Legal activity continues in the lower courts in the wake of the Supreme Court’s June 29 ruling in Hamdan v. Rumsfeld (05-184), striking down under federal law and one part of the Geneva Convention the war crimes tribunals set up by the Pentagon at the detention camp for suspected terrorists at Guantanamo Bay, Cuba. This post discusses the latest development in that case.

The Justice Department on Wednesday urged the D.C. Circuit Court to define narrowly the victory that Salim Ahmed Hamdan won in his war-on-terrorism appeal to the Supreme Court, and to limit his option if he wants to challenge his continued detention at the U.S. military prison at Guantanamo Bay, Cuba. The lawyers for the Yemeni national countered that the case should be sent back promptly to U.S. District Court so that he may test the government’s factual basis for detaining him further – including the question of whether the war on terrorism is actually going on in Afghanistan, where Hamdan was captured more than four years ago.

Thus, two new filings in response to a request from the Circuit Court for views on what to do now with Hamdan’s case, produced — perhaps predictably — a fundamental disagreement about which court should now proceed with what remains of Hamdan’s claims against his captivity. The two sides also disputed parts of the background record in the prolonged case.

In essence, the government suggested that the Circuit Court is now to play the primary role in concluding any remaining legal challenges that Hamdan wants to press, while Hamdan’s team suggested that the District Court has actually retained the authority to decide in the first instance all of his remaining objections to his detention. Hamdan’s case brought a sweeping challenge to the war crimes tribunals set up in late 2001 to pursue charges against terrorism suspects at Guantanamo. The Supreme Court decided that challenge in his favor on June 29, and the Circuit Court is now dealing with the aftermath.

The government’s new motion on further proceedings can be found here, and Hamdan’s simultaneously filed motion can be found here.

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Linda Greenhouse has this article in today’s New York Times finding that women are “suddenly scarce among Justices’ clerks.” In the article, she cites this July post at the Volokh Conspiracy which ignited a plethora of comments and several other blog posts. Today’s article, too, has elicited several responses from legal bloggers, including this post at Sentencing Law and Policy, this one at the Georgetown Law Faculty Blog, this one at the WSJ Law Blog, and this follow-up from Eugene Volokh.

[UPDATE 4:40 PM: The Supreme Court has made available the remarks from August 11 of Justice Ginsburg on the topic of women in the legal profession. Her speech can be read here.]

Rick Hasen, in a post here at the Election Law Blog, invites readers to comment on his new paper, “The Newer Incoherence: Competition, Social Science, and Balancing in Campaign Finance Law After Randall v. Sorrell.”

Law.com carries this AP article with more information about the cert. petition that Kenneth Starr recently filed.

Over the weekend, The Newark Star-Ledger ran this extensive story about the first months of Justice Alito’s career on the Supreme Court.

David Savage of the LA Times analyzes the amicus briefs filed by the government in the upcoming school diversity cases (the full-text of the two briefs are linked to in this earlier SCOTUSblog post).

Here, the WSJ Law Blog highlights this cert. petition filed today by the Juneau School Board and featuring former Independent Counsel Kenneth Starr, now of the firm Kirkland & Ellis, as counsel of record.

This is the final installment in our discussion with Jeff Rosen about his new book, The Most Democratic Branch: How the Courts Serve America. For previous installments, see Part I here and Part II here.

Q: Thanks for taking questions. The book was great.

-Seth Gannon

JR: Many thanks for the nice words and glad you liked the book. As for stare decisis: like most accounts of constitutional history, I don’t have a comprehensive theory of when judges should uphold precedents with which they disagree. But I like former Judge Luttig’s idea of “super stare decisis” — namely, when a decision has been repeatedly reaffirmed by justices appointed by presidents of different parties and confirmed by Senates controlled at different times by Democrats and Republicans, it may be entitled to special respect and should not be lightly overturned. This resonates with my concern about judicial unilateralism and allows judges to express respect for the constitutional views of Congress and the President and ultimately the American people. There’s room for debate about how to apply the idea of “super stare decisis” when it comes to the Federalism cases; but generally, as you suggest, I think judges should defer to Congress in the face of uncertainty. And I’m inclined to think that judicial flyspecking of Congress’s power is more of an agenda item for the Republican base than a constitutional principle clearly embraced by a majority of the American people. For that reason, I wouldn’t shed any tears if Morrison were overturned.

Thanks to all for such provocative questions, and thanks to Jason Harrow for including me at the beginning of this fine experiment. I enjoyed the exchanges and appreciate the opportunity to discuss the book.

Akin represents the respondent in KSR v. Teleflex, which involves the proper test for deeming a patent invalid as “obvious.” August 22nd was the due date for the petitioner’s merits brief as well as amicus briefs in support of the petitioner or in support of neither party.

