SCOTUSblog

Inquiring into the juvenile mind: Graham v. Florida and Sullivan v. Florida, Argument Preview

2009-11-07T02:12:05Z

At 10 a.m., and again at 11 a.m., on Monday, the Supreme Court will examine the latest question on the punishment of juveniles who commit crimes — this time, crimes that do not lead to the death of the victim. Similar but not identical, the cases are Graham v. Florida, being argued at 10, and Sullivan v. Florida, at 11. Florida’s Solicitor General, Scott D. Makar will argue for the state in both cases. Representing Terrance Jamar Graham, by Court appointment, will be Bryan S. Gowdy of Mills Creed & Gowdy in Jacksonville; Joe Harris Sullivan will be represented by Bryan A. Stevenson of the Equal Justice Institute in Montgomery, Ala. The briefs and other filings in the cases can be found on ScotusWiki, here and here.

Argument Preview

Four years after ending the death penalty for any minor who commits murder, the Supreme Court now is ready to analyze the next most severe penalty for a juvenile: life in prison without any chance of release, for a crime in which the victim is not killed. The issue will be examined in cases involving teenagers who were 13 and 17 at the time of their crimes — the 13-year-old convicted of sexual battery, the other youth convicted at age 17 of probation violation following a felony robbery when he was 16. Once again, the Court is inquiring into the degree of moral responsibility of minors, as well as into current moral standards, as factors in punishing youthful offenders.

Background

The Supreme Court has said repeatedly, as it decided death-penalty cases (often putting limits on such sentences, or ruling them out altogether in some situations, that “death is different.” That perception has led to a complex jurisprudence of capital punishment, including a flat ban on that penalty for some specific crimes (rape, for example) and some individuals in a specific group (minors and mentally impaired individuals).

The Court, however, has not yet constructed a full constitutional guidebook for long prison sentences, although it has settled on one principle: a sentence for a term of years in prison will be struck down if it is “grossly dispoportionate” to the crime, judged on a case-by-case, rather than across-the-board, basis. Applying that test, the Court looks at how serious the crime was, how harsh the penalty was, and how a sentence compares to that for other criminals in the same area, and in other areas, for the same crime.

Florida’s First District Court of Appeal has taken that principle to mean that each case must be judged on its own facts, so that a blanket rule is not to be adopted– either for a category of crimes, or a specific group of criminals. Thus, for juvenile offenders, it said in one of the cases now before the Supreme Court: “This court declines to implement a per se ban on the sentencing of juveniles to life imprisonment.” And, in that case, it found that the sentence of life without possibility of parole was not “grossly disproportionate” to the crime.

In reaching that conclusion, the state court started with the proposition that “death is different.” And that, in brief, provides the test for the Supreme Court as it examines a life prison sentence, with no chance of release, for a youth who committed a non-homicide crime while still a minor. But the Court also is being asked to reinforce the cultural notion that “being young is different,” for criminal responsibility.

The Court already has given some indication that it will at least begin its analysis by looking at different scenarios. Instead of granting review of a single case involving a life term for a minor whose victim was not killed, the Court simultaneously accepted two cases, did not join them for review, and set them for hearing separately. At least at the outset, it appears that two rulings, not one, are likely to emerge.

There are several differences between the two cases: each youth’s age at the time of the crime — one was 13 when he actually received the life term, the other was 17 at the time of the crime and 19 when sentenced; one youth committed multiple crimes as a younger teenager, the older youth had several crimes on his record when given the life sentence after getting lenient treatment after his first crime; one case brought a full review in the lower court of the sentencing issue, the other did not; one is clearly within the Court’s authority to hear the constittional issue, the other has some procedural doubt about it.

No one outside the Court can know which of those differences may have persuaded the Court to grant both cases. However, that may begin to become clear when the Court hears oral argument.

Taking the cases in the order in which the Court will hear them on Nov. 9, begin with the case of Terrance Jamar Graham, of Jacksonville. In July 2003, he and two accomplices went to a barbecue restuarant in Jacksonville with the aim of robbing it. When the manager would not give them money, one of the youths hit him with a steel bar; Graham then fled the scene. Two months later, his father reported to police that he thought Terrance was committing burglaries with other youths.

He was arrested and charged — as an adult — with one count of burglary with an assault or battery — a first-degree felony that could have led to a maximum sentence of life. He was also charged with attempted armed robbery, a second-degree felony. He pleaded guilty to both, and was given three years on probation added to nine months in county jail.

Six months after getting out of jail, he was arrested on charges of a new felony — home-invasion robbery, and eluding police. By then, he was 17 years old. After this incident, prosecutors charged him with violating his probation for the first crime. He admitted to the eluding charge and, when asked by police, admitted other robberies. By the time his sentencing actually occurred, Terrance was 19.

The judge lectured him on his wayward life. “I don’t understand why you would be given such a great opportunity to do something with your life [a reference to the leniency on the first time] and why you would throw it away….We can’t help you any further…If I can’t do anything to help you, if I can’t do anything to get you back on the right path, then I have to start focusing on the community and trying to protect the community from your actions.” For the probation violation, the judge imposed the sentence of life without possibility of parole.

Relying on the Supreme Court’s 2005 decision in Roper v. Simmons, ruling out the death penalty for any minor who committed murder, Terrance’s lawyers contended that it would be cruel and unusual punishment under the Eighth Amendment to sentence him — or any juvenile — to life without parole. Ultimately, that argument, and others, were rejected by the Florida Court of Appeal, applying what it understood to be the Supreme Court standards for judging whether a term of years in prison was “grossly disproportionate,” upheld the sentence, and the Florida Supreme Court refused review.

Joe Harris Sullivan of Pensacola, Fla., was 13 years old in 1989, when he and two other youths broke into an elderly woman’s home to burglarize it. The woman was not home at the time; the youths took jewelry and some coins, and left. Later that day, Sullivan and one of the others returned, and one of them sexually assaulted her, vaginally and orally; she also was beaten. She suffered bruising and a vaginal injury that required surgery.

Sullivan was identified at trial, by the victim’s somewhat hazy recollection of the voice of her attacker (whom she had not seen, because her head was covered). One of the other youths said Sullivan was the attacker. Joe was convicted. At sentencing, prosecutors listed 17 prior crimes in the prior two years, and noted that the youth had spent time in juvenile detention facilities. The judge concluded that, given the record and the sexual battery conviction, Joe should be treated legally as an adult under Florida law; he was sentenced to life in prison for that crime.

His lawyer at the trial (later disbarred) filed a post-trial brief saying there were no legal issues to be raised. In 1992, Joe, without a lawyer’s help, filed a post-conviction challenge in state court, but that failed and he did not appeal. When a lawyer agreed to help him, and sought to prove Joe’s innocence through a DNA test, that, too, failed because all such evidence had been destroyed.

After the Supreme Court’s Roper decision against the death penalty for juveniles, lawyers for the youth filed a new challenge, claiming that the Justices had created a new constitutional right, and Sullivan should be allowed to take advantage of it.

A state court rejected the challenge in a brief ruling, finding that it had been filed too late. In its decision, the Circuit Court turned down Sullivan’s claim that he could not have raised his constitutional claim earlier, because the Supreme Court had not yet decided Roper; the state court said Roper was a capital case, only. His plea was based on an exemption under Florida law, allowing an after-deadline filing based on the argument that a new constitutional right had emerged in the meantime. If the issue were properly before it, the state tribunal said, it would reject it anyway, since the Roper decision did not even apply to his claim.

Before the Graham and Sullivan cases had reached the Supreme Court, lawyers for Christopher Frank Pittman, a South Carolina youth who had committed a double murder — the victims were his grandparents — when he was 12 years old and was sentenced to 30 years in prison without a chance for parole asked the Supreme Court to extend the Roper rationale to such long prison terms. The Supreme Court denied review without comment on April 14, 2008.

The following November, Terrance Graham’s lawyers appealed his case to the Supreme Court. The state waived a response, but the Justices asked for one on Dec. 15. Earlier in December, Joe Sullivan’s lawyers appealed his case; again, the state waived a response, and the Justices asked for one on Jan. 21. The Court examined the two cases more than once, then granted them, separately but simultaneously, on May 4, 2009.

Petitions for Certiorari

Terrance Graham’s lawyers asked the Court on Nov. 20 to hear his case, in a spare petition with only six pages of argument. It directly posed the question: whether it was cruel and unusual punishment under the Eighth Amendment to impose a sentence of life in prison without a chance of parole for a juvenile who committed a crime in which the victim was not killed. The petition insisted that the sentence was only for his first and only conviction — armed burglary and robbery — and not for the other incidents that the sentencing judge had taken into account.

It quickly ran over arguments borrowed from the Roper decision, cited what it said were conflicting rulings in state courts, and suggested that the Court do “the humane thing” of hearing his plea. It argued that “imprisoning a juvenile for life is inhumane where the juvenile did not commit a homicide.” He said he was given the same sentence he would have received had he “intentionally murdered someone” — a fact, since Roper had ruled against a death penalty for a minor convicted of a homicide.

