Chief Justice John G. Roberts, Jr., in his first formal action on his first day on the job, on Friday adopted the policy followed for years by most of his new colleagues on when he would take himself out of pending cases — in other words, his recusal policy. The Supreme Court noted in a statement that he had adopted a declaration that seven members of the Court had made nearly 12 years ago on the subject.

The policy deals with recusal when a Justice has a spouse, children or other near-relative who are or may become practicing attorneys. The new Chief Justice’s wife, Jane Sullivan Roberts, is a partner at the Washington offices of Pillsbury Winthrop Shaw and Pittman. It may be a little too early to anticipate whether either of his two young children would someday become lawyers, but that issue could arise at some point during his service.

The recusal policy specifies that, if a covered relative is an associate in a law firm involved in a case before the Court, but has not taken part in it at the Court or previously, the Justice will be free to participate.

The policy deals separately with situations when a lawyer in the family has taken part in a case at an earlier stage, or is a partner in a firm appearing before the Court. If the family members falls into either of those two categories, recusal would occur if the Justice knows the relative that has “an interest that could be substantially affected by the outcome” of the case, or when a Justice’s “impartiality might reasonably be questioned.”

In other words, mere status as a partner, or as an attorney previously involved, does not dictate automatic recusal. But the policy goes on to outline special situations that would result in recusal when a relative was in either of those broad categories, which are found in the federal recusal law, 28 U.S.C. 455.

It specifies that if the relative is a partner in a firm appearing before the Court, the Justice would recuse in any case involving that firm “unless we have received from the firm written assurance that income from Supreme Court litiation is, on a permanent basis, excluded from our relatives’ partnership shares.”

In addition, it provides that if the relative was the lead counsel in a case at an earlier stage, recusal would occur, on the theory that the outcome of the case even at a later stage “might reasonably be thought capable of substantially enhancing or damaging his or her professional reputation.”

Two of the present Justices have not adopted that policy statement: Justice David H. Souter, who was on the Court in 1993 when the policy was written but who had no relatives covered by its terms, and Justice Stephen G. Breyer, not then on the Court but also currently without any relatives covered by it.

Chief Justice Roberts had told the Senate Judiciary Committee that he would recuse himself from any case on which he had participated as a judge on the D.C. Circuit. He has not said publicly what policy he would follow with regard to cases in which he or his family may have financial investments, but most Justices have remained out of such cases.

Justice O’Connor is the only current Justice who has ever been an elected official. (Indeed, for a short while, she was Majority Leader of the Arizona Senate.) In this article in the New Republic Online, Akiba Covitz and Mark Tushnet argue (sensibly, in my view) that Presidents ought to appoint more politicians and “high-level executive officials” to the Court, beginning now.

They mention, as examples of current possibilities, Senators Cornyn and Kyl, and Judge Gonzales. The latter has never held elective office, but has served as Texas Secretary of State, Counsel to the President, and Attorney General. (For what it’s worth — not much, in all likelihood — I’m stickin’ to my longstanding prediction that the President will nominate Judge Gonzales, notwithstanding that the “smart money” is shifting elsewhere, and that he’ll do so in large part because of Judge Gonzales’ Executive Branch experience and perspective.)

An excerpt from Covitz and Tushnet’s article:

What’s lost when the Court is made up exclusively of distinguished appellate lawyers with limited political experience? Two things: an understanding of the way the law works in everyday life; and an understanding of the way politics works in Congress, the executive branch, and state legislatures.

Without a feel for how the law works in people’s lives, justices tend to treat constitutional law as a desiccated legacy from generations ago that, for some peculiar reason, matters today. Without a feel for how politics works, justices may be more likely to impose theory-driven constitutional interpretations that have no relation to how governments function. Even worse, justices might imagine that they are hard-headed and sensible people who really do want to make government work well–and then hand down “pragmatic” solutions that have nothing to do with the real world.

