Tuesday, April 10, 2007
Round-Up
04:06 PM | Gretchen Sund | Comments (0)
Tony Mauro of the Legal Times reports here on Sole v. Wyner (06-531), an attorney fees case being argued before the High Court on April 17. Mauro also has this article in the Legal Times discussing the Court's April calendar.
In today's New York Times, Danny Hakim has this article on a trial beginning today in which automakers are challenging Vermont's emissions regulations, a week after the Supreme Court's 5-4 decision in Massachusetts v. EPA (05-1120). Scott Malone reports here at Reuters; AP writer David Gram has this article; and Dave McCurdy, head of the Alliance of Automobile Manufactures, discusses the Vermont lawsuit and the Court's ruling in this audio segment from NPR's "Day to Day."
At the Warming Law Blog, Doug Kendall has this post on the Massachusetts v. EPA decision and federalism, furthering the discussion Linda Greenhouse began in this article in the New York Times on Sunday. Also in the Times, Adam Cohen has this editorial on executive privilege and Supreme Court precedent in light of the Bush Administration's reaction to Congress's investigation of the recent firings of eight U.S. attorneys.
At the Supreme Court Times Blog, Ross Runkel summarizes the cases being argued before the Court next week and makes predictions on their outcomes here. Paul Secunda of the Workplace Prof Blog has this post discussing Runkel's prediction that the EEOC will win by a landslide in BCI Coca-Cola Bottling Co v. Equal Employment Opportunity Commission (06-341). Secunda also has this post on the upcoming ERISA fiduciary duties case, Beck v. Pace Int'l Union (05-1448), which is scheduled for argument on April 24.
At the ACS Blog, Professor Ana M. Otero has this preview of the upcoming Texas death penalty case, Panetti v. Quarterman (06-6407).
lastly, Jeremy Pelofsky of Reuters reports here on the District of Columbia's appeal asking the D.C. Circuit to reconsider its recent decision declaring the city's handgun ban unconstitutional.
Move to shore up Hamdan appeal
02:26 PM | Lyle Denniston | Comments (0)
Attorneys for two Guantanamo Bay detainees who face war crimes trials before "military commissions" urged the Supreme Court on Tuesday to see significant differences between their cases and the other detainees' appeals that the Court refused on April 2 to hear. Seeking to bolster the chances for review now, not later, attorneys for Sallim Ahmed Hamdan and Omar Khadr said the rights these two claim will be impaired if they have to wait for actual trials to be over before they can mount an appeal. "The right [they] seek to vindicate is the right not to be tried at all by an unconstitutional military commission, a right that obviously cannot be vindicated through even the best intentioned" review after the fact. The reply brief can be found here
It seems likely that Hamdan and Khadr already have three votes on the Court in favor of review -- those of Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter, who voted last week to hear the other detainees' cases but could not persuade their colleagues to do so. That puts the focus in the new appeal on Justices Anthony M. Kennedy and John Paul Stevens, who wrote separately last week to suggest that the Court should hold off until after the other detainees sought to test their "available remedies" in lower courts first. It takes only four votes to grant review, but it may be necessary for five Justices to be interested in review at this stage before four would commit to it and risk a loss on the merits.
The reply brief picks up on a phrase in the Stevens-Kennedy statement to help make their argument for review before any commission trial is held. Stevens and Kennedy said that the Court might get involved in detainees' cases if the captives suffered "some other and ongoing injury" if the Court did not step in. That injury is already present for Hamdan and Khadr, their lawyers contended. "Petitioners are irreparably harmed by having to defend themselves in trials where they are kept ignorant as to whether or not the Constitution protects them and governs the procedures by which their prosecutions are allowed to proceed." At commission trials, the brief added, the two face a tribunal "with the power to impose a sentence of life imprisonment or even death."
Borrowing further from Stevens and Kennedy, the brief says that the two detainees' legal position will be "prejudice[d]" if they have to go to trial now. They argued that being forced to reveal their defense and trial strategy to the prosecution would harm their chances of getting a fair trial on the charges they face.
Making a non-legal argument, the reply said that "the reputation of the United States is on the line in these novel and untested trials." They noted that the recent controversial guilty plea of a detainee, Australian David Hicks, "has cast further doubt on the ability of these commissions to prosecute cases fairly." Moreover, the brief contended, the trials are due to unfold at Guantanamo Bay -- "a place that is, according to the [D.C. Circuit Court], exempt from our most deeply-held constitutional guarantees." (The Circuit Court, in its Feb. 20 decision barring detainees' habeas challenges, ruled that Guantanamo prisoners have no constitutional rights to assert.)
If the trials go forward in what it now "a legal vacuum," the brief said, "the process will ultimately cast doubt on this nation's judicial system and our hallowed traditions of fairness in the eyes of the world."
The detainees' lawyers also contend that the court review process Congress has set up for detainees, as an alternative to broader court review of habeas claims, is not an adequate substitute. Such a review would follow conviction by a military commission. The Circuit Court, they said, "has already squarely held that detainees such as Hamdan and Khadr enjoy no constitutional rights that could be violated."
The Supreme Court, the brief concluded, should grant review of the constitutional claims at stake "instead of forcing further review in a court that has already effectively rejected them"
With the reply brief now on file, the Court could schedule the Hamdan/Khadr joint appeal for the Justices' Conference at any time. It has not yet been scheduled, however. The joint petition is Hamdan v. Gates and Khadr v. Bush (06-1169). Hamdan's appeal challenges the D.C. District Court ruling that ended his case on jurisdictional grounds, while Khadr's appeal challenges the Circuit Court's Feb. 20 ruling dismissed detainees' habeas challenges.
Today at the Supreme Court: 4/10/07
09:04 AM | Jason Harrow | Comments (0)
No oral arguments are scheduled and no non-capital orders or opinions are expected to be issued today.
Monday, April 09, 2007
Detainees set stage for return to Court
05:22 PM | Lyle Denniston | Comments (0)
Final UPDATE 10:50 p.m. The federal government on Monday laid out the procedures it wants the D.C. Circuit Court to follow when it begins reviewing military orders to continue the detention of prisoners at Guantanamo Bay, Cuba. They differ sharply with recommendations made by the detainees' lawyers last month. The differences in approach are discussed in the concluding paragraphs of the following post. These two filings are now available in full for download; they are linked to in the final paragraphs.
* * * * * *
Lawyers for Guantanamo Bay detainees moved on Monday to set the stage for an early, second chance to get Supreme Court review of their attempt to mount sweeping challenges to their capture and prolonged detention at the U.S. military prison camp in Cuba. They formally asked the D.C. Circuit Court not to release its ruling barring their habeas cases, and to keep that decision on hold until after they attempt a return to the Supreme Court. They will first try to get some relief in the D.C. Circuit, but that does not appear promising, because they want to proceed with that in a broader way than the Circuit Court may be planning and definitely broader than the government has proposed. Monday's maneuver, the lawyers indicated, was being made over the government's opposition.
The Supreme Court last Monday refused to hear the detainees' initial appeals seeking to revive their habeas challenges in U.S. District Court in Washington, D.C. -- challenges that were wiped out by Congress last Fall in legislation that the D.C. Circuit upheld. But the Justices made clear that the Court was not then ruling on the validity of their claims, and held open the prospect of a new look at those claims later. The detainees' lawyers relied on those indications in filing their "motion to withhold issuance of mandate." The text of the motion can be found here. It was filed in the case of Abdah v. Bush (Circuit docket 05-5115), but is expected to be followed by similar requests from other detainees.
The filing was part of an increasingly complex procedural situation that is developing as both sides in the detainees' cases seek to follow up on the Supreme Court's action and on the D.C. Circuit ruling Feb. 20 that the Justices left intact for the time being. The Circuit Court is being drawn deeply into a multi-faceted controversy over how to go forward with a series of new detainee appeals that may number more than 300. It has set a hearing on some aspects of the procedural morass for May 15, but the dispute over process is widening rapidly beyond that beginning.
All of these cases, like the Abdah case, are expected to be the first test in the D.C. Circuit of that Court's authority to review decisions by military panels that seek to justify continued holding of Guantanamo detainees on the premise that they remain "enemy combatants" and cannot be freed. The Detainee Treatment Act, passed by Congress in 2005, set up this review system in the Circuit Court as a substitute for broader challenges under federal habeas law.
Challenges under DTA to the decisions of the military detention panels -- called "combatant status review tribunals" -- are beginning to accumulate in the D.C. Circuit before that Court has had time to work out the processes it will follow. Simultaneously, the Justice Department has indicated in recent days that it is going to ask several District Court judges to dismiss any habeas cases that detainees still have on file at that level. It told one District judge last Friday that it will start filing dismissal motions "in the next several days." Even though the Supreme Court has not passed finally on the court-stripping provisions enacted by Congress, the Justice Department is treating the issue as settled -- at least for lower courts -- and thus wants all habeas cases out of court promptly.
The detainees are trying, however, to keep their habeas pleas technically alive, and that was part of what lay behind the motion filed Monday to put the D.C. Circuit ruling of Feb. 20 on hold for the time being.
Continue reading "Detainees set stage for return to Court" »
"Conference Call" Petitions to Watch: 4/13
04:59 PM | Jason Harrow | Comments (0)
The latest edition of "Conference Call" in Legal Times (column archive here; subscription req'd) features petitions to watch for the Justices' Conference of 4/13. The SCOTUSblog supplement, containing downloadable versions of the highlighted petitions (and, thanks to the continuing assistance of those involved in the cases, a great many other cert. stage filings), can now be found here.
Previous editions of "Petitions to Watch" can be accessed via the "Term Tracker" link.
Round-Up
04:20 PM | Gretchen Sund | Comments (0)
Joseph Goldstein of the New York Sun reports here on the foreign sovereign property tax case, Permanent Mission of India v. City of New York, scheduled for argument on April 24.
In yesterday's New York Times, Linda Greenhouse had this article on Chief Justice Roberts's revealing dissent in Massachusetts v. EPA. On Saturday, the New York Times ran this editorial urging the Supreme Court to hear an Alabama due process case. Brendan Kirby reports here in The Mobile Press-Register on the case of Jack Cline, who was told by the Alabama Supreme Court that there was never a valid time to sue the companies who produced the chemical that he believed caused the rare form of leukemia, which ultimately resulted in his death.
On Saturday, AP writer Mark Sherman discussed Kennedy's crucial swing vote here.