Thirteen amicus briefs support petitioner. Three support neither side, and one urges affirming in part and vacating in part.

We have collected those briefs here. [UPDATE: all the briefs are now available].

An analysis of the case can be found here from Dennis Crouch at the PatentlyO blog.

The case will almost certainly be argued in December.

Today, we’re introducing a new feature to the blog: podcasts. Every week or two, we will record and post a 5-7 minute segment on a topic that seems amenable to a recording. A principal use of podcasts will be to have guests appear on the blog.

In this first podcast, which lasts approximately 7 minutes, I give an overview of the factors that the Justices consider in granting cert.

You can subscribe to the podcast in iTunes from this link, or, if you have other podcasting or RSS software, you can subscribe to our feed directly here. Alternatively, the premiere episode is available for download as a stand-alone mp3 here.

The Solicitor General has filed briefs on behalf of the United States as amicus curiae supporting the petitioners in both of the Equal Protection Clause cases pending before the Court. The SG argues that the Court should invalidate the race-conscious plans of both the Seattle School District No. 1 (in No. 05-908) and the Jefferson County (Kentucky) Public Schools (in No. 05-915).

On first glance, it does not appear that the SG addresses the question presented by petitioners in the Kentucky case of whether the Court should overrule Grutter. The briefs appear to presume that Grutter is the governing law, and attempt to distinguish the two pending cases from that University of Michigan decision. [Correction: Thanks to commentor Michael Yuri for pointing out that the Meredith petititioners are not actually asking the Court (not in their petition, anyway) to consider whether to overrule Grutter. Their awkwardly phrased Question Presented (”Should Grutter, Bakke and Gratz be overturned and/or misapplied by the Respondent?”) led me astray. Their argument, instead, is that “the trial court” purportedly “has overturned and/or misapplied” those cases, including Grutter. At least one topside amicus brief does ask the Court to overrule Grutter, but that is not one of the questions formally presented in the petitions.]

If I have time to review the briefs more carefully in the next few days, perhaps I’ll post more on the arguments therein (and perhaps Lyle and other bloggers will, too). In the meantime, please provide any reactions in the comments section.

Judge Posner had this editorial in yesterday’s Wall Street Journal arguing for more flexibility in the way the judiciary handles terror cases, writing that “we are boxed in by our revered 18th-century Constitution as interpreted by the Supreme Court.” Marty Lederman reacts to that editorial here at the Georgetown Faculty Law Blog.

At the Volokh Conspiracy, Orin Kerr has a post here asking what the Sixth Circuit will do about Judge Taylor’s decision, with a follow-up post here.

Orin Kerr and Marty Lederman also have comments on yesterday’s decision by the DC Circuit in Muprhy v. IRS regarding the unconstitutionality of a tax “on compensation for a non-physical work-related injury not related to wages or earnings.” Kerr, in a post here, suspects the Supreme Court will eventually take up this case, and Lederman (here) is suprised that the decision doesn’t mention Article 1, Section 9 of the Constitution.

Finally, the Washington Post carries a piece on the implications of yesterday’s action by Justice Thomas letting stand a ruling which will force Echostar to cut off programming to several hundred thousand customers. For more on this, see Lyle’s posts here and here.

Supreme Court Justice Clarence Thomas on Tuesday denied without comment a request to delay a federal appeals court order that threatens to shut down part of the television re-broadcast business of the DISH satellite television network. Thomas acted without awaiting a response to the application for a stay pending an appeal to the Supreme Court.

EchoStar Communications Corp.,which operates the DISH Network, contended in its application (06-A-198) that it faced a potentially “staggering” loss of re-broadcast rights under a ruling by the Eleventh Circuit Court in May. In an eight-year-old case, EchoStar had been sued by the major commercial television networks claiming that DISH was re-broadcasting their copyrighted TV programming to individual consumers not eligible to receive such shows under federal satellie TV law. EchoStar had settled with all of the networks except Fox.

In a second mid-summer order issued at the Court Tuesday, Justice Antonin Scalia temporarily delayed a Fifth Circuit Court ruling that would require a manufacturer of women’s accessories to pay $3.5 million in trebled damages for allegedly fixing minimum prices on its merchandise sold by a women’s clothing store in Lewisville, Texas. The manufacturer is Leegin Creative Leather Products, which markets its goods under the brand name “Brighton.” It was sued under antitrust law by PSKS, Inc., which does business as Kay’s Kloset in the Texas community. The Eleventh Circuit, in an unpublished decision March 20, applied the per se liability rule, rather than the rule of reason, in upholding the damages verdict. The application to Scalia was 06-A-179, filed after the Circuit Court refused a stay. Leegin’s application sought a stay pending final action by the Supreme Court on a coming appeal.

