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Thursday, March 01, 2007
Argument Recap: Winkelman v. Parma City School District on 2/27
01:20 PM | Jason Harrow | Comments (0)
The following argument recap is by Molly Cutler of the Stanford Supreme Court Litigation Clinic. Her preview of this case is here.
On Tuesday, the Court heard argument in Winkelman v. Parma City School District, considering whether the non-lawyer parents of a disabled child can appear pro se in federal court either on their own behalf or on behalf of their child in a lawsuit under the Individuals with Disabilities Education Act (IDEA).
For petitioners, Jean-Claude Andre of Los Angeles first argued for a broad rule that parents are real parties in interest in IDEA suits regardless whether the claims being asserted are challenges to the school district’s individualized education plan (IEP) for the child or are claims for reimbursement of private school tuition or for denial of procedural guarantees ensured to parents by IDEA. Justice Scalia appeared skeptical of this broad formulation. He asked what parents would be able to get from suing, if not reimbursement or procedural guarantees, and emphasized that the education is guaranteed by statute to the child, not to his parents. Andre conceded that petitioners are seeking reimbursement of tuition, not challenging Jacob’s IEP, and therefore could prevail even if the Court adopted Justice Scalia’s narrower formulation. Chief Justice Roberts also challenged the broadest of Andre’s claims and appeared to agree with Justice Scalia that parents may be “parties aggrieved” only with respect to reimbursement and procedural rights. Justice Ginsburg then seemed to move the argument in a somewhat different direction with a question about the significance of the fact that the statute clearly states that parents are aggrieved parties for purposes of the administrative process, but is silent about whether they can proceed without counsel in court. Andre responded that as long as parents are parties aggrieved, they have the right to litigate their own cases under 28 U.S.C. 1654, returning to the issue of when the parents are real parties in interest.
Continue reading "Argument Recap: Winkelman v. Parma City School District on 2/27" »
Analysis: Government seeks narrow review on detainees
01:14 PM | Lyle Denniston | Comments (0)
The Bush Administration on Thursday urged the Supreme Court not to speed up its review of the case of Salim Ahmed Hamdan and, in making its argument, appeared to be suggesting that the Court's review of any detainee cases this Term be limited to the issues resolved by the D.C. Circuit Court. If the Court were to agree to this approach, there would be no prompt review of any detainees' attempt to regain the power to challenge coming war crimes trials before military "commissions." All that would be before the Court would be detainees' plea for the right to pursue challenges to their detention as "enemy combatants."
The filing by the Solicitor General can be found here. While its specific plea is that the Court deny a motion to expedite the combined appeal of Hamdan and another detainee, Omar Khadr, the government's opposition includes comments that leave little doubt it wants any military "commission" challenges to go first through the D.C. Circuit, and only after trials have been held and guilty verdicts reached.
At this stage in the Supreme Court, the legality of detentions at the military prison camp at Guantanamo Bay, Cuba, and the legality of the war crimes trial commissions, are not before the Court. All that is at issue now in the combined Hamdan/Khadr petition (06-1169) is whether these two detainees can regain a right to pursue habeas challenges to the commission system; they ultimately want the courts to bar any trial before such commissions. Thus, they want to make their case before any such trial starts.
The government, on the other hand, belives that Congress has validly taken away any right of any detainee facing a commission trial to file a habeas challenge, leaving them the single option of challenging a final commission conviction before the D.C. Circuit.
The choice between those two positions is what is at stake in the Hamdan/Khadr petition. But, for the Court to consider those positions, it would have to agreed to hear that petition -- this Term or next. A denial of expedition would almost certainly put that off until next Term, assuming the Court does not deny review at all.
Most of these considerations were in the background as the Hamdan/Khadr move for expedition was filed on Tuesday. And they are also in the background of the government's opposition to that motion.
The Court is scheduled to take up the plea to expedite the combined Hamdan/Khadr petition at its Conference on Friday. If the motion to expedite is denied, that would not bar the Court from considering the petition, but perhaps not during the current Term. But the Solicitor General's filing contains very clear hints that, when the petition did come up for grant or denial, it will urge a denial.
A Few Lingering Thoughts On Sinochem International (argued Jan. 9)
10:30 AM | David Stras | Comments (0)
For my Supreme Court Seminar, I assign four merits cases for the class to review, argue and decide. This semester, one of those cases is Sinochem International v. Malaysia International Shipping, which was argued on Tuesday, January 9. As you may recall, Sinochem involves the question of whether a district court can dismiss a case on forum non conveniens grounds before making a final decision on personal and subject matter jurisdiction. In this case, the district court found subject matter jurisdiction, but ordered further discovery on whether the court possessed personal jurisdiction over petitioner. Instead of ordering such discovery, however, the court dismissed on forum non conveniens grounds, finding essentially that the Chinese court was a more convenient and competent forum.
As someone who teaches federal courts, this case has garnered my interest. The arguments of both parties were rightly focused on the question of whether forum non conveniens is a merits or non-merits basis for dismissal. The Solicitor General filed a brief in support of petitioner, highlighting that the Court in the past has held that issues such as venue and abstention can be decided in advance of formal jurisdictional questions. In reading the respondent's brief, I found it very odd that it did not try to argue by analogy, instead repeatedly asserting that jurisdiction is a threshold issue that must be decided before anything else. Indeed, the respondents even seemed to concede at one point that the doctrine of forum non conveniens, while tied up with the merits, is a non-merits basis for decision.
One analogy that immediately sprung to mind was Saucier v. Katz, in which the Court held that courts must first decide whether a constitutional violation has occurred before moving on to the second question of whether qualified immunity is available. In many cases, proceeding to the second question would be far more efficient, and would permit the lower courts to avoid direct confrontation with difficult constitutional questions. Yet the Court held that qualified immunity is a two-step sequential inquiry. While the policies are no doubt different, the petitioner in Sinochem argued that courts should be able to dismiss on forum non conveniens grounds because it is quicker and often more efficient, and would permit courts to avoid the difficult constitutional questions tied up with personal jurisdiction. The respondents could have, but did not, argue in response that Saucier demonstrates that the more efficient route for dismissal of a case is not always the correct doctrinal one. It seems to me that the rationale is especially strong in the case of jurisdiction, where the Court has repeatedly held that jurisdiction is a threshold inquiry. I am by no means arguing that it would have been a winning argument, but it sure seems to me that it would have made the respondent's claim much stronger. However, maybe I am missing something here because I read little beyond the briefs and the lower court opinion.
New Filing in Dayton
10:07 AM | Jason Harrow | Comments (0)
On Tuesday, this Appellant's Brief and this Joint Appendix were filed in the case of Office of Senator Mark Dayton v. Hanson. Jean Manning, the Senate Chief Counsel for Employment, is counsel of record, and with her on the brief are Toby Hyman, Claudia Kostel, and Dawn Bennett-Ingold, all with her office. Several attorneys at Akin Gump also consulted in the drafting of the brief.
The case is set for oral argument on April 24; the questions presented are after the jump.
Continue reading "New Filing in Dayton" »
More on Supreme Court Law Clerks
10:00 AM | David Stras | Comments (0)
Bo Rutledge, a friend of mine and fellow former law clerk for Justice Thomas, has posted on SSRN a book review entitled "Clerks," which is forthcoming in the University of Chicago Law Review, see here. Like my review essay highlighted on SCOTUSblog several weeks ago, Bo reviews "Courtiers of the Marble Palace" by Todd Peppers and "Sorcerers' Apprentices" by Artemus Ward and David Weiden, both of which analyze Supreme Court law clerks. Bo takes a slightly different tact than I do with his piece, analyzing the strengths and weaknesses of the two books using the framework of the "new institutionalist" model advanced by political scientists. He points out a number of flaws in their research, and sets forth some thoughts on possibilities for future research.
Like I did, Bo found the two books sorely lacking in prescriptive suggestions for the Court, particularly as to their use of law clerks. Perhaps the authors are simply waiting to set forth such suggestions in future research, but their absence is particularly noteworthy. Interestingly, Bo suggests that perhaps the Court should move to a bifurcated model where some of the clerks have permanent appointments and work for the entire Court, while other clerks work only for individual Justices. Although he takes no normative position on the cert pool, Bo suggests that having permanent clerks take over the role of gatekeepers could ameliorate or even eliminate some of the perverse incentives of the pool. Indeed, his reform proposal logically follows from my finding that the cert pool is considerably more stingy than the Court as a whole with respect to the disposition of petitions for certiorari. Although I do not agree with every aspect of Bo's book review, I think it is well worth reading, and I suggest giving some consideration to his ideas about reform of the cert pool and the clerkship institution.
UPDATE: I will post the final page proof version of my review essay next week, but one reader asked about my original post, which is available here.
Today at the Supreme Court: 3/1/07
09:23 AM | Jason Harrow | Comments (0)
No oral arguments are scheduled and no non-capital orders or opinions are expected to be issued today.
Round-Up on Habeas-Stripping at GTMO
09:19 AM | Marty Lederman | Comments (0)
[Cross-posted at Balkinization.]
After I wrote my preliminary reactions post the morning the Boumediene case was issued, I was surprised there was not more discussion of this landmark case on the Net. Well, the trickle has now become a torrent, and it will only increase now that the case is in the Supreme Court.
Of course, Lyle has written extensively here about the Hamdan motion to expedite and petition for cert. before judgment. The case has been docketed as No. 06-1169, and the Court will consider Hamdan's motion to expedite consideration of the petition tomorrow morning.
Most of the Internet discussion on the substance of the D.C. Circuit decision has centered on the primary question that Judge Randolph's opinion discussed -- whether there are any pre-1789 British analogies to the aliens being detained at Guantanamo and, if so, what those precedents show about whether such aliens would have been entitled to petition for a writ of habeas corpus as of 1789.
Here's Jonathan Hafetz (al-Marri's counsel in the CTA4 proceedings), on Balkinization. Pete Shindel has a post focusing especially on the cases from India cited in Judge Rogers's dissent. Pete relies heavily on this superlative amicus brief filed by legal historians in the Rasul case in the October 2003 Term. [Disclosure: The principal attorney on that brief is my colleague, the legal historian Jim Oldham.] I also highly recommend, on the same historical question, Part II of the Argument in this brief filed in the al-Marri case by Gerry Neuman, Harold Koh and Sarah Cleveland.
In this post, Andrew Kent takes a different view -- that "the better reading of the available historical materials suggests that the common law English writ would not have been available to aliens, especially enemy combatants or prisoners of war, in foreign territory outside the dominions of the British Crown." Kent concedes, however, that "that conclusion is not free from doubt, given the paucity and opacity of the English sources" -- "the English (and American) cases discussing these issues are few, and the case reports brief and sketchy, making it difficult to say with certainty exactly what English law was[, and] more generally, it is a mistake to think that British “constitutional” law – made up of an uncertain amalgam of statutes, customs, practices, judicial decisions, and theories drawn from famous historical episodes – had wholly fixed and knowable content. . . . Certainly the few English cases do not definitively resolve the issues and tell us the exact content of the common law writ in 1789. And the translation of all of this to the American context is quite difficult." Based on an article of his in the Georgetown Law Journal, Kent proposes that the question is better answered by reference to the "text, structure and original eighteenth century meaning of the Suspension Clause and the larger Constitution of which it is an integral part." Based on that analysis, Kent takes a narrow view of the Constitution's protection of habeas rights for aliens, but even under his test, "there’s a reasonable but not overwhelming case to be made that . . . Guantanamo would be U.S. territory and the writ would be available."
