Yesterday, the Court heard arguments in United States v. Stevens (08-769), and generated a flurry of press coverage in the process.  At the Washington Post, Robert Barnes reports on the oral argument, as does Adam Liptak at the New York Times, detailing the Justices’ strenuous questioning of both sides; USA Today posits that the Court appeared “poised” to strike down the law, which bans the sale of depictions of animal cruelty.  The L.A. Times, the Wall Street Journal, and NPR also have coverage, and at the National Law Journal, Tony Mauro highlights Justice Kennedy’s point that “the Court has never found a law restricting speech to be constitutionally acceptable just because prosecutors have so far used restraint.”  At Slate, Dahlia Lithwick also offers a detailed play-by-play of the questioning.

Before the argument, NPR’s Nina Totenberg offered an analysis of the various issues at play in the case.  Brian Maloney also previewed the argument at ACSblog, detailing the potential deliberate and unintended effects of an opinion upholding the law.  ACSblog also has an essay by Humane Society president Wayne Pacelle, who argues that a decision in favor of the petitioners will significantly discourage animal cruelty while leaving in place exceptions for material with “serious religious, political, scientific, educational, journalistic, historical, or artistic value.”

Read the rest of this entry »

Taking on a major new constitutional dispute over gun rights, the Supreme Court agreed on Wednesday to decide whether to apply the Second Amendment to state, county, and city government laws.  In another major case among ten new grants, the Court said it will rule on the constitutionality of one of the government’s most-used legal weapons in the “war on terrorism” — a law that outlaws “material support” to terrorist groups.

The Court had three cases from which to choose on the Second Amendment issue — two cases involving a Chicago gun ban, and one case on a New York ban on a martial-arts weapon.  It chose one of the Chicago cases — McDonald v. Chicago (08-1521) — a case brought to it by Alan Gura, the Alexandria, VA., lawyer who won the 2008 decision for the first time recognizing a constitutional right to have a gun for personal use, at least in self-defense in the home (District of Columbia v. Heller).  A second appeal on the Chicago dispute had been filed by the National Rifle Association (NRA v. Chicago, 08-1497).  Presumably, the Court will hold onto that case until it decides McDonald; the same is likely for the New York case, Maloney v. Rice (08-1592) — a case in which Justice Sonia Sotomayor had participated when she was a judge on the Second Circuit Court.

The Court, while agreeing to return to its monitoring of legal issues stirred up by government anti-terrorism efforts, did not take any immediate action on the basic question of federal judges’ power to decide the fate of detainees held at the U.S. military prison camp at Guantanamo Bay, Cuba.  It had examined anew a case left over from the prior Term — Kiyemba v. Obama (08-1234) — but the case was not on the grant list released Wednesday morning.  The next opportunity for the Court to announce some response to that case will come on Monday, when the new Term formally opens. The specific issue in the case is whether a federal judge may order the release into the U.S. of a detainee no longer considered to be an “enemy.” Read the rest of this entry »

This is the fourth edition of  “Petitions to Watch”  featuring cases up for consideration at the Justices’ opening conference of September 29.  We’ll have one final post tomorrow; included in today’s post are the Second Amendment incorporation petitions out of the Second and Seventh Circuits. 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.   Links to previous editions are available in our archives on SCOTUSwiki.

Read the rest of this entry »

Justice Ruth Bader Ginsburg was hospitalized yesterday evening after she reportedly “developed light headedness and fatigue” while working in her chambers at the Court.  The New York Times and the Washington Post both characterized the Justice’s hospitalization at the Washington Hospital Center as “a precaution.”  Ginsburg has indicated that she plans to stay on the Court for several years to come, and has kept up an active schedule of work and speaking engagements.  The Court’s official statement  is available here.