Scalia stayed the lower court ruling pending a response from PSKS. That response has now been filed, so a further order by Scalia can be expected.

The case is discussed here on the Antitrust Law blog.

This is Part II of Jeff Rosen’s discussion of his new book, The Most Democratic Branch: How The Courts Serve America (for Part I, see this post from yesterday). Jeff is willing to respond to one more set of questions later this week; use the comments feature or e-mail jharrow [at] akingump.com to submit any further thoughts that you have.

Topic 2: What if you were a Justice?

JH: Okay, so here’s the question that popped into my head again and again as I read the book. It begins with a supposition: let’s suppose, for the sake of argument, that your over-arching theory is 100% correct. Let’s say it’s true that the Court is given the most respect and that it functions most ideally when it gives a lot of deference to the views of the people, the president, and the Congress – in your words, the judiciary ought to be “coequal” with the other branches of government. Based on your historical examples, this is a very plausible claim.

But here’s the catch: you’ve just been confirmed as a Supreme Court Justice (nicely done). What happens when you’re faced with a dilemma like the following: on the one hand, you’ve got this nice view, supported by a plethora of examples, that shows how well the world works when the Supreme Court refuses to act unilaterally; as a Justice, you’d be wise to keep that in mind. On the other hand, it seems, are several factors that could pull you in the other direction - the first of which is that they chose YOU. They didn’t choose Mr. Zogby or Mr. Gallup or people whose life’s calling has been to figure out what the country thinks about things. Instead, the (popularly elected) president nominated you and a (popularly elected) Senate confirmed you. The one and only Jeff Rosen – who has a family, and a mind, and a legal education, and views on what is right and reasons why those views are correct.

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The Justice Department’s Antitrust Division is now free to seek an indictment of a Norwegian ocean shipping company and at least one of its executives for allegedly dividing up customers with its competitors. The Supreme Court on Monday morning denied a request by Stolt-Nielsen Co. to recall and stay the mandate of the Third Circuit Court that permits the prosecution. UPDATE on Wednesday p.m. The Court issued a corrected order, noting that Justice Samuel A. Alito, Jr., had not taken part in Monday’s order. He was a member of the Third Circuit panel that heard the Stolt-Nielsen case, but had been elevated to the Supreme Court before the Circuit decided the case in March.

Justice David H. Souter had refused on July 25 to delay the prosecution while Stolt-Nielsen pursued an appeal to the Supreme Court. The company then took its plea to Justice John Paul Stevens, who chose on Aug. 2 to refer the matter to the full Court. The Justices, without any notation of dissent, denied the application Monday in a one-sentence order. The order list can be found here.

The Court is in summer recess, but from time to time acts upon in-chambers motions and emergency applications. The stay application acted upon Monday was 06-A-79. This was the only order of note. The Court is expected to have one more summer order list before the Justices return for their new Term.

Stolt-Nielsen and its shipping subsidiary, Stolt-Nielsen Transportation Group LTD, have an appeal now pending at the Court — 06-97. It claims that the Justice Department broke a promise not to prosecute the company or its employees in return for its cooperation in an antitrust investigation. The company says that it fulfilled its part of the bargain by giving up evidence about the alleged customer-allocation plot that led successfully to a criminal prosecution. The Justice Department, however, argues that the company broke a vow to promptly act to end its part in the anti-competitive activity in the “parcel tanker” shipping industry, so the immunity deal is void.

Jeff Rosen is here, as promised, with his responses to several questions about his new book, The Most Democratic Branch: How The Courts Serve America. Thanks to all who submitted questions to me. We will post Part II of his responses later this afternoon; after that, Jeff is willing to respond to one more round of questions, so use the comments feature or e-mail jharrow [at] akingump.com with any follow-up questions that Jeff’s answers provoke. Without further ado:

JR: Many thanks to Jason Harrow and the readers of SCOTUSblog for sending such thoughtful questions, and for the opportunity to discuss The Most Democratic Branch. Just to recapitulate the thesis: The book argues that the Supreme Court, throughout its history, has been least successful when it’s acted unilaterally – that is, when it has tried to impose constitutional principles that are being actively and intensely contested by a majority of the American people. I argue that other institutions of government – such as Congress, the President, and the states – have, in the past, played an important role in representing the people’s constitutional views. And in the face of uncertainty about what constitutional principles of the people of the United States regard as fundamental, I suggest that courts in the past have served themselves well by practicing judicial restraint – in other words, by deferring to the political branches and upholding federal and state law rather than striking them down. These two principles – 1) avoid judicial unilateralism and 2) defer in the face of uncertainty – don’t have a huge constituency on the right or the left at the moment, but I’m gratified that the book seems to have provoked a lively discussion about the salience of the tradition of bipartisan judicial restraint.
So, with those preliminaries out of the way, I’m pleased to answer the questions the questions that Jason emailed.

