If you know of Term summaries (or even press releases) that have been published by various organizations, please email them to me.

Here is the summary prepared by Steve Shapiro of the ACLU.

Here is an analysis published by People for the American Way (Hat Tip: How Appealing).

Earlier today, we posted the annual statistics on the Term. I thought I would take a closer look at the 5-4 cases.

(Note: in this post, I’m using the term “conservative” as shorthand for “more conservative” and to refer to the Chief, and Justices O’Connor, Scalia, Kennedy, and Thomas. And I’m using “liberal” as shorthand for “more liberal” and to refer to Justices Stevens, Souter, Ginsburg, and Breyer. Those particular labels can obfuscate more than they illuminate in some contexts – in fact, the data underlying this post makes that very point – but they are useful shorthand for a blog post.)

In the 5-4 cases, the diversity among the majorities was remarkable. Fourteen different combinations formed the majority in twenty-four cases. Ten 5-4 majorities occurred in only once. Every Justice was in the majority in between twelve and fourteen 5-4 cases.

The number that jumps out at you is that the Court’s conservatives formed a 5-4 majority only five times. (Extrapolating from previous terms, the twenty-four 5-4 opinions ordinarily would produce ten to fifteen cases with the conservatives forming a majority.) In eight cases, one of the conservatives “defected” to form a majority with the liberals – four by O’Connor; three by Kennedy; and one by Scalia.

But the liberals were hardly a uniform block. In five different cases, four of the conservatives formed a majority with one of the liberals – twice by Breyer, and once each by Stevens, Souter, and Ginsburg.

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Booker/Fanfan
Part I

Part II

Cutter

Grokster

Heald/Swedenburg

Kelo

Livestock Marketing

Medellin

Raich

Roper

Van Orden/McCreary County
Van Orden

McCreary County

Here are the final versions of our term wrap-up documents. Thanks to Brian Fletcher, Anisha Dasgupta, and Katie TafollaYoung for their work on them.

Here is the memo highlighting notable statistics.

Here are the voting relationships.

Here are the remaining statistics.

Here is the circuit scorecard.

Here is the final OT04 Case List.

Here is the list of next Term’s cases, according to the sitting in which each is likely to be argued.

Also, here is revised report by the Georgetown Supreme Court Institute with an array of helpful information.

In the wake of the Ten Commandments cases, the New York Times Magazine this Sunday is publishing excerpts from Noah Feldman’s forthcoming book on the “Church-State problem.” One of Feldman’s provocative theses is that the Court should be more permissive in the “religious symbolism” cases (a broad category that apparently would include not only things such as the Ten Commandments, creches and the Pledge of Allegiance, but also prayer and teaching creationism in the public schools), even to the point of permitting expressly sectarian endorsement, as long as there is no religious “coercion,” but that the Court should reassert what appear to be 1970’s-era restrictions on state funds being conveyed to religious institutions. In short: “no coercion, no money.”

This is, of course, almost the opposite of the direction the Court has been taking in recent years. It also raises many, many difficult and interesting questions, some of which are pointedly but respectfully posed by Jack Balkin over on Balkinization. Feldman’s proposal is also likely to receive a skeptical reaction from folks such as Tom Berg, who in our sub-blog and at Mirror on Justice (see also Rick Garnett’s new post here) have suggested that religious communities should focus less on the “symbolism” cases (in large part because Tom thinks there is great danger to religion when the state appropriates religious symbols) and more on securing the sort of neutrality in funding that is, for instance, suggested in Justice Thomas’s plurality opinion in Mitchell v. Helms. (Current law is governed by Justice O’Connor’s controlling concurrence in Mitchell, which prohibits the state from providing direct aid to be used for “specifically religious activities” and religious indoctrination, and which apparently also prohibits any direct monetary aid from being sent to a certain (undefined) category of religious institutions, because (in Justice O’Connor’s cryptic words) “this form of aid falls precariously close to the original object of the Establishment Clause’s prohibition.”)

