In association with Bloomberg Law

Coverage of the impending decision in the challenge to the Affordable Care Act also continues. At Bloomberg, Greg Stohr provides a primer on the history of the Commerce Clause and its applications.  Continuing a theme raised by Kathleen Parker in the Washington Post (covered in yesterday’s round-up), several commentators discuss efforts to influence the Court’s decision. At the Washington Post’s Right Turn blog, Jennifer Rubin argues that “liberal advocates ask [Chief Justice] Roberts to knuckle under to the President’s public intimidation of the Supreme Court,” while at the Opinion L.A. blog of the Los Angeles Times, Michael McGough writes that “[s]ome conservatives are in a mild panic about the possibility that Chief Justice John G. Roberts Jr. will succumb to pressure from Democrats and the liberal media to uphold “Obamacare.”  Over at Balkinization, Mark Tushnet argues that conservative commentators are preparing to argue that any decision upholding the mandate was tainted by politics. At Investor’s Business Daily, David Hogberg writes that both Democrats and Republicans would face political difficulties were the Court to strike down the Affordable Care Act.  Writing at PrawfsBlawg, Paul Horwitz considers the possible motivations driving the recent spate of posts on the politics of the individual mandate decision. At the Volokh Conspiracy, Randy Barnett writes that if Chief Justice Roberts votes to uphold the act, his vote might appear, however unfairly, to have been influenced by political pressures; David Bernstein argues that a decision striking down the Affordable Care Act would not signal a “radical libertarian” turn in the Court’s jurisprudence; and Ilya Somin writes that a decision striking down the act would not “lead to the resuscitation of Lochner v. New York and the invalidation of a wide range of economic regulations.”

Other coverage focuses on campaign finance. Writing for this blog, Lyle Denniston discusses recent filings in American Tradition Partnership v. Bullock, the challenge to the Montana Supreme Court ruling upholding a statute that bans corporate spending in state elections. Writing for Reason, Damon Root describes the Montana Supreme Court holding as “misguided.”

Briefly:

• Writing for this blog, Lyle Denniston discusses the recent stay application filed by the Governor of Rhode Island in Chafee v. United States, which asks the Court to block the transfer of a state prisoner to the federal government for prosecution and a possible death sentence.
• At Reason, Jacob Sullum discusses the questions about the constitutionality of warrantless electronic surveillance left open by United States v. Jones, in which the Court held that tracking a suspect’s movements by attaching a GPS tracker to his car constituted a search for Fourth Amendment purposes.
• At Public Citizen’s Consumer Law and Policy blog, Brian Wolfman discusses Justice Stevens’ recent talk at the American Law Institute in which he criticized the Court’s ruling in Bush v. Gore.
• Writing in the New York Times, Mae Kuykendall argues that the Supreme Court should require all states to recognize same-sex marriages lawfully conducted in other states in order to provide “a way out of the same-sex marriage mess.”
• Over at the Daily Beast, Chris Geidner discusses calls for Justice Ginsburg to retire in order to ensure that President Obama gets to pick her successor.

In association with Bloomberg Law

In association with Bloomberg Law

Sure, your dreams of a Facebook-funded early retirement went up in a cloud of blue-chip smoke, and you’ve been reduced to alternating status updates between “IHML” and “BIH, Zuckerberg,” but fret not:  the good folks at One First Street N.E. are more than meeting market projections for relists and holds.  And like the low-yield CDs of the legal world that they are, they delivered their usual tiny dividends right on time.

 If you somehow managed to make it through last week’s post, then you already know most of the next bit.  Due to the Court’s proclivities (and, well, the barbed-wire fences and 200 miles of open sea surrounding their quarters), our Guantanamo friends didn’t go anywhere; all five of last week’s detainee cases will be relisted once again, as Lyle has already noted.  Joining Al-Bihani v. Obama, 10-1383; Uthman v. Obama, 11-413; Almerfedi v. Obama, 11-683; Al-Madhwani v. Obama, 11-7020; and Al Alwi v. Obama, 11-7700, are first-time relists Latif v. Obama, 11-1027, and Al Kandari v. Obama, 11-1054, both mentioned last week.  El Falesteny v. Obama, 11-9344, also mentioned last week, has yet to be scheduled for conference.  Don’t be looking for the El Falesteny brief in opposition in this column; Uncle Sam filed it under seal, giving credence to rumors that it contains the formula for the Krabby Patty.  (Those who have been “read in” to the program know it’s just extra love.)

In non-detainee news, the Court will relist for a second time (since calling for a response) in Comcast Corp. v. Behrend, 11-864.  As you might recall, that case is a follow-on to Wal-Mart v. Dukes, raising the issue alluded to in that case of just how much consideration the trial court can give to merits arguments at the class-certification stage.  Meanwhile, back for a third trip to the all-you-can-eat relist smorgasbord are Coleman, Superintendent v. Johnson, 11-1053, a state-on-top habeas case out of the Third Circuit; Parker, Warden v. Matthews, 11-845, a state-on-top habeas case out of the Sixth Circuit; and Fairey v. Tucker, Secretary, 11-7185, a state-not-on-top habeas case out of the Fourth Circuit.  Surely we will be getting some sort of an opinion in those cases in the next four weeks or so.

Cue the bagpipes, though, because we did lose one from last week.  The makers of the popular Almendarez-Torres action figure can breathe a sigh of relief; they won’t have to close up shop just yet.  The Court released its kung fu grip on the once-relisted Staunton v. California, 11-8851, a case that teed up an opportunity to rethink (or carve out an exception from) the prior-conviction exception to the rule, recognized in Apprendi v. New Jersey, that a judge may increase a sentence only if the enhancement is based upon facts found by a jury beyond a reasonable doubt. Two sets of Almendarez-Torres relists have gone down the tubes after Justice Thomas observed (back in the Stevens/Souter days) that five members of the Court think it was wrongly decided.  Maybe Justices Sotomayor and Kagan are not as eager to revisit that case as their predecessors were.  Or maybe the vehicles just stunk like a New York cab on a Sunday morning.  [/Raymond Chandler]

