SCOTUSblog

Friday Round-up

2009-11-20T19:20:39Z

At the WSJ Law Blog this morning, Ashby Jones previews McDonald v. City of Chicago, in which the Court will examine the constitutionality of a Chicago gun-control ordinance and, more generally, the Second Amendment’s applicability to the states. The petitioners, in a brief filed this week, rely on the Fourteenth Amendment’s Privileges or Immunities clause to argue that the right to bear arms is a “privilege” that the states cannot abridge; however, Jones notes that the petitioners’ originalist reading could “open the door advocating for the existence of other rights that have yet to be acknowledged by the Court.”

The Philadelphia Inquirer’s Samuel Buell discusses Supreme Court precedent for the possible use of an “outrageous government conduct” defense by accused 9/11 mastermind Khalid Sheikh Mohammed and his alleged co-conspirators. The defense, which dates back to a 1952 opinion by Justice Felix Frankfurter, has been used in the past to dismiss prosecutions, and Buell speculates that if Mohammed asserts a similar defense, a federal court could only avoid dismissing the prosecution against him “by eliminating the outrageous-misconduct defense – that is, ruling that it no longer exists.” Thus, suggests Buell, Mohammed’s case seems destined for the Court – perhaps even before he can be tried.

Tony Mauro, writing for the National Law Journal (via Law.com), looks back at last month’s argument in South Carolina v. North Carolina, highlighting a comment made by Chief Justice Roberts on the distinction – or lack thereof – between law clerks and the “special masters” appointed to make recommendations in original jurisdiction cases.

The controversy over Justice Kennedy’s speech at a Manhattan prep school continues. At the WSJ Law Blog, Ashby Jones reports that Justice Kennedy’s office made a similar request to pre-approve any quotes from the justice’s October speech at George Washington University. At The Volokh Conspiracy, Eugene Volokh discusses Jess Bravin’s interview with the justice and argues that the allegations of hypocrisy that have been leveled against Justice Kennedy are misguided.

Will the Court Take On Judicial Takings?: Stop the Beach Renourishment v. Florida Department of Environmental Protection, Argument Preview

2009-11-19T20:28:17Z

Below, Elisabeth Oppenheimer of Stanford Law School previews Stop the Beach Renourishment v. Florida Department of Environmental Protection (08-1151), which will be heard by the Supreme Court on Wednesday, December 2. Check the Stop the Beach Renourishment SCOTUSwiki page for additional updates.

On Wednesday, December 2, the Court will hear oral argument in No. 08-1151, Stop the Beach Renourishment v. Florida Department of Environmental Protection. The case presents the Court with an opportunity to develop new law on a question that has long attracted attention from scholars and, occasionally, the justices themselves: whether a judicial decision can ever constitute a government taking. Justice Potter Stewart first broached this possibility in 1967 in his concurring opinion in Hughes v. Washington, a case involving a state supreme court decision that had the effect of depriving the petitioner of property. In Justice Stewart’s view, if the state court property decision “arguably conform[ed] to reasonable expectations,” the Supreme Court could not review it. But, he said, if the decision was “a sudden change in state law, unpredictable in terms of the relevant precedents,” a federal takings question was presented.

Nearly three decades later, Justices Scalia and O’Connor picked up the judicial takings theme in a dissent from the denial of certiorari in Stevens v. City of Cannon Beach (1994). Analogizing to state court pretextual rulings that violate Due Process rights, they concluded that a federal takings question would be presented if a state court changed an owner’s property rights by “invoking nonexistent rules of state substantive law.” Since then, the Court has denied some fifteen cert. petitions on the judicial takings issue. That it granted certiorari now suggests that the Court may be ready to develop the theory in Stop the Beach, a challenge to a Florida Supreme Court decision that the petitioners – coastal property owners – claim deprived them of certain common-law property rights. To reach the judicial takings issue, however, the justices will have to immerse themselves in the details of the Florida common-law claim – which, the United States has argued in an amicus brief, was decided correctly below. Thus, the oral argument may well focus on state, rather than constitutional, law.

Some background is necessary in order to understand the parties’ competing claims. In most coastal states, ownership of beachfront property is split between the state and private parties. The dividing line is the mean high water line (MHWL), a dynamic boundary that fluctuates as the beach grows or erodes. Traditionally, the state owns everything seaward of the MHWL. Florida’s common law reflected these principles, but was partially replaced in 1965 and 1970, when the Florida legislature enacted the Beach and Shore Preservation Act. The statute, a response to coastline damage caused by hurricanes, authorized the state to take action to rebuild beaches. The critical point for this case is that the first step in rebuilding a beach is to fix an erosion control line (ECL), which becomes the new, and permanent, boundary between the private owners’ land and the state’s land. Often, the ECL is set at the MHWL, so the private owners’ holdings are initially unchanged; however, as the MHWL varies over time, the landowners’ rights cease to vary with it. Under the common law, owners would have gained land if the sand had “accreted” and the beach had expanded; however, under the statutory scheme, their land stops at the ECL regardless of accretion. The statute provides that private owners retain most common-law “littoral” (beachfront) rights, including the right of access to the water.

