At 10 a.m., the Court will hear argument in Herring v. United States (07-513), on whether courts must suppress evidence seized during an arrest made as a result of faulty information provided by another law enforcement agency. Pamela Karlan of Palo Alto, Calif., will argue for the petitioner, and Deputy Solicitor General Michael Dreeben will argue for the respondent.

At 11 a.m., the Court will hear argument in Arizona v. Gant (07-542), on whether police must show a threat to their safety or the preservation of evidence to conduct a warrantless search of a car whose occupant was recently arrested. Joseph Maziarz of the Arizona Attorney General’s office and Anthony Yang of the Solicitor General’s office will argue for the petitioner, and Thomas Jacobs of Tucson, Ariz., will argue for the respondent.

At 1 p.m., the Court will hear argument in Kennedy v. Plan Adm. for Dupont Savings (07-636), on whether a specific ERISA provision is the only way a divorcing spouse can waive her right to receive her ex-husband’s pension benefits under the Act. David Furlow of Houston will argue for the petitioner, Mark Levy of Washington, D.C., will argue for the respondent, and Leondra Krueger of the Solicitor General’s office will argue in support of neither party.

We will provide links to the transcripts of the arguments as soon as they are available.

Gregory G. Garre, nominated four months ago to be U.S. Solicitor General, on Monday took the final steps to assume that role in his own right.  He has been the “Acting Solicitor General” since he was chosen in June to replace departing Paul D. Clement.  As late as Monday morning’s Supreme Court orders list, and the Court’s current hearing list for October, Garre still had the “Acting” label.

His first argument of the new Term will be Wednesday in Donald C. Winter, Secretary of the Navy, et al. v. Natural Resources Defense Council, Inc., et al. (07-1239) — a test of the environmental impact of the Navy’s use of sonar in training exercises in waters off the Pacific Coast, where marine mammals may be affected.

Earlier this afternoon, we filed this reply brief in Jimenez v. Quarterman (07-6984) in conjunction with the Stanford Law School Supreme Court Litigation Clinic, Howe & Russell, and Akin Gump’s office in Dallas. In addition to the attorneys listed on the cover, clinic members Lisa Enrlich, David Owens and Menaka Kalaskar helped in writing the brief.  For more on the case, involving a habeas petitioner from the state of Texas, click here.

The transcript of today’s argument in Altria Group v. Good (07-562) is now available here.

The transcript of today’s argument in Locke v. Karass (07-610) is now available here.

The transcript of today’s argument in Vaden v. Discover Bank (07-773) is now available here.

Supreme Court Justice Stephen G. Breyer is in the process of selling more of the stocks in which he and his wife have invested, in order to reduce the number of times in which he must disqualify himself from taking part in actions on pending cases.  This development is described in a story today by Greg Stohr of Bloomberg News. The story can be read here.  Among the present Justices, Breyer has recused more often because of his investments.

Analysis

(Updated 3:10 p.m.)

A hearing on claims of deception by cigarette companies in their advertising of “light” cigarettes led Monday to strongly worded complaints by Supreme Court Justices that, if consumers were misled, it was partly — maybe even mainly — the government’s fault. Justices Samuel A. Alito, Jr., and Antonin Scalia suggested that the Federal Trade Commission had known for years that those ads were founded on flawed claims, and did little or nothing about it.  The comments came as the Court opened its new Term with the hearing in Altria Group, et al., v. Good, et al. (07-562).

Justice Alito was the most blunt: “The FTC’s position seems to me incomprehensible,” he remarked to a lawyer for the Commission. “You’ve created this whole problem by, I think, passively approving the placement of these figures in the advertisements.  And if they are misleading, then you have misled everybody who’s bought those cigarettes for a long time.”  The lawyer speaking for the Commission and the Justice Department, Assistant to the Solicitor General Douglas Hallward-Dreimeier, tried to put the onus back on the tobacco industry, saying the companies knew as early as 1967 that its claims of low tar and nicotine in “light” smokes were not valid, yet failed to tell the FTC.

But that argument did not dissuade Justice Scalia.  “When did the Commission know this stuff?  I had a case when I sat on the Court of Appeals, so it had to be before 1984…It’s been general knowledge for a long time, and the FTC has done nothing abput it.”

