Thursday, July 05, 2007
Last Thursday's Supreme Court Ruling: A Setback for Civil Rights
10:45 AM | Jason Harrow | Comments (7)
The following commentary is by Nicole Elam, a student at Howard Law School and a summer associate in Akin Gump's DC office. As a student at Howard, Nicole worked on an amicus brief in support of the school districts.
While studies have consistently demonstrated the benefits of racially diverse classrooms for children, the Supreme Court's 5-4 ruling last Thursday is regressive for American ideals of equality. In his opinion, Chief Justice Roberts announced that a school district's voluntary adoption of a student assignment plan that relies on race to determine which schools certain children may attend violates the Constitution. Because "racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification," the plurality held, the Seattle and Louisville school districts failed to carry their burden of showing the achieved interest of racial integration: the measures are just too extreme, and the use of racial classifications was not narrowly tailored to achieve a compelling government interest. I disagree. Instead of recognizing racial integration as a compelling interest, the plurality instead issued a blow to Brown v. Board of Education - one of the high court's most seminal cases.
In 1954, Brown sought to racially desegregate public schools as a compelling national interest. Twenty-five years of deliberate speed in desegregating public schools districts resulted in court-ordered integration and busing plans becoming law. As court decrees were removed, public school districts experienced resegregation and concentrated poverty as white students left urban school districts. Notwithstanding racial isolation, voluntary plans became the only means to effectively achieve Brown's promise of equality in racially balanced schools.
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Tuesday, July 03, 2007
Is Libby free of supervision? President's views sought
08:49 PM | Lyle Denniston | Comments (4)
UPDATE: A little-noticed footnote in the court order discussed in this post raises an interesting legal question: since the President has undoubted power to grant clemency, are his views important on the meaning of the federal statute that controls "supervised release" of convicted individuals? Judge Walton added this footnote to the bottom of his order; "If either party believes that it would be helpful to solicit clarification from the White House regarding the President's position on the proper interpretation of [18 U.S.C.] 3583 in light of his Grant of Executive Clemency, they are encouraged to do so." Ordinarily, courts decide for themselves what a statute means, after hearing from counsel on both sides; in the Libby case, Libby is on one side, the United States on the other; the President is not a party. It is highly unusual for a judge to suggest that the President be contacted directly on a point of law. If the President does supply his interpretation, what legal status does that answer have? Since the Justice Department reportedly was not consulted on the commutation of Libby's sentence, would the President respond to the judge on his own, or seek some advice -- from either the Justice Departrment or the special counsel who prosecuted Libby?
The federal judge who sentenced former vice presidential aide I. Lewis Libby for lying to federal investigators and a grand jury on Tuesday raised the possibility that Libby might not have to serve two years on "supervised release" after all. In a two-page order (found here), U.S. District Judge Reggie B. Walton told lawyers on both sides to file briefs on the issue by Monday.
When President Bush in granting clemency on Monday nullified the 30-month prison sentence Walton had imposed, the President said he would leave intact the part of the sentence that required two years of supervised release -- somewhat akin to probation, but not the same. But Walton on Tuesday noted that the federal law governing such a requirement states that it is to be served "after imprisonment."
The judge said in his order: "Strictly construed, the statute authorizing the imposition of supervised release indicates that such release should occur only after the defendant has already served a term of imprisonment....It is therefore unclear how [the statute] should be interpreted in unusual circumstances such as these."
Lawyers were ordered to file papers by Monday on "whether the defendant should be required to report to the Probation Office immediately, whether he should be allowed to remain free of supervision until some later, more appropriate time, or, indeed, whether the plain meaning of [the statute] precludes the application of a term of supervised release altogether now that the prison sentence has been commuted."
Round-Up
06:32 PM | Gretchen Sund | Comments (0)
On NPR's Talk of the Nation, Nina Totenberg, Michael Dorf and Theodore Olson discuss last week's landmark decisions in this audio segment. In today's Washington Post, this editorial describes the Term as "simultaneously unsurprising and disappointing." Here, Linda Greenhouse has her latest Supreme Court Memo in today's New York Times discussing the "new dynamic" that emerged this Term and Justice Kennedy's key role. At Crime & Consequences, Kent Scheidegger has these comments on the end of the Term and reversal rates for federal circuits. The National Women's Law Center weighs in here on the negative impact of the OT2006 Term on women and civil rights at Womenstake.org.
Eugene Robinson decries the Seattle and Louisville school decisions in this column in the Seattle Times, declaring that "any progress our increasingly diverse country makes toward fairness and equality will come in spite of the nation's highest court, not because of it"; Steve Chapman weighs in here at Reason stating "in the wake of this decision, education officials can now focus more on what's really important."
Tony Mauro has this post at The BLT on a talk given by Chief Justice Roberts over the weekend at the 4th Circuit Judicial Conference.
Professor Ira Lupu and Professor Robert Tuttle, Co-Directors of Legal Research for the Roundtable on Religion and Social Welfare Policy, have this essay analyzing Hein v. Freedom From Religion and its impact.
Recap: Washington Legal Foundation OT06 review panel
01:18 PM | Ben Winograd | Comments (0)
On Wednesday morning, the day before the decision in the Seattle and Louisville school assignment cases, the Washington Legal Foundation held a discussion panel on the Court’s rulings during October Term 2006. The event focused on the impact on the free enterprise system, but the discussion also touched on the declining docket, last Monday’s free speech cases and the rising number of 5-4 decisions. Tom participated in the panel along with Washington appellate lawyers Roy T. Englert, Jr. and F. William Brownwell. An mp3 file of the event now can be download from the WLF web site here.
Tom (remarks beginning at 3:20) discussed the dwindling number of cert grants, noting that both the 68 cases decided after argument and the 72 total cases decided this term were modern lows for the Court. If the justices cannot fill the fall calendar for OT07, he said it should “bite the bullet” and cancel a sitting rather than call for expedited briefing of cases. Tom also noted the high percentage of 5-4 splits this term between the Court’s two main factions (after Thursday’s rulings, 19 of the 24 decisions with 5-vote majorities involved Justice Kennedy joining either the four left-leaning or four right-leaning justices), concluding “the ideological lines are sharper now than they’ve been in 20 years.” With Massachusetts v. EPA (05-1120) being the only major 5-4 victory for the liberals, he said it’s been “an extraordinarily successful term for conservatives.”
Englert (remarks beginning at 16:20) focused on the Court’s antitrust decisions this term, noting that defendants had prevailed with strong majorities in Weyerhaeuser v. Ross-Simmons Hardwood Lumber (05-381), decided 9-0; Bell Atlantic Corp. v. Twombly (05–1126), decided 7-2; and Credit Suisse Securities v. Billing (05-1157), decided 7-1. (Note: the defendant also prevailed in the Court’s final antitrust ruling, Leegin Creative Leather Products Inc. v. PSKS Inc. (06-480), though Thursday’s decision produced a 5-4 split.) Along with other business-friendly rulings this term, the Court has put “ a world of hurt on the plaintiffs’ class action bar,” Englert said. He cited Stoneridge Investment v. Scientific-Atlanta (06-43) – which examines secondary liability in securities fraud cases – as the Court’s main business case in OT07.
Brownell (remarks beginning at 24:25) focused on the Court’s environmental rulings. He called National Association of Home Builders v. Defenders of Wildlife (06-340) and Massachusetts v. EPA the most important decisions of the term, both of which were decided 5-4. Justice Alito authored the opinion in the first case, which was released last Monday, and Justice Stevens wrote the decision in the second case. In the global warming case, Brownell said the majority treated the Clean Air Act like a “living constitution.” He said the decision will spawn further cert petitions on global warming issues, and also predicted the Court will be asked to resolve disputes arising from last year’s fractured Rapanos decision on the scope of the Clean Water Act, and the extraterritorial reach of the Superfund statute.
The audience Q&A session (beginning at 50:00) included discussion of the punitive damages decision in Philip Morris USA v. Williams Estate (05-1256), the correlation between the Solicitor General’s recommendations and the Court’s declining docket, and Justice Alito’s impact on the Court, among other topics.
Commentary: Racially Conscious Alternatives For School Systems and the Power of the Swing Justice
08:30 AM | David Stras | Comments (11)
I have waited to post anything on the school cases because I wanted to spend the weekend thinking critically about the various decisions in the case and to permit time for all of our guests to post their thoughts. Many of the issues have been covered in detail, so I wanted to post my thoughts on an issue that many commentators have assumed as a result of Justice Kennedy's opinion: that the use of racially-conscious alternatives to direct racial balancing or integration is permissible after the school cases. The laundry list of alternatives includes "strategic site selection of new schools; drawing attendance zones with general recognition if the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race."
It is probably clear from the list that some of the alternatives suggested by Justice Kennedy's opinion are permissible, such as the tracking of enrollments, performance, and other statistics by race. I think that the keeping of such statistics is probably assumed by Grutter, and indeed much of the research done by my colleagues in the academy about the impact of race on schools, much of which is shared or financially supported through grants by governmental or quasi-governmental entities, would be drawn into doubt if such statistics could not be collated and analyzed. Tom Goldstein suggests that these alternatives, including drawing district lines with race in mind, are "per se constitutional," see here, while Michael Rosman seems to suggest that some of these alternatives could be subject to strict scrutiny under the Court's precedents, see here. With respect, I think that many in the media and blogosphere are putting way too much emphasis on Justice Kennedy's separate opinion in these cases, and I will tell you why after the jump.
Monday, July 02, 2007
Documents on Libby commutation
07:28 PM | Lyle Denniston | Comments (1)
The Supreme Court has not yet been drawn into the case of I. Lewis Libby, the former chief of staff to Vice President Cheney, who was convicted for perjury and obstruction of justice in the CIA operative leak investigation. The Court may yet get involved, because of basic issues now being raised in lower courts about the powers of the independent federal prosecutor who obtained the Libby conviction. Although the nature of the case changed Monday evening with President Bush's grant of clemency to Libby, the conviction remains intact, and thus an ultimate appeal to the Supreme Court remains a real possibility.
President Bush on Tuesday wiped out the prison sentence given to I. Lewis Libby, the former chief of staff to Vice President Cheney, leaving intact other punishment for his conviction in the Valerie Flame leak investigation. The formal grant of executive clemency can be found here The decision means that Libby will serve no part of his 30-month prison sentence, but will still be required to pay a $250,000 fine, pay a special assessment of $400, and remain on supervised release for two years.
The President's statement about his action can be found here. "I respect the jury's verdict," the President said. "But I have concluded that the prison sentence given to Mr. Libby is excessive. Therefore, I am commuting the portion of Mr. Libby's sentence that required him to spend thirty months in prison. My decision to commute his prison sentence leaves in place a harsh punishment for Mr. Libby." The President also said that, with the conviction intact, the "consequences...will be long-lasting" on the former vice presidential aide's "former life as a lawyer, public servant, and private citizen."
Under the Constitution, the decision to grant clemency is the President's alone; there is no chance for court review.
Earlier on Monday, the D.C. Circuit Court refused to allow Libby to remain free while his appeal unfolds. The President said that is what prompted him to act to grant clemency. The Circuit Court issued this order:
"Upon consideration of the motion for release pending appeal, the opposition thereo, and the reply, it is
"ORDERED that the motion for release pending appeal be denied. Appellant has not shown that the appeal raises a substantial question under 18 U.S.C. sec. 3143(b)(1)(B). See United States v. Perholtz, 836 F. 2d 554, 555 (D.C. Cir. 1987)(per curiam)(substantial question is one that is 'close' or that 'could very well be decided the other way')."The order in Libby v. U.S. (Circuit docket 07-3068) was signed by Circuit Judges David B. Sentelle, Karen LeCraft Henderson and David S. Tatel.
Round-Up
05:58 PM | Gretchen Sund | Comments (1)
In today's Wall Street Journal, Jess Bravin has this front page article (subscription req'd) on the shift toward limited access and judicial restraint; Linda Greenhouse had this in-depth piece discussing key rulings, reviewing the Term and describing "the Supreme Court that conservatives had long yearned for and that liberals feared" in yesterday's New York Times; Marty Lederman responds to her article (and notes a few exceptions) here at Balkinization. On Saturday, the Wall Street Journal ran this op-ed (subscription req'd) discussing the Court's "incrementalism" and reviewing the Term; in Sunday's Washington Post, Edward Lazarus had this op-ed discussing the Roberts Court and "shell-shocked" progressives and Robert Barnes had this analysis of the Court's "steady and well-documented turn to the right."
David G. Savage had this story on the "confident conservative majority" that "may signal a generational shift in power" in yesterday's LA Times. The LA Times also had this op-ed declaring that "this term, the winds too often blew in the wrong direction." On NPR's Weekend Edition, commentator Mimi Wesson discussed the rulings that exhibited bitterly divided Court with Liane Hansen here and Nina Totenberg and Scott Simon had this audio segment on last week's decisions and the High Court's shift in direction. Professor Jonathan Adler and Professor Goodwin Liu evaluate and discuss the Term (transcript here; video here) with Margaret Warner on the NewsHour with Jim Lehrer; and Professor Douglas Kmiec has this commentary (subscription req'd) on the Term in the Legal Times.
Also in Sunday's New York Times, William Yardley had this report on how Seattle schools are reacting to last week's ruling; and Professor Jeffrey Rosen commented on the school assignment decision and its relationship to Brown here in the Week in Review. At Slate, Risa Goluboff weighs in here on the Court's decision in the school cases, which "represents the culmination of a 50-year-old debate about the meaning and content of Brown v. Board of Education"; and Mark Graber has these thoughts on "the constitutionalization of ... Strom Thurmond’s Brown v. Board of Education" at Balkinization. Professor Pamela Karlan has this post discussing the school integration decision, its similarities to Carhart II and Justice Kennedy's concurrence at the ACSBlog; FindLaw columnist Michael C. Dorf weighs in here on the opinions, the issues, and the impact of the ruling; Abigail Thernstrom of the Wall Street Journal has this commentary (subscription req'd) on the Seattle and Louisville school cases stating that "in a 5-4 opinion last Thursday, the court took a gratifying but sadly limited step in the right direction"; and guest blogger Deborah Hellman discusses Chief Justice Roberts's plurality opinion here at Balkinization.
Hamdan case returns to Supreme Court
04:40 PM | Lyle Denniston | Comments (0)
Attorneys for Guantanamo detainee Salim Ahmed Hamdan returned to the Supreme Court on Monday, asking the Justices to grant his case and hear it along with two other appeals by detainees now scheduled for review in the next Term. The Court on Friday switched course, and decided to consider the other cases after having denied them on April 2. Hamdan's case differs because it involves a detainee who is likely to face a war crimes trial before a "military commission." Only one of the detainees in the other cases is facing such charges. Moreover, Hamdan's challenge raises added constitutional questions. (The case is titled Hamdan v. Gates. Previously, the case was docketed as 06-1169. A new petition for review, just filed, has not yet been assigned a docket number.)
If review is not also granted in the Hamdan case, his lawyers told the Justices, "the Court will not resolve the full array of legal challenges in the range of contexts that exists to the Military Commissions Act of 2006...As the nation is almost six years beyond September 11, 2001, there is substantial interest in the Court comprehensively addressing without further delay the lawfulness of the system for detaining, charging, and trying the Guantanamo detainees."
Hamdan's case is currently pending in the D.C. Circuit, following the Supreme Court's refusal on April 30 to hear an earlier appeal. In that prior petition, Hamdan was appealing directly from a District Court order to dismiss his case under MCA, and his lawyers asked the Justices to take his case without awaiting review in the Circuit Court. At the moment, the Circuit Court is considering a plea by Hamdan -- opposed by the Justice Department -- to initially consider his case en banc rather than by a three-judge panel.
In Court filings in the Supreme Court on Monday, Hamdan's counsel sought permission to file for rehearing in 06-1169 even though a deadline for doing so had passed (that document can be found here), submitted a rehearing petition in 06-1169 (that can be found here), filed a new petition for certiorari (that can be found here), and made a motion to expedite the case and hear it along with the other detainee appeals (that can be found here).
The new petition, like the one before the Court previously (06-1169), is a plea for the Court to hear the case prior to a final ruling by the D.C. Circuit. That Court has taken no final action on the case as it stands there.
Because the Supreme Court's Rules discourage rehearing pleas unless there is a significant change in circumstance, Hamdan's attorneys said that the order last Friday granting review of the other case was "by any measure, an extraordinary and rare event." The lawyers also said that they did not file a rehearing petition earlier, within the time specified by the Rules, because lawyers had done so in the other cases and Hamdan's counsel did not want to "burden the Court at that time with multitudinous filings." His counsel also noted that they did not waste any time seeking rehearing after the Friday grant order in the other cases.
If review is now granted, Hamdan's counsel promised to meet any briefing schedule that is set for the other detainee appeals (the other cases are Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196). The Court has not laid down a schedule for the other cases, because it is awaiting a ruling by the D.C. Circuit on the procedures that Court will follow in reviewing military detention orders for prisoners at Gantanamo Bay, the U.S. military prison camp in Cuba.
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Breyer statement on school decisions
04:25 PM | Lyle Denniston | Comments (13)
Supreme Court Justice Stephen G. Breyer has released the bench statement he made on Thursday, dissenting from the Court's ruling in the Seattle and Louisville school integration cases. (The blog has sought release of other bench statements made on Thursday). The Breyer statement can be found at this link.
Some further thoughts on WRTL
04:06 PM | Gretchen Sund | Comments (0)
The following commentary is by Scott L. Nelson, Public Citizen Litigation Group. Mr. Nelson assisted in the representation of the congressional intervenors in WRTL.
With the perspective afforded by the passage of a whole week since the Court’s decision in WRTL, I’m offering my thoughts on the burning question: What is left of McConnell? The answer is twofold — “a lot,” and “a little.”
As for the “a lot,” let’s not forget that McConnell addressed important issues aside from the constitutionality of the limits on “electioneering communications,” most significantly the question of BCRA’s restrictions on soft money contributions to political parties. Nothing in the reasoning of Chief Justice Roberts’ opinion in WRTL casts doubt on the McConnell majority’s holding that the soft money contribution provisions of BCRA are constitutional. And Roberts’ joinder in Justice Breyer’s opinion last Term in Randall v. Sorrell reflected at least a general acceptance of the Buckley-McConnell framework for addressing contribution limits.
One can of course speculate, in light of Roberts’ lack of enthusiasm (to say the least) for campaign finance legislation, that he might have voted the other way on the contribution issues in McConnell. But that’s a very different matter from whether he would overrule it. And on the contribution side, there appear to be fewer opportunities to limit BCRA’s reach by entertaining as-applied challenges; thus, what Justice Scalia labeled the “faux judicial restraint” approach of effectively overruling a decision without acknowledging what you’re doing may not be readily available. I don’t see much reason in WRTL to predict the imminent demise of McConnell’s soft money holding.
What’s left of McConnell’s electioneering communications holding is another story. The effect of the Court’s ruling is the same as if the McConnell Court had struck down the electioneering communications provisions on their face but sustained the statute’s “backup definition” of electioneering communications, which BCRA provided would come into play if the primary definition were struck down. Under the backup definition, as under Chief Justice Roberts’ controlling opinion, the prohibition on use of corporate and union treasury funds to finance electioneering communications could be applied only to ads that have no “plausible” (BCRA) or “reasonable” (Roberts) meaning other than advocacy of a vote for or against a candidate. Thus, wholly aside from Roberts’ rejection of much of the McConnell majority’s reasoning, the result of his opinion is, as Justice Souter pointed out in dissent, identical to what would have occurred if McConnell had held the electioneering communications provision facially unconstitutional rather than upholding it.
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What the Schools Cases Mean for the Workplace
11:53 AM | Jason Harrow | Comments (0)
The following analysis was written by Eric Dreiband, a Labor and Employment partner in Akin Gump's DC office. Prior to joining the firm, he was the general counsel of the EEOC. Several weeks ago, another former GC of the EEOC, Don Livingston, discussed key implications of the Ledbetter decision in this post.
