The Fourth Circuit Court of Appeals, apparently nettled by the Justice Department’s shift in position on terrorism suspect Jose Padilla, refused on Wednesday to order his immediate release from military custody and threatened to cast aside its ruling in the government’s favor in the case.

In a surprise order, responding to a Department motion last week that Padilla’s lawyers had not opposed, the Circuit Court ordered new briefing from both sides on whether it should vacate its Sept. 9 ruling upholding Padilla’s detention as an “enemy combatant.” If the Court were to do that, it would remove a major precedent in favor of presidential power during the war on terrorism.

The Justice Department had hoped to have Padilla’s pending appeal to the Supreme Court declared “moot,” since it has now charged him with criminal offenses and ended his designation as an “enemy combatant.” But it also had been expecting that the Fourth Circuit precedent would not be disturbed. That is no longer a certainty.

Here is the background:
On Nov. 22, the government announced it had obtained a grand jury indictment of Padilla on terrorism-related charges, adding him to an already pending criminal case in Miami, Fla. It also announced then that President Bush had “superseded” his order to designate Padilla an enemy combatant and to hold him indefinitely in military custody. Instead, the President ordered the U.S. citizen transferred to civilian custody for purposes of the criminal prosecution.

Padilla, in the meantime, already had filed an appeal to the Supreme Court (docket 05-533), challenging his combatant designation and his prolonged — three-plus years — military detention. It was widely speculated that the government charged him with crime because it feared it might lose the case he had appealed to the Supreme Court, so it switched and turned to the civilian court process.

As part of last week’s maneuvering, the Justice Department asked the Fourth Circuit to authorize Padilla’s transfer from the U.S. Navy brig in Charleston, S.C., to a federal prison in Miami. The Department told the Fourth Circuit that it did not believe it needed that Court’s permission to make the transfer, but did so as a matter of caution. It noted that Padilla’s lawyers — who have long agitated to have Padilla released from combatant status — did not object.

The government clearly expected the Circuit Court to grant the transfer routinely. But nothing had happened on its motion over the past week, leading to speculation that the Circuit Court was not so sure it should grant the transfer request without further inquiry.

The situation became clear with the new order issued by Circuit Judge J. Michael Luttig, with the concurrence of two other judges who were with him on the panel that had upheld Padilla’s designation and detention.

Luttig ordered both sides to address in new briefs this question: “Whether, if the government’s motion is granted, the mandate should be recalled and our opinion of Sept. 9, 2005, vacated as a consequence of the transfer and in light of the different facts that were alleged by the President to warrant Padilla’s military detention and held by this court to justify the detention, on the one hand, and the alleged facts on which Padilla has been indicted, on the other.”

The government has until Dec. 9 to file its new brief on that issue. Padilla’s lawyers are to file their brief a week later, by Dec. 16.

The Fourth Circuit had upheld Padilla’s detention on the basis of more serious claims of wrongdoing than the charges contained in the new criminal indictment. The government contended, in seeking to justify his detention, that he had been planning to release a radioactive bomb in a terrorist plot in this country. The new indictment levels charges of joining in a terrorist “cell” of activity to support global terrorism efforts. The indictment describes a quite minor role for Padilla.

If the government has no interest in pursuing the more serious charges, for whatever reason, the Fourth Circuit may believe that its September ruling has been undercut. This will become clear after it acts following the new briefing. In the meantime, the Justice Department has until Dec. 16 to file its response to Padilla’s appeal to the Supreme Court. The Circuit Court’s order may complicate that proceeding, because it will not have ruled on the transfer motion, and the possible withdrawal of its September ruling, by Dec. 16. The government, of course, would be free to ask for a further extention of time to file its response.

The new order is available online through Pacer accounts. The case is Padilla v. Hanft, Circuit docket 05-6396.

The Supreme Court found itself Wednesday searching creatively for narrow ways to decide two abortion cases — the first to be heard by the Court in five years and the first to be heard by the new “Roberts Court.” In the process, the Justices left the distinct impression that no grand pronouncements on abortion rights are likely to emerge at this point in the history of that searing culture war.

In one case, the Court was looking for a fairly easy way to bring to an end the nation’s longest-running abortion case — a 19-year marathon over blockades seeking to shut down abortion clinics (a dispute that has been to the Court twice before). In the other case, the Justices were trying to fashion the actual wording they would require in a lower court order that would preserve the right of pregnant teenagers — but only in truly emergency medical situations — to obtain an abortion without notifying their parents.

