SCOTUSblog

Witness list released for Judge Sotomayor’s confirmation hearing

2009-07-09T17:56:42Z

Sen. Patrick Leahy has announced the list of witnesses to testify at Judge Sonia Sotomayor’s confirmation hearing on July 13 at 10 a.m. The Senator’s press release is available here. Among the witnesses invited by the Republican Minority of the Judiciary Committee is Frank Ricci, the petitioner in the Second Circuit case reversed by the Supreme Court last month.

Brennan Center for Justice on Judge Sotomayor’s Record in Constitutional Cases

2009-07-09T14:57:03Z

A study by New York University Law School’s Brennan Center for Justice has analyzed 1,194 constitutional cases decided during Judge Sotomayor’s tenure on the Second Circuit and found her to be solidly in the mainstream of the bench. On the Second Circuit, Judge Sotomayor has voted with the majority in 98.2% of constitutional cases and 94% of her constitutional decisions have been unanimous. The Brennan Center’s publication can be downloaded here and the New York Times has a good summary piece here.

Over 1000 law professors join letter endorsing Sotomayor

2009-07-08T17:18:35Z

In a letter received today by the Senate Judiciary Committee, more than 1000 academics expressed their support for Judge Sonia Sotomayor’s confirmation to the Supreme Court.

A number of signatories with diverse specialties and political leanings discussed via conference call Judge Sotomayor’s qualifications and strongly rebuked any characterization of her as a liberal ideologue. The professors believed Judge Sotomayor to be a moderate, pragmatic, and incrementalist jurist across all areas of law.

Judge Sotomayor’s criminal law record has been recently highlighted by the White House and the Democratic majority of the Senate Judiciary Committee (which released a report yesterday on 800 criminal cases) as an example of how she is a “consensus judge.” Professors echoed this sentiment, calling her decisions workmanlike and centrist. Charles Ogletree, a Harvard Law School professor, said that Judge Sotomayor has not in any way expanded, enhanced, or departed from the precedent established by the Supreme Court on law enforcement issues. Robert Weisberg, a Stanford Law School professor, emphasized that in habeas corpus cases, Judge Sotomayor has been a “model of meticulousness” and strictly followed Congress’s statute.

Likewise, she has split evenly in ruling for plaintiffs or defendants in business cases: Columbia Law School Professsor John C. Coffee called her a “standout” for businesses in the field of class action certification (citing her participation in In re IPO Securities Litigation), while Arthur Miller, a New York University Law School professor, said she also has shown concern for consumers and public safety in litigation.

Sen. Mitch McConnell’s criticism of the Second Circuit’s short summary order in Ricci v. DeStefano might also be deflected by looking at Judge Sotomayor as a consensus builder; Prof. Miller said that on such a difficult case the three judges could only come to an unanimous result by eschewing elaborate language.

Harvard Law School Professor Laurence H. Tribe said that Judge Sotomayor is the “most confirmable” nominee in decades and that the extremely high number of professors signing the letter and their uniform endorsement was unprecedented.

Reports on Judge Sotomayor’s Record

2009-07-09T21:51:10Z

In anticipation of Judge Sonia Sotomayor’s confirmation hearings, which begin Monday, July 13 at 10 a.m., we’ve organized by subject matter the dozens of published reports and substantive blog posts about her judicial record. (Links are below the jump; PDFs of longer, more formal reports are noted with an asterisk.) If we’ve left out other significant pieces that analyze her written decisions or provide data–rather than opine on her nomination generally–please e-mail us the link.

General

*Association of the Bar of the City of New York

Report on the Nomination of Judge Sonia Sotomayor

CNN

Sotomayor’s resume, record on notable cases

*Congressional Research Service

Judge Sonia Sotomayor: Analysis of Selected Opinions

Concurring Opinions Blog

Mirror, Mirror on the Wall, Who is the Most Activist of Them All?

Ethics and Public Policy Center-Ed Whelan

The Record of Supreme Court Nominee Sonia Sotomayor

National Law Journal

New York Times

Volokh Conspiracy

Access to the courts

*Alliance for Justice

Access to Justice Report on Supreme Court Nominee Judge Sonia Sotomayor

Business

*Alliance for Justice

Business and Consumer Litigation Report on Supreme Court Nominee Judge Sonia Sotomayor

Class Action Blawg

Supreme Court Appointee Sotomayor’s Judicial Record in Class Actions

Conglomerate Blog

Ideoblog

Sotomayor, business and preemption

New York Times

Sotomayor’s Opinions in Business Cases Cut Both Ways

Text and History Blog

Think Progress

Where Does Sotomayor Stand on the Commerce Clause?