Although Thursday's decision in Parents Involved in Community Schools v. Seattle School District rejected race-conscious school assignment programs, its rationale about the use of race will extend beyond schools to employment and other areas. Parents Involved will also add fuel to the anti-diversity fire that has been raging in the federal courts in the four years since Grutter v. Bollinger decided that race-conscious diversity programs in higher education can be lawful. The case is also likely to have a significant impact beyond the educational arena: the federal courts will strike down employment diversity programs that seek nonremedial "racial balancing," and diversity plans that explicitly consider race in employment are vulnerable to Title VII challenges.
Title VII And Diversity Programs
Title VII of the Civil Rights Act of 1964 makes it unlawful to "discriminate" against any individual in employment "because of" race, sex, and other protected characteristics. The Court's 1979 decision in United Steelworkers of America v. Weber held that Title VII permitted a voluntary race-conscious affirmative action plan that sought to "eliminate manifest racial imbalances in traditionally segregated job categories." Title VII permitted the plan, the Court explained, because it sought to "break[] down old patterns of racial segregation and hierarchy"; did not "unnecessarily trammel" the interests of non-minority employees; and was temporary.
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Measuring "Divisiveness" in OT06
09:48 AM | Jason Harrow | Comments (5)
The following post is by Adam Chandler. It is another in our series of posts analyzing this Term's statistics (which can be found here.)
With seven of the eight decisions handed down by the Supreme Court in its final week being split 5-to-4, indications are that it has been a particularly fractious year for the Justices. This post will attempt to assess the divisiveness displayed by this term’s decisions.
Using as a yardstick the average number of dissenting votes per case decided over the term, we note that the dissension rate is the highest it’s been in at least a dozen years. The average opinion this term garnered 1.82 dissenting votes. The most recent term with a rate about that high is OT 2001 with 1.81. (Under this metric, the level of divisiveness produced by two 7-2 decisions is the same as that produced by one 9-0 decision and one 5-4 decision.)
Divisiveness was seemingly at a recent low during October Term 2005, the first under Chief Justice Roberts. The Court had purposefully avoided taking on difficult cases as it was preparing for a mid-term transition from Sandra Day O’Connor to a new justice. As a result, a decision during that term carried, on average, only 1.21 dissenting votes.
But the underlying divisions of the newly-composed Court made their way to the forefront in October Term 2006. Cases on abortion, gender discrimination, race in education, campaign finance, and global warming were all on the table, and each resulted in a 5-4 split. Despite Roberts’s call for rulings on narrow grounds to build greater unanimity, a full third of the cases in his second term as Chief were decided by 5-4 opinions, the highest proportion in over a decade (see Ben’s post here about the 5-4 splits this term).Not only were there more 5-4 decisions, but they also split in predictable alignments more frequently. Since OT 2000 six years ago, no term has produced a higher percentage of 5-4 cases decided in an ideological split (in which Justices O’Connor and Kennedy are considered along with the liberals and the conservatives). Nearly 80% of the 5-4 decisions this term split along traditional ideological lines, possibly indicating further entrenchment of both the left and the right.
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Friday, June 29, 2007
Military judge refuses to revive war crimes case
04:50 PM | Lyle Denniston | Comments (1)
A military judge at Guantanamo Bay, Cuba, refused on Friday to reconsider an early June ruling that a military commission does not have the authority to hold a war crimes trial of a young Canadian detainee, Omar Ahmed Khadr. Turning aside a plea by military prosecutors, Judge Peter E. Brownback III, an Army colonel, said again that the military panel that reviewed Khadr's status had not found him to be an unlawful enemy combatant, so a commission trial cannot be held and war crimes charges had to be dismissed. This new ruling set the stage for a Pentagon appeal -- if some uncertainty over the availability of a proper appeals court is sorted out.
Brownback's order was the second significant setback of the day for the Bush Administration's handling of detainee affairs. It followed the Supreme Court's agreement, over Administration opposition, to hear two appeals over detainees' legal rights that the Justices had declined to hear in April. (A post discussing this other development can be found here.)
The judge's earlier order dismissing charges against Khadr was the second of two such rulings by a judge at Guantanamo on the same day. In a separate proceeding, another judge dismissed charges against Salim Ahmed Hamdan, for the same reasons. Prosecutors had also asked that judge to reconsider, but there was no word from that judge on Friday.
Judge Brownback, in a 10-page order in the Khadr case, found here, said the plea for reconsideration to did not offer any change in the facts or law since his June 4 order finding no jurisdiction over Khadr's case. But, the order went on, because of the prosecution request, he was clarifying the rationale for his earlier decision. While refusing to reconsider, the judge went ahead to dispose of each of the prosecutors' arguments against the dismissal "in the interest of conserving judicial and other resources" should the case be appealed either to the new Court of Military Commission Review or the D.C. Circuit Court.
The order implicitly raises questions about whether the order dismissing the charges on June 4, or Friday's refusal to reopen that order, can be appealed. Brownback suggested it was up to "an appellate court" to determine whether an appeal can be pursued. But there is another layer of uncertainty that the judge did not mention: the Court of Military Commission Review has yet to be formally established, and federal law requires the government to file a notice of a pre-trial appeal within five days after the order being challenged. The appellate route to the D.C. Circuit is also not free from doubt. The Military Commissions Act gives the D.C. Circuit the authority to review final decisions of the military appellate court, and some pre-trial decisions by that court. Unless the military review court exists, the D.C. Circuit might not be open to an appeal.
The Brownback order essentially contains two parts. In the first, he found no basis for reconsidering the June 4 dismissal, since nothing new was presented to him, as he saw it. But the bulk of the order is a point-by-point rejection of the prosecutors' arguments challenging the merits of the June 4 decision.
The core of his two rulings is that the MCA allows commissions to try war crimes charges only when they are made against an "unlawful enemy combatant," as determined by a military Combatant Status Review Tribunal. Brownback found that Omar Khadr had been found by a CSRT to be only an "enemy combatant," without the designation of "unlawful." He reiterated that conclusion in fuller form Friday.
(A post discussing the prosecutors' plea for reconsideration can be found here.)
Round-Up: Grants, Decisions & End-of-Term Analysis
04:16 PM | Gretchen Sund | Comments (1)
Co-authored by Adam Chandler.
CNN has this story on the High Court's decision to hear Guantanamo detainee cases, Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196); William Glaberson of the New York Times reports here on the Court's decision to reconsider the appeals from two detainees; Bloomberg's Greg Stohr and Laurie Asseo have this article; Pete Yost of the Associated Press reports here; NPR has this coverage of the Court's reversal; and Orin Kerr weighs in here at Volokh Conspiracy.
NPR's Nina Totenberg weighs in here on the school decisions; Linda Greenhouse reports here in today's New York Times; Jess Bravin and Daniel Golden of the Wall Street Journal have this frontpage article; and this editorial runs in today's Boston Globe. The Carnegie Legal Reporting's Lawbeat blog reports here on news coverage of the school assignment cases.
The Associated Press has this interactive wrap-up of the October 2006 Term featuring a voting lineup display (incorporating like legal reasoning in addition to general agreement or disagreement on the result) among other graphical analyses. The ACSBlog has this recap of its annual review of the Supreme Court Term, which was held yesterday; video of the entire panel discussion is available here.
This piece by Greenhouse on the front page of yesterday's New York Times discusses the jurisprudential battle between Justice Scalia and Chief Justice Roberts. At Slate, Emily Blazelon has this story on the "extremely conservative chief justice." Cass R. Sunstein had this op-ed in yesterday's Washington Post discussing "a powerful alliance between two different kinds of conservatives: the visionaries and the minimalists." At Bloomberg, Greg Stohr reports here that Chief Justice Roberts "spearheaded a shift in American law that cut back precedents from a more liberal era" and James Vicini of Reuters has this analysis on the Court's new direction. Peter Lattman comments on the Chief Justice's conservatism here at the WSJ.com Law Blog.
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A Few Additional Comments on the School Cases
03:41 PM | Gretchen Sund | Comments (28)
The following post is from Michael E. Rosman, General Counsel, Center for Individual Rights. CIR submitted an amicus brief in the Seattle schools case.
I'd like to briefly comment on the dissents and some of the points made by others on this site concerning the school decisions.
1. Ben Winograd has questioned Justice Stevens's provocative peroration, to the effect that all of the Justices who were on the Court in 1975 would have disagreed with the decision, and specifically states that "one could reasonably debate" what then-Justice Rehnquist would have done. Some of the comments disagreed.
At the outset, of course, precisely what Justice Stevens is saying is unclear. Is he suggesting that the vote would have been 9-0 if the case had been decided in 1975? Or that, those same Justices, were they all alive today some 32 years later, would still disagree with the majority? People and times do change, so I'm not sure those are the same questions.
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Questions Presented in the Detainee Cases
01:21 PM | Ben Winograd | Comments (2)
Below are the questions presented from the original petitions for certiorari in Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196). Click here for more materials from the two detainee cases, which the Court this morning said it will consider next term, and here for Lyle's analysis.
Boumediene
1. Whether the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600, validly stripped federal court jurisdiction over habeas corpus petitions filed by foreign citizens imprisoned indefinitely at the United States Naval Station at Guantanamo Bay.
2. Whether Petitioners habeas corpus petitions, which establish that the United States government has imprisoned Petitioners for over five years, demonstrate unlawful confinement requiring the grant of habeas relief or, at least, a hearing on the merits.
Al Odah
1. Did the D.C. Circuit err in relying again on Johnson v. Eisentrager, 339 U.S. 763 (1950), to dismiss these petitions and to hold that petitioners have no common law right to habeas protected by the Suspension Clause and no constitutional rights whatsoever, despite this Court’s ruling in Rasul v. Bush, 542 U.S. 466 (2004), that these petitioners are in a fundamentally different position from those in Eisentrager, that their access to the writ is consistent with the historical reach of the writ at common law, and that they are confined within the territorial jurisdiction of the United States?
2. Given that the Court in Rasul concluded that the writ at common law would have extended to persons detained at Guantanamo, did the D.C. Circuit err in holding that petitioners’ right to the writ was not protected by the Suspension Clause because they supposedly would not have been entitled to the writ at common law?
3. Are petitioners, who have been detained without charge or trial for more than five years in the exclusive custody of the United States at Guantanamo, a territory under the plenary and exclusive jurisdiction of the United States, entitled to the protection of the Fifth Amendment right not to be deprived of liberty without due process of law and of the Geneva Conventions?4. Should section 7(b) of the Military Commissions Act of 2006, which does not explicitly mention habeas corpus, be construed to eliminate the courts’ jurisdiction over petitioners’ pending habeas cases, thereby creating serious constitutional issues?
Materials in the Detainee Cases
12:05 PM | Jason Harrow | Comments (0)
Today's order granting rehearing in the consolidated cases is here.
On February 20, the D.C. Circuit Court issued a 2-1 ruling against the detainees, available here.
The original petition for certiorari in Boumediene, filed March 5, is here, and Al Odah is here. Both were denied on April 2, with Justice Breyer authoring a dissent from denial here, and Justice Stevens and Kennedy writing here respecting the denial of cert.
The Boumediene petition for rehearing, filed April 27 and granted today, is here, and Al Odah is here. The Solicitor General's reply, filed June 19, is here.
Lawyers for the detainees responded on June 21 and 22. The Boumediene reply is here, and the Al Odah reply is here. The Al Odah reply includes a signed declaration by Stephen Abraham, an Army Reserve lieutenant colonel, criticizing the Combatant Status Review Tribunal process set up to determine the "enemy combatant" status of Guantanamo detainees. The filings are discussed in more depth here.
On Tuesday, attorneys for other Guantanamo detainees filed a "notice of recent activity in Guantanamo cases" in U.S. District Court in Washington, D.C., available here, in an attempt to forestall the Justice Department's motion to dismiss all pending habeas petitions.
Court switches, will hear detainee cases
12:03 PM | Lyle Denniston | Comments (5)
UPDATE to 12:50 p.m.
In a startling turn of events in the legal combat over the war on terrorism, the Supreme Court on Friday agreed to reconsider the appeals in the Guantanamo Bay detainee cases. It vacated its April 2 order denying review of the two packets of cases. The Court then granted review, consolidated the cases, and said they would be heard in a one-hour argument in the new Term starting Oct. 1. Such a switch by the Court -- from denial to rehearing and new argument and decision -- may not have occurred since 1947, in Hickman v. Taylor, 329 U.S. 495, legal sources said Friday.
The order also said that new briefs will be sought, after the D.C. Circuit rules in pending cases on how judicial review is to work for detainees under the Detainee Treatment Act of 2005. The cases to be reheard by the Supreme Court are Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196). In those cases, the D.C. Circuit ruled on Feb. 20 that the Military Commissions Act of 2006 had stripped detainees of their rights to bring habeas challenges to their confinement. That is the ruling that the Supreme Court left intact in April, but now will move forward to review.
Under the Court's Rules and precedents, it would have taken the votes of five Justices to grant rehearing, compared with the requirement of four votes to initially grant an appeal. When the Court denied review in April, only three Justices voted to hear the cases. But two of the other six, Justices John Paul Stevens and Anthony M. Kennedy, indicated they wanted the detainees to first attempt to get legal relief in the D.C. Circuit. Under the Detainee Treatment Act, the Circuit Court has the authority to provide limited review of military decisions to continue holding Guantanamo prisoners as "enemy combatants."
Friday's order was an indication that those two Justices had decided that the Court needed to change its approach, and so provided the votes needed to grant rehearing. (It is a fair assumption that Chief Justice John G. Roberts, Jr., was not in favor of rehearing; in an in-chambers order he issued on an earlier procedural matter in the detainees cases [applications 06A1001 and 06A1002] on April 26, Roberts opined that "possible court action" in the D.C. Circuit Court would not be enough to justify a grant of review in the face of the April 2 denial.)
Under the Court's rules, a rehearing is granted only if there has been a change in "intervening circumstances of a substantial or controlling effect" or if counsel can cite "substantial grounds not previously presented."
The new order did not state what changes had come about since the denial in April. The detainees' lawyers, in their rehearing petition, had said that the unfolding of the review process in the D.C. Circuit Court would soon provide them with an argument for rehearing, since the process would be shown to be inadequate. More recently, the detainees' lawyers had told the Court that information from inside the Pentagon detainee-review process confirmed their claim that the process was a "sham."
It is unclear at this point just when the Court's new review will unfold. The D.C. Circuit on May 15 heard oral argument on the procedures it will follow in review under DTA of "combatant status review tribunal" decisions to continue holding detainees at the U.S. military prison in Cuba.
The Circuit Court probably will feel some added pressure from Friday's Supreme Court order to move ahead and decide those cases -- Bismullah v. Gates (Circuit docket 06-1197) and Parhat v. Gates (06-1397).
The Circuit Court, however, was already moving with some dispatch to resolve those cases, because the first of the actual appeals in a DTA case is under a briefing schedule beginning on July 16, with an oral argument set for Sept. 27 That is the case of Paracha v. Bush (06-1038). (The Paracha case is also on its way to the Supreme Court, on the same questions about detainee legal rights as in Boumediene and Al Odah, with an appeal likely to be filed early in July.)
Once the D.C. Circuit has ruled, that decision, the Supreme Court said Friday, "would be of material assistance" to the Justices. With the Circuit Court ruling in hand, the Supreme Court will call for new briefs in the Boumediene and Al Odah cases. Conceivably, a briefing schedule could be completed this summer, and oral argument could be held early in the new Term, if the cases were to be expedited, as might be expected.
Although the Justices may not have been technically aware of other developments, activities in other detainee cases may well be affected by the grant of review in Boumediene and Al Odah. The Fourth Circuit Court is considering a government request to rehear en banc a panel decision there barring the military from detaining any civilian captured inside the U.S. as a terrorism suspect (Al-Marri v. Wright, Circuit docket 06-7427), and the D.C. Circuit is considering a request for initial en banc review of a case involving a Guantanamo detainee who is facing a war crimes trial before a military commission (Hamdan v. Gates, Circuit docket 07-5042). In addition, several District Court judges in Washington, D.C., are considering whether to dismiss other detainee habeas cases on the basis of the D.C. Circuit ruling that is at issue in Boumediene and Al Odah.
Commentary: A Changed Court?
11:32 AM | Gretchen Sund | Comments (1)
The following commentary is from Andrew Pincus, a partner in Mayer, Brown, Rowe & Maw LLP, who filed an amicus brief for the Leadership Conference on Civil Rights and the Leadership Conference on Civil Rights Education Fund. The views expressed are his own.
Yesterday’s decision in the schools cases, and a number of the other decisions this Term are disappointments on many levels.
The last paragraph of Justice Stevens’ dissent struck a chord with me. Referring to the summary affirmance of a Massachusetts state court decision upholding a law requiring plans like those struck down yesterday, Justice Stevens wrote:
“The Court has changed significantly since it decided School Comm. of Boston in 1968. It was then more faithful to Brown and more respectful of our precedent than it is today. It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.”
Today’s Court is very different in significant ways. That difference, I think, is one of the keys to several of this Term’s decisions, including the decision in Louisville and Seattle.
Continue reading "Commentary: A Changed Court?" »
The Final Orders
10:04 AM | Jason Harrow | Comments (1)
The final Order List is here.
Today at the Supreme Court 6/29/07
08:45 AM | Lyle Denniston | Comments (0)
The Supreme Court will not hold a public session today, but at 10 a.m., it will release the final Orders List of the Term. After that, the Court will be in recess until the new Term opens on Monday, Oct. 1. We will post the orders promptly after their release today.
Thursday, June 28, 2007
U.S. opposes en banc review of Hamdan
10:45 PM | Lyle Denniston | Comments (0)
The Justice Department on Thursday urged the D.C. Circuit to resist a plea that it sit en banc and overturn its recent ruling putting an end to Guantanamo Bay detainees' habeas challenges to their confinement. Responding to that Court's request for its views on a proposal for initial en banc review of Hamdan v. Gates (07-5042), the Department said the Feb. 20 decision was right, has been twice left intact by the Supreme Court, and should not be revisited after only five months. The response can be found at this link.
Earlier, the government had urged the Circuit Court to go ahead and dismiss the appeal of Salim Ahmed Hamdan, who is seeking to challenge his detention and the war crimes charges he expects to face before a "military commission" at Guantanamo. This was based on the Circuit Court's February ruling in two packets of detainee cases (the lead case was Boumediene v. Bush) -- a ruling that the Supreme Court declined to review (once in those packets of cases, and once in an earlier petition by Hamdan).
Because Hamdan regards the Circuit Court ruling as so broad that his pending appeal there would be futile before a three-judge panel, he asked the Circuit Court to take his case initially en banc. That is the plea the government opposed on Thursday.
It is clear, the Department contended, that the Military Commissions Act of 2006 wipes out Hamdan's habeas case. If he has any complaint about his detention as an "enemy combatant," it added, he can raise that in a separate new proceeding in the D.C. Circuit under the Detainee Treatment Act of 2005.
Its opposition recites many of the same arguments that the Department had put before the Circuit Court in the Boumediene cases.
Meanwhile, the Supreme Court may announce on Friday its reaction to a plea by the Boumediene and Al Odah v. U.S. detainees to reconsider its April 2 denial of review of the Circuit Court ruling scuttling their challenges under the MCA. Two rehearing petitions (in 06-1195 and 06-1196) were considered at the Court's final Conference of the Term earllier Thursday, according to the Court docket. Chief Justice John G. Roberts, Jr., said on Thursday morning that orders resulting from that Conference would be made public at 10 a.m. Friday.
An Index to Today's Posts
10:00 PM | Gretchen Sund | Comments (0)
Concluding the Term, the Supreme Court decided three cases today: the opinion in the school cases is here; the Panetti opinion is here; and the Leegin Creative opinion is here. During this morning's session, Jason provided live updates from the Court in this post. Lyle has this initial post on the Court's school assignment decision and this post on the antitrust and capital rulings. He also reports on the Chief's closing remarks here. A visual of the voting breakdown in the school decision is available here and Ben Winograd has this post on the widely noted conclusion to Justice Stevens' dissent.
Lyle posted this primer on the school cases. Tom analyzes Justice Kennedy's concurrence here. Michael Rosman has these comments on the majority opinion and Kennedy's concurrence and Hans Bader weighs in on the decision here. Lyle adds this commentary on the decision and Kennedy's influential vote and Bob Driscoll weighs in here on the decision's import.
