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Saturday, October 22, 2005
An extension of Lawrence
07:22 PM | Lyle Denniston | Comments (0) | TrackBack (0)
(This is another in a continuing series of reports on the impact on later cases of the Supreme Court's 6-3 decision in June 2003 in Lawrence v. Texas, creating new rights to sexual privacy for homosexuals.)
The Kansas Supreme Court has taken the Supreme Court's expansion of gay rights in one field of constitutional law -- privacy -- and applied it to another -- equality. It thus suggests added arguments for greater protection against discrimination against homosexuals. The state court's unanimous decision Friday in Kansas v. Limon (docket 85,898) can be found here.
While the Supreme Court was weighing the Lawrence case two years ago, it had pending on its docket an appeal by Matthew R. Limon, a Kansas teenager convicted of statutory sexual conduct (oral sex) with a younger boy. Limon received a prison sentence of 206 months -- 17 years and two months -- because the offense involved same-sex participants. Had Limon committed the same crime with a girl younger than him, he could have been sentenced at most to 15 months in prison. After the Supreme Court issued its Lawrence ruling, it sent Limon's case back to Kansas courts to weigh that new ruling's effect. The case was returned even though Lawrence was based on privacy principles under the Due Process clause, while Limon's appeal was based on an equality argument under the Equal Protection clause.
The Kansas court, in a ruling written by Justice Maria J. Luckert (on that court since January 2003), found the differing punishment based on homosexuality invalid under the similar equal protection guarantees of the U.S. Constitution and the Kansas Constitution's Bill of Rights.
Justice Luckert's opinion reads the Lawrence opinion as something more than a a privacy rights ruling.
Continue reading "An extension of Lawrence" »
Friday, October 21, 2005
Commentary: The Court's caseload
05:13 PM | Lyle Denniston | Comments (4) | TrackBack (0)
For years, close observers of the Supreme Court's work have speculated about the reasons why the Justices decide so few cases each Term. No one has been able to say, with certainty, why the Court has shaved its caseload down to half of its size of a quarter-century ago.
One reason often given -- though with no foundation beneath it -- was that the Justices were simply satisfied that lower courts were getting their decisions right more often, so there was less need for the Justices to step in as often. Another suggestion, equally unsupported, was that the Justices simply found comparatively little that interested them in what the lower courts were doing, so they held back. Still another, quite fanciful, idea was that the Justices actually liked working fewer hours, including having afernoons off on hearing days.
The issue of the shrunken caseload is getting some new attention, with the arrival of Chief Justice John G. Roberts, Jr. During his nomination hearings, he told the Senate Judiciary Committee that the Court could be granting more cases, and perhaps should be. It was an idea he seemed prepared to explore once he got on the bench.
Looking into the issue, Roberts almost certainly would not credit any of the reasons given above. But another explanation has been advanced, and it is the most credible one. That is that the declining grants are due to the functioning of the Court's "cert pool" -- more formally, the "certiorari pool." That idea has been embraced by more informed observers, such as former law clerks who know well how that "pool" operates. Its most salient characteristic: recommending against granting review.
The "pool" has been operating for years. At one time or another, many of the Justices decided to take part. During the years of the "Rehnquist Court," the pool became the favored option: eight of the nine Justices relied on the pool (all but Justice John Paul Stevens). It thus has been at its peak of use.
Here is how it works: instead of each Justice's chambers examining every new petition to decide whether to vote to grant or deny, petitions are handed first to the "cert pool," leading to a single memo, written by a single clerk, recommending for or against a grant of cert. That single memo goes to every chambers represented in the pool. The Justices still exercise the voting power, of course, but the memoes have constituted their first, and most comprehensive, look at a case's worthiness for review. Undoubtedly, that saved a lot of time, but the pool has developed defects.
Continue reading "Commentary: The Court's caseload" »
Blog Round-Up - Friday, October 21st
02:20 PM | Liz Aloi | Comments (0) | TrackBack (0)
On the Miers nomination:
Think Progress has this post on the fact that Miers was suspended from the Texas bar.
PrawfsBlawg has this post on the Democratic Party's response - or lack thereof - to the Miers' nomination.
