Defense lawyers for war-on-terrorism detainee Salim Ahmed Hamdan told the Supreme Court Tuesday night that the Court’s own role in the plan of the Constitution may be at stake in the interpretation of the new law to strip courts of authority to decide detainee cases. Urging the Court to go forward and decide his challenge to the “military commissions” set up to try captives for war crimes, his attorneys said that the Court should move cautiously in judging whether it has lost its jurisdiction to proceed under the Detainee Treatment Act of 2005.

The 40-page brief is the answer to the Bush Administration’s formal request to the Court on Jan. 12 to dismiss Hamdan’s case swiftly — the same request it is pursuing in other pending cases filed by detainees in U.S. District Court and in the D.C. Circuit Court. In Hamdan’s case, the Circuit Court upheld the constitutionality of the “military commission” that is scheduled to try him.

The Court is scheduled to consider the dismissal motion at its next private Conference, on Feb. 17, but Hamdan’s lawyers urged the Justices not to resolve that issue until it holds a hearing on all of the issues in the case — an argument now scheduled for March 28. It now appears that Chief Justice John G. Roberts, Jr., will not take part in considering the motion. Having sat on the D.C. Circuit when it decided the case, Roberts has taken himself out of consideration of several orders in the case — including one related to the briefing on the jurisdictional issue. The case will be one of the most important early cases confronted by the new Justice, Samuel A. Alito, Jr.

“Reading the [Detainee Treatment] Act to preclude this Court from reviewing the decision below would raise grave constitutional questions,” the Hamdan brief argued. “This Court should not lightly attribute to Congress an intent to interfere with the Court’s constitutional role in enforcing limitations on other branches’ authority.” Within the nation’s judiciary, the Constitution provides for only one Supreme Court, the brief noted, and Congress threatens “the essential role of the Supreme Court in the constitutional plan” if it undercuts that solitary authority to enforce the basic document.

The Court, it argued, “has never held that Congress’ power to make ‘exceptions’ to this Court’s appellate jurisdiction is plenary.” Any time a limit has been upheld, it noted, the Court has “gone out of its way to confirm that an alternative avenue of contemporaneous appellate review was available.”

But, if the Act does scuttle Hamdan’s present case, the lawyers said, he would lose completely the opportunity to make the threshold challenge to the President’s creation of the “commissions” — the core issue that the Court has agreed to hear in his case. The substitute system of limited court review that the Act sets up for those accused before “commissions,” the brief said, “is wholly inadequate.”

“If Hamdan were permitted only to proceed in federal court under the procedures specified by the DTA, no court would have jurisdiction to consider his principal claims that the President’s Nov. 13, 2001, order establishing his commission lacks legislative authorization, or that his commission violates the Geneva Conventions…..No judicial review is available under the DTA until the entry of a final decision….If a final decision is not entered, the individual is without any remedy whatsoever.”

The lawyers said the the Court should not be taken in by government rhetoric suggesting that review of Hamdan’s case will have a deeply distrubing effect on the military’s capacity to wage the war on terrorism. If the “military commission” as it presently exists is found invalid, the brief argued, “Congress stands ready to react” and can try another substitute to deal with terrorist suspects.

Much of the brief dwells on the argument that Congress did not intend to undercut courts’ power to decide pending cases. It ridicules the government’s argument that Congress was merely shifting detainee cses from one forum to another. “At stake is not merely when judicial review of the President;s assertion of power will take place, but whether such review will take place at all,” it contended.

The Act’s actual language, and the history behind its enactment, the defense lawyers said, show that Congress designed the new Act solely to reach later-filed lawsuits that challenge the ongoing administration of the war crimes tribunals after the Supreme Court decided the basic legality of those tribunals. Congress, they add, sought to ensure that Congress would clarify the law as to the “commissions” at the earliest possible time. Realizing that some members of the Court — notably, Justice Antonin Scalia — do not consider legislative history, the brief suggests that the actual words Congress used in the Act are decisive.

The legislative history, though, is examined closely, leading the lawyers to the conclusion that Congress expressly cut out of the bill as it advanced provisions that would apply the court-stripping provisions to pending cases.

Much of that argument is familiar now, since many of the points have been put forward by other lawyers for detainees in other cases. The Hamdan brief, though, is one of the most comprehensive in dealing with the potential constitutional questions that would arise if the Act were read to scuttle existing cases, including Hamdan’s.

“This Court,” the brief argued, “has never had to face the outer boundaries of Congress’ power over its jurisdiction because it has appropriately concluded in past cases that Congress has not entirely closed the courthouse door. If the Court accepts the government’s reading here, it will be required to confront complex and monumental constitutional questions that it has steadfastly avoided since the earliest moments of the Republic, and, in so doing, open the door to any number of legislatve attempts in other areas to repeal jurisdiction…, undermining this Court’s constitutional role as head of a coordinate branch.”

The Ninth Circuit Court, the first lower court to apply the Supreme Court’s new abortion ruling, on Tuesday struck down the federal ban on so-called “partial-birth: abortions. In light of the Justices’ Jan. 18 ruling in the case of Ayotte v. Planned Parenthood of Northern New England, the Ninth Circuit said, “we conclude that the only appropriate remedy is to enjoin enforcement of the Act.” (The new ruling can be found here, thanks to a link provided by Howard Bashman of How Appealing blog.)

(UPDATE: The Second Circuit, in a decision issued shortly after the Ninth Circuit decision became available, also ruled the federal ban unconstitutioinal, but it did not go on to devise a remedy. Instead, it ordered new briefs from the parties on that question and the impact of the Ayotte decision on it — a step that the Ninth Circuit bypassed. The Second Circuit decision can be found here [thanks, again, to Howard Bashman for providing a link.] Senior Circuit Judge Jon O. Newman wrote the main opinion, joiined by Chief Judge John M. Walker, Jr., who also wrote separately. Circuit Judge Chester A. Straub dissented. Judge Straub, saying “I find the current expansion of the right to terminate a pregnancy to cover a child in the process of being born morally, ethically, and legally unacceptable,” would have upheld the federal ban. He thus said the Ayotte decision was not applicable, but did agree, in the face of the majority ruling, that further briefs were appropriate.)

(The Second Circuit decision was, in other respects, narrower than the Ninth Circuit ruling. Chief Judge Walker, however, does use his separate opinion to lecture the Supreme Court on how far its abortion rulings have gone to force federal courts “to give their constitutional blessing to nearly every increment of social regulation that touches upon abortion.” See the concluding paragraphs of this post, below.).

The “Partial-Birth Abortion Act of 2003,” the first law passed by Congress to make illegal any abortion procedure, is now awaiting the Supreme Court’s reaction in a pending case, Gonzales v. Carhart (05-380) — a case appealed by the Justice Department after the Eighth Circuit Court found the law invalid. The Justices have twice considered that appeal at private Conferences this month, but have taken no action on it.

