My thesis is that, although the Supreme Court has interpreted the Constitution and various statutes in an aggressive fashion in order to combat all kinds of discrimination, it has placed racial discrimination at the top of the list. My main proof for this will be the 1968 case of Jones v. Alfred H. Mayer, Co. and its progeny. With Jones, the Court embarked on interpretations of both statute and the Constitution that were very aggressive, and it has stuck to its guns on these issues – indeed, has been supported by Congress on the statutory interpretation – ever since. The consequences for the Court’s jurisprudence have been significant.

The facts in Jones were quite simple. A couple tried to purchase a home from a developer, and the developer refused to sell it to them because the man was black. The plaintiffs sued under 42 U.S.C. § 1982, which had been originally enacted as Section 1 of the Civil Rights Act of 1866. As initially passed in 1866, that statute provided that

citizens, of every race and color, . . . shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding.

There were two questions in Jones: Did Section 1 of the 1866 Act reach a private refusal to deal with another because of the other’s race? If it did, did Congress have the power to pass such a law? The Court answered both questions affirmatively. It did so, curiously enough, just a bit more than two months after Congress had passed the Civil Rights Act of 1968, Title VIII of which became the Fair Housing Act.

I will confess my own bias. I found the Court’s analysis on both questions less than convincing. The question of statutory interpretation revolved around the meaning of the word “right” – was the “right” to own property one that only the government could deny a citizen, or could another person also deny that “right” by refusing to sell? The Court stated ipse dixit that the plain meaning of the statute was that it reached private conduct, but the proposition seems less apparent than the Court would have it. The heart of the opinion, then, focused on the legislative history of the 1866 Act; much of the analysis was puzzling at best. The Court insisted that Section 2 of the 1866 Act (which evolved into 18 U.S.C. § 242, the criminal analogue to 42 U.S.C. § 1983) had an “exemption” for private violations (thus demonstrating that private violations must have been covered by Section 1). But Section 2 had no such “private exemption”; it simply made criminal certain acts under color of state authority. The Court referred to discussions by Congressmen of private violence against African Americans, but it did not bother to relate such private violence (or those discussions) to any of the language in Section 1 itself. Moreover, as Justice Harlan’s dissent pointed out, Senator Trumbull, the main sponsor of the 1866 Civil Rights bill in the Senate, repeatedly said that it would have no effect in states whose laws were non-discriminatory; the majority’s efforts to sweep away these statements do not convince.

For me, though – and I do not pretend to have gone through the legislative history myself with a fine-tooth comb – the most telling piece of legislative history is the proverbial dog that did not bark. As Justice Harlan’s dissent pointed out, the power of laissez-faire theories and the belief in minimal government interference in private business transactions was still quite strong in the mid-to-late nineteenth century. That no one ever discussed the fact that the bill would preclude people from refusing to sell their own private property for whatever reason they chose, or to have segregated private schools, or to hire and fire as they chose, is more telling than anything that was discussed. A few years later (in his Runyon v. McCrary concurrence), Justice Stevens – who, I think, few would say has given crabbed readings to our civil rights laws – said that “[t]here is no doubt in my mind” that the Court’s construction of Section 1 of the 1866 Civil Rights Act, so as to reach private racial discrimination, “would have amazed the legislators who voted for it.” On this point, I think he was surely correct.

The Jones Court’s constitutional analysis is not much better. The Court held that (1) Congress had the power under Section 2 of the Thirteenth Amendment to eradicate the “badges and incidents of slavery” and (2) because the right to contract and own property were fundamental rights, it was not irrational for Congress to conclude that private refusals to sell property were a badge or incident of slavery. The Court disingenuously cited The Civil Rights Cases (1881), for each of its two main propositions. But The Civil Rights Cases specifically held that, for example, the racially motivated refusal of a theatre or inn to admit or serve someone – a relationship that certainly seems contractual in nature – was not a badge or incident of slavery. When that case referred to “fundamental rights” like the right to own property and make contracts, it plainly was referring to the right to do so free from state-sponsored constraint, not private prejudice. Jones took that language and distorted it. And it might very well belittle the inhumanity of the institution of slavery to suggest that a private refusal to sell or contract was one of its primary “badges or incidents.” No doubt such refusals beleaguered many others, like white women and Catholics, who were never slaves.

Despite these problems, the Supreme Court has not and will not abandon Jones. In both Runyon v. McCrary (1976), and Patterson v. McLean Credit (1989), the Court followed Jones, with several Justices questioning its analysis but nonetheless respecting its precedential value. In McDonald v. Santa Fe Trail Transp. Co. (1976), the Court held that 42 U.S.C. § 1981 (also derived in part from Section 1 of the 1866 Act) reached private discrimination against whites as well as minorities, with respect to which, apparently, Congress also had the power to legislate pursuant to its Thirteenth Amendment power to eradicate the badges and incidents of slavery. In 1991, Congress confirmed part of the Jones line of cases by specifically amending Section 1981 to state explicitly that it reached private discrimination.

Race discrimination is special, thanks to Jones and its progeny. Victims of race discrimination in employment need not follow the detailed administrative requirements, and fairly short statute of limitations, in Title VII. The question of whether a particular individual is an independent contractor or an employee, crucial under Title VII, is irrelevant for race discrimination because of Section 1981. The “Mrs. Murphy” exception to the Fair Housing Act and the size and commerce requirements for Title VII can be circumvented for race discrimination. With respect to discrimination based upon sex, religion, or other criteria, Congress has had to use its power to regulate commercial transactions and other forms of commerce or to regulate state discrimination under its power under Section 5 of the Fourteenth Amendment. In some instances, like in United States v. Morrison (2000), involving a statute regulating gender-motivated violence, and City of Boerne v. Flores (1997), addressing the Religious Freedom Restoration Act, those powers have proved inadequate.

Section 2 of the Thirteenth Amendment has been deemed to provide Congress with the authority to legislate any and all kinds of racial discrimination. Indeed, three years after Jones, in Griffin v. Breckenridge (1971), the Court concluded that 42 U.S.C. § 1985(3) reaches racially motivated private violence (overruling earlier precedent), relying in part on Congress’s power under the Thirteenth Amendment to eradicate the badges of slavery to uphold its constitutionality as so applied. Despite lower court efforts to expand the scope of Section 1985(3), the Court has never held that it applies to anything but race-based deprivations of rights. It rejected its application to women seeking abortions in Bray v. Alexandria Women’s Health Clinic (1993).

