Lawsuits already are pending in federal trial courts to challenge the Bush Administration’s once-secret program of extending National Security Agency electronic eavesdropping to some calls involving Americans within the U.S. Now, a proposal has been made in Congress that seeks to assure a fast resolution by the Supreme Court of the legal and constitutional questions that have been raised about the program. The bill does raise significant questions about Congress’ authority to give U.S. citizens a right to bring those challenges, even if they do not have proof that they were targeted.

On Wednesday, Sen. Charles Schumer, New York Democrat, introduced S. 2468 (the text can be found here). Essentially, the bill does four things:

First, it confers a right to sue (”standing”) on a citizen “who has refrained or will refrain from wire communications because of a reasonable fear” that the communications were monitored by the government without a warrant issued by the Foreign Intelligence Surveillance Court; (The bill’s definitions include one for “a reasonable fear.”

Second, it gives the courts authority to issue a declaratory ruling or issue a court ban on that type of surveillance.

Third, it requires the challenges to be filed with a three-judge U.S. District Court in Washington, D.C., with a direct appeal from there to the Supreme Court.

And, fourth, it requires both the District Court and the Supreme Court to expedite review “to the greatest possible extent.”

The bill has been referred to the Senate Judiciary Committee.

Under an already pending bill sponsored by Judiciary Committee Chairman Arlen Specter, Pennsylvania Republican, the Foreign Intelligence Surveillance Court would be required to pass upon the constitutionality of the domestic side of the NSA monitoring program. Another pending bill, sponsored by Sen. Mike DeWine and other Republican senators, would simply validate the existing program by enacting it in a new statute.

The D.C. Circuit Court, pondering the meaning of the court-stripping law passed late last year by Congress (the Detainee Treatment Act), has refused to accept three senators’ attempts to help shape the ruling. In a brief order Thursday, containing no explanation, the Circuit Court refused to allow the three key sponsors of the new law to file amici briefs in two packets of detainee cases now pending there (the lead case is Boumediene v. Bush, docket 05-5062). No one opposed the filing of those briefs. No other amicus briefs were turned aside.

The senators are Republicans Lindsey Graham of South Carolina and John Kyl of Arizona, who filed a brief together, and Democrat Carl Levin of Michigan.

There is an ongoing debate among those three as to the import of legislative history that the three of them created for the Congressional Record, but that did not actually occur on the floor of the Senate. The controversy centers on whether the Act was meant to withdraw the courts’ jurisdiction over already-pending detainee cases — an issue also before the Supreme Court in the case of Hamdan v. Rumsfeld (05-184). But a secondary controversy has arisen over a suggestion by the two GOP senators that their “colloquy” on the issue was a live exchange.

The Circuit Court’s order to return the briefs to the senators can be found here. The Court made it clear that it had first examined the briefs before ordering them returned.

Among possible explanations for the order are these:
First, the three judges on the panel regarded the senators as speaking only for themselves, so their briefs did not have the dignity of being a formal representation by the Senate itself, or by Congress.
Second, some or all of the judges are of the view that legislative history in general, or manufactured history of this kind, is unhelpful in determining Congress’ purpose in enacting the legislation.
Third, some or all of them were troubled by the attempt to cast the Graham-Kyl exchange as one that actually occurred on the floor prior to the final vote, and decided to push that brief aside, and did so, too, with Levin’s brief in order to appear to be even-handed.

The order, however, leaves open the possibility that the reconstructed senatorial “speeches” would still be considered by the panel, since the federal government’s brief relies upon the Graham-Kyl exchange as part of its argument that jurisdiction over detainee cases has been taken away.

An explanation, at least by implication, may only emerge when the panel decides the jurisdictional issue.

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The Senate Judiciary Committee on Thursday approved for Senate consideration a bill that would direct the Supreme Court to permit television coverage of its public sessions. The bill also seeks to dictate what the Court would have to do to keep the cameras out case by case. It raises interesting separation-of-powers questions.

The text of the bill can be found here. A statement by the C-Span cable network about the Committee’s action is here.

Massachusetts’ highest state court, in a ruling Thursday against marriage licenses for most out-of-state gay couples who seek to get married in the state, decided one federal constitutional issue. Attorneys for the couples involved, however, apparently will not challenge that ruling in the U.S. Supreme Court. Instead, they will focus on trying in state court to narrow the impact of the overall decision. (The state court’s ruling in Cote-Whitacre v. Department of Public Health can be found here. Thanks to Howard Bashman for a workable link.)

In 2003, the Massacbusetts Supreme Judicial Court ruled that the state may not bar marriage of same-sex couples. That decision was based solely on the state’s constitution, and thus that ruling could not be challenged in federal court. But, in the sequel case decided Thursday, the state court ruled on a claim that the denial of a chance to marry for non-resident couples violated the privileges and immunities clause of the U.S. Constitution’s Article IV. That is the only aspect of the ruling that would have been within the Supreme Court’s reach.