Amy has this post on the decision in the Panetti v. Quarterman capital case.
A Super StatPack providing end-of-Term statistics and analysis is now available here - thanks to Jason, Ben & Adam. Jason also has data on the remarkable Term that Justice Kennedy put together here. And I collect news and blog coverage of today's opinions in this post, which will be updated throughout the afternoon.
Lastly, Tom has this post on SCOTUSblog's momentous 100,000 hit day.
100,000
07:04 PM | Tom Goldstein | Comments (2)
I wanted to put up a quick post to note that, according to Statcounter, in just a little bit we will for the first time surpass 100,000 hits in a day, and we're on track to have our first week of 250,000. (That number excludes opinion downloads, which we moved to another server for the day to speed up the blog's responsiveness.) We're exceptionally grateful for the very generous links we've gotten from too many great sites to mention, but which include (to name just a few) How Appealing, Volokh, Daily Kos, and Slate.
Also critical has been the work of the SCOTUSblog team at getting great content up quickly. From 10 to 10:45 this morning as the cases were decided, we had a six-person editorial conference call to coordinate our coverage -- definitely a first for us. Like so many blogs, we try very hard to provide timely and thoughtful information in our little corner of the world.
We now have the equivalent of almost four full-time employees. Lyle is of course our unparalleled reporter; the best in the business. Amy manages the site and writes as well. Jason does thousands of things. He is now joined by Ben Winograd. Gretchen, at Amy's firm, does round-ups and organizes the discussion boards. We have Adam Chandler as a terrific summer intern. David Stras has covered numerous issues, and added a terrific academic viewpoint. And outside contributors have given us lots of great posts in their areas of specialty from diverse perspectives, including the great pieces coming in now on the race cases.
Amy and I remember how excited we were to get 100 hits in a day (all of them thanks to Howard Bashman) when we started SCOTUSblog five years (and several versions of the blog) ago. We're gearing up for another substantial upgrade to the blog and its technology over the summer, and hope that we'll see you again. We're very grateful.
Commentary: Practical Impact
06:21 PM | guest | Comments (0)
The following entry is from Bob Driscoll, who represented Amicii Curiae David Armour, Abigail Thernstrom, and Stephan Thernstrom and served as a Deputy Assistant Attorney General in the Civil Rights Division of the United States Department of Justice from 2001-2003.
I find several things interesting about today's opinions:
First, on a practical level, I do not think that the decisions provide much comfort for school districts that desire to engage in racial balancing of the type sought by Lousiville and Seattle. I am aware that much will be read into the Kennedy concurrence, but in my experience, the type of plans Lousiville and Seattle employed are near-exact replicas of remedial plans imposed by courts as a remedy for de jure segregation -- and therefore are almost exclusively concerned with racial balance outcomes and will be hard to justify under any Grutter-type analysis. Moreover, the suggestion by Justice Kennedy that race may be used as "one factor" of many is difficult to comprehend in the K-12 public school context where assignment is not competitively-based. It will be interesting to see what districts and courts do in response to the Kennedy concurrence, but I do not think that this situation is analgous to Gratz and Grutter, after which admissions officers merely began to chant "one factor" while continuing to make essentially race-based decisions in the same manner that they had been. School districts will have a very hard time evading this decision if they disagree with it. While those who are skeptical of governmental race-based decision-making may not view the result in these cases as philosophically pure due to the Kennedy concurrance, it is nevertheless a practical victory in my view. I do not see many plans with maximum or minimum racial percentages surviving a well-crafted challenge in light of these opinions.
Second, although the Breyer dissent mouths the words "strict scrutiny," it is clear that the dissenting Justices would apply some lesser level of scrutiny to "inclusive" governmental decision-making based on race if given the opportunity. Indeed, in discussing the social science research on the purported educational benefits of diversity, the Breyer dissent acknowledges a split in academic authority on the topic, yet then goes on to defer to school boards' choice of what research to give credit to -- I'm not sure what that means, but its doesn't seem like strict scrutiny to me if a "compelling" justification can be articulated by choosing favorable social science research from a body of inconsistent studies (one can imagine the fun that could be had in selecting social science studies in the criminal justice field to justify race-based decsion making by the government). What is unclear is where Kennedy stands on how one defines a "compelling" interest. While he clearly finds "diversity" a compelling interest, he provides little insight as to whether he agrees with the rationale of the dissent with respect to deference to school boards or simply assumes that "diversity" in education is a compelling interest post-Grutter without reaching the question of what type of evidence must be presented to establish a "compelling" interest.
Finally, on a much broader level, I think the significance of these opinions may be that they will be viewed as the Court's (or 5 Justice's) signal that it rejects the notion Grutter opened the floodgates for a "diversity" rationale for race-based decision-making in any context. Given that 5 Justices took pains to distinguish Grutter, a higher ed admissions case, from the K -12 context, it seems to me that arguing that "diversity" outside of the educational context (employment, for example) can be a compelling justification for race-based decision-making just got a lot harder.
The Justices in 1975
06:10 PM | Ben Winograd | Comments (11)
As has been widely noted already, Justice John Paul Stevens ended his dissent in today’s school assignment cases by writing:
“It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.”
Upon Justice Stevens’ appointment by President Gerald Ford, the Supreme Court in 1975 consisted of the following Justices (accompanied by the Presidents who appointed them and the years each served on the bench):
- (Chief) Warren Burger (Nixon, 1969-1986)
- William J. Brennan (Eisenhower, 1956-1990)
- Potter Stewart (Eisenhower, 1958-1981)
- Byron White (Kennedy, 1962-1993)
- Thurgood Marshall (Johnson, 1967-1991)
- Harry Blackmun (Nixon, 1970-1994)
- Lewis F. Powell (Nixon, 1971-1987)
- William H. Rehnquist (Nixon, 1971-2005)We’ll never know if Justice Stevens' assessment would have been true. But it is fair to say that one could reasonably debate whether then Justice Rehnquist would have opposed today’s opinion, given his votes against racial classifications in other Equal Protection cases – i.e. Bakke (1978), Adarand (1985), Metro Broadcasting (1990) and, most recently, Grutter (2003) and Gratz (2003).
Justice Kennedy's Remarkable OT06
05:20 PM | Jason Harrow | Comments (5)
This post was written by Jason Harrow, with research assistance from Adam Chandler.
Justice Kennedy’s just-completed October Term 2006 will certainly go down as one of the most “successful” in the Court's modern history. Indeed, the statistics are remarkable: Justice Kennedy was in the minority only twice this entire Term, he wrote only one dissenting opinion, and was a perfect 24-for-24 in 5-4 (or 5-3) cases. If the numbers alone weren’t enough evidence of his tremendous influence, he certainly ended the Term with a flourish: he authored two of the Court’s three 5-4 cases that were announced today – siding with the liberals in one and the conservatives in the other – and also wrote the controlling concurrence in the school assignment cases, which he proceeded to read aloud from the bench. It was a remarkable way to end a remarkable Term.
Digging deep back into the archives, it’s difficult to find a Term where the decision of a single justice so often determined the direction of the Court. In the last 20 years, under Chief Justices Rehnquist and Roberts, such an achievement in unparalleled. The closest analogy is Justice Kennedy’s own 1993 Term: in that year, he dissented four times, wrote one dissenting opinion, and was in the majority in 12 of 13 5-4 decisions. Not bad, but it doesn’t measure up to what he accomplished this Term.
Even Justice O’Connor, whom some used to refer to as the “most powerful woman in the world” due to her position in the center of the Court for many years, never had a Term like this. Her most successful Term was OT03, when she was in the minority five times and wrote two dissents; still, in that Term, 4 of her 5 dissenting votes were cast in 5-4 cases (there were 19 5-4’s in OT03). While it’s true that she often wrote “controlling concurrences” whose outsized influence wouldn't necessarily be reflected in the numbers but which did put a stamp on the Court’s jurisprudence, it’s difficult to make the case that she ever exerted as much influence as Justice Kennedy seems to be right now.
One must look way back in the Court's history to find any single Term where one Justice had comparable success. Justice Kennedy's two dissenting votes tied Justice Brennan’s output in October Term 1968; with a larger caseload back then, though, Justice Brennan’s feat that Term is arguably more impressive. Still, one must go further back to Justice Byron White’s October Term 1964 to find a circumstance where a Justice bested Kennedy and dissented only once over the course of a full Term, with no extenuating circumstances such as justice turnover (which can lead to misleading numbers).
The bottom line is that, by most measures, Justice Kennedy’s October Term 2006 has been the most successful Term by a single justice in roughly 40 years.
Commentary: A Narrow Decision
05:14 PM | Gretchen Sund | Comments (0)
The following commentary is from Alan Foutz, Pacific Legal Foundation. PLF is amicus and part of petitioners’ legal teams for both cases; PLF attorneys participated in every phase of the Seattle case including the oral argument when the Seattle case was before the Washington Supreme Court.
After a preliminary review of this decision I’d like to first highlight the lone point upon which five justices agree.
Because the assignment plans in Seattle and Jefferson Co. did not take race into account as one of several factors designed to attain a broad exposure to diverse people, cultures, ideas and viewpoints, the rationale that was upheld in Grutter does not apply here. A finer point must be put on this, however. The Court said that the plans at issue used only binary classifications; e.g., black/other and white/non-white. By so doing, there is no way the districts could attain the “diversity” that they claim they are pursuing. So, Grutter does not apply because of the crudeness of the districts’ classifications (a failure of strict scrutiny’s “narrowly tailored” prong), not because the educational benefits of diversity apply to grade schools’ in equal measure as the benefits that diversity bestows upon a diverse law school student body (the “compelling state interest” prong of strict scrutiny). Thus, five justices agree that the use of race as a dispositive and mechanically applied factor in public education is unconstitutional. This is so even if race is not the first or second factor being used to make a particular decision. As long as race ends up being the final “tiebreaker” it will be held an unconstitutional use of race.
I am coming to agree with Mike Rosman’s analysis that there is not that much difference between the plurality opinion and Justice Kennedy’s concurrence - in that the plurality can reasonably be read to focus on the narrowly tailored aspect of strict scrutiny. When C.J. states that the parties “dispute whether racial diversity in schools in fact has a marked impact on test scores and other objective yardsticks or achieves intangible socialization benefits” it seems to me that C.J. is saying there is a debate over whether there is a compelling state interest in attaining a diverse student body. Of course, this is the question that would most significantly impact future desegregation plans and Fourteenth Amendment jurisprudence the most. So, it may end up being difficult to lay the entire blame for a uselessly narrow decision completely at the feet of Justice Kennedy. Justice Roberts may simply be making good on his confirmation hearing promises to issue narrow decisions.Continue reading "Commentary: A Narrow Decision" »
Commentary: The Practical Effect of the Schools Decision
03:46 PM | Tom Goldstein | Comments (0)
Following up on my earlier post focusing on the legal rule that emerges from the school race cases – and Justice Kennedy’s concurrence in particular – I think it is possible to make some preliminary judgment about the decision’s effects.
I start from the premise that Justice Kennedy’s concurrence states the controlling law on the points on which there is daylight between himself and the majority. His opinion is necessary to get to five votes on those issues, and his vote would be required in any case raising follow-up questions. So, as a formal matter, the Fourteenth Amendment does not forbid the consideration of race in the design of school systems. Schemes that do not classify on the basis of race (such as school placement based on neighborhood dynamics) are per se permissible, and there is substantial room to argue in favor of assignment programs that make race one factor among many others in a holistic assessment of the students.
So, progressives may be relatively sanguine about the decision. (And conservatives may be disappointed.) For liberals, it could have been – indeed, after argument, it was widely expected to be – much worse. Justice Kennedy has long expressed great distrust of the government’s use of race in its decision-making. There seemed every prospect that he would join in an opinion substantially limiting affirmative action and cabining the Grutter decision approving a limited form of affirmative action in admissions. Instead, five Justices today reaffirm the four corners of Grutter.
But what about the effect of today’s decision as a practical matter? Here, I think that the divergence between Chief Justice Roberts’ plurality opinion and the Kennedy concurrence substantially evaporates. Today’s decision allows school districts to further integration by placing schools and drawing attendance lines that bring together neighborhoods that are otherwise segregated based on racial housing patterns. But the effect of those measures will necessarily be limited: new construction is rare in proportion to the number of existing schools, which are often located squarely in the heart of existing non-diverse neighborhoods.
Justice Kennedy’s proposed alternative that schools consider race as one among many factors in admissions (a la Grutter) strikes me as impractical. K-12 school assignment is not comparable to the admissions process for college and graduate programs. For resource reasons at the very least, school districts must paint with a much broader brush. I am not aware of a non-magnet program in which school districts regularly consider individual criteria in assigning the thousands of students within their jurisdiction. (For younger students, there is also less to consider; your average third grader has a short CV.)
Continue reading "Commentary: The Practical Effect of the Schools Decision" »
Commentary: The impact of fervent dissent
02:27 PM | Lyle Denniston | Comments (0)
Commentary
If Justice Anthony M. Kennedy is to hold the one vote that counts as the Supreme Court continues the decades -- perhaps centuries -- of struggle with the role of race in American law, and that seems beyond any shred of doubt after Thursday's ruling in the Seattle and Louisville cases, it is significant that the liberal-to-moderate wing of the Court will go on trying to coax or shame him into remaining more or less in the middle. The post on this blog by colleague Tom Goldstein analyzing Kennedy's concurrence Thursday makes clear why his declarations are controlling, and why race is still not a totally forbidden factor in public education policymaking.
What Kennedy's opinion does not openly admit, but what Kennedy's view of his role has long made clear, is that he is deeply sensitive to the way his work as a judge is and will be perceived in history. This is not true only in the work of the Court on race questions, but on other social or cultural issues as well.
While his own quite conservative instincts must make it enormously tempting, now that there are four rigorously conservative colleagues, to join them routinely, the pull of reputation and public image appears to have told him to hesitate. He is even less tempted, of course, to join routinely in the more robust liberalism of his other four colleagues. Both help explain why he is so determinedly the middle Justice -- a position that is especially vivid at the conclusion of the just-completed Term.
What was fully on display on Thursday, amid a great deal of courtroom drama and soaring rhetoric, was the contest that is going on within the Court to influence Kennedy and his vote. And, in that contest, it can be argued that the Court's liberal bloc -- although it seems increasingly isolated on some of the bigger decisions -- is having a substantial effect on reinforcing Kennedy's instinct to keep staking out the middle. The sharp critique of the dissents plays into another facet of Kennedy's self-perception.
He has a fundamental distaste for the heroic and simplistic constitutional dogma -- so popular with two and perhaps more of his conservative colleagues -- that leaves everyone to fend for themselves in decidedly uneven political or legal combat. He regularly seeks to put on display a large -- perhaps even a grand -- perception of the law that leads some unsympathetic observers to regard him as a puffed-up thespian using the Court and other public forums as a personal stage. And one of his grandest perceptions is that, if possible, the law should be made inclusive and should remain sensitive in human terms. (There is no doubt that Kennedy would regard even his much-criticized romanticizing of the relationship of mother and unborn child in the abortion ruling this Term as exhibiting just that kind of sensitivity, just as he probably also saw his often-maligned opinions in the past on gay sexual relations and on prayers at school graduations.)
The school cases are a clear example. His vote was necessary to control the outcome, and it very likely is true that the fervor of the dissent helped keep him away from a full embrace of the principal opinion by the Chief Justice. Indeed, while the dissents are blistering in their denunciation of the Roberts opinion, Kennedy's criticism of it was likely to have a sharper sting. It provided a separation from Roberts' more sweeping declarations against racial diversity as a valid public school goal, and left those declarations without the profound importance they would have had if they had in fact represented the views of a Court.
"The plurality opinion," Kennedy said of some of the Roberts approach, "is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto segregation in schooling. I cannot endorse that conclusion. To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken."
The plurality, he says at another point, "does not acknowledge that the school districts have identified a compelling interest here." That, he said, was why he would not sign on to the part of the principal opinion that ruled out the pursuit of racial diversity as an educational policy goal. "Diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue," he went on. He even persuaded a laundry list of "race-conscious" policies that school districts could validly adopt in that pursuit.
And Kennedy shunned entirely the sentiment of conservative colleagues that the Court should insist and that the Constitution commands that public officials must be "color-blind." He said: "In the real world, it is regrettable to say, it cannot be a universal constitutional principle."
To emphasize his departure from the Roberts plurality on key points, Kennedy took the highly unusual step of discussing his concurrence in remarks on the bench. While it has become more common for dissenting Justices to recite from their opinions, it hardly ever happens that a concurring Justice does so.
Would Kennedy have worked so energetically to carve out a separate position had the colleagues in dissent moderated their critique? Perhaps he would have. But it is at least equally plausible that he did not wish to be lumped together with the plurality as a target of the dissents' most aggressive thrusts of rhetoric. The dissent, it should be noted, is only mildly critical of Kennedy's specific suggestions of alternative race-related policies that might be used, and that made even more vivid the far stronger language leveled at the Roberts coalition. That the dissent was not lightly to be dismissed is also evident in the efforts that the Chief Justice made to answer it, and, even more, the 36-page opinion Justice Clarence Thomas wrote with the sole aim of fending off the dissenters' arguments.
Commentary: A Fighting Chance for the Use of Race-Based Assignments
02:00 PM | Gretchen Sund | Comments (0)
The following post is from Michael E. Rosman, General Counsel, Center for Individual Rights. CIR submitted an amicus brief in the Seattle schools case.
My initial comments relate to Chief Justice Roberts's and Justice Kennedy's opinion because (1) together they constitute the holding of the Court and (2) well, frankly, that is all I have been able to read so far.Tom Goldstein's comment is certainly correct. Justice Kennedy's opinion is the controlling opinion for the Court to the extent he does not join the majority. But I think there is far less disagreement between these two opinions then a reading of Justice Kennedy's opinion would suggest. A review of them also demonstrates that these cases simply had bad facts for the school districts. It is a testament to the skill of the lawyers defending those programs that they were able to win in the lower courts and obtain four votes in the Supreme Court.
Continue reading "Commentary: A Fighting Chance for the Use of Race-Based Assignments" »
Commentary: Limiting the Use of Race
01:54 PM | Gretchen Sund | Comments (0)
The following comments are from Hans Bader, Counsel for Special Projects, The Competitive Enterprise Institute. He filed an amicus brief for Competitive Enterprise Institute in support of the parents in the Seattle case.
In its decision striking down the race-based student assignment policies used in the Seattle and Louisville schools, which sought to promote “racial balance,” the Supreme Court dealt with school districts that are not currently segregated (indeed, Seattle has never been segregated).
The Supreme Court’s decision was consistent with the 1964 Civil Rights Act, which declares that “'desegregation' shall not mean the assignment of students to public schools in order to overcome racial imbalance."
While the court’s decision will further limit the use of race to remedy certain forms of “discrimination,” such as unintentional or “disparate impact” discrimination, as I explain below, it leaves unclear exactly when, or how much, race can be used in the school setting for the sake of non-remedial interests like “diversity.”
Interestingly, the justices highlighted the bizarre claims about race made by the Seattle schools, which cast doubt on whether allowing schools to use race will promote racial harmony rather than racial balkanization.
Continue reading "Commentary: Limiting the Use of Race" »
OT06: The Statistics, and a Super StatPack
01:54 PM | Jason Harrow | Comments (0)
We've finalized our annual statistics for the Term, including justice agreements, opinion tallies, our summary memo, and everything else previously included in the StatPack for the last few weeks. Ben Winograd and Adam Chandler, both of Akin Gump, contributed invaluable research assistance to this entire project.
All 10 components are available for download in one "Super StatPack" by clicking here.