Our first new non-detainee relist isn’t really new at all.  It’s actually a rehearing petition that is now being relisted for its second time.  After dutifully collecting all the paperwork on May 14, I neglected to write the thing up for last week’s post.  (To quote the sage Robbie from Lakehills, Texas, “Even the greatest pitchers have an ERA.”)  But happily, my friends at the Court relisted it again this week to give me a chance to remedy my error.  Anyhoo, Cook v. Schriro, 08-7229, is an AEDPA case out of Arizona concerning Cook’s allegedly ineffective trial counsel.  After what appears to be a very rough life, Cook was sentenced to death for two murders he committed while high on crystal meth.  We’ve all been there.  Following the usual rounds of direct and collateral review, Cook’s claim for ineffective assistance of counsel made its way up to the Court, where it seems it was put on hold for Martinez v. Ryan, 10-1001, which asked whether ineffective assistance of state post-conviction counsel constitutes “cause” for procedural default of a claim of ineffective assistance of trial counsel.  Martinez was decided in March, but because it decided only the AEDPA “cause and prejudice” issue without reaching the underlying constitutional claim at issue in Cook, the Court ultimately denied cert.  On rehearing, Cook wants the Court either to review the issue left open in Martinez or to GVR the case in light of Martinez.  Rehearing petitions are granted once in a blue moon, but something’s going on here.

 Monday brought us three brand-spankin’- new non-detainee relists.  First up is the much anticipated City of New Haven v. Briscoe, 11-1024, the follow-up to Ricci v. DeStefano.  Not only is New Haven the self-declared home of the hamburger, the preferred clothier of style-impaired WASPs, and one of America’s most celebrated universities, but also, it seems, a bounty of litigious firefighters.  Briscoe presents the Title VII disparate impact claim the city of New Haven said it feared when it invalidated the firefighter test in Ricci.  The petition challenges the decision of the Second Circuit to let the suit go forward.  Briscoe has been relisted to the June 7 Conference, skipping two conferences in between.  My guess is the Court wants to consider it alongside North Hudson Regional Fire & Rescue v. NAACP, 11-1247, a Third Circuit case set for the June 7 Conference that  involved a Ricci defense to a residency requirement challenged under Title VII.

Next up is yet another state-on-top habeas case, Howes v. Walker, 11-1011.  Walker was convicted of murder in a Michigan trial court.  After initially sending the case back down for a deficiency determination, the Michigan Court of Appeals rejected Walker’s Strickland ineffective-assistance-of-counsel claim.  On collateral review, the federal district court denied Walker’s habeas petition but issued a certificate of appealability on the issue whether the Michigan courts unreasonably applied clearly established Supreme Court precedent.  A panel of the Sixth Circuit, over a lengthy dissent from Judge Cook, reversed, based in part on its conclusion that the Michigan courts’ factual determinations were unreasonable.  In its petition, Michigan concedes that Walker’s trial counsel was ineffective, but maintains that that ineffectiveness was not prejudicial under Strickland.  One of the more interesting issues it presents for review was left open by the Court in Wood v. Allen (2010), namely, whether Section 2254(e)(1)’s command that an underlying state-court fact determination is presumed correct applies in a case presenting a challenge to the reasonableness of the state court’s factual determinations under Section 2254(d)(2).

Now for Jennings v. Owens, 11-789.  Jennings was convicted in Texas state courts of debit card abuse for teasing a Discover Card about being a loser.  Upon release, the Texas Board of Parole imposed various “sex offender” conditions on Jennings based in part on an unrelated sex offense he committed over three decades earlier.  Jennings filed a Section 1983 suit challenging the imposition of sex offender conditions and the federal district court granted him summary judgment.  Texas appealed, and the Fifth Circuit reversed.  Although that court tossed out some of the restrictions,  it determined that the district court granted too broad relief to Jennings for purported procedural due process violations that had yet to occur.  The district court subsequently granted summary judgment to the defendant Texas officials.  In a short opinion, the Fifth Circuit affirmed.  Because Jennings was a convicted sex offender who had the ability to challenge that status at the time it was imposed, the court reasoned, Jennings is not stigmatized by the imposition of sex offender parole conditions.  Jennings’ petition challenges the imposition of the sex offender conditions without contemporaneous notice or opportunity to be heard.

Finally, we appear to have one new hold, though exactly what it’s on hold for is anyone’s guess.  Dotson v. United States, 11-9873, raises the question whether the mandatory minimum for brandishing a firearm, 18 U.S.C. § 924(c)(1)(A)(ii), must be indicted and proven to a jury beyond a reasonable doubt.  It is a direct challenge to Harris v. United States, which upheld mandatory minimums against an Apprendi challenge.  Petitioner contends that Harris conflicts with a number of cases, Apprendi among them.  (The Harris plurality purported to distinguish Apprendi.)  To many observers, Almendarez-Torres and Harris are the sick men of American sentencing law, but suggesting that they are due to be overruled increasingly has the feel of predicting Keith Richards’ death circa 1977.  I’ll just shut up, buy kohl futures, and wait for Some Girls to come out.

That was a long one!  FB slid another 2.38in the time it took to write this post.  Good thing my money is in the frozen orange juice market.  And we all know that we can count on the certainty of the next relist (and hold) watch, and that it still won’t be funny.  See you back here next week!

Thanks to Eric White for compiling and drafting this update.

City of New Haven v. Briscoe (relisted after the 5/17 Conference)

Docket: 11-1024

Issue(s):  Whether a lower court may disregard this Court’s express guidance and create Title VII disparate-impact liability for actions this Court ordered an employer to undertake as a remedy for a Title VII disparate-treatment violation.

Certiorari stage documents

• Opinion below (2d Cir.)
• Petition for certiorari
• Brief in opposition
• Amicus brief of Cato Institute
• Amicus brief of National League of Cities et al.
• Amicus brief of Pacific Legal Foundation et al.
• Amicus brief of Frank Ricci et al.
• Reply of petitioner

 Jennings v. Owens (relisted after the 5/17 Conference)

Docket: 11-789

Issue(s):  Whether petitioner holds a constitutionally protected liberty interest to remain free from the certain “sex offender” conditions of parole imposed after his release from confinement for “debit card abuse,” that is subject to deprivation only after provision of notice and an opportunity to be heard, notwithstanding his prior unrelated conviction for a “sex offense” while a minor more than thirty (30) years earlier.