What’s needed at the Supreme Court is an infusion of an elusive characteristic: common sense. And one good technique for locating people with common sense is to look for people who have already demonstrated it, by managing a large bureaucracy well or by getting the endorsement of voters in election after election. Unfortunately, we’ve moved away from a system of judicial appointment in which political experience, public accountability, and demonstrated common sense mattered a fair amount. Now our system focuses on narrow professional qualifications, giving us justices who are cloistered smart people (one reason, incidentally, not to be taken in by the fawning of law professors who want people just like themselves to become justices)

The government and the tobacco industry appear likely to learn as soon as Oct. 17 the fate of the campaign by the Justice Department to force the surrender of profits from an alleged decades-long campaign of deception about smoking hazards. The Court’s electronic docket now shows that the Justices will consider the Department appeal on Friday, Oct. 14 — thus, if the Court makes up its mind then for or against review, an announcement may come three days later.

The case reaches the Court in an unusual posture: it is a dispute over a remedy for a violation of the RICO anti-racketeering law, but no violation has yet been found in District Court, where the case continues on a separate track. That is the point the industry drives hardest in urging the Court not to hear U.S. v. Philip Morris USA (docket 05-92). The Justice Department has countered that argument by reminding the Court that the disgorgement issue was taken to the D.C. Circuit even while the case proceeded in trial, and Supreme Court intervention at this stage would make it possible for the District Court to move quickly toward a final ruling with all potential RICO remedies left on the table.

At the time the government appeal was filed on July 18, the case was continuing to move at a most deliberate pace in District Court. Now, final briefing in the case has just been completed on the liability issue, and on remedies other than disgorgement. (The case had its sixth anniversary in District Court a week ago; as of Thursday, there had been 5,687 docket entries. District Judge Gladys Kessler has managed the mammoth case from the beginning. Early on, she had thought the case might go to trial as early as 2003. Lately, she has shown some impatience to move the case to a conclusion; she bluntly refused early this month, for example, to give the industry more time to file their post-trial papers, saying the industry had “virtually unlimited resources” to deploy in the case.)

The government had been seeking surrender of $280 billion in industry profits — what it has repeatedly called “ill-gotten gains.” After the D.C. Circuit barred the disgorgement remedy, the government called for alternative remedies that would cost at least $10 billion over five years for a campaign to try to persuade smokers to quit, and $4 billion over ten years for public education and for advertising campaigns against smoking.

Although lawyers close to the defense team for the industry have predicted publicly that the Court was likely to deny review, they also have conceded that the Justices might be attracted to the case because the stakes are huge, and because it is a government appeal — a factor that usually gives an appeal a better chance of review.

One unknown at this point is whether the new Chief Justice, John G. Roberts, Jr., will take part in Supreme Court action on the case. When the D.C. Circuit denied rehearing en banc, Roberts, then a member of that Court, was recused. As usual, no reason was given, so it is unclear whether that reason is still present. If he does not take part, the prospect of a 4-4 split might loom — and that might be another deterrent to Court review.

The First Amendment Center has posted this article by Tony Mauro on the Court’s decision to revisit the campaign finance debate.

Here is Underneath Their Robes on the speculation that Judge Danny J. Boggs, of the Sixth Circuit will be nominated to replace Justice O’Connor.

ACSBlog asks, “Who is Janice Rogers Brown?” Judge Brown has been suggested as a potential high Court nominee.

The faculty at the University of Chicago has started their own blog.

Eugene Volokh has this post on the Supreme Court, federalism and consistency.

Election Law Blog has this post on the New York Times, Chief Justice Roberts, and the Vermont Campaign Finance Limits Case.

Sentencing Law & Policy asks, “Now that we have Chief Justice Roberts, who’s next?”

Ann Althouse has this post on a debate yesterday between Justices Breyer and Scalia at Harvard Law School.

Jack Balkin tells us that the future of the Constitution is now.

The pretty consistent word at this point is that the President is unlikely to announce a nomination tomorrow. Look for Monday or Tuesday.

Yesterday, we filed a reply brief in Hadfield v. McDonough, No. 05-214, a cert. petition that seeks review of a question involving the interplay between the Supreme Court’s decision in Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985) and the so-called “Parratt-Hudson” doctrine.

