(The Chief Justice’s year-end report was issued by the Court with an embargo on publication until just after midnight Sunday. News accounts of the report, however, have appeared Saturday evening on other online sites — some as early as shortly after 8 p.m. Because other sites have treated the report as available for early publication, this blog — following a custom among news organizations in similar circumstances — is going ahead with its own account.)
(UPDATE January 1, 2006: The report is available on the Court’s website, here.)

Chief Justice John G. Roberts, Jr., in his first annual report on the state of the courts, contended that the federal courts are paying too much rent for their space and, in fact, are being treated unfairly as a tenant.

“Unlike many other elements of the federal government,” Roberts said, “the judiciary is required to pay a large and ever-increasing portion of its budget as rent to another part of the government – the General Services Administration.” (GSA is the government’s property manager, among its other duties.)

The Chief Justice cited data, compiled by the courts, that they are spending almost 16 percent of their total budget on rent to GSA. By contrast, he said, “the Executive Branch as a whole spends less than two-tenths of one percent of its budget on GSA rent.”

The total the courts paid for rent during the fiscal year that ended Oct. 1 was $926 million, Roberts said. But, he contended, it cost GSA only $426 million to provide that space. He did not explain the difference between the two figures, but his complaint was very clear: “The federal judiciary cannot continue to serve as a profit center for GSA.”

His message did not suggest a solution. The judiciary, he said, must “find a long-term solution to the problem of ever-increasing rent payments that drain resources needed for the courts to fulfill their vital mission.”

As Chief Justice William H. Rehnquist regularly did in his year-end reports, Roberts registered a new and fervent protest that federal judges are paid too little. The new Chief Justice said that judges are leaving the bench in increasing numbers, at least partly due to the salary scales. Since 1990, he recalled, 92 judges have ended their court careers, with 21 leaving before they reached retirement age. In the past five years alone, 37 judges have given up their seats, and nine did so in the last year.

Despite Rehnquist’s repeated calls for higher pay, Roberts said, “the situation has gotten worse, not better.” Even if Congress were to raise judges’ salaries now by 30 percent, he estimated, that would put them at their 1969 salary level, after adjusting for inflation.

The Chief Justice also called for action by all branches of government to take steps to improve safety and security for judges and court employees, “both within and outside courthouses.” He cited the murders of the husband and mother of a federal judge in Chicago by “a disappointed litigant” and the killing of a judge, a court reporter, and a police officer by a prisoner at a courthouse in Atlanta.

Roberts suggested he was being “a bit presumptuous” to issue a year-end report, barely three months after taking the oath as Chief Justice.” But, he said, he would not break a 30-year-old tradition, begun by Chief Justice Warren E. Burger.

The legal defense team for Jose Padilla, a U.S. citizen designated an “enemy combatant” in the war on terrorism, on Friday afternoon urged the Supreme Court to order his release from a Navy jail, but not until it first considers his appeal at a private Conference on Jan. 13.

Resisting the Bush Administration plea on Wednesday to have the Court act swiftly to allow Padilla’s transfer to civilian custody to await trial on new criminal charges, Padilla’s attorneys said the government was seeking “an advisory opinion” on the underlying issue of court power to order transfers of prisoners while their cases are pending in the Supreme Court. The government’s application, Hanft v. Padilla, 05-A-578, was filed with Chief Justice John G. Roberts, Jr., but Padilla’s lawyers asked that the full Court act on it. (The government’s application is here and Padilla’s response is here.)

“Padilla is certainly eager to be released from the military brig where he has been held virtually incommunicado and in solitary confinement for the past three and a half years,” his attorneys said. But, “at the tail end of more than three years of nearly incommunicado military detention, Padilla is content to wait two more weeks in order to have his transfer approved through ordinary judicial processes, in the hopes that the government’s continuing threat to return him to the military prison will eventually be lifted once and for all.”

Padilla’s appeal challenging his designation as an “enemy combatant” and his prolonged detention in the brig in Charleston, S.C., is to be examined by the Justices at Conference on Jan. 13. (The appeal is Padilla v. Hanft, 05-533.) His attorneys on Friday suggested that the Court consider the transfer issue along with his petition for review and, if it grants review, “simultaneously authorize his release from military custody pursuant to the habeas petition….Indeed, the very order granting certiorari and setting a briefing schedule could order Padilla’s physical release from military custody….Were this Court to grant certiorari at the conference, it would have jurisdiction to order Padilla’s immediate release from military custody because that is part of the relief sought in the habeas petition.”

But, their reply went on, such a release “would not moot the case or otherwise impair this Court’s jurisdiction….Padilla’s transfer would not run afoul of the immediate custodian or territoriality requirements of the habeas statute.” Despite the government claim that the transfer would end military authority to detain him, Padilla’s lawyers said, “nothing prevents the President from reauthorizing Padilla’s military detention at any moment.” The government, the reply added, “has refused to provide any assurance that it will not again detain him as an enemy combatant if he is acquitted….Until the government proves that its wrongful conduct will not recur, this controversy is live.”