You can also download each piece of it separately:
1. End of Term Summary Memo, principally by Ben Winograd
2. Justice Agreement – All cases
3. Justice Agreement – Non-unanimous cases
4. Visual Representation of 5-4 decisions, principally by Ben Winograd
5. Opinion Tally, principally by Adam Chandler
6. Circuit Scorecard
7. Decisions by Final Vote
8. The Court’s Workload
9. Opinion Authors by Sitting
10. State of the Docket for OT07
Round-Up: Today's Opinions
01:40 PM | Gretchen Sund | Comments (1)
UPDATED 6:00pm
Parents Involved v. Seattle School District (05-908) & Meredith v. Jefferson County Board of Education (05-915)
At Slate, Dahlia Lithwick has these initial reactions to today's opinion in her ongoing conversation with Walter Dellinger and Stuart Taylor weighs in here; Tony Mauro of the Legal Times reports here on the school ruling on a "historic final day of the Supreme Court term"; and Washington Post Staff Writer Robert Barnes reports here that a "splintered Supreme Court today threw out school desegregation plans from Seattle and Louisville, but without a majority holding that race can never be considered."Mark H. Anderson has this article (subscription req'd) in the Wall Street Journal on the Court's decision striking down voluntary integration policies in two school districts and Jess Bravin answers questions on the school assignment decision here at the WSJ.com Washington Wire blog; David G. Savage and Joel Havemann have this article in the LA Times on the ruling declaring "unconstitutional the use of racial guidelines to integrate public schools"; CNN's Bill Mears reports here on the "bitterly divided" Court's opinion; Mark Sherman of the Associated Press has this story on the ruling that "left the door open for using race in limited circumstances"; and Peter Schmidt reports here for the Chronicle of Higher Education.
James Vicini reports here for Reuters on the "significant civil rights decision that may affect millions of students nationwide"; Bloomberg's Greg Stohr has this story on the Court's ruling that "public school districts can't try to foster integration by considering race in making pupil assignments"; David Stout reports here for the New York Times; Jessica Blanchard, Christine Frey and Charles Pope have this story in the Seattle Post Intelligencer; USA Today's Joan Biskupic reports here on the "sweeping decision likely to affect school integration efforts nationwide"; and Mark Walsh has this article (registration req'd) at Education Week on the decision, which "stopped short of prohibiting all consideration of race in K-12 education."
The NAACP Legal Defense Fund's SCIntegration Blog has various posts discussing the decision and collecting news coverage and comment, including these thoughts from Professor Samuel Bagnestos; this reaction from Professor Jim Ryan; these comments from Louisville parent Fran Ellers and this post from Nicole Dixon on the immediate aftermath, among others. At Balkinization, Jack Balkin has this reaction to the PICS decision and Kennedy's concurrence; Mark Graber weighs in here on the ruling and the "good" civil rights movement. Andrew Cohen has this post discussing Kennedy's concurrence at the WashingtonPost.com's Bench Conference blog.
Leegin Creative Leather Products v . PSKS (06-480)
Mauro has this article in the Legal Times reporting that "Dr. Miles is dead"; at Bloomberg, Stohr reports here on the High Court's decision "overturning a 96-year-old antitrust precedent"; the Associated Press has this article on the 5-4 decision; and the Wall Street Journal's Anderson reports here on the ruling, which "made it easier for manufacturers to demand that retailers sell goods at minimum prices." Stuart Benjamin weighs in here at Volokh Conspiracy on the antitrust case; at the University of Chicago Law Blog, Randy Picker has this reaction; Peter Lattman of the WSJ.com Law Blog has this post on the opinion; and ACS Blog has this post on the decision that overturns a longstanding precedent.Panetti v. Quarterman (06-6407)
In the Washington Post, Charles Lane reports here on the "ruling that makes it easier for mentally ill condemned prisoners to contest their death sentences"; LA Times Staff Writer Henry Weinstein has this article on the 5-4 ruling blocking the execution of a mentally ill Texas murderer; the AP's Pete Yost has this story; Todd J. Gillman reports here for the Dallas Morning News; in the Houston Chronicle, Patty Reinert has this story on today's decision which overturned a lower court ruling; and Max Baker reports here for the Forth Worth Star-Telegram. Orin Kerr has this initial post and these thoughts on the Court's new habeas exception at Volokh Conspiracy; Kent Scheidegger of Crime & Consequences weighs in here.
Today's Opinion in Panetti v. Quarterman
01:34 PM | Amy Howe | Comments (0)
By a vote of five to four, the Court today reversed the Fifth Circuit’s holding that a death-row inmate is competent to be executed notwithstanding his belief that the state of Texas wants to execute him to “stop him from preaching.” In an opinion by Justice Kennedy (joined by Justices Stevens, Souter, Ginsburg, and Breyer) that once again served as a rebuke of the Fifth Circuit, the Court remanded the case for the district court to address petitioner Scott Panetti’s Eighth Amendment claim in light of its opinion. Significantly, the Court declined to establish a rule that would govern all Eighth Amendment competency proceedings, creating a not-insignificant possibility (if the Fifth Circuit past is prologue) that the case could return to the Court in some later iteration. And although it isn’t clear what the long-term precedential effects of the Court’s ruling will be in the competency context, the Court also articulated (albeit almost in passing) a fairly expansive conception of when federal courts may find a state court’s application of a general legal principle “unreasonable” for AEDPA purposes.
Continue reading "Today's Opinion in Panetti v. Quarterman" »
Analysis: Justice Kennedy and a Warning Against Overreading the School Cases
12:32 PM | Tom Goldstein | Comments (16)
One reading of today’s decision in the race cases is that the Supreme Court has outlawed programs that seek to increase racial diversity in the schools. Justice Kennedy’s concurrence does not adopt that view, however. And because his is the fifth vote, it is controlling. The better view, I think, is that the Court today has come close to extending the Grutter model to the lower school context, holding that school districts may account for race as one factor among many in student placement.
Here is what is clear from Justice Kennedy’s opinion. First, there is a compelling governmental interest in school diversity that can justify certain uses of race. Op. at 2 (rejecting the plurality’s failure to “acknowledge that the school districts have identified a compelling interest here”); id. at 17 (“A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue.”).
Second, and relatedly, the Constitution does not require color-blindness. Op. at 7 (refusing to join the “parts of the opinion by The Chief Justice [that] imply an all-too-unyielding insistence that race cannot be a factor”); id. at 8 (acknowledging Justice Harlan’s dissenting view in Plessy that “[o]ur Constitution is color-blind,” but concluding that “it is regrettable to say, it cannot be a universal constitutional principle”).
Third, direct racial classifications like those in the Seattle and Louisville programs are subject to strict scrutiny and may be employed only after other alternatives are first explored and have failed. Op. at 9 (“[I]ndividual racial classifications employed in this manner may be considered only if they are a last resort to achieve a compelling interest.”); id. at 10 (these programs are unconstitutional because “the schools could have achieved their stated ends through different means”); id. at 16 (in the case of “de facto discrimination,” “[t]he State must seek alternatives to the classification and differential treatment of individuals by race, at least absent some extraordinary showing not present here”); id. at 18 (“[M]easures other than differential treatment based on racial typing of individuals first must be exhausted.”).
Fourth, and on the other hand, certain uses of race are sufficiently innocuous that they do not trigger strict scrutiny review and are per se constitutional. Schools may take account of race in such decisions as “site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race.” Op. at 8. These are “race-conscious measures [that] address the problem in a general way and without treating each student in [a] different fashion solely on the basis of a systematic, individual typing by race” (id.), as distinct from “[a]ssigning to each student a personal designation according to a crude system of individual racial classifications” (id. at 9). These approaches can be employed “with candor and with confidence that a constitutional violation does not occur.” Id.
Here is what is not perfectly clear, and regrettably so. Justice Kennedy leaves open the substantial prospect that schools can use the Grutter model of employing race as one of many factors, even absent a showing that other efforts that do not involve the express use of race have failed. But he does not clearly decide the issue, which is the major open jurisprudential question.
Justice Kennedy thus states that schools may employ not only the “facially race-neutral means” discussed above but “if necessary, a more nuanced, individual evaluation of school needs and student characteristics that might include race as a component,” an “approach [that] would be informed by Grutter.” Op. at 10. Such a system would “consider[] race as only one factor among many,” whereas the Seattle program “relies upon a mechanical formula that has denied hundreds of students their preferred schools on the basis of three rigid criteria: placement of siblings; distance from schools; and race.” Id. at 12. “If those students were considered for a whole range of their talents and school needs with race as just one consideration, Grutter would have some application.” Id. at 12-13. Justice Kennedy continues: “Race may be one component of that diversity, but other demographic factors, plus special talents and needs, should also be considered. What the government is not permitted to do, absent a showing of necessity not made here, is to classify every student on the basis of race and to assign each of them to schools based on that classifications.” Id. at 18. See also id. (rejecting “[c]rude measures of that sort”).
The ambiguity exists in Justice Kennedy’s statements that such approaches may be employed “if necessary” and that Grutter would have “some application.” The better view, I think, is that Justice Kennedy would still require as a “first option” the various efforts at increasing diversity (such as school siting) that do not involve the express use of race as a factor in widespread school assignment. If those programs do not succeed or can be reliably shown to be unlikely to succeed standing alone, districts can consider race as one factor among many that look to students as individuals rather than just members of racial groups. Only if that effort fails may the government turn to programs like those in Seattle and Louisville.
Voting Chart: School Assignment Case
11:10 AM | Gretchen Sund | Comments (0)
The Court issued its combined opinion in No. 05-908, Parents Involved in Community Schools v. Seattle School District, and No. 05-915, Meredith v. Jefferson County Board of Education. Chief Justice Roberts authored the majority opinion and Justice Kennedy joined in judgment. The voting line-up is depicted below:
Court recesses until Oct. 1
11:07 AM | Lyle Denniston | Comments (0)
Here is the Chief Justice's concluding statement at about 11 a.m. Thursday as the Court brought to an end its 2006-2007 Term:
"I am authorized to announce that the Court has acted on all cases submitted for decision this Term. Dispositiion of items scheduled for Conference will be reflected on the Order List that will be released at 10 o'clock tomorrow morning. The Court will be in recess from today until the first Monday in October, 2007, at which time the October 2006 Term of the Court will be adjourned and the October 2007 Term of the Court will begin as provided by law.
"On behalf of the Court, I thank the members of the Court staff for their hard work, professionalism, and dedication to duty. No one better exemplifies those qualities than Harry Fenwick, the Court's Food Preparation Specialist, who will on June 30 retire after thirty-eight years of service at the Court. Thanks for everything, Harry.
"The outstanding work done by all members of the Court staff contributes significantly to the accomplishment of the Court's mission."
The Opinions: NOW Available
10:30 AM | Jason Harrow | Comments (0)
UPDATE 10:37: All opinions now available.
Here for the school assignment cases. It is 185 pages long.
Here for the Panetti case.
Here for Leegin Creative.
The School Plans at Issue
10:20 AM | Lyle Denniston | Comments (0)
The Supreme Court on Monday nullified both of the voluntary school integration plans at issue in two cases, decided jointly. Here are summaries of each plan:
Seattle, Wash.
Parents Involved v. Seattle School District (05-908)District: Seattle School District No. 1.
Racial history of schools: Public schools never officially segregated by race. First major city in U.S. to adopt (in 1977) voluntary plan to desegregate schools; racial isolation caused by neighborhood housing patterns. Today, majority of white students still live in neighborhoods north of downtown, majority of non-whites students live south of downtown.
Scope of plan at issue in this case: Applies only to city’s ten four-year high schools, serving 14,400 students. High schools are 60 percent non-white, 40 percent white.
Basic student assignment goal: “Open choice,” to allow each student entering ninth grade to choose any of ten high schools.
Racial goal: Avoid racial concentration in any one school, achieve educational and social benefits from cross-racial and cross-cultural learning. Aims to get as close as possible in each school to citywide 60-40, non-white to white ratio. Any school considered racially imbalanced if racial makeup of students is 15 percent off the 60-40 goal either way..
How plan works: Each student initially offered a choice of high school. Plan takes effect at any one school only if too many students of one race choose a school, pushing it off the allowed variations from the 60-40 goal. When that happens, students permitted at that school are chosen by four methods – called “tiebreakers.” Race is the second one.
The tiebreakers: First choice at a school where plan is in effect goes to students who have a brother or sister already there. Second choice is based on each applying student’s race, whether white or non-white. Students whose race would tip that school beyond the 15 percent variation from 60-40 are denied entry to that school. The race tiebreaker does not apply to transfers. Third choice goes to students living closest to a school. Fourth choice is a lottery among remaining applicants; lottery is almost never used because the first three tiebreakers normally fill the ninth grade at a school (the distance tiebreaker accounts for upwards of 70 percent of admissions to ninth grade.) A student’s second or third choice of school may also be affected by the tiebreakers.
Impact: In a recent year, 210 white students were denied their first choice and 90 non-whites were denied their first choice.
Lower court result: Upheld by Ninth Circuit Court, en banc, October 2005.Louisville, Ky
Meredith v. Jefferson County Board of Education (05-915).District: Jefferson County Public School District, with boundaries the same as metropolitan Louisville.
Racial history of schools: Public schools were officially segregated by race, before a federal court ordered desegregation in 1975. Court order remained in place until 2000. County school system in 2001 then adopted voluntary plan on student assignment.
Scope of plan at issue in this case: Applies to the District’s 159 schools at elementary, middle and high school levels, serving 89,000 students. Student population District-wide is 66 percent white, 34 percent black. (White category includes races other than black or white.)
Basic student assignment goal: Give each student maximum choice of school, but within a system of “managed choice.” Students may choose geographic location of a school and have choices of magnet schools and other specialized programs. Each student is assigned a school by residential area, but that is not controlling; more than half go elsewhere. Magnet schools have no attendance area, for example.
Racial goal: Maintain a “racially integrated environment” throughout the District to teach students racial tolerance and understanding.. Each school is to seek a black student enrollment of at least 15 percent and no more than 50 percent – that is, about 15 percent below or above the District-wide black student population of 34 percent. (That goal does not apply to four magnet schools, or to pre-schools or kindergartens.)
How plan works: Students at each level may apply to attend a school outside their residential area. School principals make assignment decisions. Multiple factors other than race are considered (such as available space). Assignment decisions have some flexibility, but the guideline is not to allow a given school to vary from the 15 percent variable from 34 percent black.
Impact: In practice, only about 30 percent of all schools come within 5 percentage points, plus or minus, of the 15 to 50 percent guideline. The exact number of students turned away from a choice school because of race is not known because of other factors. The District says that the racial guideline has a small effect at middle and high schools because racial integration is achieved by attendance area assignment, and a minimal effect in elementary schools because integration is achieved by offering students a choice of five to 10 equal schools and granting nearly all at least one such choice.
Lower court result: Upheld by Sixth Circuit Court, per curiam, July 2005.
Court strikes down school integration plans, ends Term
10:15 AM | Lyle Denniston | Comments (0)
UPDATED to 11 a.m.
Concluding its current Term with a historic ruling on race in public policy, the Supreme Court divided 5-4 on Thursday in striking down voluntary integration plans in the public schools of Seattle and Louisville. Chief Justice John G. Roberts, Jr., wrote the majority opinion in the combined cases. Justice Anthony M. Kennedy did not join all of the majority opinion, but joined in the result. Kennedy suggested in a separate opinion that the Chief Justice's opinion, in part, "is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto resegregation in schooling. I cannot endorse that conclusion.""The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," Roberts wrote. On the two school plans, the majority found that the districts have "failed to provide the necessary support for the proposition that there is no other way than individual racial classifications to avoid racial isolation in their school districts."
The Chief Justice, in his oral announcement of the ruling, insisted that the Court was remaining faithful to Brown v. Board of Education in barring public school districts from assigning students on the basis of race. Answering that, Justice John Paul Stevens said in dissent that there was a "cruel irony" in making that claim, because it involved a rewriting of the history "of one of this Court's most important decisions." Stevens noted that he joined the Court in 1975, and asserted that "no member of the Court" at that time "would have agreed with today's decision."
Justice Kennedy recited from his separate opinion, in which he declined to join the Roberts opinion as it discussed the lack of a compelling interest in achieving racial balance in public school classrooms. The Chief Justice's opinion notes that Seattle was never officially segregated by race, and that Louisville is no longer under a court order to desegregate its once-segregated system. Kennedy said in his concurrence that ending racial isolation may sometimes be a compelling interest in public education, and can be pursued with race as "one component" of the plan to achieve racial diversity.
Justice Stephen G. Breyer next opened his microphone and began a long recital for the dissenters. The several oral statements made the announcement one of the longest in years, running for 41 minutes.
At the end of Breyer's discussion, the Court recessed for the summer, to return for new Term on Monday, Oct. 1. Concluding orders for this Term, the Chief Justice announced, will be released at 10 a.m. Friday.
LiveBlog Of The Final Opinion Day - 10 AM Eastern
10:10 AM | Jason Harrow | Comments (0)
10 AM: The session is about to begin.
10:01: Kennedy is announcing Leegin Creative.
10:01: The Chief also announced that Kennedy has another opinion today. Ed: It is likely Panetti.
10:05: Kennedy still reading from Leegin. The vote is 5-4. Dr. Miles has been overruled.
10:08: Kennedy still reading. He was joined by the other conservatives in this case.
10:09: Justice Breyer is reading from his dissent in Leegin Creative.
10:10: Kennedy is delivering the Court's opinion in Panetti. 5-4, Kennedy plus the liberals.
10:15: Chief announces schools cases. Decided jointly. Plans reversed. 5-4, Kennedy concurs in judgment.
10:22: Chief still reading. Stevens and Breyer dissented. Unclear who will read orally.
10:23: Kennedy does not join the part of the opinion stating that there are no compelling interests involved. Thomas has a separate concurrence as well.
10:29: Kennedy is reading from his concurring opinion.
10:34: Justice Breyer has begun reciting from the dissent.
10:36: Breyer is still reading.
10:38: We have posted the full opinion in the schools cases. It is available here and is 185 pages long.
10:46: Justice Breyer is still reading from his opinion.
10:56: The Chief announces the end of the Term. Final orders tomorrow at 10 AM. That's it.We'll have extensive coverage of the school assignment cases and the Term as a whole throughout the day.
Court overrules Dr. Miles, rules on incompetency
10:03 AM | Lyle Denniston | Comments (0)
Nearing the end of its current Term, the Supreme Court on Thursday overturned a 1911 antitrust decision, and said that from now on, challenges to vertical price restraints would be judged by rule-of-reason analysis. The vote was 5-4, with Justice Anthony M. Kennedy writing for the Court in Leegin Creative Leather Products v . PSKS (06-480).
In a second opinion by Kennedy, also splitting the Court 5-4 but along different ideological lines, the Court ruled that the Fifth Circuit Court had used too restrictive a standard of mental competency in upholding a death sentence for a man whose delusions are said to keep him from fully understanding why he would be executed. The case was Panetti v. Quarterman (06-6407).
A Note To Readers: 6/28/07
08:41 AM | Jason Harrow | Comments (0)
Monday was a remarkable day at the Supreme Court, but with the hotly anticipated school cases expected to draw the Court’s October Term 2006 to a dramatic conclusion, today promises to be even more momentous. We wanted to share with you our plan for bringing you all the action, in as close to real-time as possible.
As we did on Monday morning, Lyle and I will coordinate to give you both a minute-by-minute update of what is happening at the Court in our “LiveBlog” beginning at 10 AM Eastern Time, as well as Lyle’s post below that quickly fleshing out additional details (that post is above this one, and a direct link is here). Because it’s common practice for the Chief Justice to announce opinions that he authored after the opinions of any other Justices who have opinions that day, if – as is widely expected – the Chief is the author of the school cases, we likely won’t have any information about them until approximately 10:15 or 10:20. You will be able to follow that action in both the LiveBlog post and in Lyle’s post immediately below it, though we kindly ask that you refresh no more often than roughly once a minute to minimize the load on our servers. We've also disabled commenting site-wide until the initial rush is over, also in order to minimize our load.
In addition, we will make every effort to post the opinions as soon as possible (note, however, that they often are not released until any reading from the bench concludes). To lighten the burden on our servers, we plan to host the opinions off the main SCOTUSblog site at the following addresses, which will also be linked to at scotusblog.wordpress.com: Here for the Seattle schools case, here for the Jefferson County case (those two addresses will point to the same opinion if there is only one), here for the Panetti case, and here for Leegin Creative. Those links will initially feature versions taken from an online database, but we will smoothly transition over to the nicer, officially paginated Bench Opinions as soon as we get those (typically a few minutes after the Court recesses).
