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Friday, November 11, 2005
Blog Round-Up - Friday, November 11th
08:12 AM | Liz Aloi | Comments (0)
As How Appealing points out, this was a banner week for bloggers - three of them argued before the Supreme Court - two on Tuesday alone.
In non-nomination news:
Crime & Federalism has this post on why the Supreme Court should grant cert in Johnson v. Meadows. At issue in Meadows is whether the Prison Litigation Reform Act, which requires prisoners to exhaust administrative remedies before bringing a Section 1983 action against prison officials, also contains a procedural default component.
PrawfsBlawg has this post on the Graham Amendment. Passed by the Senate earlier this week, the Amendment which would strip federal courts of the jurisdiction to entertain habeas petitions by Guantanamo detainees. The post explores what this means for Hamdan v. Rumsfeld.
In Slate, Dahlia Lithwich has this article on the Court contemplating disability rights for prisoners. On NPR Nina Totenberg discusses the issue here. At issue in United States v. Georgia and Goodman v. Georgia, argued on Wednesday, is whether Title II of the Americans With Disabilities Act allows disabled prisoners in state prisons to sue for damages when their rights under the ADA have been violated.
Tony Mauro has this article on the Supreme Court being asked to hear a Voting Rights case involving felony disfranchisement, Johnson v. Bush. At issue is a challenge to Florida’s 1968 law that permanently disenfranchises more than 800,000 convicted felons in the state.
Here is an update on major events coming out of New London in response to Kelo.
Here are Orin Kerr's latest thoughts on Georgia v. Randolph. Tom Goldstein and Kerr discuss the case in the comments to the post.In nomination news, Sentencing Law & Policy has this post on a discussion between Judge Alito and Senator Feingold on the death penalty.
Hamdan, Rasul, et al., Imperiled
05:36 AM | Marty Lederman | Comments (10)
The Senate yesterday by a vote of 49-42 passed an amendment to the Defense Appropriations bill, offered by Lindsey Graham, section (d) of which would eliminate the statutory right of habeas corpus for alien detainees held by the Department of Defense at Guantanamo. This would, in effect, overrule the Supreme Court's June 2004 decision in Rasul v. Bush.
This amendment, if enacted, would by its terms appear to eliminate the jurisdiction of the courts -- and thus make meaningless the habeas petitions at issue -- in pending cases, such as, most importantly, the Hamdan case the Court decided to hear this week, and the extremely significant Rasul cases on remand, which are presently pending in the U.S. Court of Appeals for the D.C. Circuit. As Bobby Chesney explains in further detail, this would be a very momentous development, and would probably mean that most or all of the Administration's decisions on, and conduct regarding, detention, interrogation and abuse at GTMO, would be impervious to judicial review and oversight.
Senator Bingaman reportedly will offer an amendment to the Graham Amendment on Monday that would delete the withdrawal of habeas; but if that effort fails, the New York Times reports that the Graham amendment is likely to pass the House as well and to be signed by the President. Continuing coverage over at Obsidian Wings. [UPATE: Katherine and hilzoy over at OW are in the midst of a series of posts responding to Senator Graham's arguments in support of his amendment. The first of those posts includes a link to Graham's statements on the Senate floor.]
It's conceivable that some of the GTMO detainees might still have a constitutional right to habeas -- but although the Rasul decision doesn't rule out the possibility, prevailing on such a constitutional claim would probably require the Court to overrule or sharply distinguish Johnson v. Eisentrager. Also, as Steve Vladeck explains here, there are complex Federal-Courts-final-exam-like questions about the constitutionality of the Graham Amendment itself. But the fate of such a constitutional challenge would be decidedly uncertain. Therefore the Graham Amendment could be a very serious development for several of the most important pending and future cases concerning the conflicts with Al Qaeda and the Taliban.
UPDATE: Mark Kleiman asks three questions. I'll provide some tentative answers that I think the proponents of the Graham Amendment would offer, and invite others to chime in in the comments section:
1. Can this be reconciled with the provision in Article 1, Section 9, forbidding the suspension of habeas corpus except in cases of rebellion or invasion?
A: The Graham Amendment almost certainly is intended, and would be construed, to withdraw only statutory habeas jurisdiction -- the sort currently authorized by 28 U.S.C. 2241, according to Rasul -- and not any jurisdiction to hear constitutional habeas petitions. I don't believe there's any caselaw on the question of whether the Suspension Clause of Article I, Section 9 applies to withdrawals of previously conferred statutory habeas -- but I'm doubtful: Typically (but not invariably), Congress can at point B take back a statutory benefit that it had conferred at Point A, including a statutory right to invoke federal court jurisdiction.
To be sure, if I'm right, courts would continue to have jurisdiction to hear constitutionally based habeas petitions. The problem, however, is that it's not clear that aliens overseas have constitutional rights to habeas -- not, in any event, unless the Court overrules or distinguishes Eisentrager.