The government’s counsel also drew some implied criticism from Chief Justice John G. Roberts, Jr., who wondered why the Solicitor General’s office had decided to take part in the Altria Group case on only one of the two issues at stake. Roberts pressed unsuccessfully to get the government’s current view on the other issue, but then Justice Scalia said the government had taken a position years ago, favoring the tobacco industry on that point, and he would “hold you to that” if the government did not state a position now.

The case tests whether individual smokers are barred, by federal law, from suing under state law to challenge alleged deception in the ads promoting “light” cigarettes as being low in tar and nicotine.  The industry is making two claims to try to head off such lawsuits: first, that federal law on cigarette labeling and other marketing tactics expressly preempts state law claims, and, second, that actions by the FTC over the years allowed such ads, actions that amounted to implied preemption of state law claims.

Joining in the case, the FTC and Justice Department opted to side with the smokers who sued, but only on the implied preemption question.  They argued that the FTC has never ordered or authorized claims of low tar and nicotine for “light” cigarettes. (Since 1966, the FTC has been telling the industry that it would not challenge them if they made such claims based on a testing method the FTC had endorsed.  Only now is the FTC considering whether to withdraw that guidance, saying the evidence now is that that method produces misleading results.)

The Chief Justice told the government lawyer that Philip Morris and its parent, Altria Group, had given up on the implied preemption issue, so it would be “pretty easy” for the government to win on that question. So, Roberts asked, what is the goverment position on the express preemption issue.  Hallward-Driemeier repeatedly insisted that it had no position.

Theodore B. Olson, a Washington attorney representing the company, in rebuttal told the Chief Justice that it had not given up on the implied preemption, and had focused on its “strongest” argument — express preemption — because that involved something on which Congress had explicitly spoken. (At one point in his opening argument, Olson said “I’d like to spend no time on the implied preemption argument,” to which Justice Scalia responded: “Good idea.”)

David C. Frederick, a Washington lawyer speaking for the four Maine smokers seeking to sue under state law for deception in Philip Morris ads for “light” smokes, had major difficulty with his main argument: that the case was not about smoking and health, but only about deceptive advertising.  But several Justices said the only reason smokers would worry about tar and nicotine content was because of the health hazards of those substances.

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Today’s orders list is now available here.

The Supreme Court, opening a new Term Monday, took no action on an appeal testing whether it is unconstitutional to execute a death-row inmate who has a significant claim of innocence.  The Court’s 82-page list of orders on pending cases contained no word on Troy Anthony Davis’ appeal, Davis v. Georgia (08-66). His scheduled execution has been temporarily postponed by the Court. The Court will consider the case again at its private Conference on Friday, according to the Court’s electronic docket.

The Court granted no new cases Monday.  Among the more significant issues the Court turned aside, by simply denying review, were the constitutionality of convicting an individual of a crime by a non-unanimous jury verdict (Lee v. Louisiana, 07-1523), the constitutionality of jurors’ using a Bible during secret deliberations on whether to sentence a convicted individual to death (Lucero v. Texas, 07-1429), a claim that motorists have a constitutional right to have controversial messages imprinted on their auto license plates (Stanton v. American Life Coalition, 07-1366), and a test of whether the U.S. Olympics Committee acts illegally by failing to give the same benefits to disabled athletes as to those who are able-bodied (Hollonbeck v. Olympic Committee, 07-1504). The Chief Justice took no part in the order on the Olympics case.  (The Court did not act on a case testing police authority to search a purse held by a passenger in a car they have stopped; an earlier report here that the Court had denied review of this issue in Mercier v. Ohio, 08-17, was in error.)

For the third time in the past five years, the Court refused to hear a claim that anti-abortion forces have a constitutional right o publicize the names of doctors who do abortions, in a way that portrays them as guilty criminal. Three nearly identical appeals have failed to gain review; the latest is American Coalition of Life Activists v. Planned Parenthood (07-1546).

The Court asked the U.S. Solicitor General to offer the federal government’s views on two business cases. One tests whether private consumers have a right to sue under state law to challenge stores’ failure to reveal that coloring has been added to a food item (Albertson’s v. Kanter, 07-1327). The other asks the Court to clarify the two-year filing deadline for lawsuits over securities fraud; the issue is when that period starts to run — as soon as the investor knows enough to suspect fraud, as soon as a “reasonable person” would have uncovered sufficient facts to support a fraud claim, only after the investor made an investigation to check on evidence of fraud, or only when the investor has proof that a broker intended to commit fraud (Trainer Wortham & Co. v. Betz, 07-1489).

