We're working on redirecting our old movabletype feed to the new one, but for now, updating the feed will make sure you don't miss another post.

Ordinarily, the Court's action would mean that case of the Yemeni national would return to the D.C. Circuit Court for review of a pending appeal he has there. However, the appeals court has put his case on hold pending the Supreme Court's review of the Boumediene/Al Odah cases.

The war crimes charges against Hamdan have been dismissed by the presiding judge of a military commission that was to try him. However, that dismissal is likely to be overturned because of a new ruling by the U.S. Court of Military Commission Review in another case, involving a Canadian in detention, Omar Ahmed Khadr. The CMCR ruled last month that military judges have the authority to make the factual findings to justify bringing a detainee before a commission for trial. Hamdan and Khadr are the only two prisoners at Guantanamo who have been charged and whose legal status is still open. Some 80 others at Guantanamo may face war crimes charges later, officials have said, although a recent Wall Street Journal article reported that the entire prosecution machinery is in disarray because of disagreements among top military officers.

Since neither Hamdan nor Khadr has gone to trial, their challenges have been to their detention, not their potential trials, although both contend that the entire process of the military commission system is unconstitutionally flawed. Hamdan won a case in the Supreme Court in July 2006, when the Court struck down the military commission system fashioned by otfrt og President Bush. Since then, Congress passed the Military Commissions Act of 2006, reviving the commission system and moving to strip federal courts of their authority to hear detainees' habeas cases.

Hamdan returned to U.S. District Court with a new habeas challenge to his detention, but that was dismissed by a federal judge last December. Hamdan then filed an appeal to the D.C. Circuit Court, asking for immediate en banc review, and simultaneously asked the Supreme Court (in 06-1169) to take his case before the D.C. Circuit Court could act on it. The Court turned down that appeal on April 30, over the dissents of three Justices.

Hamdan did not file a petition for rehearing of that denial until the time for doing so had passed, but his lawyers then filed a request for permission to file a new petition for rehearing. At the same time, they also filed a new petition for review before judgment by the Circuit Court (07-15).
Those were the matters the Court disposed of in Monday's orders. There were no noted dissents by any of the Justices.

On July 25, while those pleas were pending in the Supreme Court, the D.C. Circuit ordered that Hamdan's petition for hearing en banc "be deferred pending further order of the court." Both sides were then ordered to file motions to govern further proceedings within 30 days after the Supreme Court ruled in Boumediene and Al Odah.

The Supreme Court is expected to hear those cases in December.

The Supreme Court, in another detainee case, gave lawyers for Abdul Hamid Al-Ghizzawi permission to file a petition under seal, but refused to expedite its consideration of the petition (07M5). His detention case was one of two that have become highly visible examples of what are called "do-overs" in the Pentagon system for processing Guantanamo detainees. Detainee lawyers have complained that, if a military panel finds a detainee not to be an enemy combatant, higher officials order a new review to lay a basis for continued detention.

Among 85 pages of orders on pending cases, the Court asked the U.S. Soliicitor General for the federal government's views on four cases:
** 06-1398, AT&T Pension Benefit Plan v. Call, an ERISA benefits case involving a split in the Circuit Courts over the question of deference to a benefit plan administrator's interpretation of the plan.
** 06-1458, Geddes v. United Staffing Alliance, another ERISA case involving a claimed right to medical benefits.
** 06-1505, Meacham v. Knolls Atomic Power Laboratory, an Age Discrimination in Employment Act case testing who has the burden of showing that a challenged employment action was done for reasons other than age.
** 06-1595, Crawford v. Metro Nashville-Davidson County, testing whether the anti-retaliation protection under Title VII of civil rights law protecs a worker from being dismissed because she cooperated with her employer's internal investigation of sexual harrasment.

The Court assured that full review would go forward in a granted case involving federal preemption of claims under state law from harms due to medical devices. It granted subsitution for a deceased petitioner. In Riegel v. Medtronic (06-179), over the dissents of Chief Justice John G. Roberts, Jr., and Justice Antonin Scalia, the Court allowed Donna Riegel to be substituted for her late husband, Charles R. Riegel. (Mrs. Riegel is also a petitioner on her own behalf, but sought to have her role in managing the estate take the place of her husband's claim.) Roberts and Scalia said the motion should be denied because it was filed more than six months after the death occurred, but the Court's order said that "the exercise of this Court's power to grant an untimely motion to substitute a party is not unprecedented." Citing a standard manual on Supreme Court practice, the Court added that its procedural rules "adopted for the orderly transaction of its business are not jurisdictional and can be relaxed by the Court in the exercise of its discretion."