The state, asked by the Court to respond, spent some effort in urging the Court not to hear the case in reviewing Graham’s criminal record, including offenses of which he was not convicted but which he had admitted to police. It called him “a violent recidivist.” It disputed the claim that state courts were divided on juvenile sentencing and said that many offenders younger than Graham had been given life prison sentences for violent crimes, especially where the youth was a repeat offender.

Roper, it argued, had to do with death sentences only, and for other sentences, it said, the Court had always used a proportionality analysis. It added that Graham got exactly the sentence that the Supreme Court had allowed for juveniles in Roper.

Joe Sullivan’s counsel took his case to the Court on Dec. 4, with a fully developed petition that dwelled very heavily upon his age when sentenced — 13. “In the vast majority of states,” it said, “no one Joe’s age has received a life-without-parole sentence.” Only one other 13-year-old in the nation, it said, had received a sentence for a non-homicide, and that youth, too, was in Florida. With sharp rhetoric, the petition suggested that the reality of Joe’s situation was that he had been “sentenced to die in prison for sexual battery.” His case, it said, was “freakishly rare.”

Besides raising the Eighth Amendment issue squarely, the Sullivan petition poses a second question: whether the Court would grant review of his case years after his sentence — the passage of time that would rule out any chance he could challenge his life term in federal court. As a basis for using the Court’s discretion to hear the appeal, his lawyers suggested that the Eighth Amendment claim he was making had only “recently evolved” — in Roper, of course, in 2005.

The state, responding at the Court’s urging, re-phrased the question it deemed at stake, as to whether state courts had acted unconstitutionally when they enforced state procedural rules and dismissed his challenge as simply having been filed too late. The state thus questioned whether the Court had any authority to hear Sullivan’s complaint about his sentence.

“What Sullivan is asking this court to do is to treat his petition as if this Court was conducting a direct review of his conviction,” the state said. Sullivan’s lawyers, it added, had not identified any post-conviction case in which the Court conducted what amounted to direct review of a state court ruling. The brief in opposition also argued that Sullivan had not properly presented his Eighth Amendment challenge in state court, and, in fact, the state court did not rule on it because his claim was barred under state procedural rules.
Merits Briefs

Lawyers for Terrance Graham filed a merits brief that far more broadly explores the legal issues than their petition had, and in the process they put forth a complex legal rationale than seeks to counter every argument the state had mounted against his Eighth Amendment challenge. The brief attempted to meet directly the state’s argument that “death is different” — the basis for the state’s contention that the Court’s Roper analysis does not apply to a sentence of a term of years, like life. The lawyers also sought to turn to their advantage the state court’s rationale that term-of-years sentences are to be judged by a “grossly disproportionate” standard. They managed to do so without departing from the basic strategy that a life sentence without parole is always unconstitutional for a juvenile’s non-homicide crime.

First, the brief contended that the only thing different about the Supreme Court’s special jurisprudence in capital cases is that it sets up a procedure for deciding, in a specific case, whether the punishment of death is appropriate in that case alone. That procedure does not have anything to do with a non-homicide crime by a juvenile, the brief asserted.

To find whether a death penalty is justified in a given case, the brief noted, there has to be an “individualized determination” that death is proper for that individual, even if that penalty otherwise would fit the crime. That includes individual characteristics that might make death inappropriate. Graham does not seek such an individualized determination, and, his lawyers contend, it is not possible with a juvenile to know how they will turn out in the future. Roper itself, the brief noted, ruled out such predictions as sentencing factors for juveniles.

Second, the brief suggested that a judge evaluating a sentence’s validity, whether it be death or some term of years, must follow the same analytical path: in neither situation can the sentence be “grossly disproportionate” to the crime. Using that mode of analysis, “Graham’s [life] sentence is grossly disproportionate when viewed through the prism of his status as a juvenile offender,” according to the brief. It added that the characteristics of juveniles, as Roper found, make them less culpable for criminal conduct. Life without parole, for a young offender whose character is still being formed, does not serve the state’s desire for retribution or deterrence, nor does it leave the juvenile with any chance to become rehabilitated. “Juveniles are more malleable and capable of reform than adults,” the brief said, so “it is cruel to simply ‘give up’ on them,” as life without parole does.

Third, in this individual case, those legal principles, the brief contended, demonstrate that his sentence was too great. The judge concluded that Graham “was incapable of ever being rehabilitated or deterred from committing more offenses.”

Going beyond those core points, the Graham brief contended that life-without-parole for a juvenile has not been mandated by Florida’s legislature, thus leaving it to the unchecked discretion of a single judge. And it closed with an argument focusing on the claim that Florida leads the nation in imprisoning juveniles for non-homicide crimes, accounting for 70 percent of all such prisoners.

The merits brief made one concession that narrowed somewhat the sweep of the Eighth Amendment claim: it said that it was not challenging a life-without-parole sentence for a juvenile whoi was shown to have an intent to kill, even if the victim did not die. Thus, it said, “offenders convicted of attempted murder and felony murder would not be considered ‘non-homicide’ offenders.”

The state’s merits brief in Graham begins with a review of the history of violent crime in Florida, showing that, in part, a crackdown on juvenile offenders resulted in sharp declines in youths’ serious crimes, even while continuing to be sensitive to the special circumstances of young age. The state, it argued, has a carefully calibrated system for deciding when to try a juvenile as an adult, and, it noted, Graham did not challenge being treated as an adult, so “his attempt to inject age at the sentencing phase is unwarranted.”

The state also warned that, if Graham is allowed to bring in the age factor after submitting without protest to adult treatment, it would “undermine nationwide” the states’ systems of transferring young offenders out of the juvenile justice system when they commit adult crimes.

To Graham’s heavy focus on the characteristics of youthful attitudes, capacities and conduct, the state argued that Florida hardly ignores those attributes. “Our society has accounted for juvenile status in virtually every aspect of our laws and traditions,” and, in keeping with that, Florida applies massive resources and special programs for juveniles who commit crimes or are at risk of doing so. This is a field, the state contended, in which states must be left free to decide on the mix of strategies.

The state’s rights argument also is energetically asserted as the Florida brief assailed the categorical rule that Graham was advancing. A whole host of questions will arise if such a rule is mandated constitutionally, the brief said, ranging from what is “life” to what is a “non-homicide” crime, and to reestablishing a system of parole to help a life-sentenced juvenile work toward rehabilitation. “Under Graham’s theory, any term-of-years sentence would be problematic,” it asserted.

Joe Sullivan’s merits brief also sought to neutralize the death-is-different rationale upon which the stated relied so heavily in trying to make Roper inapplicable to juveniles’ life sentences. It did so with a straightforward argument: death and life-without-parole are, in their essential features, not really different at all. The key to either, it argued, “is that it imposes a terminal, unchangeable, once-and-for-all judgment upon the whole life of a human being and declares that human being forever unfit to be a part of civil society.”

Given that, it went on, Roper “understood and explained why such a judgment cannot rationally be passed on children below a certain age. They are unfinished products, human works-in-progress. They stand at a peculiarly vulnerable moment in their lives. Their potential for growth and change is enormous. Almost all of them will outgrow criminal behavior, and it is practically impossible to detect the few who will not.”

Focusing again on Joe’s age when he committed the crime that drew the life sentence, his lawyers said that at 13 it is clear that no one could make “an irrevocable judgment” that would condemn him “to be imprisoned until death.” While it went on to concede that there may be ages above 13 at which the Court might draw a constitutional line against life-without-parole sentences, it should at least be set at 13. Such sentences at that age, it added, “are so vanishingly rare as to make their repudiation by contemporary American society unmistakable.”

The brief, like that for Graham, sought to discredit the life sentence for juveniles by noting that it “is not the result of legislative decisions” that that was an appropriate punishment. Rather, it said, the imposition of such a sentence on a young offender is the result of two other legislative thrusts: “changing the boundaries of exclusive juvenile-court jurisdiction so as to make more children subject to adult-court prosecution,” and “legislation increasing the number of adult crimes punishable by life imprisonment without parole.” Still, even with that changing legal environment, is remains very rare for a 13-year-old – or even a 14-year-old – to be sentenced to life for a non-homicide crime, the brief said. In those two age groups, only 73 youths nationwide have received such sentences, it added. “The available indications are that the numbers rise sharply from age 15 upwards,” thus suggesting a quite clear constitutional line.

The Sullivan brief does not discuss, or even list, the second question that his petition had posed and which, presumably, the Court also had agreed to hear: whether the Court would even allow Sullivan to raise before it his Eighth Amendment claim. That might well be an issue of the Court’s jurisdiction, and the state, in its merits brief, focused directly on it at the outset.

“Sullivan has ignored the fundamental question of whether jurisdiction exists,” the state brief said. “Given that an adequate state law basis exists for the trial court’s ruling below [the lateness of the claim], and given tha Sullivan could have made the same Eighth Amendment claim now raised in his direct appeal in 1990…, his claim is procedurally barred and jurisdiction is lacking.”

