NOTE TO READERS: The following is in two parts: first, an analysis of a “dialogue” between President Obama and Supreme Court Justice Samuel A. Alito, Jr., during Wednesday night’s State of the Union message; and, second, a commentary about the incident’s propriety.)

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Analysis

Supreme Court Justice Samuel A. Alito, Jr., on Wednesday night allowed himself a dissent — or, perhaps, a point of privilege — at one point during President Obama’s State of the Union address in the chamber of the House of Representatives. It has much of Washington talking — at the level of common gossip, and at a more significant level.  It may have a bearing on what is shaping up as the first attempt in Congress to write a new law reacting to the Supreme Court’s decision last week in Citizens United v. Federal Election Commission.

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The following is a recap of Tuesday’s oral argument in Abbott v. Abbott (08-645).  To see earlier coverage of the case, check its SCOTUSwiki case page.  [Note: Howe & Russell represents the petitioner in the case, and a lawyer from that law firm argued on his behalf before the Court.]

During oral argument in Abbott v. Abbott, the Court grappled with complex questions – about the nature of rights, the best interests of children and families, and the interpretation of international treaties – that broke down traditional alignments on the Court.  If the argument had a common theme, it was understanding the reasoning behind the Hague Convention on the Civil Aspects of International Child Abduction.

The case is a dispute between respondent Jacquelyn Abbott, who moved her son from Chile to the United States, and her estranged husband, petitioner Timothy Abbott, who wants the child returned to Chile.  Mr. Abbott contends that a Chilean law granting him a “ne exeat” right – the right of one parent to veto the other’s removal of their child from the country – amounts to a “right of custody” within the meaning of the Hague Convention.  If Mr. Abbott is correct, then the Convention requires that the child be returned to Chile.

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From the SJC Majority: “Tomorrow, the Committee will convene at 9:30 a.m. to conclude the first round of questions, with Senators Cornyn, Cardin, Coburn, Whitehouse, Klobuchar, Kaufman, Specter and Franken questioning Judge Sotomayor. Following the conclusion of the first round of questions, the Committee will break and move to closed session. The closed session is routine for Supreme Court nominees. Following the closed session and lunch break, the Committee will reconvene in the afternoon to begin the second round of questions. Senators will be permitted up to 20 minutes each for the second round.”

Our live coverage will begin at 9:30 a.m.

As the New York Times highlighted this weekend, the image of the judge as umpire has become a dominant analogy in discussions of judicial restraint. Chief Justice John G. Roberts said in the opening remarks of his own confirmation hearings in 2005:  ”Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role.”  Today, members of the Senate Judiciary committee frequently used this statement to frame their opinions about what role Judge Sonia Sotomayor might play on the Supreme Court (the rare venue in which sitting on the bench is a good thing).

An (incomplete) review of the senators’ written statements and oral testimony finds the phrase “balls and strikes” used 11 times, “umpire” or “umpires” used 16 times, and “playing field” used twice today. Sen. John Cornyn, R-Tex., perhaps appealing to his Big 12 base, went for a football simile instead. Once all of the written statements are submitted to the record and the transcripts are finalized, I’ll update with a complete word count. Excerpts of the senators’ sports infused language are below the jump:

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UPDATE 4:08 p.m.  Republican Norm Coleman on Tuesday afternoon ended his fight for reelection to the U.S. Senate, bowing to a decision of the Minnesota Supreme Court that his opponent, Democrat Al Franken, had won the most votes and was entitled to enter the Senate.  “The [state] Supreme Court has made its decision and I will abide by the results,” Coleman told reporters in St. Paul, the Associated Press reported. That, of course, eliminates any chance of a U.S. Supreme Court test on the constitutional issues Coleman had raised.

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The Minnesota Supreme Court, ruling unanimously that Democrat Al Franken got the most votes and is entitled to be the state’s next U.S. Senator, turned aside a claim by Republican rival Norm Coleman that the Supreme Court’s decision in Bush v. Gore was violated in the way absentee votes were counted or rejected.  Whether that ruling will be tested before the Justices depends now on whether Coleman, who had held the seat, gives up the prolonged fight over the election conducted almost eight months ago.

The state Court’s 32-page ruling can be found here. (Thanks to Rick Hasen  on his election law blog for the usual promptness in posting a link to the opinion.)

