Thursday, May 03, 2007
Interesting Petition: No. 06-715, Choe v. United States
12:32 PM | Amy Howe | Comments (0)
As part of our ongoing effort to feature interesting cert. petitions currently pending at the Court, today we bring you No. 06-715, Choe v. United States (Petition, BIO, Reply). At issue in Choe is whether, as a result of the Supreme Court’s decision in Wright v. Henkel over a century ago, defendants awaiting extradition to another country must show “special circumstances” to obtain bail, even if they are found to pose no danger to society or risk of flight.
Petitioner Man-Seok Choe is a Korean-American businessman who has lived in the U.S. for over thirty years. In February 2006, he was arrested by U.S. Marshals as a result of an extradition request by South Korea, which accuses him of bribing government officials in Korea in connection with a government contract there. A magistrate judge found that Choe was neither a flight risk nor a danger to the community (which ordinarily would entitle him to bail) but nonetheless denied bail, reasoning that Wright v. Henkel and circuit precedent precluded bail in extradition cases unless the applicant could show “special circumstances.” The district court upheld the magistrate judge’s determination, and the Ninth Circuit rejected Choe’s appeal, so Choe now seeks Supreme Court review.
Continue reading "Interesting Petition: No. 06-715, Choe v. United States" »
Today at the Supreme Court: 4/3/07
09:29 AM | Jason Harrow | Comments (0)
No oral arguments are scheduled and no non-capital orders or opinions are expected to be issued today from the Supreme Court. The next day for orders and possible opinions is May 14.
Wednesday, May 02, 2007
Round-Up
09:03 PM | Gretchen Sund | Comments (0)
Slate's Dahlia Lithwick has this article on the Guantanamo detainees' diminishing rights.
At CNET News.com, Anne Broache reports here about Vonage's recent court filing over a Verizon patent that arose out of the Court's decision in KSR v. Teleflex on Monday. Peter Lattman of the WSJ.com Law Blog has this post on Vonage's request to the Federal Circuit to send its patent case back to the district court.
At Balkinization, Jack Balkin has this post on President Reagan's comments in his personal diary from the day he nominated Justice O'Connor, which refers to this article by Howard Kurtz in the Washington Post; Lee Epstein writes here about gender difference and the Supreme Court's 8-person male majority; and Mark Graber has this post about the "intimidating environment" created by the Court's abortion ruling for physicians.
KSR v. Teleflex: Reasons for Reversal & Remand
12:17 PM | Gretchen Sund | Comments (0)
The following analysis is from Lawrence Ebert, a New Jersey patent lawyer whose blog IPBiz covers intellectual property news.
On January 6, 2005, the Court of Appeals for the Federal Circuit (CAFC) issued a non-precedential opinion in the case Teleflex v. KSR (2005 U.S. App. LEXIS 176) which vacated a grant of summary judgment in favor of the defendant KSR and remanded the case to the district court for further proceedings. The opinion was by Judge Schall, with Judges Mayer and Prost also on the panel. The opinion cited In re Kotzab, 217 F.3d 1365, 1371 (CAFC 2000) for the proposition: "we have consistently held that a person of ordinary skill in the art must not only have had some motivation to combine the prior art teachings, but some motivation to combine the prior art teachings in the particular manner claimed." The specific text quoted from Kotzab was the following: "Particular findings must be made as to the reason the skilled artisan, with no knowledge of the claimed invention, would have selected these components for combination in the manner claimed." The opinion cited Ruiz v. Chance, 234 F.3d 654, 665 (CAFC 2000) for the text: "The reason, suggestion, or motivation to combine [prior art references] may be found explicitly or implicitly: 1) in the prior art references themselves; 2) in the knowledge of those of ordinary skill in the art that certain references, or disclosures in those references, are of special interest or importance in the field; or 3) from the nature of the problem to be solved, 'leading inventors to look to references relating to possible solutions to that problem.'" The opinion by the CAFC enumerated two problems with the district court opinion, one about an improper application of the teaching-suggestion-motivation (TSM) test and one about an improper application of summary judgment: "We agree with Teleflex that the district court did not apply the correct teaching-suggestion-motivation test. We also agree that, under that test, genuine issues of material fact exist, so as to render summary judgment of obviousness improper. For these reasons, we vacate the decision of the district court and remand for further proceedings consistent with this opinion."
The emphasis in the improper application of the TSM test goes to the words "in the manner claimed." The CAFC wrote: "Under our case law, whether based on the nature of the problem to be solved, the express teachings of the prior art, or the knowledge of one of ordinary skill in the art, the district Court was required to make specific findings as to whether there was a suggestion or motivation to combine the teachings of Asano with an electronic control in the particular manner claimed by claim 4 of the '565 patent."
Continue reading "KSR v. Teleflex: Reasons for Reversal & Remand" »
KSR and Asset Valuation--A Response
10:39 AM | guest | Comments (1)
Solveig Singleton of PFF and ipcentral.info writes again:
Several commentators have been concerned with the effect of KSR v. Teleflex on asset valuation, because it throws the validity of many patents into doubt. I do not think the effect will be that extreme, any more than there was an extreme impact from the Supreme Court’s decision in eBay v. MercExchange. (I had anticipated bad things here mainly from the uncertainty but I think turned out to be wrong). Furthermore any effect of KSR on values may well be appropriate--a correction rather than a depresssion. The old saying that hard cases make bad law seems in this case to imply that easy cases will make good law...
I reason as follows:
Continue reading "KSR and Asset Valuation--A Response" »
Today at the Supreme Court: 5/2/07
09:13 AM | Jason Harrow | Comments (0)
No oral arguments are scheduled and no non-capital orders or opinions are expected to be issued today from the Supreme Court. The next day for orders and possible opinions is May 14.
Tuesday, May 01, 2007
Analysis: The State of the Court -- May 2007 -- Part I
11:19 PM | Tom Goldstein | Comments (7)
Tom Goldstein wrote this post, with data collected by Jason Harrow.
This is the first of a series of posts on the state of the Term with roughly half of the argued cases still to be decided. As with too many of my posts, this one has a lot of “inside baseball” detail regarding the docket.
In a post in November 2006, I noted that the Court was on “the cusp of the greatest shortfall in filling the Court’s docket in recent memory, and likely in its modern history.” I explained that the Court had “returned from its summer recess in something of a docket crunch, and its pace of granting cases slowed considerably from there.” The Court had put itself in a position in which – given the minimum time required between the date of granting certiorari and the date on which argument could be held – it was essentially impossible to fill the argument calendar.
Subsequently (and I’m not suggesting that causation, rather than correlation, was at work), the Court dramatically increased the pace at which it granted review. In the last two Conferences of December and the three in January, certiorari was granted in twenty-six cases. By contrast, the Court had only granted nine cases during the previous six Conferences.
The Court faced a significant shortfall in its docket because the grants came too late in the Term to set the cases for argument in March. So the March calendar was light, with four days set with only a single argued case. If one were a jaded observer, one might say that the Court was attempting to avoid criticism for canceling argument days in March, as it had done in December as a result of the earlier shortfall in cases.
Ironically, the Court had available in April three more cases than it could fit into its normal schedule (which would call for two cases to be argued in the morning and none in the afternoon). The Justices could have rolled those cases into the October sitting of next Term. But instead, they elected to hold afternoon arguments on three days. Here too, jaded observers might say that the Court’s goal was to minimize criticism for the low number of decisions of the Term, which will still produce 71 rulings after argument, a modern low.
I recount this history because it has consequences for the future. Having set the three “extra” cases granted in January for argument in April, the Court entered February with no cases granted for the upcoming Term. That actually is not unusual. In recent years, the docket has been sufficiently tight that cases granted in January have generally been argued the same Term.
Continue reading "Analysis: The State of the Court -- May 2007 -- Part I" »
Court allows detainee transfer to Libya
05:50 PM | Lyle Denniston | Comments (3)
UPDATE 5:50 p.m. The Supreme Court late Monday afternoon cleared the way for the government to transfer a Guantanamo Bay detainee, Abu Abdul Rauf Zalita, to Libya; he has claimed that he fears being tortured if returned to his home country after the U.S. military said he was affiliated with a terrorist group that opposes the Libyan regime. Zalita had asked Chief Justice Roberts to bar his transfer until he could appeal to the Supreme Court under various international treaties, including the one that forbids torture. Roberts referred the application to the full Court, resulting in the denial. There was only a brief order, with no comment and no noted dissents. That appears to have been the last obstacle to his transfer, since his lawyer had told Roberts that there was no lower court order forbidding it.
The Bush Administration has argued in a new filing in the Supreme Court that U.S. courts have no role to play in monitoring the release of detainees from Guantanamo Bay, Cuba -- including no power to second-guess whether the captives will face torture after being sent abroad.
Responding on Monday to a request by Chief Justice John G. Roberts, Jr., for the government's views, U.S. Solicitor General Paul D. Clement said that the courts lost any role they may have had in judging detainee transfers when Congress passed the court-stripping provisions of the Military Commissions Act of 2006. Clement challenged the courts' power to hear a plea by a Libiyan about to be sent to that country, asserting that "applicant has no judicially enforceable rights to support the extraordinary relief he seeks." (The response can be found here.)
Clement sought to reassure the Chief Justice, however, that no detainee will be transferred if the U.S. government "believes it is more likely than not that the individual will be tortured." That is for the government to decide, he added.
Attached to the government response was a sworn statement by the State Department's ambassador-at-large for war crimes, Pierre-Richard Prosper, who argued: "Any judicial review [of detainee transfer orders] and the resulting delays could undermine a foreign government's ability to prosecute and so harm United States' efforts to press other countries to act more expeditiously in bringing terrorists and their supporters to justice." In a second sworn statement, Matthew C. Waxman, the Pentagon's deputy assistant secretary for detainee affairs, repeated much the same point, and went a bit further, saying that judicial review "could negatively affect our ability to succeed in the war on terrorism." (The exhibits attached to the government response are available here.)
The filings were in response to an application (Zalita v. Bush, 06A1005) by Abu Abdul Rauf Zalita asking the Chief Justice to bar his imminent transfer from Guantanamo to Libya. "The United States," the application says, "has made clear its intention to transfer immediately [Mr. Zalita] to the custody of the Libyan government, where he faces a grave risk of arbitrary detention, torture, persecution and extrajudicial assassination at the hands of the dictatorship of Colonel Muammar Al-Qadhafi."
His lawyer wants the case put on hold until the Court can act on a coming appeal that will test whether Guatnanamo detainees have any constitutional rights, whether they have rights under international treaties against torture and on protection of refugees, and whether Congress acted unconstitutionally in the MCA in barring the courts from hearing such claims.
The Pentagon has declared Zalita to be an "enemy combatant," after concluding that he was a member of a known terrorist organization, and received weapons training by that group abroad. He has been challenging his detention in U.S. courts since June 2005; both a federal judge and the D.C.Circuit Court have refused to block his transfer to Libya.
In his application to the Chief Justice, Zalita contends that he "has no history of terrorist activity and adamantly denies the United States' allegations that he is a member of any terrorist organization, including the Libyan Islamic Fighting Group, a political organization opposed to the Qadhafi regime." He contended that the Libyan regime has a long history of persecuting, torturing and killing members of political opposition groups. If his transfer is not blocked, the application asserted, the Supreme Court would lose any opportunity to rule on his challenge.
In the government's response, the Solicitor General contended that there is no chance the Supreme Court will hear Zalita's planned appeal, and that, in any event, the MCA has stripped the Supreme Court and all other federal courts of any jurisdiction to hear challenges to the transfer of any "enemy combatant."
While other detainees have sought to challenge their continued confinement at Guantanamo Bay, Clement said, Zalita is trying to block his release from U.S. custody. That release has been arranged, the response said, through "an elaborate, inter-agency process to govern the transfer of an enemy combatant from the Guantanamo Bay Naval Base in Cuba to the control of another country, typically the enemy combatant's home country....For every transfer, a key concern is whether the foreign government will treat the detainee humanlel and in a manner consistent with its international obligations."
Round-Up: Other News
05:02 PM | Gretchen Sund | Comments (0)
Coverage of yesterday's opinions and orders is gathered in separate news round-ups here and here. Other Supreme Court related news is collected here:
Last Friday, Aaron Streett of Baker Botts published the latest edition of Supreme Court Today, discussing last week's death-penalty decisions and other action.
At McClatchy Newspapers, Mike Doyle has this story on "in forma pauperis" petitions during the current Term.
Yesterday, Robert Barnes had this column in the Washington Post continuing the discussion of the significance of justices' atholicism in the Carhart decision and highlighting Justice Alito's prominent role in the campaign finance cases argued last week. Barnes's column and Peter Lattman's post at the WSJ.com Law Blog point to this post from University of Chicago Law School Provost Geoffrey Stone at the Faculty Blog, which ignited the debate over the role of Catholicism.
At Slate, Garrett Epps and Dahlia Lithwick examine Justice Kennedy's dualities in light of his recent "partial birth" abortion opinion here. And in Sunday's Washington Post, Slate's William Saletan had this op-ed piece discussing the implications of the Supreme Court decision upholding the Partial Birth Abortion Ban Act. In addition, Priscilla Smith, counsel for Dr. Leroy Carhart in Gonzales v. Carhart on behalf of the Center for Reproductive Rights, had this commentary on the Court's ruling at Balkinization last week.
Roll Call's Erin P. Billings has this report (subscription req'd) about Senators' views on the possibility of a High Court vacancy in the next two years (via Election Law blog). Lastly, at Opinio Juris, guest blogger Marko Milanovic has part I and part II in a series of posts on the Supreme Court's 2006 ruling in Hamdan.
More on the impact of KSR
03:30 PM | Gretchen Sund | Comments (0)
This post is from Lawrence Ebert, a New Jersey patent lawyer whose blog IPBiz covers intellectual property news.
Although Jess Bravin of the Wall Street Journal (full story available here, subscription req'd) suggested that the decision by the Supreme Court “swept aside” the test used by the U.S. Court of Appeals for the Federal Circuit (CAFC) to determine whether an invention was "obvious" -- and therefore ineligible for a patent, it is perhaps more accurate to say that the Supreme Court made it easier to satisfy the motivation component of the obviousness inquiry. Tony Mauro quoted Chief Judge Paul Michel of the CAFC as saying that under his reading of the opinion, the teaching, suggestion, or motivation test remains part of the calculation of obviousness, “but it gives us forceful instruction on the manner in which the test is to be applied.” With relaxed requirements to combine different references to invalidate claims, the U.S. may reach what is referred to in Europe as mosaicing.
Bravin, and others, have recognized that the change in the obviousness standard will likely increase the amount of patent litigation (Bravin: “With challengers emboldened to resist infringement claims, more disputes could head to court.” The Washington Post, quoting Professor John R. Thomas, said that the court's ruling makes many existing patents vulnerable to court challenge because they were issued according to a standard the justices have now rejected.) Thus, the near-term impact of the KSR decision will be to enhance uncertainty.
A more interesting angle explored by Bravin involved the impact of the KSR decision on open innovation models (for example, see Henry Chesbrough on "open innovation.") Bravin quoted David Kappos of IBM: "What they're starting to put together here is a model for a 21st-century patent system. Closed proprietary innovation remains important, but the court seems to be saying that patent law can also accommodate 21st century models that are more open, more collaborative."
"Ask the Author": Questions About Supreme Discomfort
10:44 AM | Jason Harrow | Comments (0)
Next week, a new edition of "Ask the Author" will feature a discussion with Michael Fletcher and Kevin Merida of the Washington Post; their new book is Supreme Discomfort: The Divided Soul of Clarence Thomas. The authors welcome your questions about Justice Thomas's life and career - just leave them as comments to this post or e-mail them to me (jharrow@akingump.com), and I'll send them along. We'll post the discussion in several parts next week.
For more on the book, see the official website here. You can also read the author's original Washington Post Magazine profile of Justice Thomas here.
Morning News Round-Up
10:39 AM | Gretchen Sund | Comments (0)
In today's New York Times, Linda Greenhouse reports here on the Scott v. Harris decision and accompanying video of the police chase in question; NPR's Nina Totenberg had this story on "All Things Considered" yesterday; David G. Savage reports here. Joan Biskupic has this article in the USA Today about the case; in today's Washington Post, Robert Barnes weighs in here; and Jess Bravin of the Wall Street Journal has this report (subscription req'd).
Greenhouse also reports here on the Supreme Court's "most important patent ruling in years" in KSR v. Teleflex; Tony Mauro of the Legal Times has this article on the decision, which contains a reaction to the ruling from Chief Judge Paul Michel of the Federal Circuit.
Yesterday, NPR's "'Marketplace' Report" featured this audio segment about the ruling in Microsoft. In the USA Today, Joan Biskupic reports here on the decisions in both patent cases; and, in the Washington Post, Robert Barnes and Alan Sipress have this article on the two patent decisions.