2. If the Congress can deny aliens access to the courts to challenge their detention, what would keep it from doing the same to citizens?A: Citizens undoubtedly do have a constitutional right to file habeas petitions in certain circumstances. Congress could eliminate that right, too, but in order to do so, it would have to find that public safety requires it, because of "Rebellion or Invasion." Article I, Section 9.
3. If the principle of court-stripping is valid, is there any Constitutional right that cannot be effectively abolished by a simple Congressional majority?
A. Congress isn't eliminating any substantive right, constitutional or otherwise. It is "only" eliminating a statutory right to file certain habeas petitions. Obviously, eliminating judicial review will have a dramatic impact on the ability of GTMO detainees to enforce any constitutional rights they may have -- but that only raises two further questions: (i) whether aliens overseas have constitutional rights (one of the principal questions in the pending Rasul/Al Odah case), and (ii) whether Congress must provide a judicial remedy for every violation of constitutional right.
[Disclosure: as of yesterday, Goldstein & Howe is now serving as co-counsel to Hamdan in the Supreme Court litigation. I am not associate with the firm -- I merely blog on their site!]
Thursday, November 10, 2005
New twist in Moussaoui case
07:26 PM | Lyle Denniston | Comments (0)
(The Supreme Court on March 21 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. After that, he pleaded guilty. This post is part of continuing reports on the case as it moves toward a trial on the government's plea for a death sentence.)
Giving Zacarias Moussaoui a partial but significant tactical victory, a federal judge in Alexandria, Va., has ruled anew that he will be able to put before the jury at his death sentencing hearing evidence that Al Qaeda operatives involved in the terrorist attacks have absolved him of a role. In an order signed Nov. 3 and released Thursday with deletions made by government security officers, U.S. District Judge Leonie M. Brinkema rejected a Justice Department argument that Moussaoui no longer needs evidence from those individuals, especially since he has pleaded guilty.
"The defendant's guilty pleas to the indictment have not reduced the relevance of these witnesses to this case," the judge found. "The Court finds that these witnesses' statements remain extremely material to this case" as Moussaoui tries to head off a death sentence, presumably as mitigating evidence.
A complex dispute over how the death penalty proceeding is to be carried out has been waged for months, but mostly behind closed doors and through sealed documents. For example, an earlier order last May 2 in which Brinkema decided to allow Al Qaeda witness evidence into the case over government objections is still under seal, as is the government's May 13 challenge to that order. Moussaoui's reply to the government challenge has been released, but only with heavy deletions. Those are the documents behind the latest order by the judge.
The Al Qaeda operatives whose statements may help the defense in the fight against the death penalty have never been officially identified, and the statements they gave -- in interrogation by U.S. authorities -- remain classified and still subject to negotiation about how the information they contained might be brought into the case. The witnesses themselves need not appear, in person or via videotape, the Fourth Circuit had ruled earlier. Brinkema, however, is still working on ways to get the interrogation results into the death penalty hearing.
Continue reading "New twist in Moussaoui case" »
Tuesday's Argument in Martin v. Franklin Capital Corp.
02:15 PM | James Darrow | Comments (0)
The Justices were significantly more reticent in Tuesday’s oral argument for Martin v. Franklin Capital Corp. than they were for the Randolph case. What questioning took place indicated the Justices’ dissatisfaction with both sides’ solutions to the question presented. The Justices’ concerns appeared to reflect a preference for the solution proposed by the Solicitor General’s amicus brief. The case, discussed in this prior post, asks the Court to decide what legal standard governs a federal district court’s discretion under 28 U.S.C. 1447(c) to “require payment of just costs and any actual expenses, including attorney fees, incurred as the result of removal” when it remands a removed case to state court.
Continue reading "Tuesday's Argument in Martin v. Franklin Capital Corp." »
"State of the Firm" Post
11:54 AM | Amy Howe | Comments (0)
We thought that we would take a moment to update our readers on what the firm is working on right now.
First, we got an opinion yesterday in one of our cases with the Stanford Clinic, No. 04-66, Tum v. Barber Foods, consolidated with IBP v. Alvarez, in which the Court held unanimously that workers must be compensated for the time spent walking to work stations from the place where they must obtain and put on mandatory safety equipment. We represented the workers in Tum.
On Tuesday, Tom argued another Clinic case, No. 04-1067, Georgia v. Randolph, in which the Court considered whether a person's Fourth Amendment rights are violated when police search a home over his express objection, but with his wife's consent. We represent the respondent, Scott Fitz Randolph.
Within the firm, we have one other argument scheduled so far this Term: No. 03-1559, Bank of China v. NBM L.L.C., which is a Clinic case as well. In that case, which Tom will argue on January 9 (and in which we represent the respondents), the Court will consider whether civil RICO plaintiffs who allege mail and wire fraud as predicate acts must prove "reasonable reliance" under 18 U.S.C. 1964(c).