The state also contended that Sullivan’s merits brief had tallied higher numbers for young offendersy who received life sentences, and also, by implication, suggested that he was advocating no life term even for a youth who committed murder. The latter, the state argued, resulted from including in the total of 13 and 14-year-olds serving life terms some who had committed homicides. The brief then went on to suggest that it was understandable that “the data continue to evolve,” because of the difficulty in evaluating the available data. The material now available, the state argued, was generated by those who oppose life terms for juveniles, raising “significant questions of accuracy and reliability.”

As its final layer of response, the state’s merits brief argued that Sullivan has failed to show, using proportionality analysis, that his life sentence was grossly at variance with “the brutal crime of sexual battery.”

(In his reply brief, Sullivan challenges the state’s suggestion that the Court lacks jurisdiction to hear his Eighth Amendment claim, asserting that state courts actually ruled on that claim before concluding that Sullivan was barred from making it when he did.)

The amici briefs (14 supporting Graham and Sullivan, seven behind the state, and one supporting neither side) engage primarily in a debate over the development of the juvenile brain, and the meaning of that phenomenon in the context of criminal sentences, with a secondary debate over society’s proper response to violent crime.

Some of the medical and scientific data on which advocacy and research organizations relied in supporting the Eighth Amendment challenge – developmental psychology and neuroscience – drew sometimes sharp criticism from the other side. For example, the conservative advocacy group, the Center for Constitutional Jurisprudence, attacked the data as “advocacy masquerading as science…’Matching neurological data to legal criteria can be much like performing a chemical analysis of a cheesecake to find out whether it was baked with love’.”

However, the other side advanced its data without apology. For example, a group of juvenile correctional and service agencies asserted flatly that “empirical data, medical science and practical experience overwhelmingly snhows that juvenile offenders are distinct from adult offenders and that those distinctions evince a unique potential for rehabilitation.” The assessment of that potential, that brief contended, can only be made after a juvenile has moved beyond adolescence. Much of that research, various groups pointed out in briefs, has already been accepted and relied upon by the Supreme Court in its Roper decision.

Analysis

The critical issue for the Court, having already decided that there are constitutional differences between juvenile and adult criminals, is whether that difference counts the same – or less – when the punishment a youth faces is not execution. It is not likely to abandon altogether its reliance just four years ago upon research data supporting those differences. But it must now reexamine that data as it considers whether life with no chance of parole can really be distinguished from death, and, perhaps a more difficult inquiry, does the distinction between the two vary with the age of the offender?

If the meaning of the Eighth Amendment is the underlying constitutional question, the closely related moral question for the Justices is whether a denial of any chance at rehabilitation – or future freedom – is close to being the loss of “life,” at least in some dimensions of what “life” means. As judges, the Court’s members will want to be comfortable defining the consequences of that denial in constitutional terms, but they will feel the tug of the moral question as they do so.

Does the view of the sentencing judge in Graham’s case — “We can’t help you any further” — represent a defensible constitutional judgment when the individual standing in the dock is under age 18? Is it a valid judgment because the individual committed a crime after passing the 18^th birthday, but problematic before that?

Even if the Court were to answer the question with a “yes” at least when the offender is under 18, that may have only begun the inquiry. How much below 18 is that judgment a sound one under the Eighth Amendment? Sullivan’s lawyers suggested a line, perhaps, at age 15; below that, life without parole is invalid, but not at 15 or above. The Court would then have to justify the dividing line, with constitutional reasoning, even if informed by science.

In Graham’s case, another difficulty for the Court may be in judging at which age the Eighth Amendment may count for him: 16, when he committed the crime, just short of 18 when he violated probation, or 19 when actually sentenced to life without parole. In Sullivan’s case, the Court may first have to satisfy itself that the Eighth Amendment is properly before it.

In short, the inquiry may not be as easy as simply deciding whether Roper v. Simmons is only about death sentences, or whether it has a wider meaning and impact.

———-

Struggling to Interpret AEDPA: Wood v. Allen, Argument Recap

2009-11-06T21:05:55Z

Below, Stanford Law School’s Tiffany Cartwright recaps Wednesday’s oral argument in Wood v. Allen. Tiffany’s earlier preview of the case is available here. Check the Wood v. Allen (08-9156) SCOTUSwiki page for additional updates.

During Wednesday’s oral argument in Wood v. Allen, the Court struggled to find an interpretation of 28 U.S.C. § 2254 that would both give meaning to every part of the statute and provide effective guidance to lower courts.

Kerry Scanlon argued on behalf of petitioner Holly Wood. A large part of his initial argument was consumed by the Court’s confusion over what was actually at issue in the case, and several members of the Court expressed irritation that Wood’s merits brief seemed to make claims that were outside the scope of the question presented.

Finally, Justice Ginsburg steered the argument toward an issue that the Court had agreed to review: the interaction between subsections (d)(2) and (e)(1) of Section 2254, relating to state court factual findings. Subsection (d)(2) precludes federal habeas relief unless the state court proceeding “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding,” while subsection (e)(1) creates a presumption that “a determination of a factual issue made by a state court” is correct unless rebutted by clear and convincing evidence.

Wood argued that subsection (d)(2) applies to challenges that involve only the state record, whereas (e)(1) governs challenges based on extrinsic evidence. Justice Breyer seemed to agree, noting that such an interpretation gives meaning to both subsections and prevents them from being repetitive. Justice Ginsburg, however, noted that because very few habeas proceedings involve extrinsic evidence, under Wood’s reading subsection (e)(1) would rarely apply.

Corey Maze, the Solicitor General of Alabama, argued on behalf of the State. Justice Alito suggested to Maze that all of the subsidiary, individual facts in a state record are presumed correct under (e)(1), but (d)(2) governs whether the state court’s ultimate decision was based on an unreasonable determination of the facts. Maze agreed that this was essentially his interpretation of the statute. Justice Breyer seemed to regard this interpretation as a plausible one, but he expressed concern that this scheme would be too complicated for lower courts to apply. Indeed, he noted, because this interpretation could lead to a whole new jurisprudence on what was a “subsidiary” factual finding, it would be much simpler to just use (d)(2) for the entire inquiry. Justice Kennedy pointed out that AEDPA is already confusing to lower courts, and that no matter how the Court rules it will be difficult to provide clear guidance using these standards.

Ultimately, the entire Court seemed very concerned about articulating a standard that would not further complicate habeas proceedings. What standard they will ultimately choose, however, was in no way clear.

A patent dispute for the Information Age: Bilski v. Kappos, Argument Preview

2009-11-07T19:42:02Z

At 1 p.m. Monday, the Supreme Court will hear one hour of oral argument in Bilski, et al., v. Kappos (08-964). Arguing for two inventors will be J. Michael Jakes of Finnegan, Henderson, Farabow, Garrett & Dunner in Washington, and arguing for David J. Kappos, the head of the federal government’s Patent and Trademark Office, will be Deputy Solicitior General Malcolm L. Stewart. The briefs and other filings in the case are available at this link on ScotusWiki.

Argument Preview

In 1981, the Supreme Court last decided a case spelling out the kinds of inventions that are eligible for patent rights under federal law. Now, in the wake of major changes in the world of commerce, the Court will try to provide a modernized definition of patent eligibility. Some experts say the outcome may affect the legality of more than 130,000 patents that already exist, and the legal fate of untold future inventions, especially in digital commerce. Background

Just because someone comes up with a bright idea, even a completely original one, does not mean that they can get a patent on it. To be eligible for the legal right to the exclusive use of an invention, or to license others to do so for a fee, an idea has to be made into something useful; in other words, the idea has to do something, in practical, real-world terms. If it doesn’t, the idea remains an unpatentable abstraction.

Under the federal Patent Act as it now reads, four kinds of inventions or discoveries are patentable, provided that they are “new and useful.” One is a process for doing something practical. One is a machine that produces an item or a result. A third is a creation, or “manufacture,” that turns raw material into something new. And the final one is a mixture or combination of substances. The Supreme Court is now focusing, in the case of Bilski, et al., v. Kappos, on the first one: a process. At an earlier stage of patent law, an invented process was considered to be one of the “useful arts,” as opposed to a “fine art,” such as a portrait.

In 1981, in its decision in Diamond v. Diehr, the Court provided a definition of “process,” saying the clue to a patentable process that did not involve a particular machine was that it transformed and reduced an article “to a different state or thing.” Picking up on both parts of that definition, the specialized appeals court that decides how to apply the Patent Act to new inventions, the Court of Appeals for the Federal Circuit, has now spelled out the only kinds of process it would find eligible for a patent: it has to be”tied to a particular machine or apparatus,” or it has to “transform a particular article into a different state or thing.” That is now commonly referred to by the shorthand phrase, the “machine-or-transformation” test.

That test emerged at the end of October 2008, in a Federal Circuit en banc case involving an invention by Bernard L. Bilski and Rand A. Warsaw. While some of the focus in the case necessarily remains on the details of their invention, and whether it fits within the Patent Act’s reach, the controversy has taken on a more fundamental character, asking the Act’s most basic question: what is patentable?

The case has generated high levels of interest here and abroad. A wide array of amici, totaling 38, joined in the case at the Federal Circuit, and that intense interest has been sustained as the case has moved forward in the Supreme Court, with 68 amici filings on the merits. It is the most-watched patent case in years, with many analysts speculating on how the outcome will affect innovation as the bounds of what is patentable are regularly being tested in an era of rapidly changing technology.