The AP's Mark Sherman reports here on yesterday's ruling in United Hauler's.
In today's LA Times, Savage reports here on the the Court's decision yesterday to grant review of Medellin, a case that tests the reach of an international court ruling, while the busy Linda Greenhouse has this article in the New York Times.
Amy Goldstein has this report in today's Washington Post on the justices decision not to hear Guantanamo detainees' appeal, the second such refusal in a month.
Patent Law After KSR - A Brave New World
08:20 AM | Gretchen Sund | Comments (2)
The following commentary is from Dan Bromberg, a partner at Quinn Emanuel Urquhart Oliver & Hedges, Inc., which filed an amicus brief on behalf of Time Warner, Inc., IAC/Interactive Corp., and Viacom, Inc. in the KSR case. The views expressed below are his own and do not necessarily reflect those of either Quinn Emanuel or the firm’s clients.
Although the Roberts Court was supposed to render unanimous decisions providing clear guidance, it often has failed to realize this goal. In yesterday’s KSR decision, however, the Court found that unanimity and fundamentally altered the patent landscape. Rejecting the rigid approach developed by the Federal Circuit on obviousness, one of the most important aspects of patent law, the Court instructed that “common sense” cannot be ignored in determining the validity of patents and emphasized patent law’s goal of rewarding true innovation.
The KSR decision asserts the Supreme Court’s authority over patent law more clearly and aggressively than any case to date. KSR does not simply require the Federal Circuit to adhere to the obviousness standard it recognized in Graham and leave it at that, as last Term’s eBay decision did in leaving the shape and impact of the new standard for injunctions to the lower courts to decide. Nor does KSR adopt a bright line rule that the Supreme Court easily could administer. Instead, KSR admonishes the Federal Circuit against using rigid rules and imposes a flexible standard, and then applies the standard to the facts of the case so as to leave no doubt about its application. Thus, the Supreme Court’s unanimous decision suggest that the Court plans to require the Federal Circuit to apply a flexible standard and to scrutinize how that standard is applied, at least on an occasional basis.
The practical impact of KSR will be immediate and broad. Numerous patents will now be open to challenge on obviousness grounds, and a substantial number of those may invalidated. In light of the Supreme Court’s rejection of the conclusory expert testimony in KSR, many obviousness challenges will be resolved on summary judgment. And by making it clear that obviousness must be judged under a flexible standard, the Supreme Court has limited the ability of the Federal Circuit to control how the PTO and the district courts apply this standard.
Continue reading "Patent Law After KSR - A Brave New World" »
Monday, April 30, 2007
Today's Opinions and Orders
06:10 PM | Amy Howe | Comments (0)
It was another busy day at the Court, with orders (including a cert. grant in Medellin II and a Hamdan denial) and five opinions:
Lyle recently added this post on the Court's ruling in EC Term of Years Trust v. IRS and this analysis of today's decision in Microsoft Corp. v. AT&T Corp. Lyle also has this commentary on the Hamdan denial and this analysis of the Scott v. Harris decision. This blog's earlier coverage of Medellin, in which the Court granted review this morning, can be found here.
Dennis Crouch of the Patently-O blog has these comments on today's patent decisions; Lawrence Ebert has this post analyzing the KSR ruling; Joshua Sarnoff weighs in here; Solveig Singleton posts her thoughts here; and Michael Barclay has this analysis.
Lyle has this post on the orders list and this initial coverage of today's opinions in, inter alia, KSR v. Teleflex and Scott v. Harris;
I have this summary of today's opinion in United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority;
Jason provides links to today's opinions and orders list here;
Gretchen collects news coverage of the opinions and orders here;
Marty has this post speculating that the Chief is writing in the Seattle and Louisville schools cases; and this post regarding the Court's use of a videotape in Scott v. Harris (SCOTUS meets the TV show Cops!).
Wrong tax claim must be challenged promptly
05:30 PM | Lyle Denniston | Comments (0)
Drawing a clear line between the right to sue to challenge an erroneous federal tax levy, and the right to claim a tax refund, the Supreme Court declared unanimously on Monday that the two have separate filing deadlines for valid reasons, and must be treated independently. The ruling came in EC Term of Years Trust v. IRS (05-1541).
If a taxpayer is notified of an Internal Revenue Service levy, but the taxpayer insists that someone else actually owes the taxes due, the lawsuit challenging that wrongful levy must be filed within nine months, under federal tax law. That is the only remedy for that kind of mistake by IRS, and the taxpayer who fails to meet the nine-month deadline cannot later try to get a refund by a separate claim, Justice David H. Souter wrote (in an opinion orally announced for him by Chief Justice John Gl Roberts, Jr.)
Congress specifically tailored the tax law provision for third-party claims of wrongful levy, and to allow them to pursue a refund would permit them to "effortlessly evade the levy statute's 9-month limitations period thought essential to the government's tax collection." A tax refund claim can be made for up to two years administratively, and up to two more by lawsuit, the Court noted.
The shorter span for pursuing a claim of wrongful levy was necessary, as Congress saw it, to allow the quick resolution of such controversies so the government can then go after the property of the taxpayer who actually owns the property to correct its mistake, the Court said. "The demand for greater haste when a third party congtests a levy is no accident," Souter's opinion said. "We simply cannot reconcile the 9-month limitations period for a wrongful levy clailm...with the notion that the same challenge would be open...for up to four years," it added.
The ruling was a defeat for a Texas couple, Elmer and Dorothy Cullers, who set up a trust -- EC Terms of Years Trust. In 1991, IRS assessed the trust for improper income tax deductions during the 1980s. That was based on an assumption that the couple had transferred assets to the trust to evade taxes. It filed a lien, but the trust denied any obligation. Still, it put $3 million in a bank account to cover any liability. IRS issued a notice of levy for the funds.
A year later, the trust and other trusts created by the couple sued, claiming that the levy was wrong. But they had waited almost a year after the levy to sue, and their claim was thrown out for missing the nine-month deadline. The trust then sought administratively and in court to get a refund, but that, too, was rejected. District Court and the Fifth Circuit ruled that the shorter time period applied, because that was the only method of recovery the trust could pursue for the erroneous levy.
The Ninth Circuit, by contrast, had ruled that the remedy for third parties was not the sole method of challenging a levy.
Monday's ruling settled the conflict by ruling as the Fifth Circuit had.
Analysis: Less patent shield for code
04:18 PM | Lyle Denniston | Comments (0)
Clearing the way for wider worldwide distribution of computer software code, and saving Microsoft Corp. millions of dollars in patent damages, the Supreme Court ruled on Monday that it is not illegal to send Windows code abroad for copying and installing in foreign-made computers, even if the code incorporates a part of someone else's patented invention.
If the owner of that invention wants to protect it from being copied overseas, the Court indicated, there are only two options: get a foreign patent, or get Congress to change U.S. law on exporting patented items. If current law is to be revised to take in the new realities of the software business, that is for Congress to do, Justice Ruth Bader Ginsburg wrote for the Court.
The ruling narrowed the scope of a 1984 law -- passed by Congress in reaction to an earlier Supreme Court ruling. The decision also curbed what has been described as an ongoing effort by the Federal Circuit Court to stretch U.S. patent laws to reach international commerce in computer software. The ruling came in the case of Microsoft Corp. v. AT&T Corp. (05-1056); the vote was 7-1 with Chief Justice John G. Roberts, Jr., not taking part. Justice John Paul Stevens was the lone dissenter.
At issue in the case is Microsoft's steady line of international business in its Windows operating code -- the basic "brains" of most of the world's personal computers, laptops and data devices. The company writes the Windows code onto master disks to be sent abroad and copied, or else sends the code abroad by encrypted electronic transmission to be copied. The foreign computer-makers use copies of the code to install in their computers, all sold abroad. In both modes of overseas shipment, the Windows code incorporates a part of an AT&T patented invention for making synthetic speech sound more human (the digitally simulated speech is created by a code, which is a 1981 invention of Bell Laboratories scientists Bishnu Atal and Joel Remde).
AT&T sued Microsoft for infringing on its patent by sending Windows abroad for copying. Microsoft agrees that installation of Windows software in U.S. made or sold computers does infringe on the AT&T patent, but it argued that U.S. patent law does not reach its shipments of Windows abroad; it also argued that a 1984 amendment to U.S. patent law does not apply. The two companies have made a deal on what their dispute was worth in dollar terms, but have not disclosed anything other than that it runs into the hundreds of millions of dollars overall.
AT&T argued, and the Federal Circuit agreed, that the code for Windows software includes one component of AT&T's digital speech invention. By sending a single copy of Windows abroad, the Circuit Court held, Microsoft intended it to be copied overseas, and thus the shipping and the copying were illegal under the 1984 law.
But the Supreme Court ruled that software code cannot be a component, since it really is only an abstraction until it is written onto something physical, like a CD-ROM. If it cannot be a component standing alone, Ginsburg wrote, it cannot be a combination that includes someone else's invention; it is like a blueprint, giving instructions. And, if it is sent abroad only as code via a disk or electronic transmission, the copy made from it abroad is not a component supplied from the U.S., according to the ruling.
The step that occurs in a foreign computer maker's factory -- copying Windows code and then installing it into a computer to be sold abroad -- does not trigger a violation of U.S. law, because the foreign-made copies are not shipped from the U.S., the Court explained. "The extra step is what renders the software a usable, combinable part of a computer; easy or not, the copy-producing step is essential," it added. "In sum, a copy of Windows, not Windows in the abstract, qualifies as a 'component' " under the 1984 law, the ruling concluded.
Thus, the foreign-made copies satisfy neither the "component" provision of the 1984 law, or the "supplied from the U.S." requirement, the Court ruled.
Today's Opinion in United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority
03:33 PM | Amy Howe | Comments (3)
By a vote of six to three, the Court today in No. 05-1345, United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority, added the latest chapter to its trash – I mean, Commerce Clause – jurisprudence, upholding municipal ordinances that required trash haulers to deliver their trash to a publicly operated processing site. In so doing, the Court – at least in the view of Justice Alito, who filed a dissent – created an exception to the dormant Commerce Clause for state and local regulations that discriminate in favor of publicly owned entities.
Even beyond the holding itself, the decision is interesting just for the relatively unusual line-up of justices: Chief Justice Roberts wrote the opinion of the Court (except for one part, which served as the plurality opinion) and was joined in full by Justices Souter, Ginsburg, and Breyer. Justice Scalia concurred in part, writing separately to reiterate that, in his view, “the so-called ‘negative’ Commerce Clause is an unjustified judicial invention, not to be expanded beyond its existing domain.” Justice Thomas concurred in the judgment; he would throw out both the baby (the challenge to the ordinances) and the bathwater (“the Court’s negative Commerce Clause jurisprudence”). Justice Alito (can’t call me “Scalito” today) authored a dissent that was joined by both Justice Stevens and Justice Kennedy.
Earlier coverage of Medellin
02:50 PM | Gretchen Sund | Comments (0)
This morning, the Supreme Court granted cert. in Medellin v. Texas, which raises a major question about the limits of executive power. Lyle Denniston has written extensively about the case of Jose Ernesto Medellin, a Mexican national convicted of murder and facing execution in Texas.
In September of 2005, Lyle had this post discussing the aftermath of the Supreme Court's May 2005 decision in Medellin v. Dretke. Last November, he reported here on the ruling of Texas' highest state criminal court that the President did not have the authority to direct the state courts to obey a World Court ruling on the rights of foreign nationals arrested and prosecuted in the U.S.
In January, Lyle had this report after Medellin's lawyers filed a new appeal to revisit the issue. He discussed the Goverment's amicus brief in this case here in March. And prior to the April 20 private Conference, Lyle provided additional background and context here.
Additionally, the April 16 edition of Conference Call in the Legal Times (column archive here; subscription req'd) features Medellin v. Texas.
All of the filings in this case, as well as in the earlier appeal to the Supreme Court, can be found at this link.
Commentary: Do detainees retain any rights?
02:06 PM | Lyle Denniston | Comments (0)
A simple conclusion of law now confronts lawyers for some 385 foreign nationals still being held captive by the U.S. military at Guantanamo Bay, Cuba: A foreigner "without property or presence in this country has no constitutional rights, under the due process clause or otherwise." That is the way the D.C. Circuit Court summed up in a ruling on Feb. 20 in two packets of detainees cases -- a ruling that the Supreme Court has now twice refused to review (once on April 2, again on Monday). Until a point arrives at which the Supreme Court might become ready to review that conclusion, it is binding and it will shape ongoing contests in lower courts in coming months, even though those contests focus mainly on questions of federal statutory not constitutional law.
Having no constitutional rights, of course, is not the same as having no rights at all. Congress has recently passed two laws -- the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 -- that control the legal destiny of the Guantanamo detainees, and each of them provides at least some measure of judicial review of detainees' claims. But the absence of any enforceable rights under the Constitution is likely to have an influence at least on the atmospherics of the continuing legal contests, reminding judges that they are operating mainly in a realm of presidential and congressional discretion.
The Supreme Court's actual and potential role as the ultimate constitutional arbiter of the "war on terrorism" has been in the background as it put itself into the midst of the controversy over detainees' legal rights in 2004, and as it remained involved since then. But on Monday, the Court made it clear, in denying review of the latest detainees' appeal without comment, that it is putting itself and its constitutional authority on the sidelines, at least for the time being. Right now, it appears that the only thing that would draw the Court back into the fray anytime soon would be a split in the Circuit Courts; the Fourth Circuit Court in Richmond, Va., is weighing a case involving some of the same issues the D.C. Circuit Court decided and the Supreme Court refused to review this month. What the Fourth Circuit will do is, of course, unknown, but it could act soon.
The Bush Administration, from the beginning of the federal courts' engagement with the detainees, has held steadily to the argument that the detainees have no constitutional rights and thus have only so much protection as Congress was willing to provide to them. That core argument has never been upheld explicitly by the Supreme Court, but it has now prevailed in the D.C. Circuit Court -- the appeals court that, from here on, will play the central role among lower courts in defining the law as it applies to detainees. Although the Supreme Court has twice overruled that Court on detainee matters (in 2004 and 2006), it has now signaled to that Court that it may proceed as the judge of detainee rights.
It is possible to read the Justices' simple order on Monday as sending no signals whatsoever, at least not intentionally. Whether detainees or their lawyers can take any heart from that, however, is far from clear.
Continue reading "Commentary: Do detainees retain any rights?" »
Some thoughts about KSR v. Teleflex: The "Marketplace" Test for Obviousness
01:35 PM | Gretchen Sund | Comments (0)
The following commentary is from Michael Barclay of Wilson Sonsini Goodrich & Rosati. The views expressed in this posting are those of the individual author, and do not necessarily reflect the views of his law firm or any of his clients.
This decision makes it far easier to invalidate patents based on obviousness. Thus, this is the most important patent case of the last 20 years, and perhaps since the passage of the 1952 Patent Act. Virtually every litigated patent case includes an assertion of obviousness – and ones that might not have included that defense up until now are more likely to do so. The PTO examines every patent application for obviousness. KSR v. Teleflex will thus have an enormous impact on both the prosecution and litigation aspects of patent practice.
The Supreme Court continues to take a close look at the Federal Circuit’s jurisprudence and how the Court of Appeals for the Federal Circuit (CAFC) interprets the Patent Act or other relevant statutes. In eBay v. MercExchange, decided in May 2006, the Court unanimously reversed the CAFC’s reading of 35 U.S.C. Section 283, where the CAFC had engrafted a “general rule” requiring permanent injunctions in favor of a victorious patent owner, even though the language of the statute said no such thing. In Medimmune v. Genentech, decided in January 2007, by an 8-1 vote, the Court reversed the CAFC’s reading of Article III’s case or controversy requirement, and of the declaratory judgment statute. In Microsoft v. AT&T, decided the same day as KSR v. Teleflex, the Court reversed the Federal Circuit’s reading of 35 U.S.C. Section 271(f) by a 7-1 vote.
Continue reading "Some thoughts about KSR v. Teleflex: The "Marketplace" Test for Obviousness" »
Analysis: A flat new rule on high-speed chases
01:19 PM | Lyle Denniston | Comments (1)
Though two Justices tried hard in separate opinions to ease the impact of the Supreme Court's rulng Monday on high-speed police chases, the fact remains that the main opinion had the unqualified support of six Justices and did lay down a hard-and-fast constitutional rule. Here is how the Court phrases the rule it established: "A police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death." Given the inherent dangerousness of most high-speed chases, this flat rule -- the "Scott v . Harris" rule, as it may come to be known -- appears to validate as "reasonable" any intentional police tactic of ending the chase by causing a wreck. The only apparent limitation on the choice of any specific tactic is the option that police have to adopt, or not to adopt, it.
