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Friday, November 04, 2005
Blog Round-Up - Friday, November 4th
07:31 PM | Liz Aloi | Comments (0)
In nomination news:
Think Progress has this post on Judge Alito's opinion which would have required a woman to notify her husband before having an abortion.
PrawfsBlawg has this post commenting on Judge Alito's student note.
The National Seniors Law Center has released this statement on titled, "Alito Record Raises Serious Concerns for Seniors."
The Volokh Conspiracy has this post on what one of Alito's former professor remembers of him.In non-nomination news:
PrawfsBlawg has this post titled, "Circuit Justice Roberts’s Eleven-and-a-Half-Day Gap." The post asks whether Chief Justice Roberts accidentally created grounds for reopening (and even rearguing) Banner v. United States.
Milt Bearden, who worked in the C.I.A.'s Directorate of Operations for three decades has this op-ed in the NY Times urging the Court to grant cert in Hamdan v. Rumsfeld.
Underneath Their Robes has this post on a speech Justice Ginsburg gave earlier this month at the West Virginia University College of Law.
Roberts: a judge on two courts
02:40 PM | Lyle Denniston | Comments (5)
Chief Justice John G. Roberts, Jr., is now not only a member of the Supreme Court but also, for the time being at least, is continuing to serve as a judge on the D.C. Circuit. That lower court on Friday released an opinion in which Roberts participated as Circuit Justice, taking full part in a ruling by a three-judge panel that had heard the case before he was nominated to lead the Supreme Court and the federal judiciary.
The opinion in Banner, et al., v. U.S., et al. (Circuit docket 04-5190) upheld the constitutionality of a 1973 law passed by Congress barring the local government in Washington, D.C., from imposing an income tax on workers in the District of Columbia who live outside the city, mostly in Maryland and Virginia. Local government officials and residents of D.C. challenged this ban, arguing that it discriminated against them in favor of residents of the states that surround the Districft, and that it is an invalid form of a non-uniform tax law. The Circuit Court rejected both arguments, concluding that Congress has full power to decide on tax legislation for nation's capital, and that authority includes the power to decide not to tax specified forms of taxation.
The Banner opinion was unsigned, so it is unclear which of the three judges wrote it: Roberts, or Circuit Judges Judith W. Rogers or Harry T. Edwards (who took senior status on Thursday, the day before the ruling was issued.)
Roberts' participation in the case is explained only by a brief footnote, reading: "Chief Justice Roberts was a member of this court when the case was briefed and argued and is designated Circuit Justice of this court. See 28 U.S.C. secs. 42, 43(b)."
Section 42 of the U.S. Code deals with the assignment of members of the Supreme Court to the federal circuits, usually for purposes of reviewing emergency matters that arise from the individual circuits. That section itself does not deal specifically with a Justice actually sitting to judge a case on a lower court.
Section 43 deals with the makeup of the circuit courts of appeals. Its paragraph b reads in part: "The circuit justice and justices or judges designated or assigned shall be competent to sit as judges of the court."
It is apparent that the Banner case could have been decided without Roberts' participation. The two other judges appear to have joined in the opinion in full, and their votes would have been sufficient to decide it. Section 46(d) of the same Code title says that two judges may constitute a quorum to decide a case before a three-judge panel.
The late Chief Justice William H. Rehnquist did serve at least once as a trial judge in a U.S. District Court, but apparently never as a member of a Circuit Court for purposes of deciding a case at that level. (A helpful reader points out that Justices Antonin Scalia and Clarence Thomas continued to take part in D.C. Circuit panel decisions after they had become Justices, when they had sat on the panels involved. Neither was a Circuit Justice for the D.C. Circuit, but presumably each was designated to continue to sit.)
Roberts presumably will not be sitting to hear any more D.C. Circuit cases, but Friday's opinion makes it appear that he will remain a part of panels for purposes of deciding cases that he had heard while a judge on that court. It is doubtful that he would sit as a Circuit Justice to hear and decide new cases in the other jurisdictions where he holds that position, the Fourth Circuit and the Federal Circuit.
If the Banner case is now appealed to the Supreme Court, Roberts -- according to a statement he made to the Senate Judiciary Committee -- would disqualify himself from participating in any action on the case.
