Here is a webcast of remarks Senator Biden gave today on Judge Roberts and the importance of the “advice and consent” clause of the Constitution.

(This is one of a series of continuing reports on the aftermath of the Supreme Court’s June 2004 decisions in the war on terrorism cases.)

The D.C. Circuit on Wednesday named a new — and more senior — panel of judges to hear the appeals in the cases of the detainees now being held captive at the U.S. Naval prison at Guantanamo Bay, Cuba. The panel also moved up the date of the hearing, to September 8.

The new order said that the two sets of appeals — one by the government, one by detainees — will be heard in a single, combined argument at 9:30 a.m. on Thursday, September 8. Previously, the court had planned to hear two, back-to-back arguments.

In an order issued July 6, the hearings had been set for October 6. After that, the detainees had asked for an earlier hearing date, and the Circuit Court agreed. The July 6 order named a panel composed of Circuit Judge Judith W. Rogers and two new members of the Court, Circuit Judges Janice Rogers Brown and Thomas B. Griffith.

Wednesday’s order said the appeals would be heard in a single, combined argument — before a new panel. Judge Rogers remains on it, but will be joined by Circuit Judges A. Raymond Randolph and David B. Sentelle. The Court gave no explanation for the shift. The only changed circumstance since July 6 was that the detainees asked for an earlier hearing date, and the Circuit Court agreed to move it up. It is unclear whether that would account for the change in panel assignment. (UPDATE: A reader writes that the panel announced Wednesday has been scheduled since earlier in July to hear cases on the date now set for argument. The panels are “drawn and announced months in advance,” the reader notes.)

One immediate impact of the shift is that it will include a judge, Randolph, who was written two decisions that were most sympathetic to the Bush Administration’s broad claims of presidential power during the war on terrorism. One of those decisions was the July 15 ruling in the case of Hamdan v. Rumsfeld, upholding President Bush’s creation of special military commissions to try Guantanamo detainees accused of war crimes. The Hamdan decision included a judicial embrace of a number of claims of presidential authority. For example, it left to the President and his associates in the Executive Branch any enforcement of the Geneva Convention Relative to the Treatment of Prisoners of War. The Randolph opinion said that the 1949 treaty cannot be enforced in court.

That decision appears to undercut one of the principal claims being made by the Guantanamo detainees in the pending appeals (a series of cases, with the lead one being Boumedienne v. Bush, docket 05-5062).

In the panel’s order on Wednesday rescheduling the oral argument in those appeals, lawyers were ordered to file additional briefs discussing the impact on the detainees’ cases of the Hamdan ruling. The government’s supplemental brief is due August 2, with the detainees’ response due August 9.

Judge Randolph also was the author of a March 11, 2003, decision by the D.C. Circuit finding that the detainees at Guantanamo had no legal right to sue in federal court to challenge their detention — a ruling overturned by the Supreme Court by a 6-3 vote on June 28, 2004. In the 2003 ruling in Al Odah v. U.S.. Randolph wrote that the detainees “cannot seek release based on violations of the Constitution or treaties or federal law; the courts are not open to them.” The Supreme Court ruled in Rasul v. Bush/Al Odah v. U.S. that federal courts could hear the detainees’ habeas challenges, but did not specify what relief, if any, they might obtain.

The new cases brought by the detainees and now pending in the D.C. Circuit are the outgrowth of that Supreme Court ruling, and are attempts to assert a variety of legal claims against prolonged detention of captives who have not been charged with any crimes. Two District Courts in Washington reached conflicting results, with one judge finding the detainees were entitled to no legal relief, but with the other upholding some claims, including due process and judicial enforcement of the Geneva Convention.

The new Circuit panel’s order outlined a streamlined plan for the combined hearing, with only two attorneys appearing for the detainees and only two for the government — unless the government opted for just one. The parties are to file a joint statement on August 5 outlining the issues to be presented, and the amount of time they seek for each issue.