Topic 1: Questions about specific decisions

JH: I received a few questions asking for you just to comment on some recent, high-profile decisions in light of your overall theory. How do the recent state-court decisions regarding gay marriage fit into your thesis? How about Hamdan v. Rumsfeld? The recent redistricting decision in Texas?

JR: Hamdan for me is a good example of the Court doing what it does best –- not unilaterally presuming to short-circuit political debates but instead promoting a bilateral dialogue between the president and Congress. The Hamdan Court said that President Bush was free to ask Congress to create military commissions to try suspected enemy combatants, but he couldn’t unilaterally violate the procedures for military commissions that Congress had adopted. Justice Stevens’s opinion for the Court invoked Justice Jackson’s Steel Seizure opinion for the principle that “Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers.” And in the wake of Hamdan, the Bush administration has finally gone to Congress to ask for the authorization that it should have requested five years ago. For all these reasons, I think that Hamdan was correctly decided and should provide a model for the kind of dialogue between the president and Congress that the Court is uniquely well situated to promote.

The Texas redistricting decision is part statutory and part constitutional. I don’t have a dog in the statutory fight about whether or not the challenged districts violate section 2 of the Voting Rights Act. But I agree with the decision of the majority of the Court not to strike down the Texas districting plan as an unconstitutional political gerrymander. In the book, I acknowledge that there is a strong temptation, for those who care about democratic constitutionalism, to urge courts to strike down political gerrymanders that make it harder for legislatures to reflect the wishes of a majority of their constituents. Nevertheless, I agree with Justice Scalia that it’s difficult to articulate a principle for striking down political gerrymanders that a majority of the American people unequivocally accept – neither Congress nor the White House nor the states nor the Fourteenth Amendment as originally understood have converged around a definition of unconstitutional political gerrymandering in the past. Until they do, I think the Court would be ill-advised unilaterally to invent its own definition of political gerrymandering – as Justice Kennedy, in his Hamlet-like way, seems to be contemplating. And with great reluctance, I fear that political gerrymandering, at least for the foreseeable future, may be a problem without an obvious judicial or political solution.

As for the gay marriage decisions, I’m relieved that the New York Court last month managed to avoid the error of the Massachusetts Supreme Judicial Court in 2004 and refused unilaterally to create a right to gay marriage at the very moment when the scope of that right is being intensely contested by a majority of Americans. (For a thoughtful attempt to view both decisions through the lens of democratic constitutionalism, see Andrew Cohen’s piece here).

I’m one of those gay marriage supporters who thinks that the Massachusetts Court did the cause of gay marriage no favors by imposing it ahead of schedule – the backlash against the Massachusetts decision lead to at least 13 anti-gay marriage state constitutional amendments and may have cost John Kerry the election in Ohio. Given polls suggesting that young Republicans as well as Democrats support gay marriage far more enthusiastically than older voters, I have little doubt that, within a generation, many states will come to recognize a right to gay marriage on their own. If and when a majority of states have recognized the right, the Supreme Court might recognize it as well – as the Court did in Griswold when it strike down the only law banning the right to use contraceptives in the nation. But if the Supreme Court acted precipitously to impose a right to gay marriage in the next few years – unlikely, given the Court’s current composition – I think it would do the cause no favors. Like abortion in 1973, recognizing a sweeping right to gay marriage in 2006 would only lead to a backlash.

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NOTE: On April 17, the Supreme Court refused to hear an appeal by Chinese nationals attempting to challenge the federal government’s authority to continue holding detainees at Guantanamo Bay, Cuba, even though they were found not to be terrorist suspects. That was an attempt to appeal before the D.C. Circuit Court could rule on the case. The controversy over their legal status has continued to play out in lower courts.

The D.C. Circuit Court has dismissed an appeal seeking to test another aspect of the handling of detainees at the military prison at Guantanamo Bay, Cuba — an attempt by Chinese Uighurs to obtain a final ruling that they were both wrongly held at Guantanamo and then wrongly shipped to a foreign land to scuttle their challenge. The order, found here, was filed on Aug. 14 but is not published and has only now become publicly available. Earlier posts on the status of the Uighurs can be found here and here. A New York Times story on Tuesday describing the Uighurs’ situation now can be found here

The two individuals in the case, part of a small group of Uighurs captured in Afghanistan and detained at the Cuba prison camp, were among five who were transferred to Albania on May 5, three days before a scheduled Circuit Court hearing on the appeal. The Uighurs are members of a Muslim community in China that has long been persecuted, according to their lawyers.