In today's Washington Post, the former administrator of the Environmental Protection Agency, Christine Todd Whitman, has this column discussing last week's Massachusetts v. EPA decision. Yesterday, the Washington Post's Julie Eilperin had this editorial on the Court's ruling. In today's edition, Henri E. Cauvin reports here on the District of Columbia's petition to revisit last month's D.C. Circuit ruling, which found that the city's gun law violated the Second Amendment. And yesterday, Washington Post Staff Writer Elissa Sliverman had this article profiling Shelly Parker, one of five plaintiffs in the D.C. handgun ban suit, Parker v. District of Columbia, which will likely make its way to the High Court.
Here, at the Election Law blog, Rick Hasen points to this essay by Jim Gardner about the Lopez-Torres case, which will be heard before the Court next term.
City seeks new hearing on gun ban
03:04 PM | Lyle Denniston | Comments (0)
The city government of Washington, D.C., on Monday asked the full D.C. Circuit Court to reconsider a three-judge panel's ruling that struck down under the Second Amendment the city's 31-year-old handgun ban. In a petition for rehearing en banc, the city and Mayor Adrian Fenty said the 2-1 panel decision "adopted readings of the Second Amendment and Supreme Court precedent that are contrary to those of nearly every other federal court of appeals, as well as the highest local court in this jurisdiction, and thereby created a clear conflict on constitutional issues of fundamental importance." This would be the last step before an expected appeal to the Supreme Court, no matter who wins in the Circuit Court.
The text of the petition in Parker v. District of Columbia (Circuit docket 04-7041) can be found here. The District of Columbia argued that the panel ruling "marks the first time in the Nation's history that a federal court of appeals has struck down a law as unconstitutional under the Second Amendment." Without this ruling, the petition said, "there would be no clearly established conflict among the federal circuits. That fact itself establishes that en banc rehearing is appropriate."
If rehearing is granted, that would set aside the panel ruling. The city urged the Court, if it does agree to reconsider the case, to order new briefing by the parties and by amici interested in the issues. Among other issues that might appear differently before an en banc court, as opposed to a panel, the city's petition said, is whether any District resident had a right to challenge the city law (ie., had "standing" to sue).
Continue reading "City seeks new hearing on gun ban" »
Upcoming Events
02:57 PM | Gretchen Sund | Comments (0)
Tomorrow, the ACS is having a panel discussion on Panetti v. Quarterman, one of the four Texas death penalty cases that the Supreme Court is hearing this term. Additional details are available here.
This Thursday, the ACS is hosting a press briefing on the consolidated campaign finance cases, FEC v. Wisconsin Right to Life and McCain v. Wisconsin Right to Life, which will be heard before the Court on April 25. Event details can be found here.
Sorting out citizen-detainee's rights
12:03 PM | Lyle Denniston | Comments (0)
The pace of legal maneuvers over the power of U.S. courts to hear pleas by U.S. citizens held overseas by the U.S. military is accelerating, first in the D.C. Circuit Court and perhaps shortly in the Supreme Court as well. Two cases are at the center of these developments In one of those, the citizen was allowed to go forward in a U.S. District Court with a challenge to being turned over to Iraqi authorities for trial, in the other the citizen was denied any form of court review of a challenge to being transferred to face execution in Iraq following conviction in an Iraqi court.
Although the ultimate quest of the citizens is not to be transferred to Iraqi custody, their initial challenge is to detention by the U.S. military overseas -- an issue not governed by military law, as would be the case with servicemembers held in detention for crimes under the military code. The government contends that the detainees are being held by a multinational coalition of forces, not the U.S. military, but that is a central issue in dispute bearing on who presently has custody.
Two citizen-detainee rulings came out of the D.C. Circuit Court, with the Bush Administration losing the first one on Feb. 9 (Omar v. Harvey, Circuit docket 06-5126) but winning the second one (Munaf v. Geren, Circuit docket 06-5324) last Friday. One or both, lawyers involved indicate, will wind up in the Supreme Court, and probably quite soon. (This blog has discussed these developments as well as earlier action by the Supreme Court in the Munaf case -- most recently in this post last Friday.)
Last month, the Administration asked the Circuiit Court to hold en banc review of its defeat in the Omar decision. (The petition for further review can be found here.) The Circuit Court, showing some interest in that maneuver, last Wednesday asked for a response from attorneys for the citizen-detainee, Shawqi Ahmad Omar. (Under court rules, no response to such a petition may be filed unless the court seeks one.) The response is due by April 19.
In the case of the other citizen-detainee, Mohammad Munaf, attorneys involved in the case indicated that they are leaning toward taking the case directly to the Supreme Court without seeking en banc Circuit review, although they have not yet decided finally on the point. Jonathan Hafetz, an atorney for the Brennan Center for Justice, which represents Munaf, noted in a statement that the Circuit Court even while barring court review of Munaf's habeas petition had said that "the decision presents issues of pressing national importance that must ultimately be resolved by the U.S. Supreme Court."
The Brennan Center is also involved in the Omar case.
When one or both of the cases reach the Supreme Court, the appeals will center on the question of whether U.S. courts have any authority to hear the challenges of American citizens being held by the U.S. military outside U.S. territory -- challenges to their detention or to their transfer to a foreign government for criminal prosecution or punishment.
Appeals thus will focus primarily upon the meaning of a 1948 ruling by the Court in Hirota v. MacArthur., limiting the overseas reach of U.S. courts.
(Thanks to Peter Goldberger, appellate attorney in Ardmore, PA, for a suggestion that made the legal issue in the post clearer.)
Today at the Supreme Court: 4/9/07
09:18 AM | Jason Harrow | Comments (0)
No oral arguments are scheduled and no non-capital orders or opinions are expected to be issued today.
Saturday, April 07, 2007
More on the Influence of Oral Arguments
12:27 PM | David Stras | Comments (2)
Based on my post yesterday regarding the Johnson, Spriggs, Wahlbeck paper on the influence of Supreme Court oral arguments, see here, Howard Bashman wrote an "On Appeal" column for Law.com discussing the paper and the importance of having experienced appellate attorneys arguing before the Supreme Court, see here.
An analysis of AEDPA and court powers
10:40 AM | Lyle Denniston | Comments (1)
An ongoing conversation among judges, scholars and lawyers -- and inside the Supreme Court -- focuses on whether Congress went too far in 1996 in curbing the authority of federal courts to decide new issues in criminal habeas law. The Court most recently examined an aspect of this controversy in its decision in December in Carey v. Musladin (05-785) -- a decision that largely attracted public notice because it involved the display of buttons by victim family members in the courtroom during a trial. But the Musladin decision left habeas law about where it found it.
A law student at the University of Cincinnati -- Joseph M. Brunner, who is also managing editor of the school's Law Review -- has done a penetrating analysis of the role that precedent is now allowed to play in habeas cases in the wake of Congress' passage of the Antiterrorism and Effective Death Penalty Act of 1996. His main conclusion is that the current interpretations and operations of AEDPA's limits on the use of precedent "go beyond regulating relief and impermissibly interfere with the ability of an Article III court to exercise its judicial power."
Brunner's article was prompted by the Ninth Circuit Court's recent exploration of AEDPA's constitutionality. (The Ninth Circuit in March ended that exploration without definitively ruling on the constitutional question. That development was discussed by this blog in this post.)
The Cincinnati law student's soundly researched and well argued article can be found here; it has been published at 75 U. Cin. L. Rev. 307. The article discusses Carey v. Musladin in the closing pages.
Since the article was prepared, the Court has decided Musladin. The blog invited Brunner to comment on that decision as an addition to his article. Here is his response:
"The Supreme Court decided Carey v. Musladin on December 11, 2006, three days
after this article was published. The case does little to address the issues the article raised, however. Justice Thomas' brief, seven-page majority's opinion just reinforces the strict definition of the "clearly established" requirement that has been around since Justice O'Connor's opinion in Williams v. Taylor - i.e. it means the "holdings as opposed to the dicta," and continues the Court's rigid interpretation of the AEDPA standard. The majority based their entire analysis on the fact that no opinion from the Supreme Court had clearly established the principle Musladin based his habeas petition on, and thus found habeas relief inappropriate.
"Justice Stevens' concurring opinion, however, is more interesting, because he suggests that Justice O'Connor's "dictum about dicta" is "an incorrect interpretation of the statute's text." As I noted in my article, at oral argument Justice Stevens was particularly interested in the effect, if any, of the Court's dicta on later cases that arise in the lower courts. Justice Stevens' opinion seems to recognize the tough position AEDPA puts a district court in, and recommends allowing district courts to rely on Supreme Court dicta when determining reasonableness questions for AEDPA purposes. This is better than the current approach, but it still does not directly address the problems AEDPA creates for the district and circuit courts. Justice Stevens' approach, on its face, still requires the district courts to make an independent determination of what the law is regarding a certain issue, presumably regardless of what the superior circuit court thinks of the issue. This presents all the original difficulties identified in the article."
En banc review sought on 2d Amendment case
10:15 AM | Lyle Denniston | Comments (0)
The city government of Washington, D.C., plans to file on Monday, April 9, a petition for rehearing by the en banc D.C. Circuit Court in the case of Parker v. District of Columbia -- a case that produced a major ruling on the Second Amendment, finding that it guarantees an individual right to have a gun in a home. Here is a news advisory by the mayor's office about the filing.
A discussion of that ruling by this blog can be found here.
Friday, April 06, 2007
Round-Up
04:00 PM | Gretchen Sund | Comments (0)
In today's New York Times, this editorial calls on Congress to take action in the wake of the Court's decision not to hear the Guantánamo detainees' habeas corpus appeal.
Reuters has this article about the Enron investors' appeal to the Supreme Court, asking the justices to review their class-action lawsuit against banks and securities firms that had advised Enron on financial transactions before its collapse; Kristen Hays of the Houston Chronicle reports here on the filing, which asks the High Court to reverse the Fifth Circuit's March ruling; Paul Fain has this post at the Chronicle of Higher Education's News Blog; and AP writer Juan A. Lozano reports here on the shareholders' cert. petition. An earlier post on the new filing is here.
In the National Law Journal, Linda S. Mullenix has this article discussing the significance of the Fifth Circuit's decision in the Enron case, Regents of the University of California v. Credit Suisse First Boston (USA) Inc.. Also in the National Law Journal, Marcia Coyle reports here on the Court's recent ruling in Rockwell International Corp. v. U.S.
Peter Schmidt has this piece at the Chronicle of Higher Education's News Blog discussing Justice O'Connor's speech today at the National Press Club, in which she discussed affirmative action in higher education as part of a symposium on diversity at colleges.