Padilla’s counsel suggest that his release from the brig on Jan. 13 would not be moot for an additional reason: release from Pentagon custody is not the only relief he is seeking in his appeal; he also wants the courts to rule that his designation and detention were unlawful in the first place.

The response launched a sharply critical attack on the government’s position on a rather obscure legal issue that the government has now injected into the case — the scope and use of Supreme Court Rule 36. That rule, though arcane to a lay reader, has come to play a central role in the constitutional separation-of-powers issues that the government says have been raised by a lower court’s refusal to promptly approve Padilla’s transfer out of Pentagon custody.

The Rule 36 aspect of the controversy, in short, has turned the Padilla case into an even more serious constitutional conflict than it already was.

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On Balkinization law professor Sandy Levinson has this post on Alito and executive power.

PrawfsBlawg has this post on the relationship between Padilla’s case and the companion case to Korematsu, Ex parte Endo. In Ex parte Endo the Supreme Court granted a habeas petition filed by a Japanese-American internee on the ground that the government (through the War Relocation Authority) lacked the authority to hold her.

Sentencing Law & Policy has this post on whether or not Alito’s death penalty jurisprudence could mean trouble for his nomination.

The Volokh Conspiracy has this post on Kelo. It references an article from the the New London Day newspaper that has uncovered the depth of the Pfizer’s involvement in motivating the government’s exercise of the eminent domain power to take the Kelo plaintiffs’ homes. The Volokh Conspiracy also has this post with an op-ed by Randy Barnett on whether or not the “new federalism” will survive Justice Rehnquist’s death.

The Washington Post’s blog, Campaign for the Supreme Court, has compiled this sampling of headlines various news outlets chose to place on the story about a 1984 memo in which Alito urges the Solicitor General to support qualified immunity for the attorney general in a wiretap case.

Jeffrey Rosen, professor of law at George Washington University and legal affairs editor at the New Republic; and Stuart Taylor, a columnist with National Journal and a fellow at the Brookings Institution discuss the Alito nomination at the Online NewsHour here.

The Supreme Court is now scheduled to consider the appeal by terrorism suspect Jose Padilla at its Conference on Friday, Jan. 13. The distribution was reported Wednesday on the Court’s electronic docket. If the Court grants review at that point, the case probably would be heard and decided in the current Term. The case is Padilla v. Hanft (05-533).

Before then, the Court is expected to act on the Bush Administration’s request to approve the transfer of Padilla from military to civilian custody. The application is Hanft v. Padilla (05-A-578).

C-SPAN3 HISTORY - Supreme Court Confirmation Archives

December 27-January 8

The confirmation hearings for Supreme Court nominee Samuel Alito are scheduled to begin January 9th. Beginning Tuesday, December 27th, C-SPAN3 History will present portions of archived confirmation hearings for eight Supreme Court justices. We will also show the confirmation hearing for 1987 Supreme Court Nominee Robert Bork. Each block is approximately 3 hours in length.

Tuesday, December 27
10 a.m. - 1p .m. (William Rehnquist)
10pm - 1 a.m. (Antonin Scalia)

Wednesday, December 28
10 a.m - 1 p.m. (Robert Bork)
10pm - 1 a.m. (Anthony Kennedy)

Thursday, December 29
10am - 1 p.m. (David Souter)
10pm - 1 a.m. (William Rehnquist)

Friday, December 30
10am - 1 p.m. (Antonin Scalia)
10pm - 1 a.m. (Robert Bork)

Saturday, December 31
10am - 1 p.m. (Anthony Kennedy)
10pm - 1 a.m. (David Souter)

Tuesday, January 3
10pm - 1a.m. (Clarence Thomas)

Wednesday, January 4
10pm - 1a.m. (Ruth Bader Ginsburg)

Thursday, January 5
10pm - 1a.m. (Stephen Breyer)

Friday, January 6
10pm - 1a.m. (John Roberts)

NOTE: These portions will all reair on January 1, 2, 7 & 8.

The Bush Administration, protesting that the Fourth Circuit Court has engaged in an “unprecedented and unfounded assertion of judicial authority,” on Wednesday asked the Supreme Court to order the prompt transfer of terrorism suspect Jose Padilla out of military custody and into a regular federal prison.

The new filing, escalating the inter-branch constitutional conflict that has now arisen over Padilla, complained that the lower court had made “an unwarranted attack on the exercise of Executive discretion,” raising “profound separation-of-powers concerns” if not remedied swiftly. “The Fourth Circuit’s order defies both law and logic,” the new filing contended.

