropriations bill in 1996. Appropriations bills are good for only one year, so every year from 1996 to the present, Congress has added essentially the same language to the relevant appropriations bill. The current version, adopted as part of the fiscal year 2009 Omnibus Appropriations Act, states:

(a) None of the funds made available in this Act may be used for-- . . .
(2) research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death . . . .

For 11 years, the Clinton, Bush, and Obama administrations have agreed that this language allows funding of research using hESC lines as long as that funded research project does not itself destroy embryos. Judge Lamberth held that the language not only prohibited government funding of any hESC research, but did so clearly and unambiguously.

This prohibition encompasses all "research in which" an embryo is destroyed, not just the "piece of research" in which the embryo is destroyed. Had Congress intended to limit the Dickey-Wicker to only those discrete acts that result in the destruction of an embryo, like the derivation of ESCs, or to research on the embryo itself, Congress could have written the statute that way.

In 1996, this interpretation might have been reasonable, though, I believe, still wrong. In 2010, the decision is clearly and unambiguously wrong, for at least three reasons.

First, Judge Lamberth's decision is wrong because it does not understand the nature of government funding of scientific research, today or in 1996. The NIH does not say "Here's a pool of $100 million for hESC research; come and get it." It says "Please write us a long and complicated application for a grant to do a specific piece of research and if, against long odds, we accept your grant, we'll give you some money to do the work you said you would do." What the NIH funds are "pieces of research," as defined by grant applications. The Guidelines at issue do not allow the destruction of embryos as one of the actions to be undertaken as part of any grant they fund.

Second, this is not 1996. James Thomson of the University of Wisconsin did not announce the first successful hESC derivation until November 1998. In January 1999 HHS concluded that Dickey-Wicker forbade only funding specific research in which embryos were destroyed (or threatened), but allowed funding of research with hESC lines that had been created as part of some other work. HHS has maintained this position for 11 years, through three very different administrations. This is evidence against Judge Lamberth's conclusion that the language of the amendment is clear. If his reading of the language is unambiguously right, why did three very different administrations reject it? And if the language is, in fact, unclear, then under governing administrative law, the Chevron doctrine, the judge has to defer to the interpretation placed on the statute by the government agency charged with administering it - HHS.

Third, the version of Dickey-Wicker that Judge Lamberth was supposed to apply was passed in 2009 . . . by a Congress that had, for ten years, seen those three administrations interpret the rider to mean that HHS could fund hESC research, but not direct embryo destruction. If Congress had disagreed with that interpretation, it could have changed the wording of the following year's Dickey-Wicker amendment to make that disagreement clear. It did not. In fact, twice Congress passed new legislation to overturn President Bush's relatively restrictive policy on use of federal funding, only to see its bills vetoed. These facts make it very odd indeed to interpret the action of Congress in passing the 2009 version of this rider as clearly rejecting federal funding for any hESC research.

Judge Lamberth's conclusion that the plaintiffs have shown they are likely to win at trial seems the most important part of his holding, but, remember, to grant a preliminary injunction, he must find that the plaintiffs have shown that they would suffer irreparable injury without an injunction, that they other parties would not be substantially injured by an injunction, and that the injunction would further the public interest. His decision on those points also seems wrong.

Finally, the operative part of this decision, like any judicial decision, is the order that accompanies it. His order is both short and confusing.

ORDERED that defendants and their officers, employees, and agents are enjoined from implementing, applying, or taking any action whatsoever pursuant to the National Institutes of Health Guidelines for Human Stem Cell Research, 74 Fed. Reg. 32,170 (July 7, 2009), or otherwise funding research involving human embryonic stem cells as contemplated in the Guidelines.

And what does that mean? It surely means that the NIH cannot issue new grants for such research, but it has already issued many grants, both under the Bush Administration policy and, already, under the expanded Obama Administration policy. What happens to them? NIH has announced its preliminary interpretation of the order - all existing grants continue up until the moment of their renewal date, no pending grants will be considered - but it is not clear that the NIH interpretation is correct.

Judge Lamberth's opinion is disappointingly bad. I do not know Judge Lamberth and I do not know whether this decision is the result of bias or whether it is just an example of the occasional bad opinion one must expect from even a good judge. Either way, I hope - and expect - that the District of Columbia Circuit will quickly first stay the order and then reverse the decision.