Stop the Beach Renourishment, Inc. includes owners of 5 of the 448 parcels affected by a renourishment project. The owners have two primary objections to the statute. First, they complain about losing the right to gain land by accretion. Second, they argue that under Florida common law, the only landowners who can possess littoral rights are those with a “right of contact” – that is, those whose property actually touches the MHWL. If the boundary of their land is the ECL rather than the MHWL, they would lose all of their common-law littoral rights if the MHWL shifts seaward. Although the statute specifies that those rights are preserved, the landowners argue that a mere statutory guarantee is no substitute for constitutionally protected common-law littoral rights.

The Florida intermediate appellate court agreed with the landowners that the statute constituted a taking under state constitutional law, but the Florida Supreme Court reversed. It rejected the “right of contact” theory, holding that under Florida common law, contact rights are only a species of water access rights, which the statute fully preserves. Moreover, the “right of accretion” is simply a convenient mechanism for allocating land near a dynamic boundary, not an independent right. Because none of the policy rationales underlying the “right of accretion” were present, and because of the importance of protecting beaches, no constitutional problems existed. Two justices filed dissenting opinions, in which they accused the majority of twisting clear common law solely to protect a favored environmental program.

In the Supreme Court, the briefing on the judicial takings theory itself has been limited. Petitioner and its amici cite early substantive due process cases and Hughes, but there is little other relevant caselaw. The respondents – the Florida Department of Environmental Protection, the Board of Trustees of the Internal Improvement Trust Fund, Walton County, and the City of Destin – and their amici, which include both Florida and the United States, do not argue that judicial decisions can never effect takings. But, citing Justice Stewart’s standard, they contend that there was no taking in this case because the Florida Supreme Court’s decision was not a departure from prior law. Both parties end up deep in the weeds of Florida common law, arguing over accretion and the related doctrine of avulsion. The respondents also argue that petitioner’s standard federal takings argument and procedural due process claim have been waived.

Should the court find that a judicial taking occurred, several issues will need to be addressed. First, there’s the standard of review. Second, there’s the issue of remedy: a taking is only unconstitutional if there is no compensation, but courts have no funds for compensation. Finally, there’s the issue of which courts can actually review judicial takings claim. The Rooker-Feldman doctrine suggests that lower federal courts cannot. Thus, the justices may create a claim in this case that only they can adjudicate.

Academic Round-up

2009-11-20T02:41:33Z

For those that use empirical data to study the Supreme Court, the new Supreme Court Database is now live at supremecourtdatabase.org. The biggest advantage to the new version of the Database is that it is now more user-friendly and accessible to those who study the Court, but may not have empirical background or training. I have not made use of the new online version of the Database yet, but I am told that it is quite remarkable. Right now, the Database has case and justice-centered data for the period from 1953-2008, but Andrew Martin (one of the lead investigators on the project) tells me that the investigators have already begun to code data from the Court’s first decision in 1792 and the goal is to have the backdating completed within the next four to five years. Unlike prior versions, the new Database also has a tutorial feature, see here, permitting those who have never used it to experiment with the data. From all accounts, this will be an excellent resource for media, scholars, and the general public in the years to come. For earlier coverage of the database, see here.

Thank you to Lyle Denniston for pointing me to a new article by Stefanie Lepore entitled, “The Development of the Supreme Court Practice of Calling for the Views of the Solicitor General,” see here. In this article, the author traces the history of the Solicitor General’s involvement in the certiorari process, which really began in the late 1950s and early 1960s due in part to the personal relationships between two SGs (Sobeloff and Rankin) and the Justices serving on the Court during the period. Most of our readers are undoubtedly familiar with the CVSG process, but this is the first article that I have read that actually traces the history of the device to its origins. I have previously highlighted a number of empirical articles that show the importance of the Solicitor General in persuading the Court to grant cases involving the United States, in making recommendations on other certiorari petitions pending before the Court, and even in persuading the Court to adopt a particular position at the merits stage, but this piece really provides some important historical context for those other articles.

Petitions to Watch | Conference of 11.24.09

2009-11-20T21:35:15Z

This edition of “Petitions to Watch” features cases up for consideration at the Justices’ next private conference on Tuesday, November 24. As always, it lists the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted. Links to all previous editions are available in our SCOTUSwiki archive.

Docket: 08-1392
Title: Massis v. Holder
Issues: (1) Whether the Fourth Circuit erred in concluding that it lacked jurisdiction to entertain a legal challenge to an alien’s deportation on the ground that the alien had not raised that issue before the Board of Immigration Appeals and therefore failed to exhaust administrative remedies, as required by 8 U.S.C. 1252(d)(1). (2) Whether the Fifth Amendment affords an alien a right to relief based on the ineffective assistance of privately retained counsel during immigration proceedings.

Docket: 08-1494
Title: Arguelles-Olivares v. Holder
Issues: (1) Whether a conviction for a felony tax offense other than tax evasion qualifies as an aggravated felony under 8 U.S.C. 1101(a)(43)(M)(i), where the offense involves fraud or deceit in which the loss to victims exceeds $1o,ooo. (2) Whether a conviction for filing a false tax return qualifies as an aggravated felony under the same provision, when petitioner did not dispute a finding in the pre-sentence investigation report that petitioner owed additional taxes during the year in which the false tax return was filed.

Docket: 09-26
Title: Hertz v. United States
Issue: Whether petitioner’s claim under the Federal Tort Claims Act accrued on the date that her husband was killed in a plane crash, or on the date that petitioner learned that negligence on the part of federal employees might have played a role in the accident.

