In cases from federal courts, finality is a prudential rather than jurisdictional consideration. The SG’s opposition, quoted in my original comment, argues that the Court would have a more concrete case to work from and that some of the issues may drop out if it waits for the military tribunal to rule. In terms of these prudential considerations, it makes no difference whether the issue arises in a pretrial motion or a technically separate proceeding. Although the Court does grant certiorari before judgment on occasion, lack of finality still weighs against a grant.

As Hamdan’s brief noted, habeas petitions are quite unlike other fragmentary or branch proceedings. Under Bryant (278 U.S. 63, 70-71) and Rescue Army (331 U.S. 549, 566-67) they are considered final judgments subject to review by the Court even when the underlying prosecution is still pending. Indeed, if anything, this is the rule one would draw from Ex Parte Bollman (the Burr conspiracy case Kent cites).

The Supreme Court’s rejection of Kent’s position in granting Solario, and Tom’s recent post concerning the frequency with which interlocutory review has been granted in recent cases (http://www.scotusblog.com/movabletype/archives/2005/09/interlocutory_c.html), would appear to confirm this reading.

Of course, it is also normal for the reasons for relisting to remain a mystery.

The Government argued that a statutory provision permitting the Government “to prevent and restrain violations” of RICO allowed it to seek money for past violations, even though that same money could be sought by individual citizens, who can obtain treble damages for any violations. The D.C. Circuit Court of Appeals disagreed, holding that the Government’s power to “prevent and restrain” only includes forward-looking remedies against future misconduct, not compensation for past violations, such as “disgorgement.”

The Supreme Court’s decision is a welcome rebuke to overreaching by the Justice Department and regulation through litigation. In 1999, the Justice Department sued the tobacco industry for $280 billion, alleging it committed wire and mail fraud by downplaying the danger of cigarettes and denying it marketed them to young people. How did it come up with such a mind-boggling figure?

The $280 billion is based on all cigarette sales to so-called “youth-addicted” smokers between 1971 and 2000. Anybody who legally smoked between the ages of 18 and 21 in that period is deemed a “youth-addicted” smoker, even though it’s perfectly legal in most states to smoke at age 18. The Government says that people in that age group are a “protected class” who cannot think for themselves about whether to smoke (although the law considers them old enough to make other important decisions, like whether to fight in Iraq).

The tobacco industry doesn’t have $280 billion, but trial judge Gladys Kessler said the Government could seek it anyway, since that much money may have passed through the industry over the years and forcing them to cough it up might discourage wrongdoing in the future.

The Government wanted the tobacco companies to pay it billions it already received. It admits the $280 billion it demands includes tens of billions of dollars in taxes that smokers paid not to the tobacco companies but to the government, as well as more than $200 billion in interest. So much of the money the Government demands never even passed through the hands of the tobacco companies, but rather into its own pocket. The Government wants to have its cake and eat it, too.

The Government claims the $280 billion as “disgorgement” of ill-gotten gains — that is, money from smokers who smoked because they were deceived about the dangers of smoking. But ever since 1965 — years before the Government seeks to recover for the tobacco companies’ alleged fraud — tobacco packs have contained warning labels that smoking is hazardous to your health. That’s why smokers themselves generally admit that they know smoking is hazardous to their health. They’re not deceived.

And the Government’s own paid expert, Dr. Fisher, who computed the $280 billion figure, testified that he was ordered not to consider what portion — if any — of that $280 billion demanded came from legal, as opposed to fraudulent, cigarette sales. And he said himself it was “preposterous” to assume that smokers all smoked because they were deceived about the dangers of smoking.

The RICO statutory provision the Government is suing under doesn’t say anything about “disgorgement,” much less $280 billion. It just says that a court can issue an order when that’s necessary to “restrain and prevent” future violations by a defendant. It doesn’t say anything about orders to deter the same behavior by other entities in the future.

The trial judge, however, said that narrow language included orders that deter others from misconduct, even if the defendant itself lacks the will or resources to commit future violations. She reasoned that the definition of “deter” includes “restrain” and “prevent,” so “restrain and prevent” must also mean “deter.” That’s like saying that since Socrates is a man, all men are Socrates.

The Government’s claim that it can seek disgorgement in a civil action under RICO is arguably hard to square with the fact than another section of RICO, which the Government did not sue under, permits the government to seek disgorgement upon a finding of a criminal violation – which requires a much higher burden of proof. Allowing the Government to seek disgorgement in a mere civil action both renders that provision partially redundant, and arguably circumvents Congress’s intent to protect businesses from disgorgement except in cases of clear-cut criminal wrongdoing.

Judge Kessler, the trial judge who allowed the Government to make this staggeringly large $280 billion demand, has frequently been reversed on appeal in past cases. She was reversed unanimously by the D.C. Circuit in 2001 when she held that tobacco companies can be sued by insurers for health care costs they incur in treating smokers. She allowed the lawsuit to proceed regardless of the fact that smokers knew the risks of smoking and insurers voluntarily insured smokers against health risks. That case — just like this case — involved RICO and fraud claims. It also involved similarly defective economic models purporting to measure the costs of smoking.

And she was reversed unanimously by the D.C. Circuit in 2002 when she waded into partisan politics to hold that when a civil rights commissioner steps down a moment before her term ends, an outgoing president can appoint a replacement to serve for a full eight years, leaving his successor unable to pick any replacement for that seat. In that case, she allowed Mary Frances Berry, the liberal Chairwoman of the U.S. Commission on Civil Rights, to block President Bush’s appointee, Peter Kirsanow, from sitting on the left-wing Commission.

Yet the Bush administration, which champions tort reform in every other context, seemed happy to embrace Judge Kessler’s eccentric interpretation of RICO. The $280 billion the Justice Department is seeking dwarfs the damages awarded annually by all of the nation’s courts put together.

The taxpayers have already incurred over a hundred million dollars in wasted legal bills bringing this case. For taxpayers and businesses alike, it is a good thing that the Justice Department’s lawsuit has been cut down to size.

Can anyone here speculate as to the basis on which the Chief Justice would not recuse on the tobacco cert petition, when he had recused on the petition for en banc rehearing in the DC Circuit a few months ago on the same case and issue?

The Supreme Court’s refusal to take a case before final judgment is the norm and requires no explanation. The SG’s brief in opposition makes this argument:

“The decision of the court of appeals is interlocutory. It simply reversed the district court’s erroneous decision to enjoin ongoing military commission proceedings a month before the scheduled trial date. Petitioner’s trial before a military commission has not yet begun. The military commission may acquit petitioner or may resolve some or all of petitioner’s claims in his favor, and some may not even arise (e.g., if classified materials are not presented at trial). In the event petitioner is convicted, an actual trial would create a record that would facilitate any review by this Court. Moreover, the decision of the court of appeals on the merits is correct and does not conflict with any decision of this Court or any other court of appeals. Thus, further review at this time is unwarranted.”

Of course, one could make an argument that the technically separate habeas proceeding in the Article III court is completed. However, the Court has a long history, going back to the Aaron Burr conspiracy, of treating these petitions as appellate in reality, even though technically a habeas petition is a new, separate case.