Roe v. Wade and its fate never got mentioned. There was not the slightest hint of any agitation within the Court to sharply narrow abortion rights, and certainly no sign that Roe itself was in jeopardy — at least with this combination of Justices. Instead. the Court appeared to be dealing with the new cases as if abortion rights at this stage had become primarily a matter calling for technical legal precision.

The new Chief Justice, John G. Roberts, Jr., contributed to that impression, in the first comments he made or questions he asked about abortion in his brief career as a judge. In the case about parental notice laws for minors seeking an abortion, Roberts said that, rather than making an across-the-board challenge to the law, perhaps a better approach would have been for doctors to bring a “more focused” challenge to the adequacy of emergency procedures available to teens who did not want to tell their parents. And, in the clinic blockade case, Roberts suggested that the Court should not reach out to decide questions not necessary to resolve that particular dispute.

The flow of the arguments in Ayotte v. Planned Parenthood (04-1144), the New Hampshire minors’ case, and Scheidler v. NOW (04-1244, along with 04-1352), the blockade case from Illinois, appeared also to be well suited to the cautious approach that Justice Sandra Day O’Connor has long brought to abortion cases. In the New Hampshire case, she asked how a flat ban on enforcement of the parental notice law could be “narrowed to focus on the problem” of health emergencies for pregnant minors. And, in the blockade dispute, she sought assurances that the Court could finally end that case without making much significant new law on stopping violence as a tactic in abortion protest.

But her participation this time had a hint of unreality to it. Because of the uncertainty about how much longer O’Connor will be serving on the Court, and the uncertainty about when these two cases will actually be decided, rulings may have to come out without her or be postponed for reargument later especially if the Court turns out to be closely divided and her vote would make a difference.

There is, of course, almost no chance that the Court could wind up with unanimous rulings in either case, however narrow the outcome. But the task of deciding them may be somewhat easier than might have been supposed. Justice Antonin Scalia, the Court’s most vociferous opponent of abortion rights, was not heavily involved in the hearings and, when he did take part, was noticeably mild in his comments or questions.

Of the two cases, the New Hampshire minors’ case is probably the more significant, since the blockade case has been fairly nearly exhausted in terms of major questions. But, at Wednesday’s hearing, the New Hampshire case seemed also to ebb in significance: the two central questions it raises were largely avoided as that argument progressed.

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The consolidated cases of Scheidler v. National Organization for Women (NOW), No. 04-1244, and Operation Rescue v. NOW, No. 04-1352, will be argued at the Supreme Court tomorrow for the third time. After almost twenty years of litigation, the Court may very well be inclined to agree with petitioner Operation Rescue that “[t]his Court should leave no doubt that this case is over.”

The case, which began with a civil RICO suit filed in 1986, presents three questions:

1) Whether the Seventh Circuit, on remand, disregarded the Supreme Court’s mandate by holding that “all” of the predicate acts supporting the jury’s finding of a RICO violation were not reversed, that the “judgment that petitioners violated RICO” was not necessarily reversed, and the “injunction issued by the District Court” might not need to be vacated.

2) Whether the Hobbs Act can be read to punish acts or threats of physical violence against “any person or property” in a manner that “in any way or degree * * * affects commerce,” even if such acts or threats of violence are wholly unconnected to either extortion or robbery.

3) Whether injunctive relief is available in a private civil action for treble damages brought under RICO.

Petitioners – defendants below – are Operation Rescue, a pro-life and anti-abortion organization, and its leaders. Respondents – plaintiffs below – are the National Organization for Women (NOW), the Delaware Women’s Health Organization (DWHO), the Summit Women’s Health Organization (Summit), and the classes they were certified to represent, which include all women “whose rights to the services of women’s health centers in the United States at which abortions are performed have been or will be interfered with by [petitioners’] unlawful activities.”

Alan Untereiner will be arguing on behalf of petitioners. Erwin Chemerinksy will argue for respondents. Lisa S. Blatt, Assistant to the Solicitor General, will argue on behalf of the United States as amicus curiae in support of petitioners. The party briefs are available here.
The Solicitor General’s brief is available here.

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On December 6, 2005 the Supreme Court will hear the oral argument in FAIR v. Rumsfeld, a case arising from a challenge to the constitutionality of the Solomon Amendment, a federal law denying federal funds to institutions of higher learning, including law schools, that fail to facilitate the efforts of military recruiters.

ACSBlog is hosting a debate between Professor William Eskridge and Dean Daniel Polsby on the case.

Today through Friday, Dean Polsby will post in the morning and Prof. Eskridge will respond in the afternoon. All entries will appear here.

William Eskridge is a professor of law at Yale Law School and a board member of FAIR.