Here PrawfsBlawg also asks whether or not Miers is a pro-business nominee.
On Balkinization Marty Lederman rounds-up some virtues of the Miers nomination.
The National Review Online has this article titled, "The Miers Support Team: Gloomy and Demoralized."
The Volokh Conspiracy discusses the "tipping point" of the nomination here.
In other news:
Yesterday, Terry Gross interviewed Justice Breyer for the NPR show "Fresh Air."
Sentencing Law & Policy has this post on Chief Justice Roberts' decision to join the Court's cert pool. The post references this article on the subject by Tony Mauro.
Thursday, October 20, 2005
Death penalty and the images of 9/11
07:14 PM | Lyle Denniston | Comments (1) | TrackBack (0)
(Seven months ago, the Supreme Court refused to hear an appeal by Zacarias Moussaoui, the only person charged with a crime in the U.S. for a role in the September 11, 2001, terrorist attacks. He has since pleaded guilty to terrorism charges, and the only issue remaining is his punishment. This post is part of continuing coverage of the Moussaoui case as it moves toward a death penalty trial early next year, and a potential return to the Supreme Court.)
If, as seems likely, the case of Zacarias Moussaoui is again appealed to the Supreme Court, a key issue may turn on how the government puts before the jury the emotionally charged facts and images of what happened on 9/11. In a little noticed legal contest being waged partly under seal, and thus partly beyond public view, Moussaoui's lawyers and federal prosecutors are striving for very different death penalty proceedings. It will be up to the trial judge, U.S. District Judge Leonie M. Brinkema of Alexandria, Va., to sort this out before that trial starts next Jan. 9. (The documents so far made public are available on the website of the U.S. District Court for Eastern Virginia, docket 01-455.)
In a motion filed under seal early this month, Moussaoui's defense team asked the judge to break up the death sentencing hearing into three parts. There would be decided tactical advantages of that, the most important being that, in the first -- and potentially crucial --part, the jury would not hear and see the sights and sounds of the devastation on the day of the terrorist attacks. The sounds of the cockpit voice recorders as jet planes were hijacked and crashed, video footage of the World Trade Centers collapsing, and pictures of thousands of victims would be kept out of that first stage, giving Moussaoui what his lawyers hope would be a better chance of convincing the jury that he is not eligible for a death sentence.
Federal prosecutors, however, want a two-step sentencing hearing, with those same sights and images coming into the first phase, thus enhancing the prospect that the jury would find Moussaoui's role enough to make him eligible for the death penalty. The government makes the point that two-stage capital sentencing procedures have been used before, but there has never been a "trifurcation" ot a death penalty proceeding.
Continue reading "Death penalty and the images of 9/11" »
Wednesday, October 19, 2005
Miers pressed for more data
04:02 PM | Lyle Denniston | Comments (3) | TrackBack (1)
The two senior members of the Senate Judiciary Committee on Wednesday asked Supreme Court nominee Harriet E. Miers to fill in a number of significant blanks she left Tuesday when she supplied answers to a lengthy Committee questionnaire. One request that could provoke a fight with the White House: much fuller detail of the constitutional issues she has handled as White House Counsel, a request that presidential aides may see as an inquiry into attorney-client matters. The letter also seeks to probe what White House aides may have done privately to assure outside groups of Miers' views, in order to win their support for her nomination.
The letter by Chairman Arlen Specter, Pennsylvania Republican, and ranking Democrat Patrick Leahy of Vermont can be found here. It asked for responses by next Wednesday. The letter is courteous in tone, saying the answers she previously gave were "helpful." But, the tone aside, it makes clear that the Committee's leaders were not satisfied with many of her responses. It suggests she supply a "supplement to your responses, specifically addressing the areas outlined below with as much detail, particularity, and precision as possible."
Separately on Wednesday, the Committee announced that hearings on Miers' nomination will begin at noon on Monday, Nov. 7. They are expected to continue through the week. C-SPAN announced plans for video and Internet coverage.