There is much, much more to be said in this debate. I hope that Noah, Jack, Tom, Rick and others will weigh in over on our Ten Commandments sub-blog (where I’m cross-posting this) or in the Comments here, and/or on Balkinization and Mirror of Justice.

Richard Smith, the lead counsel for one of the principal amici supporting the respondent in the Castle Rock case, has this post entering the debate on the Discussion Board.

PrawfsBlog has this post on the end of the term and whether or not it is unlawful to threaten to seize Justice Souter’s home.

The Picker MobBlog has numerous entries on Grokster. Here is the latest one.

Here is Todd Zywicki on a recent poll citing Americans’ declining confidence in Supreme Court opinions. Also on the Volokh Conspiracy, Orin Kerr explains some Supreme Court lingo.

ACSBlog has this post on a potential Supreme Court nomination for Judge Garza of the Fifth Circuit.

On the Nomination Blog, I have a short post about Jan Crawford Greenburg’s most recent story.

From an article in the Fulton County Daily Report:

Thomas’ five-minute address included a suggestion that no member of his court was planning to retire. Since Chief Justice William H. Rehnquist announced he was being treated for thyroid cancer last fall, speculation about a court vacancy has been rampant.

Thomas noted that his court ended its term on Monday as “winds of controversy swirled about the Court’s decisions and, unfortunately, about the imagined resignations.”

After the jump are all the events wrapping up the Supreme Court Term that I know about, presented in chronological order. Please excuse any and all formatting glitches. I’m doing a lot of cutting and pasting here.

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Over on the Discussion Board, we’re hosting a debate over the Court’s decision in Castle Rock. The City’s lead attorney, John Eastman, has started the debate.

I just wanted to thank the people who worked very hard to get accurate, timely posts up on the blog yesterday; the bloggers (esp., but not exclusively, Eugene Volokh, Glenn Reynolds, Andrew Sullivan, Howard Bashman, and the folks at ABC’s The Note) that prominently linked to the blog; and the readers who brought us a record (for us) 92,000 hits according to Statcounter (and who nearly brought down our webhost at around 1015am).

Also, I wanted to thank all the terrific people who took the time to write wonderful posts on the Discussion Blog. I learned a lot.

I do think in a very small way, but a hopefully significant one, the web (lots of sites, SCOTUSblog among them) changed the Court’s relationship with the public yesterday — both in terms of how information is distributed and how the Court’s opinions are subject to a quick, sophisticated reaction. I can’t imagine the same thing happening even a year ago.

Multichannel News notices (no link available) that, “In describing the central legal issue in Brand X, the syllabus got it completely wrong, saying that information service providers like AOL and Earthlink were heavily regulated common carriers and phone companies were free from such mandates. A senior cable industry lawyer said he might bring the mistake to the court’s attention.” Thanks to the reader who passed this along.

In a 7-2 opinion authored by Justice Scalia, the Court reversed a Tenth Circuit decision that permitted a due process claim against a local government for its police department’s failure to enforce a restraining order.

Castle Rock presented two questions: (1) Whether federal law permits a procedural due process claim against a local government for failing to enforce a partial restraining order, exposing its holder to private violence; (2) If such a claim is allowed, what kind of process is required? Sixteen years earlier, the Court rejected an analogous substantive due process claim in DeShaney v. Winnebago County Dep’t of Social Services, but made it explicit that DeShaney created no precedent regarding a procedural due process claim of the same variety.

Justice Scalia’s majority opinion, joined by Chief Justice Rehnquist and Justices O’Connor, Kennedy, Souter, Thomas, and Breyer, held that Gonzales could claim no property interest in the enforcement of the restraining order and declined to reach the second question. Justice Souter filed a concurrence, which Justice Breyer joined, and Justice Stevens filed a dissent, joined by Justice Ginsberg.

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Here is an extensive - although by no means exhaustive - compilation of news relating to yesterday’s rulings and retirement speculation.