Docket: 09-106
Title: Pedernera v. Holder
Issue: Whether the Government must comply with its obligation to serve
notice of the final order of removal before the 30-day period to seek review of that order begins to run under 8 U.S.C. § 1252(b)(1).

Opinion below: the 11th Circuit’s order is unreported.
Petition for certiorari
Brief in opposition
Petitioner’s reply

Docket: 09-273
Title: Thaler v. Haynes
Issues: (1) Whether a new trial is required solely because the trial judge observed the prosecutor’s unrebutted explanation for a juror strike, but did not also observe voir dire firsthand? (2) Was this purported right to a new trial “clearly established” at the time of trial in 1999, as required under the Antiterrorism and Effective Death Penalty Act?; and does this right prevent federal courts from applying the presumption of correctness to the state court finding that the peremptory strike was not racially motivated, as required under the AEDPA?

Docket: 09-297
Title: Ford Motor Co. v. Buell-Wilson
Issue: Whether state law as applied deprives defendants of fair notice if it permits the imposition of punitive damages for conduct that reasonable persons could have concluded was lawful.

Docket: 09-338
Title: Renico v. Lett
Issue: Whether the Michigan Supreme Court erred in denying habeas relief on double jeopardy grounds when the state trial court declared a mistrial after the foreperson said that the jury was not going to be able to reach a verdict.

Docket: 09-376
Title: Pitkins v. Hummel (a.k.a. Rosemeyer v. Hummel)
Issue: Did the Third Circuit properly apply the Antiterrorism and Effective Death Penalty Act (AEDPA) when it refused to defer to the state appellate court’s rejection of a habeas petitioner’s claim?

Opinion below (3d Circuit)
Petition for certiorari

Note: The brief in opposition is coming soon.

Case(s) in which the Solicitor General has recently filed a brief for the United States, as directed by the Court:

Docket: 08-1191
Title: Morrison v. National Australia Bank
Issue: Whether the judicially implied private right of action under Section 10(b) of the Securities and Exchange Act of 1934 should, in the absence of any expression of congressional intent, be extended to permit fraud-on-the-market claims by a class of foreign investors who purchased, on a foreign securities exchange, foreign stock issued by a foreign company.

Case(s) involving lawyers from Akin Gump or Howe & Russell (listed without regard to likelihood of being granted):

Docket: 09-102
Title: Virginia v. Rudolph
Issue: Did the Supreme Court of Virginia err when, in conflict with the decisions of other courts, it invalidated a Terry stop by an officer who observed suspicious conduct in an area plagued by crime?

Opinion below (Virginia Supreme Court)
Petition for certiorari
Brief in opposition
Petitioner’s reply
Amicus Brief of the Virginia Assoc. of Commonwealth’s Attorneys, et al.

Thursday Round-Up

2009-11-19T15:05:17Z

Linda Greenhouse has an article in the Charleston Law Review’s Supreme Court Preview issue (starting at page 37) in which she assesses Justice Breyer’s jurisprudence on the Court, at the presumed midpoint of his tenure there. Greenhouse writes that Breyer is the “quintessential Enlightenment Supreme Court Justice,” someone who “believes in evidence and in expertise and in the power of both facts and experts to persuade.”

In an essay for the Yale Law Journal Online, Aaron Zelinsky traces the history of the judge-umpire analogy, which was originally aimed at trial court judges and was meant to be rejected because of the umpire’s passivity. The essay argues that “the appropriate analog for a Justice of the Supreme Court is not an umpire, but the Commissioner of Major League Baseball.”

Debate and commentary continue over the petitioners’ brief in McDonald v. Chicago, the Second Amendment incorporation case. The Volokh Conspiracy has three new posts: Orin Kerr speculates that there is only one vote on the Court to overturn The Slaughter-House Cases of 1873 (Justice Thomas); David Bernstein outlines how he would argue the issue to convince other Justices to overturn; and Randy Barnett questions Kerr’s predicted vote count. Sentencing Law and Policy summarizes and adds to the Volokh exchanges.

In an interview with Jess Bravin of the Wall Street Journal, Justice Kennedy muses on teaching law and recommends that President Obama read The Best and the Brightest, David Halberstam’s account of the Vietnam War. Bravin also reports that Justice Kennedy’s office requested to pre-approve student press reports following an October 15 lecture at George Washington University, much like it did with student journalists at The Dalton School three weeks ago. Justice Kennedy attributes the requests to a new secretary who misunderstood his policy on student journalists.

The Christian Science Monitor covers the denial of cert. in ACLU of Florida v. Miami-Dade County School Board, which Lyle discussed on Monday. The case stems from the Miami school board’s decision to remove from the county schools’ libraries a book depicting life in Cuba.

In an article called “Don’t Poke Scalia” at The Jury Expert, Tara Trask and Ryan Malphurs offer advice for trial lawyers gleaned from observing nearly sixty oral arguments at the Supreme Court.

Ed Whelan has posted two more installments of his review of Joan Biskupic’s new biography of Justice Scalia at National Review Online’s Bench Memos blog. The first two installments were covered in yesterday’s Round-Up.