Justice Stephen G. Breyer, in his concurrence, caught the essence of the new rule, by describing it both as "a per se rule" and as "too absolute." Still, he sought to argue that the Fourth Amendment rule should depend upon the very specific facts of each high-speed chase. Justice Ruth Bader Ginsburg, in her concurrence, said "I do not read today's decision as articulating a mechanical, per se rule." But none of the five other Justices who comprised the real majority signed onto that assessment.
There is much in Justice Antonin Scalia's main opinion about how the facts of this case look on close examination, and especially how those facts emerged in a videotape made from the dashboard of one of the pursuing police cruisers. But the articulation of the facts appears, in this instance, to serve only to justify a conclusion that the officer involved was entitled to summary judgment without any further exploration of facts at a trial. Justice John Paul Stevens in dissent suggests that the Court has engaged in an "unprecedented departure from our well-settled standard of review" of facts as found by lower courts, by setting itself up as a panel of "eight jurors on this Court." That description, however valid, does not do away with the reality that this decision is a constitutional holdingmore than it is an essay about facts, and very likely will be applied by lower courts beyond its specific factual setting.
When Scott v. Harris, a Fourth Amendment decision, is read together with a 1998 decision in Sacramento County v. Lewis (finding no due process violation by an officer in a high-speed chase resulting in an accident unless the officer set out explicitly to harm the fleeing suspect), it is now quite clear that police discretion about use of "deadly force" will be the controlling legal factor in future high-speed chase cases.
Continue reading "Analysis: A flat new rule on high-speed chases" »
KSR v. Teleflex: Workmanlike, Yet Frustrating
01:02 PM | guest | Comments (1)
The author of this blog is Solveig Singleton, a lawyer and senior adjunct fellow with the Progress and Freedom Foundation and commentator on ipcentral.info. My colleague James. V. Delong and I authored an amicus brief in KSR hoping for a tighter standard of non-obviousness for patents.
My take on KSR: Right result, proper caution--yet utterly frustrating.
In a nutshell, a unanimous Court overturns the appellate decision on the ground that the test of “obviousness” used below misunderstood the proper use of prior art in considering the validity of a combination patent; and, more generally, the Court of Appeals was too rigid and did not allow the fact finder recourse to common sense. The Court recognized the risk that too many inventions would seem “obvious” by hindsight, but said only that the appellate court took the wrong approach to the problem.
For a rationale, the Court drew on recent studies noted in the briefs (including PFF’s own) to note that, “in many fields it may be that there is little discussion of obvious techniques or combinations, and it often may be the case that market demand, rather than scienfitic literature, will drive design trends. Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may, in the case of patents combining previously known elements, deprive prior inventions of their value or utility.” (p. 15.)
Much of the Court’s discussion is specific to patents that combine older elements, speaking of “the need for caution in granting a patent based on the combination of elements found in the prior art” (p. 11).Continue reading "KSR v. Teleflex: Workmanlike, Yet Frustrating" »
Analysis of Supreme Court patent law decision in KSR v. Teleflex, No. 04-1350
12:51 PM | guest | Comments (0)
Joshua Sarnoff, Assistant Director of the Glushko-Samuelson Intellectual Property Law Clinic and a Practitioner-in-Residence at the Washington College of Law, American University, filed an amicus brief in support of Petitioner KSR Int’l. Co.
In its unanimous decision in KSR Int’l. Co v. Teleflex Inc., No. 04-1350 (April 30, 2007), the Supreme Court expressly overruled the Court of Appeals for the Federal Circuit’s “teaching-suggestion-motivation” (“TSM”) test for finding a claimed invention obvious and reaffirmed the Court’s precedents (in light of the 1952 enactment of Section 103 and its holding in Graham v. John Deere Co. of Kansas City, 383 U.S. 1 (1966)) regarding the obviousness of patents “based on the combination of elements found in the prior art” where there the combination “does no more than yield predictable results.” Slip op. at 11-12. The Court’s decision has therefore called into question the validity of hundreds of thousands of claims in issued patents, and will likely lead to a dramatic change to the method by which the Patent Office, the courts, and the bar conduct their obviousness analyses.
Nevertheless, the Supreme Court’s opinion appears self-consciously narrow and provides little additional guidance for how to apply the Graham approach. The Court’s decision leaves unclear whether the party with the burden of proving obviousness must demonstrate that “there was an apparent reason to combine the known elements in the fashion claimed by the patent at issue,” or only that the claim at issue if patented would reflect an “advance[] that would occur in the ordinary course without real innovation[, which] retards progress and may, in the case of patents combining previously known elements, deprive inventions of their value or utility.” Slip op. at 14, 15. As the Court noted, “as progress beginning from higher levels of achievement is expected in the normal course, the results of ordinary innovation are not the subject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts.” Slip op. at 24. Although the Court recited the Constitutional language, it did not expressly hold that obviousness is a constitutional requirement. Further, the Court left to later case law any consideration of the extent to which the Court of Appeals’ more recent statements regarding the flexibility of its TSM test is consistent with Graham and the Supreme Court’s earlier precedents. Slip op. at 18.
Continue reading "Analysis of Supreme Court patent law decision in KSR v. Teleflex, No. 04-1350" »
KSR: An ovemphasis of the importance of published articles?
12:50 PM | Gretchen Sund | Comments (0)
This analysis of the Court's decision is from Lawrence Ebert, a New Jersey patent lawyer whose blog IPBiz covers intellectual property news.
At page 11 of the Supreme Court's opinion in KSR v. Teleflex, Justice Kennedy writes: "We begin by rejecting the rigid approach of the Court of Appeals." In this, Justice Kennedy is treating the matter as a combination of known elements case, and notes that the combination of old elements is likely to be obvious when it (the combination) does no more than yield predictable results. Kennedy brings up previous cases, first the Adams battery case from 1966, then the asphalt case from 1969, and finally the Sakraida case from 1976. At page 13, one has discussion of "the predictable use of prior art elements according to their established functions."
Kennedy notes that "To facilitate review, this analysis should be made explicit," citing to the CAFC, 441 F.3d 977, BUT Kennedy also notes "a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ." At page 15, Kennedy writes: "Helpful insights, however, need not become rigid and mandatory formulas; and when it so applied, the teaching-suggestion-motivation (TSM) test is incompatible with our precedents." Kennedy speaks of an "overemphasis on the importance of published articles and the explicit content of issued patents." Kennedy directly addresses concerns put forth by the IT community: "In many fields it may be that there is little discussion of obvious techniques or combinations, and it often may be the case that market demand, rather than scientific literature, will drive design trends. Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may, in the case of patents combining previously known elements, deprive prior inventions of their value or utility." [Think about that sentence for a moment. Think about how it might be applied in the Thomson / WARF stem cell matter.] Kennedy concludes this section of the opinion with the statement: "But when a court transforms a general principle into a rigid rule that limits the obviousness inquiry, as the Court of Appeals did here, it errs."
The opinion gets interesting at page 16, at the point wherein the Court identifies specific errors of the Court of Appeals for the Federal Circuit. Keep in mind, the CAFC KSR opinion was NOT precedential, and only found that the district court had not written down a reason to combine the references.
Continue reading "KSR: An ovemphasis of the importance of published articles?" »
Court rules on two patent cases, and on high-speed chase
12:20 PM | Lyle Denniston | Comments (0)
The Supreme Court, in a major victory for Microsoft Corp., ruled by a 7-1 vote on Monday that U.S. patent law does not bar foreign making of copies of digital code to be installed in computers made and sold abroad. Current patent law does not reach that far, Justice Ruth Bader Ginsburg wrote for the Court. If patent law is to be adjusted to account for "the realities of software distribution," that is up to Congress, the Court said. Justice John Paul Stevens was the lone dissenter; Chief Justice John G. Roberts, Jr., took no part in the ruling. The case was Microsoft Corp. v. AT&T (05-1056).
In a second ruling on patent law, the Court decided unanimously that the Federal Circuit Court had been wrong in taking a narrow view of when an invention is "obvious" and thus cannot be patented. The ruling favored a Canadian company in a dispute over an adjustable accelerator pedal for cars and trucks. The Court in an opinion by Justice Anthony M. Kennedy concluded that the claimed invention by Teleflex, Inc., was obvious. The case was KSR International v. Teleflex (04-1350).
In an 8-1 decision, the Court ruled that police do not act unconstitutionally when they try to stop a suspect fleeing at high speed by ramming the suspect's car from the rear, forcing it to crash. The car chase that led to the bumping and crash, Justice Antonin Scalia wrote for the Court, posed "a substantial and immediate risk of serious physical injury to others." Thus, the attempt to terminate the chase by forcing the car off the road was "reasonable" under the Fourth Amendment. Justice Stevens dissented alone; he took a step that is somewhat unusual for him, reciting orally from the bench his reasons for disagreeing with his colleagues. The case was Scott v. Harris (05-1631).
In a fourth ruling, the Court decided that if a taxpayer could have sued to challenge an erroneous federal tax levy, but fails to do so on time, may not later sue for a refund. The unanimous ruling came in EC Terms of Trust v. U.S. (05-1541).
In the fifth and final ruling of the day, the Court divided 6-3 in deciding that a local government does not violate the Constitution when it requires all solid waste generated in the community to be processed at a publicly owned facility, so long as the ordinance treats private businesses the same whether they are local or out-of-state. The widely splintered ruling, announced by the Chief Justice, came in United Haulers Association v. Oneida-Herkimer Solid Waste Management (05-1345).
The Court has now recessed until May 14, which will be the next opportunity for rulings on the merits. Its next private Conference will be on Thursday, May 10; now that all hearings have been concluded, the Court is switching its Conference day from Friday to Thursday.
Supreme Court Retracts Patent Protection
12:17 PM | guest | Comments (1)
Today's two patent decisions came-out as expected -- both cases make patents less valuable. Because of KSR, patents will be more difficult to enforce and easier to invalidate. The AT&T case cuts in-half the value of many of today's most valuable software patents.
I had expected that the KSR decision would operate something like a sledge-hammer and entirely shift the focus of obviousness analysis. Instead, the opinion appears to simply refine the particulars of how prior-art can be combined and when a "combination patent" will be seen as obvious. Inventions that introduce the world to entirely new concepts and elements will continue to be more valuable. Of course, those types of inventions are often more difficult to achieve than ones that simply recombine a set of well-known parts.
There is some hope that the KSR decision will eventually result in a restoration of respect and pride in the US patent system -- concepts that have been missing for a number of years. This decision may result in fewer patents issued by the USPTO -- If the stars align, that new generation of heartier patents just might help lead us to a new level of innovation.
Court turns down Hamdan appeal, will hear Medellin
12:15 PM | Lyle Denniston | Comments (0)
UPDATED 11:36 a.m.
The Supreme Court on Monday denied review of the latest Guantanamo Bay appeal, involving two prisoners who face war crimes trials before "military commissions." Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter voted to hear the joint appeal of Salim Ahmed Hamdan and Omar Ahmed Khadr, but it takes the votes of four to grant review. The case was Hamdan v. Gates/Khadr v. Bush (06-1169).
The Court's action came in a two-sentence order, with no opinion. The three Justices who wanted to hear the case were the same three who voted on April 2 to hear two packets of detainee cases involving individuals who do not face criminal charges -- Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196). The denial of review in those cases, in contrast to Monday's action, brought an opinion by two Justices (John Paul Stevens and Anthony M. Kennedy) suggesting that the Court wanted the detainees to try first to get some legal relief in the D.C. Circuit Court. Although nothing was written on Monday, that same approach may have been at work again. It seems likely that Justice Stevens, too, would have voted to hear the Hamdan/Khadr petition, had he had some confidence that, on the merits, Justice Kennedy would be in favor of some relief for the detainees as he was last Term when Hamdan's case first came to the Court.
Hamdan's part of the new case was an attempt to bypass the Circuit Court, to get direct Supreme Court review of a District Court ruling against him. Khadr's part of the case was an attempt to get the Court to review the same Circuit Court ruling that the Justices had denied early in the month in the other cases. Both sought to challenge the constitutionality of Congress' move last year to cut off all habeas challenges by war-on-terrorism captives.
The Justices granted review Monday in only one case -- the appeal by Mexican national Jose Ernesto Medellin, now on death row in Texas. His appeal raises a major question about presidential power to direct state courts to obey a World Court ruling on the rights of foreign nationals arrested and prosecuted in the U.S. Medellin's appeal on the question of presidential authority is supported by the Bush Administration. The case is Medellin v. Texas (06-984).
The Court took no action Monday on the case of Doe v. Kamehameha Schools (06-1202), a significant test case on whether private schools violate federal law by using race preferences in admitting students as a way to remedy imbalances in educational performance. The Court has examined that case at three separate Conferences without acting. Presumably, it will be up for discussion again in May.
Among a number of test cases that the Court declined on Monday to hear was a dispute between a same-sex couple who joined in a civil union but have since split up over rights of visitation to their daughter -- a controversy that has engaged state courts in both Vermont and Virginia. The appeal by the biological mother of the child came before proceedings had been completed in either state's courts. The case is Miller-Jenkins v. Miller-Jenkins (06-1110). Advocacy groups that oppose same-sex marriage or civil unions had sought to turn the appeal into a test of a state's authority to refuse under the federal Defense of Marriage Act to respect any parental rights recognized for a same-sex partner in another state.
Here were the issues denied review in other significant cases:
** Would the Court clarify the constitutional test for judging a state legislature's move to undo labor union contracts entered by cities or other political subdivisions of the state in order to ease budget pressures on city government. (Buffalo Teachers Federation et al. v. Tobe, et al. (06-1168).
** It is unconstitutional for a city government to use its power to condemn private property for public use, if that alters the terms of contracts private firms entered so as to aid a private developer in pursuing another private project. The case was an attempt to get the Court to clarify further its major ruling on the "public use" issue in eminent domain, Kelo v. New London in 2005. The new case was Kaufmann's, et al., v. Syracuse (06-1159).
** Did the federal government have the authority to adopt a new rule exempting a wide variety of changes in power plant and other factories' equipment from pre-installation air pollution review. The D.C. Circuit Court struck down a 2003 Environmental Protection Agency rule allowing such exemptions. Chief Justice Roberts took no part in the consideration that led to denial of review of EPA v. New York (06-736) and Utility Air Regulatory Group v. New York (06-750).
** Did the Federal Energy Regulatory Commission have any authority to set rates on purchases of energy that may intrude on state regulation of retail electricity rates. The D.C. Circuit upheld a formula used by the Commission for power purchases by electric generating firms when they are using the electricity to power their own stations. (Niagara Mohawk v. FERC, 06-1010, and New York v. FERC, 06-1011).
** If a state is sued in its own courts, and the state then transfers the case to federal court for trial, can the state then claim 11th Amendment immunity to the lawsuit. The 5th Circuit Court said no, but there is a split in the Circuit Courts on the issue. The denied case was Texas v. Meyers (06-462).
Let's Go to the Videotape!
12:12 PM | Marty Lederman | Comments (3)
In today's Fourth Amendment decision about running a fleeing car off the road, there is a factual dispute about exactly what happened, and the Court notes that because the case is in a summary judgment posture, ordinarily it would accept the plainitiff's version of the facts for purposes of the motion -- except that in this case, there's a videotape of the event, and the Court concludes that the videotape contradicts the version of the facts assumed by the plaintiff and the court of appeals. Justice Stevens argues that the videotape is sufficiently ambiguous such that a jury should be able to determine whether the deadly force it depicts was reasonable or not, but the Court isn't buying it:
"We are happy to allow the videotape to speak for itself," writes Justice Scalia -- and then he provides a URL citation (http://www.supremecourtus.gov/opinions/video/scott_v_harris.rmvb) for an upload of the videotape to the Supreme Court's own website!
And Justice Breyer, concurring, writes: "Because watching the video footage of the car chase made a difference to my own view of the case, I suggest that the interested reader take advantage of the link in the Court's opinion, ante, at 5, n. 5, and watch it." (It's just short of sixteen minutes long.)
I assume this is a first. And I'm fairly confident the Court has never before written anything like the bolded sentence in this passage:
When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment. That was the case here with regard to the factual issue whether respondent was driving in such fashion as to endanger human life. Respondents version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.Justice Stevens has some fairly harsh words for his colleagues:
Relying on a de novo review of a videotape of a portion of a nighttime chase on a lightly traveled road in Georgia where no pedestrians or other bystanders were present, buttressed by uninformed speculation about the possible consequences of discontinuing the chase, eight of the jurors on this Court [!!] reach a verdict that differs from the views of the judges on both the District Court and the Court of Appeals who are surely more familiar with the hazards of driving on Georgia roads than we are.This is my favorite part -- Justice Stevens's suggestion that his colleagues are simply too young to have a proper understanding of exactly what it is that they're watching:
I can only conclude that my colleagues were unduly frightened by two or three images on the tape that looked like bursts of lightning or explosions, but were in fact merely the headlights of vehicles zooming by in the opposite lane. Had they learned to drive when most high-speed driving took place on two-lane roads rather than on super-highways -- when split-second judgments about the risk of passing a slowpoke in the face of oncoming traffic were routine -- they might well have reacted to the videotape more dispassionately.Putting aside the disputed interpretation of the video in this particular case, what' s more important is that it is only a matter of time, I think -- perhaps decades, perhaps not so long -- before legislatures begin to require that many more police activities, including most importantly interrogations, must be videotaped. And this will, I predict, have a profound impact on constitutional jurisprudence, and, more importantly, on police practices.