Without waiting to see how the Justices would react to the rapid change of circumstances recently in Padilla’s case, Solicitor General Paul D. Clement filed an application to shift Padilla to the Federal Detention Facility in Miami, so that he can face new criminal charges claiming he aided terrorism abroad. The Fourth Circuit last week refused to allow that transfer, saying the government may be trying to undercut Padilla’s pending appeal to the Supreme Court. But the Circuit Court also said it would be up to the Supreme Court to decide Padilla’s placement, and thus Clement turned to the Justices seeking what the lower court had denied.

In refusing the transfer request, the Fourth Circuit, according to the new application, sought “to exercise an unidentified and unprecedented judicial authority to disregard a presidential directive to transfer an enemy combatant out of military custody, despite the agreement of both parties that the transfer should take place.” (Padilla’s lawyers have supported the transfer request, but insist — contrary to the Administration view — that even after a transfer the case would emain a live controversy for the Supreme Court.)

The Fourth Circuit’s action, the application said, “second guesses and usurps both the President’s Commander-in-Chief authority and the Executive’s prosecutorial iscretion in a manner inconsistent with bedrock principles of separation of powers.”

The government’s application, which went to Chief Justice John G. Roberts, is the latest dramatic development in one of the most significant test cases on presidential powers amid the war on terrorism. The Court’s reaction to the new gesture may provide the first sign of how the Justices feel about that constitutional controversy.

The Fourth Circuit in September upheld presidential power to detain Padilla, suspected of planning terrorism acts inside the U.S., as an enemy combatant. That is the decision Padilla is now challenging in his Supreme Court appeal (Padilla v. Hanft, 05-533). But the Bush Administration, in a move that Padilla and the Fourth Circuit interpreted as an attempt to undercut his appeal, obtained criminal charges against Padilla, and decided to take him out of a Navy brig in Charleston, S.C., and then shift him to Miami for a coming criminal trial.

The Fourth Circuit, suggesting that the government’s shifting positions might mean that Padilla’s detention as an “enemy combatant” may have been a mistake, refused to clear the transfer and declined to wipe out its September ruling — a decision that must remain intact if Padilla’s appeal to the Supreme Court is to proceed.

The shifting official treatment of Padilla was the basis of the government’s contention earlier that his appeal to the Supreme Court is now moot, and should be denied. In Wednesday’s application, the government said that, regardless of the outcome of that appeal, “the Court should make clear as expeditiously as possible” that nothing in federal law “prevents the military from executing the President’s [transfer] order, releasing Padilla from military custody, and transferring him to civilian custody.”

The application accused the Fourth Circuit (in its recent opinion, written by a conservative judge, J. Michael Luttig, who until now had been an Administration favorite) of relying upon “an incomplete characterization of events and an unfounded and unwarranted attack on the exercise of Executive discretion.”

Technically, the Fourth Circuit had based its refusal to order Padilla’s transfer from a Navy brig in part on its understanding of a Supreme Court rule, Rule 36. That rule opens with this provision: “Pending review in this Court of a decision in a habeas corpus proceeding commenced before a court, Justice, or judge of the United States, the person having custody of the prisoner may not transfer custody to another person unless the transfer is authorized under this Rule.” It also provides for approval of a request for transfer on application.

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Should an elected judge, who accepts large campaign donations, sit on a case that directly affects the financial or business interests of the donors and their associates? Put as an ethical question, the answer would seem to be obvious: No. But the Supreme Court is being asked to rule on that question as a constitutional issue: does the due process clause create a duty to recuse in such a situation?

If the Court agrees to address the issue in that form, it would be drawn deeply into a particularly tangled political thicket: the financing of state judicial campaigns. Among other issues the Justices might have to confront: how close a link between money and a judicial decision, joined in by a judicial recipient of the money, must there be in order to result in a violation of the guarantee of due process?

The Court is confronted with the issue in the midst of a Term in which it already has agreed to get involved anew — to an unusual degree — in constitutional issues and state politics. It is re-examining the federal campaign law’s limits on grass-roots election advertising, addressing a state campaign law’s curbs on state candidate spending, and studying partisan gerrymandering of congressional districts by state legislatures.

The new question of recusal of elected judges is raised explicitly in a newly filed case from Illinois, involving a justice of that state’s Supreme Court, and a ruling in which he cast one of the deciding votes that scuttled a huge verdict against a private insurance company — a company closely linked to major campaign donations to that justice. The case is Avery, et al., v. State Farm Mutual Automobile Insurance Co. (Filed on Tuesday, it does not yet have an assigned docket number. It probably arrived too late to be decided this Term, if granted.)

Here is the specific question the Avery petition poses: “May a judge who receives more than $1 million in direct and indirect campaign contributions from a party and its supporters, while that party’s case is pending, cast the deciding vote in that party’s favor, consistent with the Due Process Clause of the Fourteenth Amendment to the United States Constitution?”

The petition concedes that the Court “has never directly addressed the requirements of recusal under the Fourteenth Amendment’s Due Process Clause as a result of the appearance of impropriety and the effect on public perceptions of the integrity of the ocurts caused by large campaign contributions to judicial candidates.”