A longer version of this discussion is available at Stanford Law School's The Center for Law and the Biosciences blog.

Supreme Court Justice Anthony M. Kennedy has joined the list of legal leaders speaking out on the slow pace of judicial confirmations to the federal bench.

During the 2010 Ninth Circuit Judicial Conference, Kennedy questioned whether the Senate confirmation process is "working the way it should be," asking lawyers and law schools to study the process to identify "neutral" principles to guide both parties through the confirmation process, according to a release issued by the United States Courts for the Ninth Circuit.

"It's important for the public to understand that the excellence of the federal judiciary is at risk," Kennedy told the Los Angeles Times. "If judicial excellence is cast upon a sea of congressional indifference, the rule of law is imperiled."

Obama's judicial confirmation rate is "the lowest since analysts began detailed tracking [of] the subject 30 years ago," according to the LA Times, "with 47% of his 85 nominations winning Senate approval so far." There are currently 102 vacancies, out of 876 seats on the federal bench.

Christopher H. Schroeder, assistant attorney general for the Office of Legal Policy, said if the current rate of replacing judges continues, nearly half of all federal judgeships will be vacant by the end of the decade.

"A determined minority is skillfully navigating the process to prevent an up-or-down vote on nominees," Schroeder told an audience during the conference. Schroeder is the co-author Keeping Faith With the Constitution, originally released by ACS and republished this summer by Oxford University Press.

Kennedy focused in particular on the Eastern District of California, which has five active judges, "and the statistics tell us we need 15," he said.

The jurisdiction, which includes slightly more than half of the state's population, currently has six judge seats, one of which has been vacant for 18 months, according to the release.

Two bills pending before Congress, one national judgeship bill, and one limited to the California district, would add four permanent judgeships and one temporary judgeship to the jurisdiction.

"Our committed, dedicated, brilliant federal judges (in the district) are struggling with this caseload ... their dedication must be recognized," Kennedy added.

Kennedy and Schroeder join other leaders who have questioned the slow pace of judicial confirmations, including fellow Supreme Court Justice Ruth Bader Ginsburg, President Barack Obama and ACS Executive Director Caroline Fredrickson.

"We're at a point of unprecedented partisanship and bitter feuding between the two parties over judicial nominees at a level that has never happened before. And the impact is that you have nominees who are languishing for months and some of them for over a year," Fredrickson told NPR in a report on Senate obstruction of judicial nominations.

To follow developments on judicial nominations and vacancies on the federal bench, visit JudicialNominations.org.

 

A federal judge in Washington has temporarily blocked federal funding for human embryonic stem cell research authorized by Obama administration regulations.

In a preliminary injunction, U.S. District Judge Royce Lamberth held that the plaintiffs were likely to succeed on the merits because the government guidelines violate a law that prohibits the use of federal funds for research in which human embryos are destroyed, Reuters reports.

"(Embryonic stem cell) research is clearly research in which an embryo is destroyed," Lamberth wrote in a 15-page decision.

Lamberth initially dismissed a suit by the same plaintiffs in October, holding that "embryos lack standing because they are not persons under the law" and the unborn have no right to life protected under the Constitution's 14th Amendment, Bloomberg reported at the time.

 The Court of Appeals overturned the standing decision and remanded the case to Lamberth.

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Aaron H. Caplan is an associate professor of law at Loyola Law School - Los Angeles, where he teaches courses in constitutional law. He has also litigated the constitutionality of punishing false statements made during political campaigns.

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When can the government punish liars? The question recently arose in back-to-back federal court opinions finding the Stolen Valor Act of 2005 to be unconstitutional. The statute makes it a federal crime for any person to "falsely represent[] himself or herself, verbally or in writing, to have been awarded any [military] decoration or medal." In July, the District of Colorado found the act unconstitutional in US v. Strandlof, and in August a divided panel of the Ninth Circuit reached the same conclusion in US v. Alvarez.