One can think of other examples in which the Court has, explicitly or implicitly, told us that race discrimination is special. In Runyon, the Court, in addition to finding that segregated private schools violated Section 1981, held that there was no private right of association or speech that protected the schools. Yet, in Boy Scouts of America v. Dale (2000), when the Boy Scouts sought to preclude homosexuals from serving as scoutmasters, the Court managed to find a First Amendment-related right to protect their right to do so without ever distinguishing Runyon.

In the “white primary” cases (Smith v. Allright (1944) and Terry v. Adams (1953)), and again in Adickes v. S. H. Kress & Co. (1971), the Court adopted unusually aggressive interpretations of “state action” to preclude race discrimination by seemingly private parties. Yet, with limited exceptions, the Court seems averse to applying the general “state action” theory of those cases elsewhere. Jones, I submit, is the “race discrimination is special” case that has had the most consequences in the Court’s jurisprudence and the state of the law.

Jan Baran, the former general counsel for the Republican National Committee, first described two ways the decision changes the election advertising rules for corporations and unions.  First, he pointed out that the decision allows unions and corporations to fund “magic words” advertisements – which, unlike advocacy ads that might encourage voters to “call candidate Jones about issue x,” encourage listeners to “vote for candidate Jones.”  Second, Baran noted that the Citizens decision eliminates the McCain-Feingold ban on ads thirty days before a primary and sixty days before a general election ban.  Thus, the FEC will no longer regulate the timing or content of ads.  The decision requires twenty-four states to repeal their bans on corporate and union advertising; as states repeal these laws, Baran reasoned, they might concurrently strengthen their reporting and disclosure laws.  Next, Baran predicted that more money will be spent in the 2010 elections than in the previous cycle (he conceded, however, that he has made this prediction for the past thirty years and always been right).  The point, he explained, is that the question is not so much if more money will be spent in elections, but rather how that money will be spent.

Joseph Birkenstock, former chief counsel for the Democratic National Committee, expressed his concern that the decision disfavors regulatory law, and in so doing, favors criminal law.  Birkenstock explained that there are two realms of law the government uses to regulate connections between politics and money: criminal law and regulatory law.  He predicted that the Citizens decision will result in a decline of the regulatory system, thereby diminishing requirements for paperwork and forms.  At the same time though, there will be a new “high-water mark” of criminal enforcement.  As such, some people will be investigated, charged, and prosecuted.  By disfavoring the regulatory system, Birkenstock reasoned, the Court inherently favors the criminal law approach, an approach that concerns him.  He also made two predictions: first, Congress may pursue more robust disclosure laws in response to the opinion.  Second, the Court’s decision will lead to questions regarding whether multi-national corporations are “foreign” and thus precluded from advertising in American elections.

Marc Elias, an election-law attorney at Perkins Coie, emphasized that – regardless of one’s view of the results in Citizens United – the procedural posture of the case was odd.  Both Buckley and McConnell interpreted significant challenges to recently passed legislation, he explained.  However, Citizens United began as a challenge by a non-profit regarding a pay-per-view movie; until the Court ordered re-hearing, the broader challenge to McConnell, Austin, or the McCain-Feingold Act was not before it.  The atypical manner by which the case reached the Court, the length of the opinion, and the Court’s focus on a question not originally posed by the case, suggested Elias, suggest that this may be the beginning of a new direction for the Court.  Elias was ultimately uncertain regarding what that direction may be, but he predicted that this would be a “tipping point” for the Court, a moment when we might look back and realize that the Court had begun to shift.

Elias also discussed the concern that corporate and labor interests might “hide” funding behind various non-profit corporations; such a concern, he concluded, justifies a disclosure system that will inform voters about who has funded an advertisement or group.  The opinion is also “a bad opinion for parties and candidates,” Elias said, who will face more difficulties in purchasing advertising slots or competing with the buying power of corporations and unions.  During the recent election run-off in Massachusetts, for example, television networks experienced a surge in the number of customers purchasing ads, and the networks announced prior to election day that no slots were available for advertising.  To offset this problem, Elias argued, the FEC should disconnect parties from the coordination rules that apply to corporations and politicians.

Michael Toner, a former FEC chairman, spoke next, observing that the opinion is categorical on two formerly confusing questions of law, though other areas will require further clarification and may encourage legislative responses or further litigation.  First, the Court was clear that when corporations or unions are buying ads, no content restrictions are permissible.  Second, there are restrictions may no longer be placed on the time period when advertising is permitted.  However, Toner foresees a potential ripple effect on other long-standing areas of FEC regulation, and he suggested that it may become quite difficult for the FEC to regulate “get out the vote” efforts, voter registration efforts, and corporate voter guide, which had previously been closely regulated.  Toner also remarked that the case may encourage additional campaign finance litigation; for example, SpeechNow.org v. FEC, a case pending in the D.C. Circuit, challenges contribution limits as applied to non-affiliated campaign groups.

Two such interesting petitions have been filed recently: No. 09-920, Simmons v. Galvin, and No. 09-923, Arar v. Ashcroft.  In both cases, briefs in opposition have not yet been filed, and likely will not be until next month at the earliest.

Title: Simmons v. Galvin
Docket: 09-920
Issues: (1) Whether Section 2 of the Voting Rights Act of 1965 (“VRA”), 42 U.S.C. § 1973, applies to state felon disenfranchisement laws that result in discrimination on the basis of race; and (2) whether the Massachusetts felon disenfranchisement scheme established in 2000 violates the Ex Post Facto Clause of the United States Constitution as applied to those Massachusetts felons who were incarcerated and yet had the right to vote prior to 2000?

• Opinion below (1st Circuit)
• Petition for certiorari

Title: Arar v. Ashcroft
Docket: 09-923
Issues: (1) Whether federal officials accused of conspiring with foreign officials to subject an individual in U.S. custody to torture may be sued for damages, particularly when the federal officials also intentionally obstructed the victim’s access to the judicial remedy provided by Congress to prevent torture; (2) whether willful participation in joint action with government officials is insufficient to constitute action under “color of law” of that jurisdiction, within the meaning of the Torture Victim Protection Act, 28 U.S.C. § 1350, when defendants are alleged to have conspired with Syrian officials to have petitioner tortured in Syria; and (3) whether petitioner’s Bivens claim for obstruction of access to court may be dismissed on the ground that he did not sufficiently identify the particular defendants who took part in blocking his access to court.