In comments to Kent's post, David Jenkins stresses that the Randolph opinion's British history is woefully uninformed. And Gerry Neuman writes this:
Andrew Kent's analysis raises two red herrings that need to be steadfastly resisted. One, noted by Peter Spiro, is the claim that eighteenth century history tells us something about the territorial scope of the Constitution with regard to aliens. The fundamental defect with this argument is that it ignores the fact that prior to the twentienth century the Constitution was regarded as territorially limited even with regard to citizens. Of course, citizens can also raise national security and law enforcement concerns abroad. If early practice is no longer controlling with regard to citizens, then it does not tell us what to do about aliens.
The second is the fallacy that the choice is between a Suspension Clause that protects the writ "as it existed" in 1789, and an evolving Suspension Clause that protects the writ "as it existed" as of some later date. This is an absurdly limited statement of the possibilities. No other constitutional provision is interpreted that way. The Suspension Clause should be interpreted using history as a source of insight into its purpose, and evolving understandings of the relationship between the writ and the rest of an evolving constitutional system to determine which later developments are of constitutional dimension. The false dichotomy presented by Justice Scalia in his dissent in St. Cyr is merely an effort at distraction.Michael Dorf's reaction is similar to Gerry Neuman's. He questions the Randolph opinion's history, but then emphasizes that even if the closest analogues in pre-1789 British law would not point to habeas rights for these detainees, that would hardly be the end of the question:
As I wrote in my original post, I think that if and when the Supreme Court decides the question, it will hold that the GTMO aliens have constitutional habeas rights -- Justice Kennedy's opinions in Rasul and Verdugo-Urquidez strongly suggest as much. Therefore, the outcome of the case will likely turn on the other prong of the government's argument, which is the claim that the D.C. Circuit review of CSRT and military commission decisions is an adequate substitute for habeas. (Head's up to bloggers: We could use more analysis of that question. It's quite surprising that Judge Randolph did not reach it, since he must have known that his habeas holding would likely not withstand review in the SCOTUS, and because Judge Rogers made such a strong case in dissent that D.C. Circuit review is not an adequate substitute for habeas.)Nor should that be surprising, for many constitutional provisions mean something different today from what they meant when they were was first adopted. Modern conceptions of free speech, equal protection, interstate commerce, and a host of other constitutional provisions reflect both changed circumstances and changed values. While the text and original understanding of the Constitution are almost always the starting point for analysis of the meaning of any constitutional provision, they are rarely the end point.
Perhaps the distinction between U.S. (or British) territory and foreign territory once made sense as a means of parceling out the jurisdiction of Eighteenth Century courts, but given modern methods of transportation and communication, it makes little sense today. Accordingly, there is no good reason to limit the scope of habeas--absent its valid suspension--to persons held within the borders of the United States or its territories. Yet the Boumediene majority treats the scope of the writ in 1789 as reflecting the full modern understanding.
Those who favor reading the Constitution to mean exactly what it was generally understood to mean at its adoption frequently complain that, if judges depart from the original understanding, then they have no fixed standard by which to ascertain constitutional meaning. The charge, however, is doubly misleading.
First, as the disagreement in Boumediene itself illustrates, discerning guidance for modern controversies from Eighteenth Century sources that were contested even in their day, is hardly a determinate exercise that leads to a single incontrovertible result. Second, one can find functional guideposts for modern understandings that also effectively constrain conscientious judges' decisionmaking.
With respect to the Suspension Clause, we might begin with the core function of habeas--to prevent arbitrary deprivations of liberty--and the exigencies of warfare. Justice Kennedy zeroed in on these two factors in a separate opinion in the Rasul case. He wrote: "Perhaps, where detainees are taken from a zone of hostilities, detention without proceedings or trial would be justified by military necessity for a matter of weeks; but as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker."
And in the Hamdan petition itself, my colleague Neal Katyal has a terrific summary of the case against Judge Randolph's history (pages 13-14); and I especially recommend the petition's discussion of why Eisentrager is not controlling on the question (pages 15-18). The petition also addresses the adequacy of the D.C. circuit review (pages 21-23).
Wednesday, February 28, 2007
Round-Up
04:38 PM | Gretchen Sund | Comments (0)
The AP's Mark Sherman reports here on the Court's unanimous decision today in Worton v. Bockting, holding that a cross-examination rule is not retroactive; Jeannie Shawl of the Jurist has this post; the Volokh Conspiracy's Orin Kerr has this post; at Sentencing Law & Policy, Doug Berman weighs in here.
David G. Savage of the LA Times has this article on today's argument in Hein v. Freedom From Religion Foundation; AP writer Frederic J. Frommer reports here; Greg Stohr of Bloomberg has this recap. In the USA Today, Joan Biskupic has this preview of the case.
In today's New York Times, Linda Greenhouse has this article on yesterday's argument in Winkelman.
At Law.com, Dahlia Lithwick reports here for the New American Lawyer about the justices' increased media exposure.
Columnist Derrick Z. Jackson has this editorial on the Claiborne sentencing case in today's Boston Globe (via How Appealing).
Finally, AP writer Mark Sherman also has this report on Guantanamo detainees' request for an expedited ruling from the Supreme Court.
Analysis: "Flast" lives, but in what form?
03:27 PM | Lyle Denniston | Comments (1)
Federal taxpayers who contend that the government is using their money to promote religion probably can still gather outside the federal courts, and go in with lawsuits to challenge that spending. But it may well be harder for them to win once they get inside the courthouse, or so it seemed after the Supreme Court on Wednesday went through an hour of oral argument in Hein v. Freedom from Religion Foundation (06-157).
Only at the very end of the argument, with Solicitor General Paul D. Clement at the podium, was it even intimated that the Court should consider throwing out entirely the four-decades-old precedent in Flast v. Cohen, the key ruling that authorized taxpayer lawsuits to curb federal spending that promotes religion despite a general ban on taxpayer claims of improper government spending. Clement said that, if it came down to sticking with Flast's "logic" or sticking with constitutional limits on access to the couorts, "I think it's an easy choice. You don't abandon the basic requirements of Article III that distinguish the Judiciary from the political branches of government."
No Justice, however, appeared to have thought that was the only choice the Court would have in deciding the Hein case -- a case testing whether taxpayers, in their role only as taxpayers, should be allowed to sue the White House for setting up regional "faith-based" conferences that allegedly give religious organizations the idea that they will be more favored than secular groups in getting federal funds for their social programs.
But the tenor of the argument perhaps did justify some worry for Clement about where the Court might be heading, assuming Flast stays on the books. There appeared to be no clearcut support on the bench for leaving the Executive Branch entirely free from taxpayer lawsuits claiming misuse of public funds to aid religion (although Chief Justice John G. Roberts, Jr., at times seemed tempted by such a total exemption, since there might be other ways to bring a lawsuit than through a taxpayer's challenge).
Continue reading "Analysis: "Flast" lives, but in what form?" »
Today's Transcript
02:32 PM | Jason Harrow | Comments (0)
The transcript in Hein v. Freedom From Religion Foundation, Inc. is now available here.
Early look at detainee motion
01:31 PM | Lyle Denniston | Comments (0)
The Supreme Court will take up at its Friday Conference a plea by two Guantanamo Bay detainees to consider their appeal on an expedited basis, according to the Court's electronic docket. The combined petition of Salim Ahmed Hamdan and Omar Khadr has been docketed as 06-1169 (Hamdan, et al., v. Gates, et al.)
Under the Court's normal schedule, a response by the government to the petition for review would not be due until March 29.
If the Court does agree to expedite the case, and the federal government responds by March 21 to the petition, as Hamdan and Khadr's lawyers have suggested, the Court will be asked to consider this and other coming appeals in detainee cases together at its scheduled Conference on March 30.
Crawford ruling not retroactive
11:40 AM | Lyle Denniston | Comments (0)
UPDATE to 11:45 a.m.: Today's decision in Whorton v. Bockting (05-595) can be downloaded here; it was the only opinion released by the Court.
The Supreme Court ruled unanimously on Wednesday that its major ruling on the Confrontation Clause in Crawford v. Washington is not to be applied retroactively, to cases that were final before that ruling came down on March 8, 2004.
In an opinion by Justice Samuel A. Alito, Jr., in Whorton v. Bockting (05-595), the Court found that the decision limiting out-of-court statements as criminal evidence was a new rule and was not a "watershed rule" so it does not apply to earlier cases. The Crawford decision overruled an earlier Court decision (Ohio v. Roberts, 1980), and laid down the rule that a statement made out of court by a witness who cannot or does not appear at the trial cannot be admitted in the trial unless the accused had a prior opportunity to cross-examine that witness.
Because the Court ruled against retroactivity, the individual involved in the case, Marvin Bockting of Las Vegas, will not be allowed to use the Crawford ruling to challenge in federal court his conviction in state court based on the use at his child sexual assault trial of out-of-court statements made by his six-year-old step-daughter.
The Court used a formula laid down in the 1989 decision in Teague v. Lane for deciding when a Court decision on criminal law is to be applied in federal habeas proceedings to state convictions that had become final previously. The Court did not address a separate question posed by the state of Nevada in its appeal -- that is, whether the Antiterrorism and Effective Death Penalty Act of 1996 imposing new restrictions on habeas rights does, in fact, incorporate the Teague v. Lane exceptions to non-retroactivity. Since the Court did not find either exception applied here, it had no reason to decide that issue.
Justice Alito's opinion for the Court essentially had four parts: first, it applied the Teague v. Lane mode of analysis, second, it found that Crawford created a new rule of criminal law and thus did not apply an old rule, third, it ruled that the new rule was procedural and not substantive, and, fourth, because it could not qualify as a rule that implicated the fundamental fairness and accuracy of the criminal trial, it could not be retroactive. Thus, the Crawford rule applies only to new cases or to those that were still pending on direct review when that decision came down in 2004.
The Court noted that, since Teague in 1989, it had rejected every claim that a new rule satisfied this final requirement regarding fairness and accuracy. A new rule meets that test, the Court noted, only if it is necesssary to prevent a risk of an inaccurate conviction, and only if it alters the understanding of bedrock requirements for fairness. Crawford, it found, meets neither test.
It compared the impact of that ruling on criminal trials with the one precedent that the Court has said was necessary to prevent an inaccurate conviction -- the right of a poor person facing criminal charges to a free lawyer, laid down in the 1963 decision of Gideon v. Wainwright.
"The Crawford rule is in no way comparable to the Gideon rule," Alito wrote. "The Crawford rule is much more limited in scope, and the relationship of that rule to the accuracy of the factfinding process is far less direct and profound." While it may improve accuracy of fact-finding in some cases, he added, it will not significantly do so. Alito also said that Crawford does not involve a change in the understanding of "bedrock" constitutional rights, as did the Gideon precedent.
Argument Recap: EC Term of Years of Trust v. U.S. on 2/26
11:01 AM | Jason Harrow | Comments (0)
The following argument recap is by Erik Zimmerman of the Stanford Supreme Court Litigation Clinic. His preview of this case can be found here.
On Monday, the Court heard argument in EC Term of Years Trust v. United States (No. 05-1541). The question in that case is whether a party entitled to challenge an IRS levy under § 7426 of the tax code may, after the time to challenge the levy has expired, seek a refund of the levied taxes under § 1346, which provides a general cause of action for recovering wrongfully paid taxes and has a much longer statute of limitations than § 7426. The IRS in EC Term of Years Trust levied against the property of a trust to collect taxes allegedly owed by the creators of the trust. The trust failed to bring a challenge under § 7426 within that section’s nine-month statute of limitations, so it brought a challenge under § 1346 instead. The Fifth Circuit held that § 7426 is the exclusive means for challenging a levy, and that an action could not be brought under § 1346 after § 7426’s statutory deadline had passed.