Certiorari stage documents

• Opinion below (5th Cir.)
• Petition for certiorari
• Brief in opposition
• Reply of petitioner

 Howes v. Walker (relisted after the 5/17 Conference)

Docket: 11-1101

Issue(s):  (1) Whether 28 U.S.C. § 2254(d)(2)’s invitation to decide the reasonableness of a state-court factual determination fits with 28 U.S.C. § 2254(e)(1)’s command that an underlying state-court fact determination must be presumed correct; (2) whether the Sixth Circuit violated Section 2254(d)(1) by granting habeas relief on a purportedly unreasonable application of state law; and (3) whether the Sixth Circuit violated § 2254(d)(1) by asserting its own prejudice standard – that a defendant “must only show that he had a substantial defense” – rather than the standard in Strickland v. Washington that prejudice requires a showing that, but for counsel’s error, there is a reasonable probability of a different outcome.

Certiorari stage documents

• Opinion below (6th Cir.)
• Petition for certiorari
• Brief in opposition
• Reply of petitioner

 Cook v. Schriro (relisted after the 5/10 and 5/17 Conferences)

Docket: 08-7229

Issue(s):  (1) Whether ineffectiveness of “initial review” post-conviction counsel, for a claim of

ineffective trial counsel, constituted “cause” excusing failure to exhaust the claim of ineffective trial counsel in state court; (2) alternatively, whether the Court should rehear the petition, grant cert., vacate the decision of the Ninth Circuit, and remand for further proceedings consistent with Martinez.

Certiorari stage documents

• Opinion below (9th Cir.)
• Petition for rehearing
• Petition for certiorari
• [Brief in opposition]
• Reply brief

 Comcast v. Behrend (relisted after the 5/10 and 5/17 Conferences)

Docket: 11-864

Issue(s):  Whether a district court may certify a class action without resolving “merits arguments” that bear on Federal Rule of Civil Procedure 23’s prerequisites for certification, including whether purportedly common issues predominate over individual ones under Rule 23(b)(3).

Certiorari stage documents

• Opinion below (3d Cir.)
• Petition for certiorari
• Brief in opposition
• Reply of petitioners

 Coleman, Superintendent v. Johnson (relisted after the 4/27, 5/10, and 5/17 Conferences)

Docket: 11-1053

Issue(s):  (1) Whether the court of appeals’ grant of habeas relief based on a finding that the Pennsylvania courts misapplied Pennsylvania law should be reversed; (2) whether the court of appeals’ refusal to credit factual inferences favorable to the prosecution should be reversed; (3) whether the court of appeals’ determinations regarding witness credibility should be reversed; (4) whether the court of appeals’ holding, which relies upon a definition of accomplice liability that conflicts with Pennsylvania law, should be reversed; and (5) whether the court of appeals failed to acknowledge or address the presumption of correctness that must be afforded the factual inferences drawn by the state courts pursuant to 28 U.S.C. § 2254(e)(l).

Certiorari stage documents

• Opinion below (3d Cir.)
• Petition for certiorari
• Brief in opposition

 Parker, Warden v. Matthews (relisted after the 4/27, 5/10, and 5/17 Conferences)

Docket: 11-845

Issue(s):  Whether the Sixth Circuit erred in finding that the Kentucky courts unreasonably applied clearly established federal law and granting respondent habeas relief.

Certiorari stage documents

• Opinion below (6th Cir.)
• Petition for certiorari
• Brief in opposition

 Fairey v. Tucker, Secretary (relisted after the 4/27, 5/10, and 5/17 Conferences)

Docket: 11-7185

Issue(s):  Did the court of appeals err in dismissing the petitioner’s appeal and denying the certificate of appealability where the record showed that the district court’s assessment of the constitutional claims was wrong?

Certiorari stage documents

• Opinion below (4th Cir.)
• Petition for certiorari
• Brief in opposition
• Reply brief

In association with Bloomberg Law

If the Supreme Court had looked at the highly significant Montana campaign finance case a month ago, it would have seen a far simpler constitutional controversy — one that boiled down to the question of whether a state court must obey what the Nation’s highest court says the law is; the answer, of course, is obvious.   The Court might have asked itself then: what is the quickest and simplest way to make this right?   What a difference a month — and a raft of legal talent – might make.

A stack of new legal filings last Friday amounted to an argument that the Court would not be true to itself or to its nobler traditions if it acts swiftly out of pique at the Montana Supreme Court — in effect, a not-so-subtle suggestion that the Court would put itself very much more on the defensive for having acted rashly.   If that argument works, it could set the stage for a thorough new airing of money in politics by the Justices — next year, in a supposedly calmer, non-campaign atmosphere.

Many new questions have now been raised directly before the Court about the controversial decision that lies behind this controversy — the 2010 decision in Citizens United v. Federal Election Commission.  But no issue seems more important right now than whether the Court will dump the supposedly contrary Montana court’s ruling with little more than a passing glimpse — in other words, whether it will summarily reverse the state tribunal without briefing or oral argument, an unceremonious technique that is usually reserved for lower courts that stray far off of the judicial path on frolics of their own.

A frolic of just that sort is what the Montana Supreme Court has been accused of doing, in the filings three corporations and their supporters in the case made in March and April.  They are challenging the state court’s split decision late last year upholding a state law that restricts the political spending options of corporations operating under Montana law.  That ruling, its challengers contended, resulted from a blatant refusal by the state court majority to obey the Supreme Court’s Citizens United decision that permits unlimited spending by corporations (and labor unions) acting independently of candidates.   Citizens United itself, the Washington, D.C.-based advocacy corporation that had won the 2010 decision, said in its brief that the state court had engaged in “constitutional mischief.”  The Justices’ only proper response, those filings asserted, was summary reversal.

The challengers had made much the same argument in February, when they persuaded the Supreme Court — unanimously, it appeared — to temporarily block the state court decision, pending an appeal to the Justices.  (Earlier posts on this blog about this dispute, and links to all of the filings before the Court in the case up to now, are available at this page.  The case is American Tradition Partnership, Inc., et al., v. Bullock, et al., docket 11-1179.)

The responses are now in, from the state of Montana and from an array of amicus briefs that range, in their arguments, from an outright plea for the Justices to reconsider the core of the Citizens United decision to a claim that Montana’s Eleventh Amendment legal immunity as a state forbids the lawsuit against it by the three corporations.   Many of the new briefs told the Court that it should simply deny review of the corporations’ petition, to let the issues raised by the Citizens United decision “percolate” further in lower courts.