At Election Law, Rick Hasen has this post about the possibility that the Crawford v. Marion County Election Board voter identification case will reach the Supreme Court and these additional thoughts.
New Filing in U.S. v. Atlantic Research
02:58 PM | Jason Harrow | Comments (0)
UPDATE: The brief of the respondent, Atlantic Research, is now available here. (Courtesy of Mark Levy of Kilpatrick Stockton LLP)
Yesterday, Akin Gump filed the attached amicus brief on behalf of the U.S. Conference of Mayors in the case U.S. v. Atlantic Research, No. 06-562 (the brief is in support of the respondent). Sarah Rispin of Akin Gump's DC office is principally responsible for the drafting; Paul Gutermann (also in Akin's DC office) is counsel of record, and Tom Goldstein appears with them on the brief. The case is set for argument on April 23.
The amicus brief of DuPont et al is now available here. A brief by former EPA officials is here, and the brief of Washington State, et al. is here. Other bottom-side amicus briefs include: this one from Lockheed Martin; this brief from the Superfund Settlement Project, et al.; this one from the Natural Resources Defense Council; and this brief from the Metropolitan Water Reclamation District of Greater Chicago.
U.S. citizens held abroad and the Hirota ruling
01:09 PM | Lyle Denniston | Comments (0)
For the second time in recent weeks, the D.C. Circuit Court has given a new interpretation to a post-World War II decision of the Supreme Court as it applies to U.S. citizens now being detained by the U.S. military in Iraq for alleged crimes overseas, including claims of terrorist acts. This time, the Circuit Court has given a broader reach to that 1948 ruling (in Hirota v. MacArthur). In a decision on Feb. 9, however, another panel of the same Circuit Court narrowed Hirota's impact.
The Supreme Court was recently drawn into the controversy over Hirota's meaning, but passed up a chance to rule. It seems clear, however, that one or both of the Circuit Court rulings analyzing that precedent will wind up in the Supreme Court for final review.
The decision Friday by the D.C. Circuit came in the case of Munaf, et al., v. Geren (Circuit docket 06-5324). It involves Mohammad Munaf, an American citizen who faces a death sentence imposed by a court in Iraq that had convicted him of an alleged terrorist plot. He is being held by U.S. military forces in Iraq, and could now be transferred to Iraqi custody to face execution, unless that transfer is blocked temporarily while the case continues in U.S. courts. The Circuit Court ruled Friday that U.S. civilian courts have no jurisdiction to hear his habeas challenge to the U.S. Army's plan to hand him over to Iraqi officials. (Thanks to Howard Bashman of How Appealing blog for the alert to this ruling, and thanks to Howard for linking to this blog's earlier reports on Munaf's situation. Those earlier posts are collected here. The decision can be found using its docket number at this link.)
"Our result," the Circuit Court 2-1 majority said, "is required by the Supreme Court's decision in Hirota v. MacArthur," and earlier readings of that ruling in D.C. Circuit precedents. While the Hirota decision involved Japanese citizens tried by an international tribunal, the case of Mohammad Munaf involves a U.S. citizen, thus extending Hirota to Americans who have been tried by non-U.S. tribunals. Munaf, the majority said, was tried and convicted by an Iraqi court, "not a tribunal of the United States. Accordingly, the district court has no power or authority to hear this case."
Merely because Munaf is a U.S. citizen, the Court said in an opinion written by Circuit Judge David B. Sentelle, does not put his case outside the reach of the Hirota decision because that ruling did not suggest "any distinction between citizens and noncitizens who were held abroad pursuant to the judgment of a non-U.S. tribunal....As in Hirota, Munaf's case involves an international force, detention overseas, and a conviction by a non-U.S. court." It added that "conducting habeas proceedings in the face of such a conviction risks judicial second-guessing of a non-U.S. court's judgments and sentences."
Munaf's situation, the majority said, is not different from that of the Japanese involved in the Hirota case even though he is challenging his detention by the U.S. military rather than challenging his conviction by the Iraqi court. He is being held in U.S. custody, Sentelle wrote, because of his conviction by a foreign tribunal.
Sentelle went on to note, in a concluding paragraph, that the Supreme Court's 2004 decisions on Guantanamo Bay detainees' cases "are grounds for questioning Hirota's continuing vitality." But, he wrote, "we are not free to disregard Hirota simply because we may find its logic less than compelling."
Sentelle's opinion was supported by Circuit Judge Brett M. Kavanaugh. The third judge on the panel, A. Raymond Randolph, dissented and would have found jurisdiction for a District Court to hear Munaf's habeas case. He said "the critical considerations are that Munaf is an American citizen and that he is held by American forces overseas." There is, he added, "a longstanding jurisdictional distinction between citizens and aliens detained outside the sovereign territory of the United States." To extend the Hirota decision to habeas challenges by American citizens, the dissenting judge said, would not only contradict Supreme Court precedent but also would "constitute an unwarrant extension" of Hirota.
Randolph, however, said that, on the merits of Munaf's challenge to his detention, he would rule that Munaf is not entitled to relief. Congress' approval of a resolution in 2002 authorizing the U.S. attack that began the Iraq war, plus United Nations resolutions in 2004 and 2005, Randolph said, justify the handover of Munaf to Iraqi authorities to carry out an Iraqi court decision.
At an earlier stage of Munaf's case, the Supreme Court on Nov. 13 refused to order a delay in his transfer to Iraqi authorities while his case remained in lower courts.
As indicated, Friday's ruling was the second by the D.C. Circuit this year to apply, or distinguish, the Hirota decision. In that Court's Feb. 9 decision, in the case of Omar v. Harvey (docket 06-5126), another panel ruled that the 1948 ruling does not apply in the case of a U.S. citizen facing criminal charges in an Iraqi court, but not yet convicted of those charges. In Hirota, the panel said, the individuals involved were not U.S. citizens and had already been convicted. Thus, the Court allowed Shawqi Ahmad Omar's habeas case to proceed in U.S. District Court in Washington, D.C. (This blog's report on the Omar decision can be found here.)
The Influence of Oral Arguments
12:30 PM | David Stras | Comments (1)
I apologize for my absence from the blog for the past week as I have been busy guest-blogging at Empirical Legal Studies, which has consumed nearly all of my recreational blogging time. I hope to be back on a full-time basis starting sometime next week. In the meantime, I would like to draw your attention to a paper, see here, that uses the oral argument grades assigned by Justice Harry Blackmun to examine various issues relating to the effectiveness and influence of Supreme Court oral arguments. In the paper, which is forthcoming in Washington University Law Review, Tim Johnson, Jim Spriggs, and Paul Wahlbeck examine a random sample of 539 cases decided by the Court between 1970 and 1994 (spanning Justice Blackmun's tenure).
The aspect of the article that is most interesting, especially for SCOTUSblog readers, is the part of the paper that discusses those attributes of oral advocates that are most influential to the oral argument grades assigned by Justice Blackmun. Using such variables as whether the solicitor general is personally arguing the case, the amount of experience for the advocate arguing before the Court, and whether the advocate is an elite Washington attorney, former Supreme Court law clerk, or law professor, the authors run an ordinary least square (OLS) regression to determine which of the aforementioned factors most influence the oral argument grades assigned by Justice Blackmun. The results are not surprising as the personal appearance of the Solicitor General generally leads to a higher grade, and the presence of a former Supreme Court clerk or elite Washington attorney are also influential on the quality of an oral argument.
I do, however, question the grader in this case. Justice Blackmun appears to have been an especially harsh grader and the grades he assigned to several prominent legal figures are quite surprising. In the case of now-Chief Justice Roberts, who I believe is one of the great oral advocates of the past two decades, Justice Blackmun gave him only "average" grades in the twelve cases in the sample. In fact, in one of them, he said that Roberts did "better than usual," earning a grade of six on an eight point scale. When I clerked at the Court, I always made a point of being in the courtroom for Roberts' oral arguments as I always felt that there was much to be learned from his exceptional advocacy style and level of preparation. In addition, Blackmun gave only average grades to Justice Alito, and Justice Ginsburg did not fare particularly well in the sample either.
An interesting, but perhaps less compelling part of the paper, examines the use of oral argument by the Justices to communicate with one another. Many advocates have noted that the Justices often argue through the attorneys to make a point or persuade their colleagues, with one attorney noting that he felt more like a post office than an advocate. I personally want to give more thought as to whether their conclusions about the importance of oral arguments are consistent with the literature, conventional wisdom, and my own experiences with the Court. Nonetheless, I highly recommend giving the paper a read if you are at all interested in the role of oral arguments at the Supreme Court.
UPDATE: I have now cross-posted this paper on Empirical Legal Studies as well.
New Enron Cert. Petition
12:10 PM | Gretchen Sund | Comments (0)
At the WSJ.com Law Blog, Peter Lattman reports here that Bill Lerach filed this cert. petition yesterday, asking the Supreme Court to review his Enron case concurrently with Stoneridge Investment Partners v. Scientific-Atlanta. Last month, the Fifth Circuit ruled that shareholders could not proceed with their class action lawsuit against investment banks and securities firms for their alleged role in the Enron accounting fraud. This blog discussed the Fifth Circuit ruling in this post, before the Supreme Court granted review in the Stoneridge case.
The question presented in the Enron case (Regents of the University of California v. Merrill Lynch, et al.) is:
Does liability exist under §10(b) of the Securities Exchange Act of 1934 and Securities and Exchange Commission Rule 10b-5, where an actor knowingly uses or employs deceptive devices and contrivances, as part of a scheme to defraud investors in another public company, but itself makes no affirmative misrepresentations to the market?The case has not yet been assigned a docket number.
The Stoneridge case (docket 06-43) was granted review on March 26, and thus will not be heard until the Court's next Term, starting Oct. 1.
Today at the Supreme Court: 4/6/07
09:06 AM | Jason Harrow | Comments (0)
No oral arguments are scheduled and no non-capital orders or opinions are expected to be issued today.
Thursday, April 05, 2007
Medellin case due up soon
05:26 PM | Lyle Denniston | Comments (0)
The Supreme Court will take up a new test of presidential authority at its private Conference on April 20, in the case of Medellin v. Texas (06-984). That schedule is indicated on the Court's electronic docket. With the U.S. government joining lawyers for a Mexican national in urging the Justices to take on the case, the chances of review appear enhanced. The case was at the Court once before, but did not result in a ruling on the key issues now at stake.
The case involves the attempt by President Bush to have Texas state courts abide by a ruling of the World Court that the United States, and some of its states, have violated the Vienna Convention on the right of foreign nationals arrested and prosecuted for crime in the U.S. to meet with a diplomat from their home country. An earlier post recounting the government's arguments and the state of Texas; response can be found here.