The argument in EC Term of Years lasted only 44 minutes (as opposed to the usual hour), and the justices’ questions suggested that the opinion may require a similarly short devotion of time. While individual justices showed some skepticism toward the United States’ position, the Court seemed largely to have decided to affirm the Fifth Circuit’s holding on the straightforward principle that the existence of a specific remedy under § 7426 precludes a taxpayer’s resort to the more general remedy of § 1346.
Continue reading "Argument Recap: EC Term of Years of Trust v. U.S. on 2/26" »
Today at the Supreme Court: 2/28/07
08:53 AM | Jason Harrow | Comments (0)
Beginning at 10 AM eastern, the Court is expected to release at least one opinion on the merits; we will bring you coverage as they are released. The Court will then hear one hour of oral argument in Hein v. Freedom From Religion (preview here).
A transcript should be available sometime this afternoon.
Tuesday, February 27, 2007
New battle over the Great Writ
08:41 PM | Lyle Denniston | Comments (0)
Attempting to draw the Supreme Court back into the legal side of the “war on terror,” two men being held captive by the U.S. military on Tuesday urged the Justices to restore the right to challenge their detention and criminal prosecution. Salim Ahmed Hamdan, a Yemeni national, and Omar Khadr, a Canadian national, filed a combined appeal of two lower court rulings concluding that the detainees have lost that right. The petition can be found here.
“As the War on Terror enters its sixth year,” the appeal argues, “this Court’s guidance is needed on whether the judiciary can be summarily removed from its traditional role in safeguarding liberty and preserving the balance of power.” The lower courts, it adds, have created “a legal black hole (at the Guantanamo Bay, Cuba, military prison camp) exempt from the Great Writ."
Earlier Tuesday, lawyers for these two detainees asked the Court to expedite this case so that it could be decided in the current Term. It is late enough in the Term that the case otherwise would not be heard until the Fall. That motion to expedite is discussed in this post.
The new case is Hamdan v. Gates/Khadr v. Bush, not yet assigned a docket number. The two men do not directly contest the government’s power to take them prisoner or to put them on trial for alleged war crimes; rather, at this point they are seeking the chance to go forward with such challenges in lower courts.
They claim that, if the writ of habeas corpus is not available to them, those ultimate war powers questions may never be answered for foreign nationals taken prisoner overseas and held by the U.S. military at Guantanamo Bay. They argue that they would be left with only a limited chance to have the D.C. Circuit Court review the outcomes of military detention hearings or military “commission” trials on war crimes charges, with no review of the facts behind detention or of prison conditions.
“The scope of habeas jurisdiction is a matter of profound national and international importance,” the appeal says. “The writ’s importance is at its apogee when it is the only means available to stop an illegal trial where a man’s life is at stake.” Moreover, they contend that “access to the federal courts via habeas is determinative of a further essential question: whether the political branches can circumvent the Constitution and decisions of this Court to institute criminal prosecutions before military tribunals, summary proceedings regarded with the utmost suspicion by our Founders.”
As in a wide array of other “war on terrorism” cases, including those that previously reached the Supreme Court, a central issue the Court would have to confront in this new case will be the scope and continued force of a 1950 ruling – Johnson v. Eisentrager – closing U.S. courts to German citizens convicted of war crimes and held overseas. The Eisentrager ruling has been a mainstay of Bush Administration legal arguments in many terrorism cases.
Continue reading "New battle over the Great Writ" »
Round-Up
04:10 PM | Gretchen Sund | Comments (0)
The AP has this article on today's argument in Winkelman. In the National Law Journal, Marcia Coyle reports here at Law.com on Hein v. Freedom From Religion, which will be heard before the Court tomorrow. At the Justice Talking blog, Doug Kmiec of Pepperdine Law also also has his thoughts on Hein here.
In today's Washington Post, Robert Barnes reports here on yesterday's argument in Scott v. Harris and the justices' reaction to the videotape of the police chase in question; USA Today's Joan Biskupic has this article; the AP reports here; Tony Mauro of the Legal Times has this article at Law.com; David G. Savage of the LA Times reports here; and Linda Greenhouse has this article on the case, which examines the use of deadly police force, in the New York Times.
Also in today's New York Times, Greenhouse reports here on the Court's decision not to hear the Berger sentencing case; James Vicini of Reuters has this article on the Court's refusal to hear the case; and Doug Berman continues the discussion here at the Sentencing Law and Policy.
Joseph Goldstein of the New York Sun has this article on the special education tuition appeal that the Court agreed to hear yesterday. At the First Amendment Center, Tony Mauro reports here on another case the Court agreed to hear yesterday considering the constitutionality of the Washington "Top 2" primary (via Election Law Blog).
At the WSJ.com Law Blog, Ben Winograd has this post on Jean-Claude André, the lawyer who represented the Winkelmans, parents of a 9-year-old autistic boy, at the Court this morning. Tony Mauro has this post at The BLT: The Blog of the Legal Times on Justice Breyer's newest accessory. Finally, Steve Jakubowski has this post on the Marrama decision at the Bankruptcy Litigation Blog.
UPDATE: Also at The BLT, T.R. Goldman has this post about an interview with Jan Crawford Greenburg in which she speculates on future Bush appointments to the Supreme Court, should the opportunity arise.
Today's Transcripts
02:47 PM | Jason Harrow | Comments (0)
The transcript in Winkelman is now available here.
Detainees seek quick Court ruling
12:52 PM | Lyle Denniston | Comments (0)
Two Guatanamo Bay detainees, both facing war crimes charges before U.S. military “commissions,” on Tuesday asked the Supreme Court to put their joint appeal on a fast track for decision in the current Term. The motion to expedite involves the first two rulings by federal courts on Congress’ move last year to strip the federal courts of any authority to hear habeas challenges by prisoners at the military prison camp at Guantanamo Bay, Cuba. The motion can be found here. The petition for review is expected to be filed shortly, and will be posted when it is available.
Putting the court-stripping issue before the Court in the new case are Salim Ahmed Hamdan, a Yemeni national who was the detainee in last Term’s decision in Hamdan v. Rumsfeld nullifying a White House version of new military commissions, and Omar Khadr, a Canadian national. On Feb. 2, the Pentagon notified both of them (along with an Australian, David Hicks) of new charges they will face at war crimes trials. President Bush recently authorized the startup of the new trials at the Cuba camp, but none has yet begun.
The new appeal is a combined effort by the two detainees, seeking speedy review of two separate court rulings. Hamdan is challenging a ruling last Dec. 13 by U.S. District Judge James Robertson, dismissing Hamdan’s habeas challenge and finding the federal courts lost jurisdiction over all such claims when Congress passed the Military Commissions Act of 2006 last Fall. Robertson also rejected a constitutional challenge to the Act’s court-stripping provision. Ordinarily, Hamdan’s initial appeal would go to the D.C. Circuit, but he is asking the Supreme Court to step in now to hear his case. The Court has no specific rule on how many votes among Justices it would take to bypass the Circuit Court, but the common understanding is that five Justices must support the maneuver. It would take a similar majority to expedite the case for review.
Khadr is challenging the ruling Feb. 20 by the D.C. Circuit Court, ordering the dismissal of scores of Guantanamo detainee cases in the District Courts, and finding no constitutional violation in Congress' move to scuttle those cases. Khadr was one of a sizeable number of detainees involved in two packets of cases before the D.C. Circuit.
Lawyers for other detainees are expected to file their own petition for review in the Supreme Court, within a matter of days -- that is, by no later than Monday. While Khadr is facing war crimes charges, as is Hamdan, almost all of the other detainees involved in the D.C. Circuit case have not been charged with any crime, and are seeking to challenge their continued imprisonment and their designation by the military as "enemy combatants." The Hamdan/Khadr motion argued that differences in their case from the other detainees' coming appeals make their case "logical and necessary companions to this Court's consideration" of the other detainee challenges.
The motion told the Court that, in those other detainee appeals, the detainees' lawyers and the Justice Department have agreed to have those cases expedited before the Court. The Justice Department has refused to support expedited review of Hamdan's appeal.
The new motion asks the Court to order briefing so that the government would respond to the coming appeal by March 21 -- the same schedule, according to the motion, that the two sides have agreed to follow in the other detainee cases. The cases "are so closely related" that they should be heard on the same schedule, the motion argued. The motion did not suggest a hearing date, but lawyers are hoping the Court will schedule the cases for argument in May.
Continue reading "Detainees seek quick Court ruling" »
Establishment Clause redux: Argument 2/28/07
12:12 PM | Lyle Denniston | Comments (0)
Another skirmish in America's culture war reaches the Supreme Court on Wednesday, in a case that some are trying to turn into a fundamental reexamination of the meaning of the Constitution's Establishment Clause. The Justice Department does not join in that effort, but it is advocating a bold position on its own, urging the Court to bar any taxpayer from filing any lawsuit to challenge the way the Executive Branch spends public money. These provocative maneuvers seem sure to enliven the Justices' interest as they hear Hein v. Freedom From Religion Foundation for an hour Wednesday, starting shortly after 10 a.m.
The case has the disarming appearance of being merely a controversy over "standing" -- that is, who has the right to sue in federal courts to attack what they consider a government action that injures them? And, even more narrowly, it is about "taxpayer standing" -- when can a taxpayer show enough potential injury from the use of public funds to be allowed to sue for a remedy?
But the briefs in the case have elevated it to a possible reexamination, going back to the Founding era, of the separation of powers of the national government, and what the original generation meant in barring government from "esatblishment" of religion as part of the First Amendment. Both sides invoke James Madison and Thomas Jefferson, and move on from there to canvass both antique and modern conceptions of government aid to religion.
Overhanging the case are fundamental constitutional questions about one of the most controversial of President Bush's domestic programs -- the White House's eager steering of federal funds to "faith-based organizations" to pay for their social programs. While there is no way the core constitutionality of the "faith-based initiative" will be resolved in the Hein case, the outcome could well advance -- or stifle -- the effort to raise that issue.
The case will have seasoned and respected advocates at the podium -- Solicitor General Paul Clement appearing first, representing Jay F. Hein, director of the White House Office of Faith-Based and Community Initiatives, and Andrew J. Pincus of Washington's Mayer, Brown, Rowe & Maw, representing the Freedom From Religion Foundation, Inc., a "separationist" group, and three of its members. They won in lower courts the right as taxpayers to challenge the White House's use of public funds in staging regional "faith-based" conferences to encourage religious groups to seek public funding.
The Seventh Circuit ruled in January of last year that, as long as some congressional appropriations are being used to fund conferences that are claimed to be religiously motivated, the taxpayers had a right to sue. The case has not yet gone to trial because the Solicitor General took the "taxpayer standing" issue to the Supreme Court. The Justices agreed on Dec. 1 to hear it.
Continue reading "Establishment Clause redux: Argument 2/28/07" »
Today at the Supreme Court: 2/27/07
08:58 AM | Jason Harrow | Comments (0)
Beginning at 10 AM eastern, the Court will hear one hour of oral argument in Winkelman v. Parma City School District (preview here). According to the Court's opinion line, no opinions are expected to be issued today.
A transcript should be available sometime this afternoon.
Monday, February 26, 2007
New Patent-Related Cert. Petition
11:51 PM | Jason Harrow | Comments (0)
Last week, this cert. petition (with appendix) was filed in the case of Zoltek Corp. v. U.S.; it has been docketed as 06-1155. Dean Monco of Wood Philips in Chicago is counsel of record; with him on the brief are Erik Jaffe of Erik Jaffe, P.C.; Garry Grossman of Schiff Hardin; and John Mortimer and Bert Bertoglio, also of Wood Philips.