But, in tone and content, most of the new filings seem to imply that the lawyers think an outright denial of review is unlikely, so most of their energy is spent on attempts to persuade the Justices to give the case the full treatment of a regular case: a round of written briefs, again attracting a wide array of amici, followed by a hearing before the nine Justices.

It now appears that the Justices will take their first look at the case sometime in mid-June; it has not yet been formally scheduled for a private Conference of the Justices, but the earliest Conference where it might be on the table would be June 14.  If review is granted, the case might not be heard until December at the earliest, after the election, and not decided until next year.  If summary reversal is to be its fate, though, that could come before the Justices finish the current Term late next month.  Because of the Justices’ February order in the case, the state court ruling is on hold for the time being.

One of the principal arguments that the just-filed response briefs made against the Citizens United decision is that the 5-4 majority was just wrong in one of the ruling’s most important declarations: “We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”

Of course, if there is no prospect of corruption in politics, then prior Supreme Court rulings bar federal or state governments from regulating the flow of money in election campaigns, on the theory that money is a form of political speech under the First Amendment.

While the corporations challenging the Montana campaign finance law contended that the Supreme Court was making a legal declaration in that statement, the briefs on the other side urged the Justices, in any new review of the controversy, to treat that as simply a conclusion of fact that is subject to revision if there is evidence to show that it was incorrect.  And the new briefs make a studied effort to show that, as a matter of fact, the Court’s statement was wrong: the actual experience in the two years since the decision, they argued, proves the error.

For example, a brief filed by advocacy organizations — many identified with campaign finance reform efforts — told the Court: “Experience since Citizens United has taught that — with the law’s ready accommodation of close relationships and coordinated fundraising activities between candidates and supposedly ‘independent’ spenders — independent expenditures do give rise to corruption and the appearance of corruption….More than $120 million in anonymous-source funds was spent to influence the 2010 elections, with far greater spending of anonymous funds projected for 2012.”

Much of the claimed evidence of massive spending is attributed, in the new briefs, to the so-called “Super PACs” that have been created since the Citizens United decision, and often involve individuals closely allied with actual federal candidates — including both President Obama and the presumed Republican presidential nominee, Mitt Romney.  A brief filed by former members of the Federal Election Commission, joined by former state and local election officials, summed up: “In the 2012 primaries, Super PACs and non-profits have raised and spent money on a massive scale, yet the amounts collected and spent to date are only a fraction of those expected in this year’s elections.”

The briefs, predictably, pick up on remarks made by Justices Ruth Bader Ginsburg and Stephen G. Breyer in February, when they urged the Court to take a new look at Citizens United, commenting on the problems they saw arising from recent heavy spending on federal campaigns, and their doubts about the validity of the conclusion that independent expenditures have no capacity to corrupt politicians.

Republican Sen. John McCain of Arizona, joined by Democratic Sen. Sheldon Whitehouse of Rhode Island, filed a brief that commented: “The news confirms, daily, that existing campaign finance rules purporting to provide for ‘independence’ and ‘disclosure’ in fact provide neither.  Regulatory filings show that much of the funding for independent expenditures comes from shell companies, pass-through entities, and non-profit organizations that conceal the true source of the individuals and companies supporting them. These non-disclosed funding sources were not what the Court had in mind when it issued its ruling in Citizens United.”

In the Citizens United decision, while the Court freed independent spending on federal campaigns, the majority also refused to strike down requirements that the sources of such spending could be required to be disclosed.   The briefs supporting the Montana ruling make much of that.

Several of the briefs — including the one filed by Montana state officials in defense of their state court’s ruling and the state law at issue — sought to make a strong “states’ rights” argument to the Court, especially in pleading with the Court not to summarily reverse the state court.   The main constitutional argument is that, while Citizens United involved a First Amendment issue over a law enacted at the federal level, the new case is about states’ power and whether the Fourteenth Amendment restricts their controls on campaign finance as much as the First Amendment does for federal law.  Twenty-two states along with the District of Columbia line up behind this argument.

A part of that argument is that corporations are creatures of state law, and states thus have broader authority to regulate what they do with corporate money, especially when corporations might be writing checks to support political candidates or causes that the stockholders would not necessarily support.   A further part of the argument is that states are smaller entities, and so it is easier for “outside” campaign dollars to actually have a controlling influence on state elections.   This latter point is also made in the context of rising spending on state judicial elections.

A group of Montana organizations took the Fourteenth Amendment argument a good bit further, in a quite imaginative way.  Their brief noted that, for the First Amendment principle of free speech to work against state election laws, it must be treated as “incorporated” into the Fourteenth Amendment’s due process clause, but Justice Clarence Thomas does not support the “incorporation” theory.  Subtracting Justice Thomas from the Citizens United majority, that brief went on, would leave that opinion’s approach with only four votes in support when viewed “in the Fourteenth Amendment context.”   By that argument, Citizens United would be only a 4-4 decision if a state law were the one at issue, and a 4-4 split in the Montana case would leave the state court’s decision intact.

Part of the new briefs’ assault on the Citizens United decision itself is an argument that the Justices could not have intended the consequences that have followed from that ruling, with lower courts giving it a broader reading than the decision itself would justify.   Some of the briefs noted that, while Citizens United dealt only with spending in campaigns, lower courts have interpreted it to mean that governments may not control the flow of contributions into independent organizations, like Super PACs.  Moreover, some have interpreted the decision to relax the long-standing notion that political spending has to remain truly independent of candidates, if it is going to enjoy the broadest constitutional protection.

Another attack on Citizens United — made by former officials of the American Civil Liberties Union, in a brief not supporting either side in this case — is aimed at the decision’s assumptions that all corporations were entitled to the same First Amendment protection when they spend money in politics.   The decision in that case should have been understood as confined to grass-roots politically active organizations like the group bearing the name Citizens United, and should not be understood as applying to large corporations that have many stockholders, according to this filing.

That brief argued: “Massive legal and factual differences exist between and among ideological grassroots non-profits, single-shareholder businesses, and multi-shareholder business corporations that call for separate analyses of the constitutional rights of each corporate category.”

The corporations challenging the Montana law and the state court ruling will now have a chance to reply to the response briefs, and then the Court will schedule the case for an initial look at a future Conference.