In striking down the act, neither court announced a "right to lie" as has been bandied about in some press accounts. Alvarez said the opposite: "There is certainly no unbridled constitutional right to lie such that any regulation of lying must be subjected to strict scrutiny." Instead, both decisions recognized that in a society committed to freedom of speech - and, as I argue below, freedom of thought - the government does not have authority to punish lies simply because they are lies. Instead, there is power to regulate certain harmful lies.

False Statements of Fact As A Less-Protected Category

Government has more power to punish speech that falls within the so-called "unprotected" (or, more accurately, "less-protected") categories, such as incitement to imminent violence, true threats to inflict bodily injury, obscenity, fraud, defamation, false advertising, or speech in furtherance of a crime. The statements in Strandlof and Alvarez fell within none of these. One could imagine scenarios where someone might lie about having received a medal as part of a scheme to defraud. In recent years, many prosecutors have used anti-fraud statutes to prosecute in those situations, purposely avoiding reliance on the Stolen Valor Act due to doubts about its constitutionality. In the latest cases the defendants' bogus boasts were not used to cheat anyone, but only to scratch some inner itch.

Are the less-protected categories of fraud, defamation, and false advertising truly separate categories, or are they expressions of a single concept, namely that all false statements of fact are per se less protected? Existing Supreme Court opinions don't answer the question. In a frequently quoted phrase from Gertz v. Robert Welch, Inc., the Supreme Court said, "there is no constitutional value in false statements of fact." Yet the Court has often given constitutional protection to demonstrably false utterances, requiring additional showings before they may be proscribed. In New York Times v. Sullivan, the Court not only recognized that some falsity is "inevitable in free debate," but went further to find affirmative value in it, quoting John Stuart Mill: "Even a false statement may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer perception and livelier impression of truth, produced by its collision with error'."

The opinions in Alvarez puzzled over how to harmonize these conflicting statements. The dissent took the Gertz dictum at its word, concluding that all false statements of fact form a single exception to the general rule of free speech. Cases like New York Times v. Sullivan represent exceptions to the exception, whereby a subset of false statements are protected because punishing them would cause an unacceptable chilling effect on truthful speech. In an interesting amicus brief in Strandlof, Eugene Volokh argued that the Stolen Valor Act was unlikely to create such a chilling effect. If that is the right question, this may be the right answer. (Amicus briefs opposing the Act were also filed by the ACLU of Colorado and the Rutherford Institute.)

The majority, in my view, had the better of the argument because it looked beyond dicta to the facts and holdings of the cases. Past decisions upholding punishment for lies involved harms beyond mere disapproval of lying. These include the financial losses that accompany fraud, the obstruction of justice that flows from perjury or false swearing, or the injury to psyche caused by defamation. Even Oliver Wendell Holmes' famous remark from US v. Schenck that the First Amendment does not protect "falsely shouting fire in a theatre and causing a panic" includes harm in the form of a panicky crowd that can stampede. Falsely shouting fire on a lonely beach is a different matter. On this understanding, the majority correctly concluded that the less-protected categories defined thus far are what they purport to be.

The use of an alias provides a good example. I. Lewis Libby tells people his name is "Scooter," and Marshall Mathers presents himself as "Eminem," although both are demonstrably false statements of fact regarding their names that can be disproved through government birth records. One is free to use an assumed name so long as it is not done as part of a scheme to defraud. The same should apply to a false statement about receiving a medal, which can be disproved through government records in the same way. Indeed, the ease of proving falsity makes it suitable for correction in the marketplace of ideas, as seen at the Medal of Honor Imposters website.

Truth Police

Our free speech alarms should ring especially loudly whenever an utterance is banned purely out of official disapproval. If speech could be banned merely because it were false, Congress could ban assertions in favor of creationism or evolution. Galileo's assertion that the earth revolved around the sun was a factual assertion that was once deemed officially false. The government should not be the truth police in the absence of other harm.

Volokh's amicus brief recognized this peril, and proposed that false statements of fact could not be punished if made when discussing the government, history, or science. But if false statements are presumptively proscribable, it becomes difficult to construct a legal principle to explain the exceptions to the exception. The Alvarez majority approach is conceptually cleaner and provides better guidance in separating proscribable from protected false statements.