Volokh Conspiracy

Wall Street Journal

In Business Cases, Portrait of Sotomayor Begins To Emerge

Civil Rights

*Alliance for Justice

Report on Judge Sonia Sotomayor’s Civil Rights & Constitutional Protections Record

*American Civil Liberties Union

Report of the ACLU on the Nomination of Judge Sonia Sotomayor, to be Associate Justice on the U.S. Supreme Court

*Lawyers’ Committee for Civil Rights Under Law

Report on the Civil Rights Record of Supreme Court Nomineee Judge Sonia Sotomayor

Volokh Conspiracy

Judge Sotomayor & Race Cases

Criminal

*Alliance for Justice

Criminal Justice Report on Supreme Court Nominee Sonia Sotomayor

Crime and Consequences Blog

Sonia Sotomayor’s Death Penalty Memo
Judge Sotomayor and the Death Penalty
Judge Sotomayor and AEDPA
PDF summarizing a large number of AEDPA cases

Majority Staff of the Senate Judiciary Committee

Sonia Sotomayor: The Criminal Justice Record

McClatchy

Sotomayor’s record reveals she’s far from soft on crime

Volokh Conspiracy

White Collar Crime Prof Blog

Disability

Bazelon Center for Mental Health Law

Preliminary Review of Disability Cases of Judge Sonia Sotomayor

Elections

Election Law Blog

Viewing Judge Sotomayor Through Her Election Law Decisions: Careful, Thoughtful, Mainstream Leaning Left

First Amendment

Baptist Joint Committee for Religious Liberty

A church-state evaluation of the latest nominee to the U.S. Supreme Court

First Amendment Center

New York Times

A Long Record on Campaign Finance, Often in Support of Regulations

*Reporters Committee for Freedom of the Press

A summary of media-related decisions by Supreme Court nominee Sonia Sotomayor

National Security

CQ Politics

Sotomayor has Scant Record on National Security

Second Amendment

Blog of the Legal Times

7th Circuit Ruling Agrees With Sotomayor on Second Amendment

Volokh Conspiracy

Sonia Sotomayor and the Second Amendment

Dueling appeals on terrorism policy

2009-07-07T11:15:25Z

With a Justice Department case already at the Supreme Court on the government’s power to make it a crime to support a terrorist organization, lawyers for organizations and individuals on the other side of the controversy filed their own plea Tuesday, asking the Court to take a broader look at a key federal law if it opts to rule at all.

Since 1996, five years before the 9/11 terrorist attacks, it has been a crime to provide “material support or resources” to any group designated by U.S. officials as a “foreign terrorist organization.” Congress revised the law somewhat in 2004, three years after the attacks.

That law, the Justice Department told the Court in its petition filed on June 4, “is an important tool in the Nation’s fight against international terrorism.”

Federal prosecutions since 2001 have pursued “material support” cases against 120 individuals or organizaions (with convictions in about half of the cases). But the Ninth Circuit Court has struck down several parts of the law, finding them too vague to satisfy the Constitution, and finding that they threaten free speech rights of those who would support non-violent activities of the designated organizations.

The Department’s petition (found here) challenges those parts of the Circuit Court decision. In an opposition brief filed Tuesday, lawyers for American affiliates of designated organizations urged the Supreme Court not to hear the government appeal.

The Ninth Circuit upheld some other provisions in the law. If the Supreme Court hears the government case, the American affiliates’ lawyers argued in a separate filing, it should also review these other aspects of the appeals court decision. The conditional cross-petition can be found here. (A docket number has not yet been assigned.)

The two foreign organizations at the center of this controversy are the Kurdistan Workers’ Party and the Liberation Tigers of Tamil Eelam. They were both designated foreign terrorist groups by U.S. officials for what the government contends were a series of terrorist attacks in Turkey or in Sri Lanka, respectively.

Two U.S. citizens and five domestic organizations have contended in their challenge to the material support law that both of those organizations carry on legal, non-violent, humanitarian projects, and they want to provide financial support for those efforts.

Their lawsuit has meandered slowly over more than 11 years through federal courts, including one unsuccessful attempt to appeal to the Supreme Court in 2001.

In the most recent decision in a federal appeals court, the Ninth Circuit struck down as too vague the parts of the law that criminalize support for terrorist groups through “training,” “expert advice or assistance,” or “service.” That Court, however, upheld provisions that make it a crime to provide assistance to a designated organization through “personnel” or “scientific or technical knowledge.”

The Court is not expected to act on either petition until it returns from summer recess in late September.

U.S.: Strong stand on pay-for-delay on drugs

2009-07-07T02:06:33Z

UPDATE: The Justice Department brief is now linked.

——–

Six times in recent years — as recently as two weeks ago — the Supreme Court has refused to hear claims that it is illegal for a drug maker holding a patent on a brand-name medicine to pay the maker of a generic version to keep that version off the market or delay its entry. The Court has done so, in part, at the suggestion of the federal government, although Justice Department officials have expressed misgivings about the practice and the Federal Trade Commission has condemned them as illegal when large payments are involved.

On Monday, in a case directly related to the one the Justices turned aside on June 22, the Obama Administration’s Justice Department took a strong stand, arguing that such “reverse payments” are probably illegal under antitrust law, especially if they involve a large payment. In the case at issue, the patent holder paid $349 million to the maker of a generic version of “Cipro,” a brand-name antibiotic.