Continue reading ""State of the Firm" Post" »
Yesterday's Argument in Goodman v. Georgia and U.S. v. Georgia
11:21 AM | Lauren Kofke | Comments (0)
The Court heard arguments yesterday in Goodman v. Georgia and United States v. Georgia. These consolidated cases, discussed in detail in this earlier post, present the question of whether state prisoners who suffer disability-based discrimination can bring lawsuits in federal court against states for violations of Title II of the Americans with Disabilities Act, which bars disability-based discrimination by public entities.
United States Solicitor General Paul Clement argued that the conclusion that Title II validly abrogated state sovereign immunity in the prison context followed from the Court's prior decisions in Nevada Department of Human Resources v. Hibbs and Tennessee v. Lane, and that Title II easily passed the "congruence and proportionality" standard applied by the Court to evaluate whether Congress had lawfully used its power under Section 5 of the Fourteenth Amendment to permit lawsuits against the states. Samuel Bagenstos, arguing for petitioner Tony Goodman, asserted that Title II was congruent and proportional in this context because prisons have an affirmative obligation to provide for the welfare of prisoners with disabilities, there is an extensive historical record of disability-based discrimination by states, and -- coupled with the limitations imposed by the Prison Litigation Reform Act -- Title II provides a tailored remedy for potential constitutional violations.
For further analysis of this argument, see also these recent posts by Lyle Denniston and Kevin Russell.
Continue reading "Yesterday's Argument in Goodman v. Georgia and U.S. v. Georgia" »
A look at Booker retroactivity
11:17 AM | Lyle Denniston | Comments (2)
After bypassing hundreds of cases seeking to take advantage of the Supreme Court's decision limiting federal criminal sentencing rules, the Court is now showing an interest in one key issue: whether to make that decision retroactive. A decision to make Booker v. U.S. retroactive probably would threaten to undo or at least re-open thousands of federal criminal sentences.
A case directly raising the retroactivity issue, Clark. v. U.S. (docket 05-5491), is scheduled to be considered by the Court at its Conference on Nov. 23, according to the Court's public docket. The Court has asked for, and received, a response from the Solicitor General. Eleven other pending cases on the issue have been ready for Court action, but have not been acted upon, apparently awaiting the outcome of the Clark case. Those 11, too, are scheduled for the Nov. 23 Conference, according to the docket.
A single Justice, of course, may ask for a response to a petition. According to the standard manual, Supreme Court Practice, such a request "may reflect the belief of one or more Justices that the petition is prima facie meritorious, or that it is complex or difficult enough to make presentation of the views of the respondent appropriate." That manual, of course, adds that "a request does not mean the Court will grant the petition. Often it does not."
Still, the fact that other pending cases are being treated as if they were dependent on the outcome shows a heightened level of interest in the issue presented.
In Booker, the Court ruled that the federal Sentencing Guidelines are invalid so far as they require a judge to impose an enhanced sentence, based on the judge's -- rather than the jury's -- factual findings of enhancement factors. In that respect, the decision followed the Court's line of cases (beginning with Apprendi v. New Jersey in 2000) restoring the power of juries to decide the facts that can lead to a stiffer criminal sentence.
But the Booker decision also said that the remedy for this constitutional violation was to make the Guidelines advisory, instead of mandatory.
Since that ruling, the Court has been asked repeatedly by prison inmates to decide whether the ruling should be made retroactive, applying to cases in which the conviction and sentencing had become final before the date of the Booker ruling -- January 12, 2005. The Court has not yet agreed to answer that question; in the Booker opinion itself, the Court did say that the ruling would apply to all cases "pending on direct review or not yet final."
The case of Clarence Clark, reaching the Court in a petition prepared by the inmate himself from his federal prison in Edgefield, S.C., raises the question somewhat inartfully: "When the principles of Apprendi is erroneously applied to a defendant's initial sentence after remand from a direct appeal, should the error be corrected in a motion under Title 28 U.S.C. 2255?" The body of the petition itself puts the issue plainly: "Booker should be retroactively applicable to the instant matter."
On Aug. 18, the Court sought a response from the Solicitor General after that office had waived the right. In Sol. Gen. Paul D. Clement's response, filed Oct. 18, the question was rephrased this way: "Whether petitioner was entitled to a certificate of appealability on his claim that his sentence was imposed in violation of U.S. v. Booker, 125 S.Ct. 1738 (2005)." And, throughout that response, the discussion is confined to the question of Booker retroactivity.
Clarence Clark's sentence, 360 months or 30 years (three 30-year sentences, to be served concurrently), was imposed on Feb. 25, 2002, based on enhancing factors not found by a jury.
