The Supreme Court devoted a lively two-hour session Tuesday to money in politics and money in family feuds, giving strong hints along the way that Vermont may not succeed in arguing that its politicians are being corrupted, and that a woman best known as a topless dancer may soon be considerably wealthier. There was nothing in common between the two cases the Justices heard, except that the onetime Playmate of the Year with flowing blonde hair — Vickie Lynn Marshall — listened to both hearings in the midst of an audience, many of whose members looked expectantly for a glimpse. (Fashion note: she wore a black dress, with a modest opening at the throat.)

Reduced to the legal essentials, and that is what both Justices and attorneys tried to do, the Vermont case turned out to be a test of how low a state may go in setting limits on campaign donations, and Ms. Marshall’s case became a thoroughly arcane exploration of wills and estates, bankruptcy, trusts and probate.

If there was a surprise in the Vermont case, it was how little interest the Justices showed in the core question of whether the Court is ready to change its mind about denying states the authority to regulate campaign spending (as opposed to campaign donations). And, if there was a surprise in the estate lawsuit, it was how close to unanimity the Court appeared to be against curbing the power of bankruptcy courts to dispose of assets that are linked to an estate.

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The Supreme Court ruled unanimously on Tuesday that the federal Hobbs Act does not outlaw acts or threats of violence, thus undercutting a verdict and a nationwide injunction that abortion clinics had won against anti-abortion demonstrators.

Putting an end to a marathon, 19-year dispute, the Court ordered a federal appeals court to enter a ruling in favor of the demonstrators and their organizations. The ruling came in the cases of Scheidler v. National Organization for Women (04-1244) and Operation Rescue v. National Organization for Women (04–1352).

Abortion clinics had relied upon the Hobbs Act in asserting claims of violence and threats of violence intended to shut down the clinics’ operations — acts that the clinics contended provided a basis for their claim of violations of the RICO law against racketeering organizations. In Tuesday’s ruling, the Court rejected the only remaining premise of the clinics’ claim, declaring that “physical violence unrelated to robbery or extortion falls outside the Hobbs Act’s scope.”

In the second of two rulings on argued cases, the Court, again unanimous, decided that it is not an automatic (”per se”) violation of the Sherman Antitrust Act for competing companies that have integrated their operations in a joint venture to set the prices at which the venture’s products are sold. The decision came in the cases of Texaco v. Dagher (04-805) and Shell Oil v. Dagher (04-814). (See below for further details of this ruling.)

New Justice Samuel A. Alito, Jr., did not take part in either ruling; the cases were argued before he joined the Court.

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Here is an article from the New Yorker by Jeffrey Toobin on the Texas redistricting cases.

Here is a CNN article about a speech Justice Scalia gave Saturday at the National Wild Turkey Federation’s annual convention.

Here, How Appealing links to “The Unlikely Center” from the March 6th issue of The New Republic. In TNR Pulitzer Prize-winning historian David J. Garrow reviews two books: “Sandra Day O’Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice,” by Joan Biskupic; and “David Hackett Souter: Traditional Republican on the Rehnquist Court,” by Tinsley E. Yarbrough.

In Newsweek, Cliff Sloan has this article on Justice Alito and campaign finance reform.

The Supreme Court on Monday issued its regular orders list. No new cases were granted, and there was no action on the pending appeal by Jose Padilla, a U.S. citizen challenging his detention as an “enemy combatant” (Padilla v. Hanft, 05-533).

Few of the actions on the list were noteworthy. Among the cases the Court refused to hear was a test of what a buyer of a used car must prove to support a claim that a dealer committed fraud under federal law in making the sale. Lower courts are divided, according to the appeal in Ioffe v. Skokie Motor Sales (05-735) over the requirements to prove a violation of the Motor Vehicle Information and Cost Savings Act.

The Court approved the Solicitor General’s request to take part in the oral arguments on cases testing the scope of the exclusion of evidence under the Crawford v. Washington decision on the Confrontation Clause. The cases involve “excited utterances” made by an individual to police either in a 911 call or at a crime scene. The cases are Davis v. Washington (05-5224) and Hammon v. Indiana (05-5705).

RESPONSE: A reader calls attention to the Court’s denial of review of a case challenging the protocol for lethal injection as the method of execution (Hill v. Florida, 05-8731). The denial was unremarkable. The Court had previously denied a stay of execution in this case (on Jan. 24), but a day later granted a stay when it agreed to review a separate appeal (05-8794) by Hill on his procedural rights in making such a challenge. The Florida Supreme Court ruling that Hill had asked the Court to review in this earlier case found that the Lancet study, on which many of these challenges to the execution protocol is based, did not entitle Hill to an evidentiary hearing on whether that protocol violates the Eighth Amendment.

The Lancet study, the state court found, “does not sufficiently call into question our holding” in a 2000 case, Smith v. State, upholding the state’s specific protocol.