In the Committee's original questionnaire, Question 17 asked Miers to describe "in detail any cases or matters you addressed as an attorney or public official which involved constitutional questions." It went on to spell out the kind of detail being sought. Miers' entire response regarding her work as White House Counsel said:
"As Counsel to the President, I am regularly faced with issues involving constitutional questions. I am called upon to advise the President and White House officials on presidential prerogatives, the separation of powers, Executive authority, and the constitutionality of proposed regulations and statutes."
One area of that work in which some Committee members are known to be interested is the role, if any, that Miers played in advising President Bush on his constitutional authority to use coercive measures, including perhaps some forms of torture, to get intelligence information from suspected terrorists.
Continue reading "Miers pressed for more data" »
Some requests for the Chief
01:56 PM | Lyle Denniston | Comments (4) | TrackBack (0)
News organizations have urged the new Chief Justice, John G. Roberts, Jr., to make more of the Supreme Court's work accessible to the public and the media -- including providing same-day availability of the audiotapes of all of the Court's oral arguments. In a letter to the Chief Justice, dated Oct. 7, the groups have used Roberts' entry on the Court as an opening to renew a number of suggestions that in the past have produced few results.
The suggestion that seems least likely to succeed this time is for television and/or still cameras in the Courtroom for oral argument. In the past, the Court has treated this issue as one that must be decided by a favorable unanimous vote, and that has not been forthcoming. Justice David H. Souter, for example, has routinely -- and publicly -- made clear his vehement opposition to television coverage of arguments.
Here are the other suggestions the groups made for improving "transparency and public access":
1. Immediate release of the written transcripts of oral arguments (now available usually 7 to 10 days after argument day).
2. Either increase the number of cases for which audiotapes or arguments are released on the day of argument, or release all audiotapes on a same-day basis.
3. Public release of the reasons Justices recuse from particpating in cases.
4. Public release of more detailed information about the individual Justices' health.
5. Public release of the Justices' plans to make public appearances.
Congratulations!
01:56 PM | Amy Howe | Comments (2) | TrackBack (0)
We'd like to take a moment to congratulate our past and present students and summer associates on the terrific clerkships that they have lined up for next year (and, in some cases, the following year):
James Darrow (Stanford 2006): Judge John Gleeson (E.D.N.Y.)
Anisha Dasgupta (Yale 2006): Judge Louis Pollak (E.D. Pa.) & Judge Jose Cabranes (CA2 2007-08)
Brian Fletcher (Harvard 2006): Judge Merrick Garland (CADC)
Nat Garrett (Stanford 2006): Judge Raymond Fisher (CA9)
Daniel Goldman (Stanford 2005): Judge Robert Sack (CA2)
Jeffrey Harris (Harvard 2006): Judge David Sentelle (CADC)
Allon Kedem (Yale 2005): Judge Pierre Leval (CA2)
Rachel Kovner (Stanford 2006): Judge J. Harvie Wilkinson (CA4)
Alex Lees (Stanford 2006): Judge Louis Kaplan (S.D.N.Y.)
Julia Lipez (Stanford 2006): Judge Diana Motz (CA4)
Anton Metlitsky (Harvard 2005): Judge Merrick Garland (CADC)
Mike Mongan (Stanford 2006): Judge Merrick Garland (CADC)
Lee Reeves (Stanford 2005): Judge Samuel Alito (CA3)
Greg Reilly (Harvard 2006): Judge Timothy Dyk (CAFC)
Stephen Shackelford (Harvard 2005): Justice Stephen Breyer
Darien Shanske (Stanford 2006): Judge Pierre Leval (CA2 2007-08)
Neel Sukhatme (Harvard 2005): Judge Ann Williams (CA7)
Jason Tarricone (Stanford 2006): Judge Sidney Thomas (CA9)
Eric Tuttle (Stanford 2006): Judge Pamela Rymer (CA9)
Blog Round-Up - Wednesday, October 19th
12:19 PM | Liz Aloi | Comments (0) | TrackBack (0)
On the Miers nomination:
Election Law Blog directs us to Miers' trial testimony from the Dallas voting rights litigation.
The Volokh Conspiracy has this bit of trivia on President Bush's plan for appointing judges.