This weekend, July 28-31, the American Constitution Society will host its 2005 National Convention in Washington, DC. The Convention will feature discussions and plenary sessions exploring a wide range of issues related to the Supreme Court, including:

-the nomination of Judge John Roberts;

-redistricting and campaign finance reform

-Booker and sentencing

-reproductive rights in the 21st century; and

-secularism vs. religion in American law.

ACSBlog will post video of the Convention’s featured addresses within an hour of each event, including Senator Joe Biden’s comments on judicial nominations on Friday afternoon and the keynote address by Constitutional scholar Laurence Tribe on Saturday evening.

Here Volokh Conspiracy comments on this post by Bench Memos on whether or not the Senate can confirm Justice O’Connor’s replacement before her resignation is effective.

The Volokh Conspiracy also has this entry on David Bernstein’s forthcoming article on Bolling v. Sharpe, titled “Bolling, Equal Protection, Due Process, and Lochnerphobia.”

Altercation has a new feature titled “Scoring SCOTUS” a largely informational but occasionally political column written by criminal defense attorney Jeralyn Merritt of TalkLeft.

Supreme Court Extra has this post on the conservative nature of the Rehnquist Court.

The American Prospect has this article on Kelo and what community groups’ responses to the decision should have been.

Here is PrawfsBlawg on the changing religious face of the Court.

Finally, here is Balkinization on Roberts and Roe.

As the federal government’s new appeal to the Supreme Court in the anti-racketeering case against the tobacco industry moves along at a leisurely summertime pace, the case is moving apace in U.S. District Court in Washington. The latest development there — the second this week (see post below) — poses a new threat to the industry as it attempts to avoid heavy penalties, should it be found to have violated the RICO law.

On Friday, District Judge Gladys Kessler ruled that a coalition of anti-smoking groups will be allowed to intervene in the case, specifically to press for much tougher remedies than the Justice Department is now pursuing.

The judge remarked in her opinion in U.S. v. Philip Morris, Inc., et al. (docket 99-2496): “It will serve the public interest for major public health organizations…who have long experience with smoking and health issues, to contribute their perspective on what appropriate and legally permissible remedies may be imposed should liability be found.” (Order No. 987 with memorandum opinion.)

In recent weeks, the Justice Department has several times pared down its demands for potential remedies in the case, and has now settled on a proposal to require the industry to spend $10 billion over five years on a stop-smoking campaign (along with $4 billion over ten years on public education about smoking hazards). That $10 billion smoking-cessation figure compares with $130 billion, over 25 years, that the Department was advocating as recently as mid-May. (The government has filed its appeal in the Supreme Court in a move to regain authority to seek heavier penalties because of limits set by the D.C. Circuit.)

The government in the latest (and final) version of its remedies proposal in District Court has dropped other proposals it had advanced earlier, including requiring that cigarettes be sold only in cartons, not single packs, and that the cartons be kept behind the counter in stores.

Judge Kessler on Friday cited all of the government cutbacks in deciding to let the anti-smoking groups into the case to ask for stiffer penalties. Noting that she had previously expressed “concern about changes in the government’s position,” she concluded that the government no longer will represent the interests of the outside groups in pursuing what they consider adequate remedies for alleged deception by the tobacco companies about the health hazards of smoking.

Those groups, she found, would suffer harm that is “actual and imminent” if only the government’s present remedy plan is before the court. “The government,” she wrote, “no longer shares the views of intervenors as to how extensive the appropriate remedies should be in this case in order to prevent and restrain future violations of RICO, should the court find liability.”

The groups will be allowed into the case only to make legal arguments, and not to add new factual evidence, according to the court order. The industry will have a full opportunity to respond, the judge said. The industry vigorously opposed the groups’ intervention. Post-trial briefs in the case, including that of the new intervening groups, are to be completed by all sides by September 19. (The Supreme Court probably will not have acted on the government’s appeal there before late September.)

The groups that Judge Kessler admitted into the remedies debate in her court are Tobacco-Free Kids Action Fund, American Cancer Society, American Heart Association, American Lung Association, Americans for Nonsmokers’ Rights, and National African American Tobacco Prevention Network.