Finally today, after the direct action for the Court finishes, we’ll release a sort of “Super StatPack” with all sorts of end-of-Term statistics. We’ll also have a discussion board going throughout the day today and tomorrow about the schools cases, commentary on tomorrow’s two other decisions, and additional statistical analyses being posted regularly over the next week or so.
The next few days promise to be incredibly exciting, so check back here often.
The School Assignment Cases - Briefs and Other Resources
08:35 AM | Jason Harrow | Comments (0)
In anticipation of this morning's decisions, here are a few materials in the Seattle/Louisville School Assignment cases:
The briefing in these cases is collected here.
Lyle's preview of the arguments is here, while the argument transcripts are here and here.
Lyle's analysis of the arguments is here. In December, following the arguments, we also ran op-eds from people with different points of view. The thoughts of Andy Pincus, who filed an amicus brief supporting the schools, are here, and the commentary of Paul Beard, who wrote an amicus brief supporting the petitioning parents, is here.
Wednesday, June 27, 2007
Round-Up
08:20 PM | Gretchen Sund | Comments (0)
Today, Joan Biskupic, Michael Carvin and Jonathan Turley discussed the major cases closing out the Term in this audio segment on The Diane Rehm Show on WAMU. Dahlia Lithwick and Walter Dellinger continue their Supreme Court Conversation about liberal frustration with the Roberts Court here at Slate. This editorial in today's Washington Times applauds the "conservative jurisprudence" demonstrated by Monday's rulings. Mark Sherman of the Associated Press reports here on the High Court's move to the right, exhibited by the 5-4 decisions. Blake Wilson gathers blog coverage of Monday's decisions here at Slate.
Guest blogger Steven K. Green weighs in here at the ACSBlog on the significance of Hein and its impact on Flast; Andy Seigel weighs in here at PrawfsBlawg. Charles Lane of the Washington Post has this article on Justice Stevens's dissent in Bong Hits 4 Jesus and his historic view comparing the marijuana ban to his memories of Prohibition; the Post also ran this editorial discussing the fractured decision. In today's Wall Street Journal, Professor Bradley Smith has this commentary (subscription req'd) on campaign finance reform and the WRTL decision.
At Volokh Conspiracy, Ilya Somin has this reaction to the Wilkie decision, which he fears suggests that "there is no remedy for property owners seeking to protect themselves against government retaliation for the exercise of their constitutional property rights"; Jonathan Adler has this analysisof the majority opinion and dissents and these thoughts on Wilkie and the "War on the West"; Somin follows up here. Adler also discusses NAHB v. Defenders of Wildlife here.
At the WSJ.com Washington Wire Blog, Supreme Court Correspondent Jess Bravin has this post on the Chief Justice's upcoming remarks at the Fourth Circuit Judicial Conference on Saturday, which will air live on C-Span at 9:30am.
A Few Notes on 5-4 Cases
07:48 PM | Ben Winograd | Comments (1)
Entering what many expect will be the Court’s final public sitting of October Term 2006, the Justices have issued 21 decisions 5-4 (based on our judgment). While the figure is not remarkable as a raw total, as a percentage of of the Court's decisions it falls at the high end of the spectrum when looking at terms in recent history. Indeed, if more than one of the Court’s remaining cases are decided 5-4, OT06 would produce a higher share of 5-4 decisions than any term in the last decade.
Following Monday’s session, during which the Court handed down four 5-4 decisions, more than 30% of cases this Term have been decided 5-4. (Note: this total also includes the 5-3 decision in Watters, in which Justice Thomas recused himself but, we believe, would have likely joined the dissent.) By issuing two 5-4 decisions on Thursday, that figure would climb to 31.9% – the highest of any sitting in the last ten years.
The last time 30% of the Court’s decisions fell along 5-4 lines was OT04, when the Justices issued 5-4 decisions in 24 of 80 cases. During that term, the Court’s left-leaning members together won eight 5-4 cases (picking up Justice O’Connor in four cases, Justice Kennedy in three cases and Justice Scalia in one case). The Court’s five more conservative members (which then consisted of the late Chief Justice Rehnquist, former Justice O’Connor, and Justices Scalia, Kennedy and Thomas) together prevailed in five cases.
By contrast, this term the left-of-center Justices have prevailed thus far in only five of the 21 cases decided 5-4 (24%) – and none have enjoyed a 5-4 victory since April 25, when the Court handed down Smith, Brewer and Abdul-Kabir. The Court’s more conservative members have had a comparatively more successful run in 5-4 cases, forming majorities in 11 of 21 cases (52%). The Court’s most successful member of all, of course, has been Justice Kennedy – who voted with the majority in every 5-4 decision issued thus far.
To view a SCOTUSblog voting chart for each 5-4 decision this term, click here to download a PDF, click here for a pop-up image sorted by membership in the 5-4 majorities, or here for a pop-up image sorted by left-right voting patterns. Should any of Thursday’s opinions be decided 5-4, we will provide an updated version.
Government calls Al-Marri ruling a threat to security
05:39 PM | Lyle Denniston | Comments (0)
The Justice Department, denouncing as "radical" a Fourth Circuit Court ruling rejecting presidential authority to seize and detain a civilian captured inside the U.S., asked the Circuit Court on Wednesday to rehear the case en banc, and to overturn it swiftly. The petition for rehearing in Al-Marri v. Wright (Circuit docket 06-7427) can be found at this link. It said that the decision "poses an immediate and potentially grave threat to national security."
The case appears ultimately headed for the Supreme Court, whatever the Fourth Circuit does with it now.
Describing Ali Saleh Kahlah Al-Marri as "an Al Qaeda fighter" who entered the U.S. the day before Sept. 11, 2001, "to act as a 'sleeper agent' with the intent to commit war-like acts," the petition argued that the panel ruling on June 11 "warrants swift reconsideration and repudiation." Much of the government's description of his background appears to have come from Khalid Sheikh Mohammad, the captured "mastermind" of the 9/11 terrorist attacks.
The panel decision "radically circumscribes the President's authority to wage the ongoing military conflict against Al Qaeda and impairs his ability to protect the Nation from further Al Qaeda attack at home," according to the document filed by U.S. Solicitor General Paul D. Clement.
In the 2-1 ruling, the panel barred military detention of any civilian captured inside the U.S., but the decision was explicitly limited to those who are in the country legally and have established connections here. Al-Marri, a Qatar national, was arrested at his home in Peoria, Ill., where he was attending Bradley University. The government was ordered to release him from military custody, but the Court also said he could be transferred to civilian authority to face criminal charges, subjected to deportation procedures, held as a witness for a grand jury investigation, or held for a limited period of time under the Patriot Act.
The panel majority also ruled that Congress has not taken away the legal rights of Al-Marri to challenge his detention, thus limiting the reach of the Military Commissions Act''s court-stripping provisions. It found he had a right of habeas corpus protected by the Constitution.
Al-Marri's lawyers can reply to the government's rehearing request only if the Circuit Court asks them to do so. It will take the votes of a majority of the Court's 12 active judges to grant review before the full bench.
The case, the government's petition said, "raises questions of exceptional importance concerning the authority of the President to detain alien enemy combatants in the ongoing conflict with Al Qaeda."
"The panel majority's construction of the [9/11 Resolution] leads to the absurd conclusion that when Congress authorized the use of military force to respond to the September 11 attacks, it did not intend to reach individuals identically situated to the September 11 hijackers, none of whom had engaged in combat operations against our forces on a foreign battlefield," the petition declared.
At the conclusion of the petition, the Justice Department briefly argued that the Circuit Court had no jurisdiction over the case because of the court-stripping provisions of the MCA passed by Congress last October. "The scope of the MCA is an important question in its own right," the Department said.
It urged the full Court to vacate the panel ruling, rehear the case then send it back to the District Court for dismissal for lack of jurisdiction.
Continue reading "Government calls Al-Marri ruling a threat to security" »
Commentary on Morse v. Frederick
02:10 PM | Jason Harrow | Comments (0)
The following is by Scott Street, an Akin Gump summer associate and a student at Loyola Law School in LA.
The Supreme Court finally went back to school on Monday, but it answered hardly any of the questions that have vexed lower courts in student-speech cases over the past decade. As other authors have noted in this space, the Court dodged the question of how far the rhetorical "schoolhouse gate" of Tinker v. Des Moines Independent Community School District actually extends. For instance, does it extend to web pages created by students off-campus that discuss school-related issues and are gossiped about on campus?
But, on a more basic level, the Court also missed an opportunity to clarify what Tinker and its entire student-speech doctrine really means. To be sure, the Court did offer some guidance to lower courts about the doctrine, clarifying that Tinker, Bethel v. Fraser, and Hazelwood v. Kuhlmeier establish different standards for measuring the regulation of student speech. For example, the Court clarified that Kuhlmeier applies when a reasonable listener would believe that the student's speech bears the imprimatur of the school. It reaffirmed that Tinker supplies the normal standard, evaluating whether speech substantially or materially disrupts school activity (or could reasonably be forecast to cause such disruption). And it said that Fraser supplies a different test, although it did not explain what that test is or when it applies. Instead, the Court merely concluded that the Tinker test does not represent the only form of analysis for student speech cases.
Continue reading "Commentary on Morse v. Frederick" »
A guide to Thursday's session
12:55 PM | Lyle Denniston | Comments (1)
The Supreme Court is scheduled to issue decisions on Thursday, and the chances are, this will be the final public sitting of the current Term. If it is the last day, and if the Court is in fact going to decide the three final decisions (four cases) that remain for the Term, then the session is likely to unfold in this way:
10:00 a.m. sharp -- The gavel raps, the audience rises, the Justices enter, and the Marshal announces that the Court is in session with the traditional, "Oyez, oyez" cry. The Justices take their seats.
10:01 -- Since no Orders List is expected, the Chief Justice will begin immediately to announce decisions on the merits. He probably will recite the docket number(s) of the first ruling, and hand it off to one of the Associate Justices if the Chief Justice is not the author.
10:02 -- If predictions hold true that Justice Anthony M. Kennedy is writing the Panetti decision on the execution of a mentally delusional death-row inmate, he will describe the case, the issues and the result. (The most junior Justice with a decision that day goes first.)
About 10:10 -- The Chief Justice will give the docket number(s) of the second decision of the day. If predictions hold true that Justice John Paul Stevens is writing the Leegin Creative decision on antitrust and retail store prices, he will lay out that case and the result.
About 10:20 -- The Chief Justice will give the docket number(s) of the final ruling of the day. If, as predicted, he is writing the Seattle and Louisville school integration decisions, the Chief Justice will describe them. There probably will be an oral recitation also from one or more of the likely dissenters.
At the conclusion of the session, the Chief Justice will announce that the Term is ending, that concluding orders will be issued on the following day, and that the new Term will begin on Oct. 1.Here are the concluding remarks that the Chief Justice made last June 29, when the 2005-2006 Term ended:
"I am authorized to announce that the Court has acted on all cases submitted for decision this Term. Disposition of items scheduled for Conference will be reflected on the Order List that will be released at 10 o'clock tomorrow morning. The Court will be in recess from today until the first Monday in October, 2006, at which time the October 2005 Term of the Court will be adjourned and the October 2006 Term of the Court will begin as provided by law.
"On behalf of the Court, I would like to thank the Court staff for their hard work, professionalism, and dedication to duty over the past term....The superb work done by all members of the Court staff contributes significantly to the accomplishment of the Court's mission."The entire session Thursday may last 30 minutes or longer.
(NOTE: If Thursday's session is not the final one, any remaining decisions are expected to be announced on Friday, with concluding orders issued next Monday.)
Final filings on detainee rehearing issue
11:57 AM | Lyle Denniston | Comments (0)
U.S. Solicitor General Paul D. Clement, in a letter to the Supreme Court on Tuesday, moved to head off the effect that a military reserve officer's statement under oath might have as the Justices decide whether to reconsider their April 2 denial of review of Guantanamo Bay detainees' cases. On Wednesday, the detainees' lawyers answered with a letter of their own.
On Friday, lawyers for detainees filed the sworn declaration of a Newport Beach, Calif., lawyer who is an Army Reserve lieutenant colonel describing flaws that he observed while working on the Pentagon's review of detainees' status -- the process that determines whether they remain imprisoned. The lawyers told the Court that the statements by Stephen Abraham showed that the entire detainee status process "was an irremediable sham."
Responding on Tuesday, the Solicitor General said that the Abraham statement "is not part of the record" before the Supreme Court. But, just in case the Court considered it as it weighed whether to grant detainees' petitions for rehearing, Clement supplied a copy of a sworn declaration by retired Rear Adm. James M. McGarrah favorably describing the status review process. The Abraham statement was given to rebut Adm. McGarrah's assertions. (The McGarrah declaration was filed in D.C. Circuit Court as it reviews how to judge the status review process. The Abraham declaration has been filed in the Circuit Court as well as in the Supreme Court.)
Thomas B. Wilner, one of the detainees' Washington lawyers, on Wednesday submitted a letter to advise the Court that the detainees had no objection to the Justices viewing Adm. McGarrah's comments. They noted, though, that it had not been a part of the record in the D.C. Circuit when it was filed there, but that the Justice Department had suggested it would assist the Circuit judges in understanding the detainee review process. Wilner added that the detainees "submit that the Abraham declaration will assist this Court in understanding the nature and inadequacy" of that process.
The text of the Solicitor General's Tuesday can be found at this link. The text of the Wilner letter is at this link.
The Court is scheduled to consider the rehearing petitions at its Conference Thursday.
Academic Round-Up
11:00 AM | David Stras | Comments (0)
With all of the exciting action and commentary that is sure to ensue when the Court decides the school cases on Thursday, I thought I would post the academic round-up a bit earlier than usual this week.
Ethan Yale (Georgetown University Law Center) and Brian Galle (Florida State University College of Law) have a new paper that analyzes the Court's United Haulers opinion, and its implications for the recently granted case of Davis v. Kentucky, which will examine the constitutionality of the practice by states of giving preferential tax treatment to in-state municipal bonds, see here.
The Northwestern University Law Review Colloquy will soon be running a response to the piece by Amy Wildermuth and Kathryn Watts on the Court's decision in Massachusetts v. EPA that I have highlighted in the last couple of academic round-ups. In the response, Professor Jonathan Adler (Case Western Reserve University School of Law) contends that Professors Watts and Wildermuth underestimate the impact of the Court's decision in the case, arguing that it virtually ensures federal regulation of Greenhouse gases from motor vehicles and other emission sources, see here.
In light of my earlier coverage of the Hein opinion, see here and here, I would like to note that Professor Debra Lowman (St. John's University School of Law) has posted an article on SSRN entitled "A Call for Judicial Restraint: Federal Taxpayer Grievances Challenging Executive Action," see here. Her paper analyzes the Seventh Circuit's decision in the Hein case, and ultimately concludes that taxpayer standing to challenge executive action in the Establishment Clause context is inconsistent with the Court's standing doctrine, an approach very similar to the plurality opinion.
Professor Edward Foley (Ohio State University College of Law) recently posted a piece entitled "The Future of Bush v. Gore," see here, which analyzes in detail perhaps the Rehnquist Court's most infamous precedent. In the Article, Professor Foley asks and attempts to answer three related questions: (1) to what extent will the Equal Protection holding in the case generate a new domain of meritorious Equal Protection challenges to voting procedures?; (2) to what extent will the Court's willingness to intervene in the Florida recount result in greater judicial intervention in voting procedures already underway?; and (3) to what extent will the intense media scrutiny and academic criticism affect the Court's role in constitutional cases generally?
Today at the Supreme Court: 6/27/07
09:08 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. What is expected to be the final day for opinions is tomorrow, June 28.
Tuesday, June 26, 2007
Round-Up: Other News
06:58 PM | Gretchen Sund | Comments (0)
At Slate, Dahlia Lithwick and Walter Dellinger have this exchange providing end-of-the-Term analysis. Andy Siegel has this portrait of the Roberts Court at PrawfsBlawg.Greg Stohr of Bloomberg reports here on "what may have been the most pro- business U.S. Supreme Court term in decades."
In today's Washington Post, Jo Becker and Barton Gellman have this piece - part of a series on Vice President Cheney - discussing his role in vetting Supreme Court nominees; Petter Lattman has this post discussing the story and Cheney's influence on the High Court.
Mark H. Anderson has this article (subscription req'd) in the Wall Street Journal discussing the Court's decision not to take action on the Enron class-action lawsuit, The Regents of the University of California v. Merrill Lynch Pierce Fenner & Smith Inc..
The Associated Press reports here on the High Court's decision to hear a case dealing with online cigarette sales. At the TaxProf Blog, Paul Caron has this post on yesterday's decision to grant cert. in a tax law case, Knight v. Commissioner.
Round-Up: Yesterday's Opinions
06:38 PM | Gretchen Sund | Comments (0)
Today, NPR's Nina Totenberg had this piece on Morning Edition discussing yesterday's 5-4 rulings and the "deeply divided" High Court. Totenberg also has this story on the three cases related to the First Amendment that were decided yesterday; Professor Richard Garnett and Professor Walter Dellinger discuss the three decisions here at the NewsHour with Jim Lehrer; Washington Post Supreme Court Reporter Robert Barnes led this online discussion of the trio of big 5-4 decisions; Jack Balkin has these thoughts at Balkinization; and this editorial in today's Wall Street Journal also discusses the three First Amendment decisions. In today's Wall Street Journal, Jess Bravin reports here (subscription req'd) that "the Supreme Court handed conservatives victories in a raft of 5-4 rulings"; Joan Biskupic of the USA Today reports here on yesterday's split decisions by "that undercut precedents set by more liberal courts." The USA Today also features this op-ed on the Court's political speech decision and this op-ed on the student speech ruling.
In today's New York Times, Linda Greenhouse reports here on the Bong Hits 4 Jesus ruling, which "showed the court deeply split over what weight to give to free speech in public schools." At Volokh Conspiracy, Eugene Volokh has this analysis of the decision and Justice Alito's concurring opinion, these thoughts on Justice Stevens' dissent, and this post on the holding of Morse v. Frederick; Orin Kerr weighs in here. Claudia Mansfield Sutton of the American Association of School Administrations has this op-ed in the USA Today stating "we are heartened that this important case strengthens the decision-making ability of school administrators in the presence of sound school district policy." At PrawfsBlawg, Jonathan Simon weighs in on the Morse case here; Emil Steiner has this post at the WashingtonPost.com's OFF/beat blog; and at the WSJ.com Washington Wire blog, Jess Bravin has these thoughts on the similarities between Joseph Frederick and Solicitor General Paul Clement. Education Week reports here (subscription req'd).
In the Legal Times, Tony Mauro reports here on the Court's campaign finance decision, "possibly ushering in a new era of high court disapproval of measures aimed at reining in campaign excesses." Greenhouse and David D. Kirkpatrick have this article in the New York Times discussing the WRTL decision, "a sharp turn away from campaign finance regulation." In the USA Today, Richard Wolf and David Jackson report here on the ruling that "will allow labor, business and other groups to air "issue ads" that mention candidates by name, a practice banned by a 2002 law"; Barnes has this story in the Washington Post on yesterday's 5-4 decision "providing special interest groups with the opportunity for a far more expansive role in the 2008 elections". The Post also runs this editorial stating that "yesterday's ruling reopens a dangerous loophole."
Continue reading "Round-Up: Yesterday's Opinions" »
Early action on detainees
03:59 PM | Lyle Denniston | Comments (0)
The Supreme Court is likely to act later this week on two issues that will provide new clues on where it stands on the legal rights of Guantanamo Bay detainees. The Court's electronic docket shows that the Justices will consider at Thursday's Conference two petitions to reconsider its denial of review of the court-stripping law passed by Congress last fall, and one petition asking whether that law also has taken away the Supreme Court's own jurisdiction in detainee habeas cases.
If the Court's final decision day of the Term is Thursday, it would follow recent custom for orders emerging from the Thursday Conference to be issued on Friday. Otherwise, they probably would come next Monday.