(Footnote: the Chief Justice is a resident of Maryland who works in the District of Columbia. The opinion in Banner, though, points out in its footnote 4 that Maryland offers a credit to its residents who pay taxes to another jurisdiction, so Roberts would not necessarily have to pay added taxes were there a commuter tax in the city where he works.)
Thursday, November 03, 2005
Blog Round-Up - Thursday, November 3rd
09:04 PM | Liz Aloi | Comments (1) | TrackBack (0)
In nomination news:
Here is Judge Alito's student Note from the Yale Law Journal. The Note analyzes the Supreme Court’s decisions in the so-called “release time” cases. These cases dealt with the question of whether public schools violate the Establishment Clause of the First Amendment by allowing students to take religious education classes during school hours.
The First Amendment Center has this post on Alito as a government lawyer.
Think Progress has this post on what some of Judge Alito's colleagues think of him.
Here is Underneath Their Robes on Alito's sense of humor.
Concurring Opinions has this post on why Congress should not subpeona Alito's clerks.In non-nomination news:
Election Law Blog has this post on the fact that the Supreme Court will hear a major campaign finance case on January 17. January 17 has now been announced as the target date for a Judicary Committee to vote on the nomination of Judge Alito for Justice O'Connor's seat.
Oona Hathaway, former O'connor clerk and Yale Law School professor has posted an essay about the Alito nomination, Meiers withdrawal, CIA secret/black prisons revelations, and their impact on Justice O'Connor, on Balkinization.
Col. Will Gunn from U.S. Air Force just posted this essay at the National Institute for Military Justice site called "Why the Supreme Court Needs to Hear Hamdan Now."
Admiral John Hutson (Retired, U.S. Navy) & Deborah Pearlstein (Director, Human Rights First and former Stevens clerk), posted this essay yesterday titled, "Time to Decide on Hamdan," on the ACSBlog.
Here is a transcript of a recent interview with Justice Kennedy. According to the Volokh Conspiracy Justice Kennedy discusses a wide range of topics, including his childhood, being a young judge, becoming a Justice, deciding cases, stare decisis, interpreting the Constitution, and the role of the Supreme Court.
Alito hearings set for Jan. 9
05:42 PM | Lyle Denniston | Comments (1) | TrackBack (0)
Senate Judiciary Committee Chairman Arlen Specter, Republican of Pennsylvania, told news organizations on Thursday that the Supreme Court nomination hearings for Circuit Judge Samuel A. Alito, Jr., will begin on Monday, Jan. 9 and continue for five days. Specter also said that the Committee will vote on the nomination on Tuesday, Jan. 17, with a final vote on the Senate floor projected for Friday, Jan. 20. (That assumes, of course, that there would be no Democratic filibuster -- an issue not yet resolved.)
It thus appears that Justice Sandra Day O'Connor will be on the bench for the Court's sitting that begins on Jan. 9. She would join in the hearings scheduled that week and in the following week. But, if Alito is confirmed on Friday, Jan. 20, he presumably could take his seat quickly, thus being on the bench on Monday, Jan. 23 -- the Court's final public session until Tuesday, Feb. 21.
(Thanks to How Appealing and Howard Bashman for the alert.)
Wednesday, November 02, 2005
Blog Update
09:47 PM | Liz Aloi | Comments (0) | TrackBack (0)
In nomination news:
Kent Scheidegger has written this post for the Criminal Justice Legal Foundation on Alito, O'Connor, and the Rompilla case.
Underneath Their Robes has this article on Judge Alito's sister, a fellow lawyer.
Slate has this article on Alito's "secret pinko past." Slate also has this article posting that Justice Scalia is more liberal than Judge Alito.
PrawfsBlawg has a series of posts on Alito and abortion. The most recent one can be found here.
Sentencing Law & Policy has a second post on Judge Alito as prosecutor.
The Volokh Conspiracy has this post titled "Roberts & Alito: The Triumph of Roosevelt Over Madison?" and this follow-up discussing Madison & Marshall on McCulloch v. Maryland.
Tony Mauro has this article in the Legal Times on "The Secrets of Jay Sekulow." Sekulow is the chief counsel of the American Center for Law and Justice, an organization founded by conservative religious broadcaster Pat Robertson in 1990.
Roll Call has this article arguing that Judge Alito doesn’t show Congress enough deference.
ACSBlog has this round-up of Alito nomination news.
Think Progress has this post on Bush's consultation process for the Alito nomination.