The unanimous ruling by the Ninth Circuit panel nullifying the Act was no surprise, since none of the five federal courts at two levels to examine the law so far has found it to be valid. The more interesting part of the ruling was its discussion of the impact on abortion law of the Ayotte ruling. As the Ninth Circuit noted, no other court has considered, as a separate question, what remedy to impose after finding the Act unconstitutional. Before Ayotte, it remarked, a court order against enforcement seemed to be mandatory once the Act was struck down.

The approach the Ninth Circuit took to the remedy question might well be one the Supreme Court might take, unless it is prepared to reopen entirely the question of legislatures’ powers to enact an outright ban on “partial-birth” abortions. With a new Justice, Samuel A. Alito, Jr., on the Court, a majority might be assembled to reexamine that core question, and thus to revisit the 2000 decision in Stenberg v. Carhart striking down a state-level “partial-birth” ban. That was decided on a 5-4 vote, with Alito’s predecessor, Justice Sandra Day O’Connor, in the majority.

The 64-page ruling by the Ninth Circuit found the federal Act unconstitutional for three reasons, summarizing them this way: “First, the Act lacks the constitutionally required health exception. Second, it imposes an undue burden on women’s ability to obtain pre-viability abortions. Third, it is unconstitutionally vague, depriving physicians of fair notice of what it prohibits and encouraging arbitrary enforcement.”

Moving, then, to remedy in Part IV of the opinion, the Circuit Court said it was guided by the three principles the Supreme Court spelled out in Ayotte on the general issue of remedying an unconstitutional abortion restriction: strike down no more of the law than necessary, avoid rewriting the law to make it constitutional, and remain confined by the intent of the legislature in passing the law. Applying those principles, it said, a permanent injunction against enforcement of the 2003 Act “is the only permissible remedy.”

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(9 P.M. UPDATE: Justice Samuel A. Alito, Jr., made his first public appearance in robes as a member of the Supreme Court Tuesday evening, showing up to observe the State of the Union message of President Bush. With him were Chief Justice John G. Roberts, Jr. — it was his first appearance at this event, too — along with Justices Clarence Thomas and Stephen G. Breyer. Last year, Breyer was the only Justice to attend. The four members of the Court took seats at the front of the House chamber, accompanied by two Court aides, Clerk William K. Suter and Marshal Pamela Talkin.)

(UPDATE: In early evening, the Supreme Court issued its first significant order since Justice Samuel A. Alito, Jr., joined its ranks, but he did not take part. It was an order delaying the execution in Florida of Arthur Rutherford, pending action on a new newly filed appeal. Rutherford’s appeal (05-8895) raises the same issue that the Court had just agreed to hear in another Florida case last Wednesday– whether a death row inmate may file a civil rights lawsuit to challenge the method of execution by lethal injection. The granted appeal of Clarence E. Hill (05-8794) involves his claim that the method causes undue pain and thus amounts to cruel and unusual punishment under the Eighth Amendment. Justice Alito obviously did not have time to review the papers on the stay issues raised by Rutherford’s lawyers. The inmate had been due to be executed at 6 p.m. Tuesday His stay application was 05-A-692.)

At 12:40 p.m. Tuesday, Samuel A. Alito, Jr., took the oaths of office as the 110th Justice of the Supreme Court, in a private ceremony attended by some members of the Supreme Court, and by his wife. Chief Justice John G. Roberts, Jr., administered the two oaths — a constitutional oath and a judicialoath — in the Justices’ Conference Room.

In a statement, Supreme Court public information officer Kathleen L. Arberg said “both oaths were administered so that Justice Alito could begin to participate in the work of the Court immediately.”

She said that a formal investiure ceremony “will take place at a special sitting of the Court n the Courtroom at a later date.” No details of that event, including the actual date, were available Tuesday.

The fact that the investiture will be at “a special sitting” indicates that the Court will not wait for its next scheduled public session for that event. The Justices currently are in recess, and will not return to the bench until Tuesday, Feb. 21. Alito will attend his first scheduled Conference, the Justices’ private conclave on pending business, on Friday, Feb. 17.

In the meantime, the Court will begin figuring out what it will do with already-argued cases on which Alito has not sat. Among the most likely options are, first, going ahead with decisions that are already in the drafting stages, without his participation, and, second, ordering cases to be reargued — either later this Term, or in the Term that begins on Monday, Oct. 2, with his participation. If the Court is divided 4-4 on any case already under submission, it would have the option of announcing that result — a split vote that simply upholds the lower court ruling at issue, without an opinion by the Justices and without seeting any precedent — or else ordering reargument.

Because Alito is now a full-participating member of the Court, it may be an option for the Court to allow him to catch up on already-argued cases by reading the briefs, listening to sound recordings of oral argument, and taking part. That is not very likely, however, since he was not a member when the cases were submitted.

With Alito replacing now-retired Justice Sandra Day O’Connor, the assignment of the Justices to handle emergency matters from the Federal Circuits will be reshuffled. As of Tuesday, the Court had no information on which slot would go to Alito, who has been a judge on the U.S. Court of Appeals for the Third Circuit. Justice O’Connor has had the Ninth Circuit; Justice David H. Souter, the Third.

The Senate at midday Tuesday approved the nomination of Samuel A. Alito, Jr., to be a Justice of the Supreme Court. The vote was 58-42, with all but one of the Senate’s 55 Republicans voting for him. Only four of the Senate’s 44 Democrtats voted for him.

Alito won six more votes of approval than Justice Clarence Thoaas did in 1991 — the last nomination that created major controversy in the Senate.. The 52-48 vote in Thomas’ favor marked the lowest level of support in the Senate for any of the current Justices. Thomas, however, did gain more Democratic support: 11 votes, compared to Alito’s four. Alito fell 20 votes short of the favorable votes to confirm Chief Justice John G. Roberts, Jr., in September.

Immediately after the Senate vote Tuesday, it became obvious that the White House was treating the entire process as a political affair and not a judicial matter, involving a separate branch of government. The White House press secretary was telling reporters — apparently, even before the Senate voted — about all of the arrangements for Alito to begin his service. That was before the Supreme Court had made any announcements through its public information office. The White House publicity operation said that Alito would take the oath from Chief Justice Roberts at the Supreme Court later in the day, and that Alito would also take an oath at a White House ceremony on Wednesday.

Further demonstrating that Tuesday’s events were political rather than judicial in nature, Judge Alito and his family reportedly watched the final vote while sitting in the Roosevelt Room at the White House. The White House also was saying that Alito would attend the President’s State of the Union message at the Capitol on Tuesday night. In recent years, only a single member of the Court, Justice Stephen G. Breyer, has attended the State of the Union gathering in the House chamber, with some Justices regarding attendance at such an event of political theater to be inappropriate for a sitting judge.

(The Supreme Court waited until after Alito actually had been confirmed before issuing its own announcement of the arrangements, and the oath-taking. See the post above.)

1. When did the Senate’s confirmation of a nominee to be Supreme Court Justice decrease the number of Justices on the Court?

(Partial) Answer: Today, Tuesday, January 31, 2006. Justice O’Connor’s resignation becomes effective upon the Senate’s confirmation of Justice Alito. We’ll have only eight Justices for at least a few minutes, or hours, or perhaps a day or two — until Justice Alito receives his commission and is sworn in.