Daniel Polsby, is a professor of law and Dean of the George Mason University School of Law, and has filed an amicus brief in support of the Amendment.

SCOTUSBlog’s coverage of the case can be found here.

Abortion is always a hot-button issue. It is especially so now that Justice O’Connor is retiring and Judge Alito is slated to replace her. As a result of Judge Alito’s dissent in the Third Circuit’s decision in Planned Parenthood v. Casey, in which he argued that a spousal-notification provision in a Pennsylvania abortion regulation statute was constitutional, proponents of abortion rights are worried that Judge Alito will be unsympathetic to abortion rights claims. Opponents of abortion rights hope and think he will be just that. It is no wonder, then, that the public is watching intensely as an abortion rights case comes before the Court, for the first time in five years, just about six weeks before Judge Alito is scheduled to begin his confirmation hearings.

Ayotte v. Planned Parenthood of Northern New England, which will be argued tomorrow, asks whether abortion regulation statutes must contain exceptions for when pregnancies threaten a woman’s health or life, and if so how narrow those exceptions can be. Perhaps more importantly, the case also raises the question of what hurdle opponents of abortion statutes must clear before making facial constitutional challenges to those statutes. Respondents argue that they should only have to show that the law might endanger the lives or health of some hypothetical women in some hypothetical circumstances; petitioner claims facial challenges should only be allowed if the challenger can show that the law would endanger the lives or health of every pregnant woman, and thus be unconstitutional in every circumstance. Challengers who can only show that a law is dangerous to some women in some circumstances must wait until those circumstances actually arise, and then only have the law declared unconstitutional as applied to them.

Kelly A. Ayotte, Attorney General of New Hampshire, will argue the case for petitioner. Jennifer Dalven will argue the case for respondents. Solicitor General Paul Clement will argue on behalf of the United States as amicus curiae in support of petitioner. The merits briefs for the parties can be found here. The SG’s amicus brief can be found here.

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The Court issued the following opinion today:

No. 04-712, Lincoln Property v. Roche, unanimously reversed, per Justice Ginsburg.

See Lyle’s post below for details.

The Supreme Court — in the only decision of the day — ruled unanimously on Tuesday that a lawsuit filed in state court may be shifted to federal court if all of those named on each side of the case are from different states — with emphasis on actually being named, and not potentially involved. Justice Ruth Bader Ginsburg wrote the Court’s opinion in Lincoln Property v. Roche (04-712), reversing the Fourth Circuit.

The Court stressed that those who are sued have no duty to prove that there is no other defendant who, if made a part of the case, would destroy the diversity of the named parties and thus deprive the federal court of authority to decide the case.

A second question raised in the case was not decided Tuesday. That was whether a firm that operates through a complex structure, doing business in several states, must be determined to be a citizen of any state in which one of its entities was located. “That question is not live for adjudication,” the Court said.

The ruling came in a case involving a lawsuit by a Fairfax County, Va., couple after they discovered a toxic mold in their apartment. They sued in Virginia state court, claiming breach of warranty of habitability, negligence, conversion of property, and landlord-tenant law violations. They named Lincoln Property Co., one unit of which managed the apartment project. They also sued the owner of the apartments.

The companies sued promptly moved the case to federal court, claiming diversity of citizenship. Lincoln Property is a Texas corporation based in Dallas, and the apartment owner is a Wisconsin firm. The couple sought to have the case returned to state court, arguing that the Lincoln Property unit that actually managed the apartment project was a Virginia corporation.

The Fourth Circuit agreed with the couple, finding that the Lincoln unit, not Lincoln itself, was the real party in interest, so diversity had been destroyed because of the common citizenship in Virginia.

That is the ruling the Supreme Court overturned Tuesday. The Circuit Court, Justice Ginsburg wrote, “erred in insisting that some other party affiliated with Lincoln should have been joined as a co-defendant and that it was Lincoln’s obligation to name that entity and show that its joinder would not destroy diversity….It was not incumbent on Lincoln to propose as additional defendants persons” that the couple might have joined in their lawsuit but did not.

Concurring Opinions asks, “Why does the Supreme Court Accomplish so Little?” The author, guest blogger Jason Mazzone, argues that the Court should increase its workload. The Volokh Conspiracy comments here.

This week, the Legal Affairs Debate Club asks, “Should Liberals Stop Defending Roe?” Debating the issue are Sanford Levinson, the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair and Professor of Government at the University of Texas at Austin and Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School.

PrawfsBlawg has this post on the Solomon Amendment cases being argued this week.

In nomination news:

Goodwin Liu has this commentary in the LA Times on Alito and the death penalty. Sentencing Law & Policy comments here.