BlackProf has this post on Alito and civil rights.Here are the results from a recent Gallup Poll on Alito.
Tax Court and three judges rebuked
06:20 PM | Lyle Denniston | Comments (0) | TrackBack (0)
(This is a followup to the Supreme Court 7-2 decision last March 7, denouncing as an "idiosyncratic procedure" the U.S. Tax Court's practice of keeping secret and showing little respect for the preliminary rulings by its trial judges.)
In a public exhibition of strong displeasure, the Eleventh Circuit on Wednesday ordered three U.S. Tax Court judges to have nothing further to do with a pending case, demanded a new assignment of the case, and brusquely ordered the entire 19-judge Tax Court to "adhere strictly hereafter" to its own rules. The Tax Court had changed its rules on Sept. 20 to modify a secrecy procedure, but that did not deter the Eleventh Circuit from loosing a stinging rebuke.
This highly unusual public chastisement came as the Circuit Court reviewed again the case of Ballard v. Commissioner of Internal Revenue after the case was sent back by the Supreme Court. It is a tax deficiency case growing out of an Internal Revenue Service claim of an alleged "kickback" scheme involving the real estate department of Prudential Life Insurance Co. of America. As it returned to the Eleventh Circuit, it involves only Claude M. Ballard and his wife, Mary. Ballard, a senior Prudential executive, allegedly shared in fees that a Chicago tax attorney charged for influence with Ballard and another Prudential executive to persuade them to approve financing of clients' projects.
The special trial judge who handled the case in its first phase at the Tax Court (somewhat as a magistrate does in a District Court) was D. Irvin Couvillion. It turns out that Couvillion had concluded in his initial report that there were no kickback schemes, there was no unreported income, and there was thus no underpayment of taxes. But Ballard and the others involved never knew about those conclusions, because of a Tax Court procedure of refusing to disclose such reports to taxpayers or their attorneys and because the Tax Court final ruling was directly contradictory to Couvillion's report.
Now, as a result of the Eleventh Circuit's decision Wednesday, that report gains new stature and potentially could spare Ballard from liability. The Tax Court, in a new review, must give deference to Couvillion's conclusions.
Continue reading "Tax Court and three judges rebuked" »
New order in patent case
05:32 PM | Lyle Denniston | Comments (1) | TrackBack (0)
The Supreme Court on Wednesday agreed, for a second time this week, to grant review of a significant patent case, doing so this time after Chief Justice John G. Roberts, Jr., took himself out of the case. The result is that the grant remains as before, except that Roberts did not participate in the order. (The order can be found here.)
On Monday, the Court announced it would review Laboratory Corp. of America v. Metabolite Laboratories, Inc. (docket 04-607), to sort out when a medical process can be patented. At that time, the Court said it would hear only the third question, dealing with a process for detecting a scientific relationship between a medical test result and a medical condition in a patient.
There was no notation that any Justice was recused. The Court, in its new order, said that the Chief Justice had advised his colleagues that he should have recused, and now did so. Without his participation, the Court then reconsidered the case, and voted anew to grant review of the same question. The Chief Justice provided no public explanation for his decision to recuse.
The case is not expected to be argued until late winter, but even if there is a new Justice by that time there is a possibility of a 4-4 split on the case.
Blog Round-Up - Wednesday, November 2nd
03:09 PM | Liz Aloi | Comments (0) | TrackBack (0)
In non-nomination news:
Election Law Blog has this post on whether or not Congress should use the renewal of the Voting Rights Act to overrule Section 5's interepretation in the Supreme Court's Bossier Parish cases.
This week, the Legal Affairs Debate Club asks, Are Illegal Drugs Legal in Church? Marci A. Hamilton, the Paul R. Verkuil Chair in Public Law at Cardozo School of Law and Garrett Epps, Orlando John & Marian H. Hollis Professor at the University of Oregon School of Law are this week's debaters.
According to Legal Affairs:
Six years ago, customs agents seized packages of "tea extract" from Brazil headed to O Centro Espirita Beneficiente Uniao Do Vegetal, a small church in Santa Fe, New Mexico. In the boxes was hoasca, a plant extract that's a potent hallucinogen and that the church brews in tea as part of its religious ceremonies. While the First Amendment protects Americans' religious freedom, it may not protect their use of a controlled substance.For salvation, the church is looking to the Religious Freedom Restoration Act—which generally prohibits the government from limiting the religious use of controlled substances. This week, the Supreme Court will consider whether RFRA protects the church. Why can't the group continue to brew their hallucinogenic tea?