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Today we are filing this cert. petition, which presents a question on which the courts of appeals are divided six to three: under 28 U.S.C. 1961, does interest on an award of attorney’s fees begin to accrue (1) from the entry of the judgment that establishes the right to attorney’s fees; or (2) from the entry of a later order fixing the amount of fees.

The case, Bernback v. Greco, hails from the Third Circuit, which holds the minority view — that is, that interest runs only from the entry of an order quantifying the fees. Our co-counsel on the case are Richard C. Angino and Joan L. Stehulak of Angino & Rovner in Harrisburg, PA. Brian Fletcher, a rising Harvard 3L who is with us for the summer, worked extensively on the cert. petition.

Here is our annual memo analyzing the Term’s statistics, including with comparisons to previous terms. Thanks to Anisha Dasgupta, who’s working with us this summer, for analyzing the current Term’s numbers.

With today’s orders, the Court nearly filled out the first week of its January sitting. In total, the Court has filled thirty-seven argument slots. This document lists all of the cases granted for next term, sorted by the sitting in which they will presumably be heard.

Closing out its Term, the Supreme Court agreed on Tuesday to review — for the third time — a celebrated case over the use of the RICO law to try to stop blockades of abortion clinics. The Seventh Circuit had ordered another round of litigation in the District Court.

An earlier post on this case can be found here.

Anti-abortion forces contend in parallel appeals that the Supreme Court had put an end to the case with its second ruling in the case, in 2003. The case has been pending in federal courts for 19 years. The Court will hear Scheidler v. NOW (04-1244) and Operation Rescue v. NOW (04-1352) as a consolidated case.

That was one of three new cases the Court accepted for decision next Term. There was no word Tuesday morning on Chief Justice William H. Rehnquist’s plans to retire or remain on the Court.

In one of the other cases granted, the Court will be examining for the first time a case in which a convicted individual claims to be innocent based upon DNA evidence from the scene of the crime. A Tennessee man convicted on circumstantial evidence of murdering a young woman, his neighbor, and sentenced to death, claimed that DNA lab tests showed him to be innocent. But the en banc Sixth Circuit, while finding his innocence claim strong, denied habeas relief by an 8-7 vote because the majority found the evidence did not overcome his failure to raise the issue in his trial in state court. The case is (House v. Bell, 04-8990). The Justices had considered the case in five separate Conferences this month.

In the other newly granted appeal, the Court will be reviewing a Ninth Circuit case on federal habeas review of state court fact-findings about a prosecutor’s reason for striking a black woman from the jury panel (Rice v. Collins, 04-52). The case involved a black California man on trial on charges of possessing cocaine.

The Court refused to reopen the issue of the constitutionality of displays of the Ten Commandments in public schools — on classroom walls, and on the grounds outside. One day after a split ruling on Commandments displays in courthouses and on government buildings’ lawns, the Court simply denied review of cases from Ohio and Kentucky, in which lower courts had found school displays unconstitutional.

The Court, in its last previous ruling on the Commandments (Stone v. Graham, in 1980), had decided that it was unconstitutional to post the sacred text on the classroom walls in a public school. When the Court agreed this Term to hear the new Commandments cases, it expressly avoided granting review of the issue in the public school context.

The Court does not explain its refusals to hear cases, so it is not certain why the Justices on Tuesday did not send the school cases back to lower courts to apply Monday’s rulings. Ordinarily, it takes five votes to take that step. It seems likely that there were not five Justices who wanted to send the cases back, which could leave the impression that the issue was still an open one in the wake of the new decisions. By simply denying review, the Court seemed to be suggesting it thought either that the issue was not worth its time, or that it did not want to encourage speculation that there was something more to be decided in lower courts — in other words, a sense that the lower courts had got it right in barring school displays.

No doubt, those who wish to place the Ten Commandments on public school house walls or on school grounds will pursue further cases, despite what the Court did on Tuesday, on the premise that the issue is at least worth another look.