News Round-Up: Today's Orders & Opinions
12:10 PM | Gretchen Sund | Comments (0)
The AP's Pete Yost has this article reporting that the Court ruled in favor of Microsoft, limiting the reach of U.S. patents abroad; Peter Kaplan of Reuters reports here on the opinion in Microsoft Corp. v. AT&T (No. 05-1056).
Greg Stohr of Bloomberg has this article on the Court's opinion in KSR v. Teleflex (No. 04-1350), which puts new restrictions on patent rights.
The AP's Mark Sherman reports here on the Supreme Court's decision in Scott v. Harris (No. 05-1631) protecting police officers from lawsuits resulting from high-speed car chases.
Reuters has this report on the Court's decision to deny review of a Bush administration appeal defending its rule permitting factories and power plants to upgrade equipment without installing up-to-date pollution controls; Greg Stohr of Bloomberg reports here on the refusal to hear EPA v. New York (No. 06-736) and Utility Air Regulatory Group v. New York (No. 06- 750).
The AP has this article on the Court's decision to deny review of Hamdan v. Gates/Khadr v. Bush (No. 06-1169), the latest Guantanamo Bay appeal.
James Vicini reports here on the Court's decision to hear the Medillin (No. 06-984) capital case for Reuters; Bloomberg's Greg Stohr has this article on the case of a Mexican national facing the death penalty in Texas; and Mark Sherman reports here for the Associated Press.
Today's Orders and Opinions
10:41 AM | Jason Harrow | Comments (0)
Today's Order List is here. There were five opinions today:
The opinion in KSR v. Teleflex is here.
Microsoft v. AT&T is here.
United Hauler's is here.
Scott v. Harris is here. The Court has also posted a video along with its decision here (Real Video).
EC Term of Years Trust is here.
Who's Writing the Opinion(s) in the Race-Conscious Admissions Cases?
10:40 AM | Marty Lederman | Comments (1)
With Justice Kennedy's opinion today in KSR, it is now likely and unsurprising, but by no means certain, that the Chief Justice is writing the lead opinion(s) in the Seattle and Louisville equal protection cases. If, by some small chance, Justice Alito is voting with the more liberal wing of the Court, then there's a chance that Justice Stevens would have assigned the opinion(s) to him. Justice Souter also has not yet written from the November/December sitting; but I think it's unlikely that he was assigned the opinion(s) in the school cases.
There is also a chance that the two school cases could come out different ways -- in particular, that the Louisville plan could be upheld while the Seattle plan is invalidated. If so, there's still a chance that another Justice -- probably Justice Kennedy -- would write one of the two opinions.
Today at the Supreme Court: 4/30/07
09:18 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.
Sunday, April 29, 2007
Detainees seek rehearing
04:51 PM | Lyle Denniston | Comments (0)
Turned down last week by Chief Justice John G. Roberts, Jr., in one effort to gain time to test their legal rights in lower courts, Guantanamo Bay detainees late Friday sought to draw the full Court back into the controversy. They filed two petitions for rehearing, one in each of the two cases in which the Court had denied review April 2, and simultaneously asked the Court not to act on the new filings until after the detainees complete appeals in the D.C. Circuit Court. Friday was the deadline for seeking rehearing of the orders denying review.
The petiton for rehearing in Boumedienev. Bush (06-1195) can be found here. Relying on the arguments in that filing, a separate rehearing petition was filed in Al Odah v. U.S.; it can be found here. The motion to defer consideration is here.
In addition, as required under the Court's Rule 44, the detainees' lawyers filed certificates saying the rehearing requests were filed in "good faith" and not for delay, and that the request was based on "intervening circumstances of a substantial and controlling effect and other substantial grounds not previously presented."
Rehearing peititons go to the full Court, and can be granted only by a majority of the Court. No response to such a petition is allowed, unless the Court asks for it, but ordinarily rehearing will not be granted until the other side is invited to respond, according to the Rules. Last Thursday, the Chief Justice turned down two pleas -- to suspend the order denyhing review of the two appeals, and extending for four months the deadline to seek rehearing. After that ruling by Roberts, the detainees' only other optiion was to promptly seek rehearing.
Lawyers for the detainees, whose legal fate has only recently drawn the interest of major news organizations, have been maneuvering for more than three weeks to set up a new chance to challenge the constitutionality of the action by Congress last year to scuttle all habeas challenges by war-on-terrorism captives, leaving them only with limited review before the D.C. Circuit Court of their detention based only on military evidence. The core of the strategy is to try to keep the detainees' original habeas challenges alive on a temporary basis, until a new test of Congress' authority to wipe out habeas pleas can be set up for a return to the Supreme Court..
Another principal aim of the legal strategy is to try to keep in place protective orders (issued in the original habeas cases) that preserve lawyers' access to the detainees and to information to defend their clients in military proceedings and before the D.C. Circuit in the status reviews.
The rehearing petition along with deferral of consideration of that petition, the Boumediene group argued, "will preserve the best vehicle" for returning to the Court to challenge Congress' authority to strip courts of habeas jurisdiction -- the main issue the Court declined to answer, at this time, in its April 2 refusal to hear the two detainee appeals.
"It would be a substantial waste of judicial resources -- as well as a profound deprivation of [detainees'] right to speedy habeas review of executive detention that has already lasted more than five years -- to force [detainees] to re-file an original habeas action in the district court and once again pursue every issue that has already been exhaustively litigated in this case," the petition contended.
Terminating the Supreme Court's involvement with the cases now, by acting on and denying the rehearing petition, "is likely to strip [detainees] of their ability to communicate meaningfully with counsel, as well as result in the destruction of critical classified materials that are essential to [their] pursuit of relief," the petition said.
In asking for deferral of the rehearing question, the detainees sought to have the Court put the matter on hold until after the D.C. Circuit Court resolves the limited challenges the detainees are allowed to make under the Detainee Treatment Act of 2005. The scope of that review, the petition said, and the relief open to detainees, will be clarified by decisions in the court of appeals expected "over the course of the next Term. Those decisions are highly likely to remove any obstacle" to Supreme Court review of the important questions raised in the two petitions for certiorari, the filing argued.
Asserting that the rehearing request satisfies the requirements of Rule 44, those circumstances will soon arise, according to detainees' counsel. "The pursuit of DTA remedies in the coming months by petitioners and other detainees constitutes an 'intervening circumstance of a substantial or controlling effect' and will also give rise to 'other substantial grounds not previously presented," according to the petition.
The lawyers promised to "assiduously prepare" their new DTA challenges, and press them "vigorously in pursuit of an expeditious resolution."
The government, on the other side of the cases, could be asked for a response fairly soon, although there is no certainty of that. If asked, the government presumably would resist the requests. The government has a strong interest in getting all existing habeas cases dismissed, to move on to the DTA review at the Circuit Court level. It also is seeking, at the Circuit Court, a new "protective order" that would limit lawyers' access to detainees, among other restrictions. The Circuit Court will hold a hearing on those issues on May 15.
Friday, April 27, 2007
Round-Up
04:30 PM | Gretchen Sund | Comments (0)
The AP's Mark Sherman has this midterm review of the Supreme Court reporting on the Chief Justice's recent dissent in the Texas capital cases, Kennedy's voting record and the Court's interest in the death penalty.
At Deliberations, Anne Reed has this post about the lack of clarity surrounding death penalty instructions for jurors, as exhibited by the Court's opinions on Wednesday. Here, Doug Berman of Sentencing Law and Policy discusses Chief Justice Roberts's dissent in the death penalty rulings. Capital Defense Weekly offers this background on Texas death penalty law.
Caitlin E. Borgman of the Reproductive Rights Prof Blog discusses the aftermath of the Gonzales v. Carhart decision here, referring to this article by Judy Peres in today's Chicago Tribune. NPR's Julie Rovner has this audio segment on "Morning Edition" reporting that the Court's ruling has energized the abortion debate on Capitol Hill. At Part-Time Pundit, John Bambenek has this post analyzing the merits of the Court's ruling. And University of Chicago Law School Professor Rick Garnett has this op-ed, entitled "Carhart, Casey, and the Supreme Court's Catholics," at Jurist.
The Associated Press has this article on the Chief Justice's decision to deny two requests by Guantanamo Bay detainees to prevent the dismissal of their cases.
Finally, Adam Liptak of the New York Times had this article about where the Supreme Court is headed in last Sunday's "Week in Review".
A Carhart II sequel in Second Circuit
03:32 PM | Lyle Denniston | Comments (0)
The Second Circuit Court has asked the two sides in one of the three test cases on the constitutionality of the first federal abortion ban to file new briefs on what is to be done with that case. In an order dated Wednesday (text available on Howard Bashman's How Appealing blog , the Circuit Court panel split 2-1 in calling for supplemental briefs on the impact of the Supreme Court's April 18 ruling in Gonzales v. Carhart (05=380) and a companion case) upholding the federal "Partial-Birth Abortion Ban Act" of 2003.
The majority said it was "following our usual practice of allowing the parties to present their views following a relevant Supreme Court decision." The dissenter, Circuit Judge Chester J. Straub, said "the only path available" to the Circuit Court was to wipe out its earlier ruling striking down the federal law and to send the case back to District Court for an order upholding the law "pursuant to Carhart." Said Judge Straub: "I believe that Carhart requires this result....There simply is no remedy available much less one requiring the further expression of views in the context of this case."
The Second Circuit's decision in the case of National Abortion Federation, et al., v. Gonzales (Circuit docket 04-5201) was not before the Supreme Court in Carhar. In its original 2-1 ruling on in January 2006, the Circuit Court had found the 2003 Act unconstitutional; Judge Straub dissented, arguing it was a valid exercise of Congress' power. The Circuit Court, however, had ordered further briefing on a remedy, then stayed that order pending the Supreme Court ruling. The Act before the Circuit Court, of course, was the same one at issue before the Supreme Court.
A speculative thought from this post's author:
One issue that was not decided by the Supreme Court -- it was not raised by the parties, although amici did so -- was whether the 2003 Act was a valid use of Congress' power under the Commerce Clause, since the Act involved federal regulation of medical practice. Justice Anthony M. Kennedy's majority opinion said the Act was passed "under the Commerce Clause" (slip opinion at p. 36), but Justices Clarence Thomas and Antonin Scalia said in a concurring opinion that the validity of such Commerce Clause regulation was not before the Court. Once the case in the Second Circuit goes back to District Court, as presumably it will, it is possible that that issue could be raised directly. It has become clear for some time, however, that abortion rights groups have not been willing to challenge Congress under the Commerce Clause, because they do not want to undercut a future plea for federal legislation seeking to protect women's rights or minority rights. William and Mary law professor Neal Devins discusses this strategic consideration in a just-released article in the St. John's Journal of Legal Commentary; here is a link to the issue; from that link, one can access a PDF version of Professor Devins' article.(Thanks to Howard Bashman for flagging the Circuit Court order.)
Further filing on Teague and retroactivity
01:02 PM | Lyle Denniston | Comments (1)
The public defender for a Minnesota prison inmate told the Supreme Court on Thursday that judges in "no fewer than 15 states" have reached conflicting conclusions about whether state courts are free under state law to make retroactive criminal law decisions by the Supreme Court, that the Court has held are not retroactive in federal cases. The filing of this supplemental reply (it can be found here) sets the stage for the Court to act on the case of Danforth v. Minnesota (06-8273).
The Court itself has never explicitly answered the question that the Danforth case raises -- an issue that the Court found sufficiently interesting as to ask the state for a full response on it. The state insisted that the Court has already made clear that the retroactivity of its criminal law decisions is a federal question, so the Court's refusal to make such a decision apply to early cases is binding on the state courts.
Answering that contention, the public defender for Stephen Danforth commented: "If the question presented was as settled as [the state] claims it to be, it is hard to imagine that courts in so many states would have gotten the law so wrong." Danforth is seeking to take advantage, under Minnesota law, of the Supreme Court's 2004 decision in Crawford v. Washington limiting use at trial of pre-trial testimony not subjected to cross examination. The Supreme Court has ruled, in Whorton v. Bockting, that Crawford is not retroactive in federal habeas cases under the analytical approach laid down in 1989 in Teague v. Lane..
(An earlier post discussing the Court's interest in this case can be found here and a report on Minnesota's response is here.)
Thoughts on Oral Argument in U.S. v. Atlantic Research
11:35 AM | Jason Harrow | Comments (0)
The following entry is by Sarah Rispin, an associate in Akin Gump's DC office who participated in this case as counsel for the United Conference of Mayors, which submitted an amicus brief supporting respondent. Her preview of this can be found here.
The Court heard argument on Monday in United States v. Atlantic Research, the second of two highly anticipated environmental cases this term (after Massachusetts v. EPA). The issue presented was whether Section 107(a) of the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) provides a right of contribution to land owners who remediate contaminated land before they are the subject of a federal or state enforcement action. (The Court had interpreted the right of contribution from section 113(f) to be so limited two terms ago, in Cooper Services v. Aviall Systems.) Deputy Solicitor General Thomas Hungar argued for the United States, Thomas Armstrong of Von Briesen & Roper argued on behalf of Atlantic Research, and Washington State Deputy Solicitor General Jay Geck argued on behalf of Washington, forty additional states, Washington D.C., and Puerto Rico, who had filed as amici.
As in the briefs, argument centered on the liability provisions of Section 107, from which a contribution right has been implied (although it is not explicit). That section provides that potentially responsible parties (PRPs) shall be responsible for: "all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan; [and] any other necessary costs of response incurred by any other person consistent with the national contingency plan[.]"
Continue reading "Thoughts on Oral Argument in U.S. v. Atlantic Research" »
Today at the Supreme Court: 4/27/07
09:21 AM | Jason Harrow | Comments (0)
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.
If any orders 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, April 26, 2007
Chief Justice denies detainees' pleas
05:19 PM | Lyle Denniston | Comments (0)
FINAL VERSION 6:38 PM.
Chief Justice John G. Roberts, Jr., on Thursday afternoon denied two requests by Guantanamo Bay detainees for temporary aid in their multi-faceted attempt to maintain access to their lawyers as legal maneuvering continues. The detainees asked Roberts to suspend the Supreme Court's order denying review of their appeal on habeas rights, and to give them more time to seek rehearing of that denial.
In a two-page order, which can be found here, the Chief Justice said that the detainees' lawyers have not satisfied "the rigorous standard we have established" for suspending the denial of a certiorari petition. And, he also concluded, the Court's rules "do not provide for any extension of time in which to file a petition for rehearing of an order denying certiorari. Such an order is plainly not a 'judgment or decision...on the merits" under Rule 44, the order declared..
The two actions by the Chief Justice, who acted alone in his capacity as Circuit Justice for the D.C. Circuit, leave the detainees to rely upon a flurry of procedural requests they have pending in District Courts and in the D.C. Circuit Court. Those filings are attempting to keep alive the detainees' habeas challenges -- scuttled by the Circuit Court in the ruling that the Supreme Court refused to hear April 2 -- while they test the military's reasons for continuing to hold the detainees at the U.S. military prison camp in Cuba.
The Justice Department has moved for dismissal of all pending habeas cases, both in the District Courts and in the Circuit Courts, and is seeking new orders limiting lawyers' access to detainees and to information the lawyers insist they need to protect their clients' remaining right to judicial review.
In refusing to suspend the denial order, the Chief Justice said that the detainees' lawyers "do not even point to any action by the lower courts as prompting their request for extraordinary relief -- only the filing of motions and possible court action." That kind of activity, the order added, "can hardly provide a basis for believing" the Court would "reverse course and grant" review later.
The Chief Justice and the other members of the Court, however, may yet face further requests to become involved again with the detainees' legal efforts in lower courts. Lawyers already have prepared emergency papers to seek new relief from Roberts or the full Court if they are unable to preserve their clients' positions in the lower courts.
Meanwhile, the Court will be considering tomorrow at its private Conference the new appeal in the case of Salim Ahmed Hamdan (Hamdan/Khadr v. Gates, 06-1169), joined by another detainee who -- like Hamdan -- is facing a war crimes trial before a "military commission." The Solicitor General on Tuesday notified the Court that formal charges were filed just this week against Khadr. The Solicitor General's letter of April 24 can now be found here, and the charge sheet referred to is here.