Coleman and his supporters had challenged Franken’s 312-vote margin (out of more than 2.4 million total cast) on five specific points.  Three of those involved issues under state law, and would normally not be open to challenge in the federal courts, including the Supreme Court.  But two were claims under the U.S. Constitution and could be reviewed in the federal courts: the claim that Coleman’s right to an equal counting procedure in jurisdictions across the state — a right based on Bush v. Gore — had been violated, and a separate claim that his right to “substantive due process” had been violated by officials’ failure to count ten categories of absentee ballots by insisting that voters strictly comply with absentee voting rules.  The state supreme court rejected both of those challenges.

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Former Stanford clinic student Brian Goldman discusses Monday’s decision in No. 08-495.

After two decisions earlier this Term favoring non-citizens’ interpretations of immigration-related statutes (Flores-Figueroa v. United States and Nken v. Holder), the Supreme Court ruled unanimously for the government on Monday, June 15, in Nijhawan v. Holder.  The Court held that to deport an immigrant for committing an “aggravated felony” that “involves fraud or deceit in which the loss to the . . . victims exceeds $10,000,” the underlying fraud offense need not include the minimum loss amount as a statutory element of the crime.  Instead, “the monetary threshold applies to the specific circumstances surrounding an offender’s commission of a fraud and deceit crime on a specific occasion,” which could be determined during removal proceedings before an Immigration Court.

Writing for the Court, Justice Breyer began by characterizing the two competing interpretations of the “aggravated felony” definition.  A “categorical” interpretation would require that the “generic crime” include the loss amount, such that only a conviction of some offense criminalizing frauds over $10,000 would permit deportation.  A “circumstance-specific” approach, on the other hand, would limit the loss-amount trigger “to the specific way in which an offender committed the crime on a specific occasion,” even if the statutory offense itself required no threshold.

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In a prior post, we began identifying cases in which it is possible that replacing Justice Souter with Judge Sotomayor might change the outcome.  In particular, we identified cases in which Justice Souter was in the majority in a 5-4 decision, beginning with cases that did not break down along traditional liberal-conservative lines.  And we identified two cases decided thus far this term – Arizona v. Gant and Vaden v. Discover Bank – that met those criteria.

Looking back beyond the present term, it is clear that such decisions are relatively infrequent.  Since the start of the October 2005 term – during which Justice Alito joined the Court to create its present membership – we have been able to identify only seven decisions matching the 5-4 “quirky lineup” criteria with Justice Souter in the majority.  In the context of criminal cases, perhaps the most significant issue that may be affected by Justice Souter’s retirement is the Court’s willingness to rely on the rule of lenity.  In the civil context, the constitutional limitations on punitive damages emerge as the most significant issue in this collection of cases.

Criminal Cases and the Rule of Lenity

Four of the seven cases since 2005 have been criminal.  One was Gant.  Another was Day v. McDonnough, 547 U.S. 198 (2006), in which Justice Souter sided with Chief Justice Roberts, and Justices Ginsburg, Kennedy, and Alito, to hold that a federal court had the authority to dismiss sua sponte a habeas petition as untimely, despite the State’s erroneous concession that the petition was filed on time.

In another case going against a criminal defendant, Justice Souter likewise voted with the 5-4 majority in James v. United States, 550 U.S. 192 (2007), to hold that attempted burglary (as defined by Florida law) was a “violent felony” within the meaning of the federal Armed Career Criminal Act.  He was joined by Chief Justice Roberts and Justices Alito, Kennedy, and Breyer.

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Legal Washington’s best-kept secret leaked this afternoon, and by 10pm Pete Williams and then Nina Totenberg had confirmed that Justice Souter intends to retire.  That fact – or presumed fact, given how the message was communicated to the White House – was very closely held there, at the Senate, and at the Court – closely enough that preparations for the nomination of a successor were substantially restrained – among a group that not only was under strict orders but also genuinely appreciated both the Justice’s privacy and his efforts to signal his intentions in advance to the President and the Senate Judiciary Committee.  The future of the Court is a sufficiently explosive topic that a leak over time unfortunately became essentially inevitable, particularly given that it was a known fact by at least some at the highest levels of each branch of government.  It was in fact only a coincidence of timing that the secret held until after arguments for this Term concluded yesterday.

It is pure speculation to say why the Justice decided to retire now.  He is a private man, and those of us who do not talk with him – which includes perhaps every pundit – ought to acknowledge the severe limits on what we actually know rather than presume and infer.  But it is no stretch to say that it was likely an easier decision for him than it has been for many of his predecessors.  Justice Souter’s sense of self has never seemed bound up in his status.  It is likely that once it became clear that Justice Ginsburg would fully recover and serve for many years more, this seemed like an appropriate time to retire from the Court.