Chief Justice John G. Roberts, Jr., will take another oath of office on Monday, but that is a mere formality: he is now a fully functioning Chief Justice with all the authority of the office, after taking two oaths at the White House Thursday afternoon. He will go to work at the Court for the first time on Friday.

New members of the Court take what is called a Constitutional Oath and a separate Judicial Oath. Both were administered to the new Chief Justice at the White House: the first in a public ceremony, and the second in private with only the other eight Justices and Roberts’ family attending. The senior Associate Justice, John Paul Stevens, swore him in. On Monday, Roberts will again take the Judicial Oath in an invitation-only “investiture” ceremony in the Courtroom, starting at 9:15 a.m.

The Court said that Roberts took both oaths Thursday so that he “could begin work immediately in preparation for the opening of the Court’s Term on Monday.”

Hearings on granted cases will begin at 10:30 a.m., a half-hour later than the usual starting time. The Court is also expected to issue a lengthy list of orders on new cases — primarily, if not exclusively, denying review of new appeals. Presumably, the orders will be issued when the Justices go to the bench, and their release will be Roberts’ first official public act as Chief Justice.

At the White House ceremony, Roberts said he will start work Friday. Although Senate approval of his nomination to be Chief Justice has been a virtual certainty for weeks, Roberts has not been at the Court to do any work pending final Senate approval. The Senate voted 78-22 to confirm him shortly before noon Thursday. All of the No votes were cast by Democrats.

(The transcript of remarks by Roberts and by President Bush at the White House can be found here.)

By a vote of 78-22, John Roberts has been confirmed as the new Chief Justice.

This morning the American Constitution Society hosted a Supreme Court preview. A video of the event can be found here. The event featured:
Beth Brinkman, Morrison & Foerster; former Assistant to the U.S. Solicitor General;
Walter Dellinger, III, O’Melveny & Meyers; former Acting U.S. Solicitor General;
James Liebman, Professor of Law, Columbia University School of Law;
Theodore Olsen, Gibson, Dunn & Crutcher; former U.S. Solicitor General; and
Teresa Roseborough, Sutherland, Asbill & Brennan; Chair, ACS Board of Directors.

On Tuesday, Senator Reed gave this speech in opposition to the nomination of Judge Roberts to the Supreme Court.

Underneath Their Robes has this post on the speculation that Maureen Mahoney will be nominated to replace Justice O’Connor.

PrawfsBlawg has this post on Roberts and a Man’s right to choose an abortion.

(This is another in a continuing series of reports on the aftermath of Supreme Court rulings — in this case, a decision last May not to decide. That was the outcome in the case of Medellin v. Dretke. The case, though, seems sure to return to the Justices as a major constitutional controversy over Executive power.)

One of Texas’ two highest state courts, the Court of Criminal Appeals, is wading through weighty arguments on an issue of fundamental importance to the Presidency: the Chief Executive’s authority to order states to obey an international court’s ruling based on a global treaty signed by 166 nations. The Bush Administration, faced with a fundamental challenge to a sweeping claim of constitutional authority in the field of foreign affairs, has fought back with an aggressive defense of that authority. It is now up to the Texas court to resolve that dispute, but probably only as a preliminary to a return to the Supreme Court.

Two weeks ago, in a rare scene in a state criminal case in state court, a deputy U.S. Solicitor General, Michael R. Dreeben, took part in a 75-minute hearing before the Court of Criminal Appeals in Austin in Ex parte Jose Ernesto Medellin (docket AP-75,207), along with attorneys for that death row inmate and for the state of Texas. Dreeben was there primarily to make the case that state courts have no choice but to obey the President’s command that Medellin get a new hearing in his murder case, even though Texas’ court rules expressly forbid it. (An account of the oral argument, published in Texas Lawyer, is reprinted here.)