Finally, the BLT announces the launch of a new website intended “to help the press and public identify important federal appeals court rulings and cases.” Created by the American Bar Association’s Standing Committee on Federal Judicial Improvements, the site currently covers only the Third, Fifth, and Ninth Circuits, with plans to expand to the other circuits in the coming months.

ACLU seeks to salvage FOIA ruling

2009-11-18T20:42:38Z

The American Civil Liberties Union on Wednesday urged the Supreme Court to leave undisturbed a lower court ruling that limits the government’s power to keep secret photos or documents that reveal official wrongdoing. Thus, the ACLU argued in a new brief, the Court should deny a Pentagon request to vacate that lower court opinion.

The case is Defense Department v. ACLU (09-160). It involves attempts by the civil liberties group to require the public disclosure of at least 44 official photos that are said to show abuse of detainees by the U.S. military in at least seven different locations in Afghanistan and Iraq. The Second Circuit Court ordered the photos released, over the government’s objection. Congress has since passed a new law that enables the Pentagon to keep these specific photos from disclosure, and the Pentagon cited that law last week in urging the Court to vacate the Second Circuit ruling.

In its new filing, the ACLU contended that the new law in no way undercuts the ruling of the Second Circuit, so the Justices should simply deny review of the government’s case. Then, the Pentagon can make its case in lower courts for withholding these specific photos, but the Circuit Court’s precedent would remain on the books as an important interpretation of a key section of the Freedom of Information Act, the ACLU said.

The Circuit Court was right, the brief argued, in holding that FOIA Exemption 7(F) — allowing withholding of documents that, if disclosed, would endanger someone — “does not authorize the government to withhold prisoner-abuse photographs based upon a general assertion that release of the phtographs could provoke a violent response.”

All that the new law does, the brief added, is “raise the independent question of whether suppression of the photographs is now proper” under that change in the FOI Act. If the Second Circuit’s interpretation of the specific exemption is left intact, it would be available “should another controversy arise” as to other documents or photos, it argued.

Wednesday Round-up

2009-11-18T15:29:01Z

Roll Call (subscription only) has an editorial by Simon Lazarus in which he argues that Congress is pushing back against recent Court decisions that encroach on Congress’s domain. Lazarus cites four examples of legislation Congress introduced to reverse the Court’s decisions and a fiery reproach of the Court’s conservatives from Senator John McCain.

On the heels of yesterday’s news that the victorious firefighters in Ricci v. DeStefano are suing in federal district court for promotions based on the test upheld by the Court in June, Connecticut Employment Law Blog reports that black firefighters are trying to intervene in the case. Concurring Opinions provides an extensive explanation of both the disparate impact arguments at play in the new firefighter case, Briscoe v. City of New Haven, and how those arguments differ from those made in Ricci.

Following the Court’s denial of cert. in Harjo v. Pro-Football, Inc., the case challenging the Washington Redskins’ name and logo, Newsweek’s blog discusses Blackhorse v. Pro-Football, Inc., a similar lawsuit brought by a group of younger Native Americans. The Christian Post has a story on Monday’s denial of cert. in McComb v. Crehan, a case brought by a high school valedictorian who asserted that her graduation speech was unconstitutionally censored by school authorities. Video clips of the graduation speech are available there.

At The Volokh Conspiracy, David Kopel discusses the differing approaches of merits briefs filed Monday by the petitioners and the NRA in the gun rights case McDonald v. Chicago. Meanwhile, CBS News’ Taking Liberties blog and Lyle’s post here on SCOTUSblog provide more extensive coverage of the briefs. Lyle and ACSblog also have posts about the merits briefs filed yesterday in two cases – Holder v. Humanitarian Law Project and Humanitarian Law Project v. Holder – about “material support” for terrorism.

A story on reactions from industry and academia to the oral argument two weeks ago in Bilski v. Kappos appears in Time.

ACSblog discusses the split among state courts about how to interpret the Court’s ruling last Term in Caperton v. Massey that elected judges must recuse themselves from cases involving contributors to their campaigns.

The AP via NPR reports that Democrats thwarted a Republican filibuster of one of President Obama’s controversial appeals court nominees, but points out that the president has both nominated and confirmed far fewer federal judges during his first year as president than Bush did. An L.A. Times editorial reproaches Republicans for stalling the confirmation process; meanwhile, at Balkinization, Barry Friedman chides Obama for his slow appointment rate. Friedman argues that, rather than relying on the political branches alone to drive change, Obama should focus on building a strong judiciary to “ratify” those political changes.

The Wall Street Journal reports that Justice Kennedy expressed his frustration with last week’s news reports that he had asked to pre-approve a school newspaper’s coverage of his visit; the justice attributed the flap to a misunderstanding by a new employee in his office. Briefly, the AP covers the latest public appearance by a justice – a speech by Justice Scalia at Ohio State law school yesterday.

At National Review Online’s Bench Memos blog, Ed Whelan – a former clerk to Justice Scalia – takes issue with Joan Biskupic’s new biography of the justice, in installments 1 and 2. NPR also reviewed the book last week.

A late tidbit from the weekend: lawyers in the two recently-argued juvenile life-without-parole cases – Graham v. Florida and Sullivan v. Florida – talked to C-SPAN after oral argument.