• Opinion below (2d Circuit)
• Petition for certiorari

Adam Liptak of The New York Times reports on the story of Shon Hopwood, a former bank robber from Nebraska who became a jailhouse lawyer and drafted (among other things) a successful petition for cert. for a fellow inmate in Fellers v. United States.  Hopwood was released from prison in 2008 and now plans to attend law school.  Kashmir Hill of Above the Law and Orin Kerr at the Volokh Conspiracy also have coverage of the “jailhouse lawyer of the day.”

At Law.com, Daniel Prywes previews City of Ontario v. Quon, in which the Court “will have to determine for the first time the privacy rights of public employees in their electronic communications.”  He notes that although the ruling will not explicitly affect the privacy rights of employees in the private sector, it will nonetheless significantly affect private employees’ common-law privacy rights, which are currently used in court challenges to employers that monitor their employees’ electronic communication.

Briefly, Ashby Jones at the WSJ Law Blog adds to Jess Bravin’s speculation in the WSJ regarding future Supreme Court appointments (featured in yesterday’s Round-up).  The Boston Globe and the Harvard Crimson report that retired Justice David Souter, who attended both Harvard College (’61) and Harvard Law School (’66), will deliver the keynote address at the university’s 2010 commencement.  Finally, the WSJ Law Blog also covers the argument-sharing controversy in McDonald v. Chicago, asserting that the Court likely chose to grant argument time to the NRA because of the different approaches that the two groups plan to take to arrive at the same conclusion.

The following is an essay for our Race and the Supreme Court program by Abigail Thernstrom,  vice-chair of the U.S. Commission on Civil Rights and adjunct scholar at the American Enterprise Institute.  Ms. Thernstrom is the author, most recently, of the book Voting Rights — and Wrongs: The Elusive Quest for Racially Fair Elections.

Northwest Austin Municipal Utility District No. 1 v. Holder (NAMUDNO) was one of the most anticipated cases of the 2008-2009 term. Civil rights advocates had been in a state of panic, fearing a majority would declare the most radical provision in the 1965 Voting Rights Act unconstitutional – no longer justified in the context of a racially changed nation. But the Court declined to decide the complex constitutional question hanging over the nation’s most sacred civil rights law. Eight justices agreed: Right question, perhaps, but wrong case.

The issue was the continuing constitutional legitimacy of section 5. The provision had put southern states, long committed to black disfranchisement, under the equivalent of federal receivership in the conduct of their elections. That receivership had several parts, the most well known being the obligation of the “covered” jurisdictions to submit all proposed changes in their methods of election to the Justice Department or the seldom-used D.C. district court for pre-approval—“preclearance.” The provision prevented states from acting to exercise traditional constitutional prerogatives without prior federal permission, and was unique in American law.

Section 5 shifted the burden of proof to the covered jurisdictions themselves. A state that submitted for preclearance new districting lines or a city that proposed to relocate a polling place had to prove a negative, an absence of discrimination. Suspected discrimination was sufficient to sink a proposed change. But in 1965 suspicion of southern racism was usually on the mark.

The unprecedented federal control over state electoral processes quickly put ballots in southern black hands. And yet it also became clear that simple enfranchisement would not integrate southern politics—the ultimate aim of the act.

Counties and other political subdivisions began to engage in racist maneuvers to maintain white supremacy, and in 1969 the Supreme Court expanded the definition of discriminatory voting practices to include devices that “diluted” the impact of the black vote. From then on, section 5 was understood to allow objections to at-large voting, districting lines, and other ways of structuring elections whose impact might be to deprive blacks of expected gains in officeholding.

The enforcement of section 5 was on a proverbial slippery slope. Ensuring that black and Hispanic ballots carried political weight, giving blacks the power to elect the candidates of their choice, emerged as the expanded goal of the provision. And in time, proportional racial representation became the standard by which to measure true electoral opportunity, although that commitment to group proportionality was deeply at odds with traditional American assumptions about representation in a democratic nation.

Proportional racial representation (or its approximation) required race-conscious districting, which sorted voters by race and ethnicity and thus raised important Fourteenth Amendment questions. But most voting rights specialists believed majority-minority districts imposed by courts and the Justice Department upon southern jurisdictions passed the strict scrutiny test – unless, that is, they were so racially gerrymandered as to look like bug-splats. Their imposition by the Justice Department and federal judges in the region of historic disfranchisement were analogous to high tariffs that helped the infant American steel industry get started. They gave the black political “industry” an opportunity to get on its feet. And thus they furthered the aim of the 1965 statute – namely, integrating southern politics.

More than four decades after the passage of the original statute, was there still a need for minority protection from white electoral competition? That was the question posed in NAMUDNO. Section 5 was supposed to be an emergency, temporary measure to make sure Southern states could not come up with new ways of keeping blacks from the polls. But such deliberate disfranchisement had long gone the way of segregated water fountains.

The reach of preclearance was initially confined to the South. As a consequence of statutory amendments, however, by 1975 Alaska, Arizona, and Texas in their entireties, as well as counties in a host of other states, had become “covered.” NAMUDNO involved a small Texas utility district that was obligated to obtain federal preclearance when it moved a polling place from a private residence to a school, even though the district was not created until the late 1980s and had no record of electoral discrimination.

The utility district argued that preclearance “strikes at the heart of federalism, injecting the federal government directly into the state and local legislative process”—and does so on the basis of obsolete data. By 2004 a stunning 68 percent of the black population in the original five “covered” southern states was registered to vote, which was a rate a few points higher than that in the rest of the country. The plaintiffs hoped the Court would declare the provision outdated—no longer a proper exercise of congressional power under the Fifteenth Amendment.

In his opinion for the Court, Chief Justice Roberts stressed the legitimacy of the constitutional question. “Things have changed in the South,” every member of the Court agreed—a point that Congress had barely acknowledged just three years earlier when it renewed section 5 for another quarter century. The provision is “extraordinary legislation otherwise unfamiliar to our federal system,” Roberts wrote. An “extraordinary” provision demands an extraordinary context, and, at the oral argument, he signaled his own grave doubts about preclearance four decades after the act’s initial passage. But, undoubtedly pleased at the prospect of near unanimity on the Court, he simply said the validity of the act “is a difficult constitutional question we do not answer today.”

The Court’s “usual practice is to avoid the unnecessary resolution of constitutional questions,” Roberts wrote. There was an alternative: The utility district had suggested it should be allowed to “bail out” from section 5 coverage. It was a privilege previously unavailable to small districts that did not even register voters, and the lower court had refused to extend it. Nevertheless, the Court interpreted the bailout provision to apply to the Northwest Austin Municipal Utility District No. 1, thus making the constitutional question moot.