After the prisoners’ transfer to Albania, where the five are seeking asylum, the Justice Department sought to end the case by having the Circuit Court declare it to be moot. The Circuit Court, a month after all briefs were filed, agreed to the dismissal.

In thier appeal, the Uighurs contended not only that their detention was unlawful after the military concluded they were not “enemy combatants,” but also that the government had a policy of transferring captives from Guantanamo “to avoid judicial scrutiny.”

The Circuit Court found that neither claim survived their move to Albania. It ruled that there was no longer an active legal controversy over their detention, and that they could not take advantage to any of the exceptions to normal mootness doctrine.

The Uighurs still have the option of asking the Circuit Court to rehear the case en banc, or to ask the Supreme Court to revive their case to test Guantanamo detention policy.

The DISH satellite television network on Thursday asked Supreme Court Justice Clarence Thomas to delay a federal appeals court order that would shut down any re-broadcast by that network of copyrighted TV shows from traditional broadcast networks. EchoStar Communications Corp., which operates the DISH Network, asked for a stay until it can pursue an appeal to the Supreme Court.

“The number of EchoStar subscribers affected by this looming injunction is staggering,” EchoStar said in its application. “It reaches into the hundreds of thousands of individual consumers.” Even though many of them would be eligible to continue getting the programming, they would be blocked, too, under the injunction, and EchoStar might never be able to get them back as subscribers, it argued.

When the coming appeal is filed, the network said, it will pose the question of whether federal law governing satellite carriers of copyrighted programming “strips district courts of their traditional discretion to fashion equitable relief tailored to the particular circumstances of a case.” (The application in EchoStar Communications Corp., et al., v. CBS Broadcasting, Inc., et al., is docketed as 06-A-198. It can be found here. The appendix, including the Eleventh Circuit Court ruling at issue, is here.

EchoStar has settled its legal differences with CBS and with affiliates of ABC and NBC but continues to be in dispute with the Fox network, its affiliates and with the National Association of Broadcasters. But the application indicated that the injunction EchoStar now faces is so sweeping that it would nullify the settlement agreements, since it would bar EchoStar from engaging in any broadcast of what is called “distant network signal programming.” Thus, the DISH Network viewers who stand to benefit from the settlement deals would not be able to do so, the application indicated.

The case involves the scope of two federal laws dealing with “distant network signals” — the Satellite Home Viewer Act and the Satellite Home Viewer Improvement Act. Those laws grant a compulsory license to satellite broadcasters to retransmit copyrighted network TV programs to households that are out of reach of normal antennas, because the subscribers are in areas — often, rural areas — where network signals would be weak.

At issue at this stage of this eight-year-old case is whether those laws require a permanent injunction against any distant network signal programming by a satellite carrier if it has been found to have engaged in a pattern of broadcasting to subscribers who are not eligible for the service because they actually are served by the on-air networks or stations. A District Court fashioned a narrower injunction but the Eleventh Circuit in May overturned that order, concluding that the laws require a permanent nationwide ban on any further programming of this type by EchoStar.

In mandating a permanent injunction on secondary transmissions for a repeat violator, the Circuit Court said, “Congress removed courts’ discretion.” It rejected an argument by EchoStar that the Supreme Court’s decision last Term in eBay v. MercExchange (05-130, decided May 15), reaffirming District Court discretion regarding patent case injunctions, should govern this case. “Because eBay said nothing of Congress’s ability to remove unambiguously courts’ traditional equitable discretion, the opinion has no bearing on this case,” the Circuit Court said.

First off, if you have not yet seen the opinion by Judge Taylor regarding the NSA terrorist suveiallance program, see this earlier post, by Lyle, which summarizes the ruling (the opinion can be downloaded in full here).

Jack Balkin had these thoughts at Balkinization, which welcomed the result of the decision but were quite critical of much of its reasoning; Marty Lederman mostly agrees with that sentiment in this post, also at Balkinization.

Glenn Greenwald, author of the new book How Would a Patriot Act?, has this breakdown of the decision on his own blog.

Eugene Volokh, of Volokh Conspiracy fame, has an interesting clarification of the claim that the TSP violates the first amendment here.

Meanwhile, in today’s editorial pages of the major papers, the reaction (as expected) is all over the map. On the left, the New York Times hails the decision as a “careful, thoroughly grounded opinion, [in which] one judge in Michigan has done what 535 members of Congress have so abysmally failed to do.” The Washington Post does not necessarily disagree with the result but was unsatisfied by the reasoning, calling it “neither careful nor scholarly”; that editorial board looks forward to further rulings on this matter, happily commenting that Judge Taylor’s decision “won’t be the last word.” The Wall Street Journal, however, is not so restrained in its distate for the ruling, as its editorial refers to the Judge as “President Taylor,” while wondering if she may have been motivated by a tempation to be hailed as “Civil Libertarian of the Year.”