Medellin, a Mexican national, is awaiting execution for his role in the gang rape and murder of two girls in Houston 12 years ago. As a citizen of another nation, he was entitled by an international treaty, the Vienna Convention on Consular Relations, to meet with a representative of his home country government after he was arrested. He never had such an encounter before being convicted and sentenced to death.

He was one of 51 Mexican nationals who took their claim of Vienna Convention violations to the World Court in The Hague, and won. The Mexicans, that Court said, are entitled to a review of the denial of access to a Mexican consular officer, to see if their rights were prejudiced. President Bush, in a now-celebrated “memorandum” last February, sided with the World Court decision and ordered Texas courts to provide that hearing, in the face of a state procedural bar. No American court has ever determined whether the President has that authority.

Medellin now seeks to rely both on the World Court ruling, and on the Bush memorandum.

The presence of the U.S. government in his case is a rarity. But so is the impressive array of other participants: the European Union, Mexico and 12 other nations, a host of former U.S. officials and diplomats, including ex-Secretary of State Madeleine K. Albright, and dueling teams of international law experts.

The state of Texas, with sturdy support from four other U.S. states, is raising alarms about the threat to the states’ control over their own criminal justice systems. “The Supreme Court,” Texas argued in its brief, “has never recognized that the President’s ‘independent authority to act’ in foreign affairs allows for a unilateral power to preempt state law, based on a unilateral assertion that the pre-emption serves the United States’ foreign-policy interests…” If this memorandum controls, the state said, any state law that might be linked to foreign policy — such as a state’s enforcement of its death penalty — would be at risk of being scuttled.

Read the rest of this entry »

Via How Appealing, the A.P. article is available here.

For those who are considering heading down to the Court on Monday, here is our current understanding of the logistics.

First, there will be an investiture ceremony at 9:15 a.m. It is by invitation only. Those with invitations should arrive at the Court at 8:30 a.m.

Second, arguments will begin at 10:30 a.m. rather than 10:00 a.m. The bar line will start at 7:30 a.m., as usual. Guests should arrive at 10 a.m., rather than 9 a.m. Arguing counsel should arrive at 10 a.m. as well.

Law Dork has this post on the new Court and the Commerce Clause.

Indiana Barriser reports here on a new bill S. 1786, authored by Sen. Arlen Specter, which would allow the televising of United States Supreme Court proceedings.

The Nation has this article on Judge Roberts’ 1985 “AIDS Memo” written for President Reagan, which declared that “we should assume AIDS can be transmitted through casual or routine contact, as is true with many viruses, until it is demonstrated that it cannot be.” The authors of the article contend that by 1983 scientists had identified a retrovirus as the cause of AIDS which was known to infect only upon entering the bloodstream, directly or through mucosal membranes–not through intact skin.

On October 7th the University of Minnesota Law School
and The Federalist Socity for Law and Public Policy Studies will be hosting:

A TAX POLICY CONFERENCE: STATE TAX INCENTIVES FOR ECONOMIC DEVELOPMENT

at the the University of Minnesota Law School.

Participants will include Peter Enrich who is on the brief for Charlotte Cuno in DaimlerChrysler v. Cuno and Wilkins v. Cuno. Last fall, in Cuno v. DaimlerChrysler, a federal appeals court declared that an Ohio incentive tax credit provision is unconstitutional as an impermissible, discriminatory interference with interstate commerce. This morning the Supreme Court agreed to hear the case. More information on the conference can be found here.

Here is Rick Hasen on the Court’s decision this morning to grant cert in two campaign finance cases. Election Law Blog discusses the cases further here.

The First Amendment Center has posted this article by Tony Mauro on the First Amendment cases on the fall docket.

Here is a live blog of a debate on Kelo between Professors Thomas Merrill and Nicole Garnett.

Sentencing Law & Policy has this post on Attorney General Gonzales’ support for a legislative response to Booker.

UPDATE:

Tax Prof Blog has this post on the Court’s decision to grant cert in Cuno v. DaimlerChrysler.

Here is the Volokh Conspiracy on the Court’s decision to consider the constitutionality of anticipatory search warrants, granting certiorari to review the Ninth Circuit’s 2004 decision in United States v. Grubbs.