2. Who was the first Justice to hold Jusice Alito’s new “seat”?

Answer: John McKinley, confirmed by voice vote just one week after his nomination by President van Buren in 1837. His confirmation created the first nine-Justice Court. These days, the seat is generally consdered the “eighth” of the nine we have remaining. Justice Catron’s seat was abolished after his death and never re-established; and Justice Field was the first holder of what was the “tenth” seat during the Civil War, now deemed the ninth seat (and held by Justice Scalia).

Justice Alito will be the eleventh holder of the McKinley seat: McKinley, Campbell, Davis, Harlan (I), Pitney, Sanford, Roberts, Burton, Stewart, O’Connor, Alito.

(I was going to note how remarkable it is that he will be only the third person to hold the seat in my lifetime . . . until I realized that all of us under the tender age of 67 have only known two Justices in the seat in which Justice Stevens now sits — a seat that will have turned over only twice in ninety (90) years come June 5th!)

And so, after a wait of almost thirteen years, Justice Ginsburg finally will have “brethren” on both sides of her. (Justice Breyer is at 12 -and-a-half years and counting.) The new line-up, three weeks from today, as counsel will be viewing the bench from left to right in the 80-minute consolidated argument in Rapanos v. U. S. and Carabell v. U.S. Army Corps of Engineers:

Breyer, Thomas, Kennedy, Stevens, Roberts, Scalia, Souter, Ginsburg, Alito

The Senate voted overwelmingly on Monday to cut off debate on the Supreme Court nomination of Judge Samuel A. Alito, Jr. Tne vote was 72 to 25, 12 more than the minimum 60 needed to approve the debate-stopping “cloture” motion offered by Senate Republican leaders last week.

As a result, the final vote on the nomination will begin at 11 a.m. Tuesday. Alito is not expected to get all 72 of the votes cast for the cloture motion when the final tally is taken. A number of Democrats who favored an end to debate have indicated they will vote against the nomination itself. As of now, only one Republican among the 55 in the Senate has announced his opposition — Sen. Lincoln Chafee of Rhode Island.

Alito thus is likely to fall well short of the 78-22 vote of approval that the Senate gave to Chief Justice John G. Roberts, Jr., on Sept. 29. Roberts won all 55 of the Senate Republicans’ support, half of the 44 Democrats, and one Independent, Sen. Jim Jeffords of Vermont.

On the vote Tuesday to end debate under Senate Rule XXII, 19 Democrats joined 53 Republicans in voting “Yes.” On the “No” votes, 24 were cast by Democrats and one by Sen. Jeffords.

Once the nomination gains final approval, as everyone is now certain it will, Alito will promptly take two oaths so that he can begin his service on the Court promptly, succeeding retiring Justice Sandra Day O’Connor. It is unclear whether the formal investiture at the Court will come before the Court returns on Feb. 21 from its current recess.

The D.C. Circuit Court has told lawyers in two packets of cases involving war-on-terrorism detainees to file new written arguments on the effect on pending cases of the new Detainee Treatment Act of 2005. In an order issued Friday, the three-judge panel also said it would hold oral argument on March 22 on the Act’s effect.

Congress, in enacting the new detainee law late in 2005, moved to strictly limit court challenges by foreign nationals being held at the military prison at Guantanamo Bay, Cuba, substituting a new Circuit Court review process for the basic habeas challenges that the prisoners have been making over the past two years. The key issue now being fought out in the D.C. Circuit — as well as in the Supreme Court — is whether the new Act bars federal courts from deciding the already-pending habeas cases.

The D.C. Circuit was nearing the end of a new round of briefing on the question of its jurisdiction over the existing detainee cases, when it moved on Friday to suspend that schedule, and to substitute a new one. Here is the question the Court asked counsel to address in their new briefs:

“Assuming this court determines it lacks jurisdiction over these cases by reason of enactment of the Detainee Treatment Act of 2005, what is the appropriate disposition of the conflicting district court judgments entered before enactment of the statute?”

The reference to conflicting rulings in the District Court were to decisions reached in separate detainee challenges: in one, the judge ruled that the detainees do have legal rights that they may pursue in a habeas challenge, and that the existing military procedures for reviewing their detainee status are invalid; in the other, a different judge ruled ruled that the detainees have no legal rights they could assert once they had filed their habeas petitions. The D.C. Circuit has been reviewing both of those rulings, and held separate hearings on them on Sept. 8. Before it could reach its decision, however, Congress passed the new judicial review provisions in the Act (the so-called “Graham-Levin Amendment” procedures).

The Justice Department had already recommended to the Circuit Court that, while it should find it had lost jurisdiction over the cases under the new law, it should go ahead and decide the underlying legal questions that the cases raised because those will recur under the new review procedures. The detainees’ lawyers countered that their clients were not yet covered by the Act, because their detention had not been reviewed under the procedures established anew by the Detainee Act. Detainees’ counsel also argued that Congress did not intend to apply the new restrictions to pending cases.

The D.C. Circuit, rather than resolve that dispute on the basis of the briefs already filed, which dealt with that discrete issue only in a minor way, decided it would order a complete new round of briefs confined to that question.

The Court acted on its own motion in setting the new briefing schedule and ordering oral argument for March 22.

The government’s new brief is due Feb. 17, separate briefs by the two groups of detainees are due on March 10,. and a government reply is due March 17. Amici supporting each side must file their briefs with that side of the case under the new schedule.

The detainee cases begin with Circuit docket 05-5062.

In a separate case involving a different group of detainees, the Circuit Court on Friday granted expedited review of the issue of whether the government may continue to hold detainees at Guantanamo after they have been determined not to be “enemy combatants.” A federal judge has ruled that the federal courts can offer no remedy to a group of Chinese Uighurs who remain at the prison camp in Cuba even though the military has found there is no military need to keep them. They continue to be held at the camp because there is no country to which they could be sent.

That case is Qassim, et al., v. Bush (05-5477). The detainees in that case also have asked the Supreme Court to take their case, and decide it before the Circuit Court does. (Qassim v. Bush, Supreme Court docket 05-892). The Supreme Court has not yet scheduled that case for consideration. The government’s response is due Feb. 21.

The Circuit Court said it would hold an oral argument on that case after the briefs are filed. The last brief is due on March 22.

Circuit Judge David Sentelle sits on both of the panels involved in these new orders. He is joined on the detainee cases panel by Circuit Judges Raymond Randolph and Judith Rogers, and on the Uighurs panel by Circuit Judges Merrick Garland and David Tatel.

The effect of the Detainee Act on pending cases is also being explored by the Supreme Court in the case of Hamdan v. Rumsfeld (05-1840, a challenge to the war crimes “military commissions” at Guantanamo. The government has filed a motion to dismiss that appeal because of the new Act; Hamdan’s reply is due on Tuesday. The Court will consider the dismissal motion at its Conference on Feb. 17, according to the Court’s electronic docket.

Here is Concurring Opinions with a post on Justice Scalia and the CLE event he attended during the Roberts’ swearing in.

Here is the Bankruptcy Litigation Blog with a post on the Anna Nicole Smith case.