After the initial 2003 ruling in favor of same-sex marriage in the state, Gov. Mitt Romney moved to limit the decision’s scope, bringing back into play an unused 1913 law that said no marriage could be performed in Massachusets for out-of-state residents if their marriage “would be void” in their home state. County clerks around the state were told to enforce this provision rigorously.(UPDATE: This should be “municipal clerks.” See Comment below by “Wave Maker.”)

Eight same-sex couples from other states, for whom clerks either had refused marriage licenses or refused to record a performed marriage, brought a series of challenges to those restrictions. One of their claims was that these denials denied them the federal guarantee that citizens of each state are entitled to “all privileges and immunities” of citizens of other states. The refusal to let them marry, as Massachusetts gay couples may, discriminated against them, they contended. (Their other arguments were claims of violations of the state constitution. They lost on those points, too.)

In rejecting the Article IV challenge, the state’s highest court ruled that the state was not discriminating between all residents and all non-residents, but rather was only treating non-residents differently who could not marry at home from non-residents who could (such as opposite-sex couples). This differing treatment, the state court said, works to “promote interstate harmony by mandating respect for the laws of other jurisdictions.”

The court stated its reasons in two opinions representing the views of five (and perhaps six) of the seven justices. One justice dissented on all points.

Michele Granda, a staff attorney for the Gay & Lesiban Advocates & Defenders, who represented the couples, said that attorneys were still studying the ruling, but added that an appeal to the Supreme Court on the one federal point is “pretty unlikely; I don’t see that happening.”

The decision does allow three couples — two from Rhode Island and one from New York — to try to persuade a lower state court that same-sex marriage is not totally outlawed in their home states, so they should be permitted to marry in Massachusetts. Their chance to make that claim resulted from a more favorable interpretation, for them, of state statutes than the state attorney general had advanced; the attorney general’s broader interpretation of the statutes’ ban was rejected on a 4-3 vote.

The federal court jury in the death penalty proceeding against convicted terrorist conspirator Zacarias Moussaoui is in its second day of deliberations. The jury at this stage is considering only whether Moussaoui is eligible for a possible death sentence. If it finds that he is, the case will then proceed, with further evidence, to the issue of whether a death sentence should actually be imposed.

Here is the verdict form the jury will be using, posing the conclusions that the jury must reach unanimously in order to find him eligible for a death sentence on any of the three counts to which he pleaded guilty and that carry a potential death sentence.

If the jury concludes that Moussaoui is not eligible for the death sentence on any count, he will then be sentenced to life in prison without parole. He pleaded guilty in April 2005 to six conspiracy counts.

Here is Sentencing Law & Policy on oral arguments in Sanchez-Llamas v. Oregon and Bustillo v. Johnson. The cases concern the enforceability of the Vienna Convention’s promise of consular access for foreign defendants. Here is Opinio Juris on the cases.

Here is Balkinization on the Hamdan oral argument.

ACSBlog has this post on Justice Scalia’s decision to hear the Hamdan case.

Here Northwestern Law Professor and former U.S. Ambassador-At-Large for War Crimes David Scheffer has an article on the status of conspiracy as a war crime. It is titled, “Why Hamdan is Right about Conspiracy Liability.”

Here Orin Kerr posts the dialogue from a key moment in the Hamdan argument. He also has this post titled, “Aaron Burr and Antonin Scalia, Acting Chief Justice.”

Here the Wall Street Journal Law Blog has a post on yesterday’s Supreme Court oral argument in Ebay v. MercExchange.

The transcript of Tuesday’s hearing in Hamdan v. Rumsfeld (05-184) is now available, and can be found here.

(Thanks to a reader who supplied the link.)

When first-rate advocates face off in a Supreme Court argument, it often is difficult to say who had the better of the argument, or who came closest to winning a majority. In fact, only one thing emerged conclusively from the argument Wednesday in EBay v. Mercexchange (05-130) — the Court is not about to interpret the Patent Act so as to penalize patent “trolls” with lesser remedies for infringement. The “troll issue” only provided a bit of merriment in an otherwise serious hearing.

Seasoned lawyers Carter G. Phillips and Seth P. Waxman elevated the quality of the argument with predictable skill, and with utter devotion to each client’s cause. Jeffrey P. Minear, an assistant to the U.S. Solicitor General, competently carried off a cameo role. The Court was fully engaged with them, but did not provide any dependable signs of who will win in the end.

Phillips’ client is EBay Inc., the enormously popular operator of an consumer buy-and-sell, online market, and it faces a potential injunction against use of a patented system for selling goods through an electronic network of consignment stores. (Chief Justice John G. Roberts, Jr., no doubt speaking for the Court, expressed some uncertainty about just what the invention entailed, although he did claim that he felt capable of making a consumer choice from an Internet display of products.)

With his typically high-energy presentation, Phillips argued that the Federal Circuit Court has laid down a categorical rule that, if a patent has been infringed, an injunction against further use must follow. “Is that the only way to read the [Federal Circuit] decision?” Justice Ruth Bader Ginsburg asked. “Yes, the only way.” That, he said, is not the way a court is supposed to deal with a matter of equity.