The case grows out of the participation in a decision in State Farm’s favor, in an auto insurance coverage case, of Justice Lloyd Karmeier. The petition to the Court argues that Karmeier raised and spent more than $4.8 million to win a seat on the state court in November 2004. A sizable portion of that sum, the petition contends, came from individuals associated with State Farm, or with organizations of which it was a member or contributor. The petition says he thereafter participated, after refusing to recuse, in the State Farm ruling. His vote, the appeal argues, was decisive in a part of the split decision that spared State Farm from as much as $457 million in damages.

State Farm, which opposed the move to get Karmeier off the case, has 30 days to respond to the appeal.

Attorneys for terrorism suspect Jose Padilla put before the Supreme Court Tuesday a full account of the shifting strategy of the Bush Administration in dealing with Padilla, seeking to persuade the Justices that the government is blatantly attempting to manipulate the courts to gain more power in the war on terrorism.

Answering the Justice Department argument that Padilla’s appeal to the Supreme Court (Padilla v. Hanft, 05-533) is now moot and should be denied, his defense team said the case has become an even more significant test of whether the courts can prevent “an unchecked Executive Branch.” Bolstered by a new ruling by the Fourth Circuit suggesting that his appeal is worthy of Supreme Court review, Padilla’s lawyers said the case “raises questions of profound constitutional importance about the government’s military power over citizens in the homeland.”

To drive the point even harder, the new reply brief became the first document to inform the Court about the spreading controversy over the Administration’s use of secret, no-warrant wiretapping aimed at some communications by Americans inside the U.S. during searches for terrorist activity.

Perhaps the Justices, at least some of whom read and watch the news, already had become acquainted with the deepening political and constitutional controversy over domestic spying and the sweeping new claims by the White House and Justice Department of presidential wartime authority. But Padilla’s lawyers left nothing to chance, turning a formal legal document into something of an indictment of alleged presidential excesses that they suggested are jeopardizing constitutional checks and balances.

Ordinarily, a reply brief in a pending Supreme Court case is little more than a move to claim the final say on the issues at stake, perhaps cleaning up some loose ends of argument. But so much has happened in the 11 days since the government urged the Court to deny review of Padilla’s case that the atmospherics — and perhaps the very substance — of the case may have changed markedly.

When the government submitted its last filing in the Court in the case, it said that “intervening events have, at a miniumum, seriously undercut” the basis for Supreme Court review. The “intervening events” it discussed were President Bush’s decision to have Padilla transferred out of military jail to civilian authorities, to stand trial on criminal charges unrelated to his designation as an “enemy combatant.” The government seemed confident, at that point, that the Fourth Circuit would go along, releasing Padilla from a Navy brig and wiping out the decision that Padilla is challenging in his Supreme Court appeal — a precedent that, although it went against Padilla, must remain intact if his appeal is to go forward.

But there have been other “intervening events” since that government filing in the Supreme Court on Dec. 16, and Padilla’s reply brief brought the Court up to date on those to support his argument that the case should go forward before the Justices. (The reply brief can be found here.)

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Sentencing Law & Policy has this post discussing this New York Times article on Judge Alito and criminal justice issues from his tenure on the 3rd Circuit.

The Volokh Conspiracy has this post discussing this C-SPAN interview with frequent Supreme Court advocate Carter Philips about Judge Alito, his former colleague.

The legal defense team for Salim Ahmed Hamdan, concerned that the Bush Administration might try to scuttle his pending Supreme Court appeal challenging a trial before a war crimes tribunal, this week asked the Court to take steps to assure that the case goes to a final ruling. The request for several alternative forms of review was filed on Monday, to try to head off the possible impact of the so-called Graham-Levin amendment in Congress. (The new filing is In re Hamdan, docket 05-790.)

The Court granted review of Hamdan’s petition (Hamdan v. Rumsfeld, docket 05-184) on Nov. 7. It has not yet been scheduled for oral argument.

The Hamdan case is now the second major war on terrorism case pending at the Court that is faced with the prospect of being put beyond the Court’s reach. The other is the case of Jose Padilla, a U.S. citizen, who has a petition pending (05-533) to challenge his designation and detention as an “enemy combatant.” The Justice Department in recent weeks has engaged in legal maneuvering that the Fourth Circuit Court suggested this week may have been an attempt to prevent Supreme Court review of Padilla’s case. So far, Padilla’s case at the Court remains a live controversy, but the government has argued that the Court should deny review.

The Hamdan case’s fate may turn on the ultimate meaning given to the Graham-Levin legislative amendment. Now adopted in final form in a Pentagon funding authorization measure awaiting President Bush’s signature, that measure will narrow the legal rights of foreign nationals held as terrorism suspects at the U.S. military prison in Guantanamo Bay, Cuba. The Justice Department has not yet signaled how it will interpret the final version, but Hamdan’s attorneys told the Court they “believe it is possible that the government may…urge this Court to dismiss the petition in No. 05-184 in light of this new legislation.”