Justice Souter still may offer no confirmation that tonight’s stories are correct, much less a formal resignation.  His concern is for the institution, and the last thing he will have wanted is to draw attention to himself and to create a distraction while the Term continues.  He provided a signal, and likely hoped for the best that it would stay confidential.  On the other hand, he is not one for gamesmanship and, assuming his mind truly is finally decided, may conclude that it is best to be done with any remaining ambiguity.  The model of Justices O’Connor and Marshall – a resignation effective upon the confirmation of a successor (almost certainly this summer) – seems the most likely path he would take, given that there is no urgency to his departure.

At the White House (where counsel were aware and at work) and the Senate Judiciary Committee (where they were not), the pace of discussions and preparations for a successor will now increase considerably.  And that is where most of the attention of the press and the public will immediately turn – forwards, rather than reflecting back on the Justice and his work.  He won’t mind, but it is still too bad.  Washington always angles for a leak (tonight) and a fight (this summer).  This is the point at which the collegiality and insularity of the Court meet the competitiveness of the media and vindictiveness of partisan politics.

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In a brief ceremony Wednesday morning, the Supreme Court welcomed the new U.S. Attorney General, Eric H. Holder, Jr.  But Holder quickly learned that the Court will not always rule as the Attorney General wishes.

As Holder was leaving the Courtroom, Chief Justice John G. Roberts, Jr., announced a decision titled Nken v. Holder (08-681) — emphasizing, to laughter in the audience, “versus Holder!”  In Nken, the Court rejected a Justice Department argument that it should be more difficult for aliens ordered to leave the country to get a court-ordered delay of their departure while they appeal.  (The position by the government actually was taken before Holder was in office; in fact, when the case was argued Jan. 21, the Chief Justice introduced it as “Nken v. Filip.”  At the time, Mark R. Filip was Acting Attorney General, replacing Michael Mukasey; the change to “Holder” was routine after he took over as Attorney General.  Ultimately, the Justice Department lost the case on a 7-2 vote.)

As the morning session began, the new Solicitor General, Elena Kagan, introduced Holder to the Justices, noting that he is “the eighty-second Attorney General of the United States.”  The honor fell to Kagan because the Solicitor General is the government’s chief advocate before the Court.

The Chief Justice responded: “General Holder, on behalf of the Court, I welcome you as the chief law officer of the United States government and as an officer of this Court.  We recognize the very important duties that will rest upon you by virtue of your position, and we wish you well in your new office.”

Holder offered brief thanks, turned from the lectern, but then stopped briefly on hearing the announcement of the Nken decision.

The Court has released one opinion today.

The Court has released the opinion in Nken v. Holder (08-681). The decision below, which held for the United States, is vacated and remanded, in an 7-2 opinion by Chief Justice Roberts, available here. Justice Kennedy filed a concurring opinion, joined by Justice Scalia. Justice Alito filed a dissenting opinion, joined by Justice Thomas.

The Supreme Court will hear oral argument on Caperton, et al., v. A.T. Massey Coal Co., et al. (08-322) at 10 a.m. on Tuesday.  Theodore B. Olson of Gibson, Dunn & Crutcher in Washington will argue for Hugh Caperton and the Harman group of companies.  Andrew L. Frey of Mayer Brown in New York will argue for the Massey company.

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Amid reports of a recent “explosion” in campaign spending on state elections for judges, the Supreme Court explores how far the Constitution goes to set controls on judges who have taken hefty donations. The issue of when due process requires disqualification of such a judge is at the heart of the case of Caperton, et al., v. A.T. Massey Coal Co., et al.

Background

Across the nation, three-fourths of the states — 38 — choose judges for their state courts by popular election, either in the first round, or in a retention election for a sitting judge.  The Supreme Court is not now second-guessing that approach, although a rising chorus of reform advocacy groups questions whether the system has gone awry because of the potential influence of donations to cover the ever-climbing cost of judicial elections.  The particular object of concern are contributions from lawyers and parties who have cases before state courts.  Contributions from such sources, former Justice Sandra Day O’Connor has written, “threaten the integrity of judicial selection and compromise the public perception of judicial decisions.”

Figures supplied to the Court by reform groups seek to tell the story. Judicial elections began growing more expensive in the late 1990s, and, since then, the total money raised has ballooned, as illustrated by data that funds raised by candidates for seats on states supreme courts in the years 2000-2007 drawfed the total for the entire decade of the 1990s — $168 million compared to $86 million.  And further data show that, most of the time, the judicial candidate who raises the most money wins the election.