On Tuesday the Court will hear oral argument in Illinois Tool Works, Inc. v. Independent Ink, Inc., No. 04-1329. The case pits decades-old precedent at the intersection of antitrust and patent law against subsequent conceptual changes in both fields.

Petitioner Illinois Tool Works, supported by the Government as amicus curiae, argues that a plaintiff alleging unlawful tying of a patent license to the purchase of a non-patented good, in violation of section 1 of the Sherman Antitrust Act, should have to prove that the defendant has market power in the market for the tying product. Respondent Independent Ink argues that the Court’s precedents presuming market power when patents are involved should be reaffirmed. The Federal Circuit felt bound by those precedents below despite its concerns that they “contain many ‘infirmities’ and rest upon ‘wobbly, moth-eaten foundations.’”

Andrew Pincus of Mayer Brown in Washington will argue for petitioners. Kathleen Sullivan of Quinn Emanuel in Redwood Shores, CA will argue for respondent. Thomas Hungar, Deputy Solicitor General, will argue for the United States in support of petitioners.

Parties’ briefs (except petitioners’ reply) can be found here.

The Government’s brief can be found here.

The opinion below can be found here.

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The Supreme Court on Monday released the hearing dates for the February-March sitting. Here is the schedule, day by day:

Mon., Feb. 20
Holiday; no arguments.

Tue., Feb. 21
Rapanos v. U.S. and Carabell v. Corps of Engineers (04-1034 and 04-1384), consolidated for one hour and 20-minute hearing – Application of Clean Water Act to wetlands
S.D. Warren Co. v. Maine Board (04-1527) – Clean Water Act application to withdrawal of river water as “discharge”

Wed., Feb. 22
Samson v. California (04-9728) – Police authority to make warrantless search of parolee
Holmes v. South Carolina (04-1327) – Admission of third-party guilt evidence

Mon., Feb. 27
Arkansas Dept. of HHS v. Ahlborn (04-1506) – State right to Medicaid reimbursement
Day v. Crosby (04-1324) – Scope of one-year habeas filing deadline

Tue., Feb. 28
Randall v. Sorrell and Vermont Republican v. Sorrell and Sorrell v. Randall (04-1528, 04-1530 and 04-1697), consolidated for one hour hearing – State authority to restrict campaign spending and contributions
Marshall v. Marshall (04-1544) – Federal court jurisdiction over probate case

Wed., March 1
DaimlerChrysler v. Cuno and Wilkins v. Cuno (04-1704 and 04-1724), consolidated for one hour hearing – Constitutionality of investment tax credit to spur economic development
Northern Insurance Co. of NY v. Chatham County (04-1618) – Challenge to sovereign immunity of county to admiralty lawsuit.

The Supreme Court has given the federal government an extra 18 days to submit its response to the appeal by Jose Padilla, a U.S. citizen who is seeking to challenge his designation as an “enemy combatant” in the war on terrorism. The government had been scheduled to file its response Monday, but obtained an extension last week, until Dec. 16. The extension only appeared on the Court’s electronic docket after the holiday last week; it was granted last Wednesday.

Padilla has been held for nearly three and a half years in a Navy brig in Charleston, S.C. As his appeal moved forward in the Supreme Court, the Justice Department decided to remove him from military custody, and obtained an indictment of him last week in an already pending case against others in federal court in Miami. His transfer from military to civilian custody is awaiting action by the Fourth Circuit on a government request for permission to do so.

The Department has announced that, in its reply to the Supreme Court, it will urge the Court to dismiss the case as moot because of the changed circumstances in his status. President Bush, who designated Padilla an “enemy combatant” on June 9, 2002, on Nov. 20 issued a new order to transfer Padilla to civilian custody. The new order, Bush said, “supersedes” the order naming Padilla a combatant. His defense attorneys, however, have said they have no assurance that he would not be so designated again in the future. They thus will argue that his Supreme Court appeal is not moot.

The Supreme Court on Monday agreed to let the state of New Jersey sue the state of Delaware - directly in the Court — in an interstate dispute over plans to build a large new natural gas loading facility for supertankers along the Delaware River that forms a border between the two states. The case will be heard as 134 Original, New Jersey v. Delaware.

A unit of the oil giant, BP, wants to build a bulk liquid natural gas transfer facility — the so-called Crown Landing project — on the New Jersey side of the river, but part of the pier construction would require dredging of underwater lands that Delaware claims as part of its “coastal zone.” State officials in Delaware have denied BP a permit to build the project, finding it would violate state law designed to protect the coastal zone against heavy industrial development.