Sentencing Law & Policy has this post on the underlying themes in Miers' first answers to Senate Judiciary Committee questionnaire.
ACSBlog reports on Miers and abortion here. PrawfsBlawg also discusses similar issues here.
Think Progress has this post on whether or not Miers opposes a right to contraception.
Balkinization discusses the Miers nomination in conjunction with "group think" here.
Ann Althouse has this post on being impressed by the fact that Harriet Miers was able to move into the managing partner position at a big law firm and spend a lot of time doing bar association work.
In other news:
Earlier this week the Yale Law Journal launched The Pocket Part, an online companion to the journal's print edition. This month features articles and discussion on property law and federalism. The Volokh Conspiracy comments here and PrawfsBlawg here.
ACSBlog has this post on Attorney General Gonzales's criticism of the use of international law in SCOTUS decisions. Yesterday, in a speech at George Mason University law school he stated, "Foreign judges and legislators are not accountable to the American people. If our courts rely on a foreign judge's opinion or a foreign legislature's enactment, then that foreign judge or legislature binds us on key constitutional issues."
Tierney's WeblAG has this post on the court's decision to grant cert in three wetlands cases.
Tuesday, October 18, 2005
Analysis: Miers on the Constitution
02:32 PM | Lyle Denniston | Comments (1) | TrackBack (2)
Supreme Court nominee Harriet E. Miers told the Senate Judiciary Committee on Tuesday that she had been involved as a private attorney in three cases that were appealed to the Supreme Court -- none of which was granted review. Only one of the three appeared to involve any significant constitutional issue, and that one involved the political career of President Bush.
Miers also made a broad claim to having handled constitutional questions as White House Counsel to President Bush. But, she gave no details, even though the Committee had asked her to "describe in detail the constitutional issue you dealt with, the context in which you dealt with it, and the substance of any positions you took related to that issue." She also failed to provide detailed support for a claim that, as a private lawyer, she handled "many cases involving issues of personal jurisdiction under the United States Constitution" and gave no details on her handling of "many First Amendment issues" while representing "a media client for many years."
Miers discussed these issues in her 57-page response to the Committee's questionnaire about her background. The overall impression created by her responses was that, in private practice, she was primarily a commercial litigator or adviser, and had very few occasions to delve into constitutional issues. In a section of her responses talking about private cases that included constitutional questions, she mentioned only five specifically -- and one of those was also one of the three that had been taken to the Supreme Court but not reviewed there.
Even that specific case -- the only one of consequence in her constitutional resume -- seemed to serve mainly to reinforce the impression that the Constitution figured in her work primarily when George Bush's interests were involved.
Continue reading "Analysis: Miers on the Constitution" »
Blog Round-up - Tuesday, October 18th
10:55 AM | Liz Aloi | Comments (0) | TrackBack (0)
On the Miers nomination:
Law Dork has these musings on judicial independence.
Tax Prof Blog asks, are the Feds investigating Miers' firm's tax shelter work?
Concurring Opinions has this post on why social conservatives might be supporting Miers. It discusses this article from yesterday's Wall Street Journal on whether or not Christian conservatives received assurances that Miers would oppose Roe v. Wade?
The Volokh Conspiracy has this post on Monday's White House press briefing with Scott McClellan. McClellan had a "pretty amusing" exchange with reporter Helen Thomas about just what the White House means when it says that Harriet Miers won't "legislate from the bench."
In other news:
Election Law Blog asks, Will Congress use VRA renewal to undo Georgia v. Ashcroft?
Sentencing Law & Policy has this post titled, "Justice Scalia on Sixth Amendment errors as structural." In it, Professor Berman analyzes the Court's decision to grant cert in Recuenco to consider whether Blakely error can be harmless.
Property Prof Blog has this post on the Court's conference notes from Berman v. Parker. The case, from 1954, established the legality of broad urban-renewal schemes.
ACSBlog has this review of the enemy combatant cases.
UPDATE:
How Appealing links to this segment featuring SCOTUS Blog reporter Lyle Denniston from yesterday's broadcast of the public radio program "Here and Now."