Moussaoui motion released
12:45 PM | Lyle Denniston | Comments (1) | TrackBack (0)
A U.S. District judge in Alexandria, Va., has now put on the public record a redacted version of a motion by Zacarias Moussaoui asking that his death sentencing proceeding be split into three parts, in order to avoid what he fears is prejudice from government displays of the sights and sounds of the terrorist attacks of Sept. 11, 2001. Moussaoui is the only person charged in the U.S. for crimes related to the 9/11 attacks.
His motion, previously under seal, was discussed in this post on Oct. 20. That post was unable to fully discuss the motion because, at the time, the document remained undisclosed.
The redacted version of the motion can be found at the website of the U.S. District Court for the Eastern District of Virginia, as a docket entry in 01-455-A, U.S. v. Moussaoui. The motion itself is at docket No. 1337, dated Oct. 3. The judge's order releasing that document is docket No. 1357, dated Nov. 1.
Today's Filing
11:02 AM | Kevin Russell | Comments (1) | TrackBack (0)
Today we filed this cert. reply brief in Columbus v. Golden, No. 05-354. The brief was prepared with the students in the Stanford Supreme Court litigation clinic.
Tuesday, November 01, 2005
Blog Round-Up - Tuesday, November 1st
09:11 PM | Liz Aloi | Comments (0) | TrackBack (0)
In nomination news:
PrawfsBlawg has this post on "Deconstructing Scalito" and this post on Alito, business and contract law.
Opinio Juris has this post on Judge Alito and Internationalism. Opinio Juris also has this post on Alito and forced abortions (abroad).
Blue Mass Group has this post on the Alito that MoveOn hasn't mentioned. The post discusses the fact that any appellate judge with years of service will have a long paper trail that is relatively easy to manipulate and that this manipulation process of has already begun for Judge Alito.
Mirror of Justice has this post on Catholics and the Court responding to this post by Rick Garnett on the same topic.
Concurring Opinions has this post on Alito and securities law.
The Financial Times has this article on the dangers of simplifying Alito's view on abortion.
Sentencing Law & Policy has this post on Judge Alito and the death penalty.
The New Republic has this article by Cass Sunstein on Alito.
David Frum has this prediction for the Alito nomination in the National Review Online.
Jack Balkin has this post on what the Alito nomination means for constitutional law.
The Legal Times has this article on the fact that Alito was nominated for his judicial experience and conservative credentials.On a lighter note:
Underneath Their Robes has this post with comments on the Alito nomination from his former clerks and this post on Alito's family.
In non-nomination news:Criminal Appeal as this update on state Blakely cases.
ACSBlog has this post on Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, a case that comes before the Supreme Court Tuesday regarding the religious use of a hallucinogen.
ACS Debate on the Alito Nomination
08:54 PM | Liz Aloi | Comments (1) | TrackBack (0)
The American Constitution Society has announced the following event:
The Alito Nomination
featuring:
Marcia D. Greenberger, Co-President, National Women’s Law Center
Ralph Neas, President, People for the American Way
Nancy Zirkin, Deputy Director and Director of Public Policy, Leadership Conference on Civil Rights
Bruce Fein, Bruce Fein & Associates and former Associate Deputy Attorney General in the Reagan Administration
Moderated by Tom Goldstein, Goldstein & Howe
12:00-1:45 PM
Thursday, November 3, 2005
National Press Club
The Holeman Lounge
529 14th Street, NW
Washington, DC
Please RSVP to Kerry at Events@ACSLaw.org or (202) 393-6181.
Lunch will be served at noon and the panel will begin promptly at 12:15 pm. There is no charge for this event.More details can be found on ACSBlog here.
Tomorrow's Argument in Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc. d/b/a Conagra Refrigerated Foods
06:27 PM | James Darrow | Comments (0) | TrackBack (0)
First up on Wednesday is Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc. d/b/a Conagra Refrigerated Foods, No. 04-597. Although the actual procedural posture of this case is somewhat in dispute, the question presented for certiorari supposes a federal civil case in which a party moved for a preverdict judgment as a matter of law (“JMOL”) under Rule 50(a), lost the jury verdict, and then appealed without having moved either for a postverdict JMOL under Rule 50(b) or for a new trial under Rule 59. The Court will consider whether (and to what extent) the court of appeals can conduct a sufficiency review of the jury verdict under those circumstances.