In seeking a patent, Bilski and Warsaw told the Patent Office in 1997 that their idea was a highly useful one: using complex mathematical formulas, they could tell a business how to hedge against risk due to the rising and falling of prices of raw materials that were used to produce something — say, to generate electricity. Commodities prices often fluctuate quite widely, because of market forces or even changes in the weather, so these two inventors figured out ways to manage what they called “consumption risk.” It is, they claimed, of benefit both to businesses and to their customers.

An example that lawyers for Bilski and Warsaw now use is this: “A school district with a fixed tax base and budget for heating or cooling requirements can be protected from yearly fluctuations in weather, while the suppliers are protected from the opposite effect of such fluctuations.” In other words, the school district can be insulated from spikes in demand — and rising prices — while the suppliers can hedge against a weakening of demand — and lower prices.

In effect, what these inventors claimed was that they had created a method of doing business by evening out risk among those in an ongoing economic transaction. One distinctive feature of it — and this became a legal problem for the inventors — is that it is not tied to a machine. While Bilski and Warsaw say that a computer, or modern telecommunications networks, may actually be used in employing their idea, that is not essential to its utility. It is thus being treated as if it were, technically, a “non-machine” invention.

A patent examiner rejected the invention, finding it merely allowed manipulation of an abstract idea, solving a math problem. Next, a patent appeals board agreed with the examiner, concluding that Bilski and Warsaw’s risk management formulas involved only non-physical manipulation, beyond the scope of the patent law. The case then moved on to the Federal Circuit; before a three-judge panel could rule on the case, the en banc Court took it on, and ultimately ruled against the Bilski-Warsaw invention.

If the ordinary meaning of “process” were used, the Circuit majority conceded, this invention would qualify because it does involve a series of actions or operations bringing about an end. But, it went on, the Supreme Court has given the word a narrower meaning in the Patent Act. With some hesitation, it translated the Supreme Court’s Diamond v. Diehr comment about “the clue to patentability of a process claim” into the machine-or-transformation test. It then found that the Bilski-Warsaw invention “entirely fails” that test. One of the three dissenting judges complained that the test “links patentability to the age of iron and steel at a time of subatomic particles and terabytes.”

In late January 2009, the large intellectual property law firm, Finnegan, Henderson, Farabow, Garrett & Dunner, filed its petition in the Supreme Court, challenging the new test.

Petition for Certiorari

Lawyers for Bilski and Warsaw raised two challenges to the validity of the machine-or-transformation test. First, they contended that the test contradicted Supreme Court precedents mandating broad interpretation of the patent grant. Second, they contended that the test ran afoul of action by Congress specifically allowing patents for methods of doing or conducting business.

The petition’s argument for review began with three questions: “What can be patented? Are patents only for manufacturing processes that are tied to a particular machine or produce some physical transformation? Or do patents also embrace modern business processes that do not depend on a particular machine or device?”

The Patent Act, it contended, is broad in scope, using the word “any” to introduce a concept of sweeping access to patent protection. “There is no exclusion for business methods or any other field of invention.” Only three categories are excluded: laws of nature and natural phenomena, neither of which, it said, can be invented at all, and abstract ideas, which are not useful until they become part of something practical.

The petition interpreted two prior Supreme Court precedents as actually declining to embrace the machine-or-transformation test. Moreover, it said that even the Federal Circuit had not done so previously, using a test of whether an invention produced a “useful, concrete and tangible result.” Using that approach, the filing said, the Circuit Court had “made patent protection available to such diverse fields as internet commerce, information technology, and business methods.”

Thus, it contended, the Circuit Court “abruptly changed course” in making the new test the sole one for patentability. “The Federal Circuit,” it asserted, “has essentially confined all process patents to manufacturing methods, using a test that may have been appropriate during the Industrial Age but no longer fits our modern information-based economy.”

The then-new team at the U.S. Solicitor General’s office twice got extensions of time to respond to Bilski and Warsaw. Then, in a filing on May 1, representing the Patent Office, the government’s lawyers urged the Court to deny review. The response defended the test, arguing that it actually was not new at all, but rather had been “drawn directly” from the Supreme Court’s 1981 decision interpreting patentability. Embracing that test, it added, the Circuit Court then properly cast aside its own precedents in order to conform to the Supreme Court’s approach.

“The decision below represents an unremarkable application of that machine-or-transformation test,” the Solicitor General asserted. The Bilski-Warsaw invention, the brief said, has no connection to “a particular device or article,” and does nothing to transform any physical object or substance. “The Court,” it went on, “has never suggested that a method of this kind, relating to purely human activity, may properly be the subject of a patent.” The invention is nothing more than a process “that is directed to the ‘abstract idea’ itself,” it commented.

What’s more, the Solicitor General asserted, the Federal Circuit “expressly left room to accommodate emerging technologies” and did not rule on the application of its test “to computer software, data-manipulation techniques, or other such technologies not involved” in the hedge claim behind the Bilski-Warsaw invention. And that invention “involves none of the frontier technologies” that the inventors’ lawyers had argued would be stifled by the test. There is no threat here, the brief added, to process claims that would describe a programmed computer’s operation, biotechnology advances, or chemical inventions.

The Court granted review on June 1.

Merits Briefs

Continuing to press the argument for an expansive reading of the word “process” in the Patent Act, the Bilski-Warsaw brief on the merits marshaled quotations from Supreme Court opinions back to the mid-to-late 19th Century, emphasizing two words in particular — “art” and “useful” — as the defining nature of a patentable process. In fact, the word “art” is traced back to one of the earliest Patent Acts, in 1793.

The brief, although attempting to persuade the Court that the modern Information Age needs an expanded concept of process, turned back to history for one of its most vivid examples of an “information-age process.” That was Alexander Graham Bell’s invention of the telephone, patented in 1876. In The Telephone Cases in 1887, the brief recalled, the Court validated Bell’s patent, and reinforced the view that “the Supreme Court’s broad framework for patent eligibility is flexible enough to accommodate innovations of every age.”

In more recent times, the brief asserted, “this Court has repeatedly cautioned against adopting special, rigid rules for patent cases where this Court’s precedents follow a broader, more flexible framework.” The Federal Circuit has had to be corrected before, the brief noted, when it attempted “to impose rigid rules for patents despite a flexible framework set forth by this Court.”

The brief goes to greater lengths than did the opening petition in marshaling recent enactments by Congress, supposedly demonstrating that the lawmakers had shown a special regard for “business method patents.” And, since the Bilski ruling by the Federal Circuit, the document said, the Patent Office and some courts have used the new test “to reject or invalidate business method claims in dozens of cases.” One judge who did so, it said, commented that “Bilski’s holding suggests a perilous future for most business method patents.”

From a former position of neutrality on technological advances, the brief argued, the Federal Circuit has adopted a position of hostility to “innovation in the knowledge economy.” That, it added, is an abrupt policy shift of the kind that only Congress, not a court, should make.

The Patent Office’s merits brief has one frequently restated theme: patent protection simply is not available for “methods of organizing human activity.” By this, it said near the beginning, it meant “methods by which people conduct economic, social, or legal tasks, such as entering into contracts, playing poker, or choosing a jury.” To qualify for a patent, the brief summed up, a process must be “technological and industrial” in nature, “tethered to technology.”

The Bilski-Warsaw method of hedging commodity price risks, the Solicitor General argued, “relates solely to human conduct, untethered to any technology — any machine or transformation of matter.” Thus, the government presented an unqualified embrace of the Federal Circuit’s test.

Indeed, the brief went on to find the direct antecedents of that approach in the first patent laws, in 1790 and 1793. From that period to the present, it added, it has been understood that patent protection was to be available only in “the fields or technology and industry, as opposed to the fields of general knowledge and economic endeavor.”

That, it asserted, is what led ultimately to the Court’s 1981 decision in Diamond v. Diehr, spelling out that “the distinguishing feature of a technological process is that it concerns a particular machine or apparatus or effects a transformation of matter to a different state or thing. ”

Far from conceding, even impliedly, that the government was arguing for a narrow scope of patent protection for processes, the merits brief returned to Thomas Jefferson and the concept that “ingenuity should receive a liberal encouragement,” through what the government said are “broad and flexible patent laws.”

But, it stressed, ” ‘broad’ does not mean unbounded.” There are “social costs” in granting a monopoly as an incentive for research and innovation, including the exclusion of “would-be competitors who could produce a patented invention more efficiently, thereby inhibiting post-invention competition and innovation.”

The Bilski-Warsaw patent itself, according to the government, poses some of this risk: “It would preempt the abstract idea of hedging consumption risk.” Quoting a 1948 Court ruling, the brief asserted that “laws of thermodynamics, mathematical formulas, abstract ideas, and other phenomena of nature are part of the storehouse of knowledge of all men…free to all men and reserved exclusively to none.”

The Solicitor General offered the Court a two-step inquiry on the eligibility of an invented process for a patent. The first step is the machine-0r-transformation test. The second is a determination of whether the process would have the practical effect of wholly preempting public access to “the basic tools of scientific and technological work.”