The new Justice Department brief was filed in the Second Circuit Court, in response to that Court’s request in April for the government’s views. The case is Arkansas Carpenters Health and Welfare Fund, et al., v. Bayer, AG, et al. (Circuit docket 05-2851). The Arkansas Carpenters litigation has been proceeding on parallel appeal tracks from the same District Court ruling upholding a “reverse payment” scheme involving Cipro.

A petition bearing the same name was the one denied by the Justices last month (docket 08-1194). That was an appeal from the Court of Appeals-Federal Circuit. The Supreme Court had been asked either to hold that case until after the Second Circuit ruled on the related case before it, or to ask the Justice Department for the government’s views. The Court did neither, simply denying review — without explanation, as usual.

In the new brief filed in the Second Circuit, the Department contended that “reverse payment” transactions should be subject to “antitrust scrutiny,” but they are not always illegal. They should be judged, it said, under a “rule of reason” when there is a claim that they harm competition and thus may violate federal antitrust law.

But, it went on, when the transaction involves a payment to get a generic drugmaker to drop a challenge to the patent on the brand-name drug, and to stay out of the market at least for a time, that is “presumptively unlawful.” The consequence of such deals, it added, “can be severe,” depriving consumers of “significant benefits from price competition in the pharmaceutical industry.”

The companies involved in such an agreement, according to the brief, should be given the opportunity to come forward with proof that the payment did not “purchase reduced competition.”

If there is no other explanation for such a transaction, it said, “such a payment is naturally viewed as consideration for the generic’s agreement to delay entry…” A payment in exchange for such exclusion, it said, would be presumed illegal. A payment, however, might be defended, it added, if it was no higher than what the patent holder would have spent in defending the validity of its patent in court. An amount “greatly in excess” of that, it added, could mean antitrust liability for harming competition.

In the Arkansas Carpenters cases, a group of labor unions, their health benefit plans, and individual workers, all of whom are direct buyers of the anti-biotic Cipro, plus benefit funds that are third-party payers for the medicine. They are seeking to revive an antitrust lawsuti against brand-name drugmaker, Bayer AG, and its U.S. subsidiary, Bayer Corp., and a generic manufacturer, Barr Laboratories, Inc., along with Barr’s business partners who challenged Bayer, leading to the “reverse payments” deal.

A panel of the Second Circuit on April 6 asked the Justice Department to file a brief on “whether settlement of patent infringement lawsuits violates the federal antitrust laws when a potential generic drug manufacturer withdraws its challenge to the patent’s validity, which if successful would allow it to market a generic version of a drug, and the brand-name patent holder, in return, offers the generic manufacturer substantial payments.”

The panel held a hearing on the case on April 28, without waiting for the Justice Department’s views. On the same day of the hearing, it asked the Department another question: whether the Circuit Court had jursidiciton over the case where the probability of invalidity of the Cipro patent “may be an issue.”

After answering the first question, suggesting potential illegality, the Department argued that the Circuit Court does have jurisdiction. Such a case, it said, does not require a claim that raises an issue under patent law.

“If the settlement involves a payment in exchange for the generic manufacturer’s areement to withdraw the challenge to the patent and to delay entry, there is no need to determine whether the patent would in fact have been held invalid in order to conclude that the settlement likely disadvantaged consumers,” the brief argued.

If an antitrust lawsuit over a “reverse payment” can be analyzed under a rule of reason approach, that would not require that the case be diverted from a regular Circuit Court to the Federal Circuit, it contended.

New challenge on “state secrets”

2009-07-07T02:04:46Z

Seeking to go forward with a legal challenge to the Bush Administration’s secret “rendition” program, lawyers for individuals claiming to have been tortured during that program urged a federal appeals court Monday to turn aside an Obama Administration move to shut down the case altogether.

In a brief filed in the Ninth Circuit Court, the attorneys said that the government is attempting to create “an expansive immunity regime shielding any Central Intelligence Agency contractor from liability” to torture victims, “regardless of the circumstances.”

The case, Mohamed, et al., v. Jeppesen Data Plan, et al. (Circuit docket 08-15693), is almost certain to reach the Supreme Court at some point. It may be delayed, however, if the Circuit Court agrees to the government request to reconsider the case en banc.

A Circuit Court panel, in a ruling on April 28, narrowed significantly the government’s power to block lawsuits entirely, before they can advance, by claiming the need to protect “state secrets.” A post discussing the ruling can be read here. The Justice Department sought rehearing in a filing June 12 (see this post).

Under the “rendition” program, individuals suspected of terrorist activity were picked up abroad, and transferred to other countries for detention, interrogation, and, in some cases, abuse and torture, according to the claims made by former detainees. The lawsuit is aimed not only at the federal government, but at a Boeing Co. subsidiary, Jeppesen DataPlan, Inc. The former detainees contended that the San Diego-based air trnaposrtation firm provided theplanes and flights to the CIA to move detainees to so-called “black sites’ abroad. (The company has also sought rehearing en banc.)