The new petition, his lawyers told the Court, “is filed to protect this Court’s jurisdiction only as necessary, i.e., to the extent that the Court concludes that the Graham-Levin Amendment precludes ruling on the merits” of his pending appeal challenging the “military commissions” created by President Bush to try foreign nationals like Hamdan, who is a Yemeni citizen.

Sen. Carl Levin (Michigan Democrat), one of the architects of the rights-curtailing amendment, said Thursday that he understood the final version would not deprive the Court of the authority to go ahead and rule on Hamdan’s case. But there appears to be some measure of uncertainty about whether Levin’s view would be shared universally, since the text of the final version does not say explicitly that pending cases like Hamdan’s would not be affected.

“This petition,” his attorneys told the Court, “is filed out of an abundance of caution to preserve the multitude of possible avenues for this Court’s exercise of jurisdiction over Hamdan’s appeal. As lawyers for petitioner, undersigned counsel have an obligation to ensure that all of this Court’s jurisdiction remains available.”

The petition asks for either an extraordinary writ, including possibly a writ of mandamus, or an original writ of habeas corpus — one filed directly in the Supreme Court, rather than reaching the Court after lower court consideration. Hamdan’s pending appeal came up as a regular habeas case from U.S. District Court and the D.C. Circuit Court.

Hamdan’s attorneys told the Court that they were not waiving their right to contest the applicability of that amendment to a case that already is under review by the Justices, or their right to challenge its constitutionality if the amendment is read to apply to his case.

An interesting facet of the new filing is the lawyers’ reliance on one of the most famous cases to come out of the Supreme Court in the aftermath of World War II — the case of In re Yamashita, involving a Japanese general tried and convicted by a U.S. military commission for war crimes. The Court heard that case on habeas corpus, though ultimately ruled against the general’s challenge. That case, Hamdan’s lawyers noted, involved both a petition for certiorari and a request for an original writ.

Today we are filing this petition for cert. in Pierce v. United States. The case raises the question whether a federal district court may order that its sentence in a criminal case shall run consecutively to a future state sentence that has not yet been entered, or whether federal law leaves that decision to the later sentencing court.

The final congressional measure narrowing the legal rights of foreign nationals detained in the war on terrorism is a complex set of interrelated provisions. The best explanation so far available of the changes made in recent days is contained in a statement made on the Senate floor Thursday by Senator Carl Levin, Michigan Democrat, one of the architects of the so-called “Graham-Levin amendment.” (The detainee provisions are in the National Defense Authorization Act, passed in final form by the Senate late Wednesday, and by the House this past Monday. President Bush is expected to sign the measure into law.)

Levin’s full statement about the final bill can be found here. This is a lengthy document; scroll down to the section that begins with “Detainee Treatment.” This is not the actual language of the compromise result, but the senator does recount quite clearly how changes were made in the Senate-House Conference Committee from the original Graham amendment and from the later Senate-approved Graham-Levin version.

Among other comments, Levin suggests that the final version would not deprive the Supreme Court of a chance to go ahead with its review of the Hamdan v. Rumsfeld case (docket 05-184), testing the constitutionality of the war crimes tribunals set up at Guantanamo Bay, Cuba. It may also not undercut the existing D.C. Circuit case on the rights, if any, that detainees have to challenge continued imprisonment at Guantanamo.

In a deeply serious setback for the Bush Administration’s legal strategy for the war on terrorism, the Fourth Circuit Court on Wednesday afternoon kept intact its ruling in the now-celebrated Jose Padilla case, suggesting that the Administration may be trying to manipulate the judiciary by attempting to prevent Supreme Court review. The Circuit panel also raised questions about the government’s credibility in claiming a dire need to designate Padilla as an “enemy combatant” and thus to confine him — for more than three years now — in a military jail, and about its overall credibility in presenting war on terrorism cases to the courts.

The language used in the opinion — reflecting a studied attempt to be temperate, yet coming out as tellingly sharp-edged — could only be interpreted as the sternest of judicial rebukes on issues of fundamental importance to President Bush’s war against global terrorism. The ruling was doubly effective because it was written by Circuit Judge J. Michael Luttig, who has been considered by President Bush as a potential nominee to the Supreme Court and who is one of the most conservative federal appellate judges in the nation.

The Circuit Court denied the government permission to transfer Padilla out of military custody — a transfer that had a strong probability of keeping the case out of the reach of the Supreme Court. Padilla’s appeal to the Justices is pending (Padilla v. Hanft, docket 05-533), and is likely to be acted upon by the Court in January. At this stage, the first issue for the Justices will be whether to grant or deny review of the Fourth Circuit’s Sept. 9 ruling.