In association with Bloomberg Law

Justice Alito began by recounting briefly the facts of the case – Taniguchi lost a personal-injury suit to Kan Pacific and was ordered to pay Kan Pacific’s document translation costs – and then framing the question: What does “interpreter” mean in subsection 1920(6)? Because Congress provided no statutory definition, Justice Alito explained, the Court must give the term its “ordinary meaning.”

So, it was time to resolve the parties’ battle of the dictionaries.  And because most lay and legal dictionaries in use in 1978 – when Congress added subsection (6) to the costs statute – defined “interpreter” as a person who translates spoken, as opposed to written, language, the ordinary meaning did not extend to a person who translates written documents.

At this point, Justice Alito took on Kan Pacific’s principal dictionary-based argument: Because Webster’s Third (1976) defined “interpreter” as “one that translates; esp: a person who translates orally for parties conversing in different tongues,” using the sense divider “esp,” one meaning of “interpreter” is someone who translates written documents. Justice Alito did not dispute that indisputable point. Rather, he made a neat counterpoint: that just because “a definition is broad enough to encompass one sense of a word does not establish that the word is ordinarily understood in that sense.” This reflects a sensible textualism, and I suspect that this line of the opinion is the one most likely to live on in statutory construction jurisprudence.

It’s worth noting here that Justice Alito did not trash Webster’s Third, as Justice Scalia did at oral argument, when he exclaimed that Webster’s Third is “not a very good dictionary,” in part because it wrongly defines “imply” to mean “infer” and  vice versa. But Justice Alito did something similar. He held, in effect, that the Oxford English Dictionary is a better dictionary!  Because the Oxford English Dictionary is “one of the most authoritative on the English language,” and its 1933 edition recognized that “interpreter” can mean someone who translates documents, but designated that meaning as “obsolete,” Kan Pacific’s goose was fully cooked.  Justice Alito’s “OED holding” will resonate among the lawyers who practice regularly before the Court. From now on, whenever we rush to the dictionaries hoping that they will support our client’s view of the statutory terms – and we’ve all done that many times – we will go first to the OED, praying that it does the trick.

After an analysis of the statutory text, the next step typically is context. And context just made things worse for Kan Pacific. Subsection 1920(6) was added to the federal costs statute by the Court Interpreters Act, and all of its uses of “interpreter” connote someone who translates orally. For instance, one part of that Act directs the courts to use interpreters when a party or witness “speaks only or primarily a language other than the English language.” After perusing all of the Act’s express and implied references to oral translation, the Court then relied on its familiar canon that multiple uses of the same word in the same act generally ought to be accorded the same meaning. (Here, Justice Alito paused to respond to Justice Ginsburg’s dissent, which relied heavily on the federal district courts’ practice of awarding document translation costs. The statutory context, he said, and not what the courts have done, “is a more reliable guide” “about what Congress intended when it added subsection (6).”)

After noting that the Court’s understanding of the ordinary meaning of “interpreter” comported with the technical meaning given it by interpreters and translators, the Court turned to Federal Rule of Civil Procedure 54(d)(1), which says that, presumptively, costs “should be allowed to the prevailing party.” The Ninth Circuit had relied heavily on Rule 54, saying that it creates “a decided preference” for a broad reading of costs under Section 1920. But the Court rightly nixed that argument, noting that Rule 54(d) does not define “costs,” but says only that when costs exist they should presumptively be awarded to the prevailing party. This case, Justice Alito explained, concerned whether one item of expense – document translation – is a cost under Section 1920, and, thus, has nothing to do with Rule 54(d).

Justice Alito added that the Court’s ruling is consistent with Section 1920’s narrow focus – it covers only “relatively minor, incidental expenses” such as clerk and court reporter fees that comprise only “a fraction of expenses borne by litigants” – thus underscoring that Kan Pacific’s position would “stretch” Section 1920’s ordinary meaning. He then wrapped up his opinion by telling Kan Pacific that its “extratexual” and policy-based arguments are “more properly directed at Congress.” No surprise there.

To all of this, I’ll add two points. First, for what it’s worth, I liked Justice Alito’s opinion. It’s clear – see my plain-language translation (pun intended) of the opinion below – logical, and fair. On the latter score, I have noticed that Justice Alito’s opinions generally give the losing party’s plausible arguments a fair hearing, and he does the same for lower court opinions with which he ultimately disagrees. That’s good.

Second, this case turned out to be one in which the oral argument was a good barometer of the outcome. As noted previously, the argument transcript, plus a guess based on the textualist predilections of the silent Justice, indicated that five Justices – Alito, Kagan, Scalia, Thomas, and the Chief Justice – would rule for Taniguchi based on the statute’s text, and that three Justices – Ginsburg, Sotomayor, and Breyer – seemed to side with Kan Pacific because the lower courts had been awarding document translation costs for years. And that’s how it worked out (with Justice Kennedy, whose views were hard to pin down from the transcript, joining the majority).

Plain English Summary

In this case, the Court held that “because the ordinary meaning of ‘interpreter’ is someone who translates orally from one language to another,” … ‘compensation of interpreters’ in [28 U.S.C.] § 1920(6) does not include costs for document translation.” Put even more simply, people who win federal-court lawsuits cannot be reimbursed by the losing party for any of their document translation costs.

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Pleau was already serving an 18-year prison sentence in Rhode Island for violation of parole and probation when the federal government demanded that he be turned over under a federal bank robbery charge.  In September 2010, Pleau allegedly shot and killed a gas station manager outside of a bank in Woonsocket, R.I., when the man was trying to deposit money.  In the federal case, Pleau is charged with robbery, conspiracy, and using a gun during a violent crime that resulted in death.  He could face the death penalty if convicted, but a decision on that has not yet been made.

The case turns on the meaning of the Interstate Agreement on Detainers Act.  Normally, that law is used to make it easier for one state to obtain custody of an individual who is in another state, for prosecution for a crime in the demanding state.   The federal government, however, is covered by the Act’s provisions, too.

When the federal government formally asked Rhode Island to hand over Pleau, the state — exercising what it believes is its right under the Act — refused, based on the state’s public policy against death sentencing.  The government, however, then went into federal court, and obtained a formal writ commanding Rhode Island to turn over Pleau, despite the governor’s objections.  As of now, the federal government’s argument has prevailed, as the en banc First Circuit Court ruled in May that Rhode Island must obey the writ.  The Circuit Court split 3-2 on the issue.