Continue reading "A look at Booker retroactivity" »
Yesterday's Argument in Evans v. Chavis
10:21 AM | Jason Tarricone | Comments (0)
Though it would be difficult to predict with any certainty a clear winner in yesterday's argument in Evans v. Chavis, it seems respondent Chavis has an uphill battle in convincing enough justices to distinguish his case from Carey v. Saffold and find in his favor. Chavis is a California prisoner attempting to uphold the Ninth Circuit's presumption that his state habeas petition was timely because the state supreme court summarily denied the petition on the merits without commenting on whether there was an unreasonable delay. The petitioner, the warden, asks the Court to overturn the Ninth Circuit's presumption in favor of an approach that will prevent tolling of the federal statute of limitations for habeas petitions when the petition was untimely. The case is discussed in greater detail here.
Counsel for both sides sought to direct the Court towards the most logical solution to the difficult problem of how to determine the timeliness of a habeas petition when the California state courts have summarily denied the petition on the merits. Catherine Chatman, arguing for the petitioner, suggested that the Ninth Circuit should create a presumption that any state habeas petition filed more than 60 days after the court below issued its denial is untimely and thus does not toll the AEDPA statute of limitations. Chatman noted that 60 days is the deadline for direct appeals of criminal convictions, indicating that when California quantifies timeliness it chooses a 60-day deadline.
Continue reading "Yesterday's Argument in Evans v. Chavis" »
Wednesday, November 09, 2005
Blog Round-up - Wednesday, November 9th
09:05 PM | Liz Aloi | Comments (0)
In non-nomination news:
Here is the Volokh Conspiracy on Georgia v. Randolph, the Fourth Amendment case heard yesterday by the Court. The Volokh Conspiracy also has this post on a new First Amendment R.A.V.-based Case that may be on its way to the Supreme Court.
ACSBlog has this post, following up on this article, by Tony Mauro on Jay Sekulow's finances. The piece takes a searching look at Sekulow's work as a leading Supreme Court litigator on behalf of politically conservative religious causes.
Professor Bainbridge has this post on Justice Scalia's book review of Steven Smith's book, Law's Quandry.
The New York Observer has this article on the next generation of Robertses and Alitos.In nomination news:
Here is Judge Alito's senior thesis on the Italian Constitutional Court.
Sentencing Law & Policy has this post on "New insights on Alito and the post-Booker world."
On a lighter note, Underneath Their Robes has this post on recent sightings of Judge Alito.
Crescent Scentia has a series of posts on Judge Alito’s dissenting opinion in Doe v. Groody, a Fourth Amendment case. The first one can be found here.
Analysis: Another Take on U.S. v. Georgia Oral Argument
02:59 PM | Kevin Russell | Comments (0)
Having attended the argument and followed the issue in United States v. Georgia , No. 04-1203, for a while, I thought I would add my own reactions to Lyle Denniston's coverage of the argument here.
[Disclosure: I had some involvement in the United States' petition in this case when I was working for the Government].
While I agree that it is far too early -- particularly in light of the recent and imminent changes in the Court's personnel -- to declare that the court's "federalism revolution" dead, I saw few signs of a reversal from the Court's most recent trend of moderating its approach to invalidating federal statutes purporting to enforce the Fourteenth Amendment.
In particular, I found it interesting that two of the most ardent supporters of the Court’s Seminole Tribe line of cases -- Justices Kennedy and Scalia -- seemed to be suggesting in their questions that they might be willing to cut back on the Court's prior practice of wholesale invalidation of Fourteenth Amendment legislation that in their view exceeds Congress's powers.
In the past, the Court has looked at the substantive requirements of a statute or part of a statute -- be it Title I of the ADA, the Age Discrimination in Employment Act, or the Religious Freedom Restoration Act -- and if it concluded that those requirements prohibited substantially more than the Constitution, it would hold that the entire statute is invalid Fourteenth Amendment legislation unless Congress had a substantial basis for believing that the "prophylactic" aspect of the statute (the portion that prohibited more than the Constitution itself) was necessary to respond to a history of unconstitutional state conduct in the area.
Questions from both Justice Scalia and Justice Kennedy suggested that they would moderate this approach somewhat.
Continue reading "Analysis: Another Take on U.S. v. Georgia Oral Argument" »
Analysis: The ADA in prisons
12:20 PM | Lyle Denniston | Comments (0)
The death of the Supreme Court's "federalism revolution" might have been pronounced prematurely. The argument Wednesday in two appeals from Georgia, testing disabled inmates' use of the Americans with Disabilities Act to challenge prison conditions, indicated that protecting state sovereignty has not become a forgotten cause for a number of the Justices -- including, it seems, the new Chief Justice, John G. Roberts, Jr. The Eleventh Circuit has ruled that it infringes on state sovereignty to apply ADA to disabled prisoners' lawsuits for damages.
A trio of Supreme Court decisions that appeared to be at least pauses in this "revolution" have been interpreted by some Court observers as actually meaning that the end had come, or that it was near at hand. Those three, rejecting state sovereignty objections, were Nevada v. Hibbs, upholding the Family and Medical Leave Act; Tennessee v. Lane, upholding the ADA against barriers to disabled individuals' access to the courts, and Gonzales v. Raich case, upholding federal drug laws as applied to medical uses of marijuana.