The Circuit Court on June 15 asked the ex-detainees’ lawyers to respond to the rehearing requests. The “state secrets privilege,”
the brief contended, is meant only to limit certain items of evidence from coming into open court; it is not a shield against litigation altogether. However, the brief said, the federal government continues to treat the two concepts as if they were one.

The brief acknolwedged that some courts “have permitted the government to invoke the evidentiairy state secrets privilege to terminate litigation even before there is any evidence at issue. Those courts have in effect created a de facto non-justiciability rule.’

Nothing in Supreme Court precedent allows such an expansive reading of the privilege, the lawyers argued. It seriously distorts constitutional principles of separation of powers, they contended, to hand over to Executive Branch officials who ran a program of “grave human rights abuses” to determine how a court case against them will be allowed to proceed.

Academic Round-Up

2009-07-05T23:08:09Z

Ted Eisenberg (Cornell University Law School), Michael Heise (Cornell University Law School), and Martin Wells (Cornell University Department of Social Statistics) have posted “Variability in Punitive Damages: An Empirical Assessment of the U.S. Supreme Court’s Decision in Exxon Shipping Co. v. Baker” on SSRN, see here. In this paper, the authors more or less reaffirm their earlier findings that there is “overall restraint” in awards of punitive damages in state courts, and that the size of compensatory damage awards is strongly correlated to the size of punitive damage awards in their random sample of both jury and bench trials in 46 of the 75 most populous counties in the United States. Of particular significance, the authors criticize the Court for relying on their earlier study, see here, in suggesting in Baker that punitive awards at all compensatory damages levels have been unpredictable (primarily on the basis of a table of summary statistics in their original article). Yet, as the authors point out in their current paper, the high variability (and higher mean) of the ratio between punitive and compensatory damages awards occurs when the compensatory award is less than $10,000. In other words, the Court struck down a high punitive damages award in Exxon Shipping when there was a high compensatory award ($500 million) on the basis of the unpredictability of punitive damage awards when compensatory awards are under $10,000. In the Court’s defense, while it is true that figures 1 and 2 in the authors’ original article are suggestive that the variability in punitive awards occurs primarily with respect to lower compensatory awards, that observation is not at all clear from the original article, particularly for those that do not engage in empirical or statistical work. In defense of the authors, their article was not intended to analyze variability in punitive damage awards based on the size of compensatory damage awards; the authors’ 2006 article was aimed at analyzing variability in punitive awards between jury and bench trials, and to determine whether the size of punitive awards have increased over time. However, this article does demonstrate the risk when the Court relies on complicated statistical studies, particularly those that are not directly on point, but I also think that empirical scholars should do a far better job in making their studies more accessible to non-statisticians.

Given that the hearings for Sonia Sotomayor are scheduled to begin in little more than a week, I thought I would point our readers to a co-authored paper (with Ryan W. Scott) I published late last year entitled “Navigating the New Politics of Judicial Appointments,” see here. It was one of the few scholarly papers out there that looks at the federal judicial appointments process, and particularly the Supreme Court appointments process, from the viewpoint of the Executive Branch. So many books and papers focus on the appropriate role of the Senate in the process, but very few focus on the President’s role. Two other great resources for examining judicial appointments from the viewpoint of the President are Christine Nemacheck’s excellent book entitled “Strategic Selection: Presidential Nomination of Supreme Court Justices from Herbert Hoover through George W. Bush,” see here, and Michael Gerhardt’s 1998 article entitled “Toward a Comprehensive Understanding of the Federal Judicial Appointments Process,” which was published in the Harvard Journal of Law and Public Policy, but is unfortunately unavailable online either through a free service or the journal’s website.

The Week Ahead

2009-07-05T19:19:23Z

The Court has recessed for the summer. It will return on Sept. 9 for a hearing on Citizens United v. FEC (08-205), in advance of the new Term. The 2009 Term opens on Monday, Oct. 5. The Court’s color-coded calendar with dates of its sittings and its Conferences can be downloaded here.

On Monday, the Legal Times will host a Term review panel, “Sizing Up the 2008-2009 Supreme Court Term: A Practitioner’s View.” More information is available here. On Wednesday, Lyle Denniston will lead a panel discussion at the National Constitution Center in Philadelphia. More information is available here.

The petitioner’s merits brief is due Tuesday in NRG Power Marketing, LLC, et al. v. Maine Public Utilities Commission, et al. (08-674) and due Friday in Schwab v. Reilly (08-538). The respondent’s merits brief is due Monday in Mohawk Industries, Inc. v. Carpenter (08-678). [Links direct to case pages on SCOTUSwiki.]