The Supreme Court, granting review of 11 new cases for the Term that opens formally on Oct. 3, on Monday stepped back into the lingering controversy over government restrictions on election campaign financing. It will hear two new cases in that area — including a highly significant test of government power to put limits on how much candidates may spend, not how much donors may give to them. The other case challenges federal restrictions on corporation and labor union spending on ads close to election day. The Court has already upheld those restrictions as written, but the new case tests them when applied to specific factual situations.

The Court took no action Monday on a major new case arising out of the war on terrorism — a test of the constitutionality of President Bush’s creation of military commissions to try war crimes cases against foreign nationals. The fate of that case (Hamdan v. Rumsfeld, 05-184) may be determined next Monday, when the Court next issues orders.

In the most important of the business cases accepted for review, the Court said it would consider the constitutionality of tax breaks that states, counties and cities give to businesses to entice them to keep their plants where they are, or to expand them. That case, though, might not be decided on the merits, since the Court added a question on whether Ohio taxpayers had the legal right (”standing”) to challenge the investment tax credits at issue. The Sixth Circuit ruled that the Ohio tax credits discriminated against other states’ attempts to attract business. (The combined cases are DaimlerChrysler v. Cuno, 04-1704, and Wilkins v. Cuno, 04-1724).

The Court also took on a new case on securities laws, agreeing to decide whether investors may sue for fraud in a class action lawsuit based on state law, if the claim is only that they were induced to hold onto their stocks, not to buy or sell (Merrill Lynch v. Dabit, 04-1371).

One of the more unusual grants involves a question of federal court jurisdiction that Circuit Judge Richard Posner has called “one of the most mysterious and esoteric branches of the law of federal jurisdiction.” The case tests whether the “probate exception” to federal court jurisdiction bars those courts entirely from deciding estate-settlement cases, usually reserved for state courts. The Court last ruled on that exception in 1946.

That new case is Marshall v. Marshall, 04-1544. While the legal issue may attract the attention of lawyers, judges and academics, the case is likely to get wider public notice, since the appeal was filed by Anna Nicole Smith, an erotic performer and model, who filed it in her name Vickie Lynn Marshall. She is the widow of a Texas billionaire, J. Howard Marshall II; she is involved in a long-running estate dispute with Marshall’s son, Pierce.

The new cases to be heard include four on criminal law issues:
** The power of federal judges to dismiss a habeas petition as too late when a state has waived any objection to a tardy filing by a prison inmate (Day v. Crosby, 04-1324).
** The reach of the Fourth Amendment as applied to an “anticipatory search warrant,” allowing a search by officers when a future event occurs. The issue is whether such a warrant is invalid if it does not spell out when the warrant is to be served, and the suspect is not given an affidavit showing that time when the search is carried out (U.S. v. Grubbs, 04-1414).
** In another Fourth Amendment case, the issue is whether police are barred from carrying out a warrantless seardch of a person on parole, when there is no suspicion of criminal wrongdoing so parole status is the sole reason for the search (Samson v. California, 04-9728).
** The validity of a South Carolina rule barring evidence that someone else committed the crime, if that does not create an indication of innocence, when compared to the prosecution’s evidence (Holmes v. South Carolina, 04-1327).

The other two new cases raise these issues:
** The right of states to get reimbursed for their Medicaid benefit payments when the person receiving those benefits gets money in settling a personal injury lawsuit (Arkansas Department of Human Services v. Ahlborn, 04-1506).
** Local governments’ duty to make added efforts to contact a property owner who owes taxes, when a notice of a tax sale is returned undelivered (Jones v. Flowers, 04-1477).

The Court’s actions on Monday on new campaign finance cases were a mixture of a predictable grant, and a surprise grant.

Read the rest of this entry »

The Bazelon Center has collected the briefs in the consolidated cases of United States v. Georgia, No. 04-1203, and Goodman v. Georgia, No. 04-1236. The case is scheduled for argument on November 9.