Here is the Volokh Conspiracy with a post on Professor James Ryan’s review of recent books by Justice Breyer and Cass Sunstein, forthcoming in the Stanford Law Review. The Volokh Conspiracy also has this post on the Wall Street Journal and NY Times’ reactions to the Alito and Roberts nominations.

Here is ACS Blog with a post on Dawn Johnsen on the “Incremental Evisceration” of Roe.

Here is Senator Reed’s speech from Wednesday on the Alito confirmation.

MORNING UPDATE: News organizations reported that Indiana carried out the execution of Marvin Bieghler after about a 30-minute delay awaiting word from the Supreme Court on the state’s request to allow the execution.. He reportedly was pronounced dead at 2:17 a.m.

LATEST UPDATE: 00:45 a.m. Overturning the Seventh Circuit Court, the Supreme Court voted 6-3 early Friday to permit the state of Indiana to carry out the execution of Marvin Bieghler by lethal injection. The Court granted the request of the Indiana state attorney general to vacate the order delaying the execution, an order the Seventh Circuit had issued late Thursday. Justices Stephen G. Breyer, Ruth Bader Ginsburg and John Paul Stevens noted they would have denied the state’s motion. The application was Donahue v. Bieghler, docketed as 05-A-684.

UPDATE 11:00 p.m.:After the Seventh Circuit Court, dividing 2-1, ordered a delay of the execution, the state of Indiana asked the Supreme Court to lift that stay. The request was still being considered as midnight approached. The Seventh Circuit acted after the Supreme Court denial, discussed below.

The Supreme Court on Thursday evening cleared the way for Indiana to carry out after midnight the execution of Marvin Bieghler, refusing to hear his challenge to the process of lethal injection that the state uses to carry out a death sentence. The Court both refused to postpone the execution, and denied review of Bieghler’s appeal raising that “cruel and unusual punishment” issue. Two Justices would have ordered delay of the execution.

The Court’s action came one day after the Justices had agreed, in a Florida case, to spell out the procedures that death row inmates may use in challenging execution by lethal injection. In the Indiana case, the defense lawyer had asked the Court to order a delay in the scheduled execution until after it had decided the Florida case, an appeal by inmate Clarence Edward Hall (docket 05-8794).

Unlike Hill’s case, Bieghler’s appeal was a direct challenge to the constitutionality of lethal injection. Indiana uses a protocol of three drugs to anesthetize the individual, stop his breathing, and stop his heart. Bieghler was challenging the anesthetic, claiming — based in part on a study published in April in the British medical journal Lancet – that the anesthetic does not spare the individual from “unnecessary pain and agony.”

Earlier Thursday, Indiana Governor Mitch Daniels turned down a clemency request.

The Supreme Court denied the petition in Bieghler v. Indiana (docket 05-8824) and the stay application (05-A-679). Justices John Paul Stevens and Ruth Bader Ginsburg noted that they would grant the stay

Bieghler, a drug dealer, had been put out of business when someone tipped police about his activities.. He had said that if he discovered who the informant was, he would kill that individual . He later expressed the belief that a man named Tommy Miller of Russiaville had given the tip to police. On Decembeer 11, 1981, Miller and his pregnant wife were found dead in their trailer home in the small town west of Kokomo.

Among a series of appeals, Bieghler had asked the Supreme Court last April to review his conviction and death sentence. The Court denied review on Oct. 11 (05-5199), in Bieghler v. McBride. The Indiana Supreme Court last Dec. 28 refused to allow him to file a new challenge, including his claim about the lethal injection method.

The Senate’s Republican leader moved on Thursday afternoon to try to force a final vote on the Supreme Court nomination of Judge Samuel A. Alito, Jr., to begin at 11 a.m. next Tuesday. In order to have the vote at that time, the Senate must approve before then a motion to cut off debate — a “cloture” motion — because some Democrats are planning to continue debating against the nomination..

Sen. Bill Frist, Tennessee Republican and majority leader, filed the cloture motion under Senate Rule XXII, and said a vote on it will come at 4:30 p.m. next Monday. That will be the showdown vote — it will take 60 votes to adopt the motion, and thus to shut off debate a day later. If that motion is approved, it would then take only 51 votes in the Senate to approve the nomination on Tuesday.

At this point, there is little likelihood that Democrats opposing Alito’s nomination will be able to gather the 41 votes needed to defeat the cloture motion. Already, three of the Senate’s 44 Democrats have said they will vote in favor of the nomination, and that probably means they would not vote to keep debate going. Those three are Sens. Robert Byrd of West Virginia, Tim Johnson of South Dakota, and Ben Nelson of Nebraska.

Here is an unofficial Senate report on the voting schedule as it developed on the Senate floor Thursday::

“At 3:10 p.m., Sen. Specter made a motion to proceed to a vote on the nomoination of Samuel Alito at 5:30 p.m. on Monday, January 30. Sen. Reid objected. [Specter’s motion was for unanimous consent; one senator, of course, can block such a motion.]

“Majority leader First filed cloture on Cal. # 486, The Nomination of Samuel Alito to be a Justice of the United States Supreme Court. The vote to invoke cloture will occur at 4:30 p.m. on Monday, January 30. If cloture is invoked, the Senate will proceed to vote on the nomination at 11 a.m. on Tuesday, January 31.”

It is not a coincidence that Senate leaders are hoping to have a final vote on Tuesday: that is just hours before President Bush is to make his State of the Union address to Congress, and Republican leaders want him to be able at that time to take note of a victory of the Alito nomination.

Lawyers for foreign nationals captured during the war on terrorism have mounted a broad challenge to the Bush Administration’s unusual argument that a federal appeals court has lost the power to hear their cases but still may go ahead with a strictly limited review of the detainees’ legal claims.

With the support of a dozen American and British experts on the law of habeas, the detainees on Wednesday told the D.C. Circuit Court that they are entitled to a full factual review of the basis for being held by the military, as well as a full legal review of Executive Branch authority to detain them at all The new judicial review substitute created by Congress in the Detainee Treatment Act of 2005, they argued, would give them far less than that. Moreover, they contended, those new procedures simply do not apply to the detainees in their present status.

The filings were the middle round of the process of making written arguments to the D.C. Circuit on the question of whether Congress in the new Act has stripped the federal courts — including the Supreme Court — of authority to consider the already-pending cases in which detainees at the U.S. military prison camp in Guantanamo Bay, Cuba, are contesting their detention. The Bush Administration on Feb. 1 is to tile a reply brief as the final step before the D.C. Circuit confronts the issue of its jurisdiction to decide two packets of detainees’ cases. (The cases begin with docket 05-5062.) The Circuit Court already heard the detainee cases on Sept. 8, before the new Act was passed. It is unclear whether it will hold a new hearing before ruling on its jurisdiction.

In the government’s opening brief on that issue a week ago, the Justice Department urged the Circuit Court panel to throw out the pending cases “for want of jurisdiction,” but to convert the existing appeals into challenges under the Detainee Act. Going forward, the Circuit Court could, the Department argued, determine whether the detainees have any legal rights at all, and, if they do, whether the military decision to continue their detention satisfied such rights and whether the President — on his own or with Congress’ approval — had the power to order their detention. Thus, it said, the detainees will not be shut out of court altogether, but will retain some chance at court review.