Responding to the inventors’ assertion that the Federal Circuit’s test would impair the “knowledge economy” — a point echoed in a number of amici briefs voicing concern over the Federal Circuit’s test, the Solicitor General argued that the test is not a threat to computer software that handles data and information in novel ways. The risk-hedging invention here, it noted, is not software. But, in any event, it added, the Federal Circuit’s test “contemplates that many forms of ’software’ inventions are patent-eligible.”

And, the brief sought to reassure the Court that the Federal Circuit remained open to modifying the test if it should present a threat to future developments in technology. “At present, however, no such ‘departure’ is necessary,” it concluded.

The government brief also interpreted Congress’s recent actions seeming to embrace business method patents as dealing only with defenses to infringement actions, and definitely not an endorsement of patenting “business methods directed solely to human activity.”

Amici Briefs

If nothing else about the case leads the Court to see it as highly important, the flow of amici filings surely should. In a volume that is usually reached only in the most highly visible, most deeply controversial cases, the friend-of-court briefs are stacked high. There are 68 overall, but the most remarkable fact is that nearly half of them — 26 — do not support either the inventors or the Patent Office. Briefs “in support of neither party” seldom are filed in any significant number. The 26 that seek to stand neutral between the contestants manifest a basic worry over the present state of patent law, and especially as it applies to the Digital Age.

In addition to those briefs, there are four others that urge that the Federal Circuit be upheld, but on grounds different from those argued by either party directly in the case. For the contestants themselves, Bilski and Warsaw attract 18 amici filings, while the Patent Office draws 20.

Perhaps there is no such thing as a truly representative argument from that long list of those supporting neither party, but the flavor of many of those filings is this opening statement in a brief by TELES AG, “a German high-technology ccompany”: “It is clear that the future economic strength of the United States will rely greatly on cutting-edge technologies — such as artificial intelligence, genetic programming, and human-machine communicatrions — that in the broadest sense are not ‘physical’ or ‘tangible.’ But the ‘machine-or-transformation test’ set forth by the Federal Circuit gives cause for serious concern that patentability will be statically limited to ‘physical’ or ‘tangible’ implementations of technical developments, largely excluding innovations in such cutting-edge technologies.”

Many of those briefs — indeed, many briefs from all sides of the amici briefing contest — offer their own formulations of a proper patentability test for process inventions. A group of 20 law and business professors offered one of the simplest: “Where an idea is claimed as applied, it is eligible for patentability, but if it is claimed merely in the abstract it is not.”

To a noteworthy extent, many of the briefs on all sides (including some in support of the inventors’ challenge) came prepared to say that, whatever the test, the risk-hedging invention of Bilski and Warsaw does not qualify. For example, the Boston Patent Law Association, while complaining energetically about the Federal Circuit’s test, suggested that the Justices may want to rule directly on the Bilski-Warsaw claims, and reject them as “lacking adequate limitation to a specific application,” and thus advancing only an abstraction.

Predictably, the Bilski-Warsaw invention comes in for especially aggressive challenge by the amici supporting the Patent Office. Many of these groups and individuals are deeply upset by a recent outpouring of patents on business methods and software, contending that this is locking up ideas that others should be free to exploit. One brief on this side, from entities ranging from Google to the Bank of America, argued that this trend is allowing the patenting of abstract ideas or methods “not to make productive use of them, but to extract licensing fees from businesses that apply and improve those ideas and methods in real-world products and services.” Belitting the work of Bilski and Warsaw, that brief said their invention “claims nothing more than the idea of hedging against the weather.”

Analysis

Unless the Justices are now persuaded by an argument that did not keep them from agreeing to hear this case in the first place — that is, that the Federal Circuit has done nothing more than faithfully adhere to Supreme Court precedent, a daunting task awaits. It may involve no less than trying on its own to invent something: a new formulation of the concept, for patent purposes, of what is “useful.”

The briefs put before the Court not only a dizzying array of ideas on that very point, but throw in a high degree of alarm about where the patent system as a whole may be heading in a world increasingly dominated by those most elemental of electronic expressions, ones and zeroes — the language of digital commerce and conversation. Although the Patent Office and many of its supporters suggest that the Court’s own record on patentability is a quite consistent pattern since 1790, and that it has already adapted to the “knowledge economy,” there clearly is much disagreement with that.

There is a deep chasm between those who think too much innovation is being locked into patent monopolies, and those who think too little is getting the protection of exclusive legal rights, and yet the Bilski case seems to ask the Court to reconcile the two.

Even if the Court were to see the case as being limited solely to “business method” inventions, that is a concept that now has so many variables, present and future, that defining it does not appear to be any easier than saying — in legal terms — what the word “useful” means in the Patent Act.

Perhaps the only way that the Court’s work could be simplified is to examine the finite details of the Bilski-Warsaw invention and conclude that, whatever the test, this idea does not pass muster. That would end the case, but clearly not the controversy over patentability. On that, the Court is being pressed hard to provide a definitive resolution.

Unassessed Taxes and Injury Under RICO: Hemi Group v. City of New York, Argument Recap

2009-11-06T16:32:09Z

Below, Stanford Law School’s Brian Goldman recaps Tuesday’s oral argument in Hemi Group v. City of New York. Brian’s earlier preview of the case is available here. Check the Hemi Group v. City of New York (08-969) SCOTUSwiki page for additional updates.

At oral argument on November 3 in Hemi Group v. City of New York, the Court wrestled with the case’s two primary questions: First, do unassessed taxes fit within RICO’s definition of “property,” such that treble damages can be sought when a civil defendant commits a predicate act that deprives a local government of the ability to collect taxes? Second, were the defendant’s actions here – running an internet cigarette business that advertised products as “tax free” to customers in high tobacco tax jurisdictions, and then failing to comply with federal law requiring that sales be reported to purchasers’ states to facilitate tax collection – a proximate cause of the City’s loss?

On the first question – one that had divided the courts of appeals – counsel for Hemi Group, Randolph Barnhouse, encountered sharp resistance from the bench. Though he attempted to distinguish between the opportunity to collect taxes – an inchoate sovereign interest – and tax revenues themselves, the Court appeared to view this as a distinction without a difference. The Chief Justice, for example, noted that “a lawsuit with a potential recovery [is] regarded as property of an individual,” and Justice Ginsburg referred to Pasquantino v. United States, a 2005 case in which the Court held that Canada’s right to receive tax revenue was “property” within the meaning of the federal wire fraud statute. Barnhouse responded that RICO’s definition of “property” is narrower than in other criminal statutes. Moreover, he suggested that because the amount of taxes owed the City could not yet be calculated, no cognizable property interest existed. Justice Scalia, who brought the courtroom to laughter an impressive four times over the course of the hour, dismissed that point as a simple issue of damages, which the City would have to prove later at trial.

Leonard Koerner, arguing for the City, faced significant challenges of his own. Justice Breyer voiced concern over the potential repercussions of the City’s position: could California try to close its current budget deficit by using RICO to seek treble damages from “every corporation that files an income tax return and makes two false statements”? Koerner noted that he couldn’t “dispute [the] fact pattern” – a concession that seemed to alarm Justice Kennedy. Moreover, the Chief Justice and Justice Kennedy expressed concern that the City would be able to prosecute any mail-order company whose customers did not pay tax. But Koerner argued that, notwithstanding other possible local government uses of RICO, Congress had made clear its intent to place cigarette taxes within RICO’s reach by adding violations of the Cigarette Contraband Trafficking Act as predicate offenses under RICO. And in a variant on an “unclean hands” argument, Koerner observed that it is disingenuous for Hemi Group to argue that the lost taxes are not property because they were never assessed, when the City was prevented from assessing the taxes by the Group’s failure to provide the names of cigarette purchasers as required by law.

On the second question, Hemi Group’s challenge seemed to gain more traction. Barnhouse contended that any injury to the City was indirect, because individual purchasers’ decisions not to pay the use taxes they owed constituted an independent intervening force. Justices Alito, Breyer, and Ginsburg seemed skeptical that any causal link to Hemi Group was attenuated, given the Group’s heavy advertising of “tax free” cigarettes and the City’s inability to assess taxes without the sales reports the Group was required to provide. In his argument, Koerner picked up on this point, faulting Hemi Group for “leading the consumer to believe they didn’t have an obligation to pay.” Justice Scalia wasn’t so sure that customers were actually led astray by the website: “I’ve known a lot of New Yorkers, and not many of them are that gullible.” And the Chief Justice suggested that “[t]he injury is directly caused by the consumers who don’t pay the taxes.” Koerner acknowledged that, to prove causation, the City would have to show at trial that it could (and would) have actually collected taxes had it received the list of purchasers, but he expressed confidence the City could do so. He maintained that, because Hemi Group’s “entire business plan is based on not paying tax,” its fraudulent acts were a proximate cause of the City’s injury.

Because she was a member of the Second Circuit panel that issued the decision below, Justice Sotomayor did not participate in Tuesday’s argument. Should the Court divide evenly, the lower court opinion will be left undisturbed.