New Jersey traces its claim to authority to grant a permit for the new facility back to a 1905 compact between the two states settling a boundary dispute between them. New Jersey argues that the compact gives it control over riverbank areas of the Delaware on its side, and thus contends that Delaware may not stop it from authorizing development of those areas. New Jersey asked the Supreme Court to reopen a 1935 decree on the boundary question, to deal with the new controversy over the BP facility. As an alternative, it asked the Court to let it file a new lawsuit — an original complaint, in constitutional terms — to put the controversy before the Court.

In a brief order, the Court refused to reopen the 1935 decree, but then gave New Jersey permission to file the new lawsuit, docketing it as 134 Original. The Court had previously dealt with the boundary dispute in No. 11 Original, leading to a 1935 decision.

Delaware tried unsuccessfully to persuade the Court not to hear the new dispute over the gas-transfer facility. Among other arguments, Delaware contended that the real party with interests in the case is BP, not the state of New Jersey. The state also said that federal reviews of the proposal have not been completed, so it is not certain that the current status of the plan will not change.

The Court gave Delaware 30 days to file a formal answer to the new complaint. Once the case goes forward, the Court is expected to name a special master to gather facts and propose legal conclusions to resolve the dispute.

A block of Vermont marble fell off the front pediment of the Supreme Court building Monday morning. No one was struck by the falling rock.

About the size of a large loaf of bread, the piece fell onto the Court’s front marble steps, chipping off several smaller pieces. It occurred at about 9:30 a.m., before the Court took to the bench for the day’s proceedings.

The Supreme Court said engineers were investigating the cause. At the time of the incident, tourists and other spectators were assembling at the foot of the steps, but no one was on the steps at that moment, the Court’s spokespersons said.

The item was part of the dentil molding on the West Pediment, the third from the top, above marble figures and above the Court’s main entrance. (Here is a dictionary definition of dentil: “One of a series of small rectangular blocks projecting like teeth from a molding or beneath a cornice.”)

The West Pediment represents “Liberty Enthroned,” guarded by figures of Order and Authority. The broken dentil is just above the figure of Authority. The Pediment rises above the Court’s famous chiseled slogan, “Equal Justice Under Law.”

Is available here.

The Supreme Court agreed on Monday to decide when a federal court is to issue an injunction after finding that a patent has been infringed. In accepting a case involving the online auction site, eBay, the Court also asked attorneys to argue whether the Court should reconsider prior precedents on the issue. (eBay v. MercExchange, 05-130.) The Federal Circuit had ruled that a finding of patent infringement must lead to a permanent injunction, in all but exceptional cases. Among the Court’s precedents that it will be reexamining in reviewing the case is Continental Paper Bag Co. v. Eastern Paper Bag Co. in 1908, according to Monday’s order adding a question for review.

The Court also sent a strong signal that it is not ready to confront the question of retroactive application of its decision early this year in Booker v. U.S. limiting federal criminal sentence enhancements based on facts not found by a jury. The Court denied review in 11 cases on the issue, including a case, Clark v. U.S (05-5491), in which the Solicitor General waived a response, and the Court then asked for one. As usual, there was no explanation for any of the denials. The Solicitor General had argued that Booker should not be applied retroactively, because it failed the “new rule” test of the 1989 decision in Teague v. Lane.

The Court agreed, for the third time, to review the question of the right of managers of employee benefit plans to sue to recover benefits from money that a plan participant received from another source. (Sereboff v. Mid Atlantic Medical Services, 05-260). Lower courts are split on the issue, which the federal government has said may affect more than $1 billion a year in potential reimbursement claims by benefit plans.

And the Court, replacing a case that was dismissed two weeks ago, took on a new test of whether a company seeking civil damages under RICO for mail or wire fraud must prove that it relied on the fraud and was injured as a result. The “reliance” issue has divided the lower courts as they have struggled to interpret a 1992 Supreme Court decision in Holmes v. Securities Investor Protection Corp. The new case is Anza v. Ideal Steel Supply Corp., 04-433).

The Court asked the Solicitor General for the federal government’s views on the case of Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co. (05-381), testing the proof required under antitrust law in a case involving alleged predatory buying — an issue that arises as a sequel to the Court’s predatory selling decision in 1993 in Brooke Group v. Brown & Williamson Tobacco Corp.

In a summary decision, without dissent, the Court ruled that the Sixth Circuit had erred in deciding an issue of state criminal law in direct contradiction of an interpretation given that law by the Ohio Supreme Court in the same case. The issue arose in a murder case in which Kenneth T. Richey was convicted of killing a two-year-old girl by starting a fire that was intended to kill the girl’s mother — Richey’s ex-girlfriend — and her new boyfriend. Richey was convicted on a theory of transferred intent for the death of the child. Her mother and the boyfriend escaped unharmed. The Supreme Court decision came in the case of Bradshaw v. Richey (05-101).