That alternative, the detainees argued in one of the new briefs (by the Al Odah detainees), “provides neither an adequate nor an effective alternative to resolve and remedy the…pending habeas claims.” The Detainee Act, they said, does not give them the rights “necessary to challenge the legality of executive detention effectively.” They do not have a right to challenge their detention under presidential order, do not have a chance to probe the facts behind their detention, do not have the right to develop evidence — including attempts to learn whether any statements used to support their detention were obtained by torture. Any review they could get under the Act “would not be meaningful” because they were ordered detained when the military was using tribunals that did not give them a fair chance to contest their fate. Besides, those tribunals do not even satisfy procedures mandated by the Detainee Act for such reviews, they argued.

The Al Odah brief is here, the Boumediene brief here, and the habeas scholars’ brief here The scholars’ brief was filed by the Brennan Center for Justice at New York University Law School.

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The Supreme Court on Wednesday agreed to hear an appeal by Clarence Edward. Hill, a Florida death row inmate who is challenging the method that the state uses to carry out executions. The Court will consider whether Hill was entitled to file his challenge, and whether his challenge may be pursued under federal civil rights law (Section 1983).

Both issues before the Court appear to be procedural disputes, and thus the Court’s answers are not likely to settle whether the execution method Florida uses is unconstitutional under the Eighth Amendment’s ban on “cruel and unusual punishment.”. If Hill wins, that presumably would clear the way for him to go forward with that issue in lower courts first, with a future appeal to the Supreme Court available. (Doug Berman at Sentencing Law and Policy blog discusses some of the implications of the Court’s action, here.)
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The Court apparently will hear the case and decide it during the current Term, since it set a briefing schedule with the final papers due on April 17. The Court’s final arguments of the Term will be in the week of April 24. (The Court’s April calendar is now full, unless the Court were to agree to grant new cases and schedule them for afternoon hearings in that month.)

Here is the full text of the Court’s order:

“The application for stay of executive of sentence of death presented to Justice Kennedy and by him referred to the Court is granted. The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The brief of petitioner is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m. Monday, March 6, 2006. The brief of respondents is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Monday, April 3, 2006. The reply brief, if any, is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Monday, April 17, 2006. The stay shall terminate upon the sending down of the judgment of this Court.”

The case is Hill v. Crosby, docket 05-8794.

Here are the two questions the Court agreed to hear:

“1. Whether a complaint brought under 42 USC Sec. 1983 by a death-sentenced state prisoner, who seeks to stay his execution in order to pursue a challenge to the chemicals utilized for carrying out the execution, is properly recharacterized as a habeas corpus petition under 28 USC Sec. 2254?

“2. Whether, under this Court’s decision in Nelson, a challenge to a particular protocol the State plans to use during the execution process constitutes a cognizable claim under 42 USC Sec. 1983?”

The reference is to Nelson v. Alabama, a case the Supreme Court decided May 24, 2004. By a unanimous vote, the Court ruled that an inmate challenging an Alabama procedure for preparing an inimate for death by lethal injection could pursue an Eighth Amendment claim under Section 1983.

However, the Court. in an opinion by Justice Sandra Day O’Connor, said its ruling was “extremely limited,” and stressed that it left open “the question of how to treat method-of-execution claims generally.” It rejected the state’s argument there that the decision in favor of the death row inmate would open the floodgates to all sorts of challenges to execution methods.

In the new case now to be reviewed, the 11th Circuit Court ruled on Tuesday that Hill could not pursue his claim, because it treated his claim as a multiple habeas challenge, and he had not obtained a court’s permission to file it.

Hill was scheduled to die at 6 p.m. Tuesday, but his life was spared by an interim order by Justice Anthony M. Kennedy, delaying execution until the Court could consider the appeal it granted on Wednesday. Kennedy referred the case to the full Court, resulting in the new grant. The temporary bar to his execution will remain in effect until the Court decides his case.

On Alito:

Law Dork has this post on “What Alito Means to the Left.”
Here is the National Jewish Democrat Council’s blog with their statement against Alito.
ACS Blog has this post on state’s seeking to challenge Roe once Alito is on the bench. ACS Blog also has this post by Geoffrey Stone on why Alito should not be confirmed.

On recent orders/opinions:

The Bankruptcy Litigation Blog has this post on Central Virginia v. Katz .
Here is the Election Law Blog with a post on the WRTL decision.
On ACS Blog here is Jennifer Brown on the Ayotte decision. Jennifer K. Brown is Vice President and Legal Director of Legal Momentum.
PrawfsBlawg has this post, asking “Isn’t Justice Thomas Right?” The post discusses the court’s decision in Central Virginia Community College v. Katz. PrawfsBlawg also has this post on Coke v. Long Island Care.
Sentencing Law & Policy has this post on implementing the Court’s decision in Atkins.

In other news:

Concurring Opinions has this post on liberal and judical labels for the Justices.
The Volokh Conpiracy has this post on future judicial nominations.
Crime & Federalism has this post on the Scalia-tennis story.
Underneath Their Robes has this post up on Scalia’s OT 2006 clerks.

On January 20, the respondent filed his brief in Marshall v. Marshall, No. 04-1544, (aka, the Anna Nichole Smith case). The question before the Court involves the application of the so-called “probate exception” to federal bankruptcy jurisdiction.

Disclosure: Goldstein & Howe is co-counsel for the respondent.

Because we thought E! Online is unlikely to post them, we decided to link to the briefs here for those who are interested:

Petitioner’s Side:

Petitioner’s Brief

Brief of the United States as Amicus Supporting Petitioner

Amicus Brief of Law Professors Supporting Petitioner

Amicus Brief of Heirs, Inc.

Respondent’s Side:

Respondent’s Brief

Amicus Brief of Texas, et al.

Amicus Brief of Law Professors Supporting Respondent

Amicus Brief of Washington Legal Foundation

Amicus Brief of National College of Probate Judges

Amicus Brief of the Philanthropy Roundtable

Amicus Brief of Bonnie Snavely

Amicus Brief of Eric Yollick

The Senate Judiciary Committee, with all Republicans voting in favor and all Democrats opposed, agreed at 12:21 p.m. Tuesday to report the Supreme Court nomination of Judge Samual A. Alito, Jr., to the full Senate, with final action expected there before early next week. The Committee vote was 10-8 in Alito’s favor.

With debate on the floor opening Wednesday, the only question now is how many senators of either party will cross the line to vote differently from their party colleagues. It is already clear, though, that Alito will not get the support of half of the Senate’s 44 Democrats, as Chief Justice John G. Roberts, Jr., did. So far, one Democrat, Sen. Ben Nelson of Nebraska, has indicated he will support Alito.