The full question presented can be found after the jump.
Continue reading "New Patent-Related Cert. Petition" »
Argument Preview: Winkelman v. Parma City School District on 2/27
10:24 PM | Jason Harrow | Comments (0)
The following argument preview is by Molly Cutler of the Stanford Supreme Court Litigation Clinic.
On February 27, 2007, the Court will hear Winkelman v. Parma City School District, which asks whether the non-lawyer parents of a disabled child can appear pro se in federal court either on their own behalf or on behalf of the child in a lawsuit under the Individuals with Disabilities Education Act (IDEA).
Jean-Claude Andre of Los Angeles will argue on behalf of the petitioners. Assistant to the Solicitor General David Salmons will argue on behalf of the United States as amicus in support of petitioners. Pierre Bergeron of Cincinnati, Ohio will argue on behalf of the respondent school district. The parties' briefs are available here; the brief of the United States is available here.
The IDEA provides federal grants to states to assist in the education of disabled children. A state participating in the program must ensure that each child receives a “free appropriate public education,” including special education and other services necessary to meet that child’s needs, by developing an individualized education program (IEP) for each disabled child in collaboration with parents or guardians. Under the statute, parents have the right to challenge an IEP in an administrative due process hearing and a right to appeal the findings of such a hearing to the state educational agency. After exhausting administrative remedies, “any party aggrieved” by the findings of the administrative proceedings has the right to bring a civil action in federal court.
Continue reading "Argument Preview: Winkelman v. Parma City School District on 2/27" »
New Filing in Roper v. Weaver
05:00 PM | Jason Harrow | Comments (0)
Mike Small of Akin Gump's LA office is counsel of record on this newly-filed amicus brief supporting the respondent on behalf of the National Association of Criminal Defense Lawyers in the case of Roper v. Weaver (06-313). With him on the brief are Gia Kim, also of Akin Gump, and Pamela Harris of NACDL's amicus committee. The case is set for argument on March 21.
Today's Transcripts
04:50 PM | Jason Harrow | Comments (0)
The transcript in EC Term of Years Trust can be downloaded here, and Scott v. Harris can be found here.
Round-Up
03:24 PM | Gretchen Sund | Comments (0)
At Law.com, Tony Mauro of the Legal Times has this preview of the Winkelman case, which will be argued tomorrow. Ross Runkel of the Supreme Court Times Blog offers previews and predictions of this week's arguments here.
AP writer Pete Yost reports here about the Court's decision not to hear Blackwater v. Nordan. The AP also has this article on the Court's refusal to hear the Berger case, dealing with a former high school teacher's 200 year prison sentence for possessing child pornography. Mark H. Anderson of the Wall Street Journal reports here (subscription req'd) on the Court's refusal to rehear a worker immigration lawsuit filed against Mohawk Industries.
The AP reports here on the justices' decision to hear a special education tuition case and here on the decision to consider the constitutionality of the Washington "Top 2" primary system. Rick Hasen has this post regarding the Washington state primary case at Election Law Blog. Kent Scheidegger of Crime & Consequences reports here on the Court's decision to grant certiorari in Watson v. United States. The AP also has this summary of the Supreme Court's latest actions.
Mark Sherman of the Associated Press has this preview of the high-speed chase case, Scott v. Harris, heard before the court today; Warren Richey of the Christian Science Monitor reports here. Last night, ABC News correspondent Jan Crawford Greenburg had this video segment on World News Tonight (via How Appealing).
Finally, Paul Secunda of Workplace Prof Blog has this update on the ERISA remedies case, LaRue v. DeWolff, Boberg, and Assoc. Howard Bashman weighs in on the Philip Morris decision here at Law.com and the Washington Post has this editorial on the Court's ruling.
Analysis: No consensus on high-speed chases
12:01 PM | Lyle Denniston | Comments (0)
If Supreme Court Justices in February 2007 cannot agree on how reasonable or unreasonable it is for a police officer to stop a fleeing suspect's car by ramming it from the rear at about 90 miles an hour, could a police officer in Georgia have guessed the answer in March 2001? That is a reasonable way of summing up Monday's argument in the case of Scott v. Harris (05-1631). For nearly a full hour, the Justices talked about what they had seen on a videotape of the chase under review, about the jury's understanding about what had happened, and about what prior Court precedents may say on the subject, but there was anything but a consensus on the constitutional conclusion to be drawn.
In a comment just before the hearing ended, attorney Philip W. Savrin of Atlanta concluded: "The discussion this morning if nothing else shows [the law was] not clearly established" in 2001 that the bumping by the police cruiser violated the Fourth Amendment. If the Court could agree with that, it presumably would lead to a ruling that Savrin's client, Coweta County (Ga.) Deputy Sheriff Timothy Scott could escape liability for such a violation. For Scott to be eligible for what is called "qualified immunity," the Court would have to conclude that his high-risk maneuver did not violate principles accepted at the time about the use of deadly force by police.
Throughout Sarvin's argument, and that of two other lawyers, the Justices moved back and forth between seeming assumptions that Scott did use deadly force on the night when he ended a police chase by ramming the rear of Victor Harris' car, causing a crash and serious injuries for Harris, to queries about whether a jury would have concluded, or not, that this tactic was justified. The Court seemed intimately familiar with, and interested in, the specific facts of that chase along the highways and city streets in Georgia.
Justice John Paul Stevens led the way in suggesting that what Scott did could not be interpreted as anything other than using too much force, while Justice Antonin Scalia spearheaded the argument that it was Harris who was the high-risk actor during a chase that Scalia described as "the scariest since the 'French Connection.' "
The Justices were so absorbed with the reasonableness issue -- which, of course, is the core issue on whether Scott violated the Fourth Amendment -- that they did not get to the "qualified immunity" question directly. They spent a good deal of time exploring whether there was constitutional significance in the difference between the facts in this case and those in the 1985 decision in a prior deadly force case, Tennessee v. Garner in 1985, but they did not frame it in terms of what Deputy Scott was responsible for knowing about the law six years after the Garner decision.
Their interest in what Scott knew was largely devoted to what he understood the fleeing suspect Harris had done to arouse police interest (it was a speeding violation), and whether the fact that he knew it -- or didn't know it -- would make any difference to the legal outcome.
Continue reading "Analysis: No consensus on high-speed chases" »
Court to rule on primary elections
11:53 AM | Lyle Denniston | Comments (0)
UPDATE 1:25 PM: Added cert. papers in Watson case.
The Supreme Court agreed on Monday to decide whether states may constitutionally open up their primary elections to voters of all parties, voting on a common ballot, if the candidates are identified on the ballot by party. The orders can be found here.
The consolidated cases case of Washington State Grange v. Washington Republican Party (06-713) and State of Washington v. Washington Republican Party (06-730, briefs here) will return the Court's attention to an issue it last decided in 2000 in California Democratic Party v. Jones. The specific legal question is whether a so-called "blanket primary" is truly non-partisan if candidates are allowed to identify their parties on the common ballot, and the top two winners are nominated to run in the general election.
In a second order granting review, the Court indicated it will decide whether parents of a disabled child are entitled, under federal law, to reimbursement of private school tuition if the child had not previously received any special education from the public schools system or other government agencies. The issue arises in Board of Education of New York City v. Tom F., et al. (06-637). The child involved in the case had attended private school throughout his childhood, at a school that does not have an approved special education program. The boy's parents refused to have him placed in a public school program, kept him in private school, and obtained tuition reimbursement. The city school system lost in an appeal to the Second Circuit.
The Court also agreed to decide when a gun is "used" during a drug crime, leading to a mandatory five-year sentence. The specific issue in Watson v. U.S. (06-571, petition, BIO, reply) is whether a gun is "used" if an individual trades illegal drugs for a gun. The Circuit Courts are split deeply on the issue. The appeal by a Louisiana man, Michael A. Watson, relies primarily upon a 1995 Supreme Court ruling, Bailey v. U.S.
In a separate order, the Court asked the U.S. Solicitor General to offer the federal government's views on the right of an individual taking part in a retirement plan to recover money losses in his or her pension account because of the fault of plan managers or administrators. The issue arises in retirement plans set up as defined contribution plans. The Labor Department has joined in cases in lower courts, urging resolution of a conflict on the question. The new case is LaRue v. DeWolff, Boberg & Associates (06-856, documents here).
Here, in summary, are some of the issues raised in cases that the Court on Monday refused to hear:
** Whether it is unconstitutional to impose a criminal sentence that runs for decades -- 200 years, in this instance -- because each count is sentenced separately and each sentence must be served consecutively. The case of Berger v. Arizona (06-349) involved a 200-year sentence based on 20 counts of possessing child pornography.Continue reading "Court to rule on primary elections" »
Today's Orders
10:08 AM | Jason Harrow | Comments (0)
The orders are here.
The grants are 06-571, Watson v. US, 06-637, NY Board of Education v. Tom F., and 06-713/730, Washington State Grange v. Wash. State Republican Party/Washington v. Washington State Republican Party (documents here).
Today at the Supreme Court: 2/26/07
08:54 AM | Jason Harrow | Comments (0)
The Court returns to the bench today at 10 AM eastern. At that time, the Court will first release an Orders List relating to its Conference of 2/23; we will bring you coverage of that as soon as it is released.
The Court will then hear one hour of oral argument in EC Term of Years Trust v. U.S. (UPDATE: preview here) followed by one hour of argument in Scott v. Harris (preview here).
Transcripts should be available sometime this afternoon.
Argument Preview: EC Term of Years Trust v. United States on 2/26
08:50 AM | Jason Harrow | Comments (0)
The following argument preview is by Erik Zimmerman of the Stanford Supreme Court Litigation Clinic.
On Monday, the Court will consider the interplay between two distinct methods for recouping taxes collected by the Internal Revenue Service. The question presented in EC Term of Years Trust v. United States (No. 05-1541) is whether a party entitled to challenge an IRS levy under one provision of the tax code may, after the time to challenge the levy has expired, seek a refund of the levied taxes under a different section the code, which provides a general cause of action for recovering wrongfully paid taxes and has a much longer statute of limitations.
Francis S. Ainsa, Jr. of El Paso, Texas will argue on behalf of the petitioner, EC Term of Years Trust. Deanne E. Maynard, Assistant to the Solicitor General, will argue on behalf of the respondent, the United States.
When the IRS levies on property as payment for taxes, 26 U.S.C. § 7426 allows a third party who claims an interest in that property to challenge the levy in federal district court. Under the statute, the third party’s challenge must be brought within ninety days of the date of the levy. 28 U.S.C. § 1346 provides a more general procedure for seeking tax refunds in federal court. A taxpayer must commence a suit for a refund under § 1346 within two years of the date that the tax was paid (or possibly longer, depending on certain conditions).
Continue reading "Argument Preview: EC Term of Years Trust v. United States on 2/26" »
Sunday, February 25, 2007
The Curious Decline in Paid Petitions for Certiorari
05:02 PM | David Stras | Comments (2)
A number of recent newspaper articles have examined the decline in the Supreme Court's plenary docket. These articles were prompted by the fact that a number of argument slots in the February and March calendars went unfilled, and the Court compensated by overloading its April docket. Speculation abounds about the reasons for the Court's shrunken docket, ranging from greater homogeneity in the United States Court of Appeals to the elimination of the Court mandatory appellate jurisdiction in 1988. Many of the reasons appearing in recent newspaper articles, however, lack any empirical support at all and others are just plain wrong. One that strikes me as particularly incorrect is the desire of the Justices to remain out of the public eye.