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The Supreme Court will hear argument Monday concerning when a plaintiff who sued the federal government for an alleged constitutional violation is barred from suing individual government employees for the same conduct. The Court has also directed the parties to argue whether the Second Circuit was correct to hear an appeal on the issue even though no final judgment had been issued in the case.

Will v. Hallock arises under the Federal Tort Claims Act, which authorizes suit against the United States for many torts by government employees. As the Federal Tort Claims Act giveth, however, so it taketh away, by limiting plaintiffs’ ability to sue government employees in their individual capacities. The Act’s “judgment bar” states that “[t]he judgment in an action under [the FTCA] shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the Government whose act or omission gave rise to the claim.” The judgment bar clearly prohibits plaintiffs from bringing tort suits against government employees when they have won or lost a FTCA suit against the government on their claim’s merits. But the courts of appeals disagree over whether the judgment bar also takes effect when a suit against the government was dismissed because it was not authorized under the FTCA at all.

Assistant to the Solicitor General Douglas Hallward-Driemeier will argue for the government that the plaintiffs’ suit against government employees in this case was barred. Allison M. Zieve of Public Citizen Litigation Group will argue for respondents Susan Hallock and Ferncliff Associates that the lawsuit was permitted. The opening briefs are available here. The government’s reply brief is available here.

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Tomorrow the Court will hear oral arguments in Wachovia Bank v. Schmidt, No. 04-1186. That case involves the question whether, for purposes of diversity jurisdiction, a national bank is considered a citizen of every state in which it maintains branches, even when its main office is in a different state. 28 U.S.C. 1348 states that national banks “shall, for the purpose of all other actions by or against them, be deemed citizens of the States in which they are respectively located.” The question for the Court is what Congress meant by “located” – did it mean only the state(s) where the bank has its principal place of business and possibly where it was first organized, or did it mean every state where the bank has a physical presence? Petitioner Wachovia Bank argues that the Fourth Circuit incorrectly held that Congress intended the broad meaning of “located,” thereby limiting the ability of national banks to access federal courts. Respondents Daniel G. Schmidt, III, et al., argue that the Fourth Circuit correctly interpreted the plain meaning of “located” as anywhere a bank has a physical presence.

Andrew L. Frey will argue for the petitioner. Sri Srinivasan, Assistant to the Solicitor General, will argue for the United States as amicus curiae supporting the petitioner. James R. Gilreath will argue for the respondent. The parties’ briefs are available here, and the amicus brief of the United States can be found here.

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On Tuesday the Court will hear the case of Buckeye Check Cashing, Inc. v. John Cardegna, et al., No. 04-1264. This case presents the question whether the Federal Arbitration Act allows a party to avoid arbitration by claiming that the underlying contract containing an arbitration clause (but not the arbitration clause itself) is void for illegality.

Petitioner argues that if the arbitration clause is itself valid, then the arbitrator determines the legality of the underlying contract, a result compelled by the Court’s decision in Prima Paint Corp. v. Flood & Conklin Manufacturing, Co. and the federal policy of favoring arbitration. Respondents contend that neither Congress nor the Court intended to preempt state courts from adjudicating the threshold issue of whether there has been a contract at all.

Christopher Landau will argue for the petitioner. F. Paul Bland Jr. will argue for the respondents.

The opinion of the Florida Supreme Court is available here.
The brief for petitioner is available here.
The brief for respondents is available here.

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The upcoming issue of Lews & Clark Law Review will focus on federalism after Gonzales v. Raich. It features a forward by Randy Barnett and articles by Ann Althouse, Thomas Merrill and others.

On Concurring Opinions Dave Hoffman has this post on legal realism and Judge Alito responding to this post by Ann Althouse.

Here the Washington Post reports on the debate over Judge Alito’s stance on one person-one vote.

Sentencing Law & Policy has this post discussing this Boston Globe article on the impact a Justice Alito might have on criminal cases.

Criminal Appeal has set up this site tracking the potential split of the 9th Circuit.

The Legal Theory Bookworm recommends Arguing Marbury V. Madison, edited by Mark V. Tushnet.

Here the Volokh Conspiracy links to the text of Judge Ray Randolph’s recent speech to the Federalist Society about Judge Henry Friendly’s never-published abortion opinion.

Here is the Hearing List of attorneys arguing the dozen cases in the sitting that begins this coming Monday. Not surprisingly, the Solicitor General is arguing both the Ayotte abortion case (for the U.S. as amicus) and the Solomon Amendment case.