The governor and Pleau, in their joint plea for delay, sought a stay of the Circuit Court ruling until the Supreme Court could act on separate appeals, which both the governor and Pleau said they plan to file by June 22.   In the meantime, they asked the Court to bar the Circuit Court from implementing its ruling until the Justices can act on the stay request.   As of now, the transfer to federal custody could occur as soon as May 29 — next Tuesday — because the Circuit Court has refused a delay.

While their plea was filed with Breyer as the Circuit Justice for the First Circuit, Breyer has the option of acting on it on his own, or sharing it with his colleagues.

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Monday’s cert. grant in Clapper v. Amnesty International USA, in which the Court will consider whether a group of lawyers, activists, and journalists have standing to challenge amendments to the Foreign Intelligence Surveillance Act that increase the government’s ability to monitor international communications, received additional coverage from Warren Richey at the Christian Science Monitor and Adam Liptak at the Take Away (audio segment).  (Thanks to Howard Bashman for the latter link.)  And the Court’s decision not to review the case of Joel Tenenbaum, against whom a jury returned a damage award of $675,000 for downloading thirty songs from an unlicensed file-sharing service, generated continuing coverage from Milton Valencia at the Boston Globe, Michael Haggerson at JURIST, and David W. Kaufman at the Harvard Crimson.  (Thanks again to Howard for the last link.)

Commentators also continue to anticipate the Court’s decision in the challenges to the Affordable Care Act.  The Wall Street Journal’s editorial board criticizes what it characterizes as “one last attempt” by the law’s supporters to “intimidate the Justices” by “taunting Chief Justice Roberts that if the Court overturns any of the law, he’ll forever be defined as a partisan activist.”  Striking a similar chord is Kathleen Parker of the Washington Post, who summarizes “[t]he left’s narrative” as “[v]ote our way, Chief Justice Roberts, or you will go down in history as having abrogated your duty” – a description that Mark Tushnet describes as “silly” at Balkinization.

And looking ahead to what may be on the Court’s docket next Term, Lyle Denniston reports on the pending challenges to the constitutionality of the Voting Rights Act for this blog; at the New Yorker’s Daily Comment blog, Jeffrey Toobin predicts that “[t]he future of the Voting Rights Act—probably the Great Society’s greatest landmark—will almost certainly be in the Court’s hands next year.”

Briefly:

• At the New York Times blog Taking Note, Andrew Rosenthal reports on a recent appearance by retired Justice John Paul Stevens at the American Law Institute’s annual meeting (which Nabiha covered yesterday).

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Federal judges seem to agree that racial discrimination among voters has not yet ended in America.  But they don’t agree on where — in what states — it is still a problem.  And on that disagreement may hang the constitutional fate of the most successful civil rights law in U.S. history, the 1965 Voting Rights Act, when it makes another trip to the Supreme Court, very likely next Term.   An already skeptical Court may have lost patience with Congress’s unwillingness – or inability — to update that law.

Three years ago, the Court sent an implied warning to Congress: unless changes are made to overcome “serious constitutional questions,” the Act might not survive a direct test.   Congress would not adopt, or could not muster the votes for, any change, so the law now must stand or fall as it was written when it was last extended, in 2006.  A direct test appears to be at hand.   It is only a question of which test case gets to the Justices first.

By the time the new Term opens October 1, one of three cases testing the constitutionality of key parts of the 1965 Act is likely to be at the Court’s door or near.  Two of the cases, with trials now set for July in three-judge District Courts in Washington, D.C., involve new state laws in South Carolina and Texas that require voters to have a photo ID before they can cast their ballots; both laws were blocked by the Justice Department.  The third case — decided just last Friday by the D.C. Circuit Court — involves a constitutional test by Alabama’s Shelby County, a prosperous county that shares part of the city of Birmingham and that has had some of its election law changes vetoed by the Justice Department.

The Shelby County case is currently on hold, awaiting a possible plea from the county for en banc review of the case by the full D.C. Circuit Court.  The Circuit panel divided 2-1 last Friday in upholding the 1965 Act.  If en banc review is sought and granted, that could slow that case’s pace toward the Supreme Court.  Otherwise, it seems likely to get to the Justices first.   Prompt decisions by District Courts in the two photo ID cases could speed up their path to the Justices, because they would be appealed directly, bypassing the Circuit Court.

South Carolina, Texas and Alabama are all covered directly by the 1965 law’s Section 5, which requires a covered state and all of its local governments to get clearance in Washington for any change, however small, that they want to make in their election laws or procedures.  Those three states are among the nine to which Section 5 applies statewide.  There are seven other states in which only some local governments come under Section 5, but the states themselves do not.   Across the nation, some 12,000 units of government have come under Section 5.

While Section 5 has often been the center of controversy over the constitutionality of the 1965 Act, because of its unusual treatment of the covered governments, another provision that also troubled the Supreme Court and some lower court judges is a part of the law’s Section 4.  That part, in fact, is the one that determines which state and local governments must obey Section 5.

And, while the states that must obey Section 5 object strenuously to being required — as 41 other states are not — to ask permission from Washington to change their election laws, the reason that they are singled out in that way is found in Section 4.  And that is the section that, challengers argue, is the most out of date.   If it no longer represents the reality of bias in voting, the challengers contend, then the burdens imposed by Section 5 are unconstitutional intrusions upon the states.

Congress, when it first enacted the 1965 law, chose the states with the worst histories of racial discrimination in voting as the ones that would not be allowed to put into effect any new election law without getting advance clearance either from the Justice Department or from a three-judge District Court in Washington.   But now, 47 years after the original law went into effect, are the states with the worst records on bias in voting still the same ones?  If not, is it unconstitutional to keep the same coverage formula?

In fact, in last Friday’s ruling by the D.C. Circuit panel, the majority upheld both Section 5 and Section 4 by concluding that the most discrimination in voting recently is still centered in the states singled out by Congress, while the dissenting judge said that that is no longer true.   And, significantly, the dissenter — Senior Circuit Judge Stephen F. Williams — would have struck down only Section 4′s coverage formula, and not Section 5′s pre-clearance requirement.  (That, of course, would be an option open to the Supreme Court, too, if it did not want to sweep away the pre-clearance requirement that, everyone agrees, has done much to improve voting opportunities for minorities where Section 5 applies.)