Along the way, EBay’s lawyer managed to relate the scope-of-remedy issue to rapid technological change, saying innovation will be “stultified” by the nearly automatic injunction approach. He took his complaint a little too far, at least for Justice Antonin Scalia, in complaining about the patent lawsuit trigger-happy litigators in Marshall, Texas. That, said Scalia, is only a problem of “a renegade jurisdiction.” Besides, said Scalia dismissively, everybody is in it for the money, so let the free market work out the problems of using technological advances.

Phillips did not argue for unrestrained discretion for federal trial judges to decide for or against injunctions as a patent remedy, but he did say that they should always have the option of deciding that a money damages award would be an adequate remedy. A money award, he said, can be completely adequate, leaving an injunction for later consideration if infringement persisted. “We’re not asking for the right to continue to infringe,” he said. Moreover, he stressed, the trial judge in this case had found that none of EBay’s success in the Internet-based marketplace was attributable to Mercexchange’s patent.

It was during his time at the podium that the “troll issue” came up. “Trolls,” to some in patent law, are holders of patents who do not turn them into commercial products or processes, but simply police their exclusive rights to own and license the invention and — critics claim — use the threat of injunctions to force huge settlement payoffs. Phillips did not argue for a special limitation on remedies for infringement of patents held by “trolls,” but did suggest that they should not be entitled to any automatic injunction to give them leverage. He and Kennedy had a somewhat amusing exchange over whether “troll” meant the ogre under a bridge, or someone fishing for something. Being present in the courtroom added a bit to the sense that this was funny.

Minear’s task, arguing on Mercexchange’s side but not unqualifiedly, was to encourage the Court to provide new guidance for judges on how to apply traditional factors on when an injunction should be issued. He was not enthusiastic, however, about trial judges in patent cases paying too much attention, in deciding on injunctions, on what the Patent Office may be doing in reevaluating a contested patent; there are too many layers of review there to be conclusive, he indicated.

Waxman, intent on showing that the Federal Circuit had not made a dramatic shift on the availability of injunctions for infringement, said it was “firmly and unequivocally established” that a final judgment of infringement yields an injunction in all but the rarest cases. “Infringement is irreparable injury by nature,” he said.

As the lawyer for Mercexchange, Waxman’s second priority — one to which he gave considerable energy and emotion — was to portray EBay as something of a bad actor, first trying to manipulate the small patent holder into selling its patents, then, when that was refused, “appropriated the technology” for its own use. With some asperity, he said, “this not a patent ‘troll’ case; the founder of Mercexchange really did invent this…this is a real invention.” (it was during this part of his argument that Roberts inquired about the nature of the invention, to which Waxman gave only a fleeting answer, suggesting that neither he nor the Chief Justice was schooled in software technology.)

The Supreme Court, confronting for a second time in a year the rights of foreign nationals caught up in U.S. criminal cases, went searching on Wednesday for ways to remedy violations of the right under the Vienna Convention to get the aid of a diplomat from a suspect’s home country. It was a somewhat upside-down argument: the Court focused first and mainly on the remedy issue, and examined only belatedly whether foreign suspects do have any rights that are enforceable in court under the Vienna treaty. Five lawyers argued the case, and only the U.S. government’s attorney emphasized the underlying issue of the existence, or not, of private rights.

The hearing came in the consolidated cases of Sanchez-Llamas v. Oregon (04-10566) and Bustillo v. Johnson (05-51).” sequels to last year’s case of Medellin v. Dretke(04-5928(, dismissed by the Court because of subsequent developments in state court in that case. The Court there answered none of the questions about the meaning of the Vienna Convention, and its enforceability.

Throughout the 90-minute argument in the new cases from Oregon and Virginia, the Justices seemed to be proceeding on an unstated perception that the Convention’s promise of consular access did confer a right, of some kind, upon foreign suspects arrested in this country. The exploration thus turned to the question of what to do about violations of that right.

It became clear, fairly early, that the Court was not eager to embrace the one remedy that lawyers for two foreign nationals most wanted — suppression of any evidence, including any confession, that police obtained from a foreigner who had not been allowed to consult a consular officer from his own nation. One potential remedy that several of the Justices seemed to embrace was relying upon defense counsel to raise the Vienna issue, and, if it were not raised, to permit a foreign national to assert a claim of ineffective assistance from that lawyer. (The Justices, however, did not appear to have mind up their minds in what forum such a claim could be asserted; that fundamental issue, too, went begging, for the most part.)

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The good folks here at the Georgetown University Law Center have put the audio of today’s oral argument in Hamdan up on our website: It can be found here.

This merits brief was filed today in United States v. Gonzalez-Lopez, which presents the question whether the denial of a criminal defendant’s Sixth Amendment right to be represented by counsel of choice requires automatic reversal of his conviction. We serve as counsel to the respondent, although credit for the brief goes principally to Jeff Fisher (who will argue on Gonzalez-Lopez’s behalf next month), Pam Karlan, and the three Stanford students — Cody Harris, Kimberley Morris, and Eric Tuttle — who worked on it.