Here are the new cases in which the Court granted cert. (or, in No. 04-1581, Wisconsin Right to Life v. FEC, noted probable jurisdiction):

No. 04-1581: Wisconsin Right to Life v. FEC: Whether as-applied challenges to the prohibition on corporate disbursements for electioneering communications are prohibited after McConnell v. FEC and, if so, whether that prohibition is unconstitutional as applied to the facts of this case (you can read Marty’s past posts on the issue here and here; the SG’s motion to dismiss or affirm is here);

No. 04-1324, Day v. Crosby: In a habeas proceeding, whether state waives limitations defense when it fails to plead or otherwise raise that defense and expressly concedes that habeas petition was timely; and whether Rule 4 of Rules Governing Section 2254 Cases permits district court to dismiss habeas petition sua sponte after state has filed answer based on ground not raised in answer.

No. 04-1327, Holmes v. South Carolina: Whether state’s rule governing admissibility of third-party guilt evidence violates criminal defendant’s constitutional right to present complete defense grounded in due process, confrontation, and compulsory process clauses.

No. 04-1371, Merrill Lynch v. Dabit: Whether Securities Litigation Uniform Standards Act preempts state law class action claims based upon allegedly fraudulent statements or omissions brought solely on behalf of persons who were induced to hold or retain (but not purchase or sell) securities.

No. 04-1414, United States v. Grubbs: Whether the Fourth Amendment requires that evidence be suppressed when obtained pursuant to an anticipatory search warrant after warrant’s triggering condition is satisfied, but when that triggering condition is not set forth either in the warrant itself or in an affidavit that is both incorporated into the warrant and shown to the person whose property is being searched.

No. 04-1477, Jones v. Flowers: When a notice of a tax sale or property forfeiture is mailed but subsequently returned as undeliverable, does due process require the government to make any additional efforts to locate the owner of the property before it takes the property?

No. 04-1506, Arkansas Dep’t of Human Services v. Ahlborn: Whether federal Medicaid law entitles a state to full reimbursement from personal injury settlement proceeds of Medicaid benefits paid on the recipient’s behalf, regardless whether a portion of the settlement proceeds is designated as compensation for medical care.

Nos. 04-1528, 1530, & 1697: Randall v. Sorrell, Vermont Republican State Committee v. Sorrell, and Sorrell v. Randall: Challenges to expenditure limits imposed by Vermont campaign finance laws. You can read more about this case, as well as Wisconsin Right to Life, in Rick Hasen’s post yesterday on his Election Law blog.

No. 04-1544, Marshall v. Marshall: Questions regarding scope of probate exception to federal jurisdiction. [Disclosure: G&H for respondent.]

Nos. 04-1704 & -1724: DaimlerChrysler v. Cuno & Wilkins v. Cuno: Whether Ohio’s investment tax credit, which seeks to encourage economic development by providing taxpayers with credits when they install new machinery and equipment, violates the commerce clause and whether dormant commerce clause prohibits states from seeking to attract new business investment in state by offering credits against general corporate franchise or income tax, when the amount of the credit is based on new in-state investment; the Court also asked the parties to address whether respondents have standing to challenge the tax credit.

No. 04-9728, Samson v. California regarding parole searches.

With great thanks to an alert reader who found it, the Orders List is already up, and available here.

Of the cases the Court has granted prior to today’s announcement, there are at least five that have generated (or that ought to generate) sustained interest and attention. Three of those five cases raise constitutional questions; the other two raise statutory questions with lurking constitutional undertones. We’ll try to collect here some links to briefs in these cases or (better yet) to websites where such links are collected. The cases are:

1. The Ayotte abortion case, No. 04-1144, concerning the standard of review for facial challenges to abortion restrictions. The case will be argued on November 30th. Note, however, that if Justice O’Connor’s replacement is not confirmed by that date, there is a significant possibility the case will be reargued in the October 2006 Term, because Justice O’Connor may well be the fifth vote on the standard-of-review question and/or the “merits” question.