Analysis: New obstacles to wartime challenges

2009-07-04T20:09:39Z

Analysis

It has never been easy to sue government officials for actions they take in wartime, and such challenges, when allowed, fail more often than not. One of the main problems has been that most of the information that is crucial to the case is in the goverment’s hands, and it is seldom eager to provide it — citing national security or the need to protect “state secrets.’

The obstacles, though, may be even higher now, as lawyers for a Kentucky man, Scott Tooley, are discovering in the wake of one of the Supreme Court’s too-little-noticed, recent rulings. His case could be put to an end before it can unfold any further in court.

Tooley and court-appointed lawyers taking his side were moving ahead with his lawsuit after the D.C. Circuit Court gave permission in February. He had sued three top government officials over what he claims are years of harassment and illegal surveillance resulting from a piece of advice that he gave an airlne ticket agent soon after the 9/11 attacks. Now, his case faces potential dismissal following the Supreme Court ruling on May 18, in Ashcroft v. Iqbal (07-1015).

Last Wednesday, in one of the first signs of the wide significance of the Iqbal decision, a D.C. Circuit panel agreed to reconsider its February decision allowing Tooley v. Napolitano, et al., to proceed at least through some pre-trial stages in U.S. District Court.

The government’s rehearing petition, with the Circuit’s February decision attached, is here; the Tooley opposition is here. Before the Circuit panel granted rehearing, it sought further briefs on the effect of the Iqbal decision. The government’s supplemental brief is here, the Tooley brief is here.

When the panel holds a new hearing, now set for Oct. 8, the case will take shape as a test of whether the courthouse door is going to be nearly closed to lawsuits claiming constitutional violations by high government officials when the claims touch on national security — out of court before any significant gathering of facts.

Unable to get data from inside the government to bolster claims of illegal actions, those who sue in the future may not have enough substance to their claims to get past an opening dismissal demand by the government.

That would be a direct consequence of the Iqbal decision, and of a 2007 Supreme Court ruling, Bell Atlantic v. Twombly (05-1126), that is almost certainly completely unknown outside of the legal community.

Tooley traces his woes to a comment he had made in March 2002, during a telephone conversation to buy tickets from a Southwest Airlines agent. After the transaction was completed, the agent asked Tooley, his complaint says, whether he had any comments or suggestions. Tooley said that, in the wake of the 9/11 attacks, Southwest should scrren everything that went on board a plane, and suggested that, if proper security were not adopted, travelers would be less safe because someone could ”put a bomb on the plane.”

The agent reportedly reacted with alarm, saying “you said the ‘b’ word.” Tooley says he tried to explain his remark, but the agent put him on hold; after 20 minutes, with no further response, he hung up. More than a year later, according to his complaint, his toubles began.

He and members of his family detected unsual sounds on their telephones, fearing wiretapping. He later contended that the family had been targeted by President Bush’s controversial warrantless eavesdropping program. He also contended that an official-looking car was parked outside his home in Louisville, Ky., for two weeks prior to and after a visit to the city by Presiden Bush. He claimed that radio frequency monitoring devices had been placed on his car. And, every time he has traveled by air, he has been subjected to an intrusive and sometimes degrading search. He also said he suspected these searches were the result of him being placed on the government’s terrorism “watch lists.”

After failing to get supporting information through a series of Freedom of Information Act requests, Tooley sued the U.S. Attorney General, the Secretary of Homeland Security, and the head of the Transportation Security Administration (among others no longer in the case). He claimed violations of his constitutional rights to privacy and to free speech.

In response to his allegations, Justice Department officials have called them “fantastic” or “fanciful,” and have likened them to claims by deranged individuals who advanced ”bizarre conspiracy theories,” such as secret government placement of monitoring devices or a camera inside one’s brain.

U.S. District Judge Colleen Kollar-Kotelly ruled in December 2006 that it was “altogether possible” that he was the target of unlawful wiretapping by state and local officials, not federal officers, and thus he could not raise that claim against the top U.S. officials. The judge also found she had no authority to rule on his claim of being put on terrorist lists.

The Circuit Court panel, however, found by a 2-1 vote that, while his claims were “thin” and that he may not be able ultimately to show that they were “plausible,” they nevertheless had sufficient substance that the case could at least progress to an evidence-discovery phase — although the Courtcautioned that, because the case involved national security, that phase should be kept closely controlled by the trial judge.

The debate within the panel focused on both the differing weight the majority and dissent assigned to Tooley’s claims, and on the meaning of the Supreme Court’s 2007 decision in Twombly. In that decision involving an antitrust claim, the Justices by a 7-2 vote put strong emphasis on the need for a lawsuit to demonstrate plausibility at the outset. “Plausible grounds” must be included in the complaint, the Supreme Court held, sufficient “to raise a reasonable expectation that discovery will reveal evidence” of illegal action.

Lower courts have had difficulty interpreting what Twombly required, and have disagreed even on whether it laid out a new standard of what must be in an original legal complaint for it to survive at all.