It’s not nearly as high-profile as those two, but anyone wishing to see a really top-rate argument is advised to note Whitman v. DOT, the first case to be argued on Monday, December 5th. It features 30-minute arguments from two of the very best oral advocates, Pam Karlan of Stanford Law School and Assistant to the SG Malcolm Stewart. (This is not, of course, meant to to slight in any way the many other superlative advocates arguing this session, e.g., Mahoney/Pincus/Sullivan/Chemerinsky, etc. It’s simply that Karlan and Stewart are not often mentioned in discussions of the SCOTUS bar “elite,” but they really ought to be.) It’s a federal employee rights case. (Disclosure: Goldstein & Howe, which operates this website, is on brief for petitioner.) The questions presented are:

1. Whether 5 U.S.C. 7121(a)’s provision that the negotiated grievance procedures of a federal collective bargaining agreement be “the exclusive administrative procedures” to resolve grievances precludes an employee from seeking direct judicial redress when he would otherwise have an independent basis for judicial review of his claims.

2. Whether the Civil Service Reform Act, 5 U.S.C. 7101 et seq., precludes federal courts from granting equitable relief for constitutional claims brought by federal employees against their employer.

Today we are filing the reply brief in Whitman v. U.S. Dept. of Transportation, No. 04-1131. The brief was prepared by Pam Karlan and the students in the Stanford Supreme Court Litigation Clinic. Prof. Karlan will argue the case on behalf of the petitioner on Dec. 5.

Issue 2 of The Pocket Part, The Yale Law Journal’s online companion publication is now available.

In this issue, Harvard Professor Kenneth Mack takes on the conventional historical account of the NAACP litigation strategy that led to Brown v. Board of Education. Professor Michael Klarman of the University of Virginia Law School, the author of From Jim Crow to Civil Rights, responds, along with Eva Patterson, President of the Equal Justice Society.

Opinio Juris has this post on Jose Padilla’s indictment. PrawfsBlawg also has this post on the case. Here is Jack Balkin on the indictments.

The National Journal has this article asking, “Alito And His Critics: Who Is Outside The Mainstream?”

Slate has this article titled, “Sandra Day O’Connor: A new look at the Supreme Court’s enigmatic ‘controlling force.’”

On the Volokh Conspiracy Randy Barnett has this post on the current status of Raich in the Ninth Circuit.

Here is a memo prepared by Frances H. Pratt from the Office of the Federal Public Defender in Alexandria, Virginia on Criminal Cases in the current Supreme Court Term.

According to ACSBlog Justice Scalia is claiming that Vice President Gore was responsible for the 2000 election controversy.

The American Constitution Society and the George Washington University Law School Student ACS Chapter invites you to:

“FAIR v. Rumsfeld:
The Advocates Speak”

featuring:

Beth Brinkmann, Partner, Morrison & Foerster LLP;
Kenneth Choe, Senior Staff Attorney, ACLU LGBT Rights and AIDS Projects;
Sharon Frase, Associate, Heller Ehrman LLP;
Sharra Greer, Director of Law & Policy, Service Members Legal Defense Network;
Jonathan Hafetz, Associate Counsel, Brennan Center for Justice;
Mark Moller, Senior Fellow, CATO Institute;
Paul Smith, Managing Partner, Jenner & Block LLP;

Moderated by Tom Goldstein

6:00 pm- 8:00 pm
Tuesday, December 6, 2005
Lerner 201
On the corner of H St. and 20th
George Washington University Law School
Washington, D.C.

This event is being held on the day the FAIRargument is heard, and features leading advocates who played important roles in the case.

A reception will follow. There is no charge for this event.

The federal government has obtained a grand jury indictment in Miami of Jose Padilla, a U.S. citizen who has been held in military custody for three and a half years — a move that potentially could affect Padilla’s pending appeal to the Supreme Court.

This is the highest profile criminal case the government has pursued in the “war on terror” since the slowly developing prosecution of Zacarias Moussaoui for an alleged role in the terrorist attacks of Sept. 11, 2001.

Attorney General Alberto R. Gonzales discussed the Padilla indictment at a press conference on Tuesday, saying the charges link Padilla to “an alleged North American terrorist support cell.”

The Supreme Court would have the option of denying Padilla’s petition, if four Justices did not vote to hear it. But any other action on it — such as a dismissal for any reason, including the fact of the new indictment — would require a majority of five votes because that is the equivalent of a merits decision.