Brief: Pare down Patriot Act: Merits brief, Humanitarian Law Project cases, 08-1498 and 09-89

2009-11-18T02:44:00Z

Posing a major test of the sweeping scope of the government’s most-used legal weapon against “terrorism,” six groups and two individuals urged the Supreme Court on Monday to pare down key provisions of the USA Patriot Act. The government interprets those provisions so broadly, the new merits brief argued, that it would be a crime for anyone linked to a group labeled “terrorist” to teach English, lobby in Congress or the United Nations, or advocate benign help for such a group “on television or in the print press” — all presumably legal activities.

The Court on Sept. 30 agreed to hear two separate cases on the validity of the Patriot Act’s ban of “material support” to a group designated by the government as “terrorist.” While the cases raise separate legal questions, the two sides agreed — with the Court’s permission — to have each side address all of the dispute in each’s brief on the merits. (The joint motion to revise the briefing schedule is here; it was granted Nov. 2.) The Humanitarian Law Project, plus others on its side, filed the opening brief in both cases Monday; the government’s merits brief is due Dec. 22, and all briefing is to be completed by Feb. 12. The cases will be argued together, in late February or in March. (Holder v. Humanitarian Law Project, et al., 08-1498, and Humanitarian Law Project, et al., v. Holder, 09-89).

The six groups and individuals involved in the cases “seek to speak to, for, and in coordination with” two organizations that are on the U.S. list of terrorist organizations. They are the Kurdistan Workers’ Party and the Liberation Tigers of Tamil Eelam. Those two groups, the brief said, “engage in a wide range of lawful, nonviolent activity,” and the groups and individuals in the case “seek to further only such activity.”

Thus, the brief urged the Justices to rule that the ban on “material support” be limited, at most, to “financial or other intangible support to terrorist organizations,” and to “advocating or teahing criminal or violent activity.” What these six organizations and two individual do, and want to resume doing, they argued, is “pure political speech” that includes “teaching and advocating the use of international law and other nonviolent means to reduce conflict, advance human rights, and promote peace.”

Words or phrases written into the Patriot Act — “training,” “expert advice or assistance,” “service,” or “personnel” — are so vague in their reach, the brief said, that the government treats them as making it a crime “to submit an amicus brief in federal court, to petition Congress or the United Nations for legal reform, or even to speak to the media, for the benefit of a designated organization, as well as to teach such an organization human rights advocacy or English.” It added: “The government has made clear that it considers plaintiffs’ intended activities criminally proscribed by the challenged statutory terms.”

The brief noted that the Justice Department, in its petition challenging the parts of the Second Circuit Court ruling that went against the government, had argued that the Patriot Act clauses in dispute do not target speech. In reality, the brief countered, the government’s own lawyers told lower court judges that it does reach speech activities if they are done to “benefit” a terrorist organization — a concept so broad that almost anything done in relation to a designated organization could be treated as a criminal “service.”

The Court, however, can avoid answering the constitutional questions about the “material support” provisions, the brief said, “by interpreting the statute to require proof of intent to further an organization’s illegal ends where, as here, pure speech and association are at stake.”

While the government has said that the law could be interpreted so as not to apply to “independent advocacy,” the brief said that formulation would not avoid the constitutional problems. “The First Amendment,” it asserted, “protects more than the abstract right to speak ‘independently,’ but also the right, asserted here, to speak to others, in association with others, and at the direction of others.”

Tuesday Round-up

2009-11-17T18:35:27Z

The Court’s decision not to review a challenge by a Native American group to the Washington Redskins mascot leads Monday’s coverage. The Wall Street Journal, USA Today, NPR, and the hometown Washington Post all report on the Court’s denial of cert. in Harjo v. Pro-Football Inc.

Although this challenge to the moniker failed, NPR notes that “[n]o court has ever commented on the claim that the Redskins name is racially offensive.” However, as both Above the Law and the BLT report, Philip Mause – who represents the plaintiffs in Harjo – also represents younger Native Americans in a similar challenge, which is now pending at the Trademark Trial and Appeals Board. The Am Law Daily discusses Mause’s “Plan B” and rulings by U.S. District Judge Colleen Kollar-Kotelly, who largely sidestepped the issue of the trademark’s offensiveness and instead dismissed the complaint on the ground that the plaintiffs waited too long to file their challenge. This “Plan B” could avoid that pitfall and may compel the courts to issue a ruling on the merits of the challenge.

The WSJ Law Blog notes that if the second challenge one day makes its way to the Supreme Court, it will be familiar for at least one justice; the petitioners in Harjo cited a Third Circuit decision – authored by then-circuit judge Samuel Alito – holding that offensive trademarks are exempt from the doctrine of laches and can be challenged at any time.

The BLT notes that Chief Justice Roberts opened the Court’s session on Monday by expressing “profound sympathy” to retired Justice O’Connor after the recent death of her husband, John O’Connor. The Court’s current recess, which begins today and lasts through the end of the month, will be officially recorded as honoring the late Mr. O’Connor.

Tony Mauro at the National Law Journal (subscription required) writes that thus far, Justice Sotomayor has proven herself to be a vocal presence on the Supreme Court bench. Mauro describes her questioning style as “tenacious and direct,” and the BLT notes in its post on the article that the Court’s newest justice outpaces both of her fellow recent nominees, Chief Justice Roberts and Justice Alito.