Argument for petitioner Unitherm is divided between Burck Bailey of Oklahoma City, representing Unitherm, and Malcolm L. Stewart, Assistant to the Solicitor General, representing the United States as amicus curiae. Robert A. Schroeder of Los Angeles will argue for respondent ConAgra. Find the parties’ briefs here, and the amicus brief of the United States here.
Herbal tea case: a government loss?
01:58 PM | Lyle Denniston | Comments (2) | TrackBack (0)
A small religious band of about 140 adherents, locked in a high-stakes legal battle with federal drug enforcers, appeared on Tuesday to be nearing at least a partial victory in the Supreme Court. The government’s no-exception, zero-tolerance approach to the religious use of a hallucinogen ran into considerable skepticism among the Justices. Only one, Justice Anthony M. Kennedy, seemed ready to go most of the way to support the government side.
Despite the small size of the sect, and the rather exotic substance it uses in its rituals – hoasca tea, imported from Brazil and containing a banned substance, the case of Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal(docket 04-1084) poses a major conflict between the Controlled Substances Act, banning a wide array of narcotics, and the Religious Freedom Restoration Act, insulating religious practices from federal government intrusion. This, in fact, is the clearest test case yet on RFRA as it applies to government drug policy.
The case was argued Tuesday at a high level of advocacy: Deputy Solicitor General Edwin S. Kneedler for the government, and Nancy Hollander of Albuquerque, N.M., for the religious sect. In the end, however, Kneedler appeared to be struggling to maintain support for blanket enforcement of the Controlled Substances Act against a tiny religious group. Chief Justice John G. Roberts, Jr., for example, told Kneedler: “We don’t have to make a once-and-for-all determination. If some of the things you say come true – if there is a lot of diversion [of the tea], or there is an expanded church, the drug was being abused – we could re-visit this.” Roberts also remarked: “Your approach is totally categorical: if there were one group, in one year, and it gave each member one drop, and the practice were rigorously policed, your position would be the same.” Kneedler did not disagree.
Perhaps the most telling development of the argument was that Justice Antonin Scalia displayed almost no sympathy for the government’s position. Noting that Congress has created an exception to drug policy for Indian tribes’ ritual use of peyote, Scalia told Kneedler: “This demonstrates you can make an exception without the sky falling.” Kneedler did not do well in trying to explain away the peyote exception as limited to Congress' special concern for Indian tribes. Scalia, of course, was the author of the Court’s 1990 decision (Employment Division v. Smith) allowing states to ban the tribal use of peyote – a decision that Congress essentially overturned in passing RFRA, and enacting a separate exception for Indians’ use of peyote.
When the small religious sect’s lawyer, Hollander, was being pressured to defend the religious use of hoasca tea against the government’s reliance on a 160-nation treaty banning the import of the hallucinogen, Scalia came to her rescue. “Statutes trump treaties,” he said, so “if RFRA can trump a statute [like the Controlled Substances Act], it can trump a treaty.”
Continue reading "Herbal tea case: a government loss?" »
January Argument Calendar
10:03 AM | Tom Goldstein | Comments (0) | TrackBack (0)
The Court has posted the argument calendar for the January sitting here.
Monday, October 31, 2005
Blog Round-up Update
10:26 PM | Liz Aloi | Comments (0) | TrackBack (0)
Blue Mass Group has this post offering one liberal's postive view on the Alito nomination. The post includes commentary from Katherine Pringle, a partner in a New York law firm who is also a progressive Democrat clerked for Judge Alito.
Law Dork has this post responding to concerns about Judge Alito's membership in the Constitution Project's Sentencing Initiative.
Judge Alito is a Princeton alum, here is the Daily Princetonian's article on his nomination.
F/K/A has this post on Alito and anti-trust law.
Here is the majority opinion and Judge Alito's Concurrence/Dissent in Planned Parenthood v. Casey, 947 F.2d 682 (3rd Cir. 1991). Thanks to FindLaw for the html versions.
Today's Filing
09:26 PM | Kevin Russell | Comments (0) | TrackBack (0)
Today we filed a brief for respondents in Bank of China v. NBM, LLC, No. 03-1559. The brief was prepared with the students of the Stanford Supreme Court Litigation Clinic. The case presents the question whether a plaintiff in a civil RICO case predicated on allegations of mail or wire fraud must prove reliance on the defendant's fraudulent misrepresentations.