Judge Luttig, writing for a three-judge Fourth Circuit panel, said “we believe that the transfer of Padilla and the withdrawal of our opinion at the government’s request while the Supreme Court is reviewing this court’s decision of September 9 would compound what is, in the absence of explanation, at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court.”

In addition, Luttig said: “We believe that this case presents an issue of such especial national importance as to warrant final consideration by that Court, even if only by denial of further review.” Thus, he said, “we deny both the motion [to transfer] and suggestion [to vacate the Sept. 9 decision].”

If the normal path for “this significant litigation to conclusion” is to be stopped “at this late date under these circumstances, we believe that decision should be made not by this court but, rather, by the Supreme Court of the United States,” the panel opinion said.

The Administration last week asked the Supreme Court to deny review of the case, saying it was now moot because Padilla had been charged with a crime in civilian court, and thus there was no longer a legal basis for keeping him in military custody as an “enemy combatant.” That maneuver followed the government request to the Fourth Circuit to clear the transfer of Padilla to a federal prison in Miami, so he could be tried on the new charges.

But, with Wednesday’s action by the Fourth Circuit, the government is left in a position to either let the case go forward without change in the Supreme Court, or else try to persuade the Court to act on its own to order Padilla’s transfer to civilian custody and to vacate the Fourth Circuit opinion of Sept. 9. The Justice Department said in a statement by press officer Tasia Scolinos that it was considering its options. It did not react to the tone of the Circuit Court ruling, but did remark that presidential authority to detain terrorist suspects “should not be viewed as an obstacle to an exercise of the government’s undoubted authority to prosecute federal crimes, including those related to terrorism.”

There was no mistaking the pique of the Fourth Circuit at the government’s maneuvering in that court, and in its series of switched positions on Padilla.

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The New York Times has this article on the fact that, despite a Supreme Court holding prohibiting the execution of the mentally retarded, the Fifth Circuit has held that a Texas death row inmate who may be retarded cannot raise the issue in federal court because his lawyer missed a filing deadline. The cases is also discussed by the Houston Chronicle and Dallas News.

Here is Concurring Opinions and the Volokh Conspiracy on the constitutionality of warrantless NSA surveillance. Balkinization has a series of posts on the issue. Here is the most recent.

The Campaign Legal Center has posted the briefs from Wisconsin Right to Life, Inc. v. FEC.

In Slate, here is Rick Hasen with commentary on why the Court’s agreeing to hear the Texas redistricting case might not be good for Democrats.

This week, the Legal Affairs Debate Club asks, “When Can Congress Remove Judges?” Article III of the Constitution says that judges “shall hold their offices during good behavior.” To remove misbehaving judges, the Constitution specifies the process of impeachment, but this hasn’t stopped members of Congress from trying to figure out how else to get rid of judges they don’t like. Debating whether or not this is acceptable are Todd D. Peterson, Professor of Law at The George Washington University Law School and Saikrishna B. Prakash, Herzog Research Professor of Law at University of San Diego Law School.

In nomination news:

Here is a report issued by Yale Law students and faculty on the “Alito Opinions.”

In a remarkable public discussion over the past three days of one of the most closedly guarded, secret government programs, President Bush and his top aides have provided basically two legal arguments to justify his orders of electronic eavesdropping on Americans during the war on terrorism. One of those arguments is a familiar one, a constitutional argument that has been relied upon repeatedly by the government from the very beginning of that war — yet not accepted, so far, by the Supreme Court, or even by any single Justice. The other is a fallback argument, but one that, interestingly, now reflects a significant change in the government’s thinking over the past few years.

The President’s unusual live radio address on Saturday, television talk show appearances by top aides on Sunday, a presidential press conference Monday, and a legal briefing at the White House, also on Monday, together provide the fullest account yet of the administration’s sweeping claim of Executive authority in the gathering of intelligence about potential terrorist plots, even when that involves listening in on some conversations by Americans in this country.

There does appear to be, somewhere in still-secret government files, one or more legal memoranda that give legal chapter-and-verse specifics seeking to justify the now-public claims of presidential power. But whether or not those papers ever emerge, this week’s public airing of the rationale for this intelligence-gathering venture has already filled in the basics.

It is possible, of course, that these arguments some day could become the stuff of an ultimate test case before the Supreme Court. If the Court proceeds (despite developing complications) to decide the pending challenge to the war-crimes military commissions (Hamdan v. Rumsfeld), or to the designation of a U.S. citizen as an enemy combatant (Padilla v. Hanft), the Court could confront a species of this constitutional claim. But there are, for now at least, serious questions about who might be able to test the claim in the context of electronic spying on Americans inside the U.S.

Even so, it may be that the White House is on a collision course with Congress, especially since the President and his advisers contend that the President actually needs no legislative authorization for what has been done, and in fact remains entirely free to continue as he has even if Congress were to try to impose a curb.

