A Bakersfield man died after being hit by a train in the 8800 block of Edison Highway, the Kern County coroner’s office reported Friday.Read more

A pedestrian from Stevenson Ranch died Thursday night after being struck by a vehicle along Snow Road west of Brook Hollow Drive, the Kern County coroner’s office reported.Read more

It all started when several 6-foot-tall black-and-white portraits of Bakersfield Sound legends like Buck Owens and Merle Haggard went missing following the surprise closure of Trout’s Oildale honky-tonk in 2017.Read more

Kern County’s ambitions for becoming a carbon management hub could get a financial boost from a state program offering up to $11 million in cap-and-invest money in support of demonstration projects that would pull greenhouse gas directly from the atmosphere.Read more

Justice Clarence Thomas on Thursday afternoon spoke on the issue of shared national values. In an appearance at a conference outside Miami for judges and lawyers from the U.S. Court of Appeals for the 11th Circuit, which includes Alabama, Florida, and Georgia, Thomas described growing up in Georgia during segregation and said that “we shared a country, no matter how badly we were treated, with our fellow citizens.”Thomas was interviewed for over an hour by Kasdin Mitchell, a former clerk who was recently nominated to serve as a federal judge in Texas. Mitchell asked Thomas to discuss remarks that he had made last month at the University of Texas to commemorate the 250th anniversary of the Declaration of Independence.Thomas emphasized that the ideals outlined in the Declaration of Independence provide common ground for everyone in the United States. “We have different religions, we live in different places,” he said, but what do we have in common? “We can say this is something that we all treasure and we all agree on.” Even under segregation, he continued, we had that: as a child, he said, we “raised the flag everyday” and “said the Pledge of Allegiance.”In response to a question from Mitchell about what it means for rights to be self-evident, Thomas suggested that “we’ve disenfranchised most people” with discussions of legal theories like textualism and originalism – the principles that laws should be interpreted based only on the plain meaning of the text, and that the Constitution should be interpreted according to how it would have been understood when it was enacted. “Most people don’t understand those,” Thomas said. Instead, he explained, “we were taught from the cradle that we were equal in God’s eyes. … We could own property.” “Others may intrude upon those rights … but it was not theirs to take away.” He concluded, “Even people who are unlettered when I grew up took it as a given that in God’s eyes we were equal.”Noting that he had only planned to live in Washington, D.C., for two years but had stayed on for more than four decades, Thomas suggested that in Washington and other places many people fall short of the ideals outlined in the Declaration of Independence. These people, he said, “make promises and platitudes,” “but when it’s time to actually have courage … they fail or they find a reason or an excuse” not to act. He compared them (unfavorably) with the signers of the Declaration of Independence – who, he said, “put their names down” and “sealed their fate by signing” the document, because they faced the possibility that they could be hung for treason.Mitchell noted that last week Thomas became the second-longest serving justice (and in two years could become the longest-serving justice). Thomas responded wryly, “Thanks for letting me know that.”As he has in previous public appearances, Thomas expressed nostalgia for earlier iterations of the Supreme Court, telling Mitchell that “it’s a different court now” and he was “really grateful I had an opportunity to be on the court that I joined.” When he joined the Supreme Court in 1991, he said, the court included several members of the “greatest generation” – the cohort born during the first quarter of the 20th century. “Most of them had been in the military” and “lived through the depression. They thought the institution” of the Supreme Court and “the Constitution were much bigger than they were,” Thomas stressed. Thomas indicated that during that era, “the friendships were much, much deeper than” they are now, adding that “I came of age on that court.” He had just turned 43 when he was confirmed, while some of his colleagues at the time “had children older than I was and yet they treated me very fairly.”By contrast, he continued, he had known “the last four members of the current court” – Justices Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson – when they served as law clerks at the court, while he was a sitting justice. “The relationships are different,” Thomas said, “even though they are not negative in any way.”Thomas addressed his increased participation in oral arguments after the onset of the COVID-19 pandemic, which prompted the court to switch at first to telephone arguments, in which each justice took turns asking questions. When the justices returned to the courtroom in September 2022, they reinstated the “free for all” questioning that they had used before the pandemic, but they now follow it up with a “round robin” round of questions in which each justice has a chance to ask questions without interruption from the other justices. Before the pandemic, Thomas rarely asked questions – even though, as Mitchell told the audience, his clerks were instructed to provide possible questions with each memorandum that they prepared before oral arguments.Thomas said that the “round robin” questioning during the pandemic “brought an order to the process.” Before the pandemic, he believed that the myriad interruptions were “rude and I said so.” He expressed satisfaction with the current set-up for oral arguments, which can often go well over the hour normally allotted. He said that “the current approach may run on a bit long, but you cannot say you have not had a chance to say your piece. … I can sit there all day.”Thomas also discussed his hiring of law clerks and his efforts to hire clerks from a variety of law schools outside of the Ivy League. He said proudly that he had had law clerks “from each of the flagship law schools in the” 11th Circuit – the University of Florida, the University of Georgia, and the University of Alabama. “I think there’s smart kids a lot of places,” he said, adding that he had “a young woman coming” to start as a law clerk “who started in community college” because of financial and family circumstances. “I like kids from regular backgrounds,” he said, with “parents who worry about the mortgage and fixing the transmission on the car.”Read more

A unanimous Supreme Court ruled on Thursday in Montgomery v. Caribe Transport II that federal law does not shield freight brokers from state lawsuits claiming they negligently hired dangerous motor carriers.The case began on Dec. 7, 2017, when Shawn Montgomery suffered severe injuries from an accident on Illinois Interstate 70, leading to the amputation of his leg and permanent disfigurement. Montgomery had pulled over due to a mechanical issue when a tractor-trailer driven by Yosniel Varela-Mojena apparently veered off the road and rear-ended Montgomery’s stopped vehicle. Varela-Mojena was hauling a load of plastic pots for his employer, Caribe Transport II, an Indiana-based interstate motor carrier, and the shipment had been arranged by freight broker C.H. Robinson Worldwide, Inc., and its affiliates, under a carrier agreement with Caribe II.Montgomery sued C.H. Robinson, among others, arguing that the broker was liable because it knew, or should have known, that Caribe II was an unsafe choice to ship its goods. The lawsuit rested on the allegation of negligent hiring (i.e., when you engage a contractor for work that poses a physical risk to others, you have a duty to exercise reasonable care in making that choice). Specifically, Montgomery alleged that federal regulators had given the carrier a “conditional” safety rating when C.H. Robinson hired it, finding Caribe II deficient in such areas as driver qualification, hours of service, and crash rates.C.H. Robinson moved to dismiss, arguing the suit was blocked by the Federal Aviation Administration Authorization Act of 1994. The FAAAA – a product of Congress’ effort to deregulate the trucking industry – preempts (that is, supersedes), in Section 14501(c)(1), state laws “related to a price, route, or service” of motor carriers or brokers “with respect to the transportation of property.” A negligent-hiring lawsuit, the company argued, is squarely covered by that. The district court and the U.S. Court of Appeals for the 7th Circuit agreed, while the U.S. Courts of Appeals for the 6th and 9th Circuits had ruled the other way.Writing for the 9-0 court, Justice Amy Coney Barrett held that C.H. Robinson’s argument collided with an exception in the FAAAA. Namely, pursuant to Section 14501(c)(2)(A), the FAAAA’s preemption provision does not apply to “the safety regulatory authority of a State with respect to motor vehicles.” Barrett noted that “[a]ll agree that common-law duties and standards of care form part of a State’s authority to regulate safety.” Barrett then interpreted “with respect to” – a phrase the FAAAA did