Adam Liptak at the NYT covers the Court’s decision to grant cert. in the Magwood v. Culliver habeas case. The Sentencing Law Blog notes that the Court’s ruling could have broad implications for sentencing guidelines and posits that granting cert. is indicative that Justice Sotomayor’s presence on the Court continues the Roberts Court’s trend of taking up “many criminal justice cases…with important implications for many criminal practitioners.”

The LA Times and the San Francisco Chronicle cover the Court’s decision to summarily reinstate the death penalty in Wong v. Belmontes. The Sentencing Law Blog states that that the ruling’s narrow, fact-specific nature limits the principles that might be applied to future cases, though it does highlight the Court’s clarification that the standard of ineffective prejudice places the burden on the defendant to show that the result might have been different with competent counsel. The Volokh Conspiracy notes that this decision marks the third time the Supreme Court has overruled Ninth Circuit Judge Stephen Reinhardt’s decision to vacate Belmontes’ death sentence.

Jesse Holland at the AP covers the “celebrity status” of Justice Sotomayor, noting that “the historic nature of her appointment” as the Court’s first Hispanic justice and the emergence of the 24-hour Internet news cycle make it difficult for the justice to “fade into the background.” Latina magazine features an in-depth profile of Justice Sotomayor featuring commentary and anecdotes from longtime personal friends.

Briefly, Fredreka Schouten at USA Today writes that a Court ruling in favor of the petitioners in Citizens United may drastically alter 2010 state gubernatorial elections by loosening restrictions on previously prohibited corporate and union donations, while the Boston Globe reports that the firefighters in Ricci v. DeStefano have initiated proceedings in federal district court to be promoted after winning their Supreme Court appeal in June.

History lesson on 2nd Amendment’s reach: Merits brief, McDonald v. Chicago, 08-1521

2009-11-17T18:52:49Z

UPDATE Tuesday a.m. The National Rifle Association on Monday filed a brief supporting the Chicagoans’ challenge. It can be downloaded here. The NRA has been pursuing a similar challenge (pending petition, 08-1497). It is in the McDonald case as a respondent supporting the petitioners. The following post has also been updated, including a change in the date for filing the city of Chicago’s merits brief.

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With a strong plea to revive the Constitution’s ill-fated Privileges or Immunities Clause, lawyers for four Chicagoans told the Supreme Court on Monday that history shows clearly that the Second Amendment’s protection of personal gun rights applies to state and local laws as fully as to those at the federal level. The brief is dominated by a wide-ranging survey of the meaning and origins of the privileges clause of the Fourteenth Amendment, only seven pages of the 73-page brief are devoted to another provision of that Amendment: the Due Process Clause. (The Court presumably is more familiar with the Due Process Clause, repeatedly litigated for decades even as the Privileges or Immunities Clause has lain largely dormant.)

In a bold thrust, the attorneys for the challengers to Chicago’s strict handgun ban asked the Court to strike down three of its prior rulings: the Slaughterhouse Cases in 1873 — the ruling that made the privileges clause a nullity — and two decisions limiting the Second Amendment to a restriction only on federal laws: U.S. v. Cruikshank in 1876 and Presser v. Illinois in 1886. “Faced with a clear conflict between precedent and the Constitution, this Court should uphold the Constitution,” the brief argued.

The Slaughterhouse precedent, “and its unavoidable progency, Cruikshank and Presser,” the brief said, “established that the States could continue to violate virtually all privileges and immunities of American citizens, including those codified in the Bill of Rights, notwithstanding [the Fourteenth Amendment] Section One’s clear textual command to the contrary.” Those three rulings, it added, “lack legitmacy.”

“When this Court first passed on the Fourteenth Amendment, it announced a theory of the Privileges or Immunities Clause never apparently considered by anyone during the framing and ratification process, standing diametrically opposed to every statement of intent and understanding related to the Privileges or Immunities Clause,” the document asserted. “With this decision, civil rights inhering naturally in individuals, and which predate the Constitution, would be left to the States’ protection.”

The phrase “privileges or immunities,” the McDonald counsel said, had long been synonymous with rights in general, but acquired “additional heft” with an 1823 court ruling interpreting that clause to have a sweeping breadth. That was the decision in Corfield v. Coryell, which Supreme Court Justice Bushrod Washington wrote while “riding circuit” on a lower court in Pennsylvania.

“The Fourteenth Amendment reflected the broad common usage of ‘privileges or immunities,’ including the pre-existent natural rights of the sort identified in Corfield and the personal rights guaranteed by the Bill of Rights,” according to the filing. And yet, it noted, the privileges clause “was all but erased from the Constitution” in the Slaughterhouse ruling in 1873.

“Slaughterhouse transformed the Framers’ broad protection of individual liberty, commonly understood, into a clause securing only the most obscure rights, rarely exercised by any American and with which the States could not ordinarily interfere even had they the will to do so.”

The brief sought to trace the “privileges or immunities” concept back to James Madison in his original articulation of what would become the Bill of Rights, then followed it through the pre-Civil War period, and then through the drafting and ratifying process after the Civil War had ended and the Union moved to codify its victory over the Confederacy and its social structure.

“In sum,” the brief said, “a straight line of popular understanding of ‘privileges’ and ‘immunities’ runs from Madison through Corfield, leading abolitionists, Dred Scott, and the Fourteenth Amendment’s Framers.” The clause, it contended, embraces natural, fundamental rights, as well as “the rights codified in the first eight amendments” — including, of course, the Second.