Controlling Speakers to Control Listeners' Thoughts

Freedom of speech, like freedom of religion, is also about freedom of thought. When despotic governments have acted as truth police, they punish perceived untruths in large part to ensure conformity of thought in society at large. The Stolen Valor Act shares that vice. The tip-off is in Congress's statement of purpose, which is "to protect the reputation and meaning of military decorations and medals." Congress wants to control what everyone thinks military medals mean.

People should be allowed to decide for themselves what meaning to attach to symbols - especially symbols of government. This is the lesson of Texas v. Johnson and US v. Eichman, which rejected any valid interest in dictating how the flag must be perceived as "a symbol of nationhood and national unity." As we know from West Virginia State Board of Education v. Barnette, "no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion."

The dangers of government as truth police outweigh any damage that may come from the imposters who tell obnoxious but not harmful lies about themselves. Faced with these charlatans, we should take a deep breath and remember Justice Jackson's statement from US v. Ballard that the price of free speech "is that we must put up with, and even pay for, a good deal of rubbish."

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By Rick Hasen, William H. Hannon Distinguished Professor of Law, Loyola Law School - Los Angeles and Publisher, Election Law Blog.

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Does this week's Ninth Circuit order putting on hold any gay marriages in California pending the resolution of appeals in the case mean that the appellate court is likely to reverse Judge Walker's decision declaring California's Proposition 8 unconstitutional? Or, to the contrary, does the fact that the Ninth Circuit also ordered the Proposition 8 proponents to brief the question whether the initiative proponents have standing to appeal in the case mean that the Court is likely to dismiss the appeal without reaching the merits? I believe caution is in order, and that proponents and opponents of gay marriage should read very little into the Ninth Circuit's order as to how that court is likely to decide the Proposition 8 case. But the Ninth Circuit's decision to issue a stay could increase the chances that the Supreme Court ultimately will side with gay marriage supporters.

Let's begin with the tenuous relationship between the stay order and an ultimate resolution of this case in the Ninth Circuit. As ACSBlog readers no doubt know, on August 4, federal district judge Vaughn Walker declared unconstitutional under the equal protection and due process clauses California's Proposition 8, an initiated constitutional amendment which bars same sex-marriage. On August 12, Judge Walker denied the request by Proposition 8's proponents to stay his ruling pending appeal, though he issued a temporary stay to allow the proponents time to seek a stay from the Ninth Circuit. Judge Walker's stay denial raised the question whether initiative proponents have adequate standing to bring an appeal in the case (given that California government officials have aligned themselves with plaintiffs' position that Proposition 8 is unconstitutional and were not going to appeal).

Proposition 8 proponents then sought a stay from the Ninth Circuit; otherwise, under Judge Walker's order, gay marriage would have been legal as of 5 p.m. today. On paper, appellate courts are supposed to give considerable deference to a trial court judge's decision to grant temporary relief such as a preliminary injunction or a stay. In practice, in hot button cases the Ninth Circuit has shown little deference to district court stay decisions and the Supreme Court has shown even less deference to the Ninth Circuit.

Under the Ninth Circuit's general orders, emergency stay motions are decided by a "motions panel" of up to three judges, assigned monthly on a rotating basis. The judges who decided the Proposition 8 stay order are not the same judges who will decide the ultimate appeal. Instead, three other judges - possibly the judges who decided an earlier appeal in the case involving the use of a video feed of the trial - will be deciding the merits of the appeal.

So one reason why the Ninth Circuit's decision on the stay is not a likely reflection of what the Ninth Circuit will do on the merits of the appeal is that the decisionmakers are not the same (unless, of course, the same judges on the motions panel are chosen by chance). Even so, some have suggested that the decision to grant a stay must have reflected a belief on the part of the motions panel that the appeal had merit, because judges are supposed to take likelihood of success on appeal into account in deciding whether or not to grant a stay. Though it is possible that likelihood of success on appeal played a part in the motions panel's decision, my guess (and it is only a guess, because the motions panel offered no explanation for its stay order) is that a stronger factor was a desire to preserve the status quo pending appeal. Without a stay, there could have been a number of gay marriages performed while the case was on appeal, and in the event that Judge Walker's decision was reversed on the merits, then there would be further litigation over the status of those marriages and potentially a lot of disappointed people and difficult financial and family law issues to untangle. Preserving the status quo has always been a very strong factor in considering whether or not a stay should be granted.