Monday, October 17, 2005
Court denies tobacco case; no action on Hamdan
10:21 AM | Lyle Denniston | Comments (8) | TrackBack (0)
The Supreme Court on Monday refused to hear the federal government's appeal seeking to salvage its opportunity to force the tobacco industy to surrender $280 billion in profits. In a separate development, the Court once again took no action on a test case challenging the constitutionality of the military tribunals set up to try war crimes charges against terrorist suspects. The next opportunity for it to act on the case of Hamdan v. Rumsfeld (05-184) may not come until Oct. 31.
Here's today's Order List.
The Court on Monday granted one case, a significant sequel to its series of rulings on the roles of judges and juries in criminal sentencing. It accepted for review the issue of whether a violation of the jury's role in sentencing can ever be excused as "harmless error." The case is Washington v. Recuenco (docket 05-83).
In a two-page, unsigned opinion, the Court ruled that states must be given a chance to develop their own ways of deciding whether a convicted murderer is mentally retarded, and thus cannot be executed. It overturned a Ninth Circuit decision that ordered the state of Arizona to let a jury decide the retardation issue. "Arizona had not even had a chance to apply its chosen procedures when the Ninth Circuit preemptively imposed its jury trial condition," the Court said. There were no recorded dissents in Schriro v. Smith (04-1475).
Among the other orders the Court issued, it significantly narrowed the scope of its review of a case on legal immunity for local governments. A week ago, the Court had agreed to hear the case of Zurich Insurance Co., et al., v. Chatham County, Ga. (docket 04-1618). At that time, the petition had posed seven, lengthy questions. All of the questions dealt in various ways with whether a county had "sovereign immunity" to a lawsuit because it had operated a drawbridge over a waterway, and an accident had occurred when the drawbridge lowered prematurely. On Monday, the Court said it was limiting its grant to this question: "Whether an entity that does not qualify as an 'arm of the State' for Eleventh Amendment purposes can nonetheless assert sovereign immunity as a defense to an admiralty suit?"
The Court's refusal to hear the Justice Department appeal in U.S. v. Philip Morris USA, Inc., et al. (05-92) takes off the table in the government's mammoth lawsuit against the industry the most significant punishment that could be imposed if the tobacco companies are found to have violated federal anti-racketeering law (RICO). The Court gave no explanation for its denial of review; there were no recorded dissents.
Continue reading "Court denies tobacco case; no action on Hamdan" »
Court allows inmate's abortion
10:18 AM | Lyle Denniston | Comments (1) | TrackBack (2)
The Supreme Court on Monday cleared the way for a Missouri inmate to obtain an abortion over the objection of state officials. In a brief order, the Court refused the state's request to stay a federal judge's order requiring that the inmate be taken to a St. Louis clinic. Justice Clarence Thomas on Friday night had temporarily blocked that order, but the Court on Monday lifted the stay Thomas had issued.
U.S. District Judge Dean Whipple of Jefferson City, Mo., last week had issued an emergency order to require the abortion. The woman, who learned she was pregnant after being arrested in California, is in the 16th or 17th week of pregnancy. She sought an abortion while in California, but was transferred to a women's prison in Vandalia, Mo., before an abortion could be performed. State officials, citing Missouri's official view that abortion should be discouraged, told her that they would not arrange for an abortion that was not medically necessary.
The case is Crawford v. Roe (application docket 05-A-333).
The woman faces a four-year prison term, after being picked up on a parole violation.
This was the first abortion controversy at the Supreme Court in which Chief Justice John G. Roberts, Jr., participated. Although there were no recorded dissents from the order denying the stay request of Missouri officials, that did not necessarily mean that all nine Justices had voted in favor of the order. The actual vote was not disclosed. Had Roberts not participated, that would have been noted, under the Court's usual practice.
It would have taken the votes of at least five Justices to grant Missouri's stay request. As Stern-Gressman-Shapiro-Geller note in their standard work, Supreme Court Practice, "If an application is referred to the Court, the affirmative votes of a majority of the participating Justices are required to grant it."