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Note to readers: beginning at 10 a.m. Eastern, we will provide “live” coverage of the release of the second orders list following the Justices’ private conference of September 29.

The first orders list, released last Wednesday, contained grants of certiorari in ten cases. Today’s list is expected to contain cases in which the Court denied certiorari or invited the Solicitor General to express its views, among other orders.

We will post a link to the orders list as soon as it is available. Because the LiveBlog automatically updates, users do not need to refresh their browsers to receive the latest news.

In the event of technical difficulties on our home page, users can also follow the LiveBlog by clicking here.

At 10 a.m., the Court will hear argument in Altria Group v. Good (07-562), on whether federal law preempts state tort claims against tobacco manufacturers over the marketing of “light” cigarettes. Ted Olson of Washington, D.C., will argue for the petitioner, and David Frederick of Washington, D.C., and Douglas Hallward-Diemeier of the Solicitor General’s office will argue for the respondent.

At 11 a.m., the Court will hear argument in Locke v. Karass (07-610), on whether public sector unions may use non-member agency fees for litigation expenses outside the bargaining unit. W. James Young of Springfield, Va., will argue for the petitioner, and Jeremiah Collins of Washington, D.C., will argue for the respondent.

At 1 p.m., the Court will hear argument in Vaden v. Discover Bank (07-773), on whether federal courts have jurisdiction over motions to compel state-law arbitration claims that do not themselves raise questions of federal law. Daniel Ortiz of Charlottesville, Va., will argue for the petitioner, and Carter Phillips of Washington, D.C., will argue for the respondent.

We will provide links to the transcripts of the arguments as soon as they are available.

In advance of the arguments, the Court will issue the remaining orders from the Justices’ private conference of Sept. 29. We will provide a link to the orders list as soon as it is available via our LiveBlog, a reminder for which appears below.

The Supreme Court will officially begin the October 2008 term this week.

On Monday, the Court will hear argument in:

• Altria Group v. Good (07-562), on whether federal law preempts state tort claims against tobacco manufacturers over the marketing of “light” cigarettes;
• Locke v. Karass (07-610), on whether public sector unions may use non-member agency fees for litigation expenses outside the bargaining unit; and
• Vaden v. Discover Bank (07-773), on whether federal courts have jurisdiction over motions to compel state-law arbitration claims that do not themselves raise questions of federal law.

In advance of the arguments, the Clerk will release the remaining orders from the Justices’ private conference of Sept. 29. We will provide coverage of all developments via our LiveBlog.

On Tuesday, the Court will hear argument in:

• Herring v. United States (07-513), on whether courts must suppress evidence seized during an arrest made as a result of faulty information provided by another law enforcement agency;
• Arizona v. Gant (07-542), on whether police must show a threat to their safety or the preservation of evidence to conduct a warrantless search of a car whose occupant was recently arrested; and
• Kennedy v. Plan Adm. for Dupont Savings (07-636), on whether a specific ERISA provision is the only way a divorcing spouse can waive her right to receive her ex-husband’s pension benefits under the Act.

On Wednesday, the Court will hear argument in:

• Winter, et al. v. Natural Resources Defense Council, Inc., et al. (07-1239), on whether the Navy was improperly enjoined from conducting training exercises employing a type of sonar reportedly harmful to whales;
• Summers, et al. v. Earth Island Institute, et al. (07-463), on whether the Forest Service was improperly enjoined from implementing various regulations, and whether the underlying challenge was ripe for judicial review; and
• Crawford v. Metropolitan Government of Nashville (06-1595), on whether Title VII bars retaliation against workers who cooperate as witnesses during an employer’s internal investigation of sexual harassment.
  

On Friday, the Justices will hold a private conference, orders from which are expected to be released the following Tuesday, the day after Columbus Day. To view our list of petitions to watch at the conference, click here.

No merits briefs for petitioners or respondents are due this week. Links above direct to case pages on SCOTUSwiki.

The following is Lyle Denniston’s preview and analysis of Monday’s first argument.  Additional updates will be made available here, on the Altria wiki page.

The right of smokers to go to court to challenge claims by tobacco companies that the health risk is less if they use ”light” cigarettes will be weighed in Altria Group, et al., v. Good, et al. (07-562) – the first case to be argued in the new Term.