But an hour-long argument Wednesday in the consolidated cases of U.S. v. Georgia (04-1203) and Goodman v. Georgia (04-1236)left a distinct impression that the Court is not yet ready to deny states' complaints when broad federal laws like ADA are used against them. At times, it seemed that four of the Justices from the state sovereignty bloc on the Court were likely to line up against at least some claims against states under ADA, and might well pick up a fifth vote from Chief Justice Roberts (replacing the vote of their longtime ally, the late Chief Justice William H. Rehnquist). At the same time, it appeared that the four Justices who have been unfriendly to state immunity claims would remain together to support ADA's full application to state prison systems.
The division, though, appeared as close in sentiment as it was in numbers. Supporters of ADA, for example, could try to draw some comfort from a number of remarks by Justice Antonin Scalia, who regularly supports state immunity claims. Some of his comments suggested that he could support applications of ADA to prison conditions, if violations were severe enough to also violate the "cruel and unusual punishment" ban in the Eighth Amendment. Those comments, though, were contradicted by other things that Scalia said during the argument.
Continue reading "Analysis: The ADA in prisons" »
Yesterday's Argument in Georgia v. Randolph
07:31 AM | Lauren Kofke | Comments (1)
It seemed the Supreme Court could go either way yesterday as it heard oral arguments in Georgia v. Randolph. This case, discussed in detail in this prior post, presents the question whether the Fourth Amendment permits police to search a home when one occupant consents but another occupant is present and objects to the search.
Georgia's Senior Assistant Attorney General Paula K. Smith argued that it was reasonable for police to search under these circumstances because people who live with others have reduced expectations of privacy compared to those who live alone. She argued that the Court should adopt the position that any person with "common authority" over the property should be able to give police consent to a search, even if another occupant is present and objects. By contrast, Goldstein & Howe's Tom Goldstein, who argued for respondent Scott Fitz Randolph, asserted that a person's Fourth Amendment protections are not reduced simply by virtue of the decision to live with others, and he advocated the rule that police should not be able to search a home when faced with an objection from a co-occupant with equivalent authority over the common property.
Continue reading "Yesterday's Argument in Georgia v. Randolph" »
Tuesday, November 08, 2005
Delay sought in first war crimes trial
08:04 PM | Lyle Denniston | Comments (0)
(On Monday, the Supreme Court agreed to hear a challenge to the military tribunals President Bush has created to try war crimes charges against foreign terrorist suspects being held at Guantanamo Bay, Cuba. That case is Hamdan v. Rumsfeld, docket 05-184. The following is one in a continuing series of reports on the effect of Supreme Court actions on legal cases involving the war on terrorism.)
Attorneys for David Matthew Hicks, the Australian accused of war crimes charges and scheduled to be the first to be prosecuted before a U.S. "military commission," on Tuesday asked a federal judge in Washington, D.C., to delay the scheduled Nov. 18 start of those proceedings.
Citing the Supreme Court's order a day earlier agreeing to rule on the commission's legality under U.S. law, the Constitution, and international law, Hicks' lawyers said in their filing: "What is critical is that the commission process not go forward while Mr. Hicks has viable claims that the military commissions should be stopped."
The Pentagon's military commission office since Sept. 20 has been planning to move forward with Hicks' case. At a scheduled preliminary hearing on Nov. 18, the tribunal is expected to hear and rule on some three-dozen pre-trial motions by the defense team. Among those are motions to dismiss and motions challenging the structure of the commission. "These motions will directly impact the nature and scope of Mr. Hicks's military commission trial," his attorneys told U.S. District Judge Colleen Kollar-Kotelly. (His case is docketed in her Court as 02-299 -- one of the continuing habeas challenges by Guantanamo detainees.)
Hicks' attorneys tried to anticipate the government's expected opposition to a stay, telling Judge Kollar-Kotelly that they expected the same kinds of arguments that the Justice Department made in an unsuccessful effort to head off Supreme Court review until after commission proceedings had ended.
Pentagon officials have leveled war crimes charges against nine Guantanamo detainees, including Hicks and Salim Ahmed Hamdan. Charges in five of those cases were announced on Monday, adding to the existing four.
Tomorrow's Argument in Goodman v. Georgia and U.S. v. Georgia
06:48 PM | Lauren Kofke | Comments (0)
Tomorrow the Court will hear arguments in the consolidated cases of Goodman v. Georgia, No. 04-1236, and United States v. Georgia, No. 04-1203. These cases ask the Court to decide whether state prisoners who suffer disability-based discrimination can bring lawsuits in federal court against states for violations of Title II of the Americans with Disabilities Act. The question comes a little more than a year after the Court held in Tennessee v. Lane that Title II abrogated state sovereign immunity from suits claiming disability-based discrimination in access to state courthouses and judicial services. This case will determine whether Lane is best viewed as an outlier or a harbinger, and it will provide one of the first glimpses into how the new Chief Justice will approach disability rights and federalism issues.