In an unusual statement issued as the Court denied review of a Virginia death penalty case, two Justices -- John Paul Stevens, joined by Ruth Bader Ginsburg -- urged the Court to adopt "a routine practice of staying all executions scheduled in advance of the completion of our review of the denial of a capital defendant's first application for a federal writ of habeas corpus. Such a practice would be faithful to the distinction between first and successive habeas petitions recognized by Congress in the Antiterrorism and Effective Death Penalty Act and would accord death row inmates the same, rather than lesser, procedural safeguards as ordinary litigants. It is a pracftice that Justice Ginsburg and I have followed in the past and one that I hope a majority of the Court will eventually endorse."

Their statement in response to the denial of review in Emmett v. Kelly (06-11622) noted that they did not dissent from the Court's action. Christopher Scott Emmett had raised a challenge to the adequacy of his defense lawyer at the sentencing phase of his case. Stevens noted that the petition had been filed June 1, indicating that it would be considered at the Sept. 24 Conference. But, Stevens said, Virginia set an execution date of June 13, "making it impossible for us to consider the merits of the petition in the normal course, and making it necessary for the Court to rule on petitioner's last-minute application for a stay of execution" (which was denied). Virginia's governor gave the C0urt a chance to consider the petition by granting Emmett a reprieve, Stevens said.

Most of the Court's orders on Monday involved denials of the vast majority of the 1,995 petitions scheduled for consideration at the Sept. 24 Conference. Perhaps the most notable denial of review came in the case of R.J. Reynolds Tobacco v. Engle (06-1545), asking the Court to clarify its 1992 ruling that federal law bars claims of a failure to warn smokers about health hazards in the industry's post-1969 advertising or promotion campaigns. The Engle case at one time involved a punitive damages award of $145 billion against the cigarette makers, but that was thrown out by the Florida Supreme Court. At this stage, the appeal by the companies sought to have the Supreme Court shape the scope of review in individual punitive damages cases that will unfold in the future.

Both sides in the hotly disputed lawsuit over the D.C. gun possession law have understood the Circuit Court's March 9 ruling as having struck down not only the ban on possession of any handgun, but also the disassemble-or-lock provision of the law both as it applied to handguns and to rifles and shotguns.

When D.C. opponents of the city gun law returned to the Circuit Court on Sept. 12, they interpreted the Court's decision as having struck down Code Sec. 7-2502.07 -- the disassemble-or-lock section -- because that provision "bans the home possession of all functional firearms -- handguns, rifles and shotguns." Saying that the D.C. government had told the Supreme Court in its petition (07-290) that the section did not reach rifles and shotguns that were used for self-defense, the opponents read that as a concession that the section was invalid, and could not be enforced. Thus, the request urged the Circuit Court to block that provision as it applied to rifles and shotguns, giving city residents acccess in their homes to guns that would work. The city government opposed that request, saying it made no such concession.

The Circuit Court, in its Tuesday order, commented that "our opinion does not specifically address the constitutionality of that statute as it applies to shotguns and rifles," because it had found that only one D.C. resident -- Dick Heller -- was entitled to bring the lawsuit, and he had "complained solely about the restrictions on ownership and use of a handgun."

The order, signed by Senior Judge Laurence H. Silberman, the author of the March 9 ruling, and Circuit Judge Thomas Griffifth, who joined Silberman, went on to say that the D.C. government had advanced in the Supreme Court an argument "not presented in our court" -- that the District's ban on handguns can be justified so long as rifles and shotguns can be utilized in the home for self protection." (In fact, the local government's petition states that the question raised in its appeal this way: "Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns." Phrased that way, the question appeared to narrow the claim the District was making for its law, suggesting it would be valid as long as long guns remained available.)