Responding to the Circuit Court ruling in Tooley, the Justice Department sought rehearing, either by the panel or en banc. It focused heavily on the Twombly decision, and on a more recent sequel (Pacific Bell v. Linkline Communications, 07-512, decided Feb. 25). The government again argued that Scott Tooley’s claims lacked any substance. It also said that allowing the case to go forward would pose some threat to national security. And it noted that the Supreme Court was at the time considering the Iqbal case, in the context of challenges to high officials in the post-9/11 context.

Tooley’s side argued that Twombly broke no new legal ground, and that Tooley’s case was merely a routine, fact-specific case. That brief also argued that the Iqbal case should have no effect on this case.

The Iqbal decision then emerged, with the Court blocking a lawsuit against former Attorney General John Ashcroft and current FBI Director Robert Mueller. The lawsuit claimed that they had authorized and supervised mistreatment of scores of men of Arab Muslim lineage rounded up after the 9/11 terrorist attacks.

The Justice Department promptly notified the Circuit Court of the Iqbal decision; the panel was still pondering the rehearing plea in Tooley. The Circuit panel then called for new briefs on Iqbal.

The Justice Department argued that the Justices’ new ruling meant that the Circuit Court was wrong in keeping the Tooley case alive. In Iqbal, it noted, the Justices had said that “naked assertions” of illegal acts, without “further factual development,” would not be sufficient to avoid dismissal. The effect of Iqbal, it added, was to undermine D.C. Circuit precedent upon which the panel had relied in Tooley.

The government also repeated its claim that Tooley’s lawsuit was built on “fanciful, paranoid, or irrational” beliefs (citing as support the words of the Circuit panel’s dissenting judge).

The lawyers filin gon behalf of Scott Tooley — Richard P. Bress and “Gabriel K. Bell of Latham & Watkins in Washington — argued that Iqbal did not change the law, and did not aler the Twombly rule on plausibility requirements. Unlike the Iqbal complaint, which rested on legal conclusions, Tooley’s lawsuit rested on factual allegations, the brief said.

“Tooley’s complaint,” that brief contended, “goes well beyond merely reciting the elements of the constitutional violations at issue… He alleges harm from specific events, arguably linked to government conduct.”

After pondering the issue for nearly a month, the Circuit Court panel on Wednesday ordered rehearing, laid out a new briefing schedule, and set oral argument for Oct. 8 at 9:30 a.m. The panel is composed of Chief Judge David B. Sentelle, Circuit Judge David S. Tatel and Senior Circuit Judge Stephen F. Williams. (Sentelle was the dissenter in the February ruling, written by Williams.)

The President, on long-term detention

2009-07-03T15:24:56Z

President Obama, in a press interview on Thursday, said it would give him “huge pause” to create a new system of long-term detention without trial of terrorism suspects. After a flurry of news accounts, floating unattributed reports that the President would set up such a system by Executive Order, he told the Associated Press that “I am not comfortable with doing something this significant through executive order.”

Overall, he said, his administration was proceeding “very carefully on this front.” He added that “it may turn out after looking at all the dimnsions of this, that I don’t feel comfortable with the proposals that surface in how to deal with this issue…”

The part of the interview dealing with this subject can be read here.

Hyperlinked Opinion: Ricci v. DeStefano

2009-07-02T19:34:17Z

Courtesy of PARADOCS, a hyperlinked version of the decision in Ricci, et al., v. DeStefano, et al. (07-1428) is available here [Note: the document is hosted on an outside download site because of its large file size (25 MB)]. All references within the opinion are hyperlinked to the relevant documents.

Justices to London, change in calendar

2009-07-01T21:22:50Z

The Supreme Court said Wednesday that a number of the Justices will go to London in October to attend opening ceremonies for the newly established Supreme Court of the United Kingdom. (A Wikipedia entry on that new Court can be found here.) As a result of the Justices’ trip, the sitting calendar for October will be modified slightly.

The Justices’ private Conference that normally would have been held on Friday, Oct. 16, will be held instead on Monday, Oct. 19, the Court said. Before the Conference that day, the Justices will be on the bench at 10 a.m. to admit lawyers to its Bar; no oral arguments will be scheduled that day. Orders resulting from that Conference will be released on Tuesday, Oct. 20, at 10 a.m.; the Court will not be on the bench that day.

These changes are reflected in the Court’s color-coded calendar for the full Term that opens on Monday, Oct. 5, showing dates of its sittings and its Conferences. It can be downloaded here.

The Court has not yet completed its calendar for oral arguments that it will hear in the first session, Oct 5-14.

The Sotomayor Confirmation Hearings as a Non-Event

2009-07-01T02:18:34Z

A few days after the President nominated Sonia Sotomayor, I labeled the question of her confirmation “over.” Along the same lines, I wanted to lay out why I think the hearings themselves will be a complete non-event.

Republicans have nothing significant to gain by making the hearing a media event, so they won’t. For her part, Judge Sotomayor is likely to adhere to the modern tradition of saying as little as necessary. The result is a conspiracy of convenience in which not much is likely to happen.