Briefing in the new case was completed on Wednesday, with the filing of the reply brief for Jose Ernesto Medellin. "A state court," that brief argued, "should not have the final word on whether the United States as a nation abides by its treaty obligations....No one disputes that the Texas court's decision [against Medellin and rejecting presidential authority] stands in the way of the President's efforts to comply with that obligation. It is the unique role of this Court, as the final authority on questions of federal law, to protect the federal government's constitutional power to enter into enforceable treaties and to conduct the foreign relations of the United States without interference from the courts of the several states."
The brief also disputes arguments by the state of Texas that the case is now moot, and that the Supreme Court has already decided the core issues involved.
Medellin's reply brief can be found here. All of the filings in this case, as well as in the earlier appeal to the Supreme Court can be found at this link.
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Recent filing in Uttecht v. Brown
05:24 PM | Kevin Russell | Comments (1)
Last Friday, we filed an amicus brief supporting the respondent in Uttecht v. Brown, No. 06-413, on behalf of the National Association of Criminal Defense Attorneys. The case concerns the constitutional limitations on the dismissal for cause of jurors in capital cases based on their views about the death penalty. Students Steven Sigar and Brian Walker from the Stanford Law School Supreme Court Litigation Clinic worked on the brief with us, as well as Prof. Susan Rozelle of Capital University Law School. The case will be argued in an afternoon session on April 17.
Round-Up
03:50 PM | Gretchen Sund | Comments (0)
In the USA Today, Joan Biskupic reports here on the increasing leadership of Justice Stevens. Here, Aaron Streett of Baker Botts has his latest Supreme Court Report discussing this week's decisions and orders.
In today's Chicago Tribune, Robert Manor and Rick Popely have this article on the implications of the Court's decision in Massachusetts v. EPA. This post at the Warming Law blog discusses the tone and style of the Chief Justice's dissent. At Wired Science, Brandon Keim weighs in here on the significance of the Duke Energy decision.
At Consumer Law & Policy, Brian Wolfman has this post on two attorney's fees cases under consideration by the High Court. AP writer David Eggert reports here on the Court's decision not to hear the Michigan High School Athletic Association's appeal of a gender-equity lawsuit.
In the Yale Daily News, Andrew Mangino has the second part of a two-part profile on Yale Law School Dean Harold Koh, which discusses the possibility that Koh would be a future nominee to the Court.
Today at the Supreme Court: 4/05/07
08:39 AM | Jason Harrow | Comments (0)
No oral arguments are scheduled and no non-capital orders or opinions are expected to be issued today.
Wednesday, April 04, 2007
Round-Up
04:27 PM | Gretchen Sund | Comments (0)
Lyle Denniston has this post at Justice Talking's new blog, "At the Court with Lyle Denniston," discussing the Guantánamo detainees' continuing legal battle and Justice Kennedy's powerful vote. This editorial in today's Washington Post discusses the habeas corpus appeal rights of the prisoners at Guantánamo Bay. At Balkinization, Jonathan Hafetz has these thoughts on the Court's refusal to hear the appeals.
AP writer Samantha Young reports here on the impact of the Supreme Court's ruling in Massachusetts v. EPA on California's plans to set emissions standards; in the LA Times, Janet Wilson and Tim Reiterman have this article. In today's Wall Street Journal, John J. Fialka has this report (subscription req'd) on states' renewed efforts to strengthen controls on greenhouse gases as a result of Monday's decision.
In the New York Times, Felicity Barringer and William Yardley have this article discussing the aftermath of the decision; Scott Malone reports here at Reuters on the likelihood of a national standard for carbon emissions and its impact on the auto industry. Reuters's Chris Baltimore has this report on the President Bush's response to the High Court ruling; Joel Havemann reports here in the LA Times; and the WSJ.com Energy Roundup has this post on Bush's reaction.
Derrick Z. Jackson has this column in today's Boston Globe on the Massachusetts v. EPA decision. At Slate, Christopher Beam gathers bloggers reaction to the ruling on greenhouse gases here. At Prometheus, Roger Pielke Jr. has this post on the decision, which points to a scientific error in Justice Stevens's opinion (via Volokh Conspiracy). Tony Mauro reports here at The BLT on the Court's decision and Justice Kennedy's crucial vote.
Upcoming Event
11:02 AM | Gretchen Sund | Comments (0)
Tomorrow, from 9:30 - 11:00 a.m., ACS is hosting a press briefing on BCI Coca-Cola Bottling Co. of Los Angeles v. EEOC, which will be heard by the Court on April 18. Experts on both sides will discuss this employment discrimination case. Additional details can be found here.
Discussion Board: Duke Energy and Its NSR Implications
10:26 AM | Gretchen Sund | Comments (0)
The following Environmental Defense v. Duke Energy discussion board post is by Paul Gutermann, head of Akin Gump’s Energy, Land Use and Environmental practice. He was lead trial counsel for Dynegy Midwest Generation and Illinois Power Company in defense of one of EPA's utility enforcement initiative New Source Review (NSR) cases and was subsequently retained by Ohio Edison to prepare its remedy case for trial.
First of all, congratulations to Sean for his victory. He and the others who filed briefs on behalf of petitioners correctly focused on several of the weak reeds on which Duke’s arguments depended. First, Duke argued, on the basis of little legislative history that Congress adopted a pre-existing regulatory interpretation of “modification” when it added the NSR program to the Clean Air Act. Second, having been led in that direction by the 4th Circuit, Duke argued that the term “modification” had to be interpreted identically for both NSR and new source performance standards (NSPS). Third, Duke relied upon two decisions by one-time Director of Stationary Source Enforcement, Ed Reich, that NSR required proof of both an hourly emissions rate increase and an increase in annual emissions. In each instance, the Court eviscerated those arguments and, given the history of regulatory distinction between the NSR and NSPS programs, reached the correct result.
Having said that, however, I do not believe the Supreme Court’s decision in Duke will have significant long-term effects for either the enforcement cases or the future of NSR regulations. Before addressing those points, I want to respond to Sean’s contention that the NSR cases have significant public health implications. I spent many months on behalf of Illinois Power and Ohio Edison challenging EPA's claims of environmental and public health impacts from the supposed “excess” emissions from the power plants and the proof the agency was able to muster in its behalf. While the topic would require too much of a detour to address fully and all the American Lung Association and Environmental Integrity Project reports to the contrary notwithstanding, EPA's proof of harm was distinctly underwhelming.
Continue reading "Discussion Board: Duke Energy and Its NSR Implications" »
Today at the Supreme Court: 4/4/07
08:50 AM | Jason Harrow | Comments (0)
No oral arguments are scheduled and no non-capital orders or opinions are expected to be issued today.
Tuesday, April 03, 2007
A detainee petition now available
06:53 PM | Lyle Denniston | Comments (1)
nNearly two months after it was originally filed at the Supreme Court, a Guantanamo Bay detainee's petition for review has just become available in a partially censored form. The case is In re Ali (docket 06-1194), involving a member of a persecuted Chinese minority, the Uighurs, who has been held at the military prison camp for more than five years. The public version of his petition can be found here.
The petition involves 32-year-old Anwar Hassan (he is identified in court papers as Ali), who has been at Guantanamo Bay since February 2002. At the military prison camp in Cuba, he was ruled not to be an "enemy combatant" by a military Combatant Status Review Tribunal. Military interrogators had sugested that he be released and given political asylum in another country, not under Chinese rule. But a second CSRT ruled, after demands by high Pentagon officials to reconsider, that he was an "enemy combatant" who must remain detained.
After he filed his challenging habeas petition in U.S. District Court in Washington, his case was put on hold while other detainees' cases went up to the D.C. Circuit Court. Ultimately, the Circuit Court ruled -- eight days after Ali had filed his petition for review in the Supreme Court -- that Congress had taken away all habeas rights of Guantanamo prisoners. That is a ruling the Supreme Court on Monday declined to review.
It is unclear what effect the Supreme Court's Monday order will have on Ali's petition. He seeks to raise an issue that was not before the Court in those other cases -- that is, whether the Supreme Court retains the authority despite congressional court-stripping efforts to review his case as an original habeas plea.
The Court on March 16 asked the Justice Department for a response to the petition. It is due on April 16.
Guide to the Discussion Boards
06:00 PM | Jason Harrow | Comments (0)
Here's a quick guide to all of our posts analyzing the Court's decisions in Mass v. EPA and Environmental Defense v. Duke Energy in case you missed anything.
Professor Jonathan Adler led off the Mass v. EPA discussion here, wondering if the decision was "SCRAP for a new generation." David Rivkin then weighed in, stating his belief that "the bottom line impact of Massachusetts is likely to be quite limited." Mark Moller of the Cato Institute also agreed with this view, stating here that Court didn't really set a "high bar" for the EPA going forward. Reed Hopper of the Pacific Legal Foundation added his thoughts on Justice Roberts' dissent here.
Many on the other side of the issue then added their voices to the debate, as Timothy Dowling of the Community Rights Council warned: "Don't be fooled. It is a momentous decision." And Gary Feinerman, the Solicitor General of Illinois (which was one of the 12 petitioning states in the case), predicted here that the Court's holding on the issue of standing, "could portend a more active role for States in attempting to drive the regulatory agenda at the national level." Dowling later authored another post, this time discussing standing, stating that the dissent responds to the majority's claims "with a series of omissions and straw men." Mark Moller also came in again tonight, as he wonders here if it were "possible to read the decision as a collateral casualty of the President’s aggressive and unrelenting efforts to bolster the power of the Office of the President."
In the Duke Energy case, David Rivkin posted his thoughts here, claiming that the Court "suggested that it might be inclined to uphold the legality of the Bush Administration’s NSR reforms." In a response here, Sean Donahue, who argued the case for the petitioners, responds by admitting that the decision "may not, by itself, sound the death knell for the Bush Administration’s efforts to 'reform,'" while failing to see how "yesterday’s decision in any way supports those efforts."
More Detail on Mass v. EPA
05:51 PM | Jason Harrow | Comments (0)
For those interested in a more detailed background on Mass. v. EPA, available for download here is a memorandum (issued by Akin Gump) discussing the rationale and potential consequences of the Court's Mass. v. EPA decision and summarizing the case's history. It is by Paul E. Gutermann, the partner in charge of Akin Gump’s Energy, Land Use and Environment practice.