On the GOP side, the only uncertain votes at this point are those of three Republicans from the Northeast, Maine’s Sens. Susan Collins and Olympia Snowe and Rhode Island’s Liincoln Chafee. Each is a moderate Republican, and each has some concern about the future of the Supreme Court with Alito replacing Justice Sandra Day O’Connor. But those three have been given some political cover by the quite enthusiastic support of Alito’s nomination by the Judiciary Committee chairman, Arlen Specter of Pennsylvania, another moderate and another supporter of abortion rights.

It became clear, throughout nearly three hours of speech-making by Judiciary Committee members Tuesday, that the nomination of Alito and some of the rhetoric and tactics of the confirmation hearings will be converted into political issues for this fall’s congressional elections. Several Republicans strongly suggested in their comments that they will seek to portray Democrats as bullies in their treatment of Judge Alito, a claim that they will buttress with the dramatic film footage of Mrs. Alito leaving the hearing room in tears. Several Democrats strongly suggested, in turn, that they will seek to make much politically of a sharp turn to the Right that they expect the Court to now make with Alito on the bench — voting, as they anticipate, right alongside the two most conservative Justices, Antonin Scalia and Clarence Thomas.

Advocay groups on both sides of the nomination of Alito lost no time joining in the political fray, issuing previously prepared position statements within minutes after the Judiciary Committee had completed its vote. Although liberal activist groups passionately want Democrats to stage a filibuster, that seems unlikely, at least as of now, because the GOP probably has the 60 votes to end a filibuster, and even a number of Democrats would fail to support that tactic.

Politics, it seems, is all that remains of the fight over Alito’s nomination, since no one, on either side, doubts that Alito will win at least the 51 votes in the Senate that are necessary to his confirmation. The final Senate vote may come Friday, or over the weekend, according to aides to Senate Republican leaders.

Indeed, political considerations are the main factor in arranging for the Senate’s final vote on Alito. Republicans want the vote to come before President Bush makes his State of the Union speech at 9 p.m. next Tuesday, so that the President can proclaim a significant victory in changing the Court as part of that message. Democrats have indicated they may try to prevent that from occurring, but doing so would be difficult, at best.

As of Tuesday, no plan has been officially made for Alito to take the two oaths — constitutional and judicial — and begin his service, leading to the retirement of Justice O’Connor. The Court is in recess until a scheduled private Conference on Friday, Feb. 17. Alito’s first day on the bench would be Tuesday, Feb. 21.

Courtesy of How Appealing, ABC News has this “investigative report” that raises an “ethics controversy” because Justice Scalia missed the swearing in of the Chief Justice because he was at a Federalist Society event. A caption to the on-line story asserts that “Scalia missed John Roberts’ swearing-in ceremony as chief justice to play tennis.”

This story strikes me as bordering on character assassination. (I say this as someone who is not a member of the Federalist Society.) The story quotes Justice Scalia as explaining that he missed the swearing in because of a prior commitment he could not break. The claim that he missed the event to play tennis is just absurd; this was not a tennis camp. Rather, so far as the story reveals, the program was a legal program centered around Scalia’s participation. It appears that many attendees planned their travel in reliance on his planned attendance.

I am not a legal ethics expert; far from it. But on the facts as described by ABC (and there may be other details that aren’t known) I completely fail to see the controversy. The Federalist Society does not litigate cases. It does not (so far as I know) even take positions on judicial nominees. Events like these are similar to those hosted by the American Constitution Society, which more liberal Justices attend. These events strike me as very valuable because they expose more people to the Justices, and vice versa.

I’m sure that Justice Scalia would have preferred to attend the swearing in. The story’s assertion that his absence “appear[ed] to be a snub of the new chief justice” is true only in the sense that some people would be willing to take “appear[ances]” without regard to the circumstances. Scalia no doubt explained his unavoidable absence to the Chief, and likely to the full Court.

Although I sometimes believe that the Supreme Court press corps could be more proactive, it strikes me that stories like this one have the potential — indeed, almost seem designed — to undermine public confidence in the judiciary. I react particularly strongly because I think that there has been a healthy trend towards the members of the Court, in a sense, coming out of their shells.

UPDATE: I now see this post by Orin Kerr on Volokh mocking the report.

In response to my take, and Sam Bagenstos’s, on the “as applied” decisions this Term, NYU Professor Rick Pildes writes in with a very different, and provocative, perspective:

I expect these cases will indeed be re-argued before a new Court, though not in the technical sense of re-argument you initially had in mind. My comment is also related to Sam Bagnestos’ comment on the emergence of as-applied doctrinal developments this Term; this emergence is tied to another development in the Court this Term that I have noticed:

It has become clear to me that the Court’s actions are being shaped right now by Justice O’Connor’s unusual position of imminent retirement during the Term. As I see things, the Court is being moved by one or both of two considerations. First, the Court is attempting to get as many decisions handed down as possible before Justice O’Connor retires in cases in which she has participated in argument and conference. Second, the Court is attempting to avoid putting a new Justice in the immediate position of having to resolve 4-4 divisions within the Court–a position that would require re-argument of the cases just for that new Justice and that would force a new Justice to come to a position right away on some of the most charged cases before the Court. That was the miserable position Justice Blackmun found himself in when he first joined the Court and it appears the Justices are looking to avoid re-creating that situation for any new Justice.

The result has been a series of exceptionally narrow, unanimous decisions that are issued much more quickly after argument than typical and that go far out of the way to avoid tackling any issues that might divide the Court and require the writing of lengthy majority and dissenting opinions. This pattern has now been manifested in at least three areas: constitutional federalism; abortion; and campaign finance. The cases include Georgia v. United States, on whether Congress can make the States liable for damages suits under the Disability Act; the abortion statute for minors in the Ayotte case; and now the WRtL decision today. In all three of these areas, among the most controversial before the Court, there is no doubt the Court is internally divided, whatever the particular outcome in particular cases. Yet in all three, the Court this Term has issued short, unanimous opinions that are so narrow, one almost wonders why the Court took the cases in the first place. The answer, of course, is that the Court granted the cases when it assumed it would have a full Court for the Term to resolve these issues.

As a result, I believe one cannot and should not read much into any of these decisions, except that the Court, not surprisingly, is divided. But Justices are bypassing those divisions by agreeing unanimously to temporize and let the lower courts confront these issues again, by which time the Court will presumably be stable again. That the Justice who wrote McConnell, Justice Stevens, was willing to along with the WRtL remand is no more significant for the ultimate merits than is the fact that Justice Scalia was willing to go along in the federalism area with a remand in the Georgia case.

Today, the Court issued a 5-4 decision in Central Virginia Community College v. Katz, holding that States do not have sovereign immunity to suits by bankruptcy trustees seeking the return of preferential transfers under the federal bankruptcy act. Justice Stevens wrote the majority, joined by Justices O’Connor, Souter, Ginsburg and Breyer. Justice Thomas wrote a dissent, joined by the Chief Justice and Justices Scalia and Kennedy.

The case is interesting in its own right to those who follow the Court’s federalism and sovereign immunity cases. It is also interesting in that it is the first (and in all likelihood only) decision of the Term in which Justice O’Connor cast a deciding vote in a case that might have gone the other way if the Court had delayed the decision until her replacement took the bench. Whether this reflects the Chief Justice’s determination not to allow such strategic considerations to play a role in the timing of opinions, or whether the Chief and the other dissenters simply did not care enough about this decision to try to achieve a different outcome through delay, we may never know.