That, in fact, is the preferred argument, from the President on down. And it will surprise no one who has read any of the Justice Department’s legal briefs and courtroom arguments in terrorism cases that the White House is entirely convinced that the President’s “inherent authority” under the Constitution allows him to do what he alone deems necessary to protect the nation against terrorist threats.

President Bush appeared to bristle at his press conference Monday, when a reporter asked whether the nation was going to see “a more or less permanent expansion of the unchecked power of the executive in American society.” Objecting to the phrase “unchecked power,” the President said he had sworn to uphold the law, and has accepted congressional oversight. He added: “To say ‘unchecked power’ basically is ascribing some kind of dictatorial position to the President, which I strongly reject.”

It is important, then, to examine just what the constitutional claim actually is, and whether, indeed, it does acknowledge limitations. And, at the same time, to examine the fallback argument now being put forth.

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The NACDL’s amicus brief supporting cert. in the Padilla case is available here.

Here Concurring Opinions has a post proposing a new SCOTUSBlog - one operated by the court itself to generate input on the Court’s opinions before they are published.

Here is Tony Mauro with an article about the Court’s annual “Christmas” Party.

The Bush Administration late Friday afternoon urged the Supreme Court to deny review of the challenge by Jose Padilla to his designation as an “enemy combatant” in the war on terrorism, arguing that the case is now moot. “The predicate for this habeas action…no longer exists” because Padilla has now been charged with crime in civilian court, and ordered released from military custody, the brief contended. (The text of the government’s 30-page brief can be found at the link provided in the post just below. The attempt by Padilla’s lawyers to keep the case alive through action in the Fourth Circuit is discussed in the post further below.)

The Court has not yet scheduled the Padilla case (docket 05-533) for consideration, but it is expected to go to a Conference session either on Jan. 6 or Jan. 13. Padilla will now have a chance to reply to the government’s move, and the Court will then have the case distributed to it for grant or denial or review, or other disposition.

The opposing brief by Solicitor General Paul D. Clement basically tracks the argument for mootness that the Court made a week ago in the Fourth Circuit — the court that issued the ruling Padilla is challenging before the Supreme Court. That ruling gave broad support to presidential wartime authority to order the capture and long-term detention of “enemy combatants.”

“The fact that the case is now moot itself calls for denial of certiorari,” the brief contended. “Indeed, that will be psarticularlyo clear if the court of appeals decides to vacate its opinion. But even if the case were not moot, certiorari wouldbe unwarranted at this juncture because the court of appeals’ decision is interlocutory, consistent with this Court’s decisions, and correct on the merits. In any event, the intervening events have, at a minimum, seriously undercut any basis for review in this case.”

Although the Fourth Circuit ruled against Padilla on the basic question of presidential power over “enemy combatants,” Padilla is continuing with a factual challenge in a U.S. District Court in South Carolina.

In opposing Supreme Court review, the government said Padilla’s original habeas challenge, the Fourth Circuit ruling against him, and his Supreme Court petition “are all addressed solely to the lawfulness” of his military detention as an enemy combatant.

Beyond the mootness contention, the brief said that review of the appeal should be denied because of “the prudential axiom that courts should avoid the resolution of sensitive constitutional issues.”

The appeal, it added, cannot be saved on a theory that the underlying controversy is capable of being repeated but might escape court review if so. Repeating its arguments on this point in the Fourth Circuit, the Justice Department brief said it is mere speculation that Padilla could ever again face designation as an “enemy combatant.”

Here is the brief in opposition, with appendix.

Accusing the federal government of repeated attempts to evade court review of its handling of terrorism suspects and of engaging in “gamesmanship” with the courts, lawyers for Jose Padilla urged the Fourth Circuit on Friday to keep intact the ruling in his case in order to allow him to continue to pursue his appeal to the Supreme Court.

In a 40-page brief, Padilla’s defense team said the Fourth Circuit should order his immediate release from a military jail, transferring him to civilian jail, but should postpone any action on wiping out its Sept. 9 ruling until after the Supreme Court has decided for or against review of his appeal. (His Supreme Court appeal is Padilla v. Hanft, docket 05-533; the case in the Fourth Circuit is docket 05-6396). The new brief, with appendices, can be found here.

Although Padilla lost the case in the Fourth Circuit, in a ruling that upheld broad power for the President to order the capture and detention of a U.S. citizen suspected of terrorism, he probably needs to keep that decision on the books in order to have a firm basis for continuing his case in the Supreme Court.

“Padilla,” the new brief said, “believes the appropriate course of action is for this Court to order his immediate transfer to civilian custody, and to defer action on the question of whether to recall the mandate until after the Supreme Court disposes of his petition for certiorari, which is currently scheduled to be considered in early January….The most prudent course of action…is to respect the status quo during the pendency of the appeal before the Supreme Court.”