Discussion Board: The Majority's Reasoning is More Persuasive
05:44 PM | Jason Harrow | Comments (0)
The following Mass v. EPA discussion board post is by Timothy J. Dowling. He is Chief Counsel of Community Rights Counsel, and counsel of record on an amicus brief filed in support of Petitioners by a large coalition of local officials. His earlier thoughts on this case are here.
In some of the early reactions to the court’s standing discussion, much has been made of the majority’s reliance on Tennessee Copper and the “special solicitude” the court gives to the interests of a sovereign State in evaluating whether the State has standing to sue. But it is an overstatement to say that the court has revolutionized the law of standing as applied to the States.
To be sure, the court stressed the “special position and interest of Massachusetts,” and it limited its review of Petitioners’ standing submissions to those portions that pertain to Massachusetts. But this discussion might be best viewed as an a fortiori argument. The majority opinion does not conclude that the non-State Petitioners lacked standing. And, as the Chief Justice notes in dissent, the court focuses largely on a non-sovereign interest in its standing analysis, namely the loss of land owned by Massachusetts. The dissent’s suggestion that the court’s reliance on sovereignty is “an implicit concession” that petitioners would otherwise lose on standing seems overwrought.
Continue reading "Discussion Board: The Majority's Reasoning is More Persuasive" »
Blame Bush for Massachusetts v. EPA?
05:42 PM | guest | Comments (0)
Mark Moller
Senior Fellow, Cato InstituteJonathan has asked, elsewhere, whether the Court’s decision in Massachusetts v. EPA is a problem of the EPA's own devising. I wonder, though, whether it is also a problem of President Bush’s devising. Is it possible to read the decision as a collateral casualty of the President’s aggressive and unrelenting efforts to bolster the power of the Office of the President?
Continue reading "Blame Bush for Massachusetts v. EPA?" »
Discussion Board: A View from the Petitioning States
05:33 PM | Jason Harrow | Comments (1)
The following discussion board post is from Gary Feinerman, Solicitor General of Illinois. Illinois was one of the 12 State petitioners in Mass. v. EPA.
The Court’s decision is momentous from an environmental perspective for all of the reasons cited by Timothy Dowling in his post (here). The decision is significant as well for what it says about the States as litigants in federal court and as independent sovereigns in our federal system of government.
In Section IV of its opinion, the Court concludes that Massachusetts, the lead State petitioner, has standing to bring this case. There are two principal components to the Court’s standing analysis. The first component establishes the proposition that States must be treated differently than “normal litigants for purposes of invoking federal jurisdiction,” in that they be accorded “special solicitude in our standing analysis.” The Court noted that “[w]hen a State enters the Union, it surrenders certain sovereign prerogatives,” such as invading a neighboring State to force reductions in greenhouse gas emissions or entering into treaties with foreign nations to do the same. Those sovereign prerogatives, the Court continued, “are now lodged in the Federal Government, and Congress has ordered EPA to protect Massachusetts (among others) by prescribing standards applicable to” emissions from new motor vehicles.
The second component is a relatively conventional application of the three traditional components of standing — injury, causation, and redressability — to the facts of this case. With respect to injury, the Court found that global climate change injures Massachusetts’s interest in its capacity as a landowner, as the rising seas that result from global warming will inundate “a significant fraction of [the State’s] coastal property”; with respect to causation, the Court ruled that domestic motor-vehicle emissions “make a meaningful contribution to” the global climate change that is threatening Massachusetts’s land; and with respect to redressability, the Court held that regulating such emissions would slow or reduce global climate change.
Continue reading "Discussion Board: A View from the Petitioning States" »
Discussion Board: A Few Adoring Comments on Duke Energy
05:23 PM | Jason Harrow | Comments (0)
The following discussion board post is by Sean Donahue of Donahue & Goldberg, LLP. Sean successfully argued the case for the petitioners.
The Clean Air Act’s New Source Review (NSR) provisions require that operators of large stationary sources of pollution get a permit, and install the best available control technology, when they make a “modification,” broadly defined in the statute to mean “any physical change” in a source that “increases the amount” of any air pollutant emitted. This was an important qualification to Congress’s “grandfathering” of sources already in operation when NSR was enacted in 1977 – sources that Congress had been assured would be decommissioned before long. The modification provision comes into play as owners of old sources – which typically emit considerably more pollutants than do sources employing modern controls – seek to rehabilitate aging plants, while also trying to preserve their economically attractive grandfathered status. One central dispute concerns how to determine whether such a modernization project “increases the amount” of pollution emitted: If a project “restores capacity” at an aging plant – increasing the amount of time an aging facility can operate (and thereby the amount of pollution it actually emits), without increasing the design capacity of the plant, understood in terms of the maximum hourly emissions rate – has it “increased the amount” emitted, and thereby engaged in a “modification”?
In yesterday’s decision in Environmental Defense v. Duke Energy, an NSR enforcement suit, the Court set aside a Fourth Circuit ruling that construed EPA’s regulations to require a permit only when a modernization project increases the maximum hourly rate at which a source is capable of emitting pollution -- thereby effectively invalidating the regulations as written. The case was the first in decades in which the Court granted a petition for certiorari at the behest of an environment organization over the federal government’s opposition. It illustrates that private parties’ decision to intervene to support governmental enforcement (rather than say, remaining closer to the sidelines as amici) can make a decisive difference: Had intervenors not sought cert, it would have left in place a Fourth Circuit decision that severely limited the scope of the NSR rules; that was relied on by other courts to reject EPA enforcement efforts; that conflicted with decisions of the court (the D.C. Circuit) to which Congress gave exclusive authority to review the validity of Clean Air Act regulations; and that had been cited by EPA itself as reflective of judicial confusion warranting a scaling back of the NSR program. But while the environmentalists’ participation was necessary to the result yesterday, the Court’s decision also reflected the vigor and effectiveness with which the Justice Department defended the NSR program once cert was granted.
Continue reading "Discussion Board: A Few Adoring Comments on Duke Energy" »
Blog Round-Up
04:15 PM | Gretchen Sund | Comments (0)
The WSJ.com Energy Roundup collects reactions to the Court's decision in Massachusetts v. EPA from the bloggers and other analysts here and here. Jack Balkin has this post on standing and executive power issues in Massachusetts v. EPA and these additional thoughts at Balkinization. At Opinio Juris, Roger Alford weighs in here on the Supreme Court's ruling. His is the first post in an ongoing discussion with various international environmental law experts.
Jonathan Adler of the Volokh Conspiracy has this post on the Court's narrow decision in Duke Energy and the impact for "New Source Review" (NSR) litigation. Duke Energy has this news release addressing the joint motion to dismiss NSR trial proceedings.
Peter Lattman of the WSJ.com Law Blog has these comments on both environmental cases. At Concurring Opinions, Stephanie Tai weighs in here.
At Crime & Consequences, Kent Scheidegger has this post on the Court's denial of certiorari in the Guantanamo detainee cases, Boumediene v. Bush and Al Odah v. Rumsfeld.
News Round-Up
03:16 PM | Gretchen Sund | Comments (0)
In today's New York Times, Linda Greenhouse reports here on the Court's ruling that the EPA has the power to regulate greenhouse gas emissions from automobiles. David G. Savage of the LA Times has this article on the decision; the USA Today's Joan Biskupic reports here; Tony Mauro has this report in the Legal Times; in today's Washington Post, Robert Barnes and Juliet Eilperin discuss the ruling here; Beth Daley has this article in the Boston Globe; the Chicago Tribune's Michael Hawthorne reports here; and Warren Richey and Brad Knickerbocker have this article in the Christian Science Monitor. In addition, Felicity Barringer has this news analysis in the New York Times and Jesse Stanchak summarizes various news reports on the Court's ruling here at Slate.
Yesterday, WBUR's "Here and Now" had this audio segment with SCOTUSblog's own Lyle Denniston on the Court's decision in Massachusetts v. EPA; Elizabeth Shogren has these reports on NPR's "Morning Edition" and "All Things Considered" and Alex Chadwick talks with Vickie Patton, a senior EPA attorney, here on "Day to Day."
The AP's Christopher S. Rugaber reports here on the Court's decision in Duke Energy; the Charlotte Business Journal has this article; J.R. Pegg reports here for the Environment News Service; and at MarketWatch, Stephanie I. Cohen has this report on the Supreme Court's ruling.
The WSJ.com Energy Roundup blog collects the stories in today's Wall Street Journal on the impact of the Court's decisions in the two environmental cases here. In today's Washington Post, this editorial discusses both of yesterday's rulings.
NPR's Nina Totenberg had this report about the Court's refusal to hear the Guantanamo detainees' appeal on "All Things Considered." Linda Greenhouse reports here in the New York Times; David G. Savage of the LA Times has this article; the Washington Post's Amy Goldstein reports here; and Joan Biskupic has this story in the USA Today.
Discussion Board: Mass v. EPA - A Major Victory
11:40 AM | Gretchen Sund | Comments (1)
The following discussion board post is from Timothy J. Dowling, Chief Counsel of Community Rights Counsel. He is counsel of record on an amicus brief filed in support of Petitioners by a large coalition of local officials, the first responders to the harm caused by global warming.
Some have suggested the ruling in Mass. v. EPA is largely symbolic and lacking in practical impact. Don’t be fooled. It is a momentous decision.
The ruling represents a tremendous victory for State and local officials and the other Petitioners in one of the most important environmental cases ever decided by the Supreme Court on the preeminent environmental challenge of our time. Many people deserve congratulations, but special kudos are due to Massachusetts Assistant Attorney General Jim Milkey for his terrific oral argument, Georgetown University Law Professor Lisa Heinzerling for the magnificent briefing (with assists from many others), and the 19 groups led by the International Center for Technology Assessment that had the prescience to file the original rulemaking petition with EPA back in 1999.
This post describes some of the practical consequences of the ruling. In a subsequent post, I’ll offer some thoughts on the legal analysis articulated by the majority and dissenting opinions.
Continue reading "Discussion Board: Mass v. EPA - A Major Victory" »
Reflections on Mass v. EPA
11:14 AM | guest | Comments (0)
The following discussion board post is by Reed Hopper, Principal Attorney with the Pacific Legal Foundation. The Foundation submitted an amicus brief in support of EPA in Mass. v. EPA.
Chief Justice Roberts’ explication of the purpose behind the standing requirement is noteworthy. He remarked that the “limitation of the judicial power to cases and controversies ‘is crucial in maintaining the tripartite allocation of power set forth in the Constitution’” and lamented that the “Court’s self-professed relaxation of those Article III requirements has caused us to transgress ‘the proper–and properly limited–role of the courts in a democratic society.’” He is referring, of course, to the role of the courts as arbiters of the law as opposed to the policy makers who reside in Congress. And, I think Justice Roberts is correct to lament this transgression. But, I think Justice Roberts is incorrect in his sanguine prediction that “the Court’s ‘special solicitude’ for Massachusetts limits the future applicability of the diluted standing requirements applied in this case.”