Paragraph (b) of Section 4 provides that a state will come under Section 5 if it had a “test or device” that discriminated racially in registering or voting, and if fewer than half the people registered to vote or actually turned out to vote.  Both of those factors, though, were keyed to past elections.  For some of the Section 5 states, the elections in which those factors count actually occurred in 1964, and no Section 5 state got covered based on an election held later than 1972.

Three years ago, when the Supreme Court questioned the constitutionality of the 1965 law (in Northwest Austin Utility District v. Holder), it said this: “The statute’s coverage formula is based on data that is now more than 35 years old [apparently referring to 1972, the current baseline year for triggering Section 5], and there is considerable evidence that it fails to account for current political conditions.  For example, the racial gap in voter registration and turnout is lower in the states originally covered by Section 5 than it is nationwide.”  It added that “the evil” to be dealt with by the 1965 Act “may no longer be concentrated in the jurisdictions singled out for pre-clearance.”

The opinion then quoted an election law scholar who had written that “the most that one can say in defense of the [coverage] formula is that it is the best of the politically feasible alternatives or that changing the formula would…disrupt settled expectations.” (Since that ruling, of course, Congress has not changed the coverage formula.)

Although the Court at that time declined to rule on the constitutional challenges to the 1965 Act, it did say, explicitly, that “the Act imposes current burdens and must be justified by current needs.”

What that has meant, as lower courts have applied the decision, is that they must evaluate what voting conditions were like not in 1964 or 1972, but in the period close to 2006, when Congress approved the most recent extension of the 1965 Act — an extension that is due to last until 2031.   If the states or local governments now covered by Section 5, under the Section 4 formula, are still the worst in terms of voter discrimination, then that would justify requiring the Section 5 states and local units to continue getting Washington clearance for election changes.  But if they are not the worst, then continuing to impose the pre-clearance burdens on those same jurisdictions could indicate that the 1965 Act is no longer justified as an exercise of Congress’s constitutional authority.

That, in fact, was the point of disagreement among the judges in last week’s ruling in the D.C. Circuit, in the case of Shelby County v. Holder (Circuit docket 11-5256).  It also is likely to be the potential source of disagreement when a new case on the 1965 law reaches the Supreme Court.

Circuit Judge David S. Tatel, in a 63-page opinion joined by Circuit Judge Thomas B. Griffith, upheld Sections 4 and 5 of the Act, applying the Supreme Court’s command that those provisions could now be justified only if they satisfied “current needs.”   The majority said it had to rule on the constitutional challenges, because Shelby County was not eligible for an exemption (“bailout”) from Section 5, and remained covered because of the Section 4 formula.  In doing so, the majority adopted a constitutional standard (so far not embraced by the Supreme Court): the burdens imposed on state and local governments by Section 5 must be “congruent and proportional” to the problem — as it exists today — of racial and ethnic bias in voting.

In essence, the Circuit Court majority accepted that Section 4 would still apply Section 5 to the jurisdictions whose history of discrimination had been the worst, but that this was now justified by evidence showing that discrimination even now remained concentrated in those states and local government areas.

Relying on a 15,000-page record compiled by Congress when it extended the law for 25 more years in 2006, the majority focused on recent experience in the covered jurisdictions, and cited such evidence as objections by the U.S. attorney general to proposed election changes by those jurisdictions, demands for more information by the attorney general, lawsuits that succeeded under a nationwide voting rights law (Section 2 of the 1965 law), assignments of federal overseers to watch elections, Section 5 enforcement actions against those jurisdictions, and the deterrent effect of Section 5 in heading off more discriminatory voting rules.

Judge Tatel’s opinion concluded: “Several categories of evidence in the record support Congress’s conclusion that intentional racial discrimination in voting remains so serious and widespread in covered jurisdictions that Section 5 pre-clearance is still needed….[Shelby] County has offered no basis for thinking that Congress’s judgment is either unreasonable or unsupported by probative evidence….Section 5′s work is not yet done.”

Turning to whether the geographic targeting of covered jurisdictions remained valid, the Circuit Court majority relied heavily on an academic study that showed that lawsuits under Section 2 — the nationwide ban on bias in voting — had overwhelmingly targeted the states and local jurisdictions that must abide by Section 5 pre-clearance.  That study analyzed successful Section 2 lawsuits both in Section 5 state and local government units, and those outside Section 5′s demands, and found at least a 10 percent greater proportion of court victories for challengers in the former.

On the Section 4 coverage formula itself, the majority concluded that Congress had not chosen the past voting patterns for their own sake, but as “accurate proxies for pernicious racial discrimination in voting.”  What is critical, it added, is not whether the formula relies on old data or techniques, but whether the factors still serve to identity the places where bias remains concentrated.  It found that they did just that, even though it conceded that “the coverage formula’s fit is not perfect.”

(Because the Shelby County challenge was a “facial” one — that is, a challenge to the constitutionality of Sections 4 and 5 as written, not as applied to a specific set of facts – the ruling last Friday would be binding in the three-judge District Court cases on the voter ID issue only if they, too, involved facial challenges to the 1965 law.   Both of those cases raise the constitutional challenge only as a back-up argument if the District Court refused to pre-clear those ID requirements, suggesting that they are as-applied challenges that would not be foreclosed by the Circuit Court ruling against Shelby County.)

Senior Judge Williams, in his dissent last Friday, argued that the validity of the extra burdens the 1965 law puts on covered jurisdictions — burdens that he said were made even greater in the enactment of the 2006 extension of the Act — should be based not only on recent data involving those jurisdictions, but on comparisons to data in areas not covered by Section 5.   There must be “a distinct gap” between those two categories in order to make the coverage formula and Section 5 valid, he said, and he did not find such a gap.

Putting his focus on the Section 4 coverage formula, which he found to be unconstitutional, Williams analyzed comparative data and drew from it a conclusion that the formula was no longer justified.  On voter registration and turnout, Williams found that “most of the worst offenders” on that score were states not covered by Section 4.   On the election of black candidates to public office, the dissenter found far more such candidates chosen in covered areas.  On the data about successful Section 2 lawsuits, Williams concluded that those figures break down on closer examination; he found that the five worst areas as measured by this statistic have worse records than eight of those that are covered.