Friday Round-up

2009-11-06T15:14:39Z

Coverage of Monday’s oral argument in Jones v. Harris Associates continues. Conglomerate has three articles on the case: a piece by William Birdthistle assesses the case’s implications for the executive branch, highlighting the ten-minute appearance by Assistant to the Solicitor General Curtis Gannon on behalf of the United States, while Renee Jones argues that the questions raised by Jones “reflect an apparent shift in how judges and government officials are thinking about the role of government in business.” Emphases on “independence” and “market efficiency” in the context of pay decisions, Jones argues, are “beginning to lose force,” suggesting that the government might adopt a more active approach to compensation issues in the future. Joan Heminway, also writing for Conglomerate, addresses the ambiguity over what Congress meant by the term “fiduciary duty,” one of the key issues at stake in Jones. At The Atlantic, Mike Conkzal covers the case, describing the lower-court proceedings and clarifying the key questions before the Court.

Also recapping this week’s arguments, several sources have coverage today of Wednesday’s oral argument in Pottawattamie County v. McGhee. At USA Today, Joan Biskupic presents the background and recaps the oral argument in the case, in which the Court will decide whether prosecutorial immunity still applies if a prosecutor falsifies evidence and testimony to frame a defendant. UPI describes an alleged split among the Justices on the issue, while Jurist covers both Pottawattamie County and Wood v. Allen, linking to the lower court rulings in both cases.

Several news outlets have coverage of Graham v. Florida and Sullivan v. Florida, the juvenile life-without-parole cases that will be argued on Monday. Newsweek’s Krista Gesaman has an in-depth discussion of the international debate over juvenile life without parole, outlining the arguments on both sides of the issue and noting the shift brought about by the Court’s 2005 decision in Roper v. Simmons, which banned death sentences for juvenile offenders. Slate has an article by Amy Bach recapping the case of Joe Harris Sullivan, whose conviction arises from the robbery and rape of an elderly woman committed when he was only thirteen. Although the Court won’t be addressing the fairness of Sullivan’s trial on Monday, Bach reports, the process was “so pathetic that it raises questions about whether Sullivan committed the crime in the first place” and may “reflect[] a deep and basic failure of ordinary criminal justice.” Also at Slate, Dahlia Lithwick previews Sullivan and Graham, noting in particular the possibility that the Court could rely – as it did in Roper – on neuroscientific evidence that basic structural differences exist between juvenile and adult brains, which reportedly puts teens at greater risk of acting impulsively and in response to peer pressure.

Looking further forward, Balkinization’s Rick Pildes previews Free Enterprise Fund v. The Public Company Accounting Oversight Board, in which the Court will hear arguments in early December. The case will address congressional and executive control over administrative entities, and may call into question certain aspects of the Sarbanes-Oxley Act of 2002. The case, Pildes posits, could have direct implications for the new policy measures being considered by Congress in light of the current financial crisis. Also addressing Free Enterprise, the Vanderbilt Law Review’s “En Banc” supplement has published a roundtable on the case; the Volokh Conspiracy links to the material.

Also at Volokh, Randy Barnett previews an upcoming panel hosted by the Georgetown Law Journal on McDonald v. Chicago. The panel, which is to take place next Friday, will feature Barnett, Alan Gura (lead counsel in DC v. Heller), Kurt Lash, and David Gans, and will address the case’s potential impact on the privileges and immunities clauses.

Recalling last Term’s ruling in Gross v. FBL Financials, Michael Zimmer of Concurring Opinions has a piece addressing the case’s unexpected implications for employment discrimination law. In particular, Zimmer emphasizes the Court’s decision to shift the focus of the case from whether plaintiffs must present direct evidence of discrimination in certain claims to whether a plaintiff bringing such a claim must prove that his or her age was the “but-for” cause of the discrimination. The Court’s reasoning behind this shifting focus, Zimmer speculates, might lie in the Justices’ desire to avoid the “messy” question of what constitutes direct evidence; alternatively, he notes, the Justices might have shifted their focus based on the changes in the Court’s composition since it last addressed similar discrimination issues. Also looking to the last Term, and in particular to the Court’s ruling in Caperton v. Massey, ACSblog covers the Wisconsin Supreme Court’s recent adoption of a judicial conduct rule providing that campaign contributions alone cannot compel judicial recusal.

At Politico, Josh Gerstein has an article on the Court’s recent decision to solicit the views of the Solicitor General on a case involving Arizona’s attempt to require employers to verify their potential employees’ immigration status. This development, Gerstein writes, puts Homeland Security Secretary Janet Napolitano in a difficult position, as she was named as a defendant in the litigation. It is not yet clear whether Napolitano will decide – or be required – to recuse herself from the matter.

In light of the five-year anniversary of the Court’s decision in United States v. Booker, Sentencing Law and Policy has several pieces today discussing the use of federal sentencing guidelines as advisory rules rather than legal requirements. One article recaps a recent Wall Street Journal piece on the use of the new sentencing guidelines in white-collar prosecutions, while a second piece speculates on Booker’s relationship to federal sentencing disparities.

At ACSblog, Melvin Urofsky previews his new biography of Justice Louis Brandeis, focusing on the Justice’s influence on our current understanding of the constitutional right to privacy. Brandeis, Urofsky writes, published an 1890 article (along with his law partner, Samuel Warren) in the Harvard Law Review drawing on the Fourth and Ninth Amendments, and on tort law, to present the novel idea of a right to privacy; the article became “one of the most cited articles in American legal history,” and served as the precursor to Brandeis’s notable record on privacy rights.

Senator Arlen Specter, who has repeatedly called for Supreme Court sessions to be televised, has taken note of the Justices’ apparent penchant for the camera, The BLT reports. Speaking on the Senate floor, Specter pointed to recent interviews on ABC and CBS, telling his colleagues that “We cannot accept the justices’ plea for anonymity when they so regularly appear before the camera.” Specter also noted that the notoriously camera-shy Justice Souter has retired, perhaps paving the way for a more television-friendly Court.

Petitions to Watch | Conference of 11.6.09

2009-11-06T15:23:07Z

This edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference tomorrow, November 6. 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: 08-1500

Title: Federal Express Corp. v. Equal Employment Opportunity Commission

Issue: If Title VII precludes the EEOC from bringing a direct action against an employer once the employee elects to request the right-to-sue notice and files suit on the claims alleged in his charge, would it be inconsistent with Title VII to allow the EEOC to maintain perpetual jurisdiction to investigate the charge?

Docket: 08-1566

Title: Brittany McComb v. Gretchan Crehan

Issues: Does the First Amendment prohibit public high school officials from censoring student-initiated, student-composed religious speech at a high school graduation ceremony?; can an interlocutory appellant unilaterally restart the 30-day clock for filing an interlocutory appeal by re-filing the same motion previously denied by the lower court?

Docket: 09-152

Title: Russell Bruesewitz v. Wyeth, Inc.

Issue: Does Section 22(b)(1) preempt all vaccine design defect claims, whether the vaccine’s side effects were unavoidable or not?

Docket: 09-311

Title: HCA Health Services, Inc. v. Shinn

Issue: Whether the Due Process Clause requires recusal of a judge in a case in which the chair of her ongoing reelection campaign is lead counsel for one of the parties; whether the same clause requires courts to provide parties with particularized notice and an opportunity to present evidence and submit a written response before imposing a severe sanction such as dismissal or direction of a judgment on liability.

Opinion below (Oklahoma Court of Civil Appeals)
Petition for certiorari
Brief in opposition
Petitioner’s reply

Docket: 09-400

Title: Staub v. Proctor Hospital

Issue: In what circumstances may an employer be held liable based on the unlawful intent of officials who caused or influenced but did not make the ultimate employment decision?

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

Docket: 09-158

Title: Magwood v. Culliver

Issues: 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?; did petitioner’s attorney provide ineffective assistance of counsel by failing to raise an argument at resentencing proceedings that would have made the petitioner constitutionally ineligible for the death penalty?

Other petitions from earlier editions of Petitions to Watch were re-listed for the November 6 conference:

Wong v. Belmontes (08-1263) – originally Conference 9.29
Christian Legal Society v. Martinez (08-1371) – originally Conference 10.19
Manning v. United States (08-1595) – originally Conference 10.30
Noriega v. Pastrana (09-35) – originally Conference 10.9
Bobby v. Van Hook (09-144) – originally Conference 9.29
United States Defense Department v. American Civil Liberties Union (09-160) – originally Conference 10.9

Rethinking Prosecutorial Immunity: Pottawattamie County v. McGhee, Argument Recap

2009-11-06T01:37:49Z

The Court heard oral argument yesterday in Pottawattamie County v. McGhee (08-1065). For background on the case, see my earlier preview. Check the case page on SCOTUSwiki for updates.

The oral argument in Pottawattamie County v. McGhee was an exercise in drawing lines – between policemen and prosecutors, investigation and prosecution, and torts of constitutional and non-constitutional varieties. The main line at issue in the case circumscribes acts that carry immunity for prosecutors. The Court seemed inclined to draw it based on the incentives created for prosecutors and potential litigants.