Finally, one link that may be of interest that does not have to do with yesterday’s ruling: in a post here at PropertyProf Blog, Ben Barros reveals a letter from Justice Powell to Justice O’Connor in the midst of deciding Midkiff.

Last Oct. 17, the Supreme Court refused to hear the federal government’s appeal seeking to regain the opportunty to force the tobacco industry to surrender $280 billion in profits — one of the remedies the Justice Department had sought in its massive anti-racketeering lawsuit against the industry. The D.C. Circuit Court had barred that type of remedy. The Supreme Court’s denial of review in U.S. v. Philip Morris USA, Inc., et al. (docket 05-92) thus took that “disgorgement” remedy off the table. At that time, the industry had not yet been found to have violated RICO. The post below discusses the ruling Thursday finding RICO violations, and imposing other remedies.

A U.S. District judge in Washington, D.C., ruled on Thursday that the tobacco industry engaged in an illegal, decades-long campaign to deceive smokers about the health hazards of smoking, in violation of the 1970 federal anti-racketeering law (RICO). The tobacco companies, the judge wrote, “have marketed and sold their lethal product with zeal, with deception, with a single-minded focus on their financial success, and without regard for the human tragedy or social costs that success exacted.”

The ruling by U.S. District Judge Gladys Kessler, in a case that has been before her for nearly seven years, is 1742 pages long. It thus is too long to upload to this blog. A link to it can be found at the top of the website of the U.S. District Court for the District of Columbia, here, along with a link to an 18-page final judgment and remedial order. (The case is U.S. v. Philip Morris USA Inc., et al., docket 99-2496).

The conclusions of law begin on page 1498, but that page becomes 1528 in the electronic text because of the 29-page table of contents at the beginning. (The actual opinion numbers 1653 pages; the remainder of the pages are in the appendices — including a recitation of 148 “alleged racketeering acts.”)

Kessler found both a conspiracy to violate RICO, and actual violation of that law. Discussing what “this case is really about,” the judge said it was “about an industry, and in particular these defendants, that survives, and profits, from selling a highly addictive product which causes diseases that lead to a staggering number of deaths per year, an immeasurable amount of human suffering and economic loss, and a profound burden on our national health care system. Defendants have known many of these facts for at least 50 years or more. Despite that knowledge, they have consistently, and repeatedly, and with enormous skill and sophistication, denied these facts to the public, to the Government, and to the public health community.”

She also offered some biting criticism of the role of lawyers in that history, saying they played “an absolutlely central role” at every stage in creating and keeping the racketeering “enterprise” going, and in implementing its “fraudulent schemes.” “What a sad and disquieting chapter in the history of an honorable and often courageous profession.”

The judge’s order imposng remedies consists mainly of bans on using deceptive promotion of cigarettes to suggest they are not as harmful, and a broad mandate to widely publicize corrective statements about the hazards of smoking and nioctine.

The Justice Department issued a brief statement, saying it was pleased with the finding of liability, but disappointed at the limitation on remedies. “Nevertheless, we are hopeful,” the statement said, “that the remedies that were imposed by the Court can have a significant, positive impact on the health of the American public.”

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The following analysis is by Paul Gutermann of Akin Gump.

Another circuit has weighed in on an important environmental question that the Supreme Court has agreed to decide. Flatly rejecting the Fourth Circuit’s ruling in United States v. Duke Energy Corp., 411 F.3d 539 (4th Cir. 2005), cert. granted, 126 S.Ct. 2019 (2006), the Seventh Circuit unanimously affirmed the ruling of the U.S. District Court for the Southern District of Indiana, handing the U.S. Environmental Protection Agency a significant victory. United States v. Cinergy Corp., No 06-1224 (7th Cir. August 17, 2006).

At issue in Duke and Cinergy is the application of EPA’s New Source Review program for maintenance, repair and replacement projects in the electric utility industry. The Clean Air Act “grandfathered” existing pollution sources from the requirement of installing upgraded pollution control equipment until the source was “modified.” The statute defined modifications to be physical changes causing emissions increases. At the time the United States commenced these enforcement actions, EPA’s regulations defined emissions increases for NSR purposes as increases in actual annual emissions The D.C. Circuit upheld the validity of these regulations in New York v. EPA, 411 F.3d 3 (D.C. Cir. 2005).