With Justice Antonin Scalia taking part — and, in fact, providing the only clearcut signs of unstinting support for the federal government’s arguments — the Supreme Court on Tuesday probed deeply into the validity of the war crimes tribunals set up by President Bush, and came away looking decidedly skeptical. From all appearances during the 90-minute argument, the Court may have some difficulty fashioning an opinion, but perhaps not a result: the existing “military commission” scheme may well fail.

The Court spent comparatively little time on the issue of whether it has jurisdiction to proceed to a ruling on the merits in the case of Hamdan v. Rumsfeld (05-184), but Justices Stephen G. Breyer and David H. Souter strenuously — and repeatedly — advanced the point that the Court would have to find it has jurisdiction in order to avoid the very difficult constitutional question of Congress’ power to abolish all forms of habeas challenge to the treatment of war-on-terrorism detainees. It was a point that seemed likely to draw the support of enough Justices to prevail.

If the Court does proceed to the merits, it appeared that there would be at least three ways that a majority could be formed to find the “military commissions” to be flawed: first, those tribunals would be using procedures that would violate federal laws, the Constitution, or an international treaty; second, a variation of the the first, the “commission” system was not set up properly in the first place, or, third, they can only try crimes that definitely are recognized under the international laws of war and that does not include the most common charge brought so far — terrorism conspiracy. There was little exploration of ultimate arguments against the “commission” setup: the claim that the President had no power to create them on his own, without specific authorization from Congress, and, alternatively, the claim that Congress has not given him that power.

With only eight Justices participating (Chief Justice John G. Roberts, Jr., is recused), it appeared that Justice Anthony M. Kennedy might well emerge as holding the decisive vote. In a variety of ways, Kennedy seemed troubled about the legitimacy of the tribunals as presently arranged. Most of his questions seemed aimed at locating the specific deficiencies that might be found in their functioning. At one point, he suggested openly to the detainees’ lawyer, Georgetown law professor Neal Katyal, that the Court might well “think there is merit” in his argument that the tribunals were not “properly constituted.” In that event, Kennedy suggested, the Court would not have to get into the complex question of what kind of charges were within the tribunals’ authority to try.

There were a number of comments or questions indicating that the detainees may well be able to draw the votes of Justices Breyer, Souter, Ruth Bader Ginsburg and John Paul Stevens. There was no doubt whatsoever that Justice Scalia (whose recusal had been suggested by some amici, troubled over public statements he made about detainees’ rights) would line up definitely on the side of the “commissions” in their present form. Justice Samuel A. Alito, Jr., through a few questions, seemed to be sending a message that he was inclined to allow the “commissions” to go forward with trials, leaving any challenges until after convictions, if any, emerged. Justice Clarence Thomas said nothing, but he has been, in the past, the Court’s most fervent supporter of presidential wartime powers.

The overall tone of the hearings seemed significantly in favor of the challenge to the new tribunals. Solicitor General Paul D. Clement, defending the tribunals, seemed more challenged than is customary for him; indeed, at times he appeared genuinely relieved at the help Justice Scalia provided for his argument. He rushed to embrace Scalia’s points as if they were stronger than his own.

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Here is The Pocket Part on the case with an article by Neal Katyal.

Here is a Slate article on the case by Ariel Lavinbuk, one of the law students who worked on it.

Yesterday we filed this cert. petition in Medeiros v. Sullivan, which presents the question whether individuals are categorically prohibited from raising Tenth Amendment challenges to a federal government’s commandeering of a state government. Our co-counsel in the case are Robert Caron of Providence, RI and Pamela Karlan. The case is one of the four that we did with our students in our winter term class at Harvard Law School; Harvard 3Ls John Bash, Jesse Panuccio, and Ben Shultz all worked extensively on the case.

Earlier this month, the Stanford Law Review sponsored a symposium on the legacy of two of its most famous alums, the late Chief Justice William Rehnquist and former Justice Sandra Day O’Connor. Dan Roth attended the symposium and provides this very interesting report:

Based on the premise that one can learn a great deal about people from the way they speak of others, a rather unpublicized St. Patrick’s Day address by Justice Anthony Kennedy provided a rare glimpse into the personality of the man who most Court observers agree now occupies the ideological center of the recently constituted Roberts Court. Kennedy was the keynote speaker at “Looking Backward, Looking Forward: The Legacy of Chief Justice Rehnquist and Justice O’Connor,” a symposium sponsored by the Stanford Law Review. The venue was particularly appropriate, as both former justices graduated from Stanford Law in 1952 and Rehnquist, O’Connor, and Kennedy all attended Stanford University. Justice O’Connor was also present and concluded with remarks of her own. The standing-room-only audience was enraptured by both speakers.