not define – to mean “concerns” or “regards” based on the ordinary dictionary definitions of these terms. A “motor vehicle,” under the FAAAA, is defined as “a vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power and used on a highway in transportation.” A claim is therefore “with respect to motor vehicles” if it concerns the trucks used to move goods, as was the case here, Barrett explained.Barrett also addressed three counterarguments from C.H. Robinson and the federal government. First, the company warned, Barrett’s reading would allow the safety exception to swallow the preemption clause whole – by siding with Montgomery, everything else that Congress had deemed preempted would now be subject to the safety exception. Barrett disagreed, explaining the safety exception covers only a subset of preempted state laws, specifically those “concerning motor vehicle safety.” State regulations governing what “a carrier may charge or which highways it may traverse,” she noted, would remain preempted.Second, the C.H. Robinson argued, Barrett’s reading creates surplusage, or redundancy, in the statute. Given that the FAAAA preserves a state’s regulatory authority with respect to both motor vehicles and the imposition of route controls based on the vehicle or cargo, having a specific safety carveout (as sought out by Montgomery) would be unnecessary. Barrett replied that the alleged overlap exists regardless of how the disputed phrase is defined, also noting that “the provisions can be harmonized: A State’s choice to impose route controls or weight limits may serve ends other than safety.”Third, the company pointed to the structural oddity of a separate FAAAA subsection which fully preempts state regulation of brokers for intrastate shipping but contains no safety exception. Why, they asked, would Congress shield brokers from state oversight for in-state trips but not interstate ones? On this, Barrett conceded that while “[i]t is not obvious why Congress included a safety exception” in one subsection but not the other, “it would be even odder to say that the alleged tort—the negligent hiring of an unsafe motor carrier whose truck caused injury—is not an exercise of ‘the safety regulatory authority of a State with respect to motor vehicles’” under the relevant provision. That text “controls,” Barrett explained. “Better to live with the mystery than to rewrite the statute.”Justice Brett Kavanaugh, joined by Justice Samuel Alito, concurred separately to note that the case was “closer than the Court’s opinion perhaps might suggest.” Kavanaugh walked through the competing arguments at length, acknowledging that the statute’s insurance provisions and its intrastate preemption clause both cut in the company’s favor. However, he noted, he found the overall architecture of the statute decisive, since Congress in 1994 was pursuing economic deregulation of trucking, not safety deregulation. Kavanaugh also stressed that the ruling should not be understood as opening brokers to routine liability. Brokers that act reasonably and select reputable carriers “should be able to successfully defend against state tort suits,” he emphasized.Read more

During oral argument last month in Mullin v. Doe, attorney Geoffrey Pipoly said something I won’t repeat to my kids. The remark came when Pipoly, who represents Haitian nationals challenging the Trump administration’s effort to revoke their deportation protections, highlighted President Donald Trump’s past comments on Haiti. The president, Pipoly said, has shown “bare dislike of Haitians” and called Haiti a “shithole country.”Pipoly was not randomly swearing, of course. He was repeating Trump’s own words. Still, I was intrigued by his decision to say them, especially after Justice Sonia Sotomayor had chosen to say “s-hole country” earlier in the argument when referencing the same quote.For the rest of the discussion – and for days after it ended – I wondered about the courtroom protocol on swearing and how much of what happens before the justices can be explained by formal courtroom rules. Earlier this week, I finally had time to dig deeper, and discovered the court’s Guide for Counsel, which outlines dos and don’ts for the attorneys who argue before the Supreme Court.While the guide is meant for people who participate in oral arguments – not those who merely observe them – I found that it serves both audiences well. What’s more, it explains what the court is hoping to accomplish during an argument and gives a sense of how the court sees itself as an institution.So here’s a brief overview of what I learned from the court’s Guide for Counsel about swearing, taking selfies, and the types