Samuel R. Bagenstos will argue for Goodman, and Solicitor General Paul D. Clement will argue for the United States. Gregory A. Castanias of Jones Day will argue for Georgia, and Gene C. Schaerr of Winston & Strawn will argue for 12 states and Puerto Rico as amici curiae supporting respondents.
The brief of the United States is here. Goodman's brief is here. The reply brief of the United States is here. Georgia's brief can be found here. The amicus briefs can be accessed at this site.
Continue reading "Tomorrow's Argument in Goodman v. Georgia and U.S. v. Georgia" »
Tomorrow's Argument in Evans v. Chavis
04:58 PM | Jason Tarricone | Comments (0)
On Wednesday the Court will hear oral arguments in Evans v. Chavis, No. 04-721, a case about the statute of limitations period for habeas petitions under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The question presented in this case is whether the Ninth Circuit may presume that a California prisoner timely filed his state habeas petition when the California Supreme Court summarily denied the petition without comment. AEDPA places a one-year statute of limitations on habeas petitions filed in federal court. This limitations period is tolled, however, while the prisoner's application for state habeas review is "pending." The Court held in Carey v. Saffold that the time between a lower state court's decision and the filing of an appeal with a higher state court, known as "interval tolling," will toll the AEDPA limitations period if the prisoner's state court petitions were not unreasonably delayed. In other words, for a state habeas petition to be considered pending – and thus not running down the prisoner's AEDPA clock – there cannot have been any unreasonable delays by the prisoner in filing his successive state habeas appeals.
Catherine Chatman will argue for the petitioner. Peter K. Stris will argue for the respondent. The briefs are available here.
Continue reading "Tomorrow's Argument in Evans v. Chavis" »
The Federalist Society's 2005 National Lawyer's Convention
03:06 PM | Heather Lloyd | Comments (0)
Here is The Federalist Society's website for their Annual National Lawyer's Coventions which will be held in Washington, DC on November 10-12.
Court weighs household privacy
01:37 PM | Lyle Denniston | Comments (1)
Obviously fascinated by a simple social question -- who controls strangers' entry into a house when husband and wife disagree on granting permission, the Supreme Court spent a lively hour Tuesday poring over competing interests affecting domestic privacy. Although the Court seemed quite troubled about giving one spouse the right to override the wishes of the other, at least when police are at the door, it also displayed some pause over writing a constitutional rule that might go too far to keep the police out.
As is often true, the flow of the Justices' questions and comments during Georgia v. Randolph (04-1067) made it seem that they were skeptical of one side's argument when the lawyer making that argument was at the podium, but then their skepticism turned in a different direction when the other side's lawyer was up, making predictions about outcome difficult.
One thing, though, emerged with crystal clarity: Justice Sandra Day O'Connor was a steadfast critic of the idea that, if both spouses are on hand when the police come to check out trouble, they can enter if the wife invites them in but the husband objects. "Is it the norm," she asked a lawyer for the state of Georgia, "that it is okay to let a stranger in against the express wishes of a spouse, or of a co-occupant?...I'm not sure that's socially acceptable." And, she commented to a federal government lawyer: "This is not a matter of the law of property. Don't we have to look at social policy and the rights of privacy?"
O'Connor's strongly worded and emotionally charged comments might be of significance, if -- as seems likely -- the Court is deeply divided on how to decide the Randolph case. But her reaction may be entirely beside the point, if a new Justice joins the Court and takes O'Connor's seat before that case is decided. That may well happen, since nominee Samuel A. Alito, Jr., could be on the Court early in the new year, and Randolph may not be decided before then. If O'Connor had held the deciding vote, the case probably would be ordered re-argued.
Continue reading "Court weighs household privacy" »
Pay issue clarified
10:05 AM | Lyle Denniston | Comments (0)
The Supreme Court ruled unanimously on Tuesday that workers are entitled to wages for the time it takes them to walk to their work stations from the place where they don required clothing and obtain necessary tools. But, the Court also ruled that the waiting time, before donning or obtaining gear, is not covered by federal wage and hour law. The issue arose in two meat-packing cases, IBP v. Alvarez (03-1238) and Tum v. Barber Foods (04-66).
The ruling cleared up a split among lower courts on the walking and waiting time questions -- questions that arise with great frequency under the Fair Labor Standards Act, which covers minimum wage and maximum hours in the workplace.
Justice John Paul Stevens, writing for the Court, said the issue of pay for walking time was controlled by the Court's 1956 decision in Steiner v. Mitchell. "The locker rooms where the special safety gear is donned and doffed are the relevant 'place of performance' of the principal activity that the employee was employed to perform," within the meaning of federal law. "Walking to that place before starting work is excluded [from federal pay law coverage, but the statutory text does not exclude walking from that place to another area within the plant immediately after the workday has commenced."