Kennedy masterfully delivered an incisive, sincere, erudite homage to his former colleagues, weaving together national and personal history, quoting verse, and of course expounding on the major developments in constitutional law of the Rehnquist era. Kennedy (celebrating the holiday and his Irish heritage with a green tie and pocket square) remarked first of all upon his late boss’s similarities to the first great Chief Justice, John Marshall. Like Marshall, Rehnquist had a special way of setting others at ease despite their being in the company of a great man of unique national stature. (Perhaps unconsciously, Kennedy himself disarmed the audience by eschewing the space behind the podium and engaging the crowd from a more informal stance. He eschewed notes, as well, impressing in a “John Roberts with added gravitas” sort of way.) Continuing, Kennedy expressed his deep appreciation for Rehnquist’s sharing of his friends with Kennedy and his wife upon their arrival in Washington in 1988, and relayed a first-day-on-the-job anecdote involving a question of the average rainfall in Sacramento. Uncertain of the answer to the new boss’s query about his native city’s precipitation, Kennedy ventured the guess of 20 inches. “Too high,” responded Rehnquist. A note appeared later that day informing Kennedy that, in fact, Sacramento’s average rainfall was 18.9 inches.

It was in his discussion of each justice’s major legal legacy that Justice Kennedy’s own persona seemed to come through. He spoke with great passion of Rehnquist’s commitment to separation of powers as realized in the jurisprudence of the “new federalism,” a project in which both Kennedy and O’Connor joined the late chief, as the means to achieving the greatest amount of individual freedom. But he spoke with equal fervor and admiration for Justice O’Connor’s commitment to equality – a commitment Kennedy attributed to her western heritage and her pioneering journey to the top of the American legal profession – a topic on which Rehnquist was often on the opposite side. And, addressing by implication critiques of Justice O’Connor’s “pragmatic” jurisprudence, Kennedy embraced a definition of the term that involves cognizance of the effects of a decision, stating emphatically that “awareness of consequences is quite different from results-oriented jurisprudence.” Hearing these points expressed in succession and in a context more human than legal seemed like a revelation of the complex conservative jurist of both the federalism revolution and the soaring equal rights language of Lawrence v. Texas.

Kennedy closed by presenting Justice O’Connor (“Sandra,” as he mostly called her throughout, whereas he referred to Rehnquist as “Bill” only once, calling him “Rehnquist” almost exclusively) to the crowd. Lauding her trailblazing career and service to the country and the Constitution, Kennedy’s voice cracked with emotion.

Justice O’Connor’s concluding remarks focused on her years in college and law school at Stanford and on her concern that, with the loss of herself and the late Chief, the Court now lacks what was a strong contingent of westerners. Of Rehnquist, O’Connor noted the skill with which he perfectly distilled every idea from classes, emerging from each lecture with a perfectly honed outline. She noted fondly that the Stanford Law Review, by way of a cite-checking assignment, was responsible for her meeting her husband, John, who was a year behind her in school (and was also in attendance). And on the topic of westerners’ perspectives, O’Connor expressed concern that the decrease in their numbers imperiled the jurisprudence of western water rights – a topic of great importance in that region. With great grace and humor, O’Connor thanked everyone, likening her attendance at the symposium to being at one’s own funeral.

One could not have left the room unaware of or unmoved by the quality of the bond among the three members of the Court. The speeches were a profound reminder of the fact that the justices, though towering in their intellect, ability, and accomplishment, are also very human, and that the job they do is deeply influenced by who they are and how they relate to one another.

Title says it all.

This post was written by Stanford Law Student Scott Reents. Disclosure: Goldstein & Howe is co-counsel for petitioner.

Petitioner Salid Ahmed Hamdan is a detainee being held at Guantanamo Bay, Cuba. He was captured in Afghanistan in November 2001 and admits to being a personal bodyguard and driver to Osama bin Laden. He was charged with conspiring to commit acts of terrorism, and was to be tried before a military commission, which is a special adjudicatory body created by Presidential order to try individuals accused of war crimes.

Before trial, Hamdan challenged the lawfulness of the military commission that was to try him, and in November 2004, the D.C. District Court enjoined the military commission proceedings as illegal under the Geneva Convention and the Uniform Code of Military Justice (UCMJ). The court of appeals for the D.C. circuit reversed, holding that military commissions had been duly authorized by Congress; that relief was unavailable under the Geneva Convention because it did not create privately enforceable rights and because it did not apply to Al Qaeda; and that the UCMJ did not preclude Hamdan’s trial before military commissions.

The case deals with legality and scope of military commissions in the war on terror. While Hamdi v. Rumsfeld and Rasul v. Bush (2004) addressed the issue of the prospective detention of enemy combatants (holding that the Government had the authority to detain alleged enemy combatants in the conflict but that alleged enemy aliens held in Guantanamo Bay, Cuba, had a right to file petitions for habeas corpus to challenge the basis of their detention), this case addresses the use of military commissions to impose retrospective punishment on individuals charged with acts relating to terrorism.

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A quick note: Hamdan’s counsel have been asked by various reporters regarding our position on the recusal of Justice Scalia from the case in light of the letter suggesting recusal that was filed today. As Lyle indicates below, we take no position on the issue.

Five retired generals and admirals, taking part as friends-of-the-court in the war-on-terrorism case of Salim Ahmed Hamdan, on Monday asked Justice Antonin Scalia to step aside when the Supreme Court considers Hamdan’s challenge to the war-crimes tribunals named “military commissions.” Hamdan v. Rumsfeld (05-184) is to be argued Tuesday.