Blog Round-up - Monday, October 31st.
06:20 PM | Liz Aloi | Comments (1) | TrackBack (0)
Blog Coverage of the Alito Nomination:
ACSblog has this post on his life as a litigator.
Think Progress offers this perspective with Alito's views on women's right, civil rights and other issues.
Election Law Blog has this post on why Judge Alito will not be confirmed.
The Patry Copyright Blog has this post on Alito and copyright law.
Tax Prof Blog rounds-up the press coverage of the nomination.
Law Dork comments on the fact that Bush emphasized Judge Alito's credentials in his speech this morning.
Here is Underneath Their Robes' take on the nomination.
Confirm Them, a collaborative weblog organized by RedState.org, has this post on Alito and Casey.
PrawfsBlawg has this post on how the Alito nomination will galvanize and unite both the Republican and Democratic parties, just not in the spirit of bi-partisanship.
Also on PrawfsBlawg Matt Bodie has this post on how even with Judge Alito's nomination the Miers debacle actually helps Democrats.
Here Michelle Malkin rounds-up the news and blog coverage of the nomination.
On Concurring Opinions, Dave Hoffman asks, whether or not Alito is the business friendly nominee.
The Volokh Conspiracy has this post on Alito and Planned Parenthood v. Farmer. In the opinion he concurred in a judgment striking down New Jersey's partial birth abortion statute.
Sentencing Law & Policy has this post asking whether Alito will continue with the Constitutional Project's Sentencing Initiative.
Ann Althouse has this post on Alito and the Family Medical Leave Act.UPDATE: The First Amendment Center has posted this analysis of Judge Alito's First Amendment jurisprudence.
In related news:
Roll Call has this article on the fact that the timeline for Alito's confirmation process is uncertain.
Balkinization has this post on Griswold, Roe and superprecedents.
UPDATE: On Concurring Opinions Daniel Solove responds to Balkin's piece on superprecedents.
Sentencing Law & Policy has this post on the court's orders from today.Here is the Alliance for Justice's statement on the nomination.
Here is Planned Parenthood's statement on the nomination.
Here is Justice at Stake's statement on the nomination.Finally, here is Wikipedia's bio of Judge Alito. It includes an extensive case history.
Major test for student newspapers
05:13 PM | Lyle Denniston | Comments (5) | TrackBack (0)
The Supreme Court is showing some interest in a case that tests the scope of First Amendment protection for college and university newspaper editors and reporters. On Oct. 27, the Court asked for a response to the appeal in Hosty, et al., v. Carter (docket 05-377). The petition had been scheduled for the Court's consideration this week, but now will be put off awaiting the response.
The case has attracted filings by the Student Press Law Center, the Association for Education in Journalism and Mass Communications, and other rights and education organizations.
The case reaches back to the Supreme Court's 1988 decision in Hazelwood School District v. Kuhlmeier. The Court ruled there that school officials may regulate the content of a student newspaper that is a part of the curriculum, but that decision involved a student publication at the high school level. The Court, in footnote 7, said: "We need not now decide whether the same degree of deference is approopriate with respect to school-sponsored expressive activities at the college and university level."
That comment lies behind the appeal in Hosty. The case involves two editors and a reporter of the Innovator, a student newspaper at Governors State University in University Park, Ill. After the newspaper published a series of articles that were critical of university policy and personnel decisions, the dean of student affairs, Patricia Carter, told the company that printed the newspaper not to print any editions without prior approval of a university administrator.
The students sued in federal court, claiming a violation of their First Amendment rights by what they deemed a "prior restraint" by Dean Carter. The District Court ruled that the dean could not take "adverse action against the newspaper because of its content." That Court said that the Hazelwood decision did not apply to the college level. The Seventh Circuit, in a 7-4 en banc decision, ruled that applies to subsidized student newspapers at the college level, too. The decision concluded that Dean Carter had qualified immunity to damage claims.
After the students filed a petition in the Supreme Court on Sept. 16, Dean Carter waived her right to respond. The Court last week asked for a response, to be filed by Nov. 28. This does not assure review by the Justices, but it does indicate an interest in the question at stake.