“The trial court in this case correctly determined,” the state court said in Hill, “that this study does not entitle Hill to relief. As it clearly admits, the study is inconclusive….[The study does not] provide evidence that an adequate amount of sodium pentothol is not being administered in Florida, or that the manner in which this drug is administered in Florida prevents it from having its desired effect.”

Since the first of this year, the Supreme Court has repeatedly refused to hear challenges based on the Lancet study. Those appeals were last-minute challenges to execution. A clearer view of the Court’s reaction to complaints about lethal injection protocol will come when the Justices act on the appeal in Abdur’Rahman v. Bredesen (05-1036), which does not involve a final-hour challenge. A response in that case is due on March 20.

At 6:30pm on Wednesday March 1st, The American Constitution Society is hosting a panel discussion titled: “The Advocates Speak: Texas Redistricting Cases.” The cases are League of United Latin American Citizens v. Perry, 05-204; Travis County v. Perry, 05-254; Jackson v. Perry, 05-276; and GI Forum of Texas v. Perry, 05- 439. It will feature:

Debo P. Adegbile, NAACP Legal Defense Fund
Renea Hicks, Law Office of Max Renea Hicks
Sam Hirsch, Jenner & Block LLP
Leonard Shambon, WilmerHale
David Urias, Mexican American Legal Defense and Education Fund

The event will be held at Houston Hall, Classroom One at the Howard University School of Law which is at 2900 Van Ness St. NW.

In other news:

Here is Columbia Law Professor Tim Wu with an article on Slate asking if the Supreme Court clerks are “staffers.”

Concurring Opinions has this post on “John Paul Stevens in Picture and Song.” Concurring Opinions also has this post on Justice Roberts’ opinion in Gonzalez v. O Centro Espirit a Beneficente Uniao Do Vegetal.

Here are PrawfsBlawg and Ann Althouse with posts on Justice Rehnquist’s legacy.

Here is Balkinization with a post on South Dakota’s new abortion ban.

The Court will hear reargument in No. 04-473, Garcetti v. Ceballos, on Tuesday, March 21st, at 1:00. (Can anyone identify the last time the Court heard reargument in the same term that a case was first argued? I believe the answer is Slack v. McDaniel, in October Term 1999, see 528 U.S. 949 (1999).)

As I explained below, I think the odds are fairly high that Justice Alito will be the fifth vote against the employee — but of course one never knows; and in this case, the Court’s rationale will be much more important than the disposition of the case.

(This is another in a continuing series of reports on the impact that Supreme Court decisions have on later cases. The ruling discussed here is a sequel to the Court’s Jan. 18 ruling in the case of Ayotte v. Planned Parenthood of Northern New England [04-1144], limiting court orders in abortion cases.)

A new procedure for a medical abortion that does not involve surgery must be allowed later in pregnancy, the Sixth Circuit Court ruled Friday in a major new decision involving the drug known as “RU-486.” The decision can be found here. The ruling, however, requires a federal judge to reconsider an order totally barring the state of Ohio from restricting doctors’ use of RU-486.

This marks the second time a federal appeals court has applied the Court’s Ayotte decision. The Ninth Circuit, however, found that Ayotte did not require a narrower court order in a case where the Circuit Court had struck down the federal ban on so-called “partial-birth” abortions. In Friday’s Sixth Circuit ruling, however, the judges concluded that Ayotte did require a new look at a broad injunction against enforcement of the state law at issue.

RU-486, a French invention that brought a breakthrough in the medical technology of abortion because it allows termination of pregnancies without surgery, is now in wide use by doctors as a safe alternative procedure. The Food and Drug Administration had prescribed a protocol on when in pregnancy the drug could be used. Since then, a procedure known as “the Schaff protocol” (for Dr. Eric Schaff) has been adopted by more doctors, and it is the non-surgical method now recommended by major abortion provider organizations. The Sixth Circuit noted that this protocol “has come to be widely employed across the United States,” and has a success rate of at least 90 percent in terminating pregnancies.

One key difference between the Schaff protocol and the FDA version is that Dr. Schaff’s method allows the drug combination mifepristone (RU-486) and misoprostol to be administered up to 63 days in pregnancy — that is, nine weeks. The FDA protocol allows the procedure only up to 49 days — seven weeks.

Ohio’s legislature, concluding that there was some risk in the Schaff protocol, banned it in that state in a 2004 law restricting the use of RU-486 only under the FDA-approved approach. (An FDA-approved drug may be used by doctors for the purposes set out in an FDA protocol, but also may be applied in other situations — “off-label” use — unless a state has required otherwise. The Schaff protocol is an “off-label” use.)

Two doctors and a group of Planned Parenthood chapters in Ohio sued to stop the Ohio ban from taking effect, and a federal judge barred its enforcement, concluding that the challengers were likely to win ultimately with the claim that any abortion restriction must have an exception to allow its use when necessary to protect the health of pregnant women.