The document’s discussion of the Due Process argument focused on the fact that that provision “has incorporated virtually all other enumerated rights,” and contended that there is no reason to make the Second Amendment an exception.

The city of Chicago has 30 days, under the Court’s Rules, to file its merits brief. That time can be extended, but the Rules say that such an extension at the merits stage “is not favored.” UPDATE Tuesday a.m. The city, in fact, has obtained an extension to file its brief — until Dec. 30, a two-week extension.

Today’s Orders

2009-11-17T01:21:36Z

The Court has granted certiorari in one case, Magwood v. Culliver (09-158), and invited the Solicitor General to file a brief expressing the views of the United States in Holy See v. John Doe (09-1). The Court also issued a summary judgment in the case Wong v. Belmontes (08-1263), reversing and remanding the judgment of the 9th Circuit; the opinion is per curiam.

[Disclosure: Lawyers associated with Akin Gump and Howe & Russell represent the petitioner in Magwood.]

The full order list is here. Details and briefs for the cases acted on are below the jump.

Docket: 09-158
Title: Magwood v. Culliver
Issues: Limited by the Court to this first question only: When a person is resentenced after having obtained federal habeas relief from an earlier sentence, is a claim in a federal habeas petition challenging that new sentencing judgment a “second or successive” claim under 28 U.S.C. § 2244(b) if the petitioner could have challenged his previous sentence on the same constitutional grounds?

Docket: 09-1
Title: Holy See v. Doe
Issue: Whether the FSIA’s tort exception confers jurisdiction when the tortious act itself falls outside the scope of employment but state law extends vicarious liability based upon non-tortious precursor conduct falling within the scope of employment.

Docket: 08-1263
Title: Wong v. Belmontes
Issue: Does the Sixth Amendment right to effective counsel in the penalty phase of a capital trial require counsel to present and explain evidence in support of an alternative theory that is inconsistent with his client’s testimony and that would likely open the door to previously excluded evidence that the defendant had personally committed another murder?

Court adds one new case

2009-11-17T03:11:05Z

The Supreme Court agreed on Monday to rule on a state prison inmate’s right to challenge in federal court when a new sentence has been imposed. The key issue is whether such a challenge is barred when it could have been pursued in an earlier habeas plea. The Court thus granted review of the first question in Magwood v. Culliver (09-158). In addition, the Court asked for the federal government’s views on an appeal by the Vatican, testing whether it is immune to damages lawsuits in U.S. courts for the sexual abuse of minors by priests in the U.S. That case was Holy See v. John Doe (09-1).

In a summary decision, the Court ruled that a defense attorney had not provided inadequate legal assistance to a California death row inmate in a murder case by carefully composing the offering of favorable evidence so as not to provide an opening for prosecutors to bring in evidence of an earlier brutal murder. The unsigned ruling in Wong v. Belmontes (08-1263) apparently will reinstate the death penalty against Fernando Belmontes, Jr., for a bludgeoning murder and a robbery in which the killer obtained $100 and used it to buy beer and drugs to consume that same night. The “Per Curiam” ruling — decided without formal briefing or oral argument — was tightly confined to the specific facts of the case, and did not appear to provide any new legal standard on the effectiveness of criminal trial lawyers’ work.

The Court refused, in a Nevada case, to reopen the constitutional controversy over students’ religious speeches at public school graduation ceremonies. It denied without comment a student’s appeal in McComb, et al. v. Crehan, et al. (08-1566). The Court also declined to hear a civil liberties group’s challenge to the Miami school board’s decision to ban from public school libraries a children’s book about life in Cuba — a ban that followed protests from the local Cuban-American community. That case was ACLU of Florida v. Miami-Dade County School Board (08-1564).

In another order, the Court – in a case involving six “Redskins” trademarks owned by the pro football team in Washington — refused to clarify when a challenge may be made to an existing trademark. The question raised in Harjo, et al. v. Pro-Football, Inc. (09-326) was whether such a challenge may be made at any time, or whether it must be pursued without delay. The D.C. Circuit Court ruled that if a challenger waits years to contest a mark, the doctrine of “laches” bars the claim, thus turning aside the claim that the “Redskins” marks were illegal because they were disparaging to Native Americans. The Circuit Court found that a group of Native Americans had waited at least eight years before formally moving to get the six trademarks cancelled.

The new habeas case that the Court will hear involves an Alabama death-row inmate, Billy Joe Magwood of New Brockton. He was sentenced to die for murdering a county sheriff in front of the county jail. He has long suffered from paranoid schizophrenia, and believed that the Army had sent him orders through a surgically implanted device that the sheriff and other authorities were interfering with completion of his “mission.”

After an original death sentence for Magwood was overturned in 1986, he was again given a death sentence following a new proceeding in state court. After state courts rejected his challenge to the new sentence, Magwood’s lawyers filed for federal habeas, contending that he had had no notice that a state court ruling adverse to his case would be applied retroactively, and thus to his case. A federal judge ruled in his favor, but the Eleventh Circuit Court overturned that result. The Circuit Court ruled that the claim of a lack of fair warning was a second or successive habeas claim, and thus was barred. The claim could have been raised at Magwood’s initial sentencing, that court decided.