A week ago, the Justice Department suggested the Fourth Circuit could withdraw its ruling, arguing that it was now moot because Padilla has been charged with crimes in civilian court, and President Bush has ordered his release from military custody. The government, however, has not yet taken explicit steps to remove his designation as an “enemy combatant” — the basis for his seizure and long-term detention in the Navy brig in Charleston, S.C. The government’s Dec. 9 brief in the Fourth Circuit can be found here.

The Justice Department was due to file its response to Padilla in the Supreme Court later Friday. It has already said it will ask the Court to dismiss that appeal as moot.

Padilla’s attorneys, in their new plea to the Fourth Circuit, argued that a network of federal court rules seeks to ensure that “habeas petitions cannot be mooted merely because the federal government transfers a prisoner when a habeas petition is pending in the federal court system.”

Recalling the Sept. 9 mandate in his case, his lawyers contended, should be a last resort. “The Supreme Court is currently contemplating review of this case and, without the use of any extraordinary powers, can fully consider the effect of the changed circumstances on the legal issues at stake. Deference and comity to the Nation’s highest court should counsel this Court to hold its power ‘in reserve’ until the Supreme Court disposes of the petition for certiorari. Such a course of action would avoid the unnecessary exercise of a power that should be used only as a ‘last resort’”

If the Supreme Court does deny review of his appeal, his attorneys said, the Fourth Circuit should then recall its mandate and vacate its deicsion. “The government has repeatedly altered its factual allegations to suit its goals, and it has actively manipulated the federal courts to avoid accountability for its actions. Its egregious conduct unquestionably constitutes good cause to recall the mandate and vacate — or even reverse — the opinion. Absent vacatur or reversal, this Court’s opinion will stand in history not for its legal principles, but as a blow to the integrity of the judicial process and a mark of injustice.”

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Here is the abstract from an article by Richard Lazarus of Georgetown University Law Center on “Justice Scalia and the Faltering of the Property Rights Movement within the U.S. Supreme Court.”

Here is Slate with an article about Medellin, the Mexican Supreme Court and cross-border justice.

In nomination news:

ACSBlog has this post announcing the distribution of this white paper by Goodwin Liu (Assistant Professor of Law, Boalt Hall School of Law at the University of California-Berkeley) and Lynsay Skiba (J.D. 2005, Boalt Hall School of Law), exploring the record of Judge Samuel Alito in capital cases.

Roll Call has this article (subscription required) on the experiences of Judge Alito’s father in the New Jersey redistricting efforts during the 1960s.

Building on the success of prior auctions for WHR bobblehead dolls (which brought in more than $2000 each), we’ve put our own up for auction. The money isn’t for us. We will work with the winning bidder to find a worthy legal services organization to receive the money. The winner makes a donation in the amount of the winning bid, takes any relevant tax deduction, and we send the bobblehead doll (plus a quill from oral argument) as an expression of our thanks. Our preference is that it be an organization displaced by Hurricane Katrina, or the Supreme Court Historical Society, but we feel confident we can work it out with the winner. Here’s the auction.

The Supreme Court on Thursday released the briefing and argument schedule for the four cases on the validity of Texas’ 2003 congressional redistricting plan (dockets 05-204. 05-254, 05-276 and 05-439). The brief of the plan’s challengers is due Jan. 10, Texas’ response brief Feb. 1, and the challengers’ reply Feb. 22. The cases will be heard March 1. In noting jurisdiction on Monday, the Court allotted two hours for oral argument. The cases are on an expedited schedule.

Here is the text of the Court’s order:
“The opening briefs of appellants are to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Tuesday, January 10, 2006. The brief of appellees is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Wednseday, February 1, 2006. Reply briefs of appellants, if any, are to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Wednesday, February 22, 2006. The cases are set for oral argument at 1 p.m., Wednesday, March 1, 2006.”

There has been an active exchange in the comments regarding the Court’s failure to call for a response to the jurisdictional statements in the case before noting probable jurisdiction. My bet is that the Court took that step not because it didn’t want to hear from Texas, but because calling for a response would have precluded hearing arguments in March 2006 as the Court intends. Given the numerous relists, it seems likely that the Court secured enough votes to note jurisdiction, or finally agreed on which questions to consider, only at last week’s conference. By that time, it was simply too late. Given that the posture of the cases is relatively clear, the Court could be relatively certain that there was no unseen jurisdictional obstacle to review that would have been pointed out in a motion to affirm.

The website for the Federalist Society’s 2006 Student Symposium is up and running. This year’s event is focused on international law. According to the website:

International law has dominated the Supreme Court’s docket in recent terms in two distinct, but related, forms. The first involves issues that are inherently international in nature—for example the power of the Executive, and protections offered by the Constitution in the war on terror—where the Court has always struggled with its role in the international realm. The second involves the increasing frequency with which the Court involves international law in its decisions in ways it historically has not. The use of foreign sources in the interpretation of the Constitution is the most pressing concern voiced by conservative jurists, and continues to provoke controversy when it is employed to defend reversal of settled U.S. law. This year’s symposium will address the various applications of both of these concerns.