The Sixth Circuit, in a key constitutional part of its ruling Friday, declared that Supreme Court case law does not require that every law restricting abortion must have a health exception — a view that appears to contradict rulings by other appeals courts on the point. The Sixth Circuit said a health exception is necessary only when medical judgment shared by doctors suggests that a banned procedure would be safer than an alternative — that is, when a law’s ban on a procedure poses a significant health risk to women.

It went on to hold that Ohio’s ban on the Schaff protocol would pose a significant health risk, at least to women for whom alternative abortion methods would pose a risk into the ninth week of pregnancy — such as when a woman has a divided uterus, or there are other abornomalities in the uterus or the genital tract. For those women, the Circuit Court found, the evidence suggested that a surgical alternative would be significantly more risky.

“The medical authority available at the time of the preliminary injunction phase of this case permitted the finding that using mifepristone is the safest available method of medical abortion and that in some circumstances a medical abortion using mifepristone would pose significantly less risk to the health or life of a discrete class of women than a surgical abortion,” the Court concluded. “The evidence…does not adequately support the state’s claim that the act may constitutionally omit a health or life exception.”

Turning to the remedy, the Circuit Court applied the Supreme Court’s Ayotte decision, and ordered the trial judge to reconsider the sweep of the injunction barring any enforcement of the ban on the Schaff protocol. Ayotte, it said, holds that “when an abortion statute lacks a constitutionally necessary health or life exception, a narrow injunction prohibiting only unconstitutional applications of the statute should be employed where such an approach is not contrary to legislative intent.”

The proper course, the Court conlcuded, was to limit the injunction against the Ohio law to situations when the ban would be unconstitutional. It left the precise ruling on how to set that limit to the District Court judge, when the lower court considers the state legislature’s intent and other, not-yet-decided challenges to the state law.

(Thanks to Howard Bashman of How Appealing blog for the alert to the Sixth Circuit ruling, and for a link to it.)

The Solicitor General on Thursday filed the federal government’s brief on the merits in the case challenging the war crimes “military commissions” set up for terrorism suspects at Guantanamo Bay, Cuba (Hamdan v. Rumsfeld, 05-184). The brief opens with a renewal of the government’s argument that the case must be dismissed under the new Detainee Treatment Act, as well as an assertion that Hamdan has filed his challenge too early.

The summary of argument opens this way: “Petitioner’s pre-trial challenge to his military commission is jurisdictionally foreclosed by the Detainee Treatment Act of 2005 and fatally premature.”

The brief and appendix can be found here.

In addition, the amicus brief of Senators Graham and Kyl, supporting respondent, can be found here. An additional amicus brief supporting the government from the Criminal Justice Legal Foundation can be found here.

A bill drafted specifically to test the Supreme Court’s current view on abortion rights — and to set up a direct challenge to Roe v. Wade – won approval Wednesday in the upper house of the South Dakota legislature. The bill, H.B. 1215, was passed by the state Senate on a 23-12 vote. It differs slightly from a verison passed by the South Dakota House on Feb. 10, but the measure is expected to emerge virtually intact in final legislation.

The version of the bill that emerged on Feb. 17 from the state Senate’s State Affairs Committee can be found here. It is understood that the bill won Senate approval in this form, without further amendment, on Wednesday.

The bill declares that “life begins at conception, a conclusion confirmed by scientific advances since the 1973 decision of Roe v. Wade…” It says that, based on experience since 1973, “abortions in South Dakota should be prohibited.” While it imposes a flat ban on abortion, it declares that no doctor who “performs a medical procedure designed or intended to prevent the death of a pregnant mother” is guilty of violating the ban. But it does require the doctor to make “reasonable medical efforts” under the circumstances to save the lives of both the mother and “her unborn child” in a manner “consistent with conventional medical practice.”

The bill, if cleared by the two houses of the legislature, would then go to Gov. Mike Rounds, who said this week that he supports a ban on abortion, but had not yet decided whether he would sign the pending bill if it finally passes. Kate Looby, South Dakota director for Planned Parenthood, said “we will be lobbying the governor to veto the bill,” but added that her present expectation was that he would sign it into law.

The initial sponsor of the ban, Rep. Roger Hunt, a Republican and an attorney from Brandon, S.D., has told reporters in the state repeatedly that his aim is to set up a test of Roe’s continuing validity. He noted the appointment of two new Justices, and cited the possibility of “one or two more replacements within a few years,” creating a Court that he would expect to be more willing to reconsider Roe.

Immediately after the Senate acted on Wednesday, Planned Parenthood Federation of America and its Minnesota/Dakota affiliate announced that, if the bill is signed into law, a court challenge will begin immediately to stop the law from taking effect. South Dakota director Looby said: “Quite quickly, we will be going to court to ask that the bill be enjoined so that it never takes effect.”