The Court had fine-tuned the bailout provision, which did little to change the law. Extrication from section 5 remains difficult—not only legally, but also politically. The real significance of this case thus lies not in what was held but rather what was foreshadowed.

NAMUDNO invites another case that properly frames the core constitutional issues. Why was Georgia but not Ohio (where serious voter fraud was alleged in 2004) still in federal receivership? The Texas utility district contained no districts that could be gerrymandered to create safe minority legislative seats. Distributing voters on the basis of race and ethnicity to secure minority representation was a necessity when southern whites would not vote for black candidates, but were such suspect classifications still justified? Those are the central constitutional questions that the right section 5 case would raise.

Prior to the decision, the blog of Legal Times reported: “Supporters of the law are bracing for defeat.” But from the outset, it was a weak case, given the almost unique profile of the utility district, and the overwhelming congressional vote of support in favor of extending and strengthening section 5 in the summer of 2006.

The right case may reach the Court in a few years. In the meantime, perhaps more aspiring black and Hispanic politicians will run and win in majority-white settings. If that happens, they will create a record of electoral success that will make unmistakably clear whether section 5 is still needed.

Democrats are torn over whether to nominate a “prominent liberal voice,” relying on their Senate majority to ensure a confirmation, or appoint someone less likely to incite Republican opposition, notes Jess Bravin of the Wall Street Journal.  Some liberals, such as Professor Geoffrey Stone, would prefer President Obama to nominate a “Scalia of the left,” who would articulate a “robust philosophical alternative” to the Court’s conservatives, while other Obama allies caution that a candidate with a sharp liberal record would be a “target” in a nomination struggle that would consume the whole summer, thereby derailing the Democrats’ agenda.  The ABA Journal recaps recent coverage of the potential retirements of Justice Ginsburg and Justice Stevens.

On the subject of judicial vacancies, Doug Kendall of Slate notes that there are “102 vacancies on the federal bench,” and that “of these, 31 constitute judicial emergencies.”  Last year, Obama nominated thirty-three district court and court of appeals judges, and the Senate confirmed twelve; Kendall attributes the low number of nominations and slow confirmations to “obstructionist” Republican Senators, and a lack of nominations on Obama’s part.

The Chicago Tribune recalls Justice Alito’s question to Seth Waxman during the Citizens United oral argument (“…the only cases that are being, that may possibly be reconsidered, are McConnell and Austin. And they don’t go back 50 years, and they don’t go back 100 years”), reasoning that this is evidence that Alito specifically disagreed with Obama’s assertion at the State of the Union that the Court had “reversed a century of law.”

Writing for UPI, Michael Kirkland examines whether the Court would grant certiorari, if the lower court ruling were challenged, in Perry v. Schwarzenegger, the Proposition 8 trial.  Kirkland focuses on how Justice Kennedy might vote if the Court were to hear the case, and concludes that “in all probability” the Court will eventually hear the case.

The Court recently granted the NRA’s request to participate in the oral argument in McDonald v. Chicago, a Second Amendment challenge to a Chicago ban on handguns.  However, Robert Barnes of the Washington Post reports that Alan Gura, who will argue the case on March 2, is not interested in sharing the podium, or his argument time, with the NRA.

Rush Limbaugh, a conservative radio-show host, recently claimed that President Obama relied on professors to write his articles at the Harvard Law Review.  Ashby Jones at the WSJ Law Blog, drawing on commentary and Supreme Court precedents, examines whether the assertion is libelous, and if Obama should bring a defamation suit against Limbaugh.

Briefly:

• Writing for Reason.com, Damon Root suggests that judicial restraint has an inherent pro-government bias, and that even if the Court’s ruling in Citizens United departed from judicial restraint, the ruling protected “constitutional rights from democratic majorities.”

• The Department of Justice filed a brief Friday urging the Court to dismiss Kiyemba v. Obama, an appeal filed by two Chinese Muslim Uighurs being held at Guantanamo Bay, reports Jurist.  Lyle Denniston of this blog also reports.

• Above the Law analyzes the accuracy of predictions in fantasyscotus.net’s Supreme Court fantasy league.  “The prediction pool,” Josh Blackman concludes, “is by no means infallible and may get cases wrong.”

As we posted on Friday, the Washington Legal Foundation holds its mid-Term evaluation of the Court this Wednesday at 9:30 a.m in Washington, D.C.

The schedule of merits briefs due this week follows the jump.

Wednesday, Feb. 10:

• Kawasaki Kisen Kaisha v. Regal-Beloit Corporation (08-1553; 08-1554) – respondents’ brief

Friday, Feb. 12:

• Lewis v. City of Chicago (08-974) – petitioners’ reply brief [Disclosure: Howe & Russell filed an amicus brief supporting the petitioners in this case]
• Holder v. Humanitarian Law Project (08-1498; 09-89) – reply brief of Eric Holder et al.
• Hui v. Castaneda (08-1529; 08-1547) – petitioner’s reply brief
• United States v. O’Brien and Burgess (08-1569) – petitioner’s reply brief

As an alternative, the Department urged the Court to uphold a D.C. Circuit Court ruling that denied federal judges any authority to order the transfer of Guantanamo prisoners to the U.S. itself.

The Court is scheduled to hear oral argument in Kiyemba on March 23, but the new government plea could end the case swiftly, if the Justices agree to the Department’s request to dismiss the case as “improvidently granted.”  The lawyers for the seven prisoners still involved in the case will get a chance to reply before the Court acts, however.  Those attorneys have already indicated that they will ask the Court to proceed to decide the case, on the premise that the seven are entitled to release now, yet remain at Guantanamo while awaiting whatever diplomatic efforts the government may make on their behalf.

A dismissal of the case would allow the government to avoid, at least temporarily, a ruling that might keep within the courts some of the power to decide the fate of prisoners at Guantanamo Bay, after they have been cleared for release.  The Obama Administration, like the Bush Administration before it, has held the view that only the Executive Branch can decide what happens ultimately to Guantanamo prisoners, even if they have won release orders in federal court or have been cleared for release by the Pentagon.  The Kiyemba case poses a direct challenge to that claim, and thus carries at least the potential for a major confrontation between the Supreme Court, the Executive, and even Congress, since the lawmakers have made repeated efforts to bar any transfer of detainees to the U.S. itself and to limit the Executive Branch’s options on re-settlement.