Here is the OT 2005 case list, as revised to account for the Court’s October to December argument calendars, which Lyle detailed in this post.

The Bush Administration may have gone on to the Supreme Court to try to salvage much of its massive case against the tobacco industry, but the industry wasted no time in moving in a lower court to scuttle most of what is left of the case. Two days after the case was appealed to the Supreme Court, the industry’s attorneys on Wednesday asked the judge who is trying the case in U.S. District Court to bar the scaled-back version that the government is still seeking there.

Both the Justice Department’s appeal to the Justices (in U.S. v. Philip Morris USA, Inc., docket 05-92) and the new maneuver by the companies in District Court (there the case is docket 99-2496) involve the issue of remedies for alleged violations of the RICO anti-racketeering law. The industry has not yet been found to have committed any such violations, but the scope of remedies that would follow such a finding dominates the case as it runs on toward its sixth anniversary in federal court.

The government has made clear since the case began in the fall of 1999 that it wants to force the industry, as the price for violating RICO by alleged deception about smoking hazards, to forfeit some $280 billion in profits. The industry sought to have that “disgorgement” remedy ruled out, but U.S. District Judge Gladys Kessler refused to do so. She sent that issue on to the D.C. Circuit, which ruled 2-1 in February that disgorgement can never be ordered as a remedy for civil RICO violations. The Circuit Court decided that any remedy in the case had to be “forward-looking,” aimed only at future violations. That is the issue at the center of the Justice Department’s appeal to the Supreme Court, filed Monday.

The government, after losing in the Circuit Court on the disgorgement issue, put forward in District Court a fallback remedy: a $130 billion, 25-year program to persuade smokers to stop and to engage in public education to persuade youth not to start smoking. But the government reconsidered even that alternative remedy, and proposed instead a proposal to force the industry to spend $10 billion over five years on smoking cessation plus another $4 billion over ten years on public education. That scaling-down has led to an investigation at the Justice Department about possible influence over the trial team by Department officials, but the department has defended it as the only option left to it to satisfy the D.C. Circuit’s ruling.

In filings on Wednesday in District Court, the industry contended that the new $14 billion program itself is not “forward-looking” at all, but is simply another attempt to remedy the effects of any past violations of RICO. “These measures are on their face categorically barred by the D.C. Circuit’s prior opinion,” the industry’s motion for summary judgment argued. Among other facets of the Circuit Court opinion, the industry contended, was a conclusion that any remedy that seeks to deter industry conduct is backward, not forward, looking. The new remedy proposal, the motion says, seeks only to “redress alleged harms caused by [the industry's] alleged past conduct.”

The government will have a chance to respond to the new motion, but Judge Kessler is expected to rule fairly promptly, in order to keep the long-running case moving forward. There has been no indication so far that she would interrupt the case while the government appeal remains pending in the Supreme Court, even though the outcome of that appeal might have a profound effect on what options she may have in winding up the case.

Solicitor General Clement has filed the Government’s opening brief in No. 04-1152, Rumsfeld v. FAIR, the case challenging the constitutionality of the Solomon Amendment.

Here is Underneath their Robes on the candidates who were not picked to be the new Supreme Court nominee.

Legal Affairs Debate Club asks “Is the Federalism Revolution at its End?”

The Supreme Court on Wednesday released the schedule of cases to be argued in October, November and December. In one of the more interesting arrangements, the Court scheduled two abortion cases on the same day — November 30. The cases were not granted together, and do not involve parallel issues beyond the fact that each could have an effect on access to abortions for pregnant women.
Very early in the Court Term — indeed, on Oct. 5, the second day of public sessions — the Court will hear the controversial case on Oregon’s assisted suicide law. The dispute over the cutoff of federal funds to colleges that do not give equal access to military recruiters will be heard on November 29.
Here are the cases day by day, with a brief summary of the questions at issue:

October sitting
Mon., Oct. 3
IBP v. Alvarez (03-1238, 04-66)- workers’ pay for waiting, walking on the job
Wagnon v. Prairie Band Indians (04-631)- application of state laws to Indian businesses

Tue., Oct. 4 – No arguments

Wed., Oct. 5
Gonzales v. Oregon (04-623) – federal power to bar use of drugs for assisted suicide
Schaffer v. Weast (04-698)- burden of proof on disabled child’s educational needs

Mon., Oct. 10 – No arguments

Tue., Oct. 11
Brown v. Sanders (04-980)- effect on death sentence if aggravating factor overturned
Lincoln Property v. Roche (04-712)- citizenship of multi-state company for diversity purposes

Wed., Oct. 12
Garcetti v. Ceballos (04-473)- public employee’s rights to speak out on on-duty issues
U.S. v. Olson (04-759) – U.S. government liability for neglecting safety inspections

November sitting
Mon., Oct. 31
Volvo Trucks v. Reeder-Simco (04-905)- level of competition required to claim price-discrimination
Central Virginia Community College v. Katz (04-895) – states’ 11th Amendment immunity to debt claims in bankruptcy

Tue., Nov. 1
Maryland v. Blake (04-373)- police authority to talk to suspect who asked for a lawyer
Gonzales v. O Centro Espirita (04-1084)- religious sect’s right to use hallucinogenic substance in worship

Wed., Nov. 2
Unitherm Food Systems v. Swift-Eckrich (04-597)- right to appeal on evidence sufficiency in civil case
Lockhart v. U.S. (04-881)- reduction of Social Security benefits to offset default on student loan

Mon., Nov. 7
Arbaugh v. Y&H Corp. (04-944)- federal court jurisdiction over cases involving federal claims against small business employers
Dolan v. U.S. Postal Service (04-848)- postal patrons’ right to sue for injuries due to mail delivery

Tue., Nov. 8
Martin v. Franklin Capital (04-1140)- right to attorneys’ fees for case remanded to state court from federal removal
Georgia v. Randolph (04-1067)- police power to search home if occupants disagree on consent

Wed., Nov. 9
U.S. v. Georgia (04-1203) and Goodman v. Georgia (04-1236)- states’ 11th Amendment immunity to disabled prison inmates’ ADA claims
Evans v. Chavis (04-721)- tolling of AEDPA one-year filing deadline

December sitting
Mon., Nov. 28
Will v. Hallock (04-1332)- right to sue federal officials after losing tort claim against U.S. government
Wachovia Bank v. Schmidt (04-1186)- citizenship of national bank for federal jurisdiction purposes

Tue., Nov. 29
Rumsfeld v. FAIR (04-1152)- cutoff of federal funds to universities that limit military recruiters’ access to students
Buckeye Check Cashing v. Cardegna (04-1264)- right to sue to avoid arbitration

Wed, Nov. 30
Scheidler v. NOW (04-1244) and Operation Rescue v. NOW (04-1352)- use of RICO law to stop abortion clinic blockades
Ayotte v. Planned Parenthood of N. New. England (04-1144)- need for health exception in teen abortion parental notice law

Mon., Dec. 5
Whitman v. DOT (04-1131)- federal workers’ right to sue over on-the-job grievances
Rice v. Collins (04-52)- federal court review of credibility issues in habeas cases

Tue., Dec. 6
Domino’s Pizza v. McDonald (04-593)- civil rights violation in loss of business opportunity
Ill. Tool Works v. Independent Ink (04-1329)- application of antitrust law to tie-in to patented product

Wed., Dec. 7
Oregon v.Guzek (04-928)- doubt over conviction as a factor against a death sentence
Kansas v. Marsh (04-1170)- constitutionality of death sentence if aggravating and mitigating factors are in balance

Complete coverage of Judge Roberts and the confirmation process is available on
The Supreme Court Nomination Blog.

Here is the most recent of a series of posts on the Volokh Conspiracy about Tradesports and the accuracy of electronic markets when it comes to betting on future Supreme Court Justices.