“South Dakota’s ban is the most sweeping abortion ban passed by any state in more than a decade,” according to Planned Parenthood staff attorney Eve Gartner.

Under the bill, South Dakota’s existing abortion laws, including a provision allowing abortions during the first 12 weeks of pregnancy with a doctor’s approval, would be repealed. But the act specifies that, if the new ban is struck down, the existing laws would go back into effect.

Here is yet another post on Justice Alito’s clerk hires, this one on Concurring Opinions. PrawfsBlawg also has this follow-up discussing Justice Brennan’s decision to to withdraw his offer of a clerkship to Michael Tigar in 1966.

Here Election Law Blog has posted the reply briefs from the Vermont campaign finance case being heard by the Court next week.

In the Legal Affairs Debate Club this week, James C. Miller, Distinguished Fellow at both the Center for Study of Public Choice and the Mercatus Center at George Mason University and Richard Briffault, the Joseph P. Chamberlain Professor of Legislation at Columbia Law School debate the question, “Who Controls Campaign Finance?”

Here Sentencing Law & Policy has a post on Oregon v. Guzek .

Concurring Opinions has this post on litigants from Supreme Court cases have their own websites. The Volokh Conspiracy first identified this trend.

On February 25th, C-SPAN’s program, “American and the Courts” will air its tape of an event yesterday in which Supreme Court Justice Antonin Scalia talked about the role of international and foreign law in American judicial decision-making at the American Enterprise Institute. Here is a transcript from the event.

Here is information on a program being presented on March 1 by the Council of Appellate Lawyers (”CAL”). The program “Supreme Court Advocacy: Voices of Experience” features a panel of veteran appellate practitioners with a collective career total of 180 arguments before the Supreme Court. The moderator will be Jerrold J. Ganzfried, Chair, Supreme Court and Appellate Practice, Howrey LLP and Assistant to the Solicitor General of the United States (1981-1987).

Panelists include:
Donald B. Ayer, Jones Day; Deputy Attorney General (1989-1990); Principal Deputy Solicitor General (1986-1988); U. S. Attorney, E. D. California (1981-1986). Law Clerk to Justice Rehnquist (1976 Term).
Beth S. Brinkmann, Chair, Appellate Practice Group, Morrison & Foerster LLP, Assistant to the Solicitor General (1993-2001). Law clerk to Justice Blackmun (1986 Term).
David C. Frederick, Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C.; Assistant to the Solicitor General (1996-2001). Law clerk to Justice White (1991 Term).
Edwin S. Kneedler, Deputy Solicitor General of the United States.
Richard G. Taranto, Farr & Taranto, Assistant to the Solicitor General of the United States (1986-1989). Law clerk to Justice O’Connor (1983 Term).
Here is the form to register to attend.

Election Law @ Mortiz is hosting an Electronic Roundtable on two cases to be argued before the Supreme Court next week. On Tuesday, February 28, the Court will hear argument in Randall v. Sorrell, a case challenging Vermont’s limits on campaign expenditures and contributions. The next day, Wednesday, March 1, the Court will hear argument on League of United American Citizens v. Perry and consolidated cases, which concern Texas’ mid-decade congressional redistricting (or “re-redistricting”). Daniel Tokaji explains the event here.

Justice Breyer’s opinion for the Court in Oregon v. Guzek is available here; Justice Scalia’s opinion concurring in the judgment (which Justice Thomas joined) is available here.

Justice Ginsburg’s opinion for the Court in Arbaugh v. Y & H Corp. is available here.

Justice Kennedy’s opinion for the Court in Dolan v. USPS is available here; Justice Thomas’s dissenting opinion is available here.

Justice Scalia’s opinion for the Court in Domino’s Pizza v. McDonald is available here. [Disclosure: Goldstein & Howe served as counsel to the respondent, John McDonald.]

After an individual has been convicted of murder, that person has no constitutional right to try to head off a death sentence by trying to offer new evidence suggesting that the conviction itself was invalid, the Supreme Court ruled unanimously on Wednesday. States thus are free to put limits on the new innocence-related evidence — such as alibi evidence — that may be offered at sentencing.

The decision, in the case of Oregon v. Guzek (04-928), involved a man — Randy Lee Guzek — convicted of murder and sentenced to death. At sentencing (the third sentencing proceeding after he had won earlier appeals), Guzek sought to introduce live testimony from his mother providing additional evidence of an alibi, beyond what she had said as a witness at the trial. The Oregon Supreme Court ruled that he had a right to offer this new evidence as a mitigating factor against a death sentence. Wednesday’s ruling overturned that result, finding no such right. The opinion by Justice Stephen G. Breyer said states were free to limit evidence of innocence to that which had been offered at trial.

Breyer wrote: “We cannot agree with the Oregon Supreme Court that our previous cases have found in the Eighth Amendment a constitutional right broad enough to encompass the evidence here at issue.”