The government has lost — in whole or part — four major cases in the Supreme Court involving Guantanamo prisoners since 2004, and was at risk of having its options perhaps further limited in two other cases.  Those two cases, however, never reached a decision in the Court, because the government ended military detention of the two individuals involved, thus making those tests of detention “moot.”  In the Kiyemba case, the government is taking a different approach, contending that judicial intervention is no longer needed because the government’s diplomatic efforts have gone far toward achieving re-settlement, after release, of the seven Uighurs still at Guantanamo.

Two of the seven have been offered re-settlement in Switzerland, and the government’s brief told the Court that the other five had a previous offer to be sent to the Pacific island nation of Palau — an offer they did not accept, it noted.  The brief added: “All five also recently received an offer of re-settlement from another country, but they did not accept that offer either, and it was withdrawn afer several months.”  Even so, it went on, the government is continuing to seek another country that will accept those five.

Because of efforts by the government to achieve release or re-settlement of many detainees from Guantanamo, the new brief said, “the writ of habeas corpus is effective at Guantanamo Bay.”  That point obviously was an attempt to answer a claim by the Uighurs’ lawyers that the habeas writ has not worked for them, and for others at Guantanamo, because they are eligible for release yet remained confined without any certainty of release — supposedly, the ultimate remedy when a detention is not justified.

The brief argued that, if the Court were to rule in the Kiyemba case that any Guantanamo detainee had to be transferred to live inside the U.S., that “would be inconsistent with constitutional principles governing control over the Nation’s borders.  As this Court has long affirmed, the power to admit or exclude aliens is a sovereign prerogative vested in the political Branches, and ‘it is not within the province of any court, unless expressly authorized by law, to review that determination,’ ” it said, quoting from a 1950 Supreme Court ruling (U.S. ex rel. Kauff v. Shaughnessy).

Congress, it added, has exercised that power “by imposing detailed restrictions on the entry of aliens under the immigration laws, as well as specific restrictions on the transfer of individuals detained at Guantanamo Bay to the United States.”  Thus, it concluded, neither the Supreme Court’s 2008 ruling in Boumediene v. Bush (giving detainees a constitutional right to challenge their detention), the existing federal law on habeas rights, nor the Constitution’s Due Process Clause, justifies an order to send the Uighurs to live even temporarily in the U.S.

But, even if some court order were justified in some circumstances, the brief summed up, it would not be a proper action in the case of the Uighurs in view of “the government’s sustained and successful efforts to re-settle [them].” 

In urging the Court to consider dismissing the case without further proceedings, the new brief argued that the Court had granted review of the case on the factual premise that release into the U.S. was the only effective remedy open to the Uighurs.  Although the brief did not say explicitly that any offer of re-settlement remains outstanding at the moment for five of the Uighurs, the offer by Palau’s government “might again be made available, although further discussions with the Palauan government would have to occur. ”

We also updated several of the Wiki case pages this week to include merits briefs filed during the preceding week.  The case page for Dillon v. United States now includes a link to the petitioner’s brief, while respondents’ briefs have been added to the case pages for Skilling v. United States, Samantar v. Yousuf, and Health Care Service Corp. v. Pollitt.  Amicus briefs were filed last week in Lewis v. City of Chicago, Hamilton v. Lanning, Morrison v. National Australia Bank LTD, Carr v. United States, Berghuis v. Thompkins, Hui v. Castaneda, and Samantar v. Yousuf, and we have updated those case pages to reflect the new filings.

We have also added one of this past week’s filings to the Wiki:  on the case page for New Process Steel v. NLRB, we have added the respondent’s brief, which was filed on Tuesday.

6.  Has the Court changed its technology as you have suggested solutions or pointed out potential improvements?

They have recently tried new strategies, and for a few years, experimented with reel-to-reel recordings and CD recordings.  The CDs would be much better quality, but the Court makes it almost impossible to access them.  The Court also considered using a proprietary system from Australia, but later reconsidered, and finally moved a to a full digital recording environment.  Even still, the Court chose a low bit rate and an inappropriate recording standard, which means we lose data in the recording, and overall the quality is well below where it should be.

7.  Have you suggested other changes in the Court’s recording technology?

Back in 2000, when the Bush v. Palm Beach County Canvassing Board case was argued, every media group was looking for information, and each of them was hoping secure real-time video broadcasting from the courtroom.  I wrote Chief Justice Rehnquist about this, and to inform him that a same-day release of the oral argument was possible.  The Chief Justice responded (and this was the only response I ever got from him), and said they would do it.  This was the first time the Court ever did a same-day release of an oral argument, and they now do it for a limited number of cases each term.  See the letter from the Chief Justice here:

Letter from William H. Rehnquist

This incident also helped us convince the Court of problems caused by the tape recording equipment.  At the end of the argument, when they uploaded the recording to a satellite feed, I made a copy of it.  A few days later, I listened to the recording when the reel-to-reel copy was released.  They were different: the reel-to-reel feed was an octave lower and poor quality.  This was our proof that the tape deck was not functioning properly, so I wrote the Chief Justice again.  This time, I got a call from the Court, as they would never want to put something like this in writing, to let me know that they were looking into it. Some adjustments were made to the old recording decks but the process continued to be sub-par.

8.  Does Oyez.org have plans to introduce any new features in the near future?

We have enhanced our Oyez tour to allow you to expand the pictures and view of the Court to fill the whole screen on your computer monitor.  I often do so on my thirty-inch monitor, and it’s a great view, as we’ve taken the images and repurposed them in a Flash environment.

Our “enhanced player,” will soon allow authorized listeners to make corrections to the transcript.  So if you think our speaker-identification model has incorrectly identified a Justice, you could simply correct the transcript and speaker identification.  Also, you’ll be able to extract clips, drag them out, save them, and repurpose them.  After you tag and annotate it, you’ll be able to share the annotations with others.  So allowing crowd-sourcing and permitting specified users to improve our source-materials is our next goal, but this is difficult as we only have the equivalent of 1.5 full-time employees.  We have implemented an advanced search feature that allows you to, for example, search for and listen to every time that Scalia said the words “Strict Scrutiny” in a case.

Additionally, we are geo-tagging each case so that you can see where Supreme Court cases started, and I don’t just mean the first courtroom where a case was heard.  For example, in the case of Burton v. Wilmington Parking Authority, a 1958 civil rights case, you can use Google Maps street view to see the Eagle Coffee Shop that denied William Burton service.  As augmented reality becomes a feature of our world, you will be able to see where cases started, and perhaps even receive notification if you are near where a case began.  We also provide pictures and locations for each Justice’s gravesite.  And at some-point, we may explore speech engineering to identify the emotional state of a speaker by modeling whether the speaker is angry, bored, excited.