(NOTE: The Student Press Law Center has a post on Supreme Court nominee Samuel A. Alito's decision in July 2004 that "sided with students in at least one First Amendment case during his tenure as a federal appeals judge." The post, with a link to that decision, can be found here.)
No action on Hamdan, four grants, two summary reversals
10:01 AM | Lyle Denniston | Comments (3) | TrackBack (0)
The Supreme Court again Monday took no action on the case testing the constitutionality of the military tribunals set up to try terrorism suspects on war crimes charges -- Hamdan v. Rumsfeld (05-184). The Court also took no action Monday on seven new appeals seeking to challenge the Texas congressional redistricting plan that allowed the GOP to take control of that state's House delegation. The cases test the constitutionality of redistricting that is solely aimed at giving one party an advantage -- partisan gerrymandering. The state had declined to respond to those appeals.
Here is the Orders List.
The Court did agree to hear four cases, including two sequels to its landmark ruling in Crawford v. Washington, excluding out-of-court statements not subjected previously to cross-examination. The new cases involve the admission of crime victims' "excited utterances" shortly after a crime has been committed. One involved a 911 call by a victim, the other a victim's statement when officers came to her home to investigate a domestic fight. The new cases are Davis v. Washington (05-5224) and Hammon v. Indiana (05-5705). The Court agreed to hear both cases, but did not consolidate them for hearing; they will thus be heard back-to-back in a two-hour session.
The other newly granted cases involve an issue of immigration law and an issue of patent law.
The Court agreed to hear Fernandez-Vargas v. Gonzales (04-1376) to clarify the legal rights, if any, that an alien has if he or she was deported and then reenters the U.S. illegally. The specific issue is whether an alien in that situation can apply to stay in this country, if his or her re-entry came before April 1, 1997, when a new immigration law took effect taking away returnees' rights.
In the patent case, Laboratory Corp. of America v. Metabolite Laborities, Inc., et al. (04-607), the Court granted review of one of three questions presented. The case asks the Court to clarify the legal standard for patentability for a medical process. The question granted involves whether a patent may be granted on a process for detecting a scientific relationship between a medical test result and a medical condition in a patient -- in other words, whether a natural correlation between a scientific fact and a medical condition can be patented, or whether that is a phenomenon of nature that cannot be patented.
In another major patent law case, the Court asked for the views of the U.S. Solicitor General on Federal Trade Commission v. Schering-Plough (05-273). That case tests whether it is a violation of federal antitrust law for the maker of a brand-name drug to pay a potential maker of a competing generic drug to delay putting that alternative drug on the market. The Court had a similar issue before it last term, but denied review after the Justice Department said that the lower court there had gone too far in finding a "per se" violation of antitrust law in such a deal. In the Schering-Plough case, the 11th Circuit ruled that neither a rule-of-reason nor a per se mode of analysis was apprropriate in an antitrust case involving patents. There is no time limit for the Solicitor General to respond. (Justice Stephen G. Breyer is recused in the case.)
The Court issued unsigned opinions deciding summarily two pending criminal cases.
Continue reading "No action on Hamdan, four grants, two summary reversals" »
President names Alito
08:02 AM | Lyle Denniston | Comments (5) | TrackBack (0)
Moving to rebuild his conservative political coalition and hoping to shift the Supreme Court toward the Right, President Bush on Monday selected Circuit Judge Samuel A. Alito, Jr., as his nominee to succeed Justice Sandra Day O'Connor. The President's announcement and Judge Alito's remarks can be found here.
Bush, a President who has refused repeatedly to govern from the center, maintained that approach in selecting a judge who is well known as a committed conservative.
Liberal observers of the Court immediately pointed to a handful of Judge Alito's opinions on the Third Circuit as indications of just how conservative they expect him to be. Among those cited, for example, by americanprogress.org were these: 1991, supporting abortion restrictions, in the Planned Parenthood v. Casey decision that later went to the Supreme Court and led to the partial reaffirmation of Roe v. Wade; in 1997, in Bray v. Marriott Hotels, seeming to endorse a limited view of minorities' job rights; in 1991, in Nathanson v. Medical College, appearing to embrace tougher standard for asserting disability rights; in 2000, in Chittister v. Department of Community and Economic Development, finding that Congress had gone too far in passing the Family and Medical Leave Act; in 2004, in Doe v. Groody, embracing broader police search power, including strip searches; and in 2004, Dia v. Ashcroft and Ki Se Lee v. Ashcroft, taking a hard line against immigrants' rights.