The Court issued four rulings in decided cases. New Justice Samuel A. Alito, Jr., did not take part in any of the four — all argued before he joined the Court.

The Court, in a 7-1 ruling, decided that postal patrons may sue the Postal Service for injuries suffered because of the negligent way mail was left at a home or office. The exemption the Postal Service has for lawsuits based on flaws in delivery is limited, the Court said, to destruction of mail or delivery to the wrong address. Turning aside the Postal Service’s argument that it would now face a wave of frivolous slip-and-fall lawsuits, the Court said that was a risk faced by any business that makes home deliveries. Thus, Barbara Dolan, a Glenside, Pa.., patron who was hurt by a fall after tripping over a package left on her porch, may go forward with a lawsuit. The Postal Service had claimed immunity. The case was Dolan v. U.S. Postal Service (04-848).

Wednesday’s other two rulings came in employment law cases.

In one, the Justices decided unanimously that the 1866 civil rights law guaranteeing an equal right of all races to enter into contracts does not apply when the individual seeking relief does not have a contractual relationship with the party sued. Thus, it said, an employee of a company who claimed personal harm from loss of a business opportunity — rather than harm to the company itself — may not sue. (Domino’s Pizza v. McDonald (04-593).

That case involved John McDonald, who was president of a company that was franchised to build Domino’s restaurants in Las Vegas. A negotiator for Domino’s told McDonald, who is black, that she did not like dealing with “you people.” The chain cut off the deal, and McDonald sued under Section 1981, claiming personal injuries to himself from the loss of the deal. The Ninth Circuit permitted his lawsuit, but the Supreme Court reversed, finding that McDonald himself was not a party to the contract between Domino’s and his franchise company.

In the other job case, the Court — again unanimous — ruled that the limit of workplace bias law to firms with 15 or more employees does not limit federal court jurisdiction, but only sets a limit on who may qualify for relief. That ruling came in Arbaugh v. Y&H Corp. (04-944). The decision cleared up a prolonged conflict among lower courts, over their power to decide cases when a threshold issue is whether the employer is even covered by federal law. The issue has arisen under a variety of laws — Title VII, Americans with Disabilities Act, Age Discrimination in Employment Act, Family and Medical Leave Act, and ERISA, laws that also involve definitional terms.

The ruling revived a $40,000 verdict that a waitress at a New Orleans eatery, the Moonlight Cafe, had won under Title VII. The Court said that the employer, Y&H Corp., had failed to raise the number-of-workers limit until after the verdict was in, so could not assert it, since the number was not a jurisdictional factor.

Here is today’s orders list.

The Court’s opinion in the O Centro Espirita case is available here.

The Court’s opinion (per Justice Scalia) in the Buckeye Checkcashing case is available here; Justice Thomas’s dissenting opinion is available here.

The Court’s per curiam opinion in Lance v. Dennis, the Colorado redistricting case, is available here; the concurring opinion of Justice Ginsburg (joined by Justice Souter) is available here; Justice Stevens’s dissent is available here.

The Court’s decision in Ministry of Defense v. Elahi is available here.

The decision in Ash v. Tyson Foods is available here.

The Supreme Court on Tuesday agreed to rule on the constitutionality of the federal ban on so-called “partial-birth” abortions — the first-ever law passed by Congress to outlaw a method for terminating pregnancy. Three federal appeals courts have ruled that the 2003 law is unconstitutional, mainly because it lacks an exception to the ban when an abortion procedure outlawed is necessary to protect the woman’s health. Congress said there was never a need for the banned procedure for health reasons. The case is Gonzales v . Carhart (05-380).

This case and three others granted on Tuesday will be heard in the new Term starting in October. The Court did not order reargument in any other cases heard before Justice Samuel A. Alito, Jr., took his seat.

On a busy morning after returning from a four-week recess, the Court decided two cases that had been argued and decided three cases summarily, while granting review in the four new cases. After issuing orders and opinions, it began hearing two key cases on the scope of the Clean Water Act — the first hearings in which new Justice Alito took part.

In one of the other newly granted cases, the Court will return to the issue of judges’ power to impose stiffer sentences based on facts not found by a jury or admitted by the accused. The issue is whether California’s determinate sentencing law is invalid because the judge may impose an enhanced sentence based on fact findings by the bench, not the jury. The case is Cunningham v. California (05-6551). (See below for the other new grants.)

The Court postponed until a hearing on March 28 whether to dismiss a constitutional challenge to the war crimes “military commissions” set up at the Navy prison camp at Guantanamo Bay, Cuba. Chief Justice John G. Roberts, Jr., took no part in the order, thus indicating he will continue his recusal from the case. The Bush Administration contends that the newly enacted Detainee Treatment Act requires the dismissal of all pending challenges by Guantanamo detainees. (Hamdan v. Rumsfeld, 05-184).