The rehearing petitions are pending in Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196). They seek reconsideration of the April 2 order denying review of the D.C. Circuit Court ruling upholding the denial of habeas rights for detainees, spelled out in the Military Commissions Act of 2006. The pending petition on the Court's own jurisdiction, in the wake of MCA, is In re Ali (06-1194). The Court asked for responses from the Justice Department on all three; the Department urged the Court to turn down the pleas.
Meanwhile, attorneys for Guantanamo detainees made a new move in U.S. District Court in Washington, to try to head of dismissal of remaining habeas petitions. In a "notice of recent activity in Guantanamo cases," the lawyers urged the District judges to hold off on granting the Justice Department's motion to dismiss all such cases. The notice, available at this link, provides a roundup of all of the current activity in three levels of the federal courts on detainee matters.
The Significance of Hein (Part Two of Two)
03:49 PM | David Stras | Comments (1)
The real significance of Hein is what it says about the varying approaches of the members of the Roberts Court. As I highlighted yesterday, the holding of the case, at least as articulated by the plurality, is not all that significant. Taxpayers have standing to sue only when the two requirements of Flast are met: (1) when a taxpayer alleges the unconstitutionality of an exercise of congressional power under the taxing and spending clause of Art. 1 s 8; and (2) the taxpayer establishes a nexus between that status and the precise nature of the constitutional infringement alleged. The plurality held that the challenged expenditures in Hein failed the narrow exception in Flast because the plaintiffs alleged violations of discretionary executive action rather than direct congressional spending, even though the money spent was appropriated to the executive branch pursuant to a general appropriation bill under Congress's taxing and spending power.
Since law school, I have never fully been able to rationalize the Flast exception: What makes the Establishment Clause so special that it warrants a special exception to the Court's standing doctrine? How is it different, let's say, than Congress earmarking funds expressly for racially discriminatory private schools? Most taxpayers would be just as angry and just as "harmed" if Congress gave money to racially discriminatory schools (perhaps even more so) as they would be if Congress expressly appropriated funds to religious schools. Yet a taxpayer would have no standing in the former case and inexplicably would have standing to sue in the latter scenario. I suppose one could argue that it is hard to find a plaintiff that has standing to allege a violation of the Establishment Clause, at least where government spending is concerned, but there are at least three problems with that rationale: first, the Court has consistently stated that standing should not be found simply because there is no conceivable plaintiff that has standing; second, where government spending is at issue, it is equally difficult to find a plaintiff with a sufficient injury regardless of the underlying constitutional right at issue; and third, as Justice Alito acknowledged, in many Establishment Clause cases there are potentially other plaintiffs who may have a more direct injury than a taxpayer.
Continue reading "The Significance of Hein (Part Two of Two)" »
Overruling and Judicial Restraint
02:39 PM | Amy Howe | Comments (1)
Charles Fried, the Beneficial Professor of Law at Harvard Law School, has these thoughts:
Here is a prediction: the Court in its school race-based assignment cases will take a bite of Grutter, just as in Wisconsin RLF it took a bite out of McConnell. And the usual suspects –e.g. The New York Times editorial page—will once again point to what they will call the false fealty to stare decisis sworn by Chief Justice Roberts and Justice Alito. Such accusations will be either ignorant or hypocritical. Grutter was paired with Gratz, which struck down the Michigan undergraduate plan of racial preferences because it was mechanical and numerical rather than individualized and sensitive as in Grutter. Those who are addicted to racial preferences celebrated Grutter and ignored Gratz, no doubt encouraged by the elevated rhetoric in Grutter. But this Term’s school cases are more like Gratz than they are like Grutter. Truth be told, Grutter was more like Gratz too, only the Court chose to ignore the clear findings of fact that Michigan Law School was just as addicted to numbers and percentages as the undergraduate program, but due to the smaller number of applicants (and better legal advice) could accomplish its goals without leaving the paper trail that a much larger admissions process made inevitable. So what we have is an incoherent pair of precedents and, as is the case with a contradictory proposition, such a contradiction entails anything, everything or nothing.
Analysis: Some Thoughts on Opinion Authorship and the Dynamic in the Court
01:36 PM | Tom Goldstein | Comments (2)
Three decisions remain to be issued on Thursday: the Seattle and Louisville race cases; Leegin on minimum resale price fixing; and the Panetti capital case on competence to be executed. The Chief Justice is almost certainly the author of the school race decision, as he is the only Justice who has not written an opinion from the December sitting.
The other two are hard to predict. My best guess is that Justice Stevens is writing Leegin (he has an antitrust background and has not written from March) and Justice Kennedy is writing Panetti (he is the controlling vote in capital cases and only has six majority opinions so far this Term). If that is so, the Court likely will decline to overrule Dr. Miles in Leegin and will rule for the defendant in Panetti. A further interesting dynamic would be if Justice Stevens issues a majority opinion in Leegin with a heavy emphasis on the importance of stare decisis (declining to overturn Dr. Miles) as a counterpoint to the Chief Justice’s opinion in the school cases (which practically if not formally will limit Justice O’Connor’s Grutter decision approving limited affirmative action in educational admissions).
But confident predictions about the authors of those two decisions are impossible to make because we do not know either who was writing the majority opinion in the Claiborne sentencing case from February before it was dismissed or who wrote the per curiam opinion in the Weaver case from March. If Stevens or Kennedy had either of those, that could affect the distribution of the opinions.
Another outstanding question is who is writing the principal dissent in the school cases. The most likely candidate to my mind is Justice Breyer, though only for reasons of symmetry, which is a thin reed on which to rest a prediction. The other Justices on the left have all issued significant dissents, reading from the bench: Stevens in Uttecht, Souter yesterday in Wisconsin Right to Life, and Ginsburg in Carhart and Ledbetter. Only Justice Breyer hasn’t done so, and it may be his turn.
It's also interesting to look back at how the ideological dynamic of the Term played out from within the building, as a possible explanation for the seemingly growing frustration of the Court’s more liberal members. Sixteen cases this Term have been decided five-to-four along ideological lines – eleven favoring conservatives; five favoring liberals. (As I discussed in an earlier post, the only arguably significant victory for the left was the global warming case, Massachusetts v. EPA.)
The public sees the cases in the order they are decided; the Justices, of course, see them in a different order: when they are argued. As of January (half way through the Term), the results would have been perceived within the building as quite conservative (particularly before the Winter recess), but nonetheless at least somewhat mixed. The right would have secured majorities in the most significant decisions – the race cases, Carhart, and Ledbetter (all of which were argued before the recess). But Massachusetts v. EPA, Marrama, and the three Texas death penalty cases (the last of these cases to be argued) would have favored the left. In five cases, Justice Kennedy would have joined the right; in five others, he would have joined the left.
In the second half of the Term, the results would have been more consistently one-sided. Thus far, we know of six cases decided five-to-four on ideological grounds in that period, all favoring conservatives. Three were significant (two giving rise to dissents from the bench): Hein, Uttecht, and Wisconsin Right to Life. (The only counterpoints may be Leegin and Panetti, discussed above, which haven’t yet been decided.) At the same time, the likely contentious exchanges of majority and dissenting opinions in Carhart (decided in April), Ledbetter (May), and Uttecht (June) would have been going on. In fact, between May 14 and June 25, an extraordinary eight cases were decided along ideological lines, all favoring conservatives (with the school cases still to come). As a consequence, the last two months of the Term have likely been quite demoralizing for the Court’s more liberal members.
A “Reasonable Interpretation” of WRTL in a New World of Uncertainty
01:26 PM | Gretchen Sund | Comments (0)
The following commentary is from Paul S. Ryan, FEC Program Director & Associate Legal Counsel, Campaign Legal Center. This piece has been cross-posted here at the Campaign Legal Center blog.
The defining characteristic of the Supreme Court’s decision yesterday is “uncertainty.” For years we’ve known that only ads that are the “functional equivalent” of express advocacy can be regulated by BCRA’s “electioneering communication” provisions. As a result of the Supreme Court’s decision yesterday in WRTL, we now know that “an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” But what does this mean?
In short, the Court has announced a “no reasonable interpretation” test to determine which ads are and are not subject to BCRA’s “electioneering communication” provisions. The problem with this test is that reasonable minds often disagree regarding what the “reasonable interpretation” of an ad is. Indeed, in this case the Court split sharply on the question of whether WRTL’s ads are the “functional equivalent” of express advocacy. Chief Justice Roberts and Justice Alito believe that “WRTL’s three ads are plainly not the functional equivalent of express advocacy.” Justices Souter, Stevens, Ginsburg and Breyer believe that “it is beyond all reasonable debate that the ads are constitutionally subject to regulation under McConnell.” And Justices Scalia, Kennedy and Thomas reject the “no reasonable interpretation” test altogether—precisely because it is so open to interpretation.
Continue reading "A “Reasonable Interpretation” of WRTL in a New World of Uncertainty" »
More on NAHB v. Def. of Wildlife
12:29 PM | Jason Harrow | Comments (1)
The following is by Joe Vuckovich, a summer associate at Akin Gump and a student at NYU Law School.
If a state hopes to take over administration of water pollution permits within its jurisdiction, and if it meets the nine criteria specified by the Clean Water Act (CWA) for doing so, may the EPA nonetheless hold back its permission if it concludes that the state will not adequately protect endangered and threatened species?
When the core question in National Association of Home Builders v. Defenders of Wildlife is stated this way, it isn’t hard to see why other opinions from the Court’s most recent term have garnered greater attention. Yet the case presents complex problems of statutory interpretation and administrative law, and it has profound implications for our ongoing effort to balance the interests of developers, homeowners, conservationists, and wildlife. In upholding EPA’s transfer of authority over water pollution to Arizona regardless of possible effects on endangered species, the Court today has limited the reach of the Endangered Species Act (ESA) and eliminated a major regulatory hurdle for developers.
Continue reading "More on NAHB v. Def. of Wildlife" »
More on Wilkie v. Robbins
11:42 AM | Jason Harrow | Comments (0)
The following summary is by Nicole Elam, a summer associate at Akin Gump and a student at Howard Law School.
When a private landowner alleges that government officials have harassed and intimidated him in an effort to obtain an easement across his land, what remedies does he have? In a 7-2 decision, authored by Justice Souter, the Court held today that a landowner in this situation cannot avail himself of either a Bivens action or a RICO claim.
Respondent Harvey Frank Robbins operates a private cattle and commercial guest ranch in Hot Springs County, Wyoming. Robbins’s land stretches for approximately forty miles, occasionally interspersed with property owned by the federal government. The dispute between petitioners and respondent has its origins in efforts by the Bureau of Land Management (BLM) to secure a right-of-way across Robbins’s ranch. When Robbins refused, the quarrel began: BLM allegedly harassed, refused to maintain the public road providing access to his property, and brought false criminal charges against Robbins, who in turn sued BLM employees alleging that their actions violated RICO, Bivens, and the Fifth Amendment. Asserting that they were entitled to qualified immunity, the BLM employees successfully moved to dismiss.Continue reading "More on Wilkie v. Robbins" »
Monday, June 25, 2007
Today's Opinions, Plus an Index to Today's Blog Posts
11:20 PM | Jason Harrow | Comments (0)
There were four grants today; the Orders are here. Amy has collected information on today's grants here.
Lyle's initial post is here.
Our discussion board about the campaign finance cases has been quite active. Rick Pildes of NYU weighs in here, and Rick Hasen of Loyola Law School has his thoughts here. Georgetown Law's Marty Lederman weighs in here and Richard Briffault posts these reactions. Lyle has additional commentary on the WRTL decision here.
Lyle also has an analysis of Morse v. Frederick here. Additionally, a summary of the decision in Hein, by Megan Greer of Akin Gump, is here. David Stras also wonders whose opining is controlling in that case in this post. And earlier, Marty Lederman posted these thoughts on both Hein and Morse here.
Gretchen has this post (which will be updated throughout the afternoon) collecting links to news and blog coverage of today's opinions and orders.
The opinion in Hein is here.
Wilkie is here.
Morse v. Frederick is here.
Def. of Wildlife is here.
FEC v. WRTL is here.The Court announced it will sit again on Thursday. If that is indeed the last day of the Term as expected, Leegin Creative (anti-trust), Panetti (death penalty), and the much-anticipated school assignment cases will be decided.
Updated StatPack
08:59 PM | Jason Harrow | Comments (0)
The next-to-last edition of StatPack is available for download here.
Stay tuned for much more, however, as this week and next week, we'll have posts featuring a plethora of additional statistics (including justice agreement stats), analyses, and comparisons with past Terms.
Whose Opinion is Controlling in Hein? (Part One of Two)
07:50 PM | David Stras | Comments (0)
Today's opinion in Hein v. Freedom of Religion is an important one, and I have too much to say about it to keep it to just a single, coherent post. Thus, the first post will be the first part of a two-part series on the Hein opinion. In part one, I would like to address the difficult question of which opinion is controlling.
The first, and perhaps most difficult, question about today's opinion is which approach is controlling for the lower courts and for stare decisis purposes? The Court has given us some guidance on how to read a deeply fragmented opinion in the 1977 case of Marks v. United States: "When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds." The problem we have today is that Justice Scalia's opinion concurring in the judgment cannot be viewed as the narrowest grounds. I am working on an Article on the application and weaknesses of the Marks rule, but this is one of several instances in which it is safe to say, on its face, it is of little help.
Marty Lederman, in his post earlier today, called Justice Kennedy the "controlling vote" and his opinion "the controlling concurrence," but I believe that Marty is incorrect. The plurality opinion was written by Justice Alito, and joined by two other Justices, Chief Justice Roberts and Justice Kennedy. Justice Kennedy wrote a concurring opinion, not an opinion concurring in the judgment, on behalf of only himself. This means that he unqualifiedly joined in the plurality opinion written by Justice Alito, and the Court's characterization of the votes reflects that outcome (Justice Alito, joined by the Chief Justice and Justice Kennedy). So, in my opinion, the two opinions that cannot be controlling are the dissent and Justice Kennedy's concurring opinion.
Continue reading "Whose Opinion is Controlling in Hein? (Part One of Two)" »
Today's Opinion in Hein v. Freedom From Religion
07:20 PM | Jason Harrow | Comments (0)
The following summary is by Megan Greer, a summer associate in Akin Gump's DC office and a student at Harvard Law School.
Can a person sue the federal government, alleging an executive branch violation of the Establishment Clause, solely because that person is a taxpayer? In a splintered 5-4 decision, the Court today said no. In an opinion by Justice Alito, a plurality today held that taxpayer standing in Establishment Clause disputes is limited to cases involving specific congressional action.
Through a series of Executive Orders, President Bush in 2001 created the White House Office of Faith-Based and Community Initiatives. Under the Faith-Based Initiatives, the White House organized nationwide conferences to aid religious institutions in their applications for federal aid. In 2002, respondent Freedom From Religion Foundation and three of its members sued in their capacity as federal taxpayers, alleging that the White House’s actions ran afoul of the Establishment Clause.
Continue reading "Today's Opinion in Hein v. Freedom From Religion" »
Commentary: The assault on "faux judicial restraint"
05:14 PM | Lyle Denniston | Comments (0)
Commentary
Now and then, a footnote in a Supreme Court opinion is so provocative, so perceptive, or both, that it speaks almost as loudly as the body of the opinions themselves. In the election campaign ads ruling on Monday, Justice Antonin Scalia unleashes this broadside at the main opinion, written by Chief Justice John G. Roberts, Jr.:
"[T]he principal opinion's attempt at distinguishing McConnell [v. FEC] is unpersuasive enough, and the change in the law it works is substantial enough, that seven Justices of the Court, having widely divergent views concerning the constitutionality of the restrictions at issue, agree that the opinion effectively overrules McConnell without saying so. This faux judicial restraint is judicial obfuscation."
Aside from the substance of the remark, it is especially noteworthy because it is a direct assault on the version of judicial modesty that seems to be -- at least at this early stage of the "Roberts Court" -- the decision-making style that the new Chief Justice has so often advocated publicly. (Perhaps also to be left aside is that Justice Scalia himself joined earlier in the Term in a ruling by the Court, in the partial-birth abortion decision -- Gonzales v. Carhart -- that can be read as having overruled precedent without saying so.)
The Chief Justice's opinion in the combined cases of FEC v. Wisconsin Right to Life (06-969) and McCain v. Wisconsin Right to Life (06-970) is the latest example of the Court's moving away from major precedent without actually saying explicitly that the prior ruling was being set aside. The Chief Justice has talked with some fervor about the value of respecting precedent, and the need to keep overrulings to a minimum, if not truly rare. But the new conservative majority on the Court is plainly uncomfortable with some of the precedents it confronts -- and the McConnell decision was a prime candidate for overruling. In fact, both sides in the case had been granted additional space in briefing to argue whether it should be cast aside.
In the end, all that the Chief Justice's opinion would say on the point was that "we have no occasion to revisit" the McConnell decision as it applied to federal regulation of broadcast ads aired by corporations and labor unions in election season. But what remains of that aspect of the 2003 decision divided the Court deeply in the various writings on Monday. And the end result is that, if it is hanging on, it is just by a thread.
In fact, the numbers show how vulnerable it is: three Justices wanted to overrule it outright, Justice Samuel A. Alito, Jr., is revealed to be strongly tempted to do that when and if the issue comes back again, and the Chief Justice's tolerance of it as a precedent is fleeting at most. The only thing that might keep that part of McConnell on the books, technically not overruled, is that the Chief Justice's new opinion could make it entirely unnecessary to do so -- the campaign ads will flow freely in the weeks closest to elections, with full First Amendment protection, unless they leave no doubt that what they really say is "vote for Jones" or "vote against Smith." Those who draft campaign ads' content will have no trouble avoiding such blatant advocacy and yet leaving no one in doubt which outcome is preferred by the ads' sponsors.
Continue reading "Commentary: The assault on "faux judicial restraint"" »
WRTL: The Anti-McConnell
04:02 PM | Gretchen Sund | Comments (0)
The following commentary is from Richard Briffault, Professor of Law, Columbia Law School. He participated in the Supreme Court WRTL litigation as an amicus in support of the appellant and intervenor-appellants.
FEC v. WRTL is the anti-McConnell. The majority and plurality opinions -- Chief Justice Roberts’s opinion speaks for the Court only in the introductory and jurisdictional sections; the sections dealing with the challenge to electioneering communication section of the Bipartisan Campaign Reform Act (BCRA) were joined only by Justice Alito – breaks with McConnell at every level – in the general approach to campaign finance regulation; in the doctrinal analysis of corporate electioneering communications; and in its specific holding concerning the constitutionality of the electioneering communication restriction.
At the highest level, WRTL rejects the view that campaign finance restrictions can be justified and sustained as democracy-promoting measures that advance government integrity. Where McConnell saw campaign finance jurisprudence as entailing the reconciliation of competing constitutional values – democracy and free speech – Chief Justice Roberts flatly proclaimed that WRTL is “about political speech” only. So much for Justice Breyer’s theory of Active Liberty.
At the doctrinal level, the Court in its recent corporate electioneering cases – FEC v. Beaumont as well as McConnell – had repeatedly described federal law not as banning corporate election spending but as merely requiring business corporations to participate in federal elections through a political action committee (PAC) funded by the voluntary donations of corporate officers, directors, and shareholders rather than use corporate treasury funds. The PAC requirement restricts the ability of the corporate to use the “aggregations of wealth” amassed from business activities unrelated to the support for the corporation’s ideas, while also protecting shareholders who didn’t share the political goals of the corporations managers. As Justice Souter’s dissent pointed out Wisconsin Right to Life had accepted over $315,000 in corporate donations. But both the WRTL plurality and concurrence rejected this way of thinking about federal election law. Instead, they spoke of BCRA’s “ban” on corporate electioneering expenditures.
Continue reading "WRTL: The Anti-McConnell" »
Commentary: Beyond the schoolhouse gate
04:00 PM | Lyle Denniston | Comments (0)
Commentary
In word if not in spirit, the Supreme Court on Monday left intact its statement in 1969 that public school students "do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." But there is an interesting reference in the main opinion, written by Chief Justice John G. Roberts, Jr., that suggests that it is possible, perhaps even quite likely, that students sometimes do shed their free speech rights beyond the gate.