Justice Stevens depicted the petitioners’ view of immunity as “a strange proposition” – and Deputy Solicitor General Neal Katyal, arguing for the United States and the petitioners, agreed it “seems a little odd.” The idea everyone found so strange was that the closer an officer is to a wrongful conviction, the more immune she is for it. Two hypotheticals Justices Ginsburg and Kennedy posed to Stephen Sanders – also arguing for the prosecutors – zeroed in on that strangeness: Could a policeman be held liable for fabricating evidence? Or could a prosecutor from another case? Sanders was forced to admit that both the policeman and the second prosecutor could be held liable, though the prosecutor of the case himself could not.

For almost twenty minutes, the Court struggled to understand how a prosecutor’s fabrication of evidence is different from a policeman’s. On Sanders’ interpretation, the fabrication alone cannot create a constitutional harm until a prosecutor uses the evidence at trial and the trial ends in conviction. Then the prosecutor alone seems responsible for the harm, Justice Sotomayor asserted. If a policeman can still be responsible for fabricating evidence independent of its use at trial, then aren’t these two different acts subject to different liability? Justice Ginsburg summed it up: “It’s strange to say a prosecutor who wasn’t involved in the trial would have liability, but as long as the prosecutor turns the investigatory material over to himself, there’s absolute immunity.”

To Katyal, Justice Breyer communicated similar frustrations with the conceptual landscape presented by Pottawattamie County. Why can’t the entire prosecutorial act, from investigation to trial, constitute one violation but be divided for the purpose of immunity? Katyal’s answer, which seemed to pacify Justice Breyer in part, was that the statute under which McGhee is suing – § 1983 – allows suits only for constitutional torts; and the only established constitutional right implicated is the right to a fair trial.

Former Solicitor General Paul Clement – arguing for the respondents – faced fast and tough questioning about the practical consequences of his new immunity rule. The Justices seemed openly reluctant to undermine the rule of absolute prosecutorial immunity for fear of “chilling” prosecutors from performing critical duties. Justice Breyer worried a new pre-trial liability would discourage prosecutors from questioning witnesses. He dismissed as less important Clement’s counter-claim that immunity for all acts that contribute to a trial would give malicious prosecutors an incentive to use ill-gotten evidence in court.

Building on that line of questioning, Justices Alito and Scalia, in particular, worried that frivolous charges against prosecutors might become easier to allege if McGhee wins. Justice Alito painted a picture of the criminal justice system in which many witnesses are unreliable – like, he asked in a hypothetical, when a CFO insists no wrong was done at a corporation and then turns to testify against the CEO – and therefore easy game for angry defendants alleging their prosecutor knowingly used false testimony. Scalia added that an acquittal would add more evidence that the testimony was unreliable. The defense Clement set up was that past rulings making suits against prosecutors easier to allege have not actually flooded courts with claims.

Clement further argued that fabricating evidence before trial is a violation of the constitutional right to a fair trial – merely an incomplete one. But Justice Breyer pressed Clement to give a clear line up until which prosecutors could be held liable. He reluctantly committed to one: a prosecutor would be liable for investigatory acts until he found uncontrived probable cause to proceed with a trial.

That was perhaps the brightest line drawn during the oral argument. Wherever the Court ultimately draws the line on prosecutorial immunity, it seems clear they will be looking forward to its practical consequences.

NAMUDNO case is over

2009-11-05T19:55:29Z

A three-judge U.S. District Court this week approved an agreement to end a broad constitutional challenge to the Voting Rights Act’s Section 5 — a challenge that at one time had appeared likely to succeed in the Supreme Court. By attaching their signatures to a proposed consent decree on Tuesday, the three judges put into effect an agreement that allows a small Texas utility district to come out from under Section 5 coverage, and scuttles, for now at least, its constitutional arguments against that provision. No objections to the agreement had been filed since it was put before the District Court Oct. 7.

A post discussing the consent agreement is here. In U.S. District Court, the case is Northwest Austin Municpal Utility District No. One v. Holder (06-1384).

Section 5 requires state and local government units that had a priority history of racial discriminaton in voting to get clearance in Washington to make any changes in their election laws or procedures. The Texas utility district (sometimes known as “NAMUDNO,” took its constitutional challenge to the Supreme Court last Term; the Court decided it by giving a broader reading to the provision that allows some government units to “bail out” from Section 5. That is what NAMUDNO has now been allowed to do, after government findings that it has not discriminated in voting at least for the past ten years.

The three-judge Court was composed of Circuit Judge David S. Tatel and District Judges Paul L. Friedman and Emmet G. Sullivan. That Court had rejected the constitutional challenge to Section 5; the case then went on to the Supreme Court, ending without a constitutional ruling.

Thursday Round-Up

2009-11-05T22:16:03Z

Princeton University’s Program in Law and Public Affairs is hosting a panel discussion next Wednesday titled “Full Court Press: The Supreme Court, the Media and Public Understanding.” The program will focus on issues of public understanding of the Court raised by Justice Sotomayor’s confirmation process over the summer. The panel will feature Emily Bazelon and Dahlia Lithwick of Slate, Adam Liptak of The New York Times, and Jeffrey Toobin of CNN.

Coverage of yesterday’s arguments in Pottawattamie County v. McGhee and Wood v. Allen appears after the jump.

Adam Liptak of The New York Times covers the arguments in both cases, each “involving claims that the criminal justice system had gone badly awry.”

The argument in Pottawattamie County v. McGhee, a case about prosecutors’ immunity for pretrial conduct, dominates much of the coverage. TIME reports on the case’s back-story, which “sound[s] like a television movie, a tale of wrongful imprisonment and the slow, inexorable wheels of justice,” according to Bob Barnes of The Washington Post. Slate’s Dahlia Lithwick writes that the case could become another “instance[] of shocking constitutional wrongs that cannot be corrected by constitutional courts.” NPR, Law.com, and The Christian Science Monitor offer additional coverage of the argument, and The Washington Post’s editorial page weighs in to support the former inmates.

Several reports paid special attention to the attorneys arguing the case. Stephen Sanders, a fourth-year law firm associate, made his Supreme Court debut representing Pottawattamie County, noted the ABA Journal and Above the Law. The WSJ Law Blog commented on the “rematch of Paul Clement and Neal Katyal,” who last argued against one another in 2006 in Hamdan v. Rumsfeld. (Also at that link, Jess Bravin gives a hesitant prediction of a 5-4 victory for the former inmates.)

Kent Scheidegger of the Crime and Consequences blog offers a close reading of the transcript in yesterday’s second case, Wood v. Allen, a capital habeas case about how federal courts should review the facts determined in state criminal proceedings under the Antiterrorism and Effective Death Penalty Act (AEDPA). For Supreme Court practitioners, Scheidegger highlights an exchange with Justice Kennedy: when citing page numbers in the opinion below during argument, attorneys should cite to standard reporters, such as F.3d, rather than the cert. petition appendix. That appears to be what Justice Kennedy prefers, anyway.

In non-argument news, Benjamin Weiser of The New York Times reports on the Second Circuit’s en banc ruling in Arar v. Ashcroft on Monday. The case involves the government’s post-9/11 rendition practices and has been “widely watched.” David Cole, who represents Maher Arar, says that a petition to the Supreme Court is “likely.”

Finally, at National Review Online, Ed Whelan ruminates on the next Supreme Court nomination, noting that “the Left will be pushing for the next nominee to be an ardent advocate of the progressive vision of constitutional decisionmaking.” He predicts that Tuesday’s election results “make it much less likely that the Left will get its wish” if there is a vacancy this summer, as speculated.

Today at the Court

2009-11-05T02:44:01Z

No oral arguments are scheduled and no non-capital orders are expected. The Court will hold a private conference tomorrow, results from which are expected to be announced on Monday.

A Question of Federalism Fades: Beard v. Kindler, Argument Recap

2009-11-04T21:59:52Z

An earlier preview of the case is available here. Check the Beard v. Kindler (08-992) SCOTUSwiki page for additional updates.

It became clear during the Beard v. Kindler oral argument on Monday, November 2, that the question presented in the petition for certiorari – whether a state procedural default rule is inadequate solely because it is discretionary – was not actually in dispute. Everyone – including the respondent and the Court – agreed that discretionary rules can be adequate. Justice Kennedy summed it up in his blunt statement to the Commonwealth’s lawyer, Ronald Eisenberg: “I don’t think the question you presented is really that squarely before us.”

The Justices used most of the Commonwealth’s time trying to pin down the rationale behind the Third Circuit’s opinion. In particular, Justices Sotomayor, Kennedy, and Ginsburg seemed skeptical of the Commonwealth’s assertion that the court of appeals had rejected its fugitive-forfeiture rule merely because the rule was discretionary. By the end of his first half-hour, Eisenberg had all but conceded that the Third Circuit’s ruling had not clearly analyzed how the fugitive-forfeiture rule was improperly applied and thus only effectively held discretionary rules inadequate.