9.  Do you have plans to add any additional material to the site?

We plan to add the Harry Blackmun oral history to the site, and I recently obtained the audio for two parts of a three-part lecture series given by Judge Learned Hand.  The lectures are entitled The Bill of Rights, and were delivered by Judge Hand at Harvard Law School in 1958.  Most people have never heard audio of his voice, and when I have time I will post it to the site, under the category of  “coulda, shoulda, woulda” been a Supreme Court Justice.  We also have older transcripts, from cases argued in the 1930s, around the time when the Court heard a number of New Deal cases, that we hope to post.

10.  Are there any arguments that you recommend our readers listen to, and do you have a favorite?

Elk Grove Unified School District v. Newdow is my favorite argument.  Michael Newdow went against what everyone says you should do, and represented himself, and gave one of the best oral arguments I have ever heard.  Then he lost on a jurisdictional question.

On the other hand, Waters v. Churchill may be the worst argument I have heard, as the advocate was unprepared and could not get off the facts of the case and onto the topic.  At one point, a Justice even interrupted to say, “Well, but we… we granted certiorari on a question presented, and you can assume that we want to… we want to hear argument on that question.”

11.  If Chief Justice Roberts asked you to organize a new recording system at the Court, how would you set it up and why?

I think it’s really simple.  You record to a high-sample, non-proprietary, lossless data format, and you can preserve the entire argument.  The recordings should be open-source, and should be recorded in either Waveform Audio File Format, or Audio Interchange File Format.  We shouldn’t lose any information because of the recording format.  Even now, although the Court uses MP3 digital recordings, it is still using the wrong standard.  These adjustments would require almost no changes to the Court’s actual recording systems, except making a few switches on the device they are using.  If it did require funding, it would cost peanuts, literally about $100.  The price is trivial and the investment would be well-worth it.

As for scheduling, I have argued for, and continue to favor, the same-day release of audio.  Once you release the transcript, I do not understand the need to delay the release of audio transcript until the end of the term.  I have also argued that the Court should release the recordings in June.  The only explanation is that it is a Court tradition, just like quill pens.  By the time Marbury v. Madison was argued in 1803, anyone writing could use steel tipped pens, dipped in ink, instead of writing with a quill.  But they still gave, and continue to give, quill pens to attorneys, as the Court is just so steeped in tradition, and one of their traditions is not releasing arguments.

It is amongst the most frustrating of experiences to try and communicate or work with the Court about possible changes, most of which would require little effort and minimal costs.  These small changes would enhance our records and understanding of the Court, and would also allow the Court to fulfill its obligation to record their arguments for posterity.

On Thursday, February 18, the Washington Legal Foundation will hold its annual media briefing evaluating the Court halfway through the Term.  The speakers scheduled are:

• Hon. Dick Thornburgh (host)
• Gregory Garre, former Solicitor General and current partner at Latham & Watkins
• Patricia Millett, Akin Gump partner
• Noel Francisco, Jones Day

The briefing begins at 9:30 a.m. at the WLF headquarters in Washington, D.C.  It can also be viewed live online at www.wlf.org.

The invitation with more details can be viewed here (though please note that the date is incorrect; it should be Feb. 18).  Free online registration and an RSVP to glammi@wlf.org is requested for attendance.

Yesterday Ariane de Vogue of ABCNews reported that the White House may be gearing up to fill two Court vacancies this summer, which would be created if both Justice Stevens and Justice Ginsburg decided to step down.

Tony Mauro at the National Law Journal (free registration required) reports this morning that James Feldman, a former Assistant to the Solicitor General who has argued forty-five times before the Supreme Court, will defend Chicago’s strict handgun ban in McDonald v. Chicago, which will be argued next month.

Michigan has renewed its request – which the Court denied last month — for an injunction to close canals between Chicago and Lake Michigan to prevent Asian carp from entering the lake and disturbing the Michigan fishing industry. According to the Detroit Free Press, the state is arguing that there is new evidence about the minimal economic effects of the closure for Illinois, as well as the discovery of carp DNA in the lake already.

Discussion of the Citizens United decision continues.  Yesterday the New York Times ran an editorial listing what it regards as the most “feasible” legislative proposals to curb corporate campaign spending in the wake of the decision.  Andrea Seabrook of NPR asked two House Democrats to reflect on the significance of Citizens.  The Federalist Society website also has an ongoing debate for scholars on the decision, with the latest commentary by law professors Larry Ribstein and Howard Wasserman.

During a lengthy interview with The Politic, Linda Greenhouse – who covered the Court for the New York Times for three decades – gives her immediate reaction to the Citizens decision: “the Court has finally come out of the closet, and it’s no longer the minimalist Court that Chief Justice Roberts likes us to think it is.”

Michael O’Donnell has an article in The Nation on Justice Scalia, deriding him for adopting faux “neutral principles” that he applies when it suits his conservative policy preferences.

On her Court Beat blog, Joan Biskupic discusses whether it would be politically risky for President Obama to nominate a seventh Catholic or a third Jew to the Court if Justice Stevens – who is Protestant – retires.  She notes that Justice Scalia is proud of the fact that the public seems not to heed the religion of the Justices, while former Justice O’Connor vehemently called for a diversity of faiths.

Lawrence Hurley of the Daily Journal (via How Appealing) has an article on Samantar v. Yousuf, which is scheduled for oral argument on March 3.  Former Somali prime minister Mohamed Ali Samantar is challenging a lower court’s ruling that he is not immune from a suit brought by five Somali citizens accusing him of torture.  will be heard for oral argument on March 3. [Disclosure: Akin Gump also represents the respondents in this case.]

Yesterday two sisters who were petitioners in the famous Brown v. Board of Education discussed “myths” about the case before an audience in Memphis, as reported by the Commercial Appeal blog.

1. Your scholarly research focuses on audio and media instruction, government, and information technology, so the Oyez Project seems to be a natural fit for your interests. What, in particular, drew you to the Supreme Court, and to want to make arguments and opinions available?

Some time ago, a legal historian named Linda Kerber played an audiocassette from a Supreme Court oral argument during a talk at Northwestern. I was stunned, as I hadn’t realized that Supreme Court audio was available for scholars, and I started poking around for more information. My interest in organizing audio recordings developed soon after, when I saw an English professor demonstrate how he had linked the text of a Shakespeare play to a video laser disc. He could highlight a portion of Macbeth, and immediately play the corresponding audio segment. He suggested that you could develop a program to allow you total control of any available media. The environment he was working in, HyperCard, stores information on “cards,” then organizes them into stacks. Again, I was stunned, and HyperCard gave me an opportunity to pursue my newfound interest in the Supreme Court.