Continue reading "Reflections on Mass v. EPA" »
Discussion Board: Did The Court Raise a "High Bar"?
09:00 AM | Jason Harrow | Comments (2)
The following discussion board post is by Mark Moller, a senior fellow at the Cato Institute in Washington. The Cato Institute filed as an amicus supporting the respondent in Mass v. EPA.
Earlier today, a commentator on NPR suggested that the Court has raised a “high bar” for the EPA, if the EPA wants to decline, again, to regulate global warming after remand. Is that right?
Not really.
“Regulation,” under the Clean Air Act, can take a number of forms: It can take the form of declaring aspirational emission standards. Or it can take more draconian forms, such as looming technology mandates and imminent implementation deadlines, backed by tough civil and criminal penalties.
Even assuming that, after today, the EPA has to “regulate” in the sense of promulgating some GHG emission standards, the Court’s decision leaves the EPA with ample room to argue that it can defer deciding when and how to implement those standards in light of the potentially high and uncertain costs of implementation.
Continue reading "Discussion Board: Did The Court Raise a "High Bar"?" »
Today at the Supreme Court: 4/3/07
08:56 AM | Jason Harrow | Comments (1)
No oral arguments are scheduled and no non-capital orders or opinions are expected to be issued today.
Monday, April 02, 2007
Discussion Board: Thoughts on Mass v. EPA
06:43 PM | Jason Harrow | Comments (3)
The following is a discussion board post from David B. Rivkin, Jr., a partner in the Washington, D.C. office of Baker & Hostetler LLP. He participated in this case as an amicus, filing a brief on behalf of constitutional law experts supporting the respondent. We will continue to post thoughts on this decision, featuring contributors on both sides of the issue.
The practical result of today’s ruling in Massachusetts v. EPA, No. 05-1120, is that five justices, in a binding decision of the Supreme Court, have ordered EPA to review its decision to not regulate greenhouse gas emissions from new motor vehicles. The Court does not tell EPA what decision to reach, and EPA may very well reach the same result as before, just on different grounds that are more permissible to this Court.
What is remarkable about the decision is that the Chief Justice, in dissent, spent his entire argument reflecting on the gateway issue of standing, expressing grave concerns about the Court’s venture into issuing symbolic proclamations.
Continue reading "Discussion Board: Thoughts on Mass v. EPA" »
Discussion Board: Initial Thoughts on Duke Energy
05:56 PM | Gretchen Sund | Comments (0)
David B. Rivkin, Jr., is a partner in the Washington, D.C. office of Baker & Hostetler LLP. He participated in this case as an amicus, filing a brief on behalf of a group of law professors, supporting the jurisdictional aspects of the respondent's position.
The Supreme Court’s decision today in Environmental Defense v. Duke Energy Corp., No. 05-848, decided both a great deal and very little in the battles over the legality and propriety of the Environmental Protection Agency’s (“EPA”) new source review (“NSR”) enforcement initiative. On one hand, the Supreme Court rejected the rationale adopted by the Fourth Circuit and at least one other district court and ruled in the government’s favor on a key legal issue—how to define an emission increase for purposes of the NSR program. On the other hand, the Supreme Court did not decide other key disputed issues regarding the NSR program, which have the potential to keep alive Duke Energy and the other lawsuits that are part of EPA’s NSR enforcement initiative. Moreover, the Court suggested that EPA has broad discretion to interpret key components of the NSR program, a key issue in considering the legality of the Bush Administration’s attempts and proposals to reform the NSR program. As a result, it remains to be seen whether Duke Energy will signal the end of the ongoing NSR saga or whether it will simply substitute one issue for another in the pending enforcement actions.
Enacted as part of the Clean Air Act Amendments of 1977, the NSR program was designed to manage economic growth in a way that balances environmental and economic imperatives. The program requires greenfield pollution sources to obtain preconstruction permits and install state of the art pollution control technology when they are constructed. The program also requires that existing sources obtain preconstruction permits, and possibly install this same control technology, when they are modified—that is, when the owner or operator makes a physical or operational change to the source that increases the source’s emissions. EPA’s NSR enforcement initiative consists of a series of lawsuits that the government filed in 1999 against most major electric utilities, claiming that these utilities unlawfully “modified” their power plants without obtaining NSR preconstruction permits. At the Supreme Court level, the Duke Energy case addressed one narrow legal issue: whether the Fourth Circuit was correct in holding that EPA’s regulations must be interpreted as requiring an increase in maximum hourly emissions, rather than maximum annual emissions, for a modification to occur.
The Supreme Court vacated the Fourth Circuit’s opinion and held that interpreting the regulations in effect at the time of the allegedly-unlawful activity to require that a physical change to a source increase the source’s maximum hourly emissions is not consistent with the regulations’ text, and that the regulations’ validity was not at issue in the case. Beyond that, the Supreme Court refused to “consider the significance” of Clean Air Act § 307, which the government and environmental group petitioners argued precluded the Fourth Circuit’s holding.Continue reading "Discussion Board: Initial Thoughts on Duke Energy" »
Is Mass v. EPA "SCRAP for a New Generation"?
01:45 PM | guest | Comments (1)
By Jonathan H. Adler
Professor of Law & Director of the Center for Business Law & Regulation
Case Western Reserve University School of LawAs SCOTUSBlog readers may know, I participated in an amicus brief for the Cato Institute and several law professors arguing against standing in this case, so I find the Chief Justice's dissent more agreeable than the standing analysis in Part IV of Justice Stevens' opinion. Setting aside who is correct, I think that there is language and reasoning in Justice Stevens' opinion that future litigants will rely upon to establish cases in future challenges to federal agency (in)action, and that state litigants may be the primary beneficiaries of this latest twist in the law of standing.
Continue reading "Is Mass v. EPA "SCRAP for a New Generation"?" »
Round-Up
01:09 PM | Gretchen Sund | Comments (0)
James Vicini of Reuters has this story on the Court's decision to deny review of the Guantanamo appeals; the AP's Mark Sherman reports here; Bloomberg's Greg Stohr has this article; the BBC News reports here; and Jason McLure has this post at The BLT.
At The Volokh Conspiracy, Orin Kerr has this analysis of the Court's 5-4 decision in Massachusetts v. EPA, declaring that the EPA has the authority to regulate greenhouse gas emissions from cars under the Clean Air Act. The AP has this report; Jennifer Parker of ABC News reports here; James Vicini has this article at Reuters; Christopher Mims weighs in here at the Scientific American blog. The WSJ.com Energy Roundup gathers reactions to the Court's ruling here.
At MarketWatch, Mark H. Anderson reports here on the EPA case as well as the Court's unanimous decision in Duke Energy. Reuters has this report on the justices' ruling against Duke Energy Corp.; AP writer Pete Yost reports here.
Index: This Morning's Developments
11:04 AM | Jason Harrow | Comments (0)
UPDATE: The statement of Justices Stevens and Kennedy regarding the denial of cert. in Boumediene and the dissent of Justice Breyer can now be found here.
Our post on today's orders (including the denial of Boumediene and Al Odah) can be found here; the regular Order List is here, and Marty Lederman's post on what's next in the detainee cases is here.
The Court also decided Environmental Defense v. Duke Energy and Mass. v. EPA today. Our news story is here, and the opinions are here. We will feature a discussion board with ongoing commentary on these decisions throughout the day today.
What Now in the GTMO Cases?
10:47 AM | Marty Lederman | Comments (0)
As Lyle explains below, the Court today denied the cert. petitions in the Guantanamo detainee cases, choosing instead to wait until the Pentagon's detention decisions have been reviewed by the U.S. Court of Appeals for the District of Columbia Circuit, as prescribed in the Detainee Treatment Act and Military Commissions Act. What this obviously means is that Justice Kennedy was unwilling to tip his hand on the merits either way within the Court. (If either block of four Justices had been confident of gaining his vote, they presumably would have voted to grant the petition.)
Justice Stevens and Justice Kennedy have been the principal architects of the Court's detainee cases, and they wrote jointly today with a stern warning to the government not to delay the proceedings below:
Despite the obvious importance of the issues raised in these cases, we are persuaded that traditional rules governing our decision of constitutional questions, see Ashwander v. TVA, 297 U. S. 288, 341 (1936) (Brandeis, J., concurring), and our practice of requiring the exhaustion of available remedies as a precondition to accepting jurisdiction over applications for the writ of habeas corpus, cf. Ex parte Hawk, 321 U. S. 114 (1944) (per curiam), make it appropriate to deny these petitions at this time. However, "[t]his Court has frequently recognized that the policy underlying the exhaustion-of-remedies doctrine does not require the exhaustion of inadequate remedies." Marino v. Ragen, 332 U. S. 561, 570, n. 12 (1947) (Rutledge, J., concurring). [NOTE Justice Stevens's continuing resurrection of the wisdom of Justice Rutledge's wartime decisions -- Marino was a case of which Justice Rutledge and his clerk, one John Stevens, were especially proud -- see Diane Amann's new article, 74 Fordham L. Rev. 1569, 1580-1582.] If petitioners later seek to establish that the Government has unreasonably delayed proceedings under the Detainee Treatment Act of 2005, Tit. X, 119 Stat. 2739, or some other and ongoing injury, alternative means exist for us to consider our jurisdiction over the allegations made by petitioners before the Court of Appeals. See 28 U. S. C. §§1651(a), 2241. Were the Government to take additional steps to prejudice the position of petitioners in seeking review in this Court, "courts of competent jurisdiction," including this Court, "should act promptly to ensure that the office and purposes of the writ of habeas corpus are not compromised." Padilla v. Hanft, 547 U. S. 1062, 1064 (2006) (Kennedy, J., concurring in denial of certiorari). And as always, denial of certiorari does not constitute an expression of any opinion on the merits. See Rasul v. Bush, 542 U. S. 466, 480-481 (2004) (majority opinion of Stevens, J.); id., at 487 (Kennedy, J., concurring in judgment).So what now?
Continue reading "What Now in the GTMO Cases?" »
Today's Orders and Opinions
10:14 AM | Jason Harrow | Comments (2)
UPDATE: The statement of Justices Stevens and Kennedy regarding the denial of cert. in Boumediene and the dissent of Justice Breyer can now be found here.