(On May 16, 1988, the Supreme Court had denied review of a Third Circuit ruling that it was unconstitutional for prison officials to refuse to assure pregnant inmates access to abortions, even if there is no medical necessity for ending a pregnancy. The case was Lanzaro v. Monmounth County Inmates, docket 87-1431. That case also involved a New Jersey jail's policy of requiring inmates to finance their own abortions. That was not an issue in the new Missouri case; the pregnant inmate in that case told the Supreme Court that she "is willing to pay for the cost of the medical care.")
Miers and Abortion Assurances
07:05 AM | Tom Goldstein | Comments (0) | TrackBack (1)
Via How Appealing, John Fund has a very interesting Opinion Journal piece on assurances that may have been given regarding Harriet Miers and Roe.
Sunday, October 16, 2005
Blog Round-up - Sunday, October 16th
07:58 PM | Liz Aloi | Comments (0) | TrackBack (0)
Tax Prof Blog has this post assessing the impact of tax shelter opinions on the Miers nomination.
Volokh has this post on the sentiment against Janice Rogers Brown as a Supreme Court nominee. The Volokh Conspiracy also discusses the ways in which the White House is selling the Miers nomination here.
Balkinization has this post on the theory that the White House has shifted the way it is selling the Miers nomination.
Election Law Blog discusses Miers and the Voting Rights Act here.
Sentencing Law & Policy has this post asking if the main stream media will ever look at Miers and criminal justice issues.
The Legal Theory Bookworm recommends Advice And Consent: The Politics of Appointing Federal Judges by Lee Epstein and Jeffrey A. Segal.
Inmate's abortion on hold
06:24 PM | Lyle Denniston | Comments (3) | TrackBack (0)
The Supreme Court is expected to act early this week on the attempt by Missouri state officials to keep a pregnant prison inmate from obtaining an abortion. The case tests whether a woman's right to abortion continues while she is in prison, and whether that right prevails over a state policy to discourage abortions.
A U.S. District Court order requiring officials to arrange for a trip to an abortion clinic outside a women's prison has been temporarily blocked by Justice Clarence Thomas, who handles such emergency matters from the Eighth Circuit. Thomas' order late Friday night only applies until either he or the full Court acts further on the case of Crawford v. Roe. (The state's application for a stay is docketed as 05-A-333.)
The case involves a woman identified in court papers only as "Jane Roe." She was arrested in July in California on a Missouri warrant for a parole violation. Soon after her arrest, she learned she was pregnant. She sought an abortion while in custody in California, but was transported to Missouri before that could be done. Arriving at the women's prison in Vandalia, Mo., in August, she again asked to have an abortion. In early September, she has said in court papers, she was told that her request was denied because state officials have a policy against any abortion that is not medically necessary. The policy, she was told, is aimed at carrying out Missouri's official view that abortions should be discouraged and childbirth should be encouraged.
Roe, currently in the 16th or 17th week of pregnancy, filed a civil rights lawsuit last Wednesday in federal court in Jefferson City, Mo., resulting in a temporary order by Chief U.S. District Judge Dean Whipple. The judge's order on Thursday required prison officials to take Roe to a Planned Parenthood clinic in St. Louis, or any other provider willing to "provide the service on an expedited basis." Whipple on Friday refused to postpone his order while the state appealed, and the Eighth Circuit Circuit based in St. Louis similarly refused a stay.
State officials then asked Justice Thomas for a delay of the order while it is appealed. Thomas stayed Judge Whipple's order "pending further order of the undersigned or of the Court."
The lawsuit being pursued by Roe contends that denial of an abortion violates her constitutional right to terminate her pregnancy, under the Fourteenth Amendment, and that the denial amounts to "deliberate indifference to her serious medical needs" and thus amounts to "cruel and unusual punishment" under the Eighth Amendment.
The state counters that any burden on Roe's rights is due to the fact that she committed a crime, resulting in imprisonment during her pregnancy. State officials also contend that moving a prisoner out of the Vandalia facility for medical services will entail a cost, and a reduction in staff at the prison during the trip, threatening safety behind the prison walls.
Roe is under a four-year sentence in Missouri, so failure by prison officials to arrange for an abortion would mean that she would have to carry the pregnancy to term.