If the Supreme Court reaches that argument, and upholds the handgun ban only because "long guns were permitted," the Circuit Court said in its order, then the Justices would have to confront the question of whether the disassemble-or-lock provision would have to be struck down because a disassembled or locked rifle or shotgun might be "virtually useless to face an unexpected threat" in the home. A footnote continued with a further analysis of the characteristics of rifles and shotguns when used in tight quarters.

Circuit Judge Karen LeCraft Henderson, who had dissented from the March 9 ruling, went along with denying the gun rights advocates' request to bar the assemble-and-lock provision. but indicated she did not join the remainder of the order with its commentary.

(The Circuit Court order can be found by those with PACER accounts on the Court's website under docket 04-7041, Parker v. District of Columbia, entry dated Sept. 25, 2007.)

With the help of Howard Bashman of How Appealing and Eugene Volokh of Volokh Conspiracy, we can now provide the full text of the order:

""BEFORE Henderson [Footnote 1] and Griffith, Circuit Judges, and Wilberman, Senior Circuit Judge.

"ORDER
"Upon consideration of appellants' motion to lift stay of mandate and the opposition thereto, it is
"ORDERED that appellalnts' motion to lift (partially) our stay of mandate be denied.

"Appellants’ contention is that appellees’ petition for certiorari concedes the unconstitutionality of D.C. Code Section 7-2507.02 as it requires the disassembling of shotguns and rifles or the placement of trigger locks, making such arms practically useless for self defense [Footnote 2]. Therefore, appellants argue, our mandate holding this provision unconstitutional should issue. But our opinion does not specifically address the constitutionality of that statute as it applies to shotguns and rifles because the only plaintiff we concluded had standing under our precedent was Dick Heller, who complained solely about the restrictions on ownership and use of a handgun. Parker, 478 F.3d 370, 373-76 (D.C. Cir. 2007). At least one other plaintiff (Gillian St. Lawrence) did address Section 7-2507.02 as it applied to shotguns but she did not have the same injury as Heller -– the denial of a license. Id. To be sure, as our opinion suggested, the Supreme Court may well disagree with Seegars, 396 F.3d 1248 (D.C. Cir. 2005), and conclude that all the plaintiffs have standing.

"In any event, the District’s petition for certiorari makes an alternative argument not presented in our court -– that the District’s ban on handguns can be justified so long as rifles and shotguns can be utilized in the home for self protection. The Supreme Court, if it should reach that argument -– and conclude it was constitutional to ban handguns in the home if long guns were permitted -– would necessarily be obliged to consider the impact of Section 7-2507.02, since a disassembly or trigger lock requirement might render a shotgun or rifle virtually useless to face an unexpected threat.[Footnote 3]

"[Footnote 1] Judge Henderson concurs in the denial of the motion.
"[Foonote 2] Appellants' motion does not mention the other provisions we held unconstitutional with regard to handgun possession -- D.C. Code Sections 22-4504 and 22-4506 -- nor does the District in its opposition.
"[Foonote 3] The District of Columbia Council never contemplated the specific use of a rifle or shotgun in that situation. Had the Council contemplated such, it would, perforce, have had to consider the danger posed by a rifle’s range and a shotgun’s pellet spread, as well as the difficulty one would have handling such long weapons in enclosed spaces -– particularly by smaller individuals. Appellees’ brief at 17 did suggest that any gun (including a pre-1976 legal handgun) might be used in self defense in a “true emergency,” otherwise described as “genuine imminent danger.” But the Code does not allow for such, nor did the District ever specify how one would define the circumstances under which one could assemble or unlock a rifle or shotgun to face a “true emergency” (professionals might well be amused at such a hypothetical). The truth is that neither the Code nor the District, in this litigation, ever suggested that a rifle or shotgun, as opposed to a handgun, could be legally employed in self defense."

The Supreme Court on Tuesday agreed to consider whether intent to make a return of capital is required for funds diverted and distributed to a shareholder of a corporation without earnings and profits to qualify as non-taxable return of capital in the context of a criminal trial for tax evasion.