Round-Up
04:18 PM | Gretchen Sund | Comments (0)
Aaron Streett's latest Supreme Court Today, covering last week's five opinions and discussing the Carhart decision at length, is now available here at Baker Botts.
In today's New York Times, Linda Greenhouse reports here on the Court's three 5-4 decisions overturning death sentences yesterday; David Savage has this article in the LA Times on the rulings in Abdul-Kabir v. Quarterman (No. 05-11284), Brewer v. Quarterman (No. 05-11287), and Smith v. Texas (No. 05-11304); the Houston Chronicle's Patty Reinert reports here on yesterday's opinions; and Todd J. Gillman and Diane Jennings have this article in the Dallas Morning News. At Balkinization, Sandy Levinson discusses judicial doctrine and Chief Justice Roberts's "acerbic" dissent in the Abdul-Kabir and Brewer capital cases here.
At MarketWatch, Mark H. Anderson has this article on Watson v. Philip Morris (No. 05-1284), in which the Court heard argument yesterday. Coverage of yesterday's oral arguments in FEC v. Wisconsin Right to Life (No. 06-969) and Sen. John McCain et al., v. Wisconsin Right to Life (No. 06-970) abounds:
• David G. Savage reports here in the LA Times that the Supreme Court is likely to ease restrictions on "issue ads";
• In today's New York Times, Linda Greenhouse has this article suggesting that the Court may overrule a key provision of the McCain-Feingold campaign finance law;
• Joseph Goldstein of the New York Sun has this article, reporting that the justices seem ready to strike down a central provision;
• Here, Marcia Coyle discusses the case last night on the News Hour with Gwen Ifill;
• Dahlia Lithwick discusses yesterday's argument here at Slate and in this audio segment on NPR's "Day to Day";
• At the Election Law blog, Rick Hasen has this post discussing the roles of the justices and hypothesizing possible outcomes;
• Joan Biskupic reports here in the USA Today;
• In today's Washington Post, Robert Barnes has this article on yesterday's "lively session";
• The Boston Globe's Charlie Savage reports here on the campaign finance case; and
• Tony Mauro of the Legal Times has this report discussing the debate of an "as-applied" challenge to the McCain-Feingold law.Edward Lazarus has this analysis of the Court's decision in Gonzales v. Carhart at FindLaw; and NPR has this audio segment featuring Douglas Johnson, legislative director of the National Right to Life Committee, on "Morning Edition" as part of ongoing coverage of the abortion debate in the wake of last week's ruling. At the BLT, Mauro has this post discussing the "Catholic connection", which was raised after last week's opinion upholding the ban on "partial birth" abortion.
Finally, in the spring issue of the City Journal, Stephen B. Presser has this profile of Justice Thomas.
Yesterday's Opinion in Smith v. Texas
02:41 PM | Jason Harrow | Comments (0)
The following entry is by Troy D. Cahill, an associate in Akin Gump's DC office.
For the second time in three years, the Supreme Court ruled in favor of LaRoyce Smith and reversed a decision of the Texas Court of Criminal Appeals. In a five-to-four decision in which Justice Kennedy was joined by Justices Stevens, Souter, Ginsburg, and Breyer, the Court held: (1) that the Texas Court of Criminal Appeals made errors of federal law that cannot be the predicate for requiring Smith to show egregious harm; and (2) that because there is a reasonable likelihood the jury believed it was not permitted to consider Smith’s relevant mitigating evidence, it appears that Smith is entitled to relief under the state harmless-error framework.
At the time of Smith’s trial for murder, Texas statutes provided that the jury at the penalty phase of a capital case had to answer certain questions, known as “special issues.” If the jury found that the answer to all the special issues was yes, then the death sentence was imposed; otherwise, a sentence of life imprisonment was imposed. Prior to his trial, Smith filed three written motions addressing the jury instructions. In the first two motions, Smith argued that the special issues were constitutionally inadequate. In the third, Smith requested the court to state the contents of the nullification charge prior to voir dire in order to allow Smith to exercise his jury challenges intelligently. The trial court denied the first two motions and, in response to the third, provided Smith a copy of its proposed nullification charge. Smith raised no additional objections and did not suggest alternative wording for the nullification charge. The jury convicted Smith of first-degree murder and sentenced him to death for the murder of Jennifer Soto, a former co-worker.
Continue reading "Yesterday's Opinion in Smith v. Texas" »
Today at the Supreme Court: 4/26/07
09:21 AM | Jason Harrow | Comments (0)
No oral arguments are scheduled and no non-capital orders or opinions are expected to be issued today from the Supreme Court.
Wednesday, April 25, 2007
Blog Commentary: Today's Death Penalty Decisions
10:27 PM | Jason Harrow | Comments (0)
At the National Review's Bench Memos, Ed Whelan discusses the decisions here. At Crime & Consequences, Kent Scheidgger had posts here and here.
At Volokh, Orin Kerr discusses the cases here, and highlights a notable portion of the Chief Justice's dissent here. At Above the Law, David Lat has a post on the decisions here. Capital Defense Weekly spotlights the Abdul-Kabir and Brewer cases here (via Sentencing Law and Policy).
Index to Today's Posts
04:09 PM | Jason Harrow | Comments (0)
At 10 AM eastern, the Court released opinions in three criminal cases, Smith v. Texas, Abdul-Kabir v. Quarterman, and Brewer v. Quarterman. The opinions are here, Lyle's news post on the decisions is here, and Amy Howe breaks down the Abdul-Kabir and Brewer opinions here. We'll have more analysis of the decision in Smith coming soon.
Meanwhile, the final oral arguments of the term occurred today. Transcripts are available here, and Lyle's report on the WRTL argument is here.
There were also two new filings by Guantanamo detainees in the Boumediene and Al Odah cases. See Lyle's post here for details.
Last, Gretchen rounds-up news reports of today's decisions here, and has a more comprehensive Round-Up of everything else going on in the Supreme Court world here.
Detainees ask Roberts for temporary aid
04:08 PM | Lyle Denniston | Comments (0)
UPDATE 4:38 PM: Applications in 06A1001 and 06A1002 are now available for download.
The active new round of legal maneuvering over the fate of the Guantanamo Bay detainees returned to the Supreme Court on Wednesday. Attorneys for detainees whose appeals were denied by the Court on April 2 asked Chief Justice John G. Roberts, Jr., to delay any further action to implement that denial to give them time to pursue a new remedy. In two separate applications, the detainees' counsel asked that the Court to keep its formal denial order on hold, and also to give them four months (until August 27) to ask the Justices to reconsider the denial. Ordinarily, a petition to rehear the denial of review would be due this Friday.
In the meantime, the applications said, the detainees expect to be able to develop information to show that the judicial review process that awaits them in the D.C. Circuit Court will not be an adequate alternative to the broad challenges they had been pursuing for several years in habeas cases in U.S. District Court. Congress moved last Fall to scuttle all of those habeas cases, and the D.C. Circuit Court upheld that action on Feb. 20. That is the decision the Supreme Court declined to review on April 2.
The detainees' application to "suspend the order denying certiorari" is docketed as 06A1001 and be found here; the application for "extension of time within which to petition for rehearing" is 06A1002 and can be found here. The applications were filed in Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196).
In the suspension request, the counsel said that the government last week filed motions in the District Court to dismiss all pending habeas cases there -- an action that they said will have the effect of limiting or cutting off access of lawyers to the detainees and access to information they need to protect whatever legal rights detainees have. Suspension of the denial order will simply maintain the status quo, since the Boumediene and Al Odah cases would remain technically before the Supreme Court and thus would not go back to the Circuit Court or to District Court to alter the present situation.
"Absent suspension of the order denying certiorari," the application said, "the district court will be free to grant the government's motion [to dismiss], inflicting irreparably harm upon" the detainees. The government "will completely control the terms and conditions of communications" between the captives and their lawyers, at least until the D.C. Circuit Court issues new orders governing such contacts. The government also would be free to shift detainees away from Guantanamo, perhaps to countries where they could be tortured and defeating any chance that U.S. courts could aid them. Moreover, the application said, lawyers will be required within 60 days after dismissal of the cases to destroy their files in the habeas matters. Nothing will happen in the habeas cases in the District Courts in the meantime, because they are all currently stayed, the application said.
The detainees also argued that, if they are put in position to ask the Supreme Court to reconsider its denial of the Circuit Court ruling, they may persuade the Court to overturn the Circuit Court ruling by showing that the remedies available from here on are inadequate and would be futile.
The Detainee Treatment Act of 2005, the application noted, sets up a procedure in the D.C. Circuit Court to review the military proceedings leading to continued detention orders of the Guantanamo captives. But that limitied review is no substitute for potentially sweeping habeas review in District Court, the application contended.
In the application for extension of time to seek rehearing of the denial order issued by the Justices April 2, the detainees' counsel said the extra 120 days they are requesting will provide them with a chance to come back to the Supreme Court after the D.C. Circuit Court and the District Courts have acted on the government's maneuvers in those cases to get rid of the habeas cases and to get the limited review started in the Circuit Court. That would demonstrate, this application said, that the detainees have done all that they could to protect their rights in lower courts, and should have a new chance to get their claims before the Supreme Court.
But, the application added, even if the government does not get what it is seeking in lower courts, the reality about the type of review available in the Circuit Court will become apparent by August, showing that it is inadequate and setting the stage to seek a reopening of the cases in the Supreme Court.
The Chief Justice has the authority to act on the applications on his own, or to refer them to the full Court.
Meanwhile, another detainee at Guantanamo Bay, a Libyan named Abu Abdul Rauf Zalita who is seeking asylum in the U.S., asked the Chief Justice to bar his imminent transfer from Guantanamo to Libya. He said that he has been wrongly associated with a Libyan terrorist group, and that members of that group have suffered torture in Libya. That fate awaits him if he is returned here, his application (06A1005) contended. The Chief Justice asked the Justice Department to respond to the application by 4 p.m. Monday.
Round-Up
04:02 PM | Gretchen Sund | Comments (0)
The AP's Frederic J. Frommer reports here on this morning's oral argument in the campaign finance cases; Kristin Jensen and Greg Stohr have this article at Bloomberg; in the Washington Post, Robert Barnes reports here that a majority of the justices appeared skeptical about a key provision of the McCain- Feingold campaign finance act; and Rick Hasen has this post discussing his initial reactions to today's oral argument in FEC v. Wisconsin Right to Life (No. 06-969) and Sen. John McCain, et al., v. Wisconsin Right to Life (No. 06-970) at the Election Law blog.
Jess Bravin of the Wall Street Journal has this article (subscription req'd) previewing this morning's arguments; NPR's Nina Totenberg had this audio segment on "Morning Edition"; David G. Savage has this preview in today's LA Times. The Washington Post's Robert Barnes and Matthew Mosk preview the case here; Joan Biskupic of the USA Today has this article; Warren Richey reports here in the Christian Science Monitor.
In today's Washington Times, the Center for Competitive Politics' Bradley A. Smith and Stephen M. Hoersting have this column discussing the campaign finance cases; this editorial runs in the Washington Post; and the New York Times has this editorial.
At Workplace Prof Blog, Paul Secunda has this post offering preliminary analysis of yesterday's oral arguments in Beck v. Pace International Union, the ERISA fiduciary case. In today's New York Times, Linda Greenhouse reports here on yesterday's arguments in Permanent Mission of India v. City of New York (No. 06-134); Joseph Goldstein has this article in the New York Sun. Frederic J. Frommer of the Associated Press has this article on Dayton v. Hanson, which was also argued yesterday.
Additional commentary on last week's Carhart decision can be found in: this column by Ruth Marcus of the Washington Post; this analysis of Justice Ginsburg's equality argument from Pepperdine University Professor Douglas Kmiec at Justice Talking; and this paper from Simon Dodd posted here at Stubborn Facts.
Lastly, Ellis Cose reviews Kevin Merida and Michael Fletcher's new biography, Supreme Discomfort, here in this week's issue of Newsweek.
News Round-Up: Today's Opinions
03:52 PM | Gretchen Sund | Comments (0)
Mark Sherman of the Associated Press reports here on today's opinions in three Texas death penalty cases; James Vicini has this article on the Court's decision to overturn all three death sentences as a result of flawed jury instructions; and Jeannie Shawl reports here for the Jurist.
Today's Transcripts
03:18 PM | Jason Harrow | Comments (0)
The transcripts for the final oral arguments of the Term have just come online. WRTL is here, and Watson is here.
Today's Opinions in No. 05-11284, Abdul-Kabir v. Quarterman, and No. 05-11287, Brewer v. Quarterman
03:11 PM | Amy Howe | Comments (0)
By a vote of five to four, the Supreme Court today reversed two decisions of the Fifth Circuit (a.k.a. the Ninth Circuit of the Court’s death penalty docket), No. 05-11284, Abdul-Kabir v. Quarterman, and No. 05-11287, Brewer v. Quarterman. As in Smith v. Texas, also decided today, it was the vote of Justice Anthony Kennedy that made the difference here, as he joined Justices Stevens, Souter, Ginsburg, and Breyer in voting to reverse. Although today’s opinions represent a further reproach of the Fifth Circuit’s handling of capital cases, it is unclear how widespread the immediate effect of today’s decisions will be, particularly because Texas has not used the jury instructions at issue in the Abdul-Kabir and Brewer cases since 1991. However, as the Chief Justice’s dissenting opinion suggests (see below), today’s decision at a minimum may add fuel to the fire in the next battle over what constitutes “clearly established law” for purposes of the Antiterrorism and Effective Death Penalty Act of 1996, which governs prisoners’ efforts to obtain federal habeas relief.
Analysis: "Blackout" on campaign ads in doubt
11:50 AM | Lyle Denniston | Comments (0)
With Chief Justice John G. Roberts, Jr., and Justice Antonin Scalia exhibiting considerable distaste for a key provision of federal campaign finance law, Congress' latest attempt to reduce the flow of corporate and union money into federal politics appeared to be in trouble in the Supreme Court on Wednesday. While that attempt had an energetic defense from Justices Stephen G. Breyer and David H. Souter, it seemed apparent at the end of an hour of argument that the "blackout" period for "electioneering" ads on radio and TV -- if it survived at all -- would have far less effect in restraining such ads.
While both Roberts and Scalia seemed quite tempted to vote to overrule a decision of just three years ago upholding the "blackout" provisions on their face (Scalia commented that "Maybe we were wrong last time"), they might well find a way to narrow its scope so significantly that overruling would not be necessary as a practical matter. Roberts, for example, sought to explore ways to avoid an overruling of the 2003 decision in McConnell v. Federal Election Commission as it applied to the "blackout." It would take five votes to undo that ruling and, given the likely lineup of the Court, a fifth vote could come only from Justice Sanuel A. Alito, Jr., who did not display any enthusiasm for that outcome on Wednesday.
Scalia was clearly taking the lead against the "blackout." He commented to Solicitor General Paul D. Clement, who was defending that restriction: "This is the First Amendment. We don't make people guess whether their speech is going to be allowed by Big Brother or not. If you are going to cut off the speech, there ought to be a clear line...And you're not giving us one." Roberts, confronting attorney Seth P. Waxman, representing lawmakers who helped create the "blackout," soon echoed Scalia by asking rhetorically: "Do we usually place the burden when we're applying strict scritiny under the First Amendment on the challenger to prove that they're allowed to speak, as opposed to the government...to carry the burden that they can censor the speech?"
The main thrust of the Roberts-Scalia assault during the arguments on FEC v. Wisconsin Right to Life (06-969) and Sen. John McCain, et al., v. Wisconsin Right to Life (06-970) was that the "electioneering communications" restrictions adopted by Congress in 2002 do not appear to leave enough room for an advocacy group to put up broadcast ads during election season that seek to raise questions about the policy stance of candidates without directly urging voters to vote for or against such candidates. Just last Term, the Court had ruled, in a post-McConnell decision in this same Wisconsin Right to Life dispute, that "as-applied" challenges could still be made to the "blackout" clauses in the Bipartisan Campaign Reform Act of 2002.
WRTL's lawyer, James Bopp, Jr., of Terre Haute, Ind., appeared to make real headway with his complaint that "as-applied" challenges would seldom succeed under the "blackout" provisions, justifying at a minimum a narrowing interpretation or, perhaps, an overruling of that part of McConnell. Roberts and Scalia helped him significantly, but he also held his own against sometimes sharply tinged questioning from Breyer and Souter.
Continue reading "Analysis: "Blackout" on campaign ads in doubt" »
Today's Opinions
10:23 AM | Jason Harrow | Comments (1)
05-11304, Smith v. Texas. That opinion is now here.