On one specific measure, the sending of federal overseers to watch elections, Williams found that that figure might seem to work in favor of the formula, since many more were sent to covered states, but said that the data was skewed because the practice in the federal government is not to send them to uncovered jurisdictions.

Overall, the dissenting judge said that the comparative data showed that the coverage formula “is a remarkably bad fit with Congress’s concerns.  Given the drastic remedy imposed on covered jurisdictions by Section 5…, I do not believe that such equivocal evidence can sustain the scheme….Despite a congressional record of over 15,000 pages and 22 hearings, there is little to suggest that Section 4(b)’s coverage formula continues to capture jurisdictions with especially high levels of voter discrimination….[The] coverage formula appears to be as obsolete in practice as one would expect, in a dynamic society, for markers 34-to-59 years old.”

While the dissenter said he would not reach the issue of the constitutionality of Section 5, he lamented that that provision tends to encourage “racial gerrymandering” by states and local governments by seeking to ensure that minority voters can elect the representatives they prefer, and that results in a “troubling tension” with the colorblind ideals embodied in the Constitution’s Fifteenth Amendment, outlawing race bias in voting.

“Preventing intentional discrimination against a minority,” the judge said in closing, “is radically different from actively encouraging racial gerrymandering in favor of the minority…as Section 5 does.”

The dueling opinions in the Shelby County ruling may well be indicators of how the Justices on the Supreme Court might end up splitting when they take a new look at the 1965 law.

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Yesterday the Court issued its decision in Astrue v. Capato.  In an unanimous opinion by Justice Ginsburg, the Court sided squarely with the Social Security Administration, thus giving Chevron deference to a federal agency’s interpretation for the seventh time in the past five years.  The case involved two children conceived after their father’s death using his frozen sperm; their application for Social Security survivors benefits was denied on the ground that they did not qualify as his “children” because they were not entitled to inherit from him under applicable state law.  The Third Circuit reversed, holding that the undisputed biological children of a deceased wage earner and his widow are the wage earner’s “children” within the meaning of the Social Security Act.

At issue was the meaning of the term “child” in the Act, which states in Section 402(d) that “[e]very child (as defined in § 416(e) of this title) … of an individual who dies a fully or currently insured individual … shall be entitled to a child’s insurance benefit.”   Section 416(e), in turn, defines “child” as “(1) the child or legally adopted child of an individual.”  The Third Circuit agreed with the Capatos that the meaning of “child” in the statute was plain:  it meant the biological child of a married couple.  The Supreme Court found some “conspicuous flaws” in this definition.  First, nothing in the statute demonstrates that Congress meant to include only the children of married parents; similarly, the Court found no indication that “child” was limited to biological offspring, as the Third Circuit had found.  Finally, the Court noted that, even if the Third Circuit definition had been adopted in this case, “it is far from obvious” that the Capato twins would be included.  In Florida, as in many states, death ends a marriage, and so they would not qualify as “marital children” in any event.

The Court then turned to Social Security’s interpretation of the word “child.”  In the agency’s view, a third section of the Act — Section 416(h) — must be considered in addition to Sections 402(d) and 416(e).  Section 416(h)(2)(A) provides: “In determining whether an applicant is the child …of a fully or currently insured individual for purposes of this subchapter, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual … was domiciled at the time of his death.”  Although Section 416(e) does not specifically reference Section 416(h), in the Court’s view there was “no need to place a redundant cross-reference.”   It cited earlier versions of the Act and similar provisions for determining a spouse, surviving spouse, or parent of an insured individual, none of which included such a cross-reference.  Thus, being the genetic child of the wage earner is not sufficient to qualify;  the child must satisfy one of the provisions of Section 416(h), such as demonstrating that she is entitled to inherit in intestacy.  The SSA’s interpretation, the Court continued, furthers the core purpose of survivors benefits, which are designed to protect dependent family members “against the hardship occasioned by [the] loss of [the insured's] earnings.”  While not all children who inherit in intestacy under state law will be dependent on the wage earner, the Court called this a “workable substitute” in place of individual determinations.

Does this mean that postmortem conception children are “treated as an inferior subset of natural children who are ineligible for government benefits simply because of their date of birth and method of conception,” as the Capatos argued?  Not in the Court’s view, or in the view of several courts of appeals:  treating these children differently is rationally related to the government’s interest in targeting benefits to those dependent on the wage earner.  It also minimizes the administrative burden of proving dependency on a case-by-case basis.

Finally, the Court found that the SSA’s interpretation was at least reasonable, and thus entitled to deference under Chevron.

The Court’s decision resolves a split among the courts of appeals regarding the appropriate definition of a “child” for these benefits.  All circuits will now look to one of the gateway provisions of Section 416(h) in making this determination.  Ironically, however, the ultimate disposition of these cases will still vary from state to state, in part because state laws of intestacy are far from uniform, and in part because many states have yet to address the specific issue of inheritance by children conceived years after a parent’s death.  Seventeen states have enacted laws on this issue:  thirteen states allow postmortem conception children to inherit in intestacy, while four states do not.  In another five states without specific statutes, courts have split on the issue:  three have allowed inheritance, while two have not.  That leaves twenty-eight states in which the outcome is uncertain.  The SSA has received over one  hundred applications for survivors benefits from children conceived postmortem, with the rate of applications increasing significantly in recent years.

Even though the issues of parentage and inheritance have traditionally been left to the individual states, the peculiar case of postmortem conception children would benefit from a national standard.  The purpose of the benefits is to replace the deceased wage earner’s income, in cases in which the children could reasonably have expected to rely on that income.  A postmortem conception child, by definition, has been conceived long after the insured’s death, and has no legal claim to support from the decedent.  The states that allow such children to inherit in intestacy, and thereby qualify for Social Security survivors benefits, do not advance that purpose.

Plain English Summary

The United States Supreme Court decided unanimously that a child conceived and born after a parent’s death cannot rely solely on a genetic connection to the deceased parent in order to qualify for Social Security survivors benefits.  Siding with the Social Security Administration’s interpretation of the law, the Court held that all children, including those born via assisted reproduction technology,  must either demonstrate that they would be eligible to inherit from their late parent under state law or satisfy one of the statutory alternatives to that requirement.  The SSA’s interpretation was more consistent with the core purpose of the Act, which is to protect family members who depend on another family member’s income from hardship if that family member dies.

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