Duke and Cinergy argued that the Clean Air Act required EPA to measure emissions increases for NSR purposes as changes in the hourly rate of emissions. They argued that, when Congress amended the statute to add the NSR provisions and defined “modification” by reference to the then-existing New Source Performance Standard definition of modification, Congress also adopted EPA’s then-existing regulatory test for emissions increases in the NSPS program – i.e., by the hourly rate of emissions.

The Fourth Circuit agreed with the utilities’ view, but the Seventh Circuit disagreed. The Seventh Circuit first questioned whether it or the Fourth Circuit had jurisdiction to review the question presented – because the statute vested exclusive jurisdiction to review the validity of nationally applicable regulations in the D.C. Circuit. Slip op. at 7. The Court then reasoned that merely because both the NSR and NSPS programs use the same definition of “modification,” the metric for measuring emissions increases need not be identical. Id. at 8. Which Circuit took the correct approach will be decided by the Supreme Court in the next term. Argument in the Duke case is scheduled for November 1.

This article (via How Appealing) stating that Terrence Boyle won’t receive a recess appointment to the Fourth Circuit reminded me that I wanted to note one of the values of opinions respecting the denial of cert.

I previously served as co-counsel in some cases challenging the President’s recess appointment power as applied to intra-session recess appointments of Article III judges. The Supreme Court denied our cert. petition seeking review of an Eleventh Circuit opinion sustaining that power. Justice Stevens, however, wrote an opinion respecting the denial of cert., explaining that it was appropriate to deny review because the Administration had represented that the use of the power was rare. Stevens noted that the case raised a very substantial question, cautioning against “assum[ing] that our disposition of this petition constitutes a decision on the merits of whether the President has the constitutional authority to fill future Article III vacancies, such as vacancies on this Court, with appointments made absent consent of the Senate during short intrasession ‘recesses.’”

So far as I know, in the time since the Stevens opinion, the President has not made any recess appointments of federal judges. No doubt, that owes in part to the armistice reached in the Senate Judiciary Committee. But there are several long-pending nominees — including Judge Boyle — who have not received recess appointments. My best bet is that Administration lawyers concluded that if the President continued to make judicial recess appointments, the Supreme Court would take up the question and potentially rule against the Administration.

Another example of such a “shot across the bow” in an opinion respecting the denial of cert. is Padilla. In that case, a three-Justice concurrence in the denial of certiorari noted that “Padilla’s claims raise fundamental issues respecting the separation of powers, including consideration of the role and function of the courts.” That opinion may have a similar effect on the Administration’s decisions on how to detain U.S. citizens in the war on terror.

Opinions like these obviously don’t speak for the full Court and do not have the force of law. Whether they should have any effect at all is an interesting question. But, without overstating their importance, I do think that they are an interesting phenomenon.

UPDATE Friday p.m.
U.S. District Judge Anna Diggs Taylor on Friday ordered a stay of her ruling until she rules on the government motion for a stay pending appeal. That motion is due by Aug. 23, with the opposition due on Aug. 29 and the government reply on Sept. 5. Judge Taylor will hold a hearing on the motion Sept. 7.

This is another in a continuing series of reports on how Supreme Court precedents impact later cases. The primary precedents at issue here are Totten v. U.S., in 1875, U.S. v. Reynolds, in 1953, and Tenet v. Doe in 2005. on state secrets, and Yongstown Sheet & Tube v. Sawyer in 1952 and Hamdi v. Rumsfeld in 2004 on presidential powers.

A federal District judge in Detroit on Thursday struck down the federal government’s “Terrorism Surveillance Program,” declaring “the public interest is clear, in this matter. It is the upholding of our Constitution.” In a 43-page ruling barring continuation of the program, the judge also found that the program violated the Foreign Intelligence Surveillance Act, a 1978 law passed to control government electronic eavesdropping.

Senior U.S. District Judge Anna Diggs Taylor, a 27-year veteran on the bench, became the first court to rule directly on the legality of the controversial National Security Agency program so far as it reaches telephone users and e-mailers inside the U.S.. (A federal judge in Chicago in July dismissed another challenge to the NSA program, based on the government’s claim of the “state secrets privilege.”) Judge Taylor’s decision Thursday in American Civil Liberties Union, et al., v. National Secuirty Agency, et al. (docket 06-10204) can be found here. The judge’s order — permanently enjoining officials from “directly or indirectly utilizing” the program “in any way, including, but not limited to, conducting warrantless wiretaps” that violate federal law — can be found here.

Saying that the courts would not allow the NSA program to be immunized from judicial review, Taylor declared: “It was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated inthe Bill of Rights. The three separate branches of government were developed as a check and balance for one another.”