Nor would I make much of the fact that the Ninth Circuit motions panel directed the proponents to address the standing question. Federal courts are courts of limited jurisdiction, and it is only prudent to have a jurisdictional issue like standing fully briefed once it was raised by Judge Walker. Indeed, in a little-noticed second order yesterday, the same motions panel also consolidated an appeal of the Proposition 8 ruling by Imperial County (a supporter of Proposition 8), raising the possibility that Imperial County could be found to have standing in the case. If the mention of standing in the first order meant the judges were dubious about standing, the second order meant the judges were thinking of a way out of the standing problem.

There's one more reason why at least some of the judges on the Ninth Circuit motions panel could have supported a stay besides concern about the status quo: It makes it more likely that the Supreme Court would ultimately find Proposition 8 unconstitutional. Had the Ninth Circuit upheld Judge Walker's denial of a stay, the issue would have fallen into the lap of Justice Kennedy (the Supreme Court Justice who handles emergency appeals from the Ninth Circuit) on an expedited schedule. Observers believe he's likely the swing vote on Proposition 8's constitutionality, and an emergency stay request could have brought the issue to him without giving him time for adequate reflection and rumination on the constitutional issues.

Now the case is on the back burner. The Ninth Circuit can be very slow in issuing opinions. There's no deadline after the scheduled December argument for the court to issue an opinion. Once an opinion issues, the losing party can ask for a larger "en banc" panel of Ninth Circuit judges to hear the case. It is even possible that the case could be heard by the entire Ninth Circuit. It is entirely possible for a few years to elapse before the case could get to the Supreme Court. By then, public opinion could shift more firmly toward gay marriage, and it is possible that such an emerging social consensus could influence Justice Kennedy toward striking down Proposition 8.

This case already has had more than its share of twists and turns. But for those who want to predict what will happen in the appellate courts, there's really very little to go on so far. Certainly we should not rely on a procedural order containing no written rationale offered by a different set of decisionmakers than the judges who will decide the merits of the appeal.

Elena Kagan was not the only judicial nominee the Senate confirmed yesterday. In one of its last acts before recessing for a month, the Senate also confirmed four nominees to federal judgeships, The Blog of the Legal Times reports.

The confirmation of James Wynn Jr. to the Fourth Circuit, along with three others to district courts, comes a day after President Barack Obama met one-on-one with Senate Minority Leader Mitch McConnell (R-Ky.) to discuss judicial confirmations.

In a statement before the meeting, White House Spokesman Robert Gibbs said the president is "rightly frustrated" at a pace of confirmations that is "unrivaled and unmatched in its slowness," USA Today reports.

There are now 100 vacancies out of 867 seats on the federal bench. "Those vacancies are causing the federal courts to be overburdened, delaying justice," ACS Executive Director Caroline Fredrickson wrote in a column for The Huffington Post earlier this month. If the Senate continues to move at this "glacial pace," a system that is "already overburdened" will come to a "grinding halt," Fredrickson wrote.

Thursday's confirmations were part of a deal between Democratic and Republican leaders to move some of the noncontroversial nominees, The Blog of Legal Times reports.

Still, a large number of well-qualified nominees continue to wait, such as U.S. Magistrate Judge Edward Chen in California, who has now been waiting a full year for Senate confirmation to become a district court judge, the San Francisco Chronicle editorial board writes.

"Too many talented would-be judges are being forced to put their lives on hold while they wait for senators to act," the Chronicle's editorial board writes.

Wynn, a North Carolina state judge, was first nominated to the Fourth Circuit by President Bill Clinton in 1999, but his nomination was blocked. Wynn was nominated again in November by Obama, together with Charlotte Judge Albert Diaz, and both were confirmed by the Senate Judiciary Committee in January. Diaz and Wynn "have been waiting since then for a full Senate vote, caught up in the partisan dispute over Obama nominees," McClatchy Newspapers reports. Diaz is still awaiting confirmation.

A nominee for the Sixth Circuit, Nashville, Tenn. lawyer Jane Stranch, is scheduled for a vote on the Senate's first day back in session Sept. 13, according to The Blog of The Legal Times.

The district judges confirmed were Michelle Childs and Richard Gergel for the District of South Carolina and Leonard Stark for the District of Delaware, The Blog of the Legal Times reports.