Read the rest of this entry »

The Ninth Circuit Court on Thursday put on hold its consideration of a case testing whether the Second Amendment right “to keep and bear arms” restricts laws passed by state and local governments, and not just those passed at the federal level.  After a hearing before an 11-judge en banc Court in San Francisco, the Court issued an order vacating submission of the case of Nordyke et al. v. King et al. (docket 07-15763), until the Supreme Court acts on pending cases raising the same issue. 

Earlier, a three-judge panel of the Circuit Court had extended the Second Amendment to the state, county and city level, through the Fourteenth Amendment.  That ruling was vacated when the Circuit Court agreed to reconsider the issue en banc.   The Supreme Court may act as early as next week on one or more of  three pending cases: National Rifle Association v. Chicago (08-1497), McDonald v. Chicago (08-1521), and Maloney v. Rice (08-1592).  All three are scheduled to be considered at next Tuesday’s private Conference.

(Thanks to Howard Bashman of How Appealing blog for the alert and the link to Thursday’s order.)

The October issue of the ABA Journal Magazine is out and brimming with commentary on the Court.  The Magazine likens the modern confirmation process of Court nominees to a “kabuki dance,” because Senators ask useless but inflammatory questions for the cameras and the candidates are too tight-lipped to reveal a good sense of their judicial philosophy.  The article traces this trend back to Justice Ginsburg’s confirmation, which occurred soon after the confirmation hearings of Clarence Thomas and Robert Bork, whose character and conservative judicial philosophies were viciously attacked.  Four authors propose reforms to the process: David Stras suggests that nominees be required to analyze five previous Court decisions, Stephen Carter wants to focus on nominees’ professional qualifications rather than disqualifications, Seth Rosenthal proposes a courtroom setup in which litigators ask questions, and Richard Davis is ready to dispense with hearings altogether for elections.

Read the rest of this entry »

The Supreme Court will consider two new cases on the scope of individuals’ Second Amendment right to have guns at its first Conference for the new Term, on Sept. 29, according to the Court’s electronic docket.  Both petitions challenge a Seventh Circuit Court ruling that the Amendment does not restrict gun control laws adopted by state, county or city government, but applies only to federal laws.  The cases are National Rifle Association v. Chicago (08-1497) and McDonald v. Chicago (08-1521).

The so-called “incorporation” issue is the most significant sequel issue raised in the wake of the Court’s 2008 decision in District of Columbia v. Heller, recognizing for the first time a personal right to have a gun for self-defense, at least in one’s home.

If the Court agrees to hear the new cases after its first look, that could be announced as early as the day after the Conference — that is, on Wed., Sept. 30.  The first Conference of a new Term customarily is held in advance of the Term’s formal opening; this year, the Term starts Oct. 5.

The Court has not yet scheduled a time to consider another pending case on the Second Amendment issue — Maloney v. Rice (08-1592). The response in that case is now due on Aug. 28.  The new Justice, Sonia Sotomayor, took part in the Maloney case when she was on the Second Circuit Court.  Like the Seventh Circuit, the Second found that the Second Amendment only applies to federal laws.  When the Justices consider the Maloney case, Sotomayor is not expected to take part.  The fact that she had taken part in a ruling on the issue in one case, however, would not require her to withdraw from considering cases from other Circuits, like the Chicago cases.

The chance that the Supreme Court might feel a need to resolve the most important question left open by last year’s ruling on gun rights under the Second Amendment may now have diminished.  The conflict among lower courts that had made review seem a good deal more likely has now vanished, at least temporarily.

Without a conflict, the Supreme Court may wish to wait for the issue to percolate further in lower courts.  The issue also roiled the nomination hearings for Justice-designate Sonia Sotomayor, perhaps raising the sensitivity of the issue to the point that the Court might be reluctant to take it on when the lower courts are not in disagreement on it.

On Wednesday, the Ninth Circuit Court voted to review en banc a three-judge panel decision in April, extending the Second Amendment right to have a gun for personal self-defense so that it would restrict or nullify state, county and city gun control laws.  The effect of that order, of course, was to vacate the panel decision.  Thus, the disagreement between that panel and the Second and Seventh Circuits no longer exists — at least until the Ninth Circuit, or some other Circuit Court, weighs in on the issue.