In another war on terrorism case, the Court took no action Tuesday on the appeal by Jose Padilla, a U.S. citizen challenging his capture and long-term detention as an “enemy combatant” (Padilla v. Hanft, 05-533).

In one of two decisions Tuesday in argued cases, the Court ruled unanimously that the government may not ban a religious sect from using a herbal tea that contains a substance that the government considers to be harmful. The Chief Justice wrote the opinion in Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal (04-1084).. Only new Justice Alito did not take part.

In the second decision in an argued case, the Court ruled by a 7-1 vote that a challenge to the validity of a contract that contains an arbitration clause must go to the arbitrator, when the entire contract is at issue. Justice Antonin Scalia wrote for the Court; Justice Clarence Thomas dissented. Alito took no part.(Buckeye Check Casshing v. Cardegna, 04-1264).

In a ruling by the Court, without briefing or oral argument, the Justices revived a lawsuit by Colorado Republicans seeking to undo a state Supreme Court decision barring any additional congressional redistricting during the current decade. In an unsigned opinion, the Court by a vote of 8-1 ruled that a three-judge U.S. District Court was wrong in concluding that it had no jurisdiction to hear that challenge. The ruling — the first final ruling by the Court in which Justice Alito did take part — came in the case of Lance v. Dennis (05-555).

The Court also issued a second summary decision, ordering the Ninth Circuit Court to reconsider a case testing whether the Iran Defense Ministry can be ordered by a U.S. court to give up property in the U.S. to satisfy a debt owed an American by the foreign nation. (Ministry of Defense v. Elahi, 04-1095).

In the third summary decision, the Court issued a potentially significant ruling on the scope of protection against race discrimination in the workplace under Title VII. The Court told the Eleventh Circuit to reconsider a ruling that virtually barred evidence that a minority person who did not get hired was better qualified than a white person who was hired — evidence that is offered to show that there was no non-discriminatory reason to justify the actual hiring. The Eleventh Circuit said such evidence would be admitted only if it jumped off the page and slapped the court in the face — a rigid standard that the Supreme Court said was not required. The Justices also told the lower court to reconsider its ruling that the use by a supervisor of the word “boy” is not discriminatory, when used toward a black employee without any qualifying words. That word alone is not always benign, the Court said in ordering a new review of that question by the Eleventh Circuit. The case was Ash v.Tysons Foods (05-379).

Other significant matters on the Orders List follow.

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We previously posted the briefs in Marshall v. Marshall (aka “the Anna Nicole Smith case”), No. 04-1544. You can find them here. Today we received petitioner’s reply brief. Oral argument is scheduled for February 28.

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

Objective Justice has this post on a challenge to legalized abortion coming out of South Dakota.

Here is PrawfsBlawg with a post on Justice Alito’s clerk hires and the subsequent press they received. The blog also has this post on this article by Bruce Ackerman on President Bush’s Supreme Court nominees.

That was the question recently posed on a constitutional law academic discussion list. Ceballos is the lone case that the Court has (thus far) restored to the calendar for reargument in the wake of Justice Alito replacing Justice O’Connor. [UPDATE: I’m informed the reargument might be this Term, despite the fact that the Court has accepted enough cases to fill the April sitting.]

This was the gist of my response to the “What difference will Justice Alito make?” question:

The employee will lose, and there may even be a holding that a government employee’s speech in her “official capacity” is entitled to no constitutional protection. Either or both of those results might have occurred even with Justice O’Connor’s vote — although I doubt it, as Justice Souter was probably assigned to write the majority opinion. But the former is almost certain now, and the latter a distinct possibility. Fairly safe prediction: There will be a Souter-penned dissent.

Somewhat surprisingly, the Court has never quite decided whether “official capacity” speech is entitled to any First Amendment protection — not even of the modest Pickering/Connick/Waters variety. (The closest case might have been Rankin v. McPherson, which dealt with workplace speech, but not speech undertaken in the firtherance of the employee’s job-related functions.) The Solicitor General has urged the Court to hold that “the First Amendment has nothing to say about actions based on [a] public employee’s performance of his duties.” If the Court holds that employees may be disciplined for their official capacity speech, without any First Amendment scrutiny, and without regard to whether it touches on matters of “public concern,” that could be a very important doctrinal development. Therefore, oral argument next Term could be very interesting, with all eyes on Justice Alito, and all ears on the remarks of other Justices “lobbying” for his vote.

Here’s an earlier summary of the case by Nat Garrett. The transcript from the October 12th oral argument can be found here.. (Among the reasons that the transcript is interesting is that it contains a rare instance (see page 13) of one Justice (Justice Scalia) addressing a question to another Justice (Justice Stevens) by that Justice’s first name.)

OK, so it was strange enough when, last Wednesday, the Washington Post decided that Justice Alito’s hiring of former Ashcroft aide Adam Ciongoli was worthy of a full, section A news story. Now, not to be outdone, the New York Times follows up today with a story under the ominous headline “New Clerk for Alito Has a Long Paper Trail.”