For more information, and to track the progress of judicial nominations, visit JudicialNominations.org.

 

 

A federal judge today declared California's ban on same-sex marriage unconstitutional, holding that it is not only a violation of the Fourteenth Amendment's equal protection clause, but also impermissibly burdens "the exercise of the fundamental right to marry."

"Plaintiffs do not seek recognition of a new right," U.S. District Chief Judge Vaughn R. Walker wrote in the 136-page decision. "To characterize plaintiffs' objective as ‘the right to same-sex marriage' would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy - namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages."

The decision continues:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that the opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

The decision is expected to be appealed to the U.S. Court of Appeals for the Ninth Circuit and then up to the Supreme Court, the Los Angeles Times reports.

The full opinion is available here.

 

Among its five decisions issued today, was one adding to requirements surrounding the invocation of Miranda rights. The Court ruled 5-4 that suspects must tell police or interrogators that they want to remain silent in order to invoke the Miranda protections. In analysis for SCOTUSblog, Lyle Denniston said today's opinion, another interpretation of the Court's 1966 opinion in Miranda v. Arizona, "decisively tilted the warnings procedure toward the police."

Denniston continued, "the Court for the first time made two things clear about Miranda rights: first, if a suspect does not want to talk to police - that is, to invoke a right to silence - he must say so, with a clear statement because it is not enough to sit silently or to remain uncooperative, even through a long session; and second, if the suspect finally answers a suggestive question with a one-word response that amounts to a confession, that, by itself, will be understood as a waiver of the right to silence and the statement can be used as evidence. Police need not obtain an explicit waiver of that right. The net practical effect is likely to be that police, in the face of a suspect's continued silence after being given Miranda warnings, can continue to question him, even for a couple of hours, in hopes eventually of getting him to confess."

The decision in Berghuis v. Thompkins arose from a Michigan case where the suspect Van Chester Thompkins remained mostly silent through a lengthy police interrogation before implicating himself in a murder. He appealed his case arguing that his statements should not have been admissible because he had invoked his right to remain silent, by largely doing so, The Associated Press reported.

Writing for the majority, Justice Anthony Kennedy concluded that Thompkins did not properly raise his Miranda rights. "Thompkins did not say that he wanted to remain silent or that he did not want to talk to police. Had he made either of these simple, unambiguous statements, he would have invoked his ‘right to cut off questioning.' Here he did neither, so he did not invoke his right to remain silent."

Justice Sonia Sotomayor lodged a dissent blasting the majority for what she described as an inconsistent reading of precedent.

"Criminal suspects must now unambiguously invoke their right to remain silent - which counterintuitively, requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded."

For more information on all of the Court's decisions see SCOTUSblog here.

The high court also added a case to its forthcoming term. In Mayo Foundation v. United States, the Court will consider whether medical residents are students or employees for purposes of collecting Social Security taxes, The AP reports.

"The Senate Judiciary Committee on Thursday approved the nomination of Goodwin Liu to be a judge on the United States Court of Appeals for the Ninth Circuit, sending him to the full Senate for consideration after a party-line vote of 12 Democrats in favor to 7 Republicans opposed," reports The New York Times' Charlie Savage.

The Committee also approved without opposition the nominations of federal prosecutor Ray Lohier to the U.S. Court of Appeals for the Second Circuit and Magistrate Judge Leonard Stark to the District of Delaware. Both nominations were forwarded to the Senate floor without dissent.

The debate on Liu, a Berkeley Law professor and former ACS board chair, has "increasingly become a proxy for Elena Kagan's nomination to the Supreme Court," the Blog of the Legal Times suggested, with Sen. Jeff Sessions, the Committee's ranking member stating, that, "In Solicitor General Kagan, President Obama has chosen another academic who has focused on policy the majority of her career, including in the Clinton White House, and who has never been a judge or seriously practiced law."

Sen. Dianne Feinstein responded by highlighting three appellate judges who came from law schools and who were in their 30s when nominated by a Republican president: Frank Easterbrook of the Seventh Circuit, Kimberly Moore of the Federal Circuit, and J. Harvie Wilkinson III of the Fourth Circuit.