The Ninth Circuit will rehear the issue during the week of Sept. 21, before an 11-judge en banc Court.  It is by no means certain that the majority will take the same view as the three-judge panel had in April.  At the same time, the vote to reconsider the issue does not necessarily mean that the full Court will rule the other way; it does signal, though, that members of the Court deem the issue sufficiently important to have it tested before a larger court.

Read the rest of this entry »

Sen. Jeff Sessions, Ala., the ranking Republican on the Senate Judiciary Committee, said in an editorial in USA Today that he would vote against the confirmation of Judge Sonia Sotomayor to the Supreme Court. Citing her decisions in Didden v. Port Chester (property rights),  Maloney v. Cuomo (Second Amendment), and Ricci v. DeStefano (the New Haven firefighter case), he stated he does not “believe that Judge Sotomayor has the deep-rooted convictions necessary to resist the siren call of judicial activism.”

Senators Charles Grassley, Iowa, and Tom Coburn, Okla., are the only Republican members of the committee who have not announced how they will vote. A committee vote on Judge Sotomayor’s nomination is scheduled for tomorrow at 10 a.m.

Analysis

For generations, lawyers, judges and constitutional scholars across the spectrum have debated whether the time would come for the Supreme Court to cast aside one of history’s most controversial rulings — the 5-4 decision in 1873 in the Slaughterhouse Cases.  In that ruling, the dissenters claimed — and modern critics still complain — that the Court had made the Fourteenth Amendment’s Privileges or Immunities Clause into “a vain and idle enactment.”

Despite a brief revival of the Clause as a curb on state power to restrict individual rights, in the 1999 decision in Saenz v. Roe involving “the right to travel,” that part of the Fourteenth Amendment’s Section 1 has remained close to a constitutional dead letter.  (It reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”)

In 1873, the Court said the Clause only restricted state laws affecting rights of national citizenship, not those affecting the rights of state citizens.  Among others who have argued in recent years that the Court should rethink the Slaughterhouse Cases, Justice Clarence Thomas is the most prominent.  He did so in a dissent in Saenz v. Roe, saying that, “in an appropriate case,” he would be open to reevaluating the meaning of the Clause.

Sometime this Fall, the Court will examine three cases that already are being pushed as “appropriate” ones for the Court to use for a reexamination of the Clause, and the Slaughterhouse precedent.

This is, in fact, a little-noticed part of the controversy already building around those new cases.  The core issue, in all three, is whether the Court will expand the Second Amendment personal right to have a gun for self-defense, so that it restricts state and local government laws, not just those at the federal level (an issue that had a prominent role in the just-concluded nomination hearings for Justice-to-be Sonia Sotomayor.  She will have a chance to vote on some of the new cases, it appears.)

Under constitutional theory, there are only three ways that the Court could interpret the Second Amendment as applying to the states.  The Constitution’s text rules out one of those, the Slaughterhouse Cases rules out a second, and the one remaining — “incorporation” of the Second Amendment into the Fourteenth Amendment so that it reaches states – is not an attractive option to constitutional conservatives.  Thus, the impending challenge to the Slaughterhouse precedent.

Read the rest of this entry »

UPDATE: The Maloney petition has now been docketed as 08-1592.

————–

A Port Washington, N.Y., lawyer and martial arts enthusiast asked the Supreme Court on Friday to use his case to expand the coverage of the Second Amendment’s “right to keep and bear arms” so that it applies to restrict or bar state and local laws, as well as those at the federal level.

James M. Maloney’s petition in Maloney v. Rice is the third case on that point to reach the Court in recent weeks. This one, however, seeks to challenge a ruling that has gained a special prominence because one of the judges on the Second Circuit Court panel deciding against Maloney’s claim was Circuit Judge Sonia Sotomayor, President Obama’s choice for a soon-to-be-open Supreme Court vacancy.