I am currently working on an empirical article that looks into this issue in great depth, using figures ranging from the historical caseload statistics from the Solicitor General's office to the number of grant and join-3 votes per Justice through the 1986-1993 period. By virtually every measure conceivable, the Court's workload has declined, and has done so significantly. Some Justices have said that there has been no conscious decision by members of the Court to hear fewer cases. There may be more truth to this assertion than some believe.
Paid petitions for certiorari have been, by far, the greatest source of cases for the Court's plenary docket. Very few in forma pauperis petitions are granted each year, even though they make up the largest portion of the Court's certiorari docket. Throughout the 1980s and early 1990s, the number of paid petitions filed with the Court ranged from 1,986 petitions in 1990 to 2,417 petitions in 1981. However, beginning in 1994, or at about the time of greatest decline in the Court's plenary docket, the number of paid petitions began to plummet, with only 1,693 paid petitions filed during October Term 2004, a nearly 22% decrease since 1994. Based on the testimony of Justice Kennedy before the Judiciary Committee a couple of weeks ago, the Justices would probably argue that there have been fewer major federal statutes enacted in recent years that lead to widespread litigation, such as the Clean Water Act and the Bankruptcy Reform Act. I am not sure, however, that the lack of "new enactments" explains a phenomenon that began nearly 13 years ago. Because this post is already a bit on the lengthy side, I will wait to give you a few of my thoughts on this issue until later this week, but suffice it to say, I do not agree with Justice Kennedy.
High-speed chases and the Constitution: Argument 2/26/07
07:05 AM | Lyle Denniston | Comments (0)
High-speed chases by police are standard fare in movies and on television, but their status under the Constitution is not finally resolved. The Supreme Court has taken on that task in the case of a police "bumping" of a fleeing suspect's car to stop it, resulting in a crash that left the driver paralyzed in both arms and both legs.
But, as is so often true in Supreme Court cases, the arguments in Scott v. Harris (05-1631), scheduled to begin at 11 a.m. Monday, could draw the Court into a host of issues of fact and law beyond a straightforward examination of Fourth Amendment principles about "seizure" by what is sometimes bureaucratically referred to as a "precision immobilization technique," or "PIT maneuver."
The Harris case reaches the Court as a "deadly force" case, with much argument in the briefs about whether high-speed police chases by their very nature are potentially "deadly" and thus should be used very sparingly -- as, some briefs suggest, is the policy now in most police departments. The underlying Fourth Amendment inquiry boils down to this: if the practice is rare because it is so risky to public safety, does its use when there might be non-lethal alternatives make it "unreasonable" -- especially when the chase is set off by a traffic violation?
The case has the potential for clarifying how a major Supreme Court precedent in 1985 on the use of "deadly force" by police in stopping fleeing suspects, Tennessee v. Garner, applies when the suspect is in a car, not on foot. In that case, the Court said that "it is not better that all felony suspects die than that they escape." The Garner case, though, involved police killing of a fleeing suspect who was not armed. Scott v. Harris could test whether the situation is different when officers use an auto-ramming technique to stop a suspect racing down highways and through city streets at 100 miles an hour.
Before the Court could reach that or any other substantive issue, however, it must first decide that the Georgia deputy sheriff who appealed the case had a right to appeal to the 11th Circuit Court and to the Supreme Court, when disputed facts remained to be resolved by a jury. Attorneys for the injured suspect, Victor Harris, argue the jurisdictional point, as does the American Civil Liberties Union as an amicus.
But the Court, even if satisfied that it has jurisdiction, may also pause before resolving the Fourth Amendment reasonableness issue. Because this case also involves a claim by the deputy sheriff that he was entitled to legal immunity, the Court has been asked to fashion a new method for judging immunity claims by police and other public officers, with less emphasis on whether a constitutional violation occurred at all. That request has been pressed fervently by 28 states and Puerto Rico, as amicisupporting the deputy.
Arguing the case on Monday for Coweta County (Ga.) Deputy Sheriff Timothy Scott will be Philip W. Sarvin of Freeman Mathis & Gary in Atlanta. He will yield 10 minutes of his half-hour to Deputy Solicitor General Gregory G. Garre, arguing the federal government's view that Scott did not violate the Fourth Amendment and, in any event, he is entitled to "qualified immunity." Representing Victor Harris will be Craig T. Jones of Edmond & Jones in Atlanta.
Continue reading "High-speed chases and the Constitution: Argument 2/26/07" »
Friday, February 23, 2007
Argument Recap: Microsoft v. AT&T on 2/21
08:59 PM | Jason Harrow | Comments (0)
The following argument recap was written by David George, an appellate lawyer at Connelly Baker Maston Wotring Jackson LLP in Houston, Texas. His preview of this case can be found here.
The Supreme Court heard argument in Microsoft Corp. v. AT&T Corp. (No. 05-1056) on Wednesday, February 21. The case involves whether Microsoft violated U.S. patent law when it shipped master disks containing Windows overseas for copying and installation on computers sold abroad. Windows, when it is installed on a computer, violates an AT&T patent. The master disks are not installed on computers that are sold. Instead, copies are made overseas from the master disks, and those copies are installed on the computers.
Ted Olson argued for Microsoft. He only got a few words out before Justice Scalia jumped in with a question. Justice Scalia asked why the case was not moot. At the trial court, Microsoft and AT&T stipulated that Windows infringes on AT&T’s patent when it supplies the master disk to U.S. manufacturers, but they disagreed on whether U.S. patent law applied to the master disks shipped overseas. They agreed that Microsoft would pay a certain amount if it wins the appeal and a different amount if AT&T wins. Justice Scalia asked whether there was really any case or controversy because the parties were just betting on the outcome of the appeal. Olson said that, while he could not identify any precedent saying the case was not moot, there was still a case or controversy because a large amount of money depended on the outcome. He also said that in criminal cases defendants plead guilty but preserve their right to appeal certain issues. Justice Kennedy said that he thought there would be a mootness problem if the money involved were trivial, and the parties just wanted a legal question answered.
Olson then turned to his main argument, saying that Microsoft did not supply components from the United States because the software actually installed on the computers was copied overseas. Justice Kennedy asked whether the master disk was a component, and Olson replied that it was not, but that the copies installed on the computers were components. Olson said that the intangible series of ones and zeros was not the component. Instead, the component was the disk containing the code that the computer can read. Justice Kennedy said that it was odd that the disk—and not the information contained on the disk—was the component. He said that “Microsoft doesn’t say please buy our disk because it’s the prettiest disk in the business. It says buy our program because the program means something.”
Continue reading "Argument Recap: Microsoft v. AT&T on 2/21" »
Round-Up
04:15 PM | Gretchen Sund | Comments (0)
The latest "Supreme Court Today" from Aaron Streett of Baker Botts, recapping this week's decisions and grants, can be found here. Eric Turkewitz weighs in on the Philip Morris decision and Justice Stevens's dissent here.
Today, the Washington Post has this editorial on the Guantanamo detainees' habeas rights. In today's Texas Observer, Anthony Zurcher has this article on the Texas death penalty cases (via How Appealing).
At Sentencing Law and Policy, Doug Berman has this post about the Berger case, which is slated for discussion at today's conference. Here, Kent Scheidegger of Crime & Consequences discusses Fry v. Pliler, which will be argued before the Court on March 20. At Volokh Conspiracy, Ilya Somin has this post entitled "Clarity v. Unanimity in Supreme Court Decisions."
Streaming video of the American Constitution Society press brief featuring various perspectives on Hein v. Freedom From Religion Foundation and its broader implications can be accessed here at the ACS website.
Here, Jess Bravin writes about Justice Breyer's upcoming appearance on NPR's "Wait, Wait ... Don't Tell Me!" at the WSJ.com Washington Wire blog.
The full set of petitioner-side briefs in NAHB v. Defenders of Wildlife, which is set for consolidated argument with EPA v. Defenders of Wildlife on April 17, can now be found here (scroll down).
Finally, Rick Hasen shares the amicus brief he co-authored in the Wisconsin Right to Life case, being heard by the Supreme Court on April 25, in this post at Election Law Blog.
Recent Filing in TSSAA v. Brentwood
10:40 AM | Kevin Russell | Comments (0)
Earlier this week, the Stanford Clinic filed this amicus brief on behalf of the National School Boards Association in support of the petitioner in Tennessee Secondary School Athletic Assoc. v. Brentwood Academy, No. 06-427. The cases raises a question regarding the First Amendment's application to rules governing recruitment of high school athletes.
Stanford students Achyut Phadke, Anitha Reddy, Steve Siger, and Brian Walker worked on the case.
Today at the Supreme Court: 2/23/07
09:12 AM | Jason Harrow | Comments (0)
The Court is holding a private Conference today to discuss new and pending cases. All orders relating to this Conference are expected to be released Monday at 10 AM eastern.
Our list of "Petitions to Watch" for this Conference can be found here.
Thursday, February 22, 2007
Guantanamo detainee plea rejected
06:58 PM | Lyle Denniston | Comments (0)
The Supreme Court on Thursday afternoon refused to order the Pentagon to provide to a Guantanamo Bay detainee, Yemeni national Sharaf Al Sanani, information on why he is being held as an "enemy combatant." The application (Al Sanani v. Bush, 06A797) had been filed with Chief Justice John G. Roberts, Jr. He referred it to the full Court, and it was then denied -- without an opinion and with no indication of any dissent.
The Justice Department had urged the Court to deny any relief to Al Sanani, and that was the effect of the Court's brief order. Here is the text of the order: "The application for an injunction requiring the production of a factual return, pursuant to 28 U.S.C. sec. 2243, pending the filing and disposition of a petition for a writ of certiorari, presented to The Chief Justice and by him referred to the Court, is denied."
Because there was no explanation, there is no way to interpret the Court's rationale, including whether it acted for its own reasons or because of some or all of the Justice Department's contentions -- including an argument that the Court should not be involved in overseeing the day to day processing in District Court of habeas matters, and an argument that the federal courts had lost jurisdiction over habeas cases under the Military Commissions Act of 2006, as the D.C. Circuit Court ruled on Tuesday in pending habeas cases. The impact of the MCA on the Supreme Court's jurisdiction will be an issue in a forthcoming appeal from the D.C. Circuit by detainees' lawyers.
Al Sanani is due to come up soon for an annual review by the military of his status as a Guantanamo prisoner, and whether he should continue to be held. His application to the Supreme Court sought details of the government's reasons for holding him, in order for his lawyer to prepare for the annual evaluation. The D.C. Circuit had denied his request for an application, and Al Sanani had told the Court that would be appealed.
Round-Up
05:21 PM | Gretchen Sund | Comments (3)
Jim Puzzanghera has this article in today's LA Times on Microsoft v. AT&T; Jess Bravin of the Wall Street Journal reports here; and in today's Washington Post, Robert Barnes and Alan Sipress report here.
At Slate, Douglas Kmiec has this piece on the Philip Morris decision; this editorial on the ruling runs in today's LA Times.
Also in the LA Times, Andrew B. Coan reports here on Hein v. Freedom From Religion Foundation, which will be argued next Wednesday, and this article discusses a Kentucky municipal bond tax case that the Court may decide to hear.
At the Bankruptcy Litigation Blog, Steve Jakubowski has this post on the Marrama decision; Todd Zywicki of Volokh Conspiracy discusses the Court's opinion here.
This month's edition of the Yale Law School Opening Argument has this debate entitled, "Is the Military Commissions Act Wise?" Additionally, this editorial (subscription req'd) in today's Wall Street Journal discusses the Supreme Court's role in reviewing this law.