05-11284/05-11287, Abdul-Kabir/Brewer v. Quarterman. 11284 is here. 11287 is here. Note that Justice Stevens wrote separate majority opinions in these cases, but the dissents are consolidated.
Court rules for three Texas death row inmates
10:03 AM | Lyle Denniston | Comments (0)
In three rulings Wednesday on death penalty procedures in Texas, the Supreme Court kept up its continuing challenge to the way the two courts reviewing Texas capital cases handle that assignment -- the Texas Court of Criminal Appeals, the state's highest court for criminal cases, and the Fifth Circuit Court, the federal tribunal that hears habeas challenges by Texas prisoners.
In the state case, the Supreme Court ruled that the Court of Criminal Appeals wrongly put up a new legal barrier to a death row inmate's challenge to jury instructions in his sentencing. The 5-4 decision came in the case of Smith v. Texas (05-11304), a case that had been before the Court once before.. Justice Anthony M. Kennedy wrote for the majority.
The Court reversed the state court ruling that reinstated the death sentence of a Dallas man, LaRoyce Lathair Smith; the state court applied a new harmless error standard under state law. That was a misinterpretation of what federal law required, the Court concluded.
In the federal habeas cases, the Court produced separate opinions in Abdul-Kabir v. Quarterman (05-11284) and Brewer v. Quarterman (05-11287), both by 5-4 votes finding that the Fifth Circuit Court wrongly applied prior rulings on instructions to assure that capital juries give full consideration to any factor that might suggest a death sentence should not be imposed. The Court had heard those cases in a consolidated hearing, but the majority -- led by Justice John Paul Stevens -- wrote separatelyin deciding the two, while the dissenters filed opinions applying to both (one by Chief Justice John G. Roberts, Jr., one by Justice Antonin Scalia).
One case involved Jalil Abdul-Kabir, who changed his name from Ted Calvin Cole after adopting the Islamic faith; the other involved Brent Ray Brewer.
(A separate post on this blog will discuss these rulings further.)
Today at the Supreme Court: 4/25/07
08:38 AM | Jason Harrow | Comments (0)
In the final day of oral argument of the Term, the Court is expected to begin its day by releasing at least one opinion beginning at 10 AM eastern; we will bring you coverage as opinions are made public. The Court is then scheduled to hear one hour of argument in the consolidated cases of FEC and McCain v. Wisconsin Right to Life (preview here, other commentary here), followed by one hour of argument in Watson v. Philip Morris (preview here, other commentary here).
Transcripts should be available sometime this afternoon.
Blog Round-Up: Watson v. Philip Morris
08:35 AM | Gretchen Sund | Comments (0)
In addition to Luke Itano's preview of Watson v. Philip Morris Companies, Inc., No. 05-1284 (available here), Micaela McMurrough and Craig Newton discuss the case here for Cornell's Legal Information Institute Bulletin. Ross Runkel has this preview at the Supreme Court Times Blog.
Public Citizen's Deepak Gupta had this post previewing the case at the Consumer Law and Policy blog before cert. was granted. Ted Frank of the American Enterprise Institute discusses the federal officer removal case here at PointofLaw.com. NewsInferno.com has this post; Skip Oliva of the Voluntary Trade Blog discusses the Court's decision to hear the case here; and at the Mass Tort Litigation Blog, Byron Stier has this post featuring this article by Robert Barnes of the Washington Post.
Blog Commentary: FEC v. WRTL
08:35 AM | Jason Harrow | Comments (0)
Today, the Supreme Court will hear oral argument in the consolidated campaign finance cases FEC & McCain v. Wisconsin Right to Life (see our preview here).
The Skeptic's Eye Blog discusses the case here. The Right Side of the Rainbow Blog discusses the case here, in a post that links to this clip of the Wisconsin Right to Life advertisement at issue.
At Uncommon Sense, Chuck Muth says here that "Free Speech May Get Another Day in Court," and the Three Sources Blog discusses the role of Senator McConnell here. A wealth of information on this case is also available by searching Rick Hasen's Election Law Blog; his latest thoughts on this case can be found here.
Finally, it's worth noting that the Cato Institute is hosting a panel on this case at 12:15 today at their DC headquarters on 1000 Mass. Ave., NW. The discussion will feature James Bopp, Jr., who is arguing the case for WRTL, Kathleen Sullivan of Stanford Law and Quinn Emmanuel, the aforementioned Rick Hasen of Loyola Law School, and Georgetown Law's (and SCOTUSblog's) Marty Lederman. If you won't be at the Cato Institute, you can watch a live webcast or listen to a live audiocast here.
Argument Preview: Watson v. Philip Morris on 4/25
08:24 AM | Jason Harrow | Comments (0)
The following argument preview is by Luke Itano, a student in the Stanford Supreme Court Litigation Clinic.
This morning, the Court will hear oral argument in Watson v. Philip Morris (No. 05-1284), which presents the question whether a private company “doing no more than complying with federal regulation is a ‘person acting under a federal officer’ for the purpose of 28 U.S.C. § 1442(a)(1), entitling the actor to remove to federal court a civil action brought in state court under state law.” This novel use of the “federal officer removal” provision in response to several class action “light” cigarette suits in state courts under state law puts at issue important federalism principles concerning supremacy, comity, and the presumption against federal preemption.
Arguing for the petitioners will be David C. Frederick of D.C.’s Kellogg, Huber. Former Solicitor General Ted Olson of Gibson Dunn & Crutcher LLP will argue on behalf of Philip Morris. Assistant to the Solicitor General Irving Gornstein will argue on behalf of the United States as an amicus in support of petitioners. The parties’ briefs are available here; the brief of the United States is available here.
Continue reading "Argument Preview: Watson v. Philip Morris on 4/25" »
Tuesday, April 24, 2007
Election season begins: Argument 4/25/07
05:41 PM | Lyle Denniston | Comments (2)
Analysis
The 2008 election campaign does not open, formally, for several more months, but it gets a start in the Supreme Court Wednesday -- the final day of scheduled arguments in the current Term. The Court holds one hour of oral argument in two consolidated cases that may influence in a major way the role of advocacy groups in speaking to voters about the issues shaping the 2008 election. Just 40 months after the Supreme Court upheld broad power for Congress to regulate broadcast ads during election season, the Court is being asked to overturn a key portion of that ruling. If it does, or if it restricts that ruling in a significant way, there could be an even heavier flow of corporate and labor union cash -- including major funding by non-profit corporate advocacy groups -- into radio and TV ads throughout the coming campaign.
The cases are Federal Election Commission v. Wisconsin Right to Life (06-969) and Sen. John McCain, et al., v. Wisconsin Right to Life (06-970). The cases are a sequel to the Court's massive ruling in December 2003 in McConnell v. FEC, upholding most major provisions of the Bipartisan Campaign Reform Act of 2002. Specifically at issue in the new cases is the part of McConnell that upheld Congress' restriction on what are called "electioneering communications."
As it turned out later, however, the Court would stress that McConnell had merely upheld the language of that restriction in BCRA, and had not ruled out constitutional challenges to the ban when applied to specific ads. The new dispute before the Court started out as just such an "as-applied" challenge but has grown into a plea to overturn that part of the McConnell decision.
"Electioneering communications," under the 2002 law, are ads that corporations and labor unions (including many non-profit corporations) pay for out of their own treasury funds, when the ads run in an area where a federal candidate is on the ballot (everywhere, for presidential candidates), use that candidate's name, and appear within 30 days before a primary election and 60 days before a general election -- the "blackout" period. As of now, that period, at least for the presidential campaign, is to start next December, 30 days in advance of the Iowa caucuses.
The legal question before the Court in the two new cases is whether a special three-judge U.S. District Court in Washington, D.C., was wrong in ruling last December that the "blackout" provision was unconstitutional as applied to three ads that Wisconsin Right to Life had planned to air during the 2004 election season.
But, as is frequently the case with Supreme Court litigation, the Justices will first have to confront the question of whether there is a "live" case before them for decision. The FEC, in appealing one of the cases, suggested that the dispute may be moot, because the case only involves three specific ads from 2004 and there is no proof that WRTL is likely to run the same kind of ads in the future. The Court, in its Jan. 17 order agreeing to hear the two cases, postponed a ruling on whether the case is moot and thus whether it has jurisdiction to decide them. That will no doubt be considered in Wednesday's oral argument, and in the coming decision, along with the merits.
Arguing for the FEC will be U.S. Solicitor General Paul D. Clement. Representing the four members of Congress -- two Democrats and two Republicans who support the "blackout" restrictions -- will be Seth P. Waxman, a Washington lawyer and former Solicitor General. Wisconsin Right to Life's lawyer will be James Bopp, Jr., of Bopp, Coleson & Bostrom in Terre Haute, Ind.
Continue reading "Election season begins: Argument 4/25/07" »
Round-Up
04:56 PM | Gretchen Sund | Comments (1)
In today's New York Sun, Joseph Goldstein has this article on the consolidated campaign finance cases being argued before the Court tomorrow. At the National Review Online, James Bopp Jr., Lead Counsel for Wisconsin Right to Life, has this piece; Senate Minority Leader Mitch McConnell has this commentary in today's Wall Street Journal. Brian Tumulty of the Appleton Post Crescent reports here on FEC v. Wisconsin Right to Life (No. 06-969) and McCain, et al., v. Wisconsin Right to Life (No. 06-970).
In today's New York Times, Linda Greenhouse has this article on yesterday's argument in Brendlin v. California (No. 06-8120); David G. Savage reports here in the LA Times.
Devlin Barrett of the Associated Press has this article on this morning's arguments in Perm. Mission of India v. New York (No. 06-134); Tony Mauro reports on the tax case here in the Legal Times.
Yesterday, WBUR's "On Point" featured this audio segment, a discussion on the Roberts Court after the abortion decision with guests Jan Crawford Greenburg, Jeffrey Rosen and Karen Tumulty.
Reuters' Maggie Fox reports here on doctors' reactions to the abortion ruling; Michelle Fay Cortez of Bloomberg has this article; and yesterday, NPR's "Talk of the Nation" featured this audio segment, a discussion of the Court's decision by a doctor and activists.
Here, at Legalities, Jan Crawford Greenburg discusses the anti-Catholic backlash over the Carhart decision. Last week, Greenburg had this post discussing Justice Kennedy's majority opinion.
Lastly, Tony Mauro has this post discussing Justice Thomas's recusal from all cases involving Wachovia at the BLT. And Peter Lattman has this post on Kevin Merida and Michael Fletcher's new biography, Supreme Discomfort: The Divided Soul of Clarence Thomas.
Today's Transcripts
03:18 PM | Jason Harrow | Comments (0)
The transcript in Perm. Mission of India v. New York is here.
The transcript in Beck v. PACE is here.
The transcript in Dayton v. Hanson is now online here.
Senate workers' rights: skepticism abounds
02:25 PM | Lyle Denniston | Comments (0)
Analysis
When skepticism about a case before the Supreme Court is expressed in a half-dozen different ways, it is fair to speculate that the case may be doomed. What might be a historic test of the U.S. Senate's potential immunity to being sued for workplace discrimination against its own employees proved fascinating to the Justices on Tuesday -- but an across-the-bench uncertainty about reaching that question and about the merits of the issue dominated the hour of oral argument in Office of Senator Dayton v. Hanson (05-618).
From an opening question by Justice Ruth Bader Ginsburg, suggesting that the Court perhaps should defer to the view of the Senate itself that it does not really desire immunity to employee lawsuits over job rights, the argument went heavily against the Senate's employment counsel arguing for expansive immunity. Repeatedly invoking the notion that some workers are so key to the legislative process that they are "second selves" of the senators, Chief Employment Counsel Jean M. Manning suggested senators need total discretion to fire such workers without then being sued. The argument, though, seemed to find no takers -- even assuming (an insupportable assumption, it seemed) that the Court was ready to reach the issue on the merits.
Justice John Paul Stevens, for example, asked in a voice laced with incredulity: "Firing someone is a legislative act?" Although Manning unhesitatingly replied that "firing your second self is a legislative act," it seemed to carry no persuasive weight. Somewhat sarcastically, Ginsburg asked: "How many second selves would there be? Who [among Senate employees] is not a second self?" Manning said there were "a lot of second selves."
Going over the details of the work assignments of the fired Senate aide who brought the job bias case against the office of former Minnesota Democratic Sen. Mark Dayton, Justice Stephen G. Breyer says he could find no real connection to the legislative process. "If he's included" as a "second-self" who can be fired at will, Breyer said, "so is a full-time furniture mover" working for a senator.
Justice Anthony M. Kennedy soon suggested to Manning that "your argument completely eviscerates" the law that Congress passed in 1995 to bring its own employees under the protection of 11 federal employment rights laws. Manning argued that about 75 percent of the Senate's employees would be protected, even under her argument. But the Justices appeared to remain in doubt about just how courts would go about defining who is covered, and who is, so to speak, "a second self."
Justice Antonin Scalia was the most hostile among the Justices to the idea that the Court should even have been drawn into this dispute at this point. He repeatedly commented that the 1995 law giving the courts jurisdiction to hear congressional employees' job rights lawsuits did not provide for the appeal of this case, under any circumstances. An appeal to the Court is allowed, he noted, only if the constitutionality of the 1995 law is drawn into question, and there is no issue in this case about that. At most, he said, the office of ex-Sen. Dayton was making an "as-applied" challenge, and there is no provision for an appeal in that situation, said Scalia.
Both Scalia and Breyer suggested that, if an employee's lawsuit threatened to intrude upon the legislative process, the trial judge could limit the evidence to protect the immunity of the "speech and debate" activity of the Senate. "Why should the whole suit be precluded?" Scalia asked rhetorically.
Continue reading "Senate workers' rights: skepticism abounds" »
Argument Recap: Brendlin v. California on 4/23
11:35 AM | Jason Harrow | Comments (0)
The following argument recap is by Troy D. Cahill, an associate in Akin Gump's DC office. Troy's preview of this case can be found here.
Yesterday, the Supreme Court heard argument in Brendlin v. California (No. 06-8120). A copy of the transcript is available here. At issue was whether a passenger in a vehicle subject to a traffic stop is “seized” for Fourth Amendment purposes and thus can contest the stop’s legality. The Supreme Court of California held Brendlin had not been seized because the police had never given any indication that he was not free to leave the scene.Elizabeth Campbell from the California Appellate Project argued the case on behalf of Brendlin. The outset of Ms. Campbell’s argument involved attempts by the Chief Justice and Justice Alito to define the contours of the rule that she proposed – i.e., that “[w]hen an officer makes a traffic stop, activates his flashing lights, he seizes not only the driver of the car but also the car and every person and everything in that car.” Upon Ms. Campbell’s concession that the underlying arrest was lawful, Justice Kennedy wasted no further time in cutting to the exclusionary rule aspect of the case and asking her whether she had “any case in which [the Court] exclude[s] the evidence seized incident to an arrest when the arrest is lawful?” When she failed to identify a case directly on point, Justice Kennedy made clear that was the answer he expected and that he was “not aware of authority which says that when the arrest is lawful and the search is incident to that arrest, that the evidence is excluded.” Other Justices, including Justice Scalia and Justice Souter, appeared to share Justice Kennedy’s concern. According to Justice Souter, the arrest was either a product of an unlawful stop or an act of executing a validly issued arrest warrant, and he saw no basis for putting “all the eggs” in the basket of the former over the latter.
Continue reading "Argument Recap: Brendlin v. California on 4/23" »
Today at the Supreme Court: 4/24/07
11:03 AM | Jason Harrow | Comments (0)
Beginning at 10 AM eastern, the Court will hear one hour of oral argument in Perm. Mission of India v. New York (preview here and further commentary here) followed by one hour of argument in Beck v. PACE Int'l Union (mini-preview and further commentary here). At 1 PM, the Court will one hour of argument in Dayton v. Hanson (preview here and further commentary here).
Transcripts of all three arguments should be available sometime this afternoon. No opinions are expected to be released today.
Blog Round-Up: Dayton v. Hanson
10:40 AM | Gretchen Sund | Comments (0)
In addition to Lyle Denniston's preview of Office of Senator Mark Dayton v. Hanson, No. 06-618 (available here), Breanne Atzert has this summary and analysis in the Cornell Law School Legal Information Institute Bulletin. At the Supreme Court Times Blog, Ross Runkel has this preview and prediction. And Jon Weinstein of Medill News Service has this piece on the Congressional Accountability Act case being argued this afternoon.
At Within the Scope, E.L. Lipman has this post, which summarizes the case and links to the D.C. Circuit Court's opinion. John Bresnahan has this article at The Politico. Lastly, the OYEZ project previews Dayton v. Hanson here.