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The Supreme Court on Monday released the oral argument schedule for its March sitting. Here are the dates and times, with summary of issues involved:

Monday, March 20
05-5224 — Davis v. Washington (exclusion of victim statememts to 911 operator under Crawford v. Washington)
05-5705 — Hammon v. Indiana (exclusion of victim statements to investigating police officer under Crawford)
Tuesday, March 21
05-128 – Howard Delivery v. Zurich American Insurance (priority in bankruptcy of unpaid premium on workmen’s compensation insurance)
04-607 — Laboratory Corp. v. Metabolite Laboratories (patentability of link between test results and medical diagnosis)
Wednesday, March 22
04-1376 — Fernandez-Vargas v. Gonzales (application of an immigration law to alien who entered U.S. before law was enacted)
05-416 — Woodford v. Ngo (filing of administrative appeal out of time and prison litigation exhaustion requirement)

Monday, March 27
04-1739 — Beard v. Banks (constitutionality of denying newspapers, magazines and photos to dangerous prison inmates)
04-433 — Anza v. Ideal Steel Supply (mail fraud under RICO if there was no reliance on fraud)
Tuesday, March 28
05-260 — Sereboff v. Mid-Atlantic Medical (right of employee benefit plan administrator to sue on medical expense reimbursement)
05-184 — Hamdan v. Rumsfeld (constitutionality of war crimes military tribunals)
Wednesday, March 29
04-10566 and 05-51 — Sanchez-Llamas v. Oregon and Bustillo v. Johnson (consolidated, one hour) (application to state cases of World Court ruling on right to consular notice for alien arrested in U.S.)
05-130 — EBay Inc. v. MercExchange (must injunction be issued any time patent infringement is found)

I had predicted that four cases were the most likely candidates to be reargued next Term when Justice Alito (presumably) will be on the Court, because in each of the four I figured that there was a good chance Justice O’Connor would be the swing vote and that a Justice Alito would come out the other way. Those four cases were Ayotte, U.S. v. Georgia, Wisconsin Right to Life, and Katz.

Shows what I know: I’m batting 0-4. In the first three cases, the Court acted unanimously, and in each case it gave a strong signal that the Court is inclined — at least as to some controversial subjects as to which there is not yet a solid Court majority — to act incrementally, on a case-by-case basis, and to disfavor facial challenges (see post below).

So, now that Justice O’Connor has probably cast her last vote, does anyone else have any candidates among the remaining 20 argued cases for those that might be set for reargument? It won’t take much to top my prognostication record.

As today’s per curiam decision in Wisconsin Right to Life demonstrates, there is at least one decided trend so far on the Roberts Court: A strong preference for as-applied challenges — case-by-case, incremental decisionmaking — in constitutional cases, at least until Justice O’Connor’s replacement is on the Court. The trend actually started in the past handful of Terms of the Rehnquist Court. I thought some SCOTUSblog readers might be interested in this post that I sent to an academic listserve last week, after the Ayotte decision (and a follow-up from Sam Bagenstos). Today’s decision in WRtL merely confirms the point. WARNING: Although this topic is important, it’s fairly deep-in-the-woods, technical CONLAW minutiae, and I wrote it for an audience that is familiar with these old but beneath-the-public-radar-screen debates. That is to say: It’ll probably be pretty boring to everyone except CONLAW nerds such as myself:

After [the] unanimous decision in the abortion case, and [the] unanimous decision in Sam Bagenstos’s section 5 case [U.S. v. Georgia], is it possible we’re seeing a major shift in the way the Court deals with facial challenges? Put those decisions together with Lane, and Booker, and Sabri, and Salinas, etc., and it appears increasingly as if it’s the resurrection of Raines and Brockett (both prominently cited in Justice O’Connor’s Ayotte opinion) — where the Court is reluctant to invalidate statutes on their “face” but will instead, where possible, carve out sub-categories of applications that either are or are not constitutional, and limit its holdings to those sub-categories (which are fairly arbitrarily defined — e.g., where there is a nexus to federal funds (Salinas); where there are allegations of constitutional violations (Georgia); courthouse-access cases (Lane); one title of a statute to the exclusion of others (Garrett); cases where the statute would imperil a woman’s health (Ayotte); etc.)

This may call into question the sort of facial invalidation we saw in Casey and Boerne and Florida Prepaid, where the Court was unwilling to segregate the constitutionally problematic applications from the unobjectionable applications, for fear that to do so would encourage legislatures to act recklessly and imprecisely, casting the proverbial wide net and expecting the courts to do the hard work of deciding which fish are “legal” catches. (O’Connor acknowledges this problem, too, in Ayotte, with the standard cite to Reese.) The current Court apparently is either skeptical that facial invalidation will deter such legislative overreaching, or simply resigned to the prospect of having the courts act as statutory surgeons.

If it weren’t for the fact that Raich has already taken teh wind out the sails of Lopez and Morrison, I’d say that the next obvious candidate for such treatment is the Commerce Clause: Is the Gun Free Schools Zones Act constitutional as applied to weapons that have traveled in interstate commerce or to guns being held for sale? Is VAWA’s civil action constitutional as applied to a rapist who crossed state lines? If it’s good enough for section 5 (Raines, Lane, Georgia) and for the Spending Clause (Salinas, Sabri), why not Commerce?

In any event, it’s the stuff of 1001 law review articles, all of which will have trouble living up to the very high (post-Florida Prepaid, pre-Lane) standard set by Richard Fallon’s 2000 Harvard Law Review article. [Sam Bagenstos added that Gillian Metzger’s recent Columbia Law Review piece is required reading on this issue as well.]

[Sam Bagenstos added:]

I think Marty is definitely on to something. While working on Lane and Georgia, one of my operating premises was that the facial aspect of the invalidation in Boerne and Florida Prepaid was essentially unthinking — that the Justices in the majority in those cases hadn’t ever been forced to confront the tension between those facial invalidations and their frequent invocations of Salerno in individual rights cases. None of the litigants in those cases had argued for upholding the statute on an as-applied basis, and when Justice Stevens made as-applied noises in his Florida Prepaid dissent, the late Chief Justice’s opinion did not even respond. I think what Lane and Georgia do is move towards normalizing Section 5 jurisprudence so that the Justices’ usual as-applied approaches are employed here as well: When forced to confront the tension, the conservative justices went for as-applied review all around. (That Ayotte was pending at the same time as Georgia certainly made the stakes clear to them — though I think the stakes were pretty clear in Lane as well.)

What’s interesting is that the four more liberal Justices went readily along with the as-applied approach in Ayotte — though note that the Court doesn’t invoke the “no set of circumstances” language from Salerno. I think this is in part about legal form — you really just can’t avoid as-applied adjudication — but also about the “careful,” “lawyerly” nature of this Court (scare quotes not because they’re not careful and lawyerly, but because what’s important for my purposes is that that’s how they see themselves).