Alito has a lengthy resume, filled with strong indications that he is qualified professionally. Those who know him personally, and those who have served with him and appeared before the Third Circuit, have said he is an even-tempered individual. Some expect him to attempt to become a consensus-builder on the Supreme Court, and to be less aggressive in advancing his conservative views than Justice Antonin Scalia is known to be.
The President's announcement stressed Alito's lengthy career in the law, and 15 years as an appellate judge, which marked a stark contrast with the thin list of similar accomplishments by Harriet E. Miers, the White House Counsel whose nomination to the Court was withdrawn last week after a severe assault by the President's most conservative followers.
As expected, Democrats immediately signaled a hard fight against Alito's nomination, with backup support from an array of liberal activist organizations. Senate minority leader Harry Reid, Nevada Democrat, said in a statement that this nomination "requires an especially long hard look by the Senate" because of the demand by conservatives that a "radical" to their liking be named.
In what is expected to be a primary "talking point" among Democrats, Reid said: "Justice O'Connor has been the deciding vote in key cases protecting individual rights and freedoms on a narrowly divided Court. The stakes in selecting her replacement are high."
One of the liberal groups that has long spoiled for a fight with Bush over a Supreme Court nomination, People for the American Way, promised a "massive national effort to defeat Alito's nomination" because he "would dramatically shift the balance on the Court."
Conservative organizations, intent on having an identifiably conservative replacement for O'Connor, will be mounting an equally strong national effort, to support Alito's confirmation. The American Center for Law and Justice, for example, praised the President for fulfilling a promise "of choosing nominees to the Supreme Court who are in the mold of Justices Scalia and Thomas." The ACLJ is expected to be one of the more active groups in pushing this nominee.
Alito Picked to Replace O'Connor
06:56 AM | Kevin Russell | Comments (0) | TrackBack (0)
CNN is reporting that Judge Samuel Alito will be announced as President Bush's pick to replace Justice O'Connor.
Other news organizations have the same report. Television networks have been alerted to the planned announcement by the President at 8 a.m. Eastern time, and other reporters with solid sources at the White House are giving the same name: Alito.
UPDATE: It is official. Our coverage of Judge Alito is here.
Sunday, October 30, 2005
Monday's argument in Central Virginia Community College v. Katz
04:29 PM | Rachel Kovner | Comments (0) | TrackBack (3)
On Monday, the Court will hear its second case in two years concerning whether the federal government may abrogate state sovereign immunity using its Article I bankruptcy powers. Central Virginia Community College v. Katz, No. 04-885, will be one of the Court's first significant federalism cases since the death of Chief Justice Rehnquist, who frequently cast the fifth vote to preserve state power against that of the national government. Most of the debate on Monday, however, may center on whether the Court should reach the sovereign immunity question at all. The Court declined to address abrogation after granting certiorari on it in Tennessee Student Assistance Corp. v. Hood, and the respondent is asking the Court to sidestep the issue again in Katz.
Virginia Solicitor General William E. Thro will argue for petitioners. Kim Martin Lewis of Cincinnati, Ohio, will argue for respondent. The briefs are available here.
The petitioners, four state-run schools, challenge the Sixth Circuit's holding that Congress may strip states of their sovereign immunity when it legislates under the Bankruptcy Clause. In Katz, the trustee of a bankrupt bookstore chain filed adversary proceedings under federal bankruptcy law against three community colleges and the Virginia Military Institute. The suits seek the recovery of preferential transfers -- payments that the bookstores made to the schools shortly before filing for bankruptcy -- in addition to other money that the trustee claims the schools owe to the chain. The trustee also seeks to bar any claims by the schools for debts that were incurred before the bookstores filed for bankruptcy.
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SG Reply Briefs in Three High-Profile Cases
03:30 PM | Marty Lederman | Comments (0) | TrackBack (0)
The Solicitor General has filed the Government's reply briefs in:
No. 04-1084, Gonzales v. O Centro Espirita Beneficiente Uniao do
Vegetal (to be argued this Tuesday);No. 04-1152, Rumsfeld v. FAIR;
and
No. 04-1203, United States v. Georgia
Most of the briefs in these three cases, as well as in No. 04-623, Gonzales v. Oregon, and No. 04-1144, Ayotte v. Planned Parenthood, are collected here.