Blog Round-Up: Permanent Mission of India v. New York
09:10 AM | Amy Howe | Comments (0)
In addition to Chris Pudelski's preview of Permanent Mission of India v. New York (available here), Brad Flora of Medill News Service has this article on the case; Ross Runkel has this “preview and prediction” on the Supreme Court Times Blog; and Ferve Ozturk has this summary and analysis on Cornell’s Legal Information Institute.
Monday, April 23, 2007
Argument Preview: Perm. Mission of India v. New York on 4/24
11:49 PM | Jason Harrow | Comments (0)
The following entry is by Christopher Pudelski, a litigation associate in Akin Gump's DC office.
May a United States municipality tax a foreign sovereign’s real property in the United States when that property is used to house its staff and other personnel? Tomorrow in Permanent Mission of India v. City of New York, No. 06-134, the Court will answer this question by considering two related issues regarding the interpretation of the Foreign Sovereign Immunities Act (“FSIA”). First, the Court will consider whether a specific exception to the FSIA provides jurisdiction for a municipality’s lawsuit seeking a judgment to establish the validity of a property tax lien on a foreign sovereign’s real property. Second, the Court will consider whether it is appropriate for U.S. courts to interpret FSIA by examining international treaties that have not been ratified by the United States and have only been signed by a limited number of other nations.
John J.P. Howley of Kaye Scholer LLP will argue the case on behalf of petitioners. Michael A. Cardozo of the Corporation Counsel of the City of New York will argue the case on behalf of respondent. Sri Srinivasan, Assistant to the Solicitor General, will argue on behalf of the United States as an amicus in support of petitioners. The parties’ briefs can be found here.
Continue reading "Argument Preview: Perm. Mission of India v. New York on 4/24" »
Oral Argument Tomorrow in Beck v. PACE International Union
08:27 PM | Amy Howe | Comments (0)
Tomorrow morning the Court will hear oral argument in No. 05-1448, Beck v. PACE International Union, which presents the question whether a pension plan sponsor's decision to terminate a plan by purchasing an annuity, rather than to merge the pension plan with another, is a plan sponsor decision not subject to ERISA's fiduciary obligations.
M. Miller Baker of D.C.'s McDermott, Will, & Emery will argue on behalf of petitioner Jeffrey H. Beck, while Julia P. Clark of D.C.'s Bredhoff & Kaiser will argue on behalf of respondents PACE International Union et al. Assistant to the Solicitor General Matthew Roberts will argue on behalf of the United States as an amicus in support of petitioner.
The parties' briefs are available here; the brief of the United States is available here.
Elsewhere around the Web, Ross Runkel’s Supreme Court Times has this summary of the case; Emily Green and Kiernan Joliat have this summary and analysis of the case on Cornell’s Legal Information Institute; Emily Whipp of Medill News Service has this article on the case; and the Congressional Research Service has this summary.
"Conference Call" Petitions to Watch: 4/27
06:42 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 4/27. 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.
A look at legislative immunity -- maybe: Argument 4/24/07
05:48 PM | Lyle Denniston | Comments (0)
In 1995, Congress took the important -- if belated -- step of committing itself to obey 11 federal laws against discrimination in the workplace; thereafter, its own workers were to be shielded by those laws. Whether that was a major stride, or merely an incremental step, may rest on the outcome of Supreme Court review of Dayton v. Hanson (06-618), scheduled for one-hour of oral argument starting at 1 p.m. Tuesday. The heart of the case, therefore, is the degree of legal immunity -- if any -- that the Constitution gives to lawmakers for their decisions about hiring, firing or promoting staff members. But, before the Court could get to that core issue, it must work its way through a multi-faceted exploration of civil procedure issues.
The office of a former member of the Senate, Ohio Democrat Mark Dayton, has asked the Court to rule that a onetime staff member fired from his job had no right to sue because his duties were closely related to legislative activity, so the action taken against him is shielded from legal attack by the Constitution's Speech or Debate Clause. Dayton himself left office with the expiration of his term on Jan. 3 of this year, but the case may go on. That, however, is a threshold question the Justices will have to confront.
The underlying lawsuit against the Dayton office was filed by Brad Hanson. who had worked as the senator's state office manager back in Minnesota, He claimed that he spent most of his work time on health insurance issues, advising constituents through a "health care help line." He began developing cardiac problems in 2002, and sought time off for medical treatment. He claimed that he was fired over the telephone by the senator, who contended that Hanson had performed poorly as a staff member. Relying upon rights he believed he was given as a congressional employee by the Congressional Accountability Act of 1995, Hanson filed a lawsuit against the senator's employment office, under the Family and Medical Leave Act, the Americans with Disabilities Act, and the overtime pay provisions of the Fair Labor Standards Act.
The senator's office sought to have the case dismissed, arguing that Hanson's duties were mainly legislative in character, so the firing was in essence a legislative act protected by the Speech or Debate Clause. A federal judge refused to dismiss the case, and the D.C. Circuit Court decided that it could go forward, without violating the Speech or Debate Clause.
That appeals court decision is the one the senator's office appealed to the Court on Nov. 3. Two months later, it asked the Court to dismiss Hanson's lawsuit as moot because the senator's term had expired, so there was no longer any office to sue. The congressional staff-protection law, the office argued, does not provide a stand-in when the employing office that had been sued ceases to exist. The mootness issue is one of the preliminary questions the Court will have to answer before deciding whether to rule on the underlying constitutional immunity issue. There is also a separate procedural question over whether the Dayton office had filed a proper appeal to the Supreme Court, and, if it did not, whether the Court will convert the case into a form that can be reviewed.
When the Court on Jan. 19 ordered review of the case, it added questions about mootness and about the Dayton office's right to appeal, and postponed until the hearing the question of its jurisdiction. If it does reach the merits of the case, the outcome could make a difference on whether many workers on Capitol Hill are put outside the laws against workplace discrimination.
The case now pits the former Dayton office, represented by the Senate Chief Counsel for Employment, against the Senate as a whole, which is siding with Hanson in favor of his right to pursue his lawsuit. Jean M. Manning, the Senate's chief lawyer on employment issues, will argue first at Tuesday's hearing, speaking for the Dayton office. Hanson will be represented by Richard A. Salzman of Washington's Heller, Huron, Chertkof, Lerner, Simon and Salzman. He will share his half-hour of time with Thomas E. Caballero, an assistant legal counsel for the Senate, representing the Senate as a body. The full Senate favors letting Hanson's case go to trial, and supports him on all issues before the Court.
Cbief Justice John G. Roberts, Jr., will not be taking part in the argument or in the decision. He was a member of the D.C. Circuit and participated in some facets of the Hanson case there.
Continue reading "A look at legislative immunity -- maybe: Argument 4/24/07" »
Round-Up
04:24 PM | Gretchen Sund | Comments (0)
At Volokh Conspiracy, Orin Kerr has this post describing his reactions to this morning's oral argument in Brendlin v. California; Kerr's preview of the argument is here.
Christopher S. Rugaber of the Associated Press reports here on the today's arguments in the U.S. v. Atlantic Research environmental case.
In the Wall Street Journal, Mark H. Anderson reports here on today's orders, including a Superfund appeal that was rejected by the High Court; the AP has this summary of today's actions at the Supreme Court. The AP also has this article on the Court's decision to review the U.S. v. Santos (No. 06-1005) money laundering case and this report on the Court's decision not to hear University of Phoenix v. Mary Hendow and Julie Albertson (No. 06-1006), a student recruiting case;
In the National Law Journal, Michael P. Shea has this article on the "federal officer removal statute" at play in Watson v. Philip Morris Cos. Inc. (No. 05-1284), which is scheduled for argument on Wednesday.
In today's Legal Times, Tony Mauro reports here on Justice Kennedy's role as the "swing vote" on the Roberts Court and his majority opinion in Gonzales v. Carhart. On Saturday, David G. Savage had this article in the LA Times discussing Kennedy's opinion.
Peter Lattman reports here on early action in the Stoneridge Investment Partners v. Scientific-Atlanta securities fraud case for the WSJ.com Law Blog. Carrie Johnson had this article in Saturday's Washington Post discussing both sides' courting of the Securities and Exchange Commission.
Today's Transcripts
02:46 PM | Jason Harrow | Comments (0)
The transcript in US v. Atlantic Research is now online here.
The transcript in Brendlin v. California is now online here.
The transcript in Hinck v. US is here.
The Divided Soul of Clarence Thomas
10:58 AM | Gretchen Sund | Comments (0)
In today's LA Times, David J. Garrow has this review of The Divided Soul of Clarence Thomas.
Yesterday, Washington Post Staff Writers Kevin Merida and Michael A. Fletcher had this piece in the Post, adapted from the biography they co-authored. Merida and Fletcher will discuss the book online today at noon ET here at the washingtonpost.com. Also in the Post, Kenji Yoshino has this review.
Listen here to NPR's Michele Norris conversation with the authors about their book on "All Things Considered".
Today's Orders
10:14 AM | Jason Harrow | Comments (0)
The complete list can now be found here.
Court to hear money laundering case
10:03 AM | Lyle Denniston | Comments (5)
The Supreme Court agreed on Monday to clarify the scope of the main federal money laundering law. It will spell out whether the ban on use of "proceeds" of a crime to promote or conceal it -- that is, "laundering" the proceeds -- applies to the total amount of money, or only the profits, if any, that remain after expenses. The Seventh Circuit, in conflict with other Circuit Courts, has ruled that, if there were no profits, the law does not apply. The case is U.S. v. Santos (06-1005, petition), involving a federal prosecution for using money from an illegal lottery in Indiana to pay runners, collectors and winners of the betting.
The Court took no action on two major cases considered at last Friday's Conference -- Medellin v. Texas (06-984, cert. docs) and Doe v. Kamehameha Schools (06-1202, Petition, BIO, Reply). Presumably, they will be considered anew at this Friday's Conference. The Medellin case tests whether the President has the authority to order states to comply with a decision of the World Court involving the treaty rights of foreign nationals arrested and prosecuted in those states. The Kamehameha case tests whether it is illegal under federal civil rights law for a private school to use race preferences in admitting students, if that is done to try to remedy imbalances in educational performance.
Among other orders issued Monday, the Court sent back to lower courts two cases testing the constitutionality of state "partial-birth abortion" laws, to be reconsidered in the wake of last Wednesday's decision upholding a similar federal ban. The new cases involved a Virginia law (Herring v. Richmond Medical Center, 05-730, and a Missouri law, Nixon v. Reproductive Health Services, 05-1124). In both cases, the state laws were found unconstitutional because they did not provide a medical exception. In the abortion ruling last week in Gonzales v. Carhart (05-380, together with 05-1382), the Court said it was not constitutionally necessary to have such an exception, when there was a difference of opinion among doctors about the need for the type of abortion procedure involved.
Because the Carhart decision involved a federal law, Monday's orders in the Virginia and Missouri cases extend that precedent to the state level, where most legislative activity about abortion is centered.
The Court denied review in a number of significant cases, including a refusal to hear either of two cases that sought to raise anew an employment discrimination issue that had been before the Court earlier this Term in a case that has now been dismissed. The Court declined to hear Sawicki v. Morgan State University (06-306) and turned aside a petition for rehearing in the denied case of Ray v. CSX Transportation (06-405). Both raised the question whether an employer is liable for alleged bias of a subordinate, when the subordinate was not the one who made the actual employment decision. That was the question -- the so-called "cat's paw" liability issue -- in BCI Coca-Cola v. EEOC (06-341) that was dismissed earlier this month by agreement of the parties.
Continue reading "Court to hear money laundering case" »
Today at the Supreme Court: 4/23/07
09:38 AM | Jason Harrow | Comments (0)
The Court returns to the bench today at 10 AM eastern. At that time, the Court will release an Orders List relating to its Conference of 4/20; we will bring you coverage of that as soon as it is released.
The Court will then hear one hour of oral argument in US v. Atlantic Research (see our preview here) followed by one hour of argument in Brendlin v. California (preview here). At 1 PM, the Court will one hour of argument in Hinck v. US (preview here).
Transcripts of all three arguments should be available sometime this afternoon.
Argument Preview: Hinck v. US on 4/23
09:33 AM | Jason Harrow | Comments (0)
The following argument preview was written by Howard Jacobson, a partner in Akin Gump's DC office.
Later today, the Supreme Court will hear argument in No. 06-376, Hinck v. United States. The issue presented in this case is whether the Tax Court has exclusive jurisdiction under 26 U.S.C. 6404(h) to review determinations by the Internal Revenue Service not to grant a taxpayer’s request for interest abatement under 26 U.S.C. 6404(e)(1) (relating to interest accruing due to the IRS’s own ministerial delay) or whether district courts and the Court of Federal Claims also have jurisdiction to review such determinations. This case will resolve a split between the Fifth and Federal Circuits on this issue, which treated taxpayers involved in substantially the same underlying transaction differently. Thomas Redding of Redding & Assoc. in Houston, will argue for John and Pamela Hinck, while Assistant to the Solicitor General Jonathan Marcus will argue on behalf of the United States.
Background on Jurisdiction over Tax CasesThis case is best understood by understanding the various trial courts with jurisdiction over federal tax cases. On the one hand, if the taxpayer is seeking a refund of taxes paid in excess of those due, it may sue for a refund in either the Court of Federal Claims or the federal district court in which the taxpayer resides. The Court of Federal Claims is granted jurisdiction under the Tucker Act over “any claim against the United States founded either upon the Constitution, or any act of Congress or any regulation of an executive department,” including tax refunds authorized by 26 U.S.C. § 7422(a). Federal district courts are granted concurrent jurisdiction with the Court of Federal Claims under 28 U.S.C. § 1346(a)(1) over “[a]ny civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected , or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws.” Prior to filing a tax refund, the taxpayer must first have filed an administrative refund claim which either has been denied or not acted upon within a specified period.
Continue reading "Argument Preview: Hinck v. US on 4/23" »
Sunday, April 22, 2007
Argument Preview: Brendlin v. Califronia on 4/23
11:12 PM | Jason Harrow | Comments (0)
The following argument preview is by Troy D. Cahill, an associate in Akin Gump's DC office.
Tomorrow in Brendlin v. California (No. 06-8120), the Court will consider whether a passenger in a vehicle subject to a traffic stop is “seized” for purposes of the Fourth Amendment and thus can contest the stop's legality. In the decision below, the Supreme Court of California held that Brendlin had not been seized because the police had never given any indication that he was not free to leave the scene. Therefore, the court reasoned, his Fourth Amendment rights were never implicated, and he lacked standing to challenge the stop itself. Elizabeth M. Campbell, an attorney with the Central California Appellate Project, will argue for petitioner Bruce E. Brendlin. Clifford E. Zall, Deputy Attorney General for the State of California, will argue for respondent California.
The Fourth Amendment protects individuals from “unreasonable searches and seizures” by government agents, including police officers. Whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person, and the Fourth Amendment requires that the seizure be “reasonable.” In turn, the reasonableness of a particular seizure depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.
Continue reading "Argument Preview: Brendlin v. Califronia on 4/23" »
Argument Preview: US v. Atlantic Research on 4/23
11:06 PM | Jason Harrow | Comments (0)
The following argument preview is by Sarah Rispin, an attorney in Akin Gump's DC office. Sarah participated in this case as counsel for the United Conference of Mayors, which submitted an amicus brief supporting respondent (see here).
The Court will hear argument tomorrow in No. 05-3152, United States v. Atlantic Research Corp., which presents the question whether owners of contaminated sites that must be cleaned up in accordance with the Comprehensive Emergency Response, Compensation and Liability Act (CERCLA) can recover clean-up costs from other potentially responsible parties (PRPs) before they are the subject of a state or federal enforcement action.Thomas Hungar is arguing on behalf of petitioner United States, and Thomas Armstrong of Von Briesen & Roper is arguing on behalf of respondent Atlantic Research; additionally, Jay Geck, the Deputy Solicitor General of Washington State, will argue as amicus supporting respondent. Huron Valley Steel, Reading Company, and Cooper Industries (the petitioner in a predecessor case, Cooper Industries v. Aviall Services) have filed amicus briefs in support of the United States. Several governments, NGOs, industry associations, and corporations have filed as amici in support of Atlantic Research, including a group of 40 states, Washington D.C. and Puerto Rico, the United States Conference of Mayors, New York City, a group of former EPA officials that includes former Administrator Carol Browner, the Association of California Water Agencies et al., the Natural Resources Defense Council, Lockheed Martin, Ford, and GM. Washington State Attorney General Rob McKenna has been granted argument time to present the position of the States.
Continue reading "Argument Preview: US v. Atlantic Research on 4/23" »
Saturday, April 21, 2007
Patent Cases Before the Supreme Court
08:19 PM | David Stras | Comments (8)
Among my many joys as an academic is teaching my Supreme Court Seminar once every year, in which the students are required to write 25-page seminar papers analyzing some aspect of the Supreme Court or its jurisprudence. I give them great freedom to write about whatever sparks their interest, which has resulted in papers in a variety of areas. I have truly learned as much from them as they have learned from me. One student this year is writing about the differences between the Supreme Court's treatment of patent and copyright cases.
