Analysis

President Obama ordered his aides on Thursday “to get to work immediately with Congress” to develop “a forceful response” to the Supreme Court’s ruling in the Citizens United v. Federal Election Commission case.  In a statement, the President denounced the decision, saying it “has given a green light to a new stampede of special interest money in our politics.”  It was obvious, therefore, that he was interested in working with Congress to overturn the decision, or at least to narrow it significantly.

Unless he has in mind an amendment to the Constitution, however, it is most unclear at this point whether the lawmakers could do anything — or much of anything — to cut down on “special interest money” in American politics.  This was a constitutional decision, laying down (essentially for the first time), a sweeping free-speech right in politics for “special interest” bodies of all types with the concept of “speech” clearly embracing spending money to influence election outcomes.  If individuals have considerable freedom to express themselves politically, corporations, labor unions, and other “special interest” entities now do, too.

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The criminal law docket includes roughly thirty cases that divide fairly evenly into three categories:  Criminal Procedure (including both constitutional criminal procedure and statutory rules); Criminal Law (for example, the term’s three cases involving the federal “honest services” statute); and Habeas Corpus (the post-conviction process).

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Four recent requests for Supreme Court review have attracted some attention.  The San Jose Mercury News reports on the Schwarzenegger administration’s “one last plea” for the Supreme Court to review a three-judge panel’s order to ease overcrowding in California prisons. The panel ordered California to deplete its prison population by nearly 40,000 inmates over the next two years. California’s application will be considered at the January 15, 2010 conference.

Also next month, Cablevision will “ask the Supreme Court to revisit (or narrow) a key Supreme Court case that casts a shadow over communications law—the second Turner Broadcasting v. FCC case, decided in 1997, and known to some as ‘Turner II,’” writes Marvin Ammori at Balkinization. Broadcasting & Cable notes Cablevision’s successful application for a stay of the lower court’s order pending the Court’s decision on cert.

The BLT highlights a strange circumstance surrounding another new petition: plaintiffs in the protracted Indian trust litigation are “filing a petition for certiorari just two weeks after the sides announced a $1.41 billion settlement to end the case.”  

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The Supreme Court will hear one hour of argument at 10 a.m. Tuesday on Black, Boultbee and Kipnis v. U.S. (08-876).  Speaking for the former executives of media conglomerate Hollinger International, Inc., will be Miguel A. Estrada of Gibson, Dunn &  in Washington, D.C., and for the federalgovernment will be Deputy Solicitor General Michael R. Dreeben.

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At a time when the super-sized pay for high-ranking corporate executives is a major politicalissue, the Supreme Court has agreed to sort out whether a pay package can actually amount to criminal fraud, on the theory that it deprives the company or its stockholders of “honest services” in the executive suite.  The issue arises in the high-profile prosecution, and conviction, of Canadian media mogul, Conrad M. Black, and two of his fellow executives at Hollinger International, Inc.  Their case, in fact, is one of three the Court is reviewing this Term on the “honest services” fraud issue in federal law.

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In the Wall Street Journal, Anne Tergesen discusses both the recent rise in age-discrimination claims and the Supreme Court’s recent decision in Gross v. FBL Financial Services Inc. (2009), which requires plaintiffs alleging age discrimination to establish that their age was the sole cause of the employer’s actions.  However, last month Congress introduced new legislation that would override the Supreme Court decision by requiring plaintiffs to prove only that age was “one factor behind an employment decision.”

At the WSJ Law Blog, Ashby Jones has a brief profile of Michael Carvin and Noel J. Francisco, who represent the petitioners in Free Enterprise Fund v. PCAOB (oral argument scheduled for Dec. 7), the challenge to the constitutionality of part of the Sarbanes-Oxley Act.  BusinessWeek also profiles Carvin and Francisco.

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The Court heard oral argument yesterday in Hertz Corporation v. Friend, which considers the standard to be used to determine a corporation’s citizenship for the purposes of diversity jurisdiction.  At the National Law Journal, Tony Mauro reports that most of the justices seemed to favor some version of a standard that would focus on where a corporation has its headquarters, although some justices expressed concern that large companies might abuse the standard by strategically calculating where to locate their headquarters.

At the BLT, Marcia Coyle describes Justice Alito’s separate opinion concurring in the Court’s summary disposition of Bobby v. Van Hook, which reversed the lower court’s relief granted to a capital defendant because it relied on the guidelines of the American Bar Association to decide the definition of adequate counsel, as “curious.”  Justice Alito criticized the ABA as “’a private group with limited membership’ and added that its views do not necessarily reflect the views of the bar as a whole.”

Monday’s oral arguments in Bilski, Graham, and Sullivan remain in the limelight.  Coverage appears below the jump.

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Discussion is already turning to this morning’s orders, which we covered and analyzed earlier.  At the Wall Street Journal, Dow Jones Newswire’s Kristina Peterson addresses the Court’s denial of cert. in a drug-patent dispute between generic drug manufacturer Apotex Corp. and patent-holders Sanofi-Aventis and Bristol-Myers Squibb, while the Associated Press has coverage of the Court’s decision not to hear an appeal to stop the release of documents relating to sexual abuse lawsuits against Roman Catholic priests in Connecticut.  The AP also reports that the Court will address the legality of decisions made by only two members of the National Labor Relations Board, and the Wall Street Journal has an article on the Court’s decision to let stand a government fee imposed against Daewoo Engineering and Construction Co.; the company was found to have failed to submit a fully accurate claim for government funding.  (Disclosure: Akin Gump represented the petitioner in the case.)  The Court also let stand a ruling permitting prosecutors to charge a Ku Klux Klan member with kidnapping more than 40 years after the alleged crime took place, according to the AP.