The Adams County, Ohio, cases turned aside were Johnson v. Baker (03-1661) and Adams County School Board v. Baker (04-65). The Kentucky case was Harlan County v. ACLU of Kentucky (03-1698).

In addition, the Court voted Tuesday not to hear an Ohio state judge’s appeal challenging a ruling against his use of a Ten Commandments poster in his courtroom (DeWeese v. ACLU (04-841). Similarly, it refused to review an appeal by city officials in Great Falls, S.C., challenging a lower court ruling forbidding prayers referring to Jesus Christ before meetings of the City Council (Town of Great Falls v. Wynne, 04-1052).

All of the religion cases disposed of Tuesday had been held by the Court pending the rulings on the Commandments that were issued Monday.

We expect the really terrific discussions of the Ten Commandments cases and Grokster to continue today on their respective boards, which are here and here.

For blog entries related to yesterday’s decisions, see Monday’s Links–Final Version, posted below.

In other news:

Here are end-of-term reflections from Sentencing Law & Policy.

Eugene Volokh has this post about Senator Cornyn’s proposal to limit the scope of eminent domain. On a lighter note, Ex Parte offers us this song about Kelo.

ACSBlog has these thoughts on a Supreme Court led by Justice Thomas.

Throughout the day this post has been collecting links related to today’s opinions and orders. This is a final update recapping Monday’s coverage in the mainstream media, legal blogs and various discussion sites. For the most part, links are organized by case.

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Sen. John Cornyn, a Texas Republican, moved swiftly on Monday to narrow the effects of the Supreme Court’s decision last Thursday that upheld broad government power to seize private property to turn over for profit-making economic development. Cornyn’s new bill, S. 1313, would lay down a congressional definition of “public use,” far narrower than the Court’s constitutional interpretation in Kelo v. City of New London (04-108). The measure raises immediately the question of Congress’ power to write its own definition, and put it into effect.

Although Cornyn’s proposal, and his floor statement announcing it, do not spell out Congress’ constitutional authority to adopt the legislation, it appears that part of it is based upon the Necessary and Proper Clause, some notion of federal police power, and, to a degree, the Commerce Clause), and part of it is based upon the Spending Clause. (The bill’s findings say that “it is appropriate for Congress to take action, consistent with its limited powers under the Constitution, to restore the vital protections of the Fifth Amendment and to protect homes, small businesses, and other private property rights against unreasonable government use of the power of eminent domain.”)

It does not recite what those “limited powers” of Congress are. But, by using the phrase “restore the vital protection of the Fifth Amendment,” it appears that the measure would be an attempt by Congress to define what the Fifth Amendment means. That phrase seems to directly challenge the Court’s view that the Fifth Amendment’s protection does not forbid the use of eminent domain for economic development purposes. It brings to mind Congress’ effort in the Religious Freedom Restoration Act, seeking to undo the Court’s decision in Smith v. Employment Division (1990) – a bold effort that the Supreme Court struck down in City of Boerne v. Flores (1997).

Here, without the 13 “findings,” is the operative part of the Cornyn bill:
“( a ) In General. – The power of eminent domain shall be available only for public use.
“( b ) Public Use. – In this Act, the term ‘public use’ shall not be construed to include economic development.
“( c ) Application. — This Act shall apply to –
(1) all exercises of eminent domain power by the Federal Government, and
(2) all exercises of eminent domain power by State and local government through the use of Federal funds.”

S. 1313 is, of course, a long way from passage at this point. It already has found favor, however, among property rights advocates. The Institute for Justice, a public interest advocacy group that was directly involved in Kelo, praised the bill as a measure “to curb the abuse that threatens every American” as a result of the Kelo decision.

The Court will issue its final Orders List (and any summary reversal) tomorrow at 10am.

We’re continuing to update the statistics. These are final, except for the need to double check them. Here are the voting relationships. Here are the remaining numbers.

UPDATE: Here is the corrected Circuit Scorecard.