In Boulware, the founder, chairman, and president of Hawaiian Isles Enterprises (HIE), a closely held corporation selling tobacco products, coffee, bottled water, and other goods, was charged with tax evasion and tax fraud in connection with his failure to report funds diverted from HIE. Boulware was convicted on multiple counts, but the Ninth Circuit reversed on the ground that the trial court erroneously excluded evidence of a Hawaii state court’s adjudication of property rights of some of the diverted funds from HIE. The taxpayer was also the majority shareholder of HIE; the other shareholder was a trust for the benefit of his son.

On retrial, Boulware was convicted on all counts. In his second appeal to the Ninth Circuit, Boulware argued, in part, that the funds he received from HIE were non-taxable returns of capital rather than income. The Ninth Circuit held that Boulware did not provide sufficient evidence that the funds were intended as a return of capital at the time of distribution to sustain a return-of-capital defense under the Ninth Circuit case, U.S. v. Miller, 545 F.2d 1204 (1976). In Miller, the Ninth Circuit ruled that where the government establishes a prima facie case that a defendant received and failed to report corporate funds, the burden shifts to the defendant to establish that the funds were intended to be a non-taxable return of capital.

In its opposition brief, the government argued that this case was not an appropriate vehicle for resolving the circuit conflict as, in the government’s view, Boulware would likely not prevail under the Second Circuit’s approach because the diversion of funds from HIE to Boulware was unlawful. The D’Agostino case explicitly carves out unlawful distributions from its holding.

The Supreme Court granted Boulware’s petition, but limited its review to the question of “[w]hether the diversion of corporate funds to a shareholder of a corporation without earnings and profits automatically qualifies as a non-taxable return of capital up to the shareholder’s stock basis…even if the diversion was not intended as a return of capital.” This formulation of the question mirrors that of the government’s brief, and is a departure from the question presented in Boulware’s petition.

The Petitioner’s brief and the reply brief are due Monday, November 5 and Monday, December 3, respectively. The case is expected to be argued in January.

The case – one of 17 granted on Tuesday – involves Samson Dada, a Nigerian citizen who entered the country in mid-1998 on temporary visa for artists and entertainers. Dada overstayed the visa but married a U.S. citizen the following year, making him eligible for permanent residence under INA section 245(a). Dada’s wife fail to provide required documentation when filing his green card petition, however, and in 2004 the government found Dada removable. An immigration judge granted Dada’s request for voluntary departure, which began running once the Board of Immigration Appeals affirmed the removal order in November 2005. Before the window to leave the country closed, Dada filed a motion to reopen his removal proceedings. In so doing, he asked that the voluntary departure order be withdrawn, to avoid the 10-year bar on future re-entry that accompanies a failure to leave the country within the allotted time. The BIA denied both requests, and Dada appealed to the Fifth Circuit. At the time of Dada’s appeal, the Third, Eighth and Ninth Circuits had held the filing a motion to reopen automatically tolled the voluntary departure window. (The Eleventh Circuit reached the same conclusion after the appeal.) The Fifth Circuit held otherwise and, because Dada’s voluntary departure period had expired, found him subject to the 10-year bar on future re-entry.

Dada’s original complaint was filed against former Attorney General Alberto Gonzalez. In Tuesday’s order the Court listed the case as Dada v. Keisler, reflecting the name of Acting Attorney General Peter Keisler. The case is expected to be argued in January.

Bottom side briefs are due today in John R. Sand & Gravel Company v. United States (06-1164).

Arthur Hellman (University of Pittsburgh School of Law) has posted on SSRN a new article entitled "The Regulation of Judicial Ethics in the Federal System: A Peek Behind Closed Doors," see here. Although the article talks more generally about ethics for federal judges, there are two components of it that have a substantial Supreme Court focus. First, the article discusses the recent controversies over the decisions of Justices Scalia (in the Cheney case) and Breyer (Booker and Fanfan) not to recuse themselves. Second, the article includes a lengthy discussion of a committee chaired by Justice Breyer that considered the operation of a 1980 Act setting forth the procedures for handling complaints against federal judges and taking action in cases involving judicial misconduct. Hellman always does great work.