The Constitution does not put any ceilings on the money that anyone can give to a state judicial candidate. But, for a long time, the Constitution’s promise of ”due process” has been understood to require a judge to step aside from a case in which his or her impartiality is open to significant question.  The Court, however, has never spelled out exactly when a refusal to “recuse” violates due process.

Some constitutional debate continues to go on over whether disqualification is required when there is an “appearance” of bias, or is required only when there is proof of “actual” bias.  It does appear that, at least when a judge has a direct personal or financial stake in the outcome of a case, the Constitution is clear: he or she cannot sit on that case — even if there is no proof that the judge would actually vote to protect that interest. That is a mandate that traces back to English common law.

But the more difficult issue is how to judge whether a particular influence will cause a judge to be biased, or at least to appear to be biased, thus forcing disqualification.  In modern terms, legislatures have been passing laws to deal with perceptions, or demonstrations, of bias.   The question now, then, is whether the Constitution, too, imposes some variation of a bias standard for judicial disqualification.

The lower courts, it has been argued, are split on the bias question.  A number of those courts have held that due process prohibits both actual bias and the appearance of bias on the part of a judge.  But others have said that disqualification is required only when there is actual bias.  And still others have held that due process does not invariably required recusal of a judge for an appearance of bias; those courts suggest that circumstances may show “a presumption” or “a reasonable probability” of bias.

That three-way division, apparently, is what has now persuaded the Supreme Court to step in to examine just what due process does require. In the new case, a justice of the West Virginia Supreme Court of Appeals (now its chief justice) refused to step aside when challenged over campaign donations; he  concluded there was no proof of “actual” bias.  That, he argued, was the constitutional due process standard.

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Here are links to the transcripts of Wednesday’s oral arguments:

Corley v. U.S., 07-10441.

Kansas v. Ventris, 07-1356.

Nken v. Mukasey, 08-681.

The blog apologizes for the tardiness of this posting.

At 10 a.m., the Court will release the remaining orders from the Justices’ private conference on Friday. Following the release of orders, the Court will hear argument in Corley v. United States (07-10441), involving the suppression of voluntary confessions. David L. McColgin of the Philadelphia Federal Defender’s office 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 Kansas v. Ventris (07-1356), involving prosecutors’ ability to impeach witnesses with statements obtained in violation of Miranda v. Arizona. Kansas Solicitor General Stephen R. McAllister and Nicole A. Saharsky of the Solicitor General’s office will argue for the petitioner. Matthew J. Edge of the Kansas Appellate Defender’s office will argue for the respondent.

At 1 p.m., the Court will hear argument in Nken v. Mukasey (08-681), involving the standard reviewing courts should use to stay an alien’s order of removal. Lindsay C. Harrison of Washington, D. C., will argue for the petitioner, and Acting Solicitor General Edwin S. Kneedler will argue for the respondent.

We will post links to the transcripts as soon as they are available.

On Monday, the Court will be closed in observance of the birth of Dr. Martin Luther King, Jr.

On Tuesday, the Court will be closed for Inauguration Day.

On Wednesday,  the Court will release the remaining orders from the Justices’ private conference on Friday, as well as hear argument in:

• Corley v. United States (07-10441), involving the suppression of voluntary confessions.
• Kansas v. Ventris (07-1356), involving prosecutors’ ability to impeach witnesses with statements obtained in violation of Miranda v. Arizona.
• Nken v. Mukasey (08-681), involving the standard reviewing courts should use to stay an alien’s order of removal.

On Friday, the Justices will hold a private conference, orders from which are expected to be released the following Monday.

The petitioner’s merits brief is due Wednesday in al-Marri v. Pucciarelli (08-368). The respondent’s merits brief is due Wednesday in Rivera v. Illinois (07-9995), Thursday in  Hawaii, et al. v. Office of Hawaiian Affairs, et al. (07-1372), and Friday in Flores-Figueroa v. United States (08-108) and Arthur Andersen LLP, et al. v. Carlisle, et al. (08-146). (Links above direct to case pages on SCOTUSwiki.)

No oral arguments are scheduled at the Court this week.

The Justices will hold a private conference on Friday, orders from which could be released that afternoon. To view our list of petition’s to watch at Friday’s conference, click here.

The petitioner’s merits brief is due Friday in United States v. Denedo (08-267). The respondent’s merits brief is due Wednesday in Carlsbad Technology, Inc. v. HIF Bio, Inc. (07-1437) and Nken v. Mukasey (08-681), and Friday in United States v. Navajo Nation (07-1410). (Links above direct to case pages on SCOTUSwiki.)