Start with the inevitable outcome. Absent a bombshell development, she is going to be confirmed. Democrats are about to have a 60-vote Senate majority. Moderate Republican Senators – e.g., Collins and Snow – will make up for any (unlikely) Democratic defection.

Nor is there any prospect of an effort to mount a filibuster. Opponents haven’t developed a narrative justifying that step.

The vote in the judiciary committee won’t be close either. Democrats have a dramatic 12-7 advantage in membership.

There are political disadvantages to drawing attention to the hearings. To the extent it has considered the question, the non-ideologically committed public – effectively, independents – seemingly likes her and thinks she should be confirmed.

Judge Sotomayor is of course the first Latina nominee to the Court. This is a historic moment for Hispanics. The third appointment of a woman is also significant, though less profound. Those are important electoral groups.

Beyond demographics, Judge Sotomayor has a compelling life story. She not only came from a poor upbringing, but she continues to live very modestly after a career of almost exclusive public service.

She is objectively qualified. She graduated at the top of her class at Princeton and did well at Yale. She was a prosecutor, private practitioner, trial judge, and appellate judge.

However positive the impression is now, it’s only going to gravitate further in that direction under what will presumably be a well-orchestrated White House roll out of her, the family, colleagues, and experts.

Publicly attacking Judge Sotomayor in the general population puts a Senator on the wrong side of public opinion.

Given that there is no real prospect of derailing Judge Sotomayor confirmation, and the prospect of causing self-inflicted wounds by attacking her, I expect that conservative Senators will lower their profile. They will note their opposition and state their principles, but limit their strong advocacy (that otherwise could come across publicly as badgering) to the already committed conservative community.

Contrast that with the array of “speakers” who have everything to gain with aggressive advocacy in support of Judge Sotomayor. The Judge herself will speak, and by all accounts will present herself very well. The Administration, liberal advocacy groups, supporting senators, and other varied supporters are all fully engaged.

They have a significant audience, with much to gain beyond the votes of undecided Senators in this inevitable confirmation. This will be a celebratory event for Hispanics, who will associate it with the President. Women will appreciate the Court’s greater diversity.

More broadly, the confirmation hearings are an opportunity for the Administration – if it can seize the offensive – to use a popular nominee to further define the President. Though the general public does not care much about the Court, the perception of a nominee in a high-profile nomination process does translate to some extent onto the President that made the appointment. If she is regarded as a radical liberal, for example, that will say a good deal about the President who picked her.

Don’t overread my conclusions. I don’t expect that conservative Republicans will roll over and vote to confirm Judge Sotomayor. They won’t. They genuinely believe or suspect that she is too liberal and that she has inappropriate views on legal questions, including basic issues such as how to interpret the Constitution.

Rather, my point is that we should not anticipate that Republican Senators will put on a very public display of opposition, with heated and detailed questions and public statements. Conservatives are already convinced that Judge Sotomayor shouldn’t be confirmed. Senators concerned about that community will speak to it directly.

So I expect that Republicans will make generalized points about her supposed ideology and views on the role of judging (e.g., the comment in the Duke panel about appellate judges making policy), then make four more particular points (in no particular order) without trying to engage Judge Sotomayor. As they will put it . . . .

First, they were denied sufficient time to prepare, given the massive amount of material relating to her record. This is a facially valid, seemingly neutral reason for opposing her.

Second, her property rights ruling in Didden v. Village of Port Chester is troubling. In the wake of the Supreme Court’s decision in the Kelo case, property rights questions have resonated broadly with the public, and the facts underlying the claim that Judge Sotomayor rejected in Didden can be described in sympathetic terms.

Third, her membership in the Belizean Grove was inappropriate under the judicial ethics rules. Again, a neutral objection.

Fourth, her decision in Ricci was wrong, in both substance and procedure (i.e., the Second Circuit’s summary disposition of the case). Here too, the claims of the plaintiff firefighters can be described sympathetically.

I don’t expect the question of guns to play a significant role, beyond simply being mentioned. Judge Sotomayor sat on a panel concluding that the question of the Second Amendment’s incorporation was previously settled by the Supreme Court, a result consistent with a Seventh Circuit panel that included Judges Posner and Easterbrook. That’s a simple answer to the allegation that she is opposed to gun rights, and – beyond the committed gun rights community – this is an issue will get discussed simplistically.

I also don’t think that the original hype regarding race in Judge Sotomayor’s decisionmaking will take center stage. That seems to have run its course. The “wise Latina” remark stands pretty much alone. Her record on race cases is objectively balanced. And aggressively pressing questions of race with a Latina nominee on national television is dangerous to the point of explosive.

With few attacks and no credible threat that Judge Sotomayor will be confirmed by less than a wide margin, press and public interest in the hearings is likely to be muted. For the first time in memory, NPR will not cover the hearings live, with stations preferring to run their expanded local programming. PBS will cover the days in which the Judge Sotomayor testifies, but is undecided about later days with panels of witnesses.