Chris Bonneau (University of Pittsburgh), Thomas Hammond (Michigan State), Forrest Maltzman (George Washington University), and Paul Wahlbeck (George Washington University) have just posted on SSRN a new article entitled "Agenda Control, the Median Justice, and the Majority Opinion on the U.S. Supreme Court," see here. Although this paper relies on data from the Burger Court (which is slightly less interesting and germane than Rehnquist Court data), the authors challenge the hypothesis that the median justice alone controls the content of majority opinions. Although it may seem intuitive, the paper concludes empirically that the writer of the majority opinion in fact exercises more influence than the median Justice in determining the content of majority opinions. I really like this paper because it is short, accessible for non-quantitative folks, and has quite a bit of interesting new information. The final paragraph in the paper about the impact of judicial appointments is especially thought-provoking.

UPDATE: The Justice Department application described here can be found at this link.)

The Justice Department has notified the Supreme Court that it will be filing an appeal seeking to restore the government's power to penalize licensed broadcasters for airing "fleeting expletives" -- especially, "the F-Word," even if it is uttered only a single time during a broadcast and even if it is used to provide emphasis or exaggeration rather than to describe a sex act. U.S. Solicitor General Paul D. Clement disclosed that plan in an application filed Monday, seeking more time to prepare the petition (Application 07A155). The deadline for the filing is now set at Nov. 1, under an order issued on Monday by Justice Ruth Bader Ginsburg.

At issue in the appeal will be a 2-1 decision by the Second Circuit Court on June 4, finding a switch in policy by the Federal Communications Commission dating to 2003 to be arbitrary, but giving the FCC a chance to provide an "adequate explanation" for the shift. The majority, however, opined that it was doubtful that the FCC could find a rationale that would "adequately respond to the constitutional and statutory challenges raised by" broadcasters, but nevertheless said it should have the chance to try. "We can decide this case on this narrow ground," the majority said.

The policy, challenged in the Circuit Court by Fox Television Stations, Inc., and other broadcasters, is sometimes referred to as the "Golden Globes" policy because it was first pronounced in the FCC's reaction to a comment by a popular musician, Bono, when NBC-TV broadcast live the Golden Globe Awards on Jan. 19, 2003. Accepting an award, Bono suggested that the event was "really, really...brilliant" -- with the ellipsis here filled by a variant of "the F-Word" to say just how "brilliant" he thought it was.

That policy replaced a policy in place for nearly three decades before that, sometimes referred to as the "fleeting expletives" policy. That now-discarded approach by the FCC said the agency would not treat as indecent, and thus not a violation of federal law, if a "patently offensive" word such as "the F-Word" was uttered on the air in only a "fleeting and isolated" way. That was the policy that had gradually developed at the Commission following the Supreme Court's 1978 decision in FCC v. Pacifica Foundation, ruling that the FCC did have the authority under federal law to regulate broadcast speech that was "indecent" but not obscene. Later in 1978, the FCC issued an opinion saying that it was "the repetitive occurrence" of indecent words that would run afoul of federal law.

In its switch to the "Golden Globes" policy, the Commission found that any use of any variant of "the F-Word" necessarily had sexual connotations, so fell within the scope of indecency when defined as "patently offensive" through descriptions on the air of "sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience." Said the FCC at that time: "The 'F-Word' is one of the most vulgar, graphic, and explicit descriptions of sexual activity in the English language." It cast aside all prior rulings based on the "fleeting expletive" approach.

Although broadcasters asked the agency to reconsider its new policy, the agency took no action on those requests, but continued to apply the new approach to broadcasts that contained even one use of the prohibited word. It was these later applications of the single-use ban that led to the case in the Second Circuit.

Specifically, the Circuit Court's ruling in Fox Television Stations, Inc., et al., v. FCC, involved Commission findings of indecent and profane utterances in two instances. Both involved Fox's broadcast of the Billboard Music Awards, in 2002 and 2003. In 2002, the singer/actress Cher used the prohibited word in an acceptance speech. In 2003, actress Nicole Richie, who was helping to present the awards, used a variant of it, along with a reference to "cow -----." In response to Ms Richie's use of the epithet, the FCC ruled that any use on the air of that word, too, would be unlawful.

In an opinion written by Circuit Judge Rosemary S. Pooler and joined by Circuit Judge Peter W. Hall (with Senior Circuit Judge Pierre N. Leval in dissent), the Circuit Court noted that the broadcasters had raised a wide array of challenges to the "Golden Globes" approach. But, while confining its ruling to the single question of whether the policy had been adequately explained, the majority said it was ruling on the present validity of the entire policy, not just its application to the two Fox broadcasts. That policy, it said, lays down "a generic standard" that is itself subject to judicial review.