A part of this new legal development was a request to the Fourth Circuit by the Justice Department to authorize Padilla’s release from military custody, so he could be turned over to the warden of a federal prison in Miami. The criminal case could then proceed in civilian courts. The government said Padilla’s lawyers did not oppose that request. Padilla is now being held at the U.S. Naval Brig in Charleston. S.C., where he has been a prisoner since June 2002. On Nov. 20, the government revealed Tuesday, President Bush signed a memo to Defense Secretary Donald Rumsfeld saying it would be in the government’s interest to turn him over to the Justice Department for criminal proceedings.

The indictment actually was a new set of charges, adding Padilla to an existing criminal case in Florida against Adham Hassoun, Mohomed Youssef and Kifah Jayyousi, accused of terrorism-related crimes. Besides adding Padilla, the indictment also named a Canadian national, Kassem Daher.

“All of these defendants,” Attorney General Gonzales said, “are alleged members of a violent terrorist support cell that operated in the United States and Canada….As alleged in the indictment, this cell supported terrorists by sending money, physical assets, and new recruits to overseas jihad conflicts. These defendants also took steps to disguise their fundraising and recruitment activities by speaking in code and using non-governmental organizations as a front for illegitimate activities.” A conviction of the charges could lead to a life prison sentence.

The indictment was returned Nov. 17, and unsealed Tuesday morning. It includes 11 counts against Padilla and the four others, charging them with conspiracy to murder U.S. nationals and providing “material support to terrorists” in North America, according to a Justice Department statement announcing the indictment.

Padilla has been designated an “enemy combatant,” but until now has been held without any charges. His appeal to the Supreme Court raised this first question: “Does the President have the power to seize American citizens in civilian settings on American soil and subject them to indefinite military detention without criminal charge or trial?”

A response to the Supreme Court petition from the Justice Department was due next Monday. The Solicitor General is expected soon to suggest to the Court that the appeal is now moot and should not go forward, in view of the new criminal charges. In one of the legal documents released Tuesday, Justice Department lawyers expressly contended that, “because petitioner has been charged with a crime and is being released from military custody, this habeas action is now moot.” That document also said that, when the Solicitor General files a response to Padilla’s Supreme Court petition, the government “will address the impact of these recent events on the certiorari petition.”

Padilla’s attorneys, however, are expected to contest that argument, contending that the underlying issue of presidential power remains a live issue, a question capable of recurring in future cases. The case “is anything but moot,” said Jonathan M. Freiman of the New Haven law firm of Wiggin and Dana, one of Padilla’s attorneys. “The government still claims the power to seize American citizens in civilian settings in the United States and detain them in military prisons indefinitely and without charge. It claims that power over Padilla and it claims that power over every American citizen….It’s a classic case of capable of repetition yet evading review.”

Timothy Lynch, a criminal law expert at the Cato Institute, a libertarian organization in Washington that opposes the Bush Administration’s handling of “enemy combatants,” said in a statement that Tuesday’s indictment “is a clear indication that Mr. Bush’s legal team believe the Supreme Court would declare his ‘enemy combatant’ theory to be illegal. Mr. Padilla has been charged with a crime to keep this litigation away from the Supreme Court.”

Attorney General Gonzales, however, said the criminal charges were brought to show that “we will use every tool at our disposal in vigorously fighting the war on terrorism….This case…is a classic example of why the criminal justice system is one of those important tools.” He said the investigation “has been underway for quite a while now.”

The Bush Administration has already suffered a partial defeat in one case before the Supreme Court involving long-term detention of a U.S. citizen suspected of terrorism — the case of Hamdi v. Rumsfeld. Yaser Esam Hamdi, a citizen, was captured in a battle zone in Afghanistan. The Court’s decision in 2004 ruled that Hamdi could be detained, but that he should have an opportunity to challenge his prolonged detention. Before that process could occur, the government arranged for him to be sent to Saudi Arabia to live. Though a U.S. citizen, he had spent much of his life in Saudi Arabia.

In Padilla’s case, the Fourth Circuit ruled that he could be held by the military, under the Hamdi precedent. That Court said it made no difference that Padilla was captured on U.S. soil — at O’Hare Airport in Chicago — instead of in a foreign battle zone, because he still posed a threat to return to terrorist activity against the U.S.

A federal judge in South Carolina earlier had ruled that Padilla should either be released, or charged with a crime in civilian court. Rather than do either, the government appealed to the Fourth Circuit, where it prevailed, leading to Padilla’s petition to the Supreme Court, filed Oct. 25.

(Thanks to Richard Samp of Washington Legal Foundation for an early alert to the new indictment.)

Here is Jeffrey Toobin’s article from the upcoming edition of The New Yorker.