In taking the case on to the Supreme Court, Magwood’s counsel argued that habeas petitions brought against new sentences should be treated as initial, first challenges when an inmate has succeeded in winning a chance for a new sentence. Oral argument of the case is likely to be in March.

The Vatican case in which the Court invited the U.S. Solicitor General to weigh in on an attempt by the Holy See to head off a damages lawsuit in federal court in Oregon over alleged sexual abuse by a parish priest in Portland in 1965 and 1966. The lawsuit was filed by an individual identified in court papers only as “John V. Doe.” The lawsuit claimed that the Foreign Sovereign Immunities Act, which normally shields foreign governments from damage claims in U.S. courts for official actions, allows such a case to go forward if a government was responsible for one of its employees’ conduct, taken as part of their regular work.

The Vatican is formally a foreign government. The Ninth Circuit Court ruled that the “John Doe” lawsuit could go ahead, relying on an Oregon law that makes an employer responsible for an employee’s misconduct, if the employee had been placed in a position that later led to the wrongdoing — even when the wrongdoing itself was outside the scope of the employee’s job.

The Supreme Court will await the federal government’s response before deciding whether to hear the case and rule on it. There is no deadline for the Solicitor General’s response.

This Week at the Court

2009-11-16T14:42:58Z

The Court will not hear any oral arguments this week. Orders are expected this morning at 10 a.m. from the Justices’ private conference on Friday. SCOTUSblog’s list of Petitions to Watch from this conference is here.

The schedule of merits briefs due this week is below the jump.

Monday, Nov. 16:

Holder v. Humanitarian Law Project (08-1498; 09-89), for petitioner

Tuesday, Nov. 17:

American Needle Inc. v. NFL (08-661), for respondent
Abbott v. Abbott (08-645), for respondent

Wednesday, Nov. 18:

Graham County v. United States ex rel. Wilson (08-304), petitioner’s reply
Shell Oil Products Company v. Mac’s Shell Service (08-372), petitioner’s reply

Thursday, Nov. 19:

Stolt-Nielsen S.A. v. AnimalFeeds International Corp. (08-1198), petitioner’s reply

Friday, Nov. 20:

Milavetz, Gallop & Milavetz, P.A. v. United States (08-1119), petitioner’s reply
Astrue v. Ratliff (08-1322), for petitioner

Sunday, Nov. 22:

Florida v. Powell (08-1175), petitioner’s reply

Monday Round-up

2009-11-16T15:15:11Z

On Sunday, L. Gordon Crovitz had an op-ed about Bilski v. Kappos in the The Wall Street Journal.

The Newark Star-Ledger’s editorial board is calling for eminent domain reform in New Jersey, citing Kelo v. New London as the main reason for reform.

The New York Times has two opinion pieces on last week’s oral arguments in Graham v. Florida and Sullivan v. Florida.

The Los Angeles Times has a piece on the slow pace of confirmations for President Obama’s judicial nominations.

Chicago Public Radio has a short podcast and piece on former Illinois Governor Rod Blagojevich’s attempts to delay his corruption trial. Next month the Supreme Court will hear arguments in a challenge to the “honest services fraud statute,” which Blagojevich has also been charged with violating. Blagojevich’s lawyers are asking for a delay pending the Court decision.

Finally, Jess Bravin of The Wall Street Journal reports that Justice Sonia Sotomayor will not be posing for Annie Leibowitz and Vogue because of her busy schedule.

U.S.: No need to rule on torture claim

2009-11-15T11:56:56Z

The Obama Administration on Friday evening urged the Supreme Court to turn aside a test case by four former Guantanamo Bay detainees, and to do so without ruling on their claims of torture and religious discrimination by U.S. agents there. It is clear, Solicitor General Elena Kagan argued in the new filing, that the detainees had no legal basis for their claims at the time they were at Guantanamo — between early 2002 and March 2004. Thus, she contended, the officials sued are immune from the lawsuit.

The filing came in the case of Rasul, et al., v. Myers, et al. (09-227). In August, the four Britons filed their second appeal in the Court, challenging a new ruling by the D.C. Circuit Court in April finding that former Defense Secretary Donald Rumsfeld and ten senior military officers had immunity from the claims because the torture and discrimination claims were not based on rights that were “clearly established” at the time. (An earlier post discussing the petition can be read here; the post includes links to the Britons’ petition amd to the Circuit Court’s opinion.)

The Supreme Court last Dec. 15 ordered the Circuit Court to reconsider an earlier decsion against the Britons’ claims, and to take into account the Justices’ June 2008 decision in Boumediene v. Bush, establishing a constitutional right for Guantanamo detainees to challenge their captivity. In its prior decision, the Circuit Court had ruled that detainees at the U.S. military prison in Cuba had no constitutional rights at all.

After reviewing the case again, the Circuit Court said it was not necessary to rule on the constitutional claims, because of its finding that they at least did not exist in the 14 or so months when the Britons were at Guantanamo. In her filing Friday, the Solicitor General contended that the new ruling is correct, and does not conflict with any other lower court ruling.

She did argue, on the detainees’ constitutional claims, that “special factors counsel hesitation” before courts should create a new right to sue for damages “in this military setting.” The Court, she said, has instructed lower courts “to pay particular attention to any special factors counseling before authorizing a new kind of federal litigation.”