Accepting the broadcasters' contention that the FCC had made "a 180-degree turn," an "about-face" without justifying it sufficiently, the Circuit Court majority said the Commission had a legal obligation to explain why the original reasons behind the former "fleeting expletives" policy were no longer controlling.

The FCC had argued that it was switching because "an automatic exemption for 'isolated or fleeting' expletives unfairly forces viewers (including children)" to be subjected to the first utterance. That, the Circuit Court said, is not a "reasoned basis" for switching.

Since the FCC does not enforce its policy against news broadcasts, nor would it apply to a broadcast or oral argument in this case, or even to a replay of the two clips at issue to provide background information about the case, nor would it enforce the policy against such movies as "Saving Private Ryan" where the expletive is a part of the artistic character of the film, the Circuit Court said, it hardly suffices to justify the flat ban in other contexts on a theory that it was sparing the public and children from mere exposure to the first utterance of the banned words.

The majority found no adequate explanation in several other rationales that it said the FCC had discussed but only in "passing reference."

Along the way, the majority noted that President Bush has publicly used one of the banned words, and Vice President Cheney another.

"The FCC's decision," it summed up, "is devoid of any evidence that suggests a fleeting expletive is harmful, let alone establishes that this harm is serious enough to warrant government regulation."

In a section of the majority opinion titled "Constitutional Challenges," which Judge Pooler's opinion frankly labeled as "dicta," the Circuit Court laid out its skepticism that the FCC can come up with a rationale sufficient to pass constitutional muster. It said it expected further litigation, and raised the prospect that the FCC, on remand, would merely provide more reasoning but not change its policy, so it offered its observations "in the interest of judicial economy." "We question whether the FCC's indecency test can survive First Amendment scrutiny," it commented.

In returning the case to the FCC, the Circuit Court also suggested that it attempt a further explanation of its separate finding that use of the banned words was "profane" under the law, as well as "indecent." The two Fox broadcasts were ruled "profane," too, by the FCC.

Judge Leval, in dissent, said he found the FCC's explanation sufficient, and commented that, if he were required to choose between the FCC's prediction that a relaxation of its ban would lead to a flood of expletives on the airwaves or the Circuit Court majority's prediction that that would not happen, "I would bet my money on the agency's prediction." He cited the growing usage in daily discourse of the banned words, and said that the cable TV channels "make liberal use of their freedom to fill programming with such expletives."

The dissenting judge used only a brief footnote to dismiss the majority's essay on the strength of the broadcasters' First Amendment challenges.

In December 2004, petitioner Homero Gonzalez was indicted on conspiracy and drug charges arising from his role in a major drug-trafficking operation. In January 2005, petitioner and his attorney were in court to begin jury selection for his trial. Before jury selection began, a magistrate judge asked the prosecutor and petitioner’s attorney to “approach the bench.” She then asked the two attorneys whether the parties would consent to having her preside over the jury selection; both attorneys agreed. The record shows that at no time did Gonzalez – who does not speak English – consent to have a non-Article III judge preside over jury selection; it also shows that Gonzalez was never informed by the judge that his attorney had consented.

On appeal, Gonzalez – now represented by new counsel – argued that “the magistrate judge’s presiding over jury selection was improper because the record did not reflect [his] knowing and voluntary consent” to the substitution. The Fifth Circuit acknowledged an Eleventh Circuit decision, United States v. Maragh, which held that the “‘defendant’s personal consent is required for the delegation of jury selection to be constitutionally valid,’” but it ultimately agreed with several other circuits that personal consent is not required. Certain rights are so fundamental that they must be waived by the defendant personally, the Fifth Circuit explained, but Gonzalez had not provided any proof that “the right to have an Article III judge conduct voir dire” was one of them.