In a three-page letter to the Court’s clerk (available here), the attorney for those individuals argued that “Justice Scalia ahould recuse himself from further participation in this case in light of remarks that the Justice made earlier this month at the University of Fribourg in Switzerland. Those remarks, since widely publicized, give rise to the unfortunate appearance that, even before the briefing in this case was complete, the Justice had made up his mind about the merits.”

Hamdan’s own attorneys have not asked the Justice to recuse. In response to queries, his lawyers issued this statement: “Hamdan’s counsel have been asked regarding our position on the recusal of Justice Scalia from the case in light of the letter suggesting recusal that was filed today. We take no position on the issue.”

Under the Court’s usual procedures, such a request is not formally docketed, but is simply “received,” and may be passed on to the Justice who is challenged. It is up to that individual Justice to decide whether to recuse or to take part. Justice Scalia, challenged for out-of-court remarks he had made about the Pledge of Allegiance litigation, did recuse himself from the Court’s ruling on that issue in June 2004. But, challenged over a hunting trip he had made with Vice President Cheney, Scalia declined to take himself out of a case involving the government energy task force that Cheney had chaired; that case, too, was decided in June 2004.

The new challenge was filed by David H. Remes of Covington and Burling, who is counsel for retired generals David M. Brahms and James P. Cullen and retired admirals Lee F. Gunn, John D. Hutson and Donald J. Guter.

Remes said that Scalia’s comments in Switzerland “also give rise to the unfortunate appearance that the Justice may bring to this case a personal animus toward Petitioner and those similarly situated arising from the military service of the Justice’s son in Iraq. In a case that is fundamentally about fair process, it is especially important that this Court’s own process be perceived to be fair.”

The letter recited an account of Scalia’s remarks in the online site of Newsweek magazine. The retired military officers are taking part in the case to support Hamdan’s challenge to military commission procedures based on the 1949 Geneva Convention.

The letter concludes” Amici respectfully submt that, at the very least, Justice Scalia’s impartiality ‘might reasonably be questioned’ in this case based on his remarks at the University of Freiburg and that the Justice;’s remarks may violate Canon 3-A-6 [of the Code of Conduct for United States Judges.” It suggests that Scalia’s comments make it appear that he had made uphis mind about the Geneva Convention issue, and that he has a personal bias because of his son’s military service.

Scalia has no obligation to respond to the letter. Indeed, the only indication of a reaction could be whether he remains on the bench Tuesday after the Court finishes the scheduled first argument, and prepares to hear the Hamdan case.

If Scalia were to step aside, it would mean that the case would be heard by only seven Justices, since Chief Justice John G. Roberts, Jr., is not taking part, having served on the D.C. Circuit Court panel that upheld the war crimes tribunals.

Here is today’s orders list and here is an interesting opinion concurring in the denial of cert. filed by Justice Scalia and joined by Justice Alito.

The Supreme Court agreed on Monday to rule on one new case — a test of the one-year filing deadline for pursuing a habeas challenge in federal court. The main issue, in the case of Lawrence v. Florida (05-8820, is whether the filing period is suspended while a state prison inmate has a post-conviction petition for review pending in the Supreme Court.

The case involves a Florida death row inmate, Gary Lawrence, who was convicted of the beating death of a man who had been intimate with Lawrence’s wife, after the Lawrence couple had separated.

Once more, the Court took no action on Jose Padilla’s appeal challenging his capture and detention as an “enemy combatant” in the war on terrorism. The Court has examined Padilla v. Hanft (05-533) seven times without announcing any action on it.

As the Court opened its session, it noted the retirement last July 1 of Justice Sandra Day O’Connor. With O’Connor sitting in the Justices’ guest area, an exchange of letters was read from the bench. Chief Justice John G. Roberts, Jr., first read a letter from him to O’Connor, transmitting a letter her pre-Roberts colleague had written to her. Justice John Paul Stevens then read the colleagues’ letter, and Roberts concluded by reading a response from Justice O’Connor.

Among the cases denied review was an appeal by The New York Times, seeking to head off a libel and emotional distress lawsuit in Virginia federal court. The lawsuit was filed by Stephen J. Hatfill, a former Army research scientist, complaining of columns in The Times that he said created the impression that he was involved in the deadly anthrax attack on Washington in late 2001. After the case was dismissed in District Court, the Fourth Circuit Court revived it; en banc review in the Circuit Court was denied on a 6-6 vote. The Supreme Court case was New York Times v. Hatfill (05-897).

On Tuesday morning, at 11 o’clock or a few minutes after, Chief Justice John G. Roberts, Jr., is expected to rise from the bench, and depart from the courtroom. He has taken himself out of every preliminary action on the war-on-terrorism case of Hamdan v. Rumsfeld (05-184), so that is expected to continue Tuesday. But his departure raises at least the possibility that the other eight Justices might cast a 4-4 tie vote.