Finally, Kent Scheidegger of Crime & Consequences has this post on the Court's decision in Lawrence v. Florida and this post on the decision in Wallace v. Kato.
Introductory Post
01:00 PM | David Stras | Comments (1)
I would like to thank Tom and the rest of the SCOTUSblog team for inviting me to become a full-time contributor to this blog. For those of you who don't me, I am an associate professor of law at the University of Minnesota, and my scholarly writing is largely focused on the Supreme Court, see here. As before, I hope to continue to update the readership with relevant scholarly developments and articles as well as to present commentary on issues presently impacting the Court. In addition to posting interesting pieces over the next few months, I want to continue to explore some of the changes in the Court's docket over the past two decades. I hope to have a post up next week commenting on the post-1993 decline in the number of paid petitions for certiorari filed with the Court, which is an underexplored but significant development over the past decade.
Briefs in Wilkie v. Robbins
12:59 PM | Kevin Russell | Comments (0)
UPDATE: Brief for National Wildlife Federation, et al, added.
For those who are interested, we are posting the briefs filed thus far in Wilkie v. Robbins, No. 06-219, in which we filed the Brief for the Respondent this week (see prior post describing the issues involved).
Petitioners' briefs is here. The Joint Appendix is here (the pull out map is here).
The National Wildlife Federation, et al. filed an amicus brief supporting petitioners.
Respondent's brief is here.
There are seven amicus briefs supporting respondent:
Pacific Legal Foundation, et al.
Brooks Realty and Burgett Geothermal Greenhouses, Inc.
Mountain States Legal Foundation
New Mexico Cattle Growers' Assoc., et al.
Oregon Cattlemen's Assoc. and Nevada N-6 Grazing Board
Today at the Supreme Court: 2/22/07
09:33 AM | Jason Harrow | Comments (0)
No oral arguments are scheduled and no non-capital orders or opinions are expected to be issued today.
Wednesday, February 21, 2007
Round-Up
05:42 PM | Gretchen Sund | Comments (0)
AP writer Mark Sherman has this article on the decision in Wallace v. Kato. AP writer Pete Yost reports here on the ruling in Marrama v. Citizens Bank of Massachusetts. Yost also has this report on yesterday's decision in Lawrence v. Florida.
Peter Kaplan of Reuters has this article on today's oral argument in Microsoft v. AT&T. CNET News.com's Anne Broach reports here on the patent case heard before the Supreme Court this morning. Christopher S. Rugaber has this report at Forbes.com; Ashby Jones has this post at the WSJ.com Law Blog; and Dennis Crouch reports here at Patently-O.
In today's New York Sun, Joseph Goldstein reports here on the Court's decision to grant review of New York State Board of Elections v.Torres. Linda Greenhouse has this article in the New York Times on the Court's decision to review how the state of New York selects judicial candidates.
Heather Won Tesoriero of the WSJ.com Law Blog has this post on Andrew Frey and Andrew Pincus, both attorneys at Mayer Brown who won victories in the Supreme Court yesterday.
Mark H. Anderson of MarketWatch has this article on the Court's decision yesterday in Weyerhauser. Ethan Leib of PrawfsBlawg weighs in here on the Philip Morris decision; Mark Moller of the CATO Institute has this analysis at CATO@Liberty. For more on the Philip Morris decision, Howard Bashman of How Appealing gathers reports and analysis here.
Finally, at Workplace Prof Blog Paul Secunda has this post on LaRue v. DeWolff, Boberg, and Assoc., an ERISA case that will be considered during an upcoming conference.
Lawyers say Court is not closed to detainees
03:46 PM | Lyle Denniston | Comments (0)
Lawyers for a Guantanamo Bay detainee, Sharaf Al Sanani, told the Supreme Court Wednesday that a lower court ruling closing federal courts to detainees' challenges to detention is not binding on the Supreme Court. Thus, the attorneys contended, the Court retains the power to order the Pentagon to describe why it is holding Al Sanani after more than five years of captivity at the military prison camp in Cuba.
In answering a Justice Department plea for the Court to deny all relief to Al Sanani, the Yemeni national's attorneys said that only the Supreme Court itself can determine whether it has lost jurisdiction over detainee cases under the Military Commissions Act of 2006. The D.C. Circuit Court on Tuesday relied on the MCA in ordering the dismissal of scores of habeas claims pending in District Courts in Washington, D.C.
"Until this Court reviews this split decision [by the Circuit Court] and issues the final word on the MCA..., the status quo should be preserved by granting the limited relief sought" in his plea (application 06A797; the reply brief can be found here).
The attorneys are relying upon the Supreme Court's 1947 decision in U.S. v. United Mine Workers, for their argument that the Court itself decides when it has jurisdiction when that is in dispute. The UMW decision included this quotation from a 1906 opinion by Justice Oliver Wendell Holmes, Jr.: "This court...and it alone necessarily had jurisdiction to decide whether the case was properly before it....Until its judgment declining jurisdiction should be announced, it had authority, from the necessity of the case, to make orders to preserve the existing conditions and the subject of the petition..."
The Al Sanani reply is thus a signal of one of the arguments that other detainees' lawyers will be making when they appeal the D.C. Circuit ruling to the Supreme Court soon, perhaps late next week.
The Yemeni citizen's attorneys also sought to turn part of the D.C. Circuit ruling to their advantage. The Circuit Court had declined a suggestion by the government to go ahead and review the military's rationale for holding individual detainees, through a special new procedure in the Circuit Court set up by Congress in the Detainee Treatment Act of 2005. The Circuit Court majority, the reply brief said, found that the record in the detainee cases so far "does not have sufficient information to perform the review that DTA allows." Whether detainees are seeking to test their captivity either under DTA or by habeas, the brief argued, a factual record must be developed, and that is all Al Sanani is seeking at this point.
The brief included a reminder that Al Sanani's attorneys have only until Friday of this week to make a record to oppose continued detention when he comes up for an annual military review at Guantanamo of his "enemy combatant" status. "Given the virtual absence of process and the potentially life-changing signifance of the [annual review], it is not asking too much for counsel to be provided with the basis information needed to contribute meaningfully..."
The application is pending before Chief Justice John G. Roberts, Jr., as Circuit Justice for the D.C. Circuit. Apparently he has made no decision yet whether to decide on his own, or refer the application to the full Court.
Today's Transcript
02:23 PM | Jason Harrow | Comments (0)
The transcript in Microsoft v. AT&T is available here.
New Filing in BCI Coca-Cola Bottling v. EEOC
01:07 PM | Jason Harrow | Comments (0)
Akin Gump is co-counsel on this merits brief, which was filed yesterday on behalf of the petitioner in the case of BCI Coca-Cola Bottling v. EEOC. E. Todd Presnell of Miller & Martin in Nashville is counsel of record.
The case is set for argument on April 18, and presents the following question: "Under what circumstances is an employer liable under federal anti-discrimination laws based on a subordinate's discriminatory animus, where the person(s) who actually made the adverse employment decision undisputedly harbored no discriminatory motive toward the affected employee?"
Today's Opinions
10:31 AM | Jason Harrow | Comments (0)
The decision in Wallace v. Kato, 05-1240, is here.
The decision in Marrama v. Citizens Bank of Massachusetts, 05-996, is here.
Court clarifies false arrest right to sue
10:05 AM | Lyle Denniston | Comments (1)
The Supreme Court ruled on Wednesday that an individual filing a civil rights lawsuit claiming a false arrest by police must sue within a time period that begins to run at the time of detention, not after any resulting conviction or sentence has been overturned. This requires plaintiffs to file considerably earlier than they would have preferred, and perhaps before their claim has matured or been strengthened through a successful appeal of a conviction.
Justice Antonin Scalia wrote for the majority. There were two Justices in partial dissent. The case was Wallace v. Kato (05-1240, download here). In that case, the statute of limitations for filing a civil rights claim was two years, under Illinois law.
The false arrest claim in the civil rights lawsuit by Andre Wallace of Chicago had its origin, the Court ruled, when he appeared before a magistrate after his arrest and was bound over for trial. More than two years elapsed between that date and the day he filed his lawsuit, and thus, the Court decided, the lawsuit was too late.
The Scalia opinion was supported by Chief Justice John G. Roberts, Jr., and by Justices Samuel A. Alito, Jr., Anthony M. Kennedy, and Clarence Thomas. Justice John Paul Stevens joined in the result only, along with Justice David H. Souter. Justice Stephen G. Breyer dissented, joined by Justice Ruth Bader Ginsburg.
In the only other decision on the merits Wednesday, the Court ruled by a 5-4 vote that the right in the Bankruptcy Code to convert a Chapter 7 case into a Chapter 13 proceeding is not absolute, and may be forfeited. In the case of Marrama v. Citizens Bank of Massachusetts (05-996, download here), the Court ruled that a Gloucester, Mass., man, Robert Louis Marrama, had forfeited his right to convert his bankruptcy case because he did not qualify as a debtor under Chapter 13.
Both Chapter 7 and Chapter 13 allow an individual who has become insolvent to have some debts erased in order to help begin a fresh start. Chapter 7 allows some debts to be excused after a trustee has liquidated the assets and distributed the proceeds to creditors. The trustee in that situation controls the assets. Chapter 13 allows an individual with regular income to have some debts excused after completing a debt-payment plan approved by the bankruptcy court; in that situation, the debtor retains possession of the property.
Lower courts have been divided on whether a debtor who acts in bad faith during a Chapter 13 proceeding by concealing assets forfeits the right to convert to such a proceeding. Some courts have said that even a bad-faith debtor has a right to convert. The Court on Wednesday rejected that view.
In the case of Marrama, the Gloucester businessman (he had been in the flooring business) had sought an increase in a line of credit from a bank to deal with cash flow problems. The bank refused, and called in its debts. He was then unemployed and had no income, and had shut down his business. He filed for bankruptcy under Chapter 7.
He later got a job in his brother's flooring business, and had regular income. He then sought to convert his bankruptcy case to Chapter 13 to try to salvage his interest in homes in Gloucester and in Maine. The trustee and the bank objected, contending that Marrama had put his Maine property in a trust to shield it from creditors. The bankruptcy court denied conversion, and that was upheld on appeal by the First Circuit Court. That result was affirmed by the Supreme Court in the opinion written by Justice Stevens.
Joining in the majority were Justices Breyer, Ginsburg, Kennedy and Souter. Justice Alito dissented, joined by the Chief Justice and Justices Scalia and Thomas.
Today at the Supreme Court: 2/21/07
08:59 AM | Jason Harrow | Comments (0)
Beginning shorrtly after 10 AM Eastern, the Court will hear one hour of oral argument in Microsoft v. AT&T (preview here). The Court is also expected to issue some decisions on the merits in pending cases.
A transcript of the Microsoft argument should be available sometime this afternoon.
Tuesday, February 20, 2007
Recapping Tuesday
09:32 PM | Jason Harrow | Comments (0)
With so much news on multiple fronts, here's a quick guide to the day that was:
The Supreme Court began a new sitting at 10 AM by releasing an Order List and three opinions; they can be downloaded via this post, and our article recapping these developments is here. The Court then heard two hours of argument on sentencing issues; the transcripts are here, and our post detailing what was at stake is here. Commentary about today's decision in Philip Morris, as well as articles about the arguments in Rita and Claiborne can be found in this Round-Up.