The Maloney petition and the appendix (a lengthy file) are available for downloads. (It has not yet been assigned a docket number.) The already pending cases on the issue are National Rifle Association v. City of Chicago (08-1497) and McDoanld v. City of Chicago (08-1521).

Another novel feature of the Maloney case is that it is not a challenge to the constitutionality of a gun control law; rather, it targets a New York state law on weapons control, so far as that law applies to a “chuka stick” (or “nunchaku”).

That is a weapon often used in martial arts training, but also in increasing use as a police weapon to subdue and control suspects. James Maloney wants the right to have the weapon in his home for self-defense, just as others might do with a handgun. (The chuka weapon consists of two lengths of wood or other rigid material joined by a short strand of rope.)

Even so, the questions posed by the new position raise the constitutional issue in broad form, so that the outcome would apply to guns and other persoonal weapons, too.

Read the rest of this entry »

The Supreme Court already has two cases it could use for a new look at the scope of gun rights under the Second Amendment, another case is on the way, and now, perhaps before long, there could be a fourth.   The Ninth Circuit Court has received new briefs strongly urging it not to rehear en banc the case of Nordyke, et al., v. King, et al. (docket 07-15763), and one brief that is lukewarm on the subject, saying only that further — but only partial — review “would be useful.”

Each of the cases now at the Court or on the way focuses focus singly, or mainly, on whether the Second Amendment individual right to have a gun for self-defense at home restricts gun control laws at the state and local government level, not just federal laws.  It is an issue the Justices mentioned but did not decide in their rulng last Term in District of Columbia v. Heller, recognizing the new individual right “to keep and bear arms” at least in some private surroundings.

Already at the Court are petitions in National Rifle Association v. City of Chicago (08-1497) and McDonald v. City of Chicago (08-1521), and on the way is a petition challenging a Second Circuit ruling in Maloney v. King — due to be filed by June 26.  In those cases, the Seventh and Second Circuits found that, under binding Supreme Court precedent, the Second Amendment only applies to federal laws.

The Justices are not expected to act on any of the new cases before they recess for the summer near the end of this month.  But all could be up for consideration fairly early in the new Term starting in October.

After a Ninth Circuit panel in May became the first federal appeals court to rule that the individual right applies to states, counties and cities, that Court — at the urging of one of its judges – called for new briefs on whether it should review that decision before the full en banc Court. With the briefs now in, the Court can decide whether to reconsider Nordyke.

The two opposing sides filed their briefs on that question last Monday, and on Thursday, the NRA sought to join in as an amicus.  (The briefs can be downloaded from the Ninth Circuit’s website for those with a PACER account, under docket 07-15763, entries 88, 90 and 93.)  If that Court votes to leave the panel ruling intact, the next step for this case would be the Supreme Court, since an appeal is likely, either way.

The Nordyke case involves the validity of an Alameda County, Calif.,  ordinance that bans all guns and ammunition from county property — a law that applies to gun shows on the county fairgrounds as well as gun possession at parks, recreational areas, and historic sites.  The Ninth Circuit panel, while finding that the Second Amendment does apply to county laws, upheld the Alameda ordinance.

The Circuit Court panel ruling was attacked, for varying reasons, by all sides, and by the NRA.

Read the rest of this entry »

The National Rifle Association, rebuffed Tuesday in a new attempt to get the Second Amendment applied to state and local government, will move on now to test that issue in the Supreme Court, attorneys involved said Tuesday afternoon.  A three-judge panel of the Seventh Circuit Court ruled that it has no authority to second-guess old Supreme Court precedents that limited the Amendment to a restriction on federal laws, not those enacted at state, county or city levels.

The Circuit Court took only one week after hearing oral argument to decide cases that the NRA has been pursuing to expand the individual right to have a gun for self-defense in one’s home — a Second Amendment right that the Supreme Court recognized for the first time in its ruling last June in District of Columbia v. Heller (07-290).