However, for the period that the Court called "pre-doffing waiting time," the decision found that not covered by wage and hour law. This time, Stevens wrote, elapses before the principal activity of donning integral and indispensable gear.
In the second of two decisions Tuesday, the Court unanimously limited the government's liability for lawsuits for failure to carry out duties required by federal law -- in this case, safety and health inspections. Reversing the Ninth Circuit, the Court ruled that the U.S. government surrenders its sovereign immunity to being sued only in situations where local law would make a private person legally liable for wrongdoing. The Court said it was reversing "a line of Ninth Circuit precedent permitting courts in certain circumstances to base a waiver [of federal immunity] simply upon a finding that local law would make a 'state or municipal entity' liable. The decision came in the case of U.S. v. Olson (04-759).
(Disclosure: the law firm of Goldstein & Howe was involved in the IBP and Tum cases. The author of this post operates independently of the law practice.)
Monday, November 07, 2005
Blog Round-up - Monday, November 7th
08:53 PM | Liz Aloi | Comments (0)
In nomination news:
Sentencing Law & Policy has this detailed post with yet more information about Alito and criminal law.
Think Progress has this post titled, "What the New York Times Won’t Tell You About Alito’s ‘Apolitical’ Supporter."
On FindLaw Mike Dorf has this column on a potential Catholic majority on the Supreme Court.
The First Amendment Center has this analysis of Judge Alito's jurisprudence and commercial speech.Here is the video from ACS's panel on the nomination of Judge Alito to the U.S. Supreme Court. The panel featured:
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 and
Bruce Fein, Bruce Fein & Associates and former Associate Deputy Attorney General in the Reagan AdministrationIn non-nomination news:
Here is a PrawfsBlawg post on the Court's decision to grant cert in Hamdan v. Rumsfeld. Eugene Volokh comments here, discussing the ramifications of a potential Roberts recusal in the case.Finally, a network of law students has begun to form against the Alito nomination. They have started a web page/blog that can be found here. They have kicked off a contest inviting students to write with questions they would ask Judge Alito in his confirmation hearings. In their own words:
What questions should Senators ask to force Judge Alito to explain his conservative viewpoints to the American people? Dahlia Lithwick has suggested a few to get us started at the end of this recent piece in Slate. E-mail us or post your questions here and we will send the best to the Judiciary Committee. If a radical conservative is going to be appointed to the Supreme Court, America deserves to know exactly what that will mean for our future.
Tomorrow's Argument: Georgia v. Randolph
02:34 PM | Lauren Kofke | Comments (2)
Police arrive at a home shared by a husband and wife who are in the midst of an argument. They don't have a warrant or probable cause to search the house. They ask the husband for his consent to a search, and he says no. They ask the owners of the house for their consent to a search, and they both say no. Finally, police turn to the wife and ask for her consent to search the house. She says yes. Does it violate the Fourth Amendment for police to search a home on the basis of consent in these circumstances? That is the question before the Court tomorrow in Georgia v. Randolph, No. 04-1067.
Georgia Senior Assistant Attorney General Paula K. Smith will argue for petitioner Georgia. Deputy Solicitor General Michael R. Dreeben will argue for the United States as amicus curiae supporting petitioner. Tom Goldstein from Goldstein & Howe will argue for respondent Scott Fitz Randolph.
The party briefs are available here. The brief of the United States is available here. The National Association of Criminal Defense Lawyers amicus brief in support of Randolph is available here.
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Tomorrow's Argument in Martin v. Franklin Capital Corp.
02:29 PM | James Darrow | Comments (3)
First up tomorrow is Martin v. Franklin Capital Corp., No. 04-1140. The plaintiffs (petitioners) in Martin won a jurisdictional challenge to defendants’ (respondents’) removal of their case to federal court, and now they want the respondents to pay all of the attorney’s fees, expenses, and costs ("fees”) they spent litigating in federal court. The district court declined to require respondents to pay the fees, and the Tenth Circuit affirmed. The Court granted certiorari to decide what standard governs a federal district court’s discretion under 28 U.S.C. 1447(c) to “require payment of just costs and any actual expenses, including attorney fees, incurred as the result of removal” when it remands a removed case to state court.
Sam Heldman will argue the case for petitioners; Jan Chilton will argue on behalf of respondents. Find the briefs here.