The Order List can now be found here. The Court also released this separate order requesting supplemental briefing in Panetti v. Quarterman.
The Court's opinion in Duke Energy (05-848) can now be found here.
The Court's opinion in Mass v. EPA can now be found here.
EPA must consider global warming again
10:12 AM | Lyle Denniston | Comments (2)
Ruling 5-4, the Supreme Court on Monday found that the federal government had the authority to regulate greenhouse gases that may contribute to global warming, and must examine anew the scientific evidence of a link between those gases contained in the exhausts of new cars and trucks and climate change. In the most important environmental ruling in years, the Court rebuffed the Environmental Protection Agency's claim that regulating those gases was beyond its authority, and the agency's claim that it need not take action even if it did have the power to do so. Justice John Paul Stevens wrote for the majority.
That decision came in Massachusetts v. EPA (05-1120). The Court also concluded that the state of Massachusetts had a right to sue to challenge EPA on the climate change issue because it had shown it would be affected directly by global warming. Relying primarily on a 1907 ruling (Georgia v. Tennnessee Copper Co.), the Court said it was noteworthy that the key party challenging EPA on the issue was a sovereign state. The Court quoted from that opinion by Justice Oliver Wendell Holmes, Jr.: "The state...has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air." Congress, the Court said, has ordered EPA to protect Massachusetts and others by laying down standards to regulate air pollutants.
This was one of two rulings on the merits Monday.
The second decision, also in an environmental case, upheld EPA's view that changes in power plants that may contribute to air pollution must be done only with a permit if there is an annual increase in emissions. The Court rejected the Fourth Circuit Court's view that the permit requirement applied only if there is an hourly increase in emissions. The case was Environmental Defense Fund v. Duke Energy Corp. (05-848). The decision was written by Justice David H. Souter. The vote was unanimous, although Justice Clarence Thomas filed a separate concurring opinion.
In the global warming decision, the Court majority had no apparent difficulty concluding that carbon dioxide and other "greenhouse gases" emitted from the exhausts of new cars and trucks were pollutants that Congress had in mind in requiring regulation of dirty air under the Clean Air Act. It noted that, as a consequence of global warming, "rising seas have already begun to swallow Massachusetts' coastal land. The Court also said that, while global warming has many causes, it is not necessary that EPA be able to reverse global warming by dealing with all of the causes. It at least has a duty to take steps to slow or reduce the climate change, Stevens wrote.
Continue reading "EPA must consider global warming again" »
Analysis: Court denies detainees' habeas cases
10:03 AM | Lyle Denniston | Comments (1)
The Supreme Court on Monday denied review in two new Guantanamo detainee cases. Three Justices dissented, and two others wrote separately about the denial. Had any combination of four of those Justices voted for review, of course, the cases would have been granted.
The action of the Court, although nowhere near to being a ruling on the actual issues involved, nevertheless was a sweeping victory for the Bush Administration, and put the fate of the detainees primarily in the hands of the U.S. military at Guantanamo Bay, Cuba, with only limited -- and later --- review in the civilian courts.
The practical results, so far as the detainees are concerned, are that (1) they no longer have any right to file a habeas challenge to their detention or to their designation as enemy combatants because Congress has taken that away and the lower court ruling that the Court left undisturbed Monday upheld that withdrawal, (2) those not charged with war crimes must now go through a military-only review of their enemy combatant status in proceedings that the detainees' lawyers consider seriously inadequate; some had had that review, but there is a question whether another is to be held for most of them, (3) those charged with war crimes must now go through trials before new "military commissions" with procedures also widely attacked as inadequate and can go further only if convicted, (4) and detainees in both groups, after going through those two processes, have only a limited right to challenge their detention status or their military commission convictions in the D.C. Circuit Court, with possible later review by the Supreme Court -- a process that, in its entirety, could take months, and maybe longer.
The Court's Orders List contained no entries to indicate how the Justices might react to a separate pending appeal by two detainees facing military commission trials Hamdan/Khadr v. Gates, 05-1169). But, in view of the denials in the other detainee cases, the prospects for review of that case are remote, at most.
The Court's denial of review of the two cases was not explained, as usual. But the two Justices who filed a separate "statement," John Paul Stevens and Anthony M. Kennedy, said that the Court had passed up review to avoid deciding constitutional issues before the detainees had used their "available remedies" under federal laws -- the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006.
Those Justices warned, however, that if the government later is found to have engaged in "unreasonable" delay of those remedies, or caused "some other and ongoing injury," then "alternative means exist for us to consider our jurisdiction" over the detainees' allegations. They added that the Court's denial of review does not amount to an expression of "any opinion" on the merits of the detainee claims. Even so, the detainees' situation for some time to come will be governed solely by the DTA and the MCA, with no role for federal habeas courts.
Justice Stephen G. Breyer, joined by Justices David H. Souter and Ruth Bader Ginsburg, dissented from the denial. Breyer and Souter also said they would not only grant review, but expedite it.
It was apparent from the array of votes publicly recorded in the cases that those Justices who wanted to hear the cases, now or next Term, very likely had failed to attract the support of Justice Kennedy. While Justice Stevens probably would have been inclined to vote for review, that would have meant only four votes for review, enough for review but leaving the outcome on the merits uncertain because of Kennedy. Thus, Stevens appeared to have opted to join with Kennedy in writing separately to salvage some prospect of ultimate relief for the detainees if the government does not deal promptly or fairly with the detainees. The nature of that potential relief, however, was uncertain. Stevens and Kennedy indicated that the Court retained authority under both the All Writs Act and the general habeas corpus law. But Congress, in enacting the court-stripping provisions of the Military Commissions Act, appeared to have moved to cut off any remedy other than the limited review in the D.C. Circuit. It is unclear what the scope of Supreme Court review would be beyond that, in any new appeal to the Justices.
The Court did not grant review of any new cases on Monday.
Continue reading "Analysis: Court denies detainees' habeas cases" »
Today at the Supreme Court: 4/2/07
09:08 AM | Jason Harrow | Comments (0)
The Court is scheduled to issue regular orders at 10 AM eastern and is also likely to release one or more opinions at that time. We will have coverage of both as soon as possible after they are made public.
Friday, March 30, 2007
Round-Up
04:36 PM | Gretchen Sund | Comments (0)
In today's New York Times, Linda Greenhouse reports here on the Supreme Court's consideration of appeals from Guantánamo detainees at today's Conference.
At the WSJ.com Law Blog, Peter Lattman has this post about the Court's decision to grant cert in the securities case, Stoneridge Investment Partners v. Scientific-Atlanta.
The Associated Press has this article on the Michigan High School Athletic Association's gender equity lawsuit that is under review at today's Conference. Ken Kobayashi of the Honolulu Advertiser reports here about a case regarding a Hawaii school's admissions policy, which will be reviewed at the 4/13 Conference.
Kent Scheidegger reports here at Crime & Consequences that bottom-side briefs were filed yesterday in Panetti v. Quarterman.
Customary International Law And Alvarez-Machain
12:10 PM | Amy Howe | Comments (0)
In Brief, the online magazine of the Virginia Law Review, has this essay by Judge William Fletcher of the Ninth Circuit analyzing the Supreme Court's 2004 decision in Sosa v. Alvarez-Machain, as well as responses to Judge Fletcher's essay from Professors Ernest Young, John Harrison, and Anthony Bellia.
Today at the Supreme Court: 3/30/07
09:09 AM | Jason Harrow | Comments (0)
UPDATE 8:30 p.m. Because the Court closed for the day some hours ago, it became apparent that there were no immediate orders out of the Friday Conference. All results will emerge at 10 a.m. Monday.
The Court is holding a private Conference today to discuss new and pending cases. Our list of "Petitions to Watch" for this Conference can be found here.
Several scenarios involving the Boumediene/Al Odah detainee cases, which are being considered by the Court today, can be found in an earlier post here or in today's New York Times here. Additionally, the petitioners in Hamdan v. Gates and Khadr v. Bush have asked the Court once again to consider their petition at today's Conference (see here).
If any orders relating to these or other cases are issued this afternoon, we will post them promptly. Regular orders relating to today's Conference are scheduled to be released Monday at 10 AM eastern.
Thursday, March 29, 2007
Round-Up
04:22 PM | Gretchen Sund | Comments (0)
In today's Washington Post, Robert Barnes and Carrie Johnson report here on Tellabs Inc. v. Makor Issues & Rights; Bloomberg News has this story.
Barnes also has this article on the verbal sparring between Arthur Miller and Justice Scalia during yesterday's oral arguments; AP writer Mark Sherman has this report. At the WSJ.com Law Blog, Peter Lattman reports here on Tellabs.
Steve Chapman of the Chicago Tribune has this column on the Leegin price fixing case.
Quick action on Hamdan urged
03:22 PM | Lyle Denniston | Comments (0)
UPDATE 8 p.m. The government's brief in opposition has now been filed. It can be found here. It urges the Court to deny the Hamdan/Khadr petition or, as an alternative, to hold it until the other detainee appeals have been resolved. The brief also argues that the joint petition of two detainees involving two different cases and two different lower courts may not be a proper filing under the Court's rules, It suggests that the two detainees can file papers in the other detainee cases (if those are granted) to make any argument they would assert in their own appeal.
In addition, a group of present and former members of the British Parliament and the European Parliament filed an amicus brief, arguing that the new Military Commissions Act's court-stripping provisions "fundamentally offend the rule of law and contravene treaties by which the United States is bound and upon which it is built." That brief is here.Lawyers for Salim Ahmed Hamdan, facing a war crimes trial before a U.S. military commission, have asked the Supreme Court to consider his appeal on his legal rights at its private Conference on Friday of this week. After the Court had refused on March 5 to expedite the appeal on its calendar, it had appeared that the case would not be ready for early consideration. Hamdan's lawyers have now suggested reasons for taking it up promptly.
In a letter to the Court on Wednesday (found here), Hamdan's counsel asked that the Court consider Hamdan's appeal (Hamdan v. Gates, 06-1169) this week along with two other appeals by Guantanamo Bay detainees who are challenging their detention. Those cases, along with motions to expedite in each, will be before the Justices at the Friday Conference. (If any order emerges from the Conference on Friday, this blog will post it promptly.)
Hamdan's appeal involves, in addition to him, another Guantanamo detainee who is facing a war crimes charge -- Omar Khadr (his part of the petition is Khadr v. Bush). Hamdan's appeal is from a District Court ruling dismissing his case under the new Military Commissions Act of 2006, and asks the Justices to hear the case without waiting for a D.C. Circuit ruling on an appeal that Hamdan also has pending there. Khadr's part of the appeal asks the Court to review the D.C. Circuit's Feb. 20 ruling using the MCA to dismiss all detainees' pending habeas cases. That Circuit Court ruling is the same one that is at issue in the two other appeals -- Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1169).