ACSBlog has this post commenting on this entry by Goodwin Liu on Justice O’Connor’s legacy with regard to criminal justice.

Underneath Their Robes offers this quiz on Judge Roberts.

Here is Tim Wu on Judge Roberts and the Constitution in Exile movement.

Sentencing Law & Policy has this post on what the confirmation of Judge Roberts might mean for sentencing jurisprudence.

UPDATE:

Here is the webcast of the President’s announcement last night.

John G. Roberts, as a new Associate Justice, would have an instant opportunity to become a “swing vote,” in the style — though not necessarily with the same results — of Justices Sandra Day O’Connor and Lewis F. Powell, Jr. He could do so by becoming a part of what might be called a “gang of 3.”

The others in that “gang” could be Justices Anthony M. Kennedy and Stephen G. Breyer. As the Court moves more toward the conservative side, as a direct result of Roberts’ arrival, there is a real possibility of a new dynamic center made up of those three.

This does not represent a foolish dream of a moderate or a liberal who wants to hang onto a Court that would be no more conservative than the present Nine. Instead, it is a realistic possibility that could come from the style and instincts of “Justice” Roberts, who is more conservative than either O’Connor or Powell. The new man is not an Antonin Scalia or a Clarence Thomas. Neither, of course, is he a David H. Souter — so the Court’s conservative followers can relax if they harbor any fears of that.

Each Court of Nine is different — a truism, but an absolutely reliable truism. If the Senate approves Roberts, as seems most likely at this early point, he will bring change to the Court. And, most importantly, his arrival will bring change to every one of the Justices themselves. Unless Roberts were a forgettable Charles Evans Whittaker, which he definitely is not, he has the capacity from the outset to have a noticeable impact on his colleagues and on the new Court — as O’Connor and Powell did when they began.

Because Roberts is a nominee of President Bush, and the product of a selection process over which conservative activists had a major influence, there will be a tendency in some circles to suggest that he will find a natural place on the bench with Scalia and Thomas (the President’s favorites among the sitting Justices). That assumes that he will come under the influence, primarily, of those two. Tbat is not predictable, and may not even be probable.

Chief Justice William H. Rehnquist, in some sense a Roberts mentor (Roberts clerked for Associate Justice Rehnquist), does not always vote with Scalia and Thomas, and Roberts would not be expected to do so, either. Just as Rehnquist always has done, he will be finding his own place in the alignments that necessarily will form in the different sectors of the new Court’s work.

It would be natural for Roberts to grow comfortable casting his vote alongside Rehnquist. But that is not likely to be a long-term proposition, given the Chief’s health, and it is not likely to shape him in a mold that would fit for years to come.

Thus, the possibility is a Court in the new Term starting in October that has Scalia and Thomas, joined somewhat loosely by Rehnquist, on the most conservative wing, Justices Souter, Ruth Bader Ginsburg and John Paul Stevens on the most liberal wing, and Roberts somewhat loosely aligned in the center with Kennedy and Breyer.

Why Kennedy? Why Breyer?

Read the rest of this entry »

Just a reminder that our discussion of Judge Roberts’s nomination is going on over at the Nomination Blog.

The Center for American Progress has put together this team of former Supreme Court clerks and law professors to blog about the Supreme Court at this new blog affiliated with Think Progress.

Election Law @ Moritz has posted this commentary on how the newest Supreme Court Justice should adjudicate on campaign finance law.

Sentencing Law & Policy has this post on the merits of appointing a trial judge to the Supreme Court.

Sentencing Law & Policy also comments here on this article by William Stuntz on the Supreme Court, law enforcement and policy powers.

Ann Althouse has this entry on Stanley Fish’s New York Times Op-Ed on constitutional interpretation.

Here is Stuart Taylor in The Atlantic Online writing about the Supreme Court’s “increasingly tenuous grasp of how the real world works.”

Finally, here is Balkinization on the speculation that President Bush will nominate Edith Clement to Justice O’Connor’s seat.

The government has today filed this petition and appendix.