The Supreme Court ruled on Monday, without dissent, that it has not barred all challenges to actual operation in practice of federal campaign finance restrictions on political advertising. It ordered a lower court to reconsider an “as-applied” challenge by an anti-abortion group, Wisconsin Right to Life Inc. The unsigned opinion, only two and a half pages in length, was announced by Chief Justice John G. Roberts, Jr. It ordered a three-judge District Court to consider the merits of the organization’s complaint.

The decision came in a case argued just last Tuesday — Wisconsin Right to Life v. Federal Election Commission (04-1581). The anti-abortion organization contends that the new federal campaign finance law’s restrictions on political ads close to election-time is unconstitutional when it is applied to grass-roots lobbying efforts.

A three-judge U.S. District Court on May 10, 2005, dismissed the group’s lawsuit, concluding that the Supreme Court’s 2003 decision upholding the ban on so-called “electioneering communications” left “no room for this kind of ‘as applied’ challenge.” On Monday, however, the Supreme Court said that the District Court had misread the 2003 ruling. In upholding the campaign ad restriction “against a facial challenge, we did not purport to resolve future as-applied challenges,” the Court said. (Rick Hasen has a fuller discussion of the impact of this ruling at Election Law blog, here.)

Granting review of no new cases, the Court denied review of an appeal by Research In Motion, Ltd., the Canadian maker of the BlackBerry hand-held e-mail device, challenging a finding that it violated patents held by a Virginia company. RIM is now faced either with settling the patent dispute, or coming out with an altered device that gets around the patented process, because a federal judge is considering a possible order to stop all sales and services of BlackBerry devices in the U.S. (The case is Research In Motion v. NTP Inc. (05-763).

The Court took no action on two major pending cases: the challenge to the war on terrorism detention of a U.S. citizen, Jose Padilla (Padilla v. Hanft, 05-533), and the federal government’s appeal seeking to salvage the ban on so-called “partial birth” abortions (Ashcroft v. Carhart, 05-380).

On another war on terrorism case, Hamdan v. Rumsfeld (05-184), the Court refused to order a new round of briefing on the question of its jurisdiction to rule on that case in the wake of the limits on courts imposed by the new Detainee Treatment Act of 2005. But Monday’s order makes no real difference: the jurisdictional issue is being fully briefed as a result of the federal government’s filing of a motion to dismiss that case under the new Act. Hamdan’s brief on that issue is due Jan. 31. Chief Justice Roberts disqualified himself on the new briefing order, as expected, because he sat on the D.C. Circuit Court when the case was decided there. (Meanwhile, the Court announced that it would hear oral argument on the Hamdan case on Tuesday, March 28, at 11 a.m.)

The Court also took no action on the issue of mid-decade congressional redistricting in the Colorado case of Lance v. Dennis (05-555).

In one of the more surprising developments of the day, the Court refused to hear an appeal by Minnesota officials seeking to revive two restrictions on political activity by candidates running for seats on state courts. The Eighth Circuit struck down both of the provisions at issue — one barring judicial candidates from soliciting campaign donations, and the other barring them from identifying themselves as members of a political party. The case is Dimick v. Republican Party of Minnesota (05-566).

Among the three rulings issued on argued cases, the Court rejected claims by Virginia state colleges that they are immune to attempts to recover money that a college book vendor paid to them before going bankrupt. The Court said it was not answering the broader question of whether the Constitution’s bankruptcy clause gives Congress the authority to take away states’ 11th Amendment immunity to private lawsuits filed by bankrupts. Rather, the Court concluded that the states, in agreeing to the Constitution in 1789, had accepted that federal courts could carry out uniform bankruptcy laws by authorizing collection of at least some money from states and restoring it to the debtor.

That ruling, written by Justice John Paul Stevens but announced by Justice Sandra Day O’Connor in his absence, divided the Court 5-4. Chief Justice John G. Roberts joined in the dissenting opinion written by Justice Clarence Thomas. (The case is Central Virginia Community College v. Katz, 04-885).

The Court’s other two rulings and several of its other orders brought results worth noting.

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Here is today’s Orders List. The Court denied petitioner Hamdan’s motion for supplemental briefing on the question of whether Congress has stripped the Court of jurisdiction to hear the case in No. 05-184. The Chief Justice did not participate, indicating that Hamdan will be heard and/or decided by an eight-Justice Court. The Court also issued orders respecting oral argument in the pending Vermont campaign-expenditure cases and the pending Texas redistricting cases.

The Court issued opinions today in the following argued cases:

No. 04-885, Central Virginia Community College v. Katz, affirmed 5-4, in an opinion written by Justice Stevens, declining to apply the Seminole Tribe sovereign immunity doctrine to claims brought under the Bankruptcy Clause. Justice Thomas dissented, joined by the Chief Justice and by Justices Scalia and Kennedy. Interestingly, if this decision had not been ready to be issued today, the case might well have been held over for reargument. It’s the first decision of the Term in which Justice O’Connor cast the deciding vote and in which Justice Alito would likely have come out the other way.

No. 04-1581, Wisconsin Right to Life v. FEC, unanimously vacated and remanded per curiam, for reasons that Lyle discusses in his post.

No. 04-597, Unitherm Food Systems v. Swift-Eckrich, Inc., reversed 7-2, in an opinion by Justice Thomas. Justice Stevens dissented, joined by Justice Kennedy.

The Court also unanimously granted the joint motion for order of decree in No. 128 Original, Alaska v. United States. The Chief Justice did not participate.

The next possible date for issuance of opinions is Febraury 21st.

In nomination news:

Concurring Opinions has this post on the consequences of misleading the Judiciary Committee in the judicial nomination process.

The Fix, the Washington Posts’ politics blog has this post on pro-Alito ads targeting two Senate Democrats.

PrawfsBlawg has this post on this article in The New Republic. The editors of TNR have come out against Judge Alito’s confirmation.

Professor Bainbridge has this post titled, “No Nukes for Alito.”

Here the Election Law Blog has this post titled, “Judge Alito’s Views of Election Law: Clarified Only a Bit By His Written Responses to Judiciary Committee Questionnaire.”

Here one ACS member revisits some of the jurists who could have been selected to replace Justice O’Connor.

In other news:

The Buck Stops Here has this post analyzing Ayotte.

The Law & Society Weblog has this post on Dagher v. Saudi Refining and this post on Volvo Trucks North America, Inc. v, Reeder-Simco GMC, Inc.

ACSBlog has this post rounding-up coverage of the 33rd anniversary of Roe v. Wade.

Skeptic’s Eye and More Soft Money Hard Law comment on Justice Breyer’s reaction to the WRTL argument.

Law Culture has this post arguing that the Supreme Court should have the opportunity to weigh-in on the FISA/NSA controversy.

On a lighter note, the New York Times recently profiled David Lat of Underneath Their Robes. Concurring Opinions comments here.

The Supreme Court completed its weekly Conference on Friday without issuing any orders on new cases. Any orders resulting from the Conference, including new grants, if any, will come on Monday. The Court will deliver one or more opinions in argued cases on Monday, which could be the final day that Justice O’Connor sits. After Monday’s public session, the Court will be in recess for four weeks.