Meanwhile, the Court of Appeals for the D.C. Circuit ruled against the detainees at Guantanamo Bay this morning (see here). In the wake of the ruling, this post reports that the Justice Department immediately filed a brief asking Chief Justice Roberts to dismiss the case of Sharaf Al Sanani, a detainee who had a request pending before the Supreme Court. The lawyers for the detainees who lost in the D.C. Circuit also announced that they will be appealing to the Supreme Court shortly, and that they will ask the Court to expedite the case in order to have it decided this Term (see here).
Also today, we posted our list of "Petitions to Watch" for Friday's Conference here, and we made available, via this post, the respondent's brief in Wilkie v. Robbins.
Argument Preview: Microsoft v. AT&T on 2/21
09:22 PM | Jason Harrow | Comments (0)
The following argument preview was written by David George, an appellate lawyer at Connelly Baker Maston Wotring Jackson LLP in Houston, Texas.
On Wednesday, February 21, 2007, the Supreme Court will hear argument in No. 05-1056, Microsoft Corp. v. AT&T Corp. This case is about whether a company can violate U.S. patent law by sending software contained on a master disk overseas for copying and installation. Ted Olson of Gibson, Dunn & Crutcher will argue for Microsoft, while Seth Waxman of Wilmer Cutler Pickering Hale & Dorr will argue for AT&T. Assistant to the Solicitor General Daryl Joseffer will argue on behalf of the United States as amicus in support of Microsoft. Chief Justice Roberts is recused in this case.
Under U.S. patent law, it is not patent infringement to make or use a patented product in another country. In 1972, in Deepsouth Packing Co. v. Laitram Corp. , the Supreme Court held that if a company manufactures a patented product’s components in the United States, but ships them to another country for final assembly, that is still not patent infringement. In response to Deepsouth, Congress passed 35 U.S.C. § 271(f), which makes it patent infringement to ship a patented product’s components to another country for assembly there.There are two issues in this case. First, can software be a component of a patented invention? And second, is a software copy that is made in a foreign country supplied from the United States?
Continue reading "Argument Preview: Microsoft v. AT&T on 2/21" »
Detainees to seek fast-track appeal
08:00 PM | Lyle Denniston | Comments (0)
Lawyers for Guantanamo Bay detainees plan to file soon -- perhaps by the end of next week -- one or more appeals in the Supreme Court challenging Tuesday's ruling by the D.C. Circuit Court that ordered an end to all detainees' habeas challenges. In their coming appeal, the detainees' counsel will ask the Court to expedite the case, and, if it grants review, to schedule argument before the end of the current Term, perhaps in May. The Court is now scheduled to complete oral arguments on Wednesday, April 25.
The appeals will pose major tests of the meaning of habeas corpus, from American origins in 1789 through the present time. If the Justices grant review, the ensuing decision would be a fundamental test of Congress' power to shape the jurisdiction of federal courts, including the Supreme Court itself.
The cases have been handled all along by a coalition of volunteer lawyers, and they are coordinating plans for the Supreme Court challenges in the wake of the defeat in the Circuit Court.
Among arguments that the appeals apparently will make is that only the Supreme Court can decide whether its jurisdiction in detainee habeas cases has been scuttled by the new Military Commissions Act of 2006. The D.C. Circuit Court did not mention that possible argument in finding that all cases pending in District Courts in Washingtoin, D.C., must now be dismissed for lack of jurisdiction under the MCA.
The disclosure of the plans of counsel caps a day of rapid developments on the legal fate of detainees, beginning with the Circuit Court ruling at 10 a.m. and a new filing by the Justice Department in a pending Supreme Court case on detainees' rights. Readers are invited to scroll Tuesday's postings for these reports.
Round-Up
05:47 PM | Gretchen Sund | Comments (0)
Here, in today's New York Times, Linda Greenhouse previews Rita and Claiborne, the federal sentencing cases heard before the court today, in light of the Booker decision. Warren Richey of the Christian Science Monitor discusses the two cases here. Ron Wright has this post at Sentencing Law and Policy on the oral argument in Rita.
Lots of info on today's Philip Morris decision:
-NPR's "Day to Day" had this segment with Rick Hasen.
-Linda Greenhouse of the New York Times has this article.
-David G. Savage reports here in today's LA Times.
-Robert Barnes and Howard Schneider have this article in the Washington Post.
-In the Wall Street Journal, Jess Bravin and Vanessa O'Connell report here (subscription req'd).
-Joan Biskupic has this article in the USA Today.
-In the Finanical Times, Patti Waldmeir and Chris Bowe report here.
-Jay M. Feinman has this post at the ACSBlog about the uncertain effect of the decision, while PrawfsBlawg's Dan Markel weighs in here.
-Reuters has this report.Additionally, Stephen Labaton of the New York Times has this article on the decision of the D.C. Circuit to uphold the Military Commission Act of 2006, a case that will likely be appealed to the Supreme Court. In the Washington Post, Carol D. Leonnig and Bill Brubaker report here on the ruling that denies the federal courts' authority to hear habeas challenges to the detention of Guantanamo detainees.
In other news, Robert Barnes has this piece in today's Washington Post on Lilly Ledbetter, the petitioner in Ledbetter v. Goodyear Tire and Rubber Co. David G. Savage of the LA Times reports here on the prospect for Justice Scalia to lead a new conservative majority. This article from Kenneth Jost in CQ Weekly discusses judicial retirement strategy.
New Filing in Wilkie v. Robbins
04:34 PM | Kevin Russell | Comments (0)
Today we filed this Brief for the Respondent in Wilkie v. Robbins, No. 02-219. The case raises three questions concerning: (1) the applicability of the Racketeer Influenced and Corrupt Organizations Act to federal employees sued under the Act's civil provisions for engaging in extortion with the intent to obtain private property on behalf of the Government; (2) whether individuals may bring Bivens actions against federal officials to remedy violations of the Takings Clause in cases where the official is charged with attempting to coerce a private landowner into giving the Government an easement across his land without paying just compensation; and (3) whether the Fifth Amendment is violated by such an effort.
If that were not enough, our brief raises additional questions regarding whether the availability of a Bivens remedy can be decided in an interlocutory qualified immunity appeal, whether a defendant may take an interlocutory appeal to re-urge a legal argument rejected in a prior appeal, and whether qualified immunity applies to claims under a federal statute like RICO, which provides a civil remedy for criminal misconduct.
We put together the brief with the substantial assistance of both our Stanford and Harvard Supreme Court Litigation Clinics, with Prof. Laurence Tribe leading the team at Harvard and slated to argue the case for respondent on March 19.
Because work on the case spanned semesters, we had a number of students involved:
Harvard: Lauren Popper Ellis, Dan Gonen, Chris Fonzone, Zina Gelman, Brooke Hopkins, and Anna Holloway.
Stanford: Jennifer Liu, Fred Thompson, Brian Love, Jameson Jones, Andrew Dawson, Erika Myers, Eric Zimmerman, Mariko Hirose, and Molly Cutler.
Government opposes detainee plea
03:22 PM | Lyle Denniston | Comments (0)
Moving swiftly to take advantage of a D.C. Circuit Court ruling scuttling Guantanamo Bay detainees' habeas challenges, the Justice Department on Tuesday afternoon urged Chief Justice John G. Roberts, Jr., to deny all relief to one of the prisoners at the military prison in Cuba -- Sharaf Al Sanani. Replying to a request by Roberts for a reaction to Al Sanani's plea, the Department said the Circuit Court decision "eliminates the alleged need for this Court to take the extraordinary step" of forcing the military to spell out why it is holding Al Sanani. The government reply can be found here. (A link to the Circuit Court ruling can be found in this earlier post. Al Sanini's plea is discussed in this post, published before the D.C. Circuit ruled.)
Even if the Supreme Court should ultimately overturn the D.C. Circuit and restore detainees' habeas rights (an appeal is expected), the government filing said, there is no need for the Justices to step in to take over habeas procedures that the District Courts can handle. All that Al Sanani is seeking, it argued, is a procedural ruling, and the Court should not get involved in such oversight.
Al Sanani was one of the first detainee cases to reach the Supreme Court in the wake of Congress' action last Fall in stripping the courts of any power to review detainee habeas challenges to their detention -- the power upheld earlier Tuesday by the D.C. Circuit. (His application is 06A797, Al Sanani v. Bush.) He wants an order to force the Pentagon to provide details of why it thinks he should remain at Guantanamo with the status of "enemy combatant." He has been charged with no crime.
In its reply, the government said that Al Sanani's lawyers can obtain access to information about why he is being held by filing a new challenge in the D.C. Circuit Court, using the limited review procedures that Congress set up as an alternative to habeas. Those procedures would allow the Circuit Court to review at least some aspects of the military process for declaring war-on-terrorism suspects as "enemy combatants."
While Al Sanani is facing an annual review of whether to continue his detention, separate from the basic tribunal that designated himi an "enemy combatant," he has no legal right to a court order to force the military to give him classified information for use before such a review takes place, the Justice Department contended. The courts, it said, have no authority to review what happens in those annual reviews.
While Al Sanani's application is pending before Roberts as the Circuit Justice for the D.C. Circuit, he has the authority to refer it to the full Court, as well as the power to decide it himself. A prompt order is expected.
Meanwhile, the Court on Tuesday turned aside all three requests for relief in the first Guantanamo Bay detainee case to reach it since the court-stripping law was passed. Lawyers for Saifullah Paracha, a Pakistani businessman now detained at Guantanamo, had sought release from that prison camp in order to receive medical care for a heart ailment. The Court denied, without comment, his petition for certiorari (06-8447), for an original habeas writ (06-8448), and a writ of mandamus (06-8449). The Justice Department last Wednesday urged the Court to reject all of these pleas.
"Conference Call" Petitions to Watch: 2/23 and 3/2
02:32 PM | Jason Harrow | Comments (0)
Yesterday's edition of "Conference Call" in Legal Times (column archive here; subscription req'd) featured petitions to watch for both the Justices' Conference of 2/23 and 3/2. Our SCOTUSblog supplement for this Conference, containing downloadable versions of the highlighted petitions (and, in some cases, other cert. stage documents), can now be found here.
Previous editions of "Petitions to Watch" can be accessed via the "Term Tracker" link.
Today's Transcripts
02:30 PM | Jason Harrow | Comments (0)
The transcript in Rita v. U.S. has just been posted here. UPDATE: The transcript in Claiborne is now available here.
Preliminary Thoughts on Boumediene
11:57 AM | Marty Lederman | Comments (0)
Following up on Lyle's post, I've posted over on Balkinization some very preliminary thoughts on the D.C. Circuit decision in the GTMO detainee cases.
This Morning's Developments
10:16 AM | Jason Harrow | Comments (0)
11:16 AM: This morning, the Supreme Court released an Order List granting two cases (download here), and it also released opinions in three cases:
Weyerhaeuser v. Ross-Simmons Hardwood Lumber (05-381, download here)
Philip Morris USA v. Williams Estate (05-1256, download here)
Lawrence v. Florida (05-8820, download here)A post recapping these developments is here; more commentary is forthcoming.
In addition, the Court of Appeals for the D.C. Circuit ruled today in a case involving detainees at Guantanamo Bay that is likely to be appealed to the Supreme Court. Our post about it is here, and the complete ruling is here.
Circuit Court orders end to detainee cases
10:05 AM | Lyle Denniston | Comments (0)
The D.C. Circuit Court on Tuesday ruled that Congress had taken away the federal courts' authority to hear habeas challenges to the detention of foreign nationals at Guantanamo Bay, Cuba. The Court also ruled that this did not amount to an unconstitutional suspension of the writ of habeas corpus. The Court was divided 2-1 on the constitutional issue in its 59-page decision (which can now be found here).