Take the facts in the case decided Monday, Morse v. Frederick (06-278), and modify them somewhat. First, here are the basic facts as actually given: Joseph Frederick, a senior at Juneau-Douglas High School in Juneau, Alaska, during a parade-like event along Glacier Avenue in front of the school, unfurled a banner declaring "Bong Hits 4 Jesus." The Chief Justice was able to conclude in Morse that the gesture occurred during a "school-sanctioned activity," even if Joseph was across Glacier Avenue from the school at the time. The significance of the site of the gesture was a seriously disputed issue in the case, although the Chief Justice found its resolution easy, without openly disturbing the Court's core school-speech precedent in a decidedly on-campus case, Tinker v. Des Moines School District, 38 years ago.
But suppose Joseph that morning had composed a digital banner with the same message on a laptop at home, and sent it to a friend whose house was next door. The friend had not opened his laptop yet, but carried it to school. Sitting in home room at the start of the school day, the friend logged on to his laptop, and, lo, the image of the banner appeared on the screen; other students saw it, and snickered. But it also caught the eye of the home room teacher. Was that display school-related, at least enough to lead to Joseph's being punished for having propagated -- while sitting at home -- a pro-drug message to fellow students?
In the Roberts opinion Monday, there is this comment: "There is some uncertainty at the outer boundaries as to when courts should apply school-speech precedents, see Porter v. Ascension Parish School Bd., 393 F. 3d 608, 615, n. 22 (CA5 2004), but not on these facts" (he meant the real facts, not the modified scenario suggested here). When one examines the Fifth Circuit's decision in that case, however, it becomes apparent that there is a very active controversy unfolding in lower courts and in the academic literature about how far school regulatory authority reaches beyond the gate. And therein lies the potential sequel issue to Morse, raising the question of whether a seemingly narrow ruling (made to seem even narrower by the concurring opinion of Justice Samuel A. Alito, Jr., joined by Justice Anthony M. Kennedy) might in fact set the stage for a more expansive view of school authority in the future.
Continue reading "Commentary: Beyond the schoolhouse gate" »
Round-Up: Today's Action
02:38 PM | Gretchen Sund | Comments (0)
UPDATED 3:50pm
NPR has this article on today's action at the High Court; Slate's Dahlia Lithwich discusses the highlights in this audio segment. Mark H. Anderson of the Wall Street Journal reports here (subscription req'd) on today's opinions.
In the New York Times, David Stout has this article on the WRTL decision, which "may well have affected the thinking of political strategists for the 2008 elections"; David G. Savage of the LA Times reports here on the Court's ruling in the election cases "clearing the way for corporate-funded broadcast ads"; Ariane de Vogue has this report for ABC News; Bloomberg's Greg Stohr reports here on the High Court decision "limiting the reach of federal campaign-finance law"; and Mark Sherman of the Associated Press has this article on the Court's 5-4 ruling.
Sherman also has this piece on today's decision to tighten limits on student speech; Bill Mears of CNN reports here on the Supreme Court's Bong Hits 4 Jesus ruling; BBC News has this story; James Vicini of Reuters reports here on the Court's "first major decision on student free-speech rights in nearly 20 years"; Bloomberg's Stohr has this article on the divided ruling in Morse v. Frederick; and de Vogue of ABC News has this story on the ruling in the First Amendment case. Peter Lattman weighs in here at the WSJ.com Law Blog, highlighting Justice Stevens's dissent.
At the Chicago Tribune's The Seeker blog, Manya Brachear has this post on the Morse v. Frederick and WRTL opinions.
Paul Caron of the TaxProf Blog has this post on the Court's 5-4 decision in Hein v. Freedom From Religion Foundation Inc.; Stohr reports here for Bloomberg on the ruling that "limited the power of taxpayers to challenge government actions as unconstitutionally promoting religion"; Pete Yost of the Associated Press has this article on the Hein decision, which "blocks a lawsuit by a group of atheists and agnostics against eight Bush administration officials"; Vicini reports here for Reuters; and Cary McMullen of The Ledger weighs in here at The Scriptorium blog.
Continue reading "Round-Up: Today's Action" »
The Meaning of Speech is in the Eye of the (Chief) Beholder
02:37 PM | Marty Lederman | Comments (0)
A friend writes to note the striking contrast in the way the Chief Justice views the "reasonable" interpretation of the ambiguous expression in today's two Free Speech Clause cases:
From Wisconsin Right to Life: “Because WRTL’s ads may reasonably be interpreted as something other than an appeal to vote for or against a specific candidate, they are not the functional equivalent of express advocacy,” the Chief wrote. In defining what qualifies as “express advocacy,” "the court should give the benefit of the doubt to speech, not censorship."
From Morse: : ''The message on Frederick's banner is cryptic. But Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one.''
Wisconsin Right to Life in a Nutshell.
01:37 PM | Marty Lederman | Comments (0)
I fully agree with Rick and Rick on the landmark nature of the case, except that in my (somewhat idiosyncratic) view it will in the future be more importantly viewed as a sea-change with respect to corporate speech rights than as a case upending the First Amendment's general treatment of campaign finance regulation. Here's the short version:
For fully 60 years, since the Taft-Hartley Act of 1947, federal law has required that if corporations wish to engage in activities designed to affect federal elections, they must use funds that donors have specifically designated for such purposes, rather than using corporate treasury funds, which include substantial sums from shareholders who might not wish their money to be used for such electoral designs. (A similar source requirement has also been imposed on labor unions during the same 60-year period.)
That restriction on the sources for funding corporate speech was sometimes honored more often in the breach, but nevertheless it was the governing law for most of the past six decades, especially after the Court upheld the constitutionality of an analogous state law in the 1990 Austin decision. Beginning in 1996, corporations and unions began to circumvent the restriction with impunity by purporting to engage in "issue-related" speech that ostensibly was not designed to affect elections, but that quite manifestly had the purpose and, more importantly, the effect of doing just that. BCRA closed this loophole, and the Court's decision in McConnell preserved the 60-year-old rule.
Today's decision in effect eviscerates that 60-year-old rule for all practical purposes -- it overrules Austin in all but name, and for the first time in 60 years establishes a constitutional regime in which corporations are entitled to the same First Amendment protections as individuals, notwithstanding that, as the Court stressed in Austin, corporations' "voice" in public debate is magnified considerably by virtue of numerous advantages that state law provides to such artificial entities.
That is to say: This is a very good day for the speech rights of corporations, and for the ability of government officials to engage in speech that favors religion -- but not such a good day for the speech rights of students who would "celebrate" drug use rather than debate whether it should be lawful.
WRTL: Big Win for Campaign Finance Deregulation
12:46 PM | Gretchen Sund | Comments (0)
The following commentary is from Loyola Law School Professor Rick Hasen and is cross-posted here at Election Law Blog.
Today's opinion is a major victory for those who oppose campaign finance regulation, and will likely lead to a new proliferation of corporate and union funded campaign ads in the 2008 election season. It has revealed the Roberts Court, as I have feared, as moving firmly into the deregulationist camp, with the Chief Justice and Justice Alito dressing up the opinion as a minimalist, incremental decision. My hope that Justice Kennedy's respect for stare decisis could save the corporate/union PAC requirement has been dashed. Here are a few observations:
1. In my writings on campaign finance, I have analogized the Supreme Court's campaign finance cases to the swing of a pendulum. We began with Buckley, which was a multi-authored schizophrenic opinion offering something (a ban on independent campaign expenditures by individuals) to those who believe that most campaign finance laws conflict with First Amendment rights of speech and association, and something else (upholding of campaign contribution limits) to those who believe that the government's interest in preventing corruption, insuring the integrity of the electoral process or promoting electoral equality (though the Buckley court itself eschewed that interest). The early post-Buckley cases, such as Bellotti, and NCPAC were deregulationist, and were followed by the period I've called the New Deference, where the four liberals on the Court, joined by Justice O'Connor, upheld a wide range of campaign finance laws, including major provisions of the McCain-Feingold law (the Bipartisan Campaign Finance Act, or BCRA) in a number of different cases. Last year's Randall decision showed Justice Breyer trying to salvage the campaign finance regime and prevent the Chief and Justice Alito from going to the deregulationist side. Today it is clear that those efforts have failed.
Continue reading "WRTL: Big Win for Campaign Finance Deregulation" »
WRTL: A Constitutional Sea Change
12:27 PM | Gretchen Sund | Comments (0)
The following post is from Richard H. Pildes, Sudler Family Professor of Constitutional Law, NYU School of Law, and Co-Director, NYU Center on Law and Security.
The 5-4 decision in WRTL is a blockbuster. Effectively, though silently, it overrules a central element in the Court's most recent prior confrontation with the campaign-finance problem at issue, the 5-4 decision in McConnell, issued only four years ago when Justice O'Connor (and Chief Justice Rehnquist) were on the Court. There is no doubt today's decision reflects a constitutional sea change that is likely to have dramatic effects on upcoming elections. Some will celebrate that change, others will bemoan it, but that the change is dramatic cannot be doubted.
WRTL deals with perhaps the hardest issue in the regulation of campaign financing: how regulation and constitutional law should distinguish between election ads, which seek to affect election outcomes, and issue ads, which seek to influence public opinion about issues of the day. A distinction of this sort is both essential to the constitutionality of campaign-finance regulation, on virtually all views, but also inherently artificial and difficult to put into practice. Public debate about issues and candidates is inherently intertwined, particularly as election day looms. Thus, any legal distinction between ads influencing election outcomes and ads influencing public debate is necessarily elusive. At the same time, if Congress cannot regulate something called "election ads" at all, then it becomes child's play for actors who are barred from contributing money directly to candidates to turn around and instead run election ads. WRTL addressed parts of the McCain-Feingold law, also addressed in McConnell, that banned and criminalized corporate and union "election ads." Corporations, it must be noted, include non-profit corporations, such as the AFL-CIO, Wisconsin Right to Life, the ACLU, the NRA, and others. For those concerned that direct corporate or union contributions to candidates risk "corruption," that same risk might be thought to be present when those actors instead spend large amounts to affect the outcome of elections.Continue reading "WRTL: A Constitutional Sea Change" »
Quick Preliminary Notes on Hein and Morse
11:14 AM | Marty Lederman | Comments (0)
1. Justices Scalia and Thomas would overrule Flast. Justice Thomas would overrule Tinker, too, and deny public school students any First Amendment rights.
2. Morse is a very limited holding -- essentially limited to the drug context. The Alito concurrence, joined by Kennedy, is controlling. He writes:
I join the opinion of the Court on the understanding that (a) it goes no further than hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as 'the wisdom of the war on drugs or of legalizing marijuana for medicinal use.'”The opinion of the Court does not endorse the broad argument advanced by petitioners and the United States that the First Amendment permits public school officials to censor any student speech that interferes with a school’s “educational mission.” See Brief for Petitioners 21; Brief for United States as Amicus Curiae 6. This argument can easily be manipulated in dangerous ways, and I would reject it before such abuse occurs.
Speech advocating illegal drug use poses a threat to student safety that is just as serious, if not always as immediately obvious. As we have recognized in the past and as the opinion of the Court today details, illegal drug use presents a grave and in many ways unique threat to the physical safety of students. I therefore conclude that the public schools may ban speech advocating illegal drug use. But I regard such regulation as standing at the far reaches of what the First Amendment permits. I join the opinion of the Court with the understanding that the opinion does not endorse any further extension.
Continue reading "Quick Preliminary Notes on Hein and Morse" »
Court decides endangered species, religion, student speech, campaign finance cases; four new grants
11:04 AM | Lyle Denniston | Comments (0)
UPDATE to 11:04 a.m.
Amid several 5-4 rulings on the merits, the Supreme Court on Monday granted four cases for review next Term, including a significant test case on the use of references to the O.J. Simpson not-guilty verdict to help persuade an all-white jury to impose a death sentence on a black defendant. Other granted cases include a test of state power to regulate commercial shipments of tobacco and other products harmful to children and a case involving states' authority to allow damage claims against makers of medical devices approved by federal authorities. In the fourth granted case, the Court indicated it will sort out a conflict among lower courts on the deductibility on federal tax returns of expenses for trusts and estates.
In the first of several rulings on the merits, the Court split 5-4 in deciding that a federal agency that is required by law to take a specific action under one federal law does not have to follow the conflicting mandate of the Endangered Species Act. The decision, written by Justice Samuel A. Alito, Jr., came in National Association of Home Builders v. Defenders of Wildlife (06-340) and a companion case.
In the second decision of the day, also written by Alito and again dividing the Court 5-4, the Justices ruled that taxpayers do not have standing to sue to challenge the White House program on federal aid to faith-based organizations. The Court did not overrule Flast v. Cohen, as two Justices in the majority urged it to do so. The case was Hein v. Freedom from Religion Foundation (06-157).
The third decision, written by Justice David H. Souter, found over two Justices' partial dissents that government employees carrying out their official duties and not for personal benefit are not subject to damage claims against them personally based on a lawsuit asserting that they violated the RICO anti-racketeering law or private property rights. The decision came in Wilkie v. Robbins (06-219).
The fourth ruling, written by Chief Justice John G. Roberts, Jr., over three full dissents and one partial dissent, declared that public school officials do not violate a student's free speech rights by punishing the student for words or actions that promote a drug message. The ruling in Morse v. Frederick (06-278) also should count as a 5-4 decision because Justice Stephen G. Breyer would have decided the case on qualified immunity grounds, and not reach the First Amendment issue.
The Court issued its fifth ruling of the day, concluding that a Wisconsin organization that opposes abortion had a First Amendment right to aid during election season campaign ads that named a candidate running for the Senate. Three of the five Justices in the majority urged the Court to overturn the part of a 2003 ruling that upheld the constitutionality of the federal law restricting such radio and TV ads close to elections. The Chief Justice's main opinion, joined fully by Justice Alito, said the case did not provide an occasion to revisit that ruling. Justice Souter recited at length from the bench for the four dissenters -- who were in the minority in four of the five rulings on Monday. The ruling came in Federal Election Commission v. Wisconsin Right to Life (06-969) and a companion case.
LiveBlog from the Court: 5 opinions, no schools cases
10:11 AM | Jason Harrow | Comments (4)
In this space, we'll give real-time details regarding what opinions are being issued today. Lyle will have further details below.
10:00: 4 grants on today's Orders list (to be posted). 06-179, 457, 1286, 10119. Orders can now be found here.
10:01: NAHB v. Defenders of Wildlife decided. Rev'd. Written by Alito. 5-4.
10:05: Alito still reciting from Defenders of Wildlife.
10:07: Hein decided. Written by Alito. 5-4.
10:12: Wilkie v. Robbins decided. Written by Souter. 7-2. Rev'd and remanded.
10:19: Morse decided. Written by 5-4 in part.
10:25: Election case decided. Written by the Chief. That's it - no schools cases.
10:35: Justice Souter is reading his dissent from the bench in the election case.
Today's Grants
10:09 AM | Amy Howe | Comments (0)
The Court granted cert. in four cases:
No. 06-179, Riegel v. Medtronic. You can read our earlier coverage of the case (in which cert. was granted notwithstanding the SG's recommendation that cert. be denied) here, here, here, and here.
No. 06-457, Rowe v. New Hampshire Motor Transport Ass'n. You can read our earlier coverage of the case here, here, and here.
No. 06-1286, Knight v. William L. Rudkin Testamentary Trust. Troy Cahill wrote about the case (here) for last week's edition of Conference Call (law.com subscription required).
No. 06-10119, Snyder v. Louisiana. Lyle had this post on the case on Saturday.
Pop Music Mystery of the Morning
09:20 AM | Marty Lederman | Comments (0)
Why did the Chief Justice and Justice Alito recuse themselves from the Court's decision to deny cert. today in No. 06-1389, Aisha v. Madonna, in which self-professed "indie singer/songwriter/prodcuter/director" Aisha has sued Madonna for, inter alia, wiretapping, harassment, grand theft larceny and criminal copyright infringement of released and unreleased copyrighted works (just for starters)?
Are they related to Ms. Ciccone? Are they afraid their kids might get upset if they take sides in this battle of, uh, musical titans? Does it have something to do with the fact that just about every corporation in the nation is named in the complaint?
Today at the Supreme Court: 6/25/07
09:09 AM | Jason Harrow | Comments (0)
The Court is scheduled to issue its final set of regular orders at 10 AM eastern and is also expected to release one or more opinions at that time. We will have coverage of both as soon as possible after they are made public.
Saturday, June 23, 2007
Batson and the "O.J. factor"
04:10 PM | Lyle Denniston | Comments (2)
For the second time in two years, the Supreme Court is pondering what to do about this scenario:
A black man is convicted of murder. His trial is before an all-white jury, composed that way in part because prosecutors struck all potential black jurors.
In the penalty phase of the trial, the defense counsel seeks to head off a death sentence by discussing "mitigating circumstances." When police arrived at the home of the convicted man some 12 hours after the murder, counsel said, the man "was curled up in a fetal position. He was suicidal. He kept saying 'They're coming to get me. They're coming to get me.'...Doors were being barricaded. The furniture was being used as a barricade...I'll ask you if that is not suggestive of some sort of disturbance" (apparently, meaning mental disturbance).
The prosecutor's rebuttal then includes the following:
"...it was 12 hours later when he called [police], huddled up, claiming that he was suicidal, barricaded himself in his house. That made me think of something. Made me think of another case, the most famous murder case in the last, in probably recorded history, that all of you all are aware of..."
At that point, the defense counsel objected. After a bench conference, the prosecutor continued: "The most famous murder case...happened in California very, very, very similar to this case. The perpetrator in that case claimed that he was going to kill himself as he drove in a Ford Bronco and kept the police off of him, and you know what, he got away with it. Ladies and gentlemen, is it outside the realm of possibility that that's not what that man [in this case] was thinking about when he called in and claimed that he was going to kill himself?"That is what the defense lawyer for Allen Snyder, on death row in Louisiana, has called "the O.J. card," suggesting that it was a calculated maneuver by the prosecutor to use O.J. Simpson's controversial acquittal for murder to get an all-white jury in Louisiana to give Snyder the death penalty.
Now, the Snyder case is back before the Supreme Court, with the prospect that the Court may act on his appeal as early as Monday. The case, Snyder v. Louisiana (06-10119), was considered by the Justices at their Conference on Thursday. It reached the Court in the context of a claim that the jury that convicted Snyder of the stabbing murder of his estranged wife's boyfriend was all-white because prosecutors intended it to be that way, and used their automatic ("peremptory") challenges to achieve that end. Once having such a jury assembled, the appeal argues, a prosecutor -- who had referred before trial to the case as his "O.J. Simpson case" -- knew the jury was open to a racial plea for death.
The jury process, the appeal contends, violated the Supreme Court's 1986 ruling in Batson v. Kentucky, barring the use of race-based peremptory challenges in jury selection. It also asserts that the Louisiana Supreme Court did not follow the Supreme Court's post-Batson decision, Miller-El v. Dretke in 2005, mandating a full analysis of the circumstances of jury selection to detect Batson violations.
But the case also raises, implicitly, the larger question of whether prosecutors' references to the O.J. Simpson case, in trials involving charges against blacks, are a form of jury contamination that puts a vivid emphasis on race in jury selection and in other phases of the trial and sentencing.
State prosecutors, though, have urged the Supreme Court to bypass the case, saying that Snyder's lawyer did not preserve many of the claims about a Batson violation, and did not show that prosecutors in the case were exploiting the race issue with the jury. The state court, Louisiana's attorneys contend, faithfully applied Batson and Miller-El.
The case was before the Supreme Court in the 2004-5 Term (docket 04-6530). On June 27, 2005, two weeks after the Court had decided Miller-El , it vacated a prior (2004) ruling against Snyder by the Louisiana Supreme Court and told the state court to apply the Miller-El ruling.