If such a vote comes on the merits, the result will be clear-cut: the Court will have upheld a decision by the D.C. Circuit Court finding no legal defect in ithe war crimes tribunals called “military commissions.” In that event, no precedent would be set, and the Justices will issue no opinion. Still, that would mean that foreign nationals facing war crimes charges would be tried under the system the Pentagon now has in place and ready at the detainee prison at Guantanamo Bay, Cuba. If any were then convicted in such a proceeding, they presumably could attempt to bring some kind of challenge in federal courts, although the scope of that kind of review s in doubt.

But before an eight-Justice Court could rule on the merits in the Hamdan case, it must first satisfy itself that it has jurisdiction to hear and decide that dispute. The Supreme Court’s jurisdiction to hear appeals is not open-ended, so a threshold issue in any case is whether a given lawsuit can, indeed, be decided there. Suppose, though, that the Justices split 4-4 on this issue in Hamdan. What then? The result is not as clear as it would be if the Court proceeded to the merits, and split 4-4.

The jurisdictional question is a more-than-routine issue in the Hamdan case. Congress late last year passed the Detainee Treatment Act, and the Bush Administration is arguing that the Act stripped all courts — including the Supreme Court — of jurisdiction to rule on any pending habeas challenge by any Guantanamo detainee. Salim Ahmed Hamdan’s lawyers, and attorneys for other detainees, dispute that interpretation, and argue that there pre-existing habeas cases should go forward.

This issue has arisen only since the Court agreed to hear the Hamdan case, so there is no lower court ruling on that point being reviewed by the Justices. Thus, were the Justices to divide 4-4, the question arises: does that establish jurisdiction, does it deny jurisdiction, or might it lead to some other outcome?

When the Court is asked to review a direct appeal, only four votes are necessary to find “probable jurisdiction.” (When a case reaches the Court via a petition for certiorari, four votes are needed to grant review; noting probable jurisdiction thus is rather like granting certiorari.) But when probable jurisdiction is noted on an appeal, that is not a final decision on the question of jurisdiction; the Court is entirely free to reexamine the jurisdictional question when it moves ahead with its review of an appeal In view of that, would the Court find jurisdiction in Hamdan with only four votes in favor of that, if that is disputed by four other Justices? There appears to be no precedent to provide an answer.

On the other hand, deciding a direct challenge to jurisdiction, based on a motion to dismiss under a specific jurisdictional statute, may be thought of as akin to deciding the merits of a case. Thus, it may take a clear majority among eight Justices — five — to resolve the issue in favor of jurisdiction. If that is true, a 4-4 vote could mean that the Court has not affirmatively found jurisdiction, and therefore it does not exist. Again, there seems to be no precedent.

The Court in recent years, when it has found it lacks jurisdiction of a pending case, has been in the habit of simply dismissing it without giving any specifics on why it thought jurisdiction did not exist. Would it do that if, in Hamdan, it split 4-4, and the Court then dismissed the case? A lack of an explanation would be a way out of a procedural dilemma, but a frustrating one.

Perhaps there are other options. One for example, would to be return the Hamdan case to the D.C. Circuit Court, with instructions to decide the jurisdictional question as it applies to the war crimes tribunals.. (In fact, the D.C. Circuit is already examining on its own the impact of the Detainee Treatment Act on two packets of pending Guantanamo detainee appeals not pending there, but not involving war crimes defendants.) Should the D.C. Circuit find it had no jurisdiction, the case could then return to the Supreme Court. Would Roberts be able to participate then, at least on the jurisdictional question, since he had not taken part in the Circuit Court ruling on that issue? It would seem a bit awkward.

Maybe another option in the event of a 4-4 tie would be simply to sit on the Hamdan case, without a decision on jurisdiction — indeed, without any decision at all — and wait until the D.C. Circuit has ruled on the detainee law’s impact on the different cases already there. Then, any appeal to the Supreme Court could be heard by all nine Justices, since Roberts would not have taken part in this process at the Circuit Court. A ruling on the jurisdictional issue could then control jurisdiction on Hamdan’s appeal.

(NOTE: At a legal conference Friday in Washington, the issue of a tie vote on jurisdiction in Hamdan was explored informally among a few seasoned Supreme Court advocates. The consensus: a 4-4 vote would not be sufficient to find jurisdiction, so the case would have to be dismissed. Readers of the blog are invited to join in this exploration.)

Here the Volokh Conspiracy has a post on Granholm v. Heald.

Here Sentencing Law & Policy ponders the re-argument in Kansas v. Marsh.

Here Orin Kerr blogs about this tribute to Justice O’Connor. Here Professor Kerr blogs about Georgia v. Randolph.

The Legal Theory Blog Download of the Week is “Presidents, Senates, and Failed Supreme Court Nominations” by Keith Whittington.

ACSBlog has this post titled, ” Justice Scalia on Gitmo Detainees’ Claims: “Give me a break.”