The lead case before the Circuit Court was National Rifle Association, et al., v. City of Chicago (Circuit docket 08-4241).  The new decision, written by Judge Frank H. Easterbrook, can be downloaded here.  The opinion was joined by Circuit Judge Richard A. Posner and Senior Circuit Judge William J. Bauer.

The case is the second on the issue now bound for the Supreme Court.  Another case, from the Second Circuit, is due to be filed at the Court late this month (Maloney v. Rice, Circuit docket 07-581).  Those rulings reached the same result: Supreme Court precedents are binding on lower courts, and those precedents limit the Amendment to the federal government or federal enactments (like those for the District of Columbia, the federal city).

Because the Second Circuit ruling was written by a panel that included Judge Sonia Sotomayor, the nominee to the Supreme Court.  If she is confirmed, she presumably would not participate in any review by the Justices of the Maloney case.  However, she would not have to take herself out of review of the Seventh Circuit ruling in the NRA cases.

The scope of the Second Amendment appears now to have a good chance of being reviewed by the Justices, because there is a direct conflict on it among the Circuit Courts.  The Ninth Circuit Court has ruled that the Second Amendment also applies to state, county and city government (Nordyke v. King, Circuit docket 07-15763).  That case is awaiting a vote on whether the Ninth Circuit will rehear it en banc.

Read the rest of this entry »

Supreme Court nominee Sonia Sotomayor, already facing bitter criticism from gun rights advocates for an appeals court decision she joined last January, may have to choose whether to take part when the constitutional issue at stake comes up before the Supreme Court (assuming that she is confirmed). As of now, the first case in line on that issue is the one on which she ruled as a judge of the Second Circuit Court — Maloney v. Cuomo.

The Maloney decision (Second Circuit docket 07-581) involves the next major issue on the Constitution’s Second Amendment, which guarantees a “right to keep and bear arms.”  The issue is whether that Amendment applies to state and local government, thus restricting their power to control individuals’ private possession of pistols and other guns.  The Supreme Court ruled last year, in District of Columbia v. Heller, that the Amendment protects an individual right to have a gun, for self-defense, in the home.

The Court, however, did not settle whether the Amendment operates against any level of government other than the federal government and a federal entity, the District of Columbia.  The Second Circuit, in the Maloney case, ruled that prior Supreme Court precedent saying that the Amendment only applied at the federal level is still binding law.  Sotomayor was a member of a three-judge panel that issued the unsigned ruling.

In reaction to her nomination, supporters of broad rights under the Second Amendment exploded.  For example, Curt Levey, executive director of the conservative advocacy group, Committee for Justice, wrote: “Now every red and purple state Democratic senator who considers voting for Sotomayor will be forced to explain to his constituents why he’s supporting a nominee who thinks those constituents don’t have Second Amendment rights.  Because they can send red state Democrats running for cover, gun owners are the one interest group that could completely change the political equation on judicial nominations if they’re drawn into the debate. Obama’s selection of Sotomayor makes that virtually certain.”

The Maloney case is now scheduled to be challenged in the Supreme Court by June 26.  Sotomayor, as a Justice, almost certainly would take herself out of consideration of that case, because of her prior participation in it at the Circuit Court.

Other cases raising the same question, however, are moving along in lower courts, and it is possible that the Justices may see more of those, perhaps over the summer months. If that happens, the Court may have other vehicles to choose from, thus perhaps giving Sotomayor a chance to get involved.

Read the rest of this entry »

Judge Sonia Sotomayor is an obviously serious candidate to serve on the Supreme Court.  We have been struck by how the amount of commentary about Judge Sotomayor has ignored the most accessible and valuable source of information:  her opinions as an appellate judge.  Last year, I directed a project in which a team of Akin Gump summer associates extensively reviewed Judge Sotomayor’s opinions.  Amy Howe subsequently revised and expanded their work, with contributions by me.