I then considered the problem of how to store and display Supreme Court, and while watching the Cubs lose a baseball game later that year, it dawned on me: nine players on a team, each player has a place and plays a position. It was like the Supreme Court, and provided the metaphor I had been looking for. Supreme Court information could be organized like information about a baseball team, and for each Justice, you could have a bio, picture, etc., as you would for a baseball team.

Soon after, I received a modest grant from the National Science Foundation, and stepped from the audio world to the digital world. A student at the University of Maryland began copying the audio tapes available at the National Archives for me, and I soon made “The Hitchhiker’s Guide to the United States Supreme Court,” complete with searchable information about recent cases and the Justices. For some time, I carried around a fifteen-pound briefcase, then called a “portable computer,” and for a period I used it to demonstrate my program to colleagues. Some of them thought I was crazy, though others were quite interested.

2. How did the Hitchhiker’s Guide evolve into the online database you now operate?

At that point, many of my colleagues were still playing by the analog rules, which require you to get permission to play an audio recording. Many of my colleagues were also quite risk-averse, so I suppose I was more courageous than most. Around that time, I began considering the possibilities of audio recordings, and this was right around the time a thing called the Internet was getting a lot of attention. While planning a presentation for a meeting of political scientists, I decided I wanted to begin the presentation with triumphant music to grab people’s attention and demonstrate the possibilities of recordings. I selected the “Olympic Fanfare and Theme,” and began to contact the group that owned the property rights to the song, explaining that I wanted to use it just one time, in front of an audience of about fifty people, and for an educational purpose.

I tracked down the rights holder and after several attempts on my part, I established contact with the attorney who handled rights issues. I explained my benign purpose and offered to pay for the fanfare use. She then threatened to sue me to within an inch of my life if I played it. So I played it as my attention-grabber going on to demonstrate that you can use and reproduce recordings, just as I wished to do with Supreme Court oral arguments, and soon after, around 1995, the National Endowment for the Humanities gave me a grant that allowed me to push the Hitchhikers Guide over to the Internet, in around 1995. We are still pursuing our goal to create a totally searchable database for all Supreme Court information recorded from 1955 through the present.

3. How does a recording evolve from a reel, stored at the National Archives, to being a transcribed recording on your site?

That depends on the year the recording was made, as different years require different processes. We have a good relationship with the National Archives, which is where we first copy each reel. For the earlier arguments, we are transcribing from source, which means we outsource the recordings to have the transcripts carved up. The transcripts are outsourced abroad, where people are employed to insert punctuation and speaker breaks into the recording. This is necessary for enhanced listening features, and also since the transcripts before 2004 do not identify which justice is the “questioner” in the transcript. We developed a prediction model that we run against the recording. This digital engineering model sorts through each transcript and identifies each Justice with about ninety-five percent accuracy, provided the speaker has spoken at least two or three words. When the whole project is finished, it will be about 110 million words, making it the largest database of audio recordings of its kind.

4. As you alluded to, the Court transcripts now identify who is asking a question, but that was not always the case. Why do older transcripts simply identify a “questioner”?

Justice Byron White, in 1963, took the position that the Supreme Court is one Court, not a group of individuals, and that it was not necessary to identify individual Justices. From then on, individual Justices were not identified. That changed in 2004, and the Court’s transcripts now identify when a Justice is speaking.

5. How does the quality of recordings vary from term to term?

It shifts, often because of changes made at the Court. For example, around 1971-1973, the audio is great, but around 1991-1992 the audio quality began to trail off, which we noticed and brought to the attention of the Court. This did not produce a response, so I informed the National Archives of the problem. As it turns out, during an argument around that time, a clerk tasked with recording the arguments flipped a switch on the recorder and discovered that the new setting would use far less of each reel per argument. In fact, it meant that two arguments could fit on each reel, instead of just once. However, the quality was much lower as the machines also stored half as much data per argument, meaning a good deal of each argument was lost. The problem was eventually corrected after the National Archives informed the Court of the problem.

Sometime after 2000, we discovered another problem, something called sticky-shed syndrome, which also affects some older recordings. Magnetic audiotapes used to be coated with iron-oxide in the 1980s, and over time tapes begin to stick together or break down. We have experienced sticky-shed syndrome for older tapes, and we experienced this again around 2004. I suspect this was because the Court used older reels, coated in iron oxide, that had been set aside after the National Archives had detailed the problems brought on by iron-oxide coated tapes. The only cure for sticky shed syndrome is to put the reel in an oven, heat it to roughly one-hundred-eighty degrees, mount it on a tape deck, play the reel, and record whatever you can. Whatever you pull off it is what you’ve got, because after you play it, the reel is useless and we’re left with whatever we were able to extract after it was baked and played.

Although political scientists are fond of presenting it as a novel idea, the idea that the Supreme Court is a political institution has long been fairly obvious to African Americans and their constitutional advocates.  The proposition that the Court is an institution embedded in the larger politics of the world around it was self-evident to those who had noticed the curious convergence between the narrowing of their constitutional rights and the onset of the Jim Crow era.  Los Angeles civil rights lawyer Loren Miller stated a strong version of the thesis when he wrote, in the mid-1930s, that “I know that behind the scenes . . . public opinion exerts the determining role in law,” but he captured the general thrust of what had become conventional wisdom.  Sometimes even the Justices have to be reminded of it, as the exchange between President Obama and Justice Alito during this year’s State of the Union attests, but to those who have had perhaps the largest stakes in the question, its answer has been clear for quite some time.  The first two African Americans to sit on the Court, Justices Thurgood Marshall and Clarence Thomas, were keenly aware of this issue.  Each man approached it in a different way, as will, no doubt, the newest Justice, Sonia Sotomayor.

When Marshall joined the Court in 1967, the nature of that institution’s relationship to the politics of race changed irrevocably.  For all of its previous history, African Americans and their advocates had petitioned the Court, literally and figuratively, for redress of their grievances, so much so that Loren Miller gave his exhaustive history of black Americans and the Supreme Court, published one year before Marshall took his seat, a simple title: The Petitioners.  Marshall’s confirmation changed the nature of the Court from an institution that black Americans petitioned to one where they had political representation.  Indeed, politics of the most conventional sort lay behind that historic moment.  When President Kennedy elevated Marshall to the Second Circuit in 1961 and Johnson cleared the way for him to ascend to the Court six years later, both Presidents understood that black voters remained dissatisfied with the pace of executive action on civil rights.  Musing to Doris Kearns, Johnson confessed that Marshall’s nomination was one of his last chances to do something for African Americans who had made so much effort to “register and vote for the people who’d do a good job for them” but continued to be frustrated by barriers to equality.  Marshall evidently had reciprocal sentiments.  He called Johnson “my President,” while Nixon was “your President,” in speaking to his early clerks.