Continue reading "Batson and the "O.J. factor"" »
A Lingering Thought On Tellabs
10:08 AM | David Stras | Comments (1)
As I read the opinion, I find myself favoring a position that was not endorsed by any of the nine Justices. It seems to me that the the Court got it right with respect to what a "strong inference" requires--that is, that "the inference of scienter must be more than merely plausible or reasonable--it must be cogent and at least compelling as any opposing inference of nonfraudulent intent." After all, Congress used the word "strong" and not "stronger" or "strongest" in section 21D(b)(2). It is indeed comparative, as both Scalia and Ginsburg concede, but the most natural reading of the statute, at least to me, seems to be the one adopted by the majority.
However, I think that Justice Alito raises a very interesting point in his opinion concurring in the judgment. The way the statute reads, it seems that the strong inference can only be created by facts and allegations that were stated in the complaint with particularity. As relevant here, section 21D(b)(2) requires that a plaintiff "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." In other words, the facts that give rise to the "strong inference" must also be those facts that were pled with particularity.
Indeed, section 21D(b)(2) seems to serve two related purposes: first, that the facts pled are legally sufficient to get the plaintiff to the next stage under the heightened pleading standard; and second, that the defendant has notice of the facts giving rise to the strong inference. It seems to me that, to the extent a court can consider facts and allegations pled without particularity in determining whether the "strong inference" standard has been met, it does not give the defendant adequate notice of those facts in advance of discovery. In other words, it seems that the majority opinion gives due regard to the first purpose of section 21D(b)(2), but ignores the second purpose when, as Justice Alito argues, it permits the courts to consider "holistically" all allegations and facts, including those pled without particularity, in determining whether the "strong inference" of scienter standard has been met. I will concede, however, that it is possible that the Court did not truly engage Alito on this issue as the majority opinion never expressly says (but does hint) that non-particularized allegations may be considered.
These are just some initial thoughts on the case, and I am by no means committed to this position. But I did find Justice Alito's opinion particularly interesting and there does not seem to be much commentary in the blogosphere on the Tellabs case. I certainly welcome your comments on my post as securities regulation is not my area of expertise.
UPDATE (6/23/07): I have done some more thinking on the case, and it seems to me that the differing approaches between the dissenting, concurring, and majority approaches to the definition of "strong inference" is not all that important as a practical matter. In fact, it would only make a difference when the competing inferences are in equipose, which would not be all that often. The much more important question, and the one addressed by Justice Alito in detail, is whether non-particularized allegations can be included in a court's assessment of whether a "strong inference" in fact exists. Thus, to the extent the Court answers that question, it is surprising that only Justice Alito spends any time engaging the majority on that issue.
Friday, June 22, 2007
What About Non-FSG Sentences?
04:46 PM | Jason Harrow | Comments (0)
The following note is by Susan R. Klein, the Baker & Botts Professor in Law at the University of Texas.
Justice Breyer may have won the war, but we won't know until the Court takes a non-Guidelines case. He has already won the battle fought with Justice Scalia in the Booker majority remedial opinion ("Booker II"). Justice Scalia argued that reasonableness review on appeal would mean either that any sentence within the statutory minimum and maximum is acceptable, or that a stricter appellate review process would transforms the new advisory guidelines back into mandatory ones. Justice Scalia renews this argument in his Rita concurrence, and surely he is correct as a matter of strict logic. In vintage Scalia-style, he claims to accept the Booker remedial majority opinion as precedent, and then proceeds to prove that Booker II is nonsensical in its application. However, Justice Breyer, in HIS usual fashion (particularly where his beloved guidelines are concerned), crafts a compromise that appears to allow both the 6A right articulated in Booker I and meaningful federal sentencing guidelines to coexist (though in fact the 6A right shrinks as appellate review grows). He takes us right back to the pre-Feeley amendment days, making FSG extremely important as a matter of practice, but permitting sentencing judges to grant departures for usual cases with only abuse of discretion review.
So long as appellate reasonableness review remains essentially review for conformity with the FSG, DOJ continues to hold most of the cards. We won't know the true scope of appellate review until the Court accepts certiorari on a case where the sentencing judge imposes a non-guidelines sentence (especially one lower than the FSG range). And yes, the DOJ does appeal some of these (Ranum, for example). In the unlikely event that the Court accepts Justice Stevens concurrence in Rita and applies the same very lenient reasonableness or abuse of discretion standard to non-guideline sentences, district judges may suddenly feel free to sentence outside of the guidelines, particularly based upon the many factors in 3553(a) that the Commissioners excised from the Manual. Such a move would make the guidelines more advisory and grant a few more cards to criminal defendants. In the much more likely event that a presumption of reasonability will be held in some future case to apply ONLY to sentences with the guideline range, Booker I becomes overruled in practice and DOJ wins. While presently state legislators seems more likely to send guideline facts to the jury in the wake of Apprendi, they may take a lesson from Rita and make their guidelines "advisory" as well.
Final push for rehearing for detainees
03:07 PM | Lyle Denniston | Comments (0)
Lawyers for Guantanamo Bay detainees have made a final effort to persuade the Supreme Court to preserve their chance to pursue broad challenges to their detention at the military prison camp in Cuba, leveling a sharp new attack on the military panels that determine whether the detainees must remain confined as "enemy combatants." The final pleas on the pending rehearing requests were filed Thursday and Friday. Included with the new filings at the Court is a statement given under oath, from inside the Pentagon combatant status regime, that describes defects and missteps and argues that higher officials have regularly sought to influence the process to assure that detainees stay at Guantanamo.
The Supreme Court is expected to act promptly, perhaps within the next week, on pleas by two groups of Guantanamo prisoners to reconsider the Court's April 2 denial of review of their challenges to the court-stripping provisions of the Military Commissions Act of 2006. The cases are Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196). The Justice Department last Tuesday urged the Court to act quickly to deny the requests, so that lower courts may move ahead on pending cases in which detainees are seeking to overturn military findings that they were "enemy combatants" who cannot be released.
When the Supreme Court denied review in early April, two of the Justices suggested that the reason was to allow the D.C. Circuit Court a chance to be the first to act on the claims against the so-called "Combatant Status Review Tribunals", or CSRTs.
All along, however, the detainees' lawyers have been arguing that the limited review that Congress has provided of the CSRTs' work under the Detainee Treatment Act of 2005 is far from being an adequate substitute for full-scale habeas challenges. Thus, they contend, Congress did not have the authority to wipe out habeas and leave them with much less in judicial review.
It was in advancing this last argument, as a reason for the Court to reconsider its denial of their appeals seeking to revive habeas, that the detainees put before the Court a signed declaration by a Newport Beach, Calif., lawyer who also is an Army Reserve lieutenant colonel. The attorney, Stephen Abraham, has sat on one CSRT, and served on active duty for almost six months in the Pentagon office that runs the CSRT operation -- the Office for the Administrative Review of the Detention of Enemy Combatants.
Attorneys in the Al Odah case told the Court that "it is now clear that, not only is the [judicial] review provided by the DTA inadequate, but also the underlying CSRT process was an irremediable sham." They said that Abraham has "come forward" to answer a defense of the CSRT process that a high-level official, retired Rear Adm. James M. McGarrah, had made in a recent government filing in the D.C. Circuit.
The Abraham declaration, detainees' counsel said, "avers that, in every phase, the CSRT process was infected with command influence and an illusion....No [judicial] review under the DTA can cure such a sham process. No remand by a court for such a process can be an adequate substitute for independent review by a habeas court. Therefore, no exhaustion of the DTA remedy should be required before certiorari is granted in this case."
The filing in the Al Odah case can be found here. The filing in the Boumediene case is here
The Abraham declaration also was filed with the D.C. Circuit Court, in reply to Admiral McGarrah's earlier filing describing how the Pentagon gathers information for the CSRTs and laying out what information is, or is not, allowed to be put before those panels. The Circuit Court is considering what procedures it will use as it hears detainees' cases against CSRT findings of combatant status.
Continue reading "Final push for rehearing for detainees" »
Updated StatPack
12:58 PM | Jason Harrow | Comments (0)
The new edition of the StatPack can now be found here. There are likely 8 opinions remaining this Term; all are expected to be issued next week.
Rita: More for District Courts?
12:23 PM | Jason Harrow | Comments (0)
The following post is by Carissa Byrne Hessick, Associate Professor of Law at Arizona State University Sandra Day O'Connor College of Law and F. Andrew Hessick, Visiting Associate Professor of Law at Arizona State University Sandra Day O'Connor College of Law.
Although the Court granted certiorari in Rita ostensibly to provide guidance for appellate review, the opinion in some respects appears to give more guidance to district courts than it does to the courts of appeals.
As Doug Berman noted, Rita does not say that the circuits have to adopt the presumption of reasonableness. Indeed, the Court appears to have been careful in its phrasing, stating that the question was whether a court of appeals “may apply a presumption of reasonableness” to a district court sentence that reflects a proper application of the Sentencing Guidelines and that the presumption is “nonbinding” --- which seems to mean that a circuit that has adopted the presumption need not follow it.
This seems a little odd. Certiorari is usually granted to resolve differences in the circuits; but Rita appears to endorse differing treatment in different circuits. The differing treatment also seems at odds with the goal of uniformity under §3553(a). Basically everyone agrees that the presumption will result in more guidelines sentences in the district courts located in circuits that have adopted the presumption (Souter’s dissent says this is bad; Breyer’s majority says that it is good). By contrast, guideline sentences will be less common in those circuits without the presumption. It seems entirely possible that sentences for similarly situated individuals may vary depending on whether the sentencing court is in a presumption circuit.
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Rita and the State of the Sixth Amendment
12:09 PM | Jason Harrow | Comments (0)
The following entry is by Jeff Fisher of Stanford Law School, who also appeared on the NACDL amicus brief supporting Rita and Claiborne.
I don't have much to add to the predictive debate over whether district courts will opt for guideline sentences more or less often after Rita than they did before. On the one hand, some courts may see Rita as providing something of a safe harbor. On the other hand, some may notice that the Court takes pains to emphasize that waters should be calm outside the harbor as well, and thus may be emboldened to issue more non-guidelines sentences. Time will tell.
But I do want to take issue, respectfully, with those who suggest that Justice Breyer is winning the war over the Sixth Amendment right to jury trial. For starters, that certainly is not true in the states, where the majority of criminal defendants in this country are sentenced. Almost all of the states forced to react to the Apprendi line of cases have decided to engraft the jury trial right onto their existing structured sentencing systems.
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Thursday, June 21, 2007
Today's Coverage
11:17 PM | Amy Howe | Comments (0)
Jason has this post with links to today's opinions.
Lyle has this post summarizing today's opinions in Rita, TSSAA, and Tellabs; this post analyzing TSSAA in more detail; and this analysis of Rita.
Carolyn Hadgikosti has more details regarding today's opinion in Tellabs here.
Gretchen has this post (which will be updated throughout the day) collecting links to news and blog coverage of today's opinions and this post collecting links to other Court-related coverage.
And Doug Berman of the Sentencing Law and Policy Blog kicks off our discussion of the opinion in Rita with this post. Mark Osler and David Stras add their thoughts on the decision here and here, while Kate Stith has these thoughts.
More on Today's Opinion in Tellabs, Inc. v. Makor Issues and Rights
07:55 PM | Amy Howe | Comments (0)
This entry was authored by Carolyn Hadgikosti, a summer associate at Akin Gump and a student at the University of Michigan Law School.
In 1995, Congress enacted the Private Securities Litigation Reform Act (“PSLRA”), which was intended to curb abusive private securities fraud suits. Reflecting Congress’s belief that traditional notice pleadings failed to prevent investors from filing bringing frivolous suits, the Act imposed a heightened pleading standard -- requiring plaintiffs to “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” Today, by a vote of eight to one, the Supreme Court attempted to clarify what Congress meant by “strong inference.” In Tellabs v. Makor Issues and Rights, the Court – in an opinion by Justice Ginsburg – held that to qualify as “strong,” an inference of wrongful intent must be "more than merely plausible or reasonable -- it must be cogent and at least as compelling as any opposing inference" suggesting lack of intent to defraud.
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Rita, Deja Vu, and The Real Sentencing Law
05:49 PM | guest | Comments (4)
Kate Stith, here, at Yale Law School.
(This comment is primarily directed at readers who have read the opinions and are aware of the various split, concurring, and dissenting views.)
In Rita, Breyer, J., explains for the fifth time in 25 years how federal sentencing is supposed to work, and each time his instructions to the Courts of Appeals are the same: Affirm Guidelines sentences, but go easy on sentencing judges who state a good reason for a non-Guideline sentence. I predict that most Courts of Appeals will continue to hear the first part of the message but continue to appear to ignore the second part, as in the past. The circuit case law will continue to seem very pro-Guidelines, but in truth we won’t know in the future better than we know now the extent to which sentencing judges are “applying” the Guidelines.
I. DÉJÀ VU, DÉJÀ VUFives times we have witnessed the same message to the Court of Appeals, in (1) the Sentencing Reform Act, (2) Chapter 1 of the original Guidelines, (3) the Koon decision (which came down as a Kennedy, J, opinion), (4) Booker II, and now (5) Rita: Where possible, defer to the Commission and to the District Court (affirm Guidelines sentences); where that’s not possible, defer to the sentencing judge who gives a good reason for a different sentence (affirm reasonable non-Guidelines sentences). The “presumption” issue in Rita has always seemed to me to be a straw man; even those circuits that denied they presume Guidelines sentences are reasonable virtually always have affirmed these sentences. While Rita does not require use of the word “presumption,” the decision effectively reads a structural presumption into the Sentencing Reform Act, finding no “serious general conflict between 3553(a) and the Guidelines, for the purposes of appellate review.”
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Another View of Rita
05:14 PM | David Stras | Comments (3) | TrackBack (0)
I agree with Professor Berman that Rita has something for everybody and that the Court did not speak very clearly in the case. Indeed, the cacophony of voices in the four opinions make it very difficult to determine where the future of the Sixth Amendment lies. What makes it so difficult, as pointed out by Lyle in his post, is that Justice Stevens has written a concurring opinion that does not emphasize the same points as the Court's opinion.
But I respectfully disagree with Lyle's point that "the Stevens-Ginsburg contribution is highly important, and in some sense might well be controlling." A lower court that follows the concurring opinion might well be summarily reversed down the road because the concurring opinion would only be controlling if it were styled as an opinion "concurring in the judgment." By concurring without reservation, Ginsburg and Stevens unqualifiedly joined the entirety of Breyer's majority opinion. It is true that the Stevens/Ginsburg opinion might be a prediction of things to come with respect to the Sixth Amendment, but lower courts would be mistaken to read too much into it. I will say as an aside, however, that the Stevens/Ginsburg opinion reads as if it was originally an opinion concurring in the judgment, and that those two were persuaded to join the Court by another member of the majority (perhaps Chief Justice Roberts) so as to avoid interpretive problems for lower courts down the road under the Marks rule.
When the Stevens/Ginsburg opinion is removed from the equation, the Sixth Amendment picture becomes a bit clearer. In this case, I think it is correct at this stage to say that Breyer has perhaps won the war over the Sixth Amendment because Rita moves us closer to a Guidelines sentencing regime. I think Breyer may sum it up the best: "Rita may be correct that the presumption will encourage sentencing judges to impose Guidelines sentences." There may be the occasional case where district judges deviate from the Guidelines range, as they do now, but the clear incentive created by the majority opinion is to stay within the Guidelines so that a sentence can be deemed "presumptively reasonable." Although the Guidelines do not quite create a safe harbor, at least as I read the opinion, there is a strong incentive to follow the guidelines, as I will explain further below. Significantly, the presumption even applies, according to Justice Breyer, if the judge has to find certain facts that have not been considered by the jury. Justice Souter is therefore correct to say that the potential implications of Rita include "open[ing] the door to undermining Apprendi itself" and thus that "it seems fair to ask just what has been accomplished in real terms by all the judicial labor imposed by Apprendi and its associated cases."
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Rita: A True Friend of the Court(s)
05:00 PM | guest | Comments (0)
The following post is from Professor Michael O’Hear, Marquette University Law School.
The real winner in Rita is the federal judiciary. Blakely and Booker created great consternation among federal judges by simultaneously casting doubt on the familiar practices of Guidelines sentencing and failing to say much about what exactly would pass constitutional and statutory muster. Lower courts feared the prospect of sentencing and resentencing thousands of cases as the law shifted and was clarified over time. Moreover, Booker might be read in ways that would create a lot more work for sentencing and appellate judges: in addition to all of the other Guidelines calculations, the sentencing process might also require a particularized consideration of another dozen or so factors under 3553(a).
But not to worry. We learn in Rita—as earlier suggested by a long line of post-Booker circuit court opinions—that sentencing judges effectively have a safe harbor in the Guidelines. After doing the hard work of calculating the Guidelines sentence, the sentencing judge can simply rubber stamp the result as “not inappropriate.” And appellate court judges have it even easier in these cases. Their rubber stamp will read, “Affirmed based on the presumption of reasonableness.”
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Round-Up: Other News
04:14 PM | Gretchen Sund | Comments (0)
In today's New York Times, Linda Greenhouse argues here that Chief Justice Roberts has already begun overturning precedent in her latest "Supreme Court Memo" column.
David G. Savage has this article in the LA Times on the Court's pro-business decisions, reporting that "with a week to go in their term, the justices have handed down a dozen rulings that sharply limit the damages that can be won in lawsuits or make it harder to sue corporations."
At Concurring Opinions, Steve Vladek has this post discussing the Iraqi detention cases and the importance of Munaf v. Geren.
Eugene Volokh of Volokh Conspiracy weighs in here on Justice Kennedy's perfect record in 5-4 decisions this Term.
Rita and Guidelines
03:57 PM | Gretchen Sund | Comments (0)
This commentary is by Mark W. Osler, a Professor of Law at Baylor Law School currently working on an amicus brief in Kimbrough.
While Doug Berman has offered an excellent overview of the Rita decision, I’d like to address just one somewhat strange but important conclusion drawn by Justice Breyer in his majority opinion-- that the sentencing guidelines already incorporate the sentencing factors listed in 18 U.S.C. § 3553(a). Specifically, he concludes that “the Guidelines, insofar as practicable, reflect a rough approximation of sentences that might achieve § 3553(a)’s objectives.”
What this ignores is the sheer number and diversity of directives that the Sentencing Commission must follow in drawing up the Guidelines. These directives extend far beyond what is required by 18 U.S.C. § 3553(a) itself, and includes instructions to consider ideas as vague as “fairness” and as narrow as the provision of restitution. Many of the directives (as Breyer recognizes) are in conflict with one another, which is perhaps inevitable given their sheer number.
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Analysis: A difference in emphasis on sentencing
03:09 PM | Lyle Denniston | Comments (0)
Analysis
Federal trial judges, prosecutors and defense lawyers trying to figure out where criminal sentencing in federal cases now stands, in the wake of Rita v. U.S. (06-5754) perhaps should pay the most attention to the eight pages written on Thursday by Justice John Paul Stevens, rather than to the 21-page "Opinion of the Court" authored by Justice Stephen G. Breyer. While Stevens (along with Justice Ruth Bader Ginsburg) does explicitly join the Breyer opinion, the separate opinion speaking for those two appears to emphasize points that are not quite embraced by Breyer.
As a matter of numbers, the Breyer opinion has six votes, but the votes of Stevens and Ginsburg were necessary to make it a majority, in view of the actual dissent of Justice David H. Souter and the near-dissent of Justice Antonin Scalia, joined by Justice Clarence Thomas. Breyer has undoubted support on all points and nuances from Chief Justice John G. Roberts, Jr., and Justices Anthony M. Kennedy and Samuel A. Alito, Jr., none of whom wrote separately. Thus, the Stevens-Ginsburg contribution is highly important, and in some sense might well be controlling.
While the Breyer opinion is content to lay out the principal holding that federal sentences that a trial judge imposes within the range set by the U.S. Sentencing Guidelines may be presumed to be reasonable when challenged on appeal, but with that presumption not binding, Stevens goes noticeably further. "Our opinion today," he wrote, "makes clear...that the rebuttability of the presumption is real. It should also be clear that appellate courts must review sentences individually and deferentially whether they are inside the Guideline range (and thus potentially subject to a formal 'presumption' of reasonableness) or outside that range. Given the clarity of our holding, I trust that those judges who had treated the Guidelines as virtually mandatory...will now recognize that the Guidelines are truly advisory."
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