Gerald T. and Juana M. Martin ("the Martins”) represent a putative class of individuals who sued Century-National Insurance Co. and Franklin Capital Co. in New Mexico state court, alleging that the companies had illegally overcharged them for certain car financing and insurance contracts. The companies then removed the case to federal court. During oral arguments on the defendant-respondents’ motion to dismiss, the court expressed concern about whether the amount in controversy in the case was sufficient to establish diversity jurisdiction. Taking the hint, the Martins moved to remand. The defendant-respondents countered that the amount in controversy met the statutory minimum because (inter alia) the alleged amounts of (a) punitive damages and (b) attorney’s fees independently came to more than $50,000 when aggregated for the putative class. The district court agreed, denied the remand motion, denied class certification, and granted the motion to dismiss.
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Court to rule on military tribunals
10:02 AM | Lyle Denniston | Comments (16)
The Supreme Court on Monday agreed to rule on the constitutionality of the special military tribunals President Bush created to try war crimes charges against terrorist suspects who are foreign nationals -- a major test of presidential wartime authority. The action demonstrated that the Court has a keen interest in basic legal questions surrounding the war on terrorism, and, in particular, questions of presidential authority to deal with those who are rounded up as "enemy combatants."
Here is the Order List.
The Court, returning to a sensitive issue in U.S. relations with foreign governments, also agreed on Monday to decide whether state courts in tne U.S. may refuse to hear claims by foreign nationals of violations of the Vienna Convention on consular rights. At issue is a treaty that assures foreign citizens who are arrested as criminal suspects a right to meet with a consular officer from their home country. That right has been routinely violated in state criminal cases in the U.S., and the World Court has twice ruled that the U.S. must take action to remedy those violations. The Supreme Court had agreed to rule on that issue last Term, but disposed of that case (Medellin v. Dretke) without deciding the questions. The issue arises anew in two cases -- Sanchez-Llamas v. Oregon (04-10566) and Bustillo v. Johnson (05-51). They were consolidated for one hour of argument.
In a third grant, the Court took on a case testing the treatment in bankruptcy cases of workmen's compensation. At issue is whether a claim for unpaid premiums due on a workmen's compensation liability insurance policy is entitled to priority-debt status. The issue has divided the lower courts. (Howard Delivery Service v. Zurich American Insurance Co., 05-128.)
In the war tribunals case, Hamdan v. Rumsfeld (05-184), Chief Justice John G. Roberts disqualified himself from the order granting review; he had sat on the D.C. Circuit panel that upheld the so-called "military commissions." He had told the Senate Judiciary Committee when he was nominated that he would recuse himself from cases in which he had participated as a judge on the D.C. Circuit.
The Court's agreement to hear the case was a bit of a surprise. The Justices had considered the case at three previous Conferences, and had taken no action, leading to speculation that review would be denied. But the Court, in a simple order Monday, agreed to hear the case, indicating that it would be decided during the Court's current Term -- by eight Justices. The order noted the Chief Justice's recusal.
The case, along with the two others granted on Monday, is expected to be heard in March. By that time, it appears likely that the Supreme Court will have a new Justice, replacing retiring Justice Sandra Day O'Connor. If nominee Samuel A. Alito, Jr., is confirmed by the Senate early in the year, as is now expected, he could be on the Court in time to take part in deciding the Hamdan case. Should the Court divide 4-4 in the decision, that would uphold the D.C. Circuit, but would not finally resolve the issues of constitutional and international law raised against the military commissions. It would mean, however, that the commission trials could then go forward. The Pentagon is not expected to open any such trials until after the Supreme Court decides the Hamdan case. The trials have been held off because of the legal uncertainty surrounding them.
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Laurence Tribe on Alito's World
09:18 AM | Marty Lederman | Comments (13)
Alito's World
By Laurence H. Tribe | November 7, 2005
(Reprinted with the author's permission. Originally appeared as an Op-Ed in the Boston Globe, November 7, 2005.)
You can't help doing a double-take when you read Judge Samuel Alito's opinion holding Congress powerless to compel states to provide family medical leave to their employees. It was a position the Supreme Court rejected in a nearly identical case when it held three years later that the 14th Amendment confers such power by authorizing Congress to enforce each state's duty to accord "equal protection of the laws."
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Sunday, November 06, 2005
Weekend Blog Round-Up
10:17 PM | Liz Aloi | Comments (1)
In nomination news:
Concurring Opinions asks, "Is Alito Strongly Pro-Privacy?"
The Legal Ethics Forum has this post on "Judge Alito and the Vanguard Recusal Question."
The Brady Campaign released this statement on Alito and a ban on fully automatic machine guns. The Volokh Conspiracy responds here.
Black Prof Blog has another post on Alito and civil rights.In non-nomination news:
PropertyProf Blog has this post on "Using Superprecedent to Save the Commerce Clause."
The Legal Theory Bookworm recommends "What Roe V. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision," edited by Jack M. Balkin.
The Volokh Conspiracy has this post on Georgia v. Randolph, No. 04-1067, a Fourth Amendment case involving third-party consent to search a home. The Court will hear oral arguments in the case on Tuesday morning.
Sentencing Law and Policy has this post with links to criminal justice-related reviews of the 2004-2005 Supreme Court term.