Adam Liptak reports that the hiring of Ciongoli was “a bold decision,” and “a startling development” in the “world of clerkdom.”

Count me as decidedly unstartled. This is a “Sun Rises in the East This Morning” sort of story. Ciongoli is bright, experienced, presumably shares much of Alito’s conservative philosophy, and clerked for Alito in the past. Why wouldn’t Alito extend him an offer, particularly in the mdist of his first Term, when he understandably wants to hit the ground running (and not wait for his clerks to get up to speed)? Ciongoli’s experience at DOJ and at Time-Warner only make him more valuable than a just-out-of-law-school clerk, not less so: He’ll have a much richer set of experiences and perspectives on which to draw. And it’s not at all unheard-of for Justices to choose clerks with some experience after appellate clerkships.

There’s really no story here beyond the usual one-paragraph Underneath Their Robes blurb. Or is there? Am I missing something?

(UPDATE: The following report has been updated to include material from the new brief filed by the Justice Department in the D.C. Circuit. The filings came in the combined cases that begin with Boumediene v. Bush [05-5062].).

The Bush Administration and two Republicans who helped negotiate the terms of the new Detainee Treatment Act, stripping courts of power to decide existing court challenges by war-on-terrorism prisoners at a military prison camp in Cuba, urged the D.C. Circuit Court on Friday to go ahead and rule on the captives’ claims but only within the limited court review system newly set up.

The Administration views, expressed in a new filing by Solicitor General Paul D. Clement and other Justice Department lawyers, argued that the detainees are seeking a “breathtaking” new constitutional ruling giving foreign nationals held outside the United States a constitutional right to bring a habeas challenge to their imprisonment at Guantanamo Bay in Cuba. “Because [the detainees] are aliens outside the sovereign territory of the United States,” the brief contended, “they have no constitutional rights” under the Constitution’s Suspension Clause, which limits the situations in which the writ of habeas corpus may be withdrawn.

But, the brief went on, even if the detainees have some rights under that clause, the new Act would not undermine those rights. The new court review process created by the Act, it contended, “is more than constitutionally sufficient.” If the cases proceed in the D.C. Circuit, the government said, detainees may raise there any “concerns about the legal adequacy” of the process the military used to declare them to be “enemy combatants” and to decide that they must remain confined.

The brief did argue, though, that the detainees would not be entitled, in pursuing their challenges in the D.C. Circuit under the new law, to have the Court probe into the facts of the “combatant” designations. “Habeas courts,” it said, “do not find facts, but rather engage in highly deferential sufficiency review.”

In the amicus brief filed by Senators Lindsey Graham of South Carolina and Jon Kyl of Arizona, the arguments exactly parallel the views of the Bush Administration on the scope of the new Act and what the courts should do with already-pending cases.

Both briefs contended that, because of the new law, federal District Courts have lost all authority to hear any challenge by a prisoner at Guantanamo Bay, but that the D.C. Circuit may allow those who have been designated as “enemy combatants” to re-file their challenges in the Circuit Court so that the cases can go forward there. A variation of this argument has also been made in the Supreme Court by the Administration, urging it to dismiss a pending challenge to the new war crimes “military commissions” set up for a small number of Guantanamo detainees. Those facing war crimes charges, however, would not be able to pursue a new challenge in the Circuit Court until they first were convicted.

The legal arguments in the Circuit Court briefs essentially make three points: first, that the text of the new Act and its legislative history make clear that all pending cases have been wiped out because they are habeas challenges and Congress has nullified that basis for court jurisdiction; second, that wiping out pending cases does not amount to an unconstitutional suspension of the habeas writ because the detainees have no constitutional right to pursue habeas, and third, there is no need to dismiss outright all pending cases, but to allow them to continue in the D.C. Circuit.

The D.C. Circuit had called for additional briefs in the pending cases, on the impact of the new Act on the existing challenges. It expressly asked attorneys to file theiir views on what the Circuit Court should do with two conflicting District Court rulings on detainees’ rights, should it find that Congress has taken away habeas jurisdiction. The government and its supporters were filed by the Friday deadliine. Two groups of detainees are to file responses on March 10, with a government reply on March 17. The Circuit Court will hold a hearing on the issue March 22.

The Hearing List of the attorneys who will be appearing in the ten arguments this sitting, beginning Tuesday and continuing through March 1st, is available here.

The Supreme Court on Friday ordered re-argument in a significant pending case on the free speech rights of government employees — Garcetti v. Ceballos (docket 04-473). There were no grants of new cases on Friday. Here is the Orders List. The Court will next issue orders on Tuesday, and there could be new grants at that time.

The new argument is expected to come during the current Term, either in March or April. The regular calendars for those months are full, but only for morning sessions.