New Hampshire’s brief is here. The SG’s amicus brief in support of New Hampshire is here. The topside amicus brief for certain Arizona legislators is here. The topside amicus brief of the U.S. Conference of Catholic Bishops is here. The topside brief of amicus American Center for Law and Justice is here. The Eagle Forum’s topside brief is here. The topside brief of Harlon Reeves is here. The ACLU’s bottom-side amicus brief is here. If anyone has information on where the other parties’ briefs, and remaining amicus briefs, are posted, please let us know.

2. The FAIR case, No. 04-1152, which concerns the constitutionality of the Solomon Amendment. The case will be argued on December 6th.

The Government’s opening brief is here. The SG’s Reply Brief is here. An amicus brief of 40 Harvard Law School faculty members, arguing that the case can and should be decided on statutory grounds because the universities in question are not violating the Solomon Amendment, can be found here. All of the briefs in the case are now collected here, at the bottom of the page.

3. U.S. v. Georgia and Goodman v. Georgia, Nos. 04-1203 and 04-1236, consoldated — a follow up case to Tennessee v. Lane, in which the question is whether title II of the Americans with Disabilities Act is a proper exercise of Congress’s power under Section 5 of the Fourteenth Amendment, as applied to the administration of prison systems. The case will be argued November 9th. Note, however, that if Justice O’Connor’s replacement is not confirmed by that date, there is a very significant chance that the case will be reargued in the October 2006 Term, because it’s likely Justice O’Connor will be the fifth vote for the majority, whichever way it turns out.

The Federal Government’s opening brief is here. The SG’s Reply Brief is here. The Brief of the private petitioners is here. Georgia’s brief can be found here. The amicus briefs can be accessed at this site.

4. The O Centro case, No. 04-1084, which involves whether RFRA requires an exemption from the Controlled Substances Act for a church that uses hallucinogenic tea in its religious rituals. The case will be argued on November 1st. Note, however, that if Justice O’Connor’s replacement is not confirmed by that date, there is a possibility the case will be reargued in the October 2006 Term, because Justice O’Connor may provide the fifth vote for the majority.

The SG’s opening brief is here. The Respondents’ brief is here. The SG’s Reply brief is here. Amicus briefs on behalf of the respondent (in favor of the RFRA exemption) can be found here. A topside brief for the Tort Claimants’ Committee, authored by Prof. Marci Hamilton and arguing that RFRA is unconstitutional even as applied to federal statutes, can be found here.

5. Gonzales v. Oregon, No. 04-623, which involves whether the Attorney General permissibly construed the Controlled Substances Act and its implementing regulations to prohibit the distribution of federally controlled substances for the purpose of facilitating an individual’s suicide, even in a state (susch as Oregon) in which such suicide-related distribution is not prohibited by state law. The case will be argued October 5th.

The SG’s opening brief is here. The SG’s Reply Brief is here. Oregon’s brief is here. The brief of Respondents physician and pharmacist is here. The brief of the patient Respondents is here. The ACLU’s bottom-side amicus brief is here. The Cato Institute’s bottom-side amicus brief is here. If anyone knows where other amicus briefs can be found, please let us know.

(And we think it will be) You should watch this space tomorrow at 10 a.m., when the Court traditionally issues orders after its long conference. Although the Court will likely issue orders granting cert. tomorrow, there is a substantial chance that more cases from the conference will be granted on October 11, after Judge Roberts joins the Court and has the opportunity to provide a fourth vote in cases that only received three today.

Senate leaders have tentatively set Thursday of this week as the day for a final vote in the Senate on the nomination of Circuit Judge John G. Roberts, Jr., to be Chief Justice. If, as expected, he is confirmed, he could quickly take the oath and join the Court when its new Term formally opens next Monday, Oct. 3.

The Senate was due to begin floor debate on the nomination on Monday afternoon. It will be called up as Calendar 317, and the debate will continue until 5:30 p.m.