of answers the justices like best.On addressing the justicesUnder the present practice, “Mr.” is only used in addressing the Chief Justice. Others are referred to as “Justice Thomas,” “Justice Kagan,” or “Your Honor.” Do not use the title “Judge.” (Guide for Counsel, pg. 5)Allow me to begin with an obvious point: a Supreme Court argument is not a casual affair. The justices wear black robes, the attorneys are to wear “conservative business dress in traditional dark colors,” and no one is to be referred to by their first name.In fact, as the Guide for Counsel makes clear, attorneys should only use a few specific titles to refer to the justices: Mr. Chief Justice for Chief Justice John Roberts and “Your Honor” or “Justice [Last Name]” for the rest.Longtime court followers may recall that it was once common for attorneys to mix up Justices Sandra Day O’Connor and Ruth Bader Ginsburg, the first two women on the court. The guide includes some advice for attorneys who risk making such an error: “If you are in doubt about the name of a Justice who is addressing you, it is better to use ‘Your Honor’ than to address the Justice by another Justice’s name.”As you might imagine, these formal titles sometimes trip up attorneys, but in my memory, the justices rarely dwell on such mistakes. For example, during the Mullin argument, Pipoly stumbled at the beginning of a response to Roberts, saying “Justice – Chief Justice – Mr. Chief Justice. My apologies.” “Whatever,” Roberts replied.On navigating interruptionsNever interrupt a Justice who is addressing you. … If you are speaking and a Justice interrupts you, cease talking immediately and listen. (Guide for Counsel, pg. 9)Roberts is less accepting of other norm violations, including when attorneys fail to heed the court’s guidance on interruptions. While justices can – and regularly do – cut off counsel mid-answer, attorneys are not to interject when a justice is speaking.Instead, according to the guide, an attorney is to give their “full time and attention” to a justice raising a question (“do not look down at your notes, and do not look at your watch or at the clock located high on the wall behind the Justices”) and is not to begin responding until the justice is finished speaking. The attorney also must “cease talking immediately and listen” when a justice interrupts them, even if that means leaving a sentence unfinished.Roberts appeared to enforce this rule during the oral argument in January in Trump v. Cook, a case on whether Trump can fire Lisa Cook, a member of the Federal Reserve’s Board of Governors, while Cook’s challenge to her removal plays out. After U.S. Solicitor General D. John Sauer spoke over Justice Ketanji Brown Jackson, Roberts cut in to say “Counsel – please allow the justice …,” prompting Sauer to say “I’m sorry.” (But don’t take this apology to mean that Sauer is done interrupting – he’s become known for being slow to cede the floor despite Roberts’ strict enforcement of this provision.)On answering questionsMake every effort to answer questions directly. If at all possible, say “yes” or “no,” and then expand upon your answer if you wish. If you do not know the answer, say so. (Guide for Counsel, pg. 11)Perhaps because interruptions are common, the guide advises attorneys to offer clear, direct answers, to respond with “yes” or “no” whenever possible, and to “[b]e prepared to skip over much of your planned argument and stress your strongest points.” It also instructs them not to “stonewall” when a justice “makes a point that is adverse to” their position, and to, instead, “concede the point” or explain why it does not lose them the case.I can think of several times during recent arguments when justices called out an attorney for failing to directly answer a question, often because they launched into a lengthy preamble rather than facing the question head on. For example, in Chatrie v. United States, a case on whether geofence warrants violate the Fourth Amendment, Justice Neil Gorsuch expressed frustration when an attorney failed to offer a clear “yes” or “no.” “I just want an answer to my hypotheticals,” Gorsuch said.As to the final part of the quote I included above, attorneys do seem to be willing (at least occasionally) to admit when they can’t answer a question. As I read through this term’s transcripts while working on this article, I found several instances when an attorney said some variation of “I don’t know.” Perhaps most notably, in the birthright citizenship case, Trump v. Barbara, Sauer acknowledged his uncertainty when Gorsuch asked if tribal members are birthright citizens. “I’m not sure,” Sauer said. “I have to think that