Although the question whether discretionary rules are per se inadequate was settled, an overarching standard for determining when discretionary rules are inadequate remained elusive throughout the argument. From the Commonwealth, the Court heard a narrow range of examples: when rules are applied discriminatorily, as they once were against blacks in the South; or when a different rule is applied at the end of a defendant’s appeal than at the beginning.

By contrast, Matthew Lawry – the advocate for respondent Joseph Kindler – argued that discretionary rules are inadequate if they are “inconsistently applied.” Justice Breyer was eager to nail down just how much variation among courts Kindler would allow. After all, he quipped, “A supreme court in a state is supervising lots of trial courts, and you will have different human beings sitting there as judges, and they will inevitably be inconsistent with each other to some degree. Haven’t you noticed that?” Lawry responded by offering as a metric for consistent application whether or not the court clearly explained itself. At other points, he characterized consistent application as treating similarly situated defendants alike – for example, he reiterated, the trial court considered the claims of Reginald Lewis, another fugitive, but dismissed Kindler’s without explaining the relevant differences between the two cases. During his rebuttal, Eisenberg sought to distinguish Lewis’ case on the ground that he was recaptured within two weeks, while Kindler was at large for seven years.

At least three Justices appeared utterly unconvinced by Lawry’s argument that courts should apply the law as it existed at the time of a former fugitive’s escape, rather than the law that exists when his appeal is decided. Indeed, Justice Kennedy even raised this question as a softball for the Commonwealth. As he explained, the usual reason for such a retrospective approach is to change the incentives of rational actors, either defendants or their lawyers. But when pressed by Justice Kennedy, Lawry wisely conceded that Kindler would have escaped even if he knew he would thereby forfeit his right to appeal.

Beyond his dramatic opening statement that if it were up to the Commonwealth, Kindler would be executed without any “review by any court of his meritorious claim that his death sentence was unconstitutional,” Lawry surprisingly did not focus on the uniqueness of capital cases in habeas law, a major contention in his client’s brief. Justice Stevens, however, raised the issue with the Commonwealth’s attorney, who conceded that no Pennsylvania court had ever applied the fugitive-forfeiture rule to a capital case.

The argument ended with another telling question by Justice Stevens that seemed to render the foregoing hour of questioning a mere academic exercise: could the Court simply answer the question presented with an emphatic “no” and return it to the Third Circuit? Although the Commonwealth’s briefs had argued that the Court should answer the question in the negative, Eisenberg now insisted that such a bare-bones ruling would provide inadequate guidance to the states.

Today’s Transcripts

2009-11-04T20:28:02Z

The oral argument transcripts for Pottawattamie County v. McGhee and Wood v. Allen are here and here.

Interpreting Ambiguous Exemption Claims: Schwab v. Reilly, Argument Recap

2009-11-04T18:54:46Z

Below, Stanford Law School’s Anthony Dick recaps yesterday’s oral argument in Schwab v. Reilly. Anthony’s earlier preview of the case is available here. Check the Schwab v. Reilly (08-538) SCOTUSwiki page for additional updates.

At oral argument in Schwab v. Reilly on November 3rd, the Court grappled with the question of the proper rule to apply when a debtor claims an ambiguous exemption in bankruptcy. The debtor in this case was a caterer who filed a Schedule C bankruptcy form valuing her cooking equipment at $10,718. On the same form, she claimed an exemption in the equipment worth the full $10,718—within her permissible exemption amount. The trustee did not object to this claimed exemption within the required thirty-day period, but he did inform the debtor that he believed the cooking equipment was actually worth closer to $17,000—which exceeded the debtor’s statutory exemption limit. The trustee claimed the right to sell the equipment, give the debtor $10,718 in cash to cover her claimed exemption, and distribute the excess profit to her creditors. The debtor moved to call off the bankruptcy proceeding in response, but the bankruptcy court denied the motion. This left the court to resolve a dispute over what was covered by the exemption that the debtor had claimed—and which the trustee had ratified by failing to object within thirty days.

The debtor argued that because her claimed exemption covered the full estimated value that she had assigned to her cooking equipment on the Schedule C form, she had demonstrated her intent to exempt the equipment in its entirety, which would allow her to retain the equipment itself rather than cash from its sale. The trustee claimed that the debtor had only signaled her intent to exempt a $10,718 interest in her equipment. When the equipment turned out to be worth more than that, the debtor was not entitled to retain the excess value, which would amount to a windfall resulting from her own undervaluation of assets.

The Court’s focus at argument was whether to construe the ambiguity of the debtor’s claimed exemption against the debtor or the trustee. The Justices’ questions reflected the parties’ competing concerns. On the debtor’s side, they asked whether the Schedule C form gives debtors a fair chance to claim an asset as fully exempt: Because the form only asks for the estimated and exempt value of an asset, what clearer way is there for the debtor to claim an asset as fully exempt, within the guidelines of the form, other than to claim an exemption equal to the asset’s value? As an additional consideration, the Justices asked whether the burden of clarifying ambiguities should fall on trustees—who are repeat players familiar with the bankruptcy law and its operation—rather than on debtors, who are often unfamiliar with the process.

Conversely, the Court probed whether construing ambiguities against the trustee would lead to unreasonable administrative burdens, because it might encourage trustees to file preemptive objections to virtually every exemption claimed by a debtor for the full value of an asset, lest the asset turn out to be worth more than the debtor’s valuation. The federal government also joined in the argument on the side of the trustee, arguing that it would be unreasonable to construe a debtor’s claimed exemption as exceeding the amount that a debtor in bankruptcy is statutorily entitled to claim.

Wednesday Round-up

2009-11-04T17:44:24Z

NPR’s Morning Edition has a story on today’s first case, Pottawattamie County v. McGhee, in which the Court will consider whether prosecutors can be held liable under Section 1983 for procuring and then using false testimony to convict a defendant. At ACSblog, Prof. Emily Garcia Uhrig previews Wood v. Allen, in which the Court will hear oral argument this morning. Wood, an Alabama death row inmate, alleges that his trial counsel was ineffective; as Uhrig explains, the case also involves the interaction between two sections of the Antiterrorism and Effective Death Penalty Act – one allowing for federal review of state court factual determinations and the other requiring a presumption in favor of such determinations.

The breaking news yesterday – also about a capital case – was that John Allen Muhammad, the so-called “D.C. sniper,” has asked the Court to stay his execution, which is currently scheduled for November 10. As reported by the Washington Post, Wall Street Journal, and NPR, Muhammad claims that his counsel was ineffective in failing to introduce evidence of his mental illness at his sentencing.

Sentencing Law and Policy highlights this article in the Idaho Statesman on the local impact of the Court’s 2002 decision in Ring v. Arizona, which required that the aggravating factors necessary for death sentences be determined by juries. Because jurors are far less likely than trial judges to sentence a defendant to death, prosecutors in Idaho are now seeking the death penalty less often.

Coverage of Monday’s oral argument in Jones v. Harris Associates continued yesterday. The Washington Post and the Los Angeles Times offer synopses and some background on the lower court proceedings. The Wall Street Journal has its own coverage here, emphasizing the potential impact of the case on mutual-fund fees, which approached $10 billion last year. At the WSJ Law Blog, Ashby Jones adds another recap of Monday’s oral argument. He concludes that the Supreme Court may be willing to accept a more lenient standard for mutual fund fees – “within the range of what would have been negotiated at arm’s length in the light of all of the surrounding circumstances” – than did the Seventh Circuit.

Pundits continued to discuss Jones as well. An opinion piece at the Wall Street Journal raises concerns about court intervention in the market for mutual fund fees, characterizing the lawsuit as “the trial bar’s latest attempt to paint a bull’s-eye on the mutual fund industry.” It makes sense that mutual fund investors pay more in fees, the authors imply, because they invest a lot less than, say, institutional funds. As part of the ongoing Jones forum at The Conglomerate, Brett McDonald expresses doubt about some of the principal arguments being made by both sides in Jones: contrary to what Harris Associates is arguing, market regulation probably has its infirmities; however, despite what Jones is arguing, neither the S.E.C. nor any other government body may be to serve as an effective caregiver. A halfway solution, he suggests, is to allow courts to continue to review mutual fund fees using the “Gartenberg factors,” which tend to favor defendants but allow some big settlements. Usha Rodrigues, in the same forum, has a post about the purported independence of mutual fund advisers and their boards of directors; she draws an entertaining analogy between advisers and Coke machines. The most recent post by Gordon Smith examines Congress’s use of the word “fiduciary” in the statute at issue in Jones for the purpose of interpreting fiduciary duties.

Kent Scheidegger at Crime and Consequences points out a quip by Scalia that had the audience laughing at Monday’s oral argument in Beard v. Kindler.

Today at the Court

2009-11-04T14:09:56Z

The Court will hear arguments in two cases today:

10 a.m. – In Pottawattamie County v. McGhee (08-1065), the Court will consider whether prosecutorial immunity extends to misconduct during preparation for trial. A preview of the argument appeared yesterday on SCOTUSblog.

11 a.m. – At issue in Wood v. Allen (08-9156) is the scope of federal court review of facts determined in state criminal proceedings. Tiffany Cartwright, a 3L at Stanford Law School, provided an early discussion of the case last week on SCOTUSblog.