Throughout his tenure on the Court, Justice Marshall seems to have regarded himself as a political representative of those who had never participated in its deliberations.  In a 1973 case involving the permissibility of a $50 fee for a bankruptcy filing, for instance, Marshall invoked his unique experience, writing that “no one who has had close contact with poor people can fail to understand how close to the margin of survival many of them are.”  More significant was his draft opinion in Regents of the University of California v. Bakke, where he observed, acidly, that the Court had never had a black “Officer of the Court” and only had “three Negro law clerks.”  His biographer Mark Tushnet credits the draft, after it was reshaped a bit, with convincing Blackmun to join the Justices who voted to uphold some forms of affirmative action.  One of his last acts as a Justice was to ask a lawyer arguing a search and seizure case: “Was the defendant in this case by any chance a Negro?”, producing an embarrassed answer in the affirmative.  Within the Court’s deliberations, Marshall’s stories of his experiences as a black man who had grown up under Jim Crow were one of the things that his colleagues remembered most about him.  It was not self-evident that a black Justice should act this way.  Marshall’s mentor, for instance, William Hastie, the first black federal Circuit judge, adopted a pose of studious non-racialism of word and deed after he ascended the bench in 1949.  Marshall consciously chose to blaze a different path.

For Justice Clarence Thomas too, the politics of racial representation shaped both how he got to the Court and what he did once he arrived there.  Indeed, the only thing that would have produced more controversy than nominating a black conservative to fill Marshall’s seat would have been to have nominated a white lawyer of any political orientation.  The idea that there was now a “black seat” was now so embedded that it led President Bush and then-judge Thomas, both critics of race-conscious governmental decisionmaking, to go forward with a nomination that few could convincingly contend was anything other than that.  Conventional racial politics also played a role in his confirmation.  After charges surfaced that he had sexually harassed Anita Hill, a black subordinate, polling data showed that his support among black voters actually rose rather fell.  That support was one of the key factors that led a Democratic-controlled Senate to confirm him.

Once ensconced on the Court, Justice Thomas sat uncomfortably in the shadow of his predecessor.  “These people are mad because I’m in Thurgood Marshall’s seat,” he reportedly said of his critics.  At the same time, Thomas seems to share his predecessor’s view that a significant part of his role is to speak for those whom the politics of race have marginalized within the institution.  Although an ardent critic of race-based government practices, Thomas, for instance, took the time to write separately in a ruling on school desegregation early in his tenure.  Lauding state-sponsored historically black colleges as representing “the highest attainments of black culture,” he made clear his caution about a ruling that would endanger them.  In the context of pre-college education, too, Thomas has gone on record to distinguish himself from his conservative allies in emphasizing that black schools “can function as the symbol and center of black communities.”  More than any other Justice in the Court’s history, including Marshall, Thomas makes a point to cite black writers such as Frederick Douglass and W.E.B. Du Bois to ensure that their thoughts are made part of the record of the Court’s deliberations.  As scholars such as Randall Kennedy and Angela Onwuachi-Willig have argued, Justice Thomas undoubtedly views himself as a “race man” on the Court, to put it in terms that Marshall himself would have understood, whether or not one agrees with the uses to which Thomas has put that racial politics.

In nominating Sonia Sotomayor as the newest member of the Court, President Obama made clear that her experiences as the daughter of Puerto Rican migrants to New York were part of the reason for her selection.  In doing so, he merely followed in the tradition of the first President Bush, differing only in making explicit what everyone already knew.  As a court of appeals judge, Sotomayor famously went on record on the subject of minority group status and judicial voice.  Although she disavowed those specific observations, it seems clear that she will eventually find her unique role within the Court as a representative of those who had no place there before.  In doing so, she will be following the path that Justices Marshall and Thomas, each in differing ways, marked out before her.

In the New York Times, Adam Liptak reports on Justice Thomas’s remarks on Tuesday to law students at Stetson University in Florida.  During his speech, Thomas “vigorously defended” the Court’s Citizens United ruling and said that he does not attend the State of the Union address “because the gatherings ha[ve] turned so partisan.” WUSF offers an audio recording of the speech, and Josh Blackman transcribes some excerpts. The St. Petersburg Times also has coverage.

Justice Thomas visits the University of Florida today and will take questions from four law students, according to the Gainesville Sun.  That appearance will be webcast here.

Justice Kennedy was not as forthcoming as Justice Thomas in a speech to Los Angeles lawyers at Pepperdine.  The L.A. Times reports that Justice Kennedy “criticized California sentencing policies and crowded prisons Wednesday night, calling the influence that unionized prison guards had in passing the three-strikes law ‘sick.’ . . . But he sidestepped the audience’s efforts to draw him out” on Citizens United.

Lyle Denniston of this blog reports that two of the seven petitioning Uighurs in the detention case Kiyemba v. Obama have been given an opportunity to resettle in Switzerland. The Associated Press (via NPR) writes that now “[a]t least, the administration will be able to say every Uighur still at Guantanamo has been offered a place to go. . . . The administration could use the changed circumstances to argue that the court should drop the case even before it is argued.”  Lyle links to a letter to the Court from the Uighurs’ lawyer insisting that the case should continue.

Briefly:

• Tony Mauro writes at the BLT about new Supreme Court rules, particularly one that reduces the maximum word count for a reply brief at the merits stage to 6,000 from 7,500. Practitioners are concerned that with the “‘explosion of amicus practice, it [will be] very difficult to respond adequately to both the respondent’s brief and those of the respondents’ amici in the more limited number of words.’”
• Marvin Ammori writes for Balkinization about a new cert. petition from Cablevision that “may be the next Citizens United.” (We discussed the case in this round-up post in December.)
• Jonathan Adler of the Volokh Conspiracy takes note of an opinion written by Justice Sandra Day O’Connor, sitting by designation on the Sixth Circuit.
• UniversalHUB reports that the petitioner in last Term’s Confrontation Clause case, Melendez-Diaz v. Massachusetts, had his conviction reversed yesterday by the Massachusetts Appeals Court.