through.”On cracking jokesAttempts at humor usually fall flat. The same is true of attempts at familiarity. (Guide for Counsel, pg. 10)In addition to advising attorneys to stick to direct answers, the Guide for Counsel recommends against getting too cute. Attorneys, the guide explains, shouldn’t try to crack jokes or win points with the justices by treating them like old buddies.As subscribers to our SCOTUStoday newsletter already know, that doesn’t mean that Supreme Court oral arguments are humorless affairs. In the newsletter, we regularly highlight funny moments from the courtroom. But most of them feature jokes from the justices, not attorneys.When an attorney does get a laugh, it’s typically not because they chased one, but, instead, because they acknowledged losing their train of thought or said something unexpected. The biggest exception is Lisa Blatt, a prominent Supreme Court advocate who is known for pushing the envelope with her argument style. Blatt appears to relish opportunities to make a funny observation, such as in T.M. v. University of Maryland Medical System Corp., a case on the relationship between state and federal courts, when she predicted what the court wouldn’t do.“… [S]o no, you’re not going to overrule [the Rooker-Feldman doctrine]. I mean, sorry, I don’t think you’re going to do that,” she said. “Not in an April case. Not happening.” Justice Samuel Alito elicited further laughter with his response: “Don’t – don’t dare my colleagues.”Paul Clement also stands out for being willing to engage in more casual banter. During the Cook argument, for example, he used the phrase “full Taft” three times to refer to President William Howard Taft’s approach to removing officials.Comments like these may make portions of the argument more memorable to the justices, but that certainly doesn’t mean all attorneys should ignore the guide’s advice on humor. To go “full Blatt” or “full Clement” – if you’re not Blatt or Clement – is to risk annoying or even insulting them.On celebrating the occasionThe quill pens at counsel table are gifts to you—a souvenir of your having argued before the highest Court in the land. Take them with you. (Guide for Counsel, pg. 4)An opportunity to argue before the Supreme Court is a big deal, but attorneys are a bit limited in how they can mark the occasion. As the Guide for Counsel notes, they can’t invite everyone they know to watch them in action (“The Marshal, depending on available space, will endeavor to accommodate as many of your guests as possible—not exceeding six spaces per side.”) and they also can’t take a selfie or pose for pictures at the podium (“No personal computers, cellular phones, cameras, or other electronic/wireless devices are allowed in the Courtroom”).But attorneys do get to bring home a unique souvenir: quill pens. These items, featuring white goose feathers, sit on the counsel table and serve as a callback “to the early 1800s, when Chief Justice John Marshall provided lawyers with quill pens and inkwells to take notes.” In 2017, the ABA Journal investigated what modern attorneys do with these pens and noted that Blatt, at least at that time, displayed all of hers in her office; others framed theirs and passed them down to their kids.So what about swearing?Avoid emotional oration and loud, impassioned pleas. (Guide for Counsel, pg. 10)Let us end where we began: with swearing. I discovered the Supreme Court’s Guide for Counsel when trying to determine whether attorneys can curse during oral arguments, but it didn’t actually answer my question. The resource says nothing about using profanity, although it does advise against being too “emotional” or “impassioned.”To perhaps state the obvious, I think it’s fair to conclude that attorneys shouldn’t typically involve swear words in their argument, but that they can curse when repeating a direct quote – as Pipoly did – or when swear words are core to the case, such as in trademark disputes or cases on FCC regulations.One case of particular note: In 1971’s Cohen v. California, Chief Justice Warren Burger discouraged swearing in a comment to the attorney arguing on behalf of a man who was convicted for “disturbing the peace by wearing a jacket that said ‘Fuck the Draft.’” “I might suggest to you that, as in most cases, the Court’s thoroughly familiar with the factual setting of this case, and it won’t be necessary for you, I’m sure, to dwell on the facts,” Burger said. But the attorney, Melville Nimmer, repeated the phrase anyway – and ultimately prevailed in the case. As Justice John Marshall Harlan II wrote in the majority opinion, “while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric.”Read more