Just over two weeks ago, on March 8th, Justice Scalia gave a speech at the University of Fribourg in Switzerland, the school at which he spent his junior year abroad in the mid-1950’s. Apparently he permitted it to be filmed, because the video of the speech, a follow-up Q&A, and a short interview, can be viewed here. Justice Scalia is characteristically combative and provocative. For instance, in response to a question about Bush v. Gore, he responds: “Come on, get over it.” He states that the real question in the case was whether the election was to be decided by the Florida Supreme Court or by the U.S. Supreme Court — “not a very hard question,” in his view — and “there was no way we could have turned that case down.” He then states that the Florida Supreme Court — but not the U.S. Supreme Court — was “politically motivated.” And in response to a question about affording constitutional rights to Guantanamo detainees, he states unequivocally that “foreigners, in foreign countries, have no rights under the American Constitution” and that “nobody has ever thought otherwise.” But see Rasul v. Bush, 542 U.S. 466, 483 n.15 (2004).

Of potential relevance to the current docket, in answer to one question from the audience (just after the 56:00 mark), Justice Scalia expresses incredulity at the notion that detainees captured “on the battlefield” should receive a trial in civil courts. It is, he says, a “crazy idea.” To a follow-up question about the Geneva Conventions and other human rights treaties, he responds with evident disdain: “What do they mean? They mean almost anything.” The questioner then refers again to a hypothetical Guantanamo detainee, at which point Justice Scalia interjects: “If he was captured by my army on a battlefield, that is where he belongs. I had a son on that battlefield and they were shooting at my son. And I am not about to give this man who was captured in a war a full jury trial. I mean it’s crazy.” (I believe that Scalia’s son Matthew served with the U.S. Army in Iraq.)

This coming Tuesday, the Court will hear arguments in Hamdan v. Rumsfeld, a case in which the questions include, among other things, whether a detainee held at Guantanamo can be tried for an alleged violation of the laws of war in the Pentagon’s military tribunal instead of in a civilian court or by court-martial, and whether and to what extent the Geneva Conventions protect Guantanamo detainees. The Chief Justice, who heard the case in the court of appeals, has already recused. Will there be eight Justices sitting on Tuesday, or only seven? Cf. Cheney v. U.S. District Court, 124 S. Ct. 1381, 1394 (2004) (Scalia, J., in chambers) (explaining that he had, on the basis of “established principles and practices,” recused himself from Elk Grove Unified School Dist. v. Newdow because he had “said or done something which requires that course”).

The “established principles and practices” for Supreme Court Justice recusal are notoriously uncodified, and obscure. In Newdow, Justice Scalia recused after having been reported to have said in a speech that “judges who ban . . . the words ‘under God’ in the Pledge of Allegiance are misinterpreting the Constitution.” But there’s no sure way of knowing whether Justice Scalia will view his Fribourg remarks as analogous for purposes of recusal. [Note: In his remarks, Justice Scalia referred to detainees captured “on the battlefield.” Whether that describes Hamdan might depend on what is meant by “the battlefield.” The SG represents that “[i]n November 2001, petitioner was captured in Afghanistan during the course of active hostilities in that country and transferred to the control of the United States armed forces. After an extensive screening process, petitioner was determined to be an enemy combatant and transferred to the U.S. Naval Station at Guantanamo Bay, Cuba, for detention.” Hamdan’s brief states that he was “captured in Afghanistan by indigenous forces while attempting to return his family to Yemen,” and was “turned over to American forces in exchange for a bounty.” It later states that Hamdan— was “apprehended on the field of battle in a war between the United States and the government of Afghanistan.”]

Notably, in his statement in Cheney, Justice Scalia suggested that recusal might be disfavored where it would leave the Court with an even number of Justices, thus raising the prospect of affirmance by an equally divided Court and no ruling on the merits. In Hamdan, the possibility of a 4-4 affirmance will exist if Justice Scalia does not recuse.

[Full disclosure: Both Goldstein and Howe, and my colleague Neal Katyal, represent Hamdan, and I have advised counsel about the merits of the case. But I do not represent any party to the case and I do not have any stake in it. Nor do I know whether any party will file a motion for recusal.]

[CLARIFICATION: I am not expressing any view here about whether or not Justice Scalia should recuse himself from Hamdan. I don’t really have sufficeint knowledge of what the Court’s “established principles and practices” are, or ought to be.]

[UPDATE: Michael Isikoff picks up the story in Newsweek. I’m given reason to believe that Mike may well be responsible for ferreting out this tape in the first place and putting it in circulation in a manner that eventually reached me.]

On Monday, the Court will hear arguments in Anza v. Ideal Steel (No. 04-433). This case poses two question: (1) whether a plaintiff must prove reliance on the alleged acts of fraud in order to recover civil damages under RICO when the RICO claim is predicated on acts of mail fraud; and, (2) if so, whether the plaintiff must demonstrate that it relied directly on the fraud, or if it is sufficient that the plaintiff was injured by a third party’s reliance on the fraud, so long as the plaintiff was the direct target of the RICO scheme.
(Disclosure: Darien Shanske, as a member of the Stanford Supreme Court Litigation Clinic, worked on a case that raised a similar issue this fall, Bank of China v. NBM. For the final disposition of that case, click here.)
David C. Frederick, of Washington D.C., will argue for petitioner. Kevin P. Roddy, of Woodbridge, New Jersey, will argue for respondent. The party briefs are available here.

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