Here, we make our first effort at summarizing what we regard as Judge Sotomayor’s principal opinions in civil cases.  Our only goal is to identify and summarize the opinions, not evaluate them.

A summary of additional civil cases, as well as Judge Sotomayor’s leading criminal law opinions will follow.

CIVIL LITIGATION

Since joining the Second Circuit in 1998, Sotomayor has authored over 150 opinions, addressing a wide range of issues, in civil cases.  To date, two of these decisions have been overturned by the Supreme Court; a third is under review and likely to be reversed.  In those two cases (and likely the third), Sotomayor’s opinion was rejected by the Supreme Court’s more conservative majority and adopted by its more liberal dissenters (including Justice Souter).  Those outcomes suggest that Sotomayor’s views would in many respects be similar to those of Justice Souter.

Abortion Rights:  Although Sotomayor has not had a case dealing directly with abortion rights, she wrote the opinion in Center for Reproductive Law and Policy v. Bush, 304 F.3d 183 (2d Cir. 2002), a challenge to the “Mexico City Policy,” which prohibited foreign organizations receiving U.S. funds from performing or supporting abortions.  An abortion rights group (along with its attorneys) brought claimed that the policy violated its First Amendment, due process, and equal protection rights.  Relying on the Second Circuit’s earlier decision in Planned Parenthood Federation of America, Inc. v. Agency for International Development, which dealt with a virtually identical claim, Sotomayor’s opinion rejected the group’s First Amendment claim on the merits.  Turning to the plaintiffs’ due process claim, Sotomayor held that they lacked standing because they alleged only a harm to foreign organizations, rather than themselves.  Sotomayor held that the plaintiffs did have standing with regard to their equal protection claim, but she ultimately held that the claim failed under rational basis review because the government “is free to favor the anti-abortion position over the pro-choice position” with public funds.

First Amendment – Speech:  Sotomayor has considered First Amendment issues relatively infrequently.  In addition to Center for Reproductive Law and Policy (just discussed), one of her more controversial cases was Pappas v. Giuliani, 290 F.3d 143 (2d Cir. 2002), involving an employee of the New York City Police Department who was terminated from his desk job because, when he received mailings requesting that he make charitable contributions, he responded by mailing back racist and bigoted materials.  On appeal, the panel majority held that the NYPD could terminate Pappas for his behavior without violating his First Amendment right to free speech.  Sotomayor dissented from the majority’s decision to award summary judgment to the police department.  She acknowledged that the speech was “patently offensive, hateful, and insulting,” but cautioned the majority against “gloss[ing] over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives just because it is confronted with speech is does not like.”  In her view, Supreme Court precedent required the court to consider not only the NYPD’s mission and community relations but also that Pappas was neither a policymaker nor a cop on the beat.  Moreover, Pappas’s speech was anonymous, “occur[ring] away from the office on [his] own time.”  She expressed sympathy for the NYPD’s “concerns about race relations in the community,” which she described as “especially poignant,” but at the same time emphasized that the NYPD had substantially contributed to the problem by disclosing the results of its investigation into the racist mailings to the public. In the end, she concluded, the NYPD’s race relations concerns “are so removed from the effective functioning of the public employer that they cannot prevail over the free speech rights of the public employee.”

More recently, in Kraham v. Lippman, 478 F.3d 502 (2d Cir. 2007), she wrote an opinion holding that a rule prohibiting high-ranking political party officials from receiving court fiduciary appointments (such as appointments as guardians ad litem) in New York state courts did not violate the plaintiff’s right to freedom of political association.  Sotomayor acknowledged that the rule required individuals to choose between holding a high-ranking party position and receiving court appointments, but she ultimately concluded that such an “incidental effect on individual decision-making, however, furthers the rational and legitimate goal of eliminating corrupt court appointments.”

Read the rest of this entry »