I did not want to interrupt the excellent commentary on the partial birth abortion case, so I thought I would wait to post some of the startling statistics from his presentation and paper. Since the Federal Circuit was created in 1982, the Supreme Court has taken 13 copyright cases and 16 patent cases. Nothing surprising there--a little greater than one intellectual property case per Term since 1982. However, since 1999, the Supreme Court has taken 9 patent cases, over half the total amount since 1982, and reversed the Federal Circuit in most of them. Even more startling is the fact that the Supreme Court has taken three patent cases just this Term. In an era when the Court's docket has been steadily declining, as I have highlighted in previous posts, what do you think explains the Supreme Court's sudden interest in patent cases, an area over which it has no special subject matter expertise? One obvious explanation is that the Court is trying to rein in what it might view as a rogue Federal Circuit, but I believe that there might be something more there. Any ideas?
UPDATE: It has been brought to my attention by a prominent academic that, depending on how one defines patent cases, October Term 2001 also had three patent cases. There is little doubt, however, that the recent interest in patent cases by the Supreme Court is a departure from its general post-1982 behavior. Thanks for the excellent comments on this post.
Friday, April 20, 2007
More on the decision in Global Crossing
04:59 PM | Jason Harrow | Comments (0)
The following entry is by Tobias Zimmerman, an attorney at Akin Gump who handles a variety of Telecom-related litigation. When the case was argued, he previewed it for us here and then analyzed the argument here.
On Tuesday the Court held, 7-2, that payphone operators have a private right of action under Sections 206 and 207 of the Communications Act of 1934 (the Act) against a long distance carrier that has violated substantive regulations because the FCC has expressly declared a violation of those regulations to be an “unjust and unreasonable” practice within the meaning of Section 201(b). The majority opinion was authored by Justice Breyer; Justices Scalia and Thomas each filed dissenting opinions.
The background facts in Global Crossing Telecomms. v. Metrophones Telecomms., No. 05-705, are described in our pre- and post-argument summaries here and here. Briefly, as part of the sweeping Telecommunications Act of 1996, Congress enacted Section 276 of the Act, which directed the FCC to establish a mechanism that would ensure that payphone operators are compensated for 1-800 calling card, collect, and other non-coin calls (so-called “dial around” calls). Congress was silent as to who should actually be responsible for paying the payphone operator – it was the FCC that determined in the subsequent regulation that it the long distance carriers should collect fees from callers on behalf of the payphone operator.
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Round-Up
04:55 PM | Gretchen Sund | Comments (2)
In today's New York Times, Linda Greenhouse has this news analysis of the Supreme Court's decision in Carhart and Planned Parenthood. Kirk Johnson of the New York Times reportshere on what both sides expect will be a new push for limitations on abortion as a result of Wednesday's ruling.
The Washington Post's Robert Barnes has this news analysis on the decision and what it portends for the Roberts Court. Also in today's Washington Post, Kenji Yoshino has this book review of Kevin Merida and Michael Fletcher's new biography, The Divided Soul of Clarence Thomas. In yesterday's Post, HealthDay reporter Steven Reinberg had this story on the Court's ruling and its medical implications.
NPR's Nina Totenberg had this audio segment discussing the Court's decision yesterday on "Morning Edition"; in today's LA Times, University of Chicago Law School Professor Cass R. Sunstein has this editorial discussing Justice Ginsburg's dissent; and AP writer Mark Sherman reports here on Kennedy's key role in further legal action on abortion.
In the Wall Street Journal's Econoblog, F.M. "Mike" Scherer, former chief economist at the Federal Trade Commission, and Larry White, a former director of economic policy at the U.S. Department of Justice's Antitrust Division, discuss minimum price agreements and Leegin Creative Leather Products v. PSKS here.
Ilya Somin of Volokh Conspiracy has this article in Reason Magazine analyzing the Court's 2005 decision in Kelo v. City of New London and the progress of eminent domain reform.
At the BLT, Tony Mauro has this post about Justice Breyer and Justice Alito's testimony before a House Judiciary Committee subcommittee yesterday; and Joe Crea reports here on a political cartoon in the Philadelphia Inquirer that pictures the five Catholic members of the Court wearing bishop miters. Rick Garnett has this post at PrawfsBlawg discussing the cartoon.
Today at the Supreme Court: 4/20/07
09:22 AM | Jason Harrow | Comments (1)
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.
If any orders 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, April 19, 2007
Gonzales v. Carhart and Judge Easterbrook's pickle
06:47 PM | guest | Comments (1)
The following commentary is from Teresa Stanton Collett, Counsel for Amici Congressman Ron Paul, Association of American Physicians and Surgeons, Catholic Medical Association, and Christian Medical and Dental Assoction in Gonzales v. Carhart.
Gonzales v. Carthart is a valuable first step in reducing what some commentators have called “abortion distortion” – the Court’s disregard of generally applicable rules of law when the case involves abortion. By noting that the challenges to the Federal Partial Birth Abortion Ban should have been brought by as-applied challenges, and by rejecting the application of the overbreadth doctrine to abortion regulation, the majority opinion begins what may prove to be a long process of restoring both stability and predictability in this corner of constitutional law. Sadly, however, the majority refused to answer the pressing procedural question, “What is the proper standard of review facial challenges of abortion statutes?”
In 1987 the Court summarized the standard for assessing a pre-implementation facial challenge to a validly enacted statute as, “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenge must establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). This standard was employed by the Court in two cases related to abortion, Rust v. Sullivan, 500 U.S. 173, 183 (1991) and Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 514 (1990).
Five years after Salerno, and only one year after Rust, Justices O’Connor, Kennedy and Souter made no reference to the Salerno standard in their review of the Pennsylvania abortion statute. Instead they articulated a new test: plaintiffs challenging abortion statutes must show the provisions create undue burdens on the woman’s right to terminate a pregnancy in a "large fraction" of the cases involving the statute's applications. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 895 (1992).
Continue reading "Gonzales v. Carhart and Judge Easterbrook's pickle" »
Index: Today's Posts
05:35 PM | Jason Harrow | Comments (0)
A quick guide to today's posts:
-*UPDATED 5:30: Jason rounds-up blog commentary here.
-Gretchen has a Round-Up with further stories about yesterday's abortion decision here.
-Lyle discusses a new filing addressing Teague retroactivity here.
-A. Stephen Hut of Wilmer Cutler Pickering asks, "What Happened to Stare Decisis?" in the context of the abortion cases.
-Lyle details new developments in Guantanamo detainee cases here.
Blog Round-Up
05:25 PM | Jason Harrow | Comments (0)
-Lynn Paltrow has this essay online at The American Prospect.
-Balkinization has had a number of substantial posts discussing different aspects of yesterday's ruling. Go to the homepage here and scroll, or read pieces here, here, and here (among others).
-Bench Memos on the National Review's website also has extensive commentary from numerous contributors. Go here to see them all, or try posts here, here, and here.
-At the Volokh Conspiracy, Jonathan Adler discusses Sen. Reid's reaction to Carhart II here and Ilya Somin has thoughts here.
-Writing on the Huffington Post, Cecile Richards of Planned Parenthood says here that Wednesday was a "dark day."
-At the BLT, Tony Mauro wonders here if this week saw "The Death of Scalito," with the newest Justice disagreeing with Scalia in four of this week's five decisions.
Government moves to end detainee cases
03:51 PM | Lyle Denniston | Comments (0)
UPDATE 8:00 p.m.
Lawyers for Guantanamo detainees notified the District Court that they would formally oppose the government's motion to dismiss all of the detainee cases, saying they will argue that the District judges do not have the authority to act on the dismissal request while the D.C. Circuit Court retains its mandate in the underlying cases. Among papers attached to the "notice of filing" were copies of motions they have filed in the Circuit Court, along with a copy of an "emergency application" that the attorneys said they would file in the Supreme Court if rebuffed by the Circuit Court. They noted that this final document had been "lodged" at the Court, not formally filed. The packet of materials can be viewed with Pacer on the District Court docket for 04-1254 (Abdah v. Bush).* * * * *
With perhaps scores of cases involving Guantanamo Bay detainees lingering on the threshold of the Supreme Court, the Justice Department on Thursday formally asked District Court judges in Washington, D.C., to dismiss up to 185 pending cases challenging continued confinement at the U.S. military prison at a base in Cuba. The Department argued that the judges must act without waiting for the D.C. Circuit to put into effect formally its Feb. 20 ruling that no court may consider any habeas challenge by any foreign national captured in the "war on terrorism." The motion, in the same form in all 185 cases, can be found here. (The text supplied here does not include attached exhibits.)The filing reopened a new legal skirmish in the District Courts, thus drawing them back into the middle of the ongoing courthouse fray over detainees' legal status -- a fray that is rapidly unfolding in the D.C. Circuit, and may imminently return to the Supreme Court.
The Supreme Court on April 2 refused to review the Circuit Court's Feb. 20 decision, and that presumably allowed the Circuit Court to issue the mandate in those cases and thus put the ruling into effect. Detainees' lawyers, however, have asked the Circuit Court to postpone that action, so that they can continue to pursue other legal remedies -- including a possible return trip to the Supreme Court. The Circuit Court has not reacted to that plea.
In the Justice Department's dismissal motions Thursday, it said that, in light of the Feb. 20 ruling, "the law of this Circuit is settled." In a footnote, it cited a D.C. Circuit Court concurring opinion in 1990 saying that "once an opinion is released it becomes the law of this circuit" and a 1987 opinion of that Court saying that panels are bound by the "law of the circuit." That footnote also said that the D.C. Circuit had itself dismissed other Guantanamo-related cases since Feb. 20.
With Circuit law now established, the motion argued, "federal district courts do not have jurisdiction over cases brought by aliens at Guantanamo Bay detained as enemy combatants or awaiting determination of their status, and such aliens do not have constitutional rights." The motion also urged the District judges to dismiss other pleadings before those judges by detainees seeking to maintain the status quo until procedures are worked out to assure lawyers access to detainee clients and to information that may be used to justify continued confinement of the captives.
The Department sought to assure the judges that, even after the habeas cases before them are dismissed, the government will still allow detainees to see their lawyers "during a reasonable period for the wind-up of this District Court litigation" and transition of the legal disputes from the District Courts to the D.C. Circuit under the Detainee Treatment Act of 2005 for review of the military's confinement decisions.
And, the motion added, detainees' lawyers can file simple papers in the D.C. Circuit to get the Detainee Treatment Act review process started. Once such a start has been made, the motion said, the government will agree to court orders on an interim basis assuring counsel access to their Guantanamo clients. The terms of access it said it would embrace are those it has proposed before the D.C. Circuit -- terms that detainee lawyers have contended are inadequate to protect the detainees' legal interests.
The dismissal requests were filed not only in cases involving detainees who still remain at Guantanamo, but also those who have been released and sent to other countries, or those who have been found not to be "enemy combatants." The majority of the 185 detainees in the listed cases at the top of each motion, however, are still at Guantanamo, the motion said.
Lawyers for the detainees are expected to file a response to the dismissal motions, probably by next week. It is not yet clear when the ongoing controversy will bounce back to the Supreme Court in some further challenge by detainees who are being held at the prison in Cuba without criminal or war crimes charges. Meanwhile, the Supreme Court is scheduled to consider at its April 27 Conference whether to hear an appeal (Hamdan/Khadr v. Gates, 06-1169) by two Guantanamo prisoners seeking to go forward with their court challenge to impending war crimes trials before "military commissions."
What Happened to Stare Decisis?
02:22 PM | guest | Comments (9)
A. Stephen Hut, Jr., Wilmer Cutler Pickering Hale and Dorr LLP, represented the plaintiffs in National Abortion Federation v. Ashcroft, the companion case brought in the Southern District of New York. His commentary follows.
One of the most striking things about Kennedy's decision for the Court is how little it even attempts to grapple with Stenberg. Kennedy contends that the Court need not overturn Stenberg because, unlike the Nebraska law at issue in Stenberg, this law is narrowly tailored to reach only intact D&E procedures and no more. But Stenberg was not merely a ruling on the scope of Nebraska's ban. Stenberg squarely held that even assuming that the ban reached only intact D&E procedures, it could not stand without a health exception. Thus, for the Court to rule as it did, it had to overrule Stenberg. To justify this reversal, Kennedy should have focused on what had changed in the seven years since Stenberg with respect to the safety benefits of intact D&E. He did not -- indeed could not -- because nothing has changed over those years except the amassing of even more evidence that highly experienced physicians believe that D&Es involving intact removal have safety advantages and that such procedures are therefore taught and performed at the nations leading medical schools and teaching hospitals.
Minnesota: Teague retroactivity rule binds states
12:54 PM | Lyle Denniston | Comments (1)
The state of Minnesota argued in a Supreme Court filing on Thursday that states are not free to give more liberal retroactivity in state cases to criminal law decisions of the Supreme Court. The states are bound by the federal retroactivity standard the Court laid down in Teague v. Lane in 1989, Minnesota contended in its response to a query from the Court on March 20 in the case of Danforth v. Minnesota (06-8273). This blog discussed the Court's question to Minnesota in this post.
The issue arises in a case in which Minnesota prisoner Stephen Danforth wants to take advantage -- under state law -- of a Supreme Court ruling that the Justices have said does not apply retroactively under the Teague approach. The precedent at issue is Crawford v. Washington, a 2004 ruling limiting use at trial of out-of-court "testimonial statements" that had not been subject to cross-examination. On Feb. 28, in the case of Whorton v. Bockting (05-595), the Justices ruled that decision did not apply retroactively.
Stephen Danforth's public defender lawyers have argued that, if the retroactivity question is governed not by Teague but by Minnesota law, Danforth would be able to take advantage of the Crawford rule in his criminal sexual conduct case involving a six-year-old boy; his conviction became final no later than 1999. That is the claim that prompted the Court to ask for the state's views.
In a brief (available for download here), Minnesota echoed the views of its state Supreme Court. A state court, state lawyers said, "when asked to determine the retroactive application of a new federal rule on collateral review, must follow the principles of Teague." Retroactivity of such rules "is a federal question and is governed by federal law," the state's response said, contending that the Court has said so repeatedly.
It serves federal uniformity and "principles of judicial federalism" to have a single national standard for determining, in habeas cases, the application of a new criminal law ruling to cases that became final previousl, according to the brief.
"The goal of uniformity is defeated if defendants in states granting retroactivity can use a new federal rule to attack their convictions on collateral review while defendants in states that follow Teague (and federal defendants) do not enjoy this potential benefit," the brief asserted. The need for uniformity "is just as compelling in a state collateral ttack as it is a federal habeas proceeding," it added. "A state cannot use state law to expand the scope of a federal constitutional decision," according to the brief.
If a state court does want to make a federal constitutional rule applicable in state cases, Minnesota suggested, "it is free to adopt the ruling as a a matter of state law and to apply the state decision retroactively without federal interference." Stephen Danforth would have been free, it said, to ask the state Supreme Court to adopt Crawford as a matter of state constitutional law, but he did not do so.
While conceding that there is a split among state courts on the question at issue, Minnesota said that the division "is not as profound or dire" as Danforth contends. The vast majority of states apply Teague on the retroactively of federal criminal decisions, it said. Only a few jurisdictions disagree, it added.
Even if the Court were to leave states free to fashion their own retroactivity approaches to federal decisions, the state argued, Danforth would not benefit because it Minnesota law follows Teague in post-conviction attacks on state convictions.
The Danforth case has not been scheduled for Conference of the Justices.
News Round Up: More on Carhart & Planned Parenthood
12:52 PM | Gretchen Sund | Comments (3)
Linda Greenhouse of the New York Times reports here on the Supreme Court's decision to uphold the federal Partial-Birth Abortion Ban Act. Also in the Times, Robin Toner has this article about the impact of the ruling on the 2008 presidential election. In addition, the New York Times has this editorial declaring that the Court's decision "eroded the constitutional respect and protection accorded to women and the personal decisions they make about pregnancy and childbirth."
The Chicago Tribune has this editorial discussing yesterday's decision, which "required the court to retreat somewhat from its past emphasis on safeguarding the health of pregnant women above all else." Stephanie Simon of the LA Times has this analysis of the Court's ruling. The LA Times also has this editorial stating that "the U.S. Supreme Court on Wednesday executed an unconscionable U-turn."
The Boston Herald has this editorial stating that the Court issued a ruling "all but the most pro-choice zealots can live with." This editorial in the Washington Times declares the decision a "victory for commonsense morality and for constitutional jurisprudence." Also in the Washington Times, Stephen Dinan has this report on yesterday's ruling.
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