The Justice Department on Friday asked the Supreme Court to uphold the constitutionality of a nationwide ban on a medical procedure that abortion opponents persuaded Congress to pass to outlaw what they call “partial-birth” abortions. The case is Gonzales v. Carhart, an appeal from the Eighth Circuit. It has been docketed as 05-380. (You can link to the cert. petition, with thanks to How Appealing, here.)

The petition was filed early enough that the case could be heard in the current Term of the Court, if the Justices agreed to review it. That will not be known until later this year at the earliest. It is possible that the Court will hold the case until after it rules upon a pending abortion case from New Hampshire, involving a state law requiring notice to parents before a pregnant minor may have an abortion; there are some parallel legal issues, although the New Hampshire law and the federal ban deal with different abortion restrictions. (The New Hampshire case, Ayotte v. Planned Parenthood of Northern New England, 04-1144, is scheduled for oral argument on Nov. 30.)

The Justice Department, in its new appeal, conceded that the New Hampshire and federal cases involve “related questions,” but it asked the Court not to hold the federal case until after the state case is decided. This case, it said, involves the validity of “a significant act of Congress that has bleen invalidated and permanently enjoined by the lower courts. Granting certiorari now would enable this Court definitively to address the constitutionality of the Act and, if the Court were to uphold the Act, to allow it to take effect as expeditiously as possible.” Holding the case until after the New Hampshire case is resolved, it argued, would result in significant delay. It also contended that it would be of benefit to review the two cases in the same Term of the Court to fully consider the related issues.

The Court last confronted the intense controversy over “partial-birth” abortion in 2000, when it struck down a Nebraska ban in the case of Stenberg v. Carhart. (That case involved a Nebraska doctor, Leroy Carhart, who also is involved in the newly appealed federal case.) The Court ruled that the state law lacked a health exception and imposed an “undue burden” on women’s right to end their pregnancies.

In enacting the new federal ban, Congress made its own finding that, as a medical fact, there is never a medical necessity for a “partial-birth” abortion. The Eighth Circuit ruled that the 2000 Supreme Court decision requires such an exception. Two District Courts in other Circuits have ruled the same way, and those cases are on appeal.

In its petition, the Justice Department posed the following question: “Whether, notwithstanding Congress’s determination that a health exception was unnecessary to preserve the health of the mother, the Partial-Birth Abortion Ban Act of 2003 is invalid because it lacks a health exception or is otherwise unconstitutional on its face.”

Although the government did not raise a separate question on the standard of constitutionality courts are to use in judging abortion restrictions, it did contend that the Eighth Circuit used a too-relaxed standard of invalidity in striking down the federal ban as written.

Justice Breyer has just published a book, “Active Liberty: Interpreting Our Democratic Constitution.” Adam Cohen of the New York Times comments here. Ann Althouse comments on the book and its review here.

Here is a website devoted to Gonzales v. O Centro Espirita Beneficente União do Vegetal. At issue in the case is whether or not the Religious Freedom Restoration Act of 1993 protects the Centro Espirita Beneficente Uniao Do Vegetal’s practice of using hoasca, a psychotropic substance, in a sacrament central to the religion.

The Supreme Court has dropped a case from its argument calendar for November because attorneys involved, from New Orleans, have suffered losses in hurricane Katrina.

The case of Arbaugh v. Y&H Corp. (docket 04-944), previously scheduled for argument on Monday, Nov. 7, will be heard during January, the Court said. “Counsel of record in this case are from New Orleans and this will give them additional needed time to prepare for the case while dealing with their unexpected losses as a result of Katrina,” a Court statement explained.

Jeffrey A. Schwartz of Watkins Ludlum Winter & Stennis in New Orleans represents Jenifer Arbaugh, and Brett J. Prendergast of New Orleans represents Y&H Corporation, doing business as the Moonlight Cafe.

The case involves federal court jurisdiction over cases involving federal claims against small business employers.

No case will replace it on the Nov. 7 calendar. Thus, only one case will be heard that day, Dolan v. United Postal Service (04-848), involving postal patrons’ right to sue for injuries due to mail delivery.