The Court ordered the dismissal of two packets of appeals brought by detainees after two District Court judges ruled in conflicting ways on the legal rights of detainees. Since those cases arrived at the Circuit Court, however, Congress has moved twice to take away the authority of the U.S. courts to hear such challenges. The Supreme Court invalidated the first attempt. Tuesday's ruling upheld the latest such effort, in the Military Commissions Act of 2006, enacted last October.
Circuit Judge A. Raymond Randolph wrote the majority opinion, joined by Circuit Judge David B. Sentelle. Circuit Judge Judith W. Rogers dissented. While Rogers agreed that Congress did in fact intend to take away habeas jurisdiction for detainees captured anywhere in the world, she concluded that that was unconstitutional.
The Court declined to convert the habeas cases into challenges before the Circuit Court under the Detainee Treatment Act to the military decisions to hold the detainees, as the government had suggested. It did not decide whether it had authority to do so; instead, it found that the record in the case lacks sufficient information to perform the review under DTA. It thus said "our only recourse is to vacate the district courts' decisions and dismiss the cases for lack of jurisdiction."
A similar fate awaits scores of other cases brought by detainees at the Circuit Court and in District Courts in Washington, D.C. The dispute over the detainees' legal fate is now expected to go on to the Supreme Court, joined by an attempt at a direct appeal by Salim Ahmed Hamdan in a separate case involving a detainee facing a war crimes trial. The decision Tuesday involved Guantanamo detainees who are not facing trials before military commissions; they have not been charged with any crimes but have been designated "enemy combatants" in the war on terrorism.
It seems very doubtful that any of the cases could reach the Supreme Court in time for any rulings during the current Term, unless any appeals were significantly expedited or unless a special hearing date were set beyond the final round of hearings scheduled now for April.
Court limits punitive damages
10:03 AM | Lyle Denniston | Comments (1)
The Supreme Court ruled on Tuesday that it is unconstitutional for a jury to award punitive damages out of a desire to punish a company for harming individuals other than those directly involved in the lawsuit -- that is, "strangers to the litigation." The Court ruled 5-4 in the case of Philip Morris USA v. Williams Estate (05-1256) that a punitive award based on harms done to such "strangers" would amount to a government seizure of private property without due process.
The ruling nullified a $79.5 million punitive award against Philip Morris in a case that grew out of the death from lung cancer of a smoker, Jesse Williams of Portland, Ore. The Oregon Supreme Court upheld the punitive verdict, along with compensatory damages of $821,000. Lawyers for the Williams estate used the case to make a wide-ranging attack on 50 years of Philip Morris' coinduct, and argued that the company should be punished not only for harms done to Williams, but to other, unidentified Oregon smokers.
Justice Stephen G. Breyer's opinion for the Supreme Court majority said it was not deciding whether the punitive award was unconstitutionally excessive, as Philip Morris had asked it to do. Instead, it ordered the state Supreme Court to reconsider, applying the new constitutional standard outlined in the decision; it said a new trial might be necessary.
In the second ruling of the day, the Court decided unanimously that the antitrust standard the Court laid down in 1993 for "predatory selling" also applies to claims of "predatory buying" -- that is, a party suing must show that the buying company paid so much for goods that it lost money, and could recoup its losses after having harmed competitors. Justice Clarence Thomas wrote the decision in Weyerhaeuser v. Ross-Simmons Hardwood Lumber (05-381).
In the third and final decision, the Court, dividing 5-4, ruled that the one-year filing period for a federal habeas challenge of a state conviction is not interrupted while the inmate has a petition for review pending in the U.S. Supreme Court. That "tolling period," the Court said, only applies when a post-conviction challenge is pending in state courts. Justice Thomas wrote the majority opinion in Lawrence v. Florida (05-8820).
In an order issued before the rulings came down, the Court agreed to decide whether states have the authority to use either a convention or a primary election system for choosing nominees to run for state office in the general election. It granted review of the case of New York State Board of Elections v.Torres (06-766). The Second Circuit Court ruled in the case that direct primary elections had to be used for the selection of state trial judges, to avoid the control of the nominating process by party bosses at a convention.
The Court also agreed to hear a pauper case, Logan v. U.S. (06-6911), testing when an individual convicted of misdemeanor crimes is to be treated as a career criminal, resulting in an enhanced sentence.
The newly granted cases presumably will be heard in the new Term starting Oct. 1. The argument calendar for the current Term is full.
In another order, the Court asked the U.S. Solicitor General to supply the government's views on whether private medical clincis and doctors have a right to sue to enforce health care benefits for needy children under the federal-state Medicaid program. That issue arises in the case of Selig v. Pediatric Specialty Care (06-415).
Continue reading " Court limits punitive damages" »
Today at the Supreme Court: 2/20/07
09:03 AM | Jason Harrow | Comments (0)
The Court returns to the bench today as a new sitting begins at 10 AM eastern. The Court will first release an Orders List relating to its Conference of 2/16; we will bring you coverage of that as soon as it is released. The Court also may release decisions on the merits.
The Court will then hear one hour of oral argument in Rita v. U.S. followed by one hour of argument in Claiborne v. United States (combined preview here). Transcripts of both arguments should be available sometime this afternoon.ve
Monday, February 19, 2007
Salvaging the Guidelines? The 2/20/07 Arguments
08:05 AM | Lyle Denniston | Comments (0)
The federal Sentencing Guidelines regime that seemed to survive just barely two years ago now appears to have the comfortable support of six of the nine Justices. But, until two cases being argued on Tuesday are decided, that may be an illusion; until then, just what part of those Guidelines will survive will not be clear. No one is calling for the end of the Guidelines, but they face some risk of losing a lot of their force in the cases of Rita v. U.S. (06-5754) and Claiborne v. U.S. (06-5618).
Indeed, not since the Court decided U.S. v. Booker 25 months ago with two 5-4 divisions have the Guidelines seemed to be open to such serious question. That is because a majority of the Court lately seems more devoted to the Sixth Amendment part of the Booker decision than to its rescue there of the Guidelines by making them advisory instead of binding. In both the Rita and Claiborne cases, the core dispute boils down to this: just what does “advisory” mean?
That is not one of the specified questions the Court has agreed to answer in Rita and Claiborne, but that is what is ultimately at stake. If the Guidelines are taken by sentencing judges to go beyond useful recommendations, when do they run afoul of Booker’s Sixth Amendment principles?
The two new cases, in fact, are fundamental tests of how advisory-only Guidelines are to work in actual practice and, perhaps, whether they will work at all to achieve the objectives that Congress had in mind when it created the original Guideline system in the Sentencing Reform Act of 1984.
The Rita case, apparently the broader of the two, will be argued first, soon after 10 a.m., with Thomas N. Cochran, an assistant federal public defender in Greensboro, N.C., arguing for Victor A. Rita, Jr., and with Deputy Solicitor General Michael R. Dreeben for the federal government. In the second case, Michael Dwyer, an assistant federal public defender in St. Louis, will argue for Mario Claiborne, and Dreeben will again represent the government. The Court will hear the two cases in back-to-back, one-hour sessions
Continue reading "Salvaging the Guidelines? The 2/20/07 Arguments" »
Friday, February 16, 2007
Round-Up
04:44 PM | Gretchen Sund | Comments (0)
In the Los Angeles Daily Journal, Edward J. Loya Jr. has this review of Henry Mark Holzer's “The Supreme Court Opinions of Clarence Thomas, 1991-2006: A Conservative’s Perspective” (via How Appealing).
Rick Nagel has this op-ed on Parents Involved in Community Schools v. Seattle School District #1, et al. in today's Seattle Post Intelligencer.
At CNNMoney.com, Shaheen Pasha has this article on Microsoft v. AT&T, which will be heard before the Court next Wednesday.
Vikram David and Aaron Rappaport report here at Findlaw.com on Justice Alito's dissent in the Cunningham opinion; the first article in this series on the decision can be found here.
Chief Justice seeks response on detainee
04:07 PM | Lyle Denniston | Comments (1)
Chief Justice John G. Roberts, Jr., on Friday told the Justice Department he wants a response by 2 p.m. next Tuesday to a plea by a Guantanamo Bay detainee for an order to force the government to provide reasons why he is a prisoner. The call came in the case of Al Sanani v. Bush (application 06A797). An earlier post discussing that case can be found here.
The Chief Justice is considering the application in his capacity as Circuit Justice for the D.C. Circuit. This appears to be the first time since he joined the Court that he has been involved in a war-on-terrorism case; he was out of last Term's Hamdan v. Rumsfeld decision because he had sat on that case as a member of the D.C. Circuit.
Court issues orders
01:06 PM | Lyle Denniston | Comments (0)
The Supreme Court on Friday granted permission for the federal government to take part in oral argument in three cases. The Orders List can be found here; these are the only orders to be released until Tuesday, Feb. 20, on matters acted upon at the Friday Conference.
Under the orders issued Friday, the Solicitor General will be offering the government's views in Microsoft v. AT&T (05-1056), a software code dispute under patent law; being argued Feb. 21; in Scott v. Harris (05-1631), on police liability for injuries in a high-speed chase, being argued Feb. 26, and in Winkelman v. Parma City School District (05-983), on parents' right to act as their own attorney in a case involving a disabled child's right to education benefits, being argued Feb. 27.
Chief Justice John G. Roberts, Jr., is recused from the Microsoft case.
Circuit Court decisions out; no detainee ruling
10:30 AM | Lyle Denniston | Comments (0)
UPDATED to 11:12 a.m.
After an hour and 11 minute delay, the D.C. Circuit Court on Friday released three opinions on a regular decision day. Once again, the Court did not decide the two packets of cases involving the legal fate of hundreds of foreign nationals detained at the military prison camp at Guantanamo Bay, Cuba.There was no explanation for Friday's delay in releasing opinions; it should be noted, though, that much of official Washington has been impacted by wintry weather over the past three days.
The Circuit Court has been considering the detainee cases for nearly two years, although the most recent round of briefing was completed last Nov. 20. There has been no explanation for its inability to decide the cases since then. The lead case in the group is Bounediene v. Bush (05-5062).
On Thursday, the Justice Department filed a response to a motion by the detainees asking the Circuit Court to rule promptly. The Department took no position on whether the decision should be expedited, saying it "defers to this Court as to the question of when it is ready to issue an opinion." But the government did oppose the detainees' separate request to lift the District Court stays on further action in pending detainee habeas cases. District Court judges have issued more than 120 such stays.
Today at the Supreme Court: 2/16/07
05:42 AM | Jason Harrow | Comments (0)
The Court is holding a private Conference today following a four-week recess.
Though the Court has issued orders granting cases immediately following Conferences thus far in this term, in prior terms the Court has not customarily issued such afternoon orders after the January sitting (since any cases granted review from this point on are likely to go over to the next Term). Because the Court is closed in observance of Washington's Birthday on Monday, the regular orders relating to today's Conference will be released on Tuesday, January 20 at 10 AM eastern.
Our list of "Petitions to Watch" for this Conference can be found here.
Thursday, February 15, 2007
Round-Up
06:00 PM | Gretchen Sund | Comments (0)
Joan Biskupic of the USA Today has this article on Justice Kennedy's appearance before the Senate Judiciary Committee yesterday. Jan Crawford Greenburg has this post on his remarks at her blog, Legalities. At Slate, Dahlia Lithwick reports here on Kennedy's comments on judicial compensation. Ben Winograd has this post on judicial pay at the WSJ.com Law Blog.
The Press Enterprise reports here on the impact of the Cunningham decision (via Sentencing Law and Policy).
On February 21, ACS will host a press briefing on Hein v. Freedom from Religion Foundation; the announcement can be found here.