Opposing certiorari, the government first emphasized that “[n]othing in Peretz suggests that a defendant must state his express personal consent to a magistrate judge’s supervision of voir dire”; indeed, the government argued, “the Court’s opinion indicates that defense counsel’s consent on his client’s behalf if sufficient.” The government acknowledged that the courts of appeals were divided on the issue of consent, but it contended that certiorari was not warranted because the conflict is quite one-sided: only one court – the Eleventh Circuit in Maragh – has reached a contrary result, and that decision is erroneous. In any event, the government concluded, the case would be a bad vehicle to review the question presented because Gonzalez did not object in the district court; his case should thus be reviewed only for plain error, and he cannot show any prejudice from the magistrate’s supervision of voir dire.

On Tuesday, the Court announced that it had granted certiorari in Gonzalez v. US, limited to two questions: “1) Must a federal criminal defendant explicitly and personally waive his right to have an Article III judge preside over voir dire? 2) Did the court of appeals err when it reviewed petitioner’s objection for plain error?”

The case will likely be heard in either January or February.

A review of certiorari-stage amicus curiae briefs (i.e., amicus briefs filed at the petition stage, before the Justices grant cert.) filed between May 19, 2004 and August 15, 2007 shows that the Chamber of Commerce filed 55 such briefs, about 17 per year. Over the three-and-a-quarter years studied, 986 parties filed cert.-stage amicus briefs, averaging 1.666 briefs per party. Of those 986 amici, 259 filed 2 or more, and 118 filed 3 or more. Not every party was included in the count, as we were most interested in the impact of private groups and advocacy organizations pushing cert. petitions; those excluded from the count are listed at the bottom of this post.

The top sixteen parties each filed 8 or more briefs, and a list of those groups, along with the success rates of the cases in which they filed (up to Tuesday's orders list), is here. The success rate is calculated as a percentage of the party-supported petitions that were either granted or denied. (Note that only amicus briefs in support of a petition are considered here; the Washington Legal Foundation filed as an amicus in opposition to the petition in Padilla v. Hanft (05-533) and was not counted in that instance.) Petitions supported by these top sixteen groups included many of the Court's most high-profile cases over the last few years, such as US v. Booker, MGM v. Grokster, PICS v. Seattle Schools, and Rumsfeld v. FAIR.

Notably, the list of top amici is dominated by pro-business and anti-regulatory groups—such groups hold over half the slots in the top sixteen. The prevalence of these groups may result from their having an enhanced financial ability to pay for many cert.-stage briefs as compared to other groups; the businesses and industries they comprise and represent may also be more eager to jump in at the petition stage when their bottom lines are at stake (as opposed to an ideological group); and it's possible, too, that these groups want to get as many cases as they can before a Supreme Court that is being increasingly viewed as business-friendly (e.g., see here). As a corollary, the absence of liberal or left-leaning groups is striking (with the National Association of Criminal Defense Lawyers as a narrowly-focused exception). The American Civil Liberties Union, for instance, tallied just two cert.-stage amicus briefs during this time.

A full quarter of the sweet sixteen are regionally-named legal foundations. Ranking third, fourth, seventh, and eighth overall in numbers of cert.-stage amicus briefs filed, the Washington Legal Foundation filed 26 briefs, the Pacific Legal Foundation filed 25, the New England Legal Foundation filed 11, and the Mountain States Legal Foundation filed 10. Their success rates were relatively high, ranging from about 18% (New England) to 39% (Washington). The Washington Legal Foundation, in fact, edged out the National Association of Home Builders (36%) to have the highest grant percentage of the top sixteen.

The only two groups in the top sixteen to be completely shut out were the Reporters Committee for Freedom of the Press (9 briefs in cases denied cert.) and the Society of Professional Journalists (8 briefs). Additionally, the Associated Press filed seven cert.-stage amicus briefs in cases that were all denied. These three groups, along with many other media organizations, often file amicus briefs together, so these are not 24 distinct denials, but rather just nine. Even so, since May 2004, these media groups hold the distinction of putting the most effort into pushing petitions while having no success.

Generally, participation as an amicus at the cert.-stage is less common than participation at the merits stage, though Caldeira and Wright suggest that the influence of amici is diminished after the case has been granted. The American Bar Association, for instance, filed 20 merits-stage amicus briefs compared to only 3 cert.-stage amicus briefs in the time frame reviewed here. Of course, granted cases are much fewer in number and more visible than petitions, and the stakes for potential amici are raised in a case that has been granted. Part of the discrepancy also results from amici having far longer to consider and file briefs for the merits stage than for the cert. stage. (For the latest rules on filing cert.-stage amici, see here.) But the generalization does not hold for every organization, including the cert.-stage champion, the Chamber of Commerce.