In general, by the evening of Wednesday July 15, I expect that coverage in the mainstream media will have fallen off a steep cliff.

Opinion Recap: Cuomo v. The Clearing House Ass’n, L.L.C.

2009-06-30T22:12:47Z

Please note that Howe & Russell filed an amicus brief in this case on behalf of the Lawyers’ Committee for Civil Rights Under Law, National Fair Housing Alliance, and NAACP Legal Defense and Educational Fund, Inc. in support of the petitioner.

In 2005, the New York Attorney General began an investigation into the lending practices of several national banks that he believed, based on publicly available data, had issued a disproportionate number of high-interest loans to minority borrowers. The Office of the Comptroller of the Currency (OCC) and a banking trade group went to federal court to enjoin the Attorney General’s investigation, arguing that a 2004 regulation promulgated by the OCC prohibited states from enforcing their own fair lending laws. Both the district court and the Second Circuit agreed with the OCC, and the New York Attorney General sought Supreme Court review.

Yesterday the Supreme Court, by a vote of five to four, largely rejected the OCC’s argument. At issue in the case is a provision of the National Bank Act which – as relevant here – provides that national banks shall not “be subject to any visitorial powers except as authorized by Federal law [or] vested in the courts of justice.” In 2004, the OCC adopted a regulation to implement the National Bank Act that prohibited states from “exercis[ing] visitorial powers with respect to national banks, such as conducting examinations, inspecting or requiring the production of books or records of national banks, or prosecuting enforcement actions.” However, the regulation did provide that “production of a bank’s records . . . may be required under normal judicial procedures.”

Writing for an unusual line-up that included Justices Stevens, Souter, Ginsburg, and Breyer, Justice Scalia acknowledged “some ambiguity” in the meaning of “visitorial powers.” But such uncertainty, he continued, “does not expand Chevron deference to cover virtually any interpretation of the National Bank Act.” Surveying the Supreme Court’s jurisprudence, the Court deemed it clear that a state’s “‘visitorial powers’ and “its power to enforce the law are two different things,” and the National Bank Act “pre-empts only the former.” The Court also questioned the consequences that would arise from the OCC’s interpretation of the NBA: although some state laws regulating banks would remain in effect, states would be precluded from enforcing those laws. By contrast, the Court noted, allowing state attorneys general to enforce state laws in court (but not exercise visitorial powers) “would preserve a regime of exclusive administrative oversight by the Comptroller while honoring in fact rather than merely in theory Congress’s decision not to pre-empt substantive state law.” Moreover, the Court notes, judicial law-enforcement proceedings are subject to greater constraints and thus will limit the likelihood of “fishing expeditions” by state officials.

Having concluded that the OCC’s regulation was not consistent with the statute insofar as it precluded states from bringing suit to enforce state laws against national banks, the Court then turned to the OCC’s interpretation of its regulation, which purported to limit the scope of the regulation by conceding that states could still regulate national banks in some respects, such as “contracts, debt collection, acquisition and transfer of property, and taxation, zoning, criminal, and tort law.” The exceptions that the OCC would carve out, the Court explained, “cannot be reconciled with the regulation’s almost categorical prohibition in 12 CFR §7.4000(a)(1) of ‘prosecuting enforcement actions.’”

Returning to the facts of the case before it, the Court concluded that because the Attorney General had requested information in lieu of a subpoena – rather than, for example, filing a lawsuit or obtaining a search warrant – it would affirm the decision below “as applied to the threatened issuance of executive subpoenas,” but it vacated the decision insofar as it barred judicial law-enforcement actions.

Justice Thomas wrote a decision, joined by the Chief Justice and Justices Kennedy and Alito, concurring in part and dissenting in part. He would have held that (1) the phrase “visitorial powers” is ambiguous; (2) the OCC’s interpretation of that phrase “fits comfortably within this broad dictionary definition of visitation”; and (3) the Attorney General’s request for information to enforce state fair lending laws constituted an effort to exercise such powers. In the dissenters’ view, the Attorney General’s “federalism-based objections to Chevron deference ultimately turn on a single proposition: It is doubtful that Congress pre-empted state enforcement of state laws but not the underlying state laws themselves.” Even if that were true, however, the dissenters counter that “it is not this Court’s task to decide whether the statutory scheme established by Congress is unusual or even ‘[b]izarre.’ The Court must decide only whether the construction adopted by the agency is unambiguously foreclosed by the statute’s text.”

As a result of the Court’s decision, state attorneys general throughout the country may now seek to enforce their states’ fair lending laws against national banks, creating a scenario in which banks could potentially be subject to conflicting laws in different states. However, while the Court held that states could enforce their laws by bringing lawsuits, states may – without the kind of “visitorial powers” that could provide them with information regarding banking practices – face some obstacles in obtaining the information that they need to bring such suits.