The Garcetti case tests whether the First Amendment protects comments that public employees make in the course of performing their regular duties. It involves Richard Ceballos, a deputy prosecutor in Los Angeles County who wrote a memo to his superiors blowing the whistle on a flawed search warrant. He was taken off the prosecution team in the case, and transferred to a less desirable office; he contended this was in retaliation for his exercise of free speech rights.

The lead prosecutor at the time, Gil Carcetti, contended that, since the comments were made during the deputy’s normal duties, they should not be entitled to First Amendment protection under prior public employee speech precedents. The Ninth Circuit Court rejected that argument, finding that Ceballos’ comments were protected against retaliation.

The Court heard argument in the case early in the Term — on Oct. 12. The decision to order it re-argued may mean that the Court was closely divided as it deliberated on it, and Justice Sandra Day O’Connor’s departure in retirement had left the Court facing the prospect of a 4-4 split. If that is the reason for the new hearing, the new Justice, Samuel A. Alito, Jr., very likely would hold the decisive vote.

In other orders Friday, the Court agreed to allow the U.S. solicitor general to take part in the oral argument March 1 on the Texas congressional redistricting cases (05-204, and others), ordered divided argument in a major business tax incentive case (04-1704 and 04-1724), and permitted the state of Kansas to join in the argument on a criminal case involving evidence of third-party guilty (04-1327).

Today we, along with the students in the Stanford Supreme Court Litigation Clinic, are filing this cert. petition in Ledbetter v. Goodyear. The case involves the application of the statute of limitations for Title VII claims when an employee is challenging her current pay based on pay decisions that occurred outside the limitations period. The student team included Cody Harris, Lindsey Powell, and Scott Reents.

Justice Samuel A. Alito, Jr., took his seat on the Supreme Court’s bench for the first time Thursday afternoon near the close of a four-minute investiture ceremony in the Court’s ornate chamber. With all of his new colleagues except Justice John Paul Stevens attending, Alito took the Judicial Oath after his formal appointment papers were read aloud. That is one of two oaths a new Justice must take; Alito actually had taken the oaths previously, so he has been working as a Justice. He is the 110th Justice to serve on the Court.

The ceremony began after Alito had taken a seat in the left front of the chamber, occupying a chair once used by Chief Justice John Marshall. His commission, presented to the Court by Attorney General Alberto R. Gonzales, was read, and Alito then was escorted to the center of the bench to take the oath at 2:04 p.m. After a brief, quite formal welcome by Chief Justice John G. Roberts, Jr., Alito moved to his seat at the far right end of the bench, as seen from the audience.

He replaces retired Justice Sandra Day O’Connor. Because O’Connor was second-ranking in seniority among the Associate Justices (after Stevens), her departure meant that all of the other Justices but Stevens shifted sides of the bench: Justice Antonin Scalia, now second in seniority among the Associates, moved from left of center to O’Connor’s old seat right of center, next to the Chief Justice. Justices Anthony M. Kennedy, Clarence Thomas and Stephen G. Breyer moved to the left side of the bench from the right, while Justices David H. Souter and Ruth Bader Ginsburg moved to the right, joined there by Alito.

After the ceremony, Roberts and Alito appeared at the front of the Courthouse. Chatting amiably, they walked down the stairs before cameras, paused briefly, and then Roberts walked away as Alito was joined by members of his family for more photos.

Alito will participate in his first Conference of the Justices in private, Friday morning. As the junior Justice, it is Alito’s duty to answer the door of the Conference Room — no aides attend the sessions — and to report the results of the Conference to the Court Clerk.

Among the major items awaiting Alito and his colleagues Friday are the government appeal seeking to salvage the federal ban on so-called “partial birth abortions,” a government plea to dismiss the pending challenge to the war crimes “military commissions” set up for war-on-terrorism suspects, and the appeal by U.S. citizen Jose Padilla challenging the President’s power to order his detention as an “enemy combatant” after he was captured on U.S. soil.

Chief Justice Roberts is not expected to take part in the Court’s consideration of the military commission case, since he sat on that case as a judge on the D.C. Circuit Court. He has taken himself out of the process when the Court issued earlier orders in that case, including the grant of review.

Here is Bloomberg.com with an article on Alito’s new clerk hires.

The First Amendment Center has posted this article by Tony Mauro on Justice Alito’s chance to weigh in on the First Amendment in Randall v. Sorrell, Sorrell v. Randall and Vermont Republican State Committee v. Sorrell.

Here is the New York Times with an article on Justice Breyer’s early days on the court. Here is the University of Chicago Faculty Blog with a post on the day in the life of Justice Breyer.

This week the Legal Affairs Debate Club asks whether or not the Attorney General should be independent.

Sentencing Law & Policy has this post titled, ” What should and will SCOTUS do with the state Blakely cases?”

PrawfsBlawg has this post on the briefing in Hamdan.