Not every amicus was counted in the review, and the excluded groups include the United States; individual states and cities; ad hoc groups of professors, elected government officials, scientists, and citizens; state attorneys general and district attorneys; governments of foreign countries; and individual citizens. It should also be noted that while the amicus brief count for the top sixteen parties has been cross-verified with the Westlaw Supreme Court docket database, the other data has not been; thus, a particular party’s count might be off by one or even two briefs if those briefs were for whatever reason not entered into the Westlaw Supreme Court petitions database.

Under Michigan law, an FDA-approved drug cannot be deemed defective or unreasonably dangerous for product liability purposes unless the approval was obtained through fraud. Pursuant to this state statute, the respondents – all Michigan citizens – filed suit in Michigan state court, alleging that they were injured by Rezulin, a diabetes drug approved by the FDA but ultimately withdrawn from the market by Warner-Lambert. The case was removed to federal district court in Michigan and then subsequently transferred to the Southern District of New York by the Judicial Panel on Multidistrict Litigation. Warner-Lambert moved for judgment on the pleadings, arguing that under Buckman the claims were impliedly preempted, and the district court agreed.

Warner-Lambert petitioned for certiorari. It warned the Court that the Second Circuit’s decision not only conflicted with the Court’s decision in Buckman, but also “threaten[ed] to upset the basic understanding of preemption law that has informed this Court’s decisions since Rice v. Santa Fe Elevator Corp.” in 1947. Certiorari was also warranted, the petition argued, because the courts of appeals were divided on the issue: in contrast with the Second Circuit’s narrow reading of Buckman, three other circuits have adopted a more “functional” approach that deems state law preempted if it requires a plaintiff to establish fraud on a federal agency. Finally, Warner-Lambert asserted that if the Second Circuit’s decision were allowed to stand, it would interfere with the FDA’s “ability to perform its critical functions, which is precisely what this Court sought to avoid in Buckman.”

Opposing certiorari, respondents argued that the effect of the Second Circuit’s decision was much more limited than Warner-Lambert would have the Court believe: it applies only to cases brought in the Second Circuit under Michigan law and in which the plaintiffs can prevail on their contention that fraud was committed during the FDA approval process. Moreover, respondents emphasized, the Michigan legislature was considering a repeal of the product liability statute. In any event, they explained, the burdens on the FDA from the law were in fact minimal – because the FDA can simply decline to allow its employees to testify in any court proceedings – and there is no conflict with Buckman, which – in contrast to the state tort law scheme at issue here – did not implicate the presumption against preemption because it involved only the use of state law to police fraud.

The case is expected to be argued in January or February.

Talk about Jeffrey Toobin's book only continues. Tuesday's Christian Science Monitor included a review by Warren Richey, which quotes some particularly pithy tidbits on the Justices. In case anyone missed it, David Margolick's Sunday Times Book Review comments on what he sees as Toobin's big advantage: his "outsider" status. Emily Bazelon and Dahlia Lithwick talk about all the talk in their "Nine Ways to Read The Nine."

Marcia Coyle for the National Law Journal predicts that the coming term will "stand out in court history books."

Kenneth Jost talks about October's big business case, Stoneridge Investment Partners v. Scientific-Atlanta for the CQ Weekly.

Joseph Goldstein details the two New York cases in the Court this coming term, one on New York's system of selecting state judges and one on private school tuition reimbursement for students with disabilities. On that same second case, Mark Walsh for Education Week writes that a decision in Board of Education of the City School District of the City of New York v. Tom F. could "rein in" the placement of children with learning disabilities into private schools (subscription req'd).

Greg Stohr considers for Bloomberg News whether Justice Thomas' reputation on the Court exceeds his influence.

Robert A. Levy, one of the attorneys representing the residents in the DC gun case, comments on the District's arguments in its cert. petition, here in the Legal Times.

Adam Liptak's New York Times article, published before long conference grants were announced on Tuesday, discusses the rampant "fear," but few facts, in the partisan debate over voter IDs.