Background

More than four decades ago, the Federal Trade Commission – the federal government’s main regulator of business conduct – told the major companies making and selling cigarettes that it would not challenge factual statements they made about the tar and nicotine content of cigarettes, if the claims were based on tests done using what is called the “Cambridge Filter Method.”  That method uses a machine to take one puff, two seconds long, at a specific level of intake, every minute, with the cigarettes to be smoked to a specified length.  Supposedly, the test was designed to produce uniform data about the tar and nicotine yields of cigarettes, and thus a uniform policy on the issue.  The cigarette makers did not have to make statements in their ads or on their labels about the test results, but the FTC guidance gave them legal cover if they did.

At that time, in 1966, the FTC’s embrace of the Cambridge testing method reflected the public health community’s belief that the lower the tar and nicotine yield in cigarettes, the less harmful they would be to smokers’ health.  With the FTC guidance in hand, the tobacco industry, as it introduced new smokes with lower tar and nicotine yields in response to rising health concerns, was free to promote them as  “light” cigarettes – a shorthand for the Cambridge test results the industry recited.  In 1970, the FTC thought about laying down a formal rule requiring the manufacturers to disclose in their ads the tar and nicotine content based on the most recent test results, but that did not go forward because a group of manufacturers agreed on a voluntary program (with the proviso that they were not admitting they had broken the law earlier).The question at stake in the new Altria Group case is how much legal cover the FTC’s 1966 statements provided for the industry and whether that guidance insulated the manufacturers from smokers’ lawsuits, based on state laws, challenging the claims of lower tar and nicotine yields.  The case, as taken to the Supreme Court, suggests a clash between the Federal Cigarette Labeling and Marketing Act and FTC actions, on one side, and Maine’s Unfair Trade Practices Act, on the other.

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Below, Sally Laing previews the third case to be heard on Monday — No. 07-773, Vaden v. Discover Bank. Sally was a 2008 Akin Gump summer associate and is a 3L at the University of Virginia School of Law.

In No. 07-773, Vaden v. Discover Bank, the Supreme Court will consider whether subject matter jurisdiction over a motion to compel arbitration under Section 4 of the Federal Arbitration Act (FAA) requires a federal question arising from the allegations in the motion itself, or instead, whether the federal question can arise more broadly in the substantive dispute between the parties.  Furthermore, if the reviewing court may “look through” the motion to compel to find a federal question in the underlying dispute between the parties, can state law counterclaims “completely preempted” by federal law provide subject matter jurisdiction under the FAA?

In 1990, petitioner Betty Vaden obtained a Discover credit card issued by Discover Bank and serviced by an affiliate, Discover Financial Services (DFS).  In June 1999, Vaden received a new Platinum Discover card.  One month later, Discover sent a notice amending the Discover Platinum Cardmember Agreement to allow for election of arbitration by either party as a means of dispute resolution.

In July 2003, DFS sued Vaden in Maryland state court for nonpayment of her credit card balance.  Vaden subsequently filed class-action counterclaims in which she alleged breach of contract and contested fees and interest rates that allegedly violated state law.  DFS then filed an independent petition in federal court, seeking to compel arbitration pursuant to the Cardmember Agreement.  Although all of the counterclaims were based on Maryland state law, DFS contended that the district court had federal subject matter jurisdiction because the Federal Deposit Insurance Act (FDIA) completely preempted the state-law claims.  The district court agreed and granted the motion to compel arbitration.

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According to sources in the Justice Department and Senate Judiciary Committee, the Senate on Thursday confirmed Gregory G. Garre as United States Solicitor General. (See here for record of confirmation.) Garre, 43, had served as Acting Solicitor General since Paul D. Clement stepped down in June. Garre joined the office in 2000, serving as an Assistant to the Solicitor General until 2004 and as Principal Deputy Solicitor General since 2005. Following graduation from George Washington University Law School in 1991, he served as a clerk to Chief Justice William H. Rehnquist.

Garre argued five cases before the Supreme Court last term: for the respondent in Gomez-Perez v. Potter (06-1231) and Munaf v. Geren (06-1666); as amicus supporting the respondent in Board of Education of New York v. Tom F. (06-637) and Baze v. Rees (07-5439); and as amicus supporting the petitioner in Sprint/United Management v. Mendelsohn (06-1221).

The Court is in the final week of the summer recess. Oral arguments are scheduled to resume Monday, October 6. To view the list of arguments scheduled thus far, visit our case list on SCOTUSwiki.

This edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conferences on October 10 and October 17. As always, the list contains the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted. (Note: this week, the list also includes a pauper petition presenting the same issue as a paid petition.) To access previous editions of Petitions to Watch, visit our archives here on SCOTUSwiki.