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The Supreme Court will hear oral argument at 1 p.m. today in Beard v. Kindler (08-992). The briefs and other filings in the case are available here on ScotusWiki.

Beard v. Kindler is a capital case with an unusual twist: the defendant appealing his sentence, Joseph Kindler, escaped twice from prison.  A Pennsylvania state court held, and the state supreme court agreed, that Kindler waived his right to appeal when he fled.  But the Third Circuit disagreed and affirmed the district court’s grant of habeas relief.

In Beard, the Court will consider when state courts have resolved an inmate’s claims on “adequate grounds” such that federal courts may not review that inmate’s habeas claims.  In particular, the Court will consider whether a state procedural default rule like Pennsylvania’s is “inadequate” solely because it is discretionary.

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Tuesday’s orders are still dominating the news and blog headlines.  At USA Today, Joan Biskupic reports on the cert. grant in Kiyemba v. Obama (08-1234), noting that the case represents the first time the Obama administration will come before the Court on the issue of Guantánamo Bay detention policy and also pointing out that Kiyemba will “test the strength” of the Court’s 2008 ruling in Boumediene v. Bush.  Andy Worthington at the Huffington Post also covers Kiyemba, detailing the legal background at issue in the case, and a Washington Post editorial urges the Obama administration to craft a political remedy for the Uighur detainees’ plight before the Court resolves the issue – “possibly in a manner that could reach well beyond these cases.”

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At Balkinization, Barry Friedman analyzes the Court’s docket for the new Term and notes that business and criminal cases have dominated the Court’s recent cert. grants.  Observing that these cases are less likely than some others to divide the Justices on ideological grounds, he hypothesizes that this Term’s docket may result from “defensive denials” – that is, the practice by which a Justice votes to deny a petition for certiorari when her interpretation of the case is likely to be overruled on the merits.  Because Justices on the current Court are sometimes wary of their colleagues’ positions on ideologically controversial issues, Friedman reasons, some may be unlikely to grant cert. in cases addressing those concerns.

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Tuesday’s cert. grant in the case of former Enron executive Jeffrey Skilling continues to dominate the headlines.  Greg Burns of the Chicago Tribune comments on the grant, arguing that the decision to review Skilling’s conviction sets the stage for a decrease in fraud prosecutions under a widely used law prohibiting executives and government officials from depriving their clients and constituents of the “right to honest services.”  However, Burns points out that the Court’s decision not to consolidate Skilling’s case with two other “honest services” cases, Weyhrauch v. United States and Black v. United States, suggests that the “honest services” statute might not be thrown out altogether.   The piece also suggests that the outcome of the cases may have implications for the indictment of former Illinois Governor Rod Blagojevich. 

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At oral argument in Padilla v. Commonwealth of Kentucky (08-651) on Tuesday, the Court considered whether the Sixth Amendment provides a remedy to defendants who have been misadvised by their attorneys.  Arguing on Mr. Padilla’s behalf, Stephen Kinnaird asserted that his client is entitled to relief because any advice given to a defendant by his attorney with regard to a guilty plea affects criminal liability, and therefore must meet competency standards.   Although the Justices expressed reservations concerning the precedent that might be set by such a decision, pressing him to draw a line between “the consequences that count and those that don’t,” Mr. Kinnaird assured them that the use of the Strickland test can address these contextual concerns.  Mr. Kinnaird also emphasized the importance of Strickland’s prejudice prong, asserting both that it was met in this case because Mr. Padilla had a reasonable chance of succeeding at trial and that the application of such a standard in similar cases would prevent courts from becoming overwhelmed by challenges to guilty pleas.  However, the Justices did express concern that such a ruling would place a burden on courts to inquire into the circumstances of every guilty plea.

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The grant of certiorari in Skilling v. United States yesterday is dominating news and blog headlines.

As the New York Times reports, former Enron CEO Jeffrey Skilling is challenging his conviction under the federal law banning “honest services fraud,” or an attempt to “deprive another of the intangible right of honest services.”  Skilling claims the law is unconstitutionally vague, unless it is interpreted to mean that the defendant intended to derive private gain at the expense of his employer.  The government has conceded that Skilling’s actions to inflate Enron profits did not advance his private interests.  Yet Bloomberg points out the government’s claim that, for Skilling, “a victory on the honest services issue would leave intact his convictions on other securities fraud and conspiracy counts.”

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The transcripts of oral arguments are here for Padilla v. Kentucky (08-651), here for Smith v. Spisak (08-724), and here for South Carolina v. North Carolina (138 Original).

Adam Liptak at NYT previews Black v. United States and Weyhrauch v. United States, the “honest services” cases that the Court will hear this term.  The “honest services” law is intended to ensure that officeholders and employees act solely in the best interests of their constituents and employers, but prosecutors have invoked it to address public policy problems that are not necessarily illegal – for example, a system that distributes jobs based on nepotism.  The government contends that such laws are critical to protecting intangible qualities, such as candor or loyalty; opponents believe it allows prosecutors too much discretion to pursue those whom they simply don’t like or with whom they disagree.

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