In Wednesday's letter, the Court was advised of the guilty plea on Monday of another detainee before a military commission -- Australian David Hicks. His was the first military commission trial to open.
Hicks was one of the detainees involved in the other appeals the Court is ready to consider. The Justice Department had suggested to the Court, in opposing quick action on the Hamdan/Khadr appeal, that Hicks could raise issues about detainees facing military commission trials as part of the other appeals. The letter quotes the government's earlier suggestion that, if the Court wished to consider how the Military Commissions Act applied to detainees facing commission trials, it could do so in the other cases.
With Hicks' guilty plea this week, Hamdan's lawyers said that would "preclude this Court's consideration of the military commission matters in the context" of the other appeals. Only the Hamdan/Khadr petition, the letter added, "presents the Court with the opportunity to fully resolve at this time the challenges to the status of the Guantanamo detainees."
The letter also argued that the Court should act soon on detainees facing war crimes trials because those are going forward under the D.C. Circuit ruling in February holding that detainees have no constitutional rights to pursue in federal court.
Finally, the letter notified the Court that the D.C. Circuit has put Hamdan's pending appeal there on hold until the Supreme Court acts on his petition to the Supreme Court.
Meanwhile, the Justice Department was scheduled to file later Thursday its formal response to the Hamdan/Khadr petition. Earlier, it opposed expedited consideration of that petition, but it did not seek additional time to file its response, which was thus due today. (When the brief becomes available, it will be posted here.)
In another development, eight constitutional law professors and a former federal judge, William S. Sessions, filed an amicus brief urging the Court to hear the Hamdan case promptly (download here). "This case presents constitutional issues of exceptional importance and urgency warranting this Court's review" without awaiting further action in the D.C.Circuit on Hamdan's case. The brief contains a broad challenge to the Circuit Court ruling dismissing Guantanamo habeas cases under the Commissions Act, and to the Act itself. The Act's court-stripping provision, the brief contends, violates the Constitution's limit on suspending the writ of habeas corpus, and intrudes on the Supreme Court's Article III powers.
The Most Important Cases of This Term?
12:25 PM | David Stras | Comments (14)
In connection with a possible news appearance, I have been asked to identify the most important cases for this Term. The obvious candidates, of course, are the school diversity and partial birth abortion cases. But are there any dark-horse candidates out there that might be quite significant, but that have received little public attention or news coverage? Please feel free to post in the comments or to e-mail me directly. I look forward to your comments on this question.
Today at the Supreme Court: 3/29/07
09:18 AM | Jason Harrow | Comments (0)
No oral arguments are scheduled and no non-capital orders or opinions are expected to be issued today.
Wednesday, March 28, 2007
Round-Up
04:14 PM | Gretchen Sund | Comments (0)
In the Wall Street Journal, Mark H. Anderson reports here (subscription req'd) on today's argument regarding standards for securities class-action lawsuits; AP writer Marcy Gordon has this article. At the WSJ.com Law Blog, Peter Lattman has this preview of Tellabs Inc. v. Makor Issues & Rights Ltd; James P. Miller reports here in the Chicago Tribune. Yesterday, Jess Bravin and Lattman had this article (subscription req'd) in the Wall Street Journal discussing both Tellabs and Credit Suisse v. Billing.
Aaron Streett's latest edition of "Supreme Court Today," covering yesterday's opinions and grants, is here. Paul Secunda of Workplace Prof Blog reports here on the Court's decision in Rockwell.
In the Legal Times, Tony Mauro's latest Courtside column is here, discussing Martin Garbus's new book, "The Next 25 Years: The New Supreme Court and What It Means for Americans."
At the Antitrust Review, Manfred Gabriel has this post on the forthcoming decision in Twombly and David Fischer has this analysis of the oral argument in Leegin Creative Leather Products, Inc. v. PSKS, Inc.
Rick Hasen of Election Law Blog recently posted a draft of his paper, "The Untimely Death of Bush v. Gore," here on SSRN.
At Concurring Opinions, Melissa Waters has this post on the Supreme Court's decision last term in Sanchez-Llamas v. Oregon and what it reveals about Chief Justice Roberts; and Alice Ristroph has this post discussing the Court's opinions in Lochner v. New York and Jacobson v. Massachusetts and their relation to the state's interest in preserving individual lives.
Here, at Sentencing Law and Policy, Doug Berman previews the Federal Sentencing Reporter's latest issue, entitled "Claiborne & Rita: Reasonableness Review in the Supreme Court."
Today's Transcript
02:55 PM | Jason Harrow | Comments (2)
The transcript in Telllabs v. Makor is now available here.
Today at the Supreme Court: 3/28/07
08:52 AM | Jason Harrow | Comments (0)
Beginning at 10 AM eastern, the Court will hear one hour of oral argument in Tellabs v. Makor Issues and Rights (preview here). A transcript should be available sometime this afternoon.
No opinions on the merits are expected to be released.
Tuesday, March 27, 2007
Argument Preview: Tellabs v. Makor on 3/28
11:03 PM | Jason Harrow | Comments (1)
The following argument preview was written by Anitha Reddy of the Stanford Supreme Court Litigation Clinic.
Tomorrow in Tellabs, Inc. v. Makor Issues & Rights, Ltd. (No. 06-484), the Court will consider how strictly courts should interpret the heightened pleading requirements of the Private Securities Litigation Reform Act (PSLRA) when ruling on a motion to dismiss a securities fraud complaint. The case asks whether a court must weigh competing inferences of innocence in determining whether the plaintiff has alleged facts sufficient to give rise to a “strong inference” that – as mandated by the Act – the defendant acted with the required state of mind.
Carter G. Phillips of Sidley Austin in Washington, D.C. will argue on behalf of petitioners Tellabs and Notebaert. Professor Arthur Miller of Harvard Law School will argue on behalf of the respondent shareholders. Assistant to the Solicitor General Kannon Shanmugam will argue for the United States as an amicus in support of Tellabs. The briefs of both parties along with some of the amicus briefs, including that of the United States, are available here.
Continue reading "Argument Preview: Tellabs v. Makor on 3/28" »
New claim of presidential power
06:05 PM | Lyle Denniston | Comments (2)
UPDATE 2: 6:05 PM: Texas's brief opposing Supreme Court review can now be found here. The post below now includes some discussion of the arguments Texas makes.
UPDATE: 2:45 PM: The Solicitor General's amicus brief discussed in this post can now be found here.
The Bush Administration, continuing its sturdy defense of presidential powers, has urged the Supreme Court to rule that President Bush had the authority to direct state courts to obey a decision of the World Court bearing on state criminal prosecutions. The state of Texas disputed that plea in urging the Court not to hear again a case that was before the Justices in 2005, but did not produce a ruling at that time.
In an amicus filing in the case of Medellin v. Texas (06-984), the government called for reversal of a Texas state court ruling that Bush did not have the power to ensure that state courts complied with the international tribunal's decision on the rights of foreign nationals arrested and prosecuted within the U.S. for crimes here. The state argued in response that the case is moot because Medellin has had access to the courts in Texas to challenge his conviction, and that is all that the World Court ruling required. While Texas challenges the Buish Administration's assertion of executive power, it suggests that that question, too, is moot.
The Vienna Convention on Consular Relations gives such foreign nationals a right to meet with a diplomatic officer from his or her home country when arrested in another country. The World Court (the International Court of Justice at The Hague) ruled that the U.S. government must take steps to assure that 51 Mexican nationals Iincluding Medellin) who were prosecuted in the U.S. had that right, despite state court rules that barred them from relying upon the Convention in challenging their convictions.
The government's brief was filed last Thursday but has just now become publicly available. Similarly, the state's brief in opposition, filed last week, is now publicly available.
The government supports the appeal of Jose Ernesto Medellin, a Mexican national who was convicted of a double rape and murder in Houston in 1993. Medellin claims that his consular access rights were violated, but he has been denied a chance to press that claim, both by the Fifth Circuit Court and by Texas' highest criminal court. In the most recent decision, last Nov. 15, the Texas state court found he had failed to raise that issue properly as his case unfolded in state court. Medellin's appeal to the Justices was filed on January 16.
Medellin's appeal is also supported by the Mexican government and by a group of law professors who are experts on World Court matters.
The case has not yet been scheduled for a Conference of the Justices. It is expected to go to the Justices sometime in April, after Medellin's counsel has filed a reply.
Continue reading "New claim of presidential power" »
New Patent-Related Cert. Petition
05:29 PM | Jason Harrow | Comments (0)
Amgen Inc. has recently filed this new cert. petition in the case of Amgen v. Hoechst Marion Roussel, Inc., et al. On appeal from the Court of Appeals for the Federal Circuit, the petition, docketed as 06-1291, raises two issues pertaining to patent law (full question presented after the jump).
Roy Englert, Jr. of Robbins, Russell, Englert, Orseck & Untereiner is counsel of record.
Continue reading "New Patent-Related Cert. Petition" »
Round-Up
04:25 PM | Gretchen Sund | Comments (0)
At Market Watch, Mark H. Anderson has this article on today's argument in Credit Suisse v. Billing; Christopher S. Rugaber of the Associated Press reports here.
AP writer Mark Sherman has this report on the Court's decision in Rockwell clarifying the False Claims Act; Greg Stohr reports here at Bloomberg. Stohr also has this article on the Court's slower pace in issuing rulings this year. At the BLT, Tony Mauro has this post on the "molasses-like" pace.
Mauro also has this article in the Legal Times about Justice Scalia and Justice Alito's participation in Morse v. Frederick, given that the petitioner's counsel, Kenneth Starr, is also their summer employer.
In today's Washington Post, Robert Barnes has this article on yesterday's argument in Leegin Creative Leather Products Inc. v. PSKS Inc.; USA Today's Joan Biskupic reports here; Linda Greenhouse of the New York Times has this report; and in the LA Times, David G. Savage reports here.
Also in the LA Times, Savage has this article on the Court's decision to grant review of a child pornography law; James Vicini reports here for Reuters.
In the Christian Science Monitor, Warren Richey reports here on the Supreme Court's decision not to review a grandparent visitation ruling.
Finally, at Balkinization Brain Tamanaha has this post on objectivity and judicial restraint in constitutional law and Jack Balkin continues the discussion on citing Dred Scott here.