Conference of October 10, 2008

__________________

Docket: 07-1437
Title: Carlsbad Technology, Inc. v. HIF Bio, Inc.
Issue: Whether a federal court order remanding a case to state court after declining to exercise supplemental jurisdiction is subject to appellate review.

• Opinion below (Federal Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

__________________

Docket: 08-76
Title: Brunson v. Harris
Issue: Whether judges may toll the one-year time period for filing federal habeas petitions under the Antiterrorism and Effective Death Penalty Act.

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

__________________

Docket: 08-106
Title: Mora v. New York, et al.
Issue: Whether Article 36 of the Vienna Convention on Consular Relations, which requires law enforcement to inform foreign nationals of their right to have their consulate notified of their arrest, creates an individual right enforceable in courts.

• Opinion below (2nd Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Conference of October 17, 2008

__________________

Docket: 07-1566
Title: Marcrum v. Roper
Issue: Whether, under Strickland v. Washington (1984), the prejudicial effect of errors by trial counsel must be assessed individually or cumulatively.

• Opinion below (8th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Brief amicus curiae of National Association of Criminal Defense Lawyers (in support of petitioner)

__________________

Docket: 08-108; 08-5316
Title: Flores-Figueroa v. United States; Nicasio Mendoza-Gonzalez v. United States
Issue: Whether an individual who used a false means of identification but did not know it belonged to another person can be convicted of “aggravated identity theft” under 18 U.S.C. 1028A(a)(1). (Disclosure: Howe & Russell represents the petitioner in 08-108.)

• Opinion below (8th Circuit) (08-108)
• Opinion below (8th Circuit) (08-5316)
• Petition for certiorari (08-108)
• Petition for certiorari (08-5316)
• Brief of the United States (08-108)
• Brief of the United States (08-5316)
• Petitioner’s reply (08-108)

__________________

The Court is in the final week of the summer recess. Oral arguments are scheduled to resume Monday, October 6. To view the list of arguments scheduled thus far, visit our case list on SCOTUSwiki.

The Justice Department, in a move that could put new pressure on a federal judge to decide whether Guantanamo prisoners are to be released when no longer considered “enemy combatants,” has decided to take all 17 members of a Chinese Muslim minority — the Uighurs — off of that enemies list.

 In a filing on Tuesday night in U.S. District Court, the Department said it would now put 12 of the Uighurs “into the same category” of five others who it had decided earlier not to treat further as combatants.

In a response filed Wednesday, lawyers for the 12 prisoners promptly asked the judge handling their habeas cases — District Judge Ricardo M. Urbina — to order their immediate release after a hearing in his Court next Tuesday.  “The government,” that memo said, “has abandoned any right to contend that it may justify the imprisonment of any petitioner before this Court on the grounds that he is an ‘enemy combatant.’ ”

And those lawyers renewed their plea — rejected on Monday by Judge Urbina — to have at least some of the Uighurs brought to Washington to attend that hearing.  The judge said a prisoner is to be produced for a habeas hearing only if the hearing will be about disputed factual issues.  This hearing, the judge’s order said, involves only “the legality of their detention.”  There are no “outstanding factual issues,” the order added.

None of the 12 prisoners will be sent back to their home country, China, because they and the U.S. government share a belief that they would be subjected to torture or abuse there as a persecuted minority.  But the Justice Department has vigorously objected to any movement of any Guantanamo prisoner, even temporarily, into the U.S.  At the hearing Tuesday, lawyers for both sides will be arguing whether Judge Urbina has the authority to order the Pentagon to transfer the Uighurs to the Washington area, to stay there while they await resettlement.

In its Tuesday filing, the Department told Judge Urbina that it would continue its efforts “to resettle them in a foreign country,” but would continue to keep them at Guantanamo — in “special housing” — until such resettlement could be accomplished.

Attorneys for the Uighurs, in their new memo to Judge Urbina, said their information was that as many as six of the prisoners “are still imprisoned in solitary confinement” in the most restrictive camp at Guantanamo.

They added that, for the hearing next week, each of the Uighurs “has an absolute, indefeasible right to be present to contest any fact asserted by the jailer to justify continued imprisonment in Guantanamo.”  Now that the Pentagon has decided that they are not combatants, the attorneys said, “the government is now estopped to assert any factual basis to withhold the Great Writ.”