The Justice Department filed an immediate notice of appeal to the Sixth Circuit Court, and asked Judge Taylor to stay her ruling pending the outcome of the appeal. Both sides agreed to a stay while that request is pending in District Court, the Department said in a statement. (That statement can be found here.) The Department called the NSA program “an essential tool for the intelligence community in the War on Terror.” It repeated the government claim that the Constitution “gives the President the full authority necessary” to “protect the American people.” (Attorney General Alberto Gonzales discussed the ruling and the program at greater length in a press briefing, which can be found here.)

The judge issued the ruling one day after the Justice Department had notified her of a decision Aug. 9 by the Judicial Panel on Multidistrict Litigation that would, unless blocked by objections, transfer this case to a U.S. District Court in California for pre-trial proceedings. The judge did not mention that issue in her opinion. (An earlier post on the Judicial Panel’s action can be found here.) Since the transfer would only involve pre-trial proceedings, and since Taylor has now ruled on the merits and marked the case closed, this issue may have become moot, at least if her ruling withstands appeal.

There were two main facets of her ruling: she found the intercepts of calls involving persons inside the U.S. to be invalid, and enjoined those intercepts, but she found that the government’s “state secrets privilege” required that she dismiss the lawsuit so far as it sought to bar NSA from engaging in “data-mining” of international calls and e-mails.

In finding the basic program invalid as it reaches domestic communications, Judge Taylor rejected the government’s assertion of the “state secrets privilege,” saying she could rule on the program’s legality based solely on public statements by White House and other government officials describing the spying program. She did agree that the government had properly asserted that privilege, and that it did apply to this case. But she found that it did not apply to the domestic intercepts, concluding that the challengers “are able to establish a prima facie case [of illegality] based solely on…public admissions regarding” the program.

She noted that, in those admissions, federal officials have said the program exists, that it operates without a court-approved warrant, and that it targets international communications with one party outside the U.S. believed to have ties to Al Qaeda. “As the government has on many occasions confirmed the veracity of these allegations, the state secrets privilege does not apply to this information,” Taylor decided.

The challengers here — academics, journalists and lawyers — have established, she found, that their communications with overseas contacts, including some in the Middle East, “would be monitored” under the program. And, she added, they have shown that, because of the eavesdropping, they have been harmed, because individuals overseas who previously communicated with them by telephone or e-mail will no longer do so. Moreover, she found that the challengers had to spend added amounts on travel to meet with clients or other contacts.

She found that the government would be able to defend itself without risking the exposure of state secrets, because of the widespread admissions about the eavesdropping. The government has been defended the program’s legality publicly, and doing so without revealing any secrets, Taylor said.

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On August 4, we filed the attached petition and appendix presenting the following question:

The Transportation Security Agency (TSA) uses a directive that it claims requires airline passengers, as a prerequisite to boarding a flight, to show identification or undergo further security screening. This directive affects millions of airline passengers each year. The government acknowledges not only the directive s existence, but also its purported contents. TSA nonetheless refuses to actually disclose the directive.

May the government keep secret a directive that is generally applicable to millions of passengers every day notwithstanding that it (i) has acknowledged both the directive s existence and
its contents, and moreover (ii) has identified no special circumstance that nonetheless justifies secrecy.

Tom is the counsel of record, with Thomas Burke and Rochelle Wilcox of Davis Wright Tremaine and James Harrison of the Law Offices of James P. Harrison also on the petition.

UPDATE Wednesday a.m. News reports on the decision discussed here say that attorneys for the four voters involved plan to appeal to the Supreme Court. Thanks to Colorado Confidential for the tip. And thanks to Howard Bashman of How Appealing blog for the initial alert to this ruling.

The political and constitutional battle over the redistricting of Colorado’s members in the House of Representatives may have reached its end, after two prior trips to the Supreme Court. This time, a federal court has based a ruling entirely on state, not federal, law and that might insulate it from Supreme Court review — especially since the three judges on the court are Coloradans, presumably familiar with state law.

The case has become famous because, at one stage, it resulted in a ruling by the state Supreme Court of Colorado that the legislature in that state may try only once during a decade to draw up new congressional disticts after a new Census, and cannot do so if a state court has already drawn up a plan because the legislature could not do so on the first try. That is sufficiently controversial that three Justices of the Supreme Court strongly implied in 2004 that they thought it was wrong, arguing that it should have been reviewed by the Supreme Court; it was not. But that precedent (based on a somewhat unusual combination of state and federal law) now stands, and the latest court action leaves it undisturbed.

The new ruling was issued on Monday by a three-judge U.S. District Court in Denver, in the case of Lance v. Dennis. (The decision in docket 03-2453 is here.) The case was on remand from the Supreme Court, which last February overturned the District Court’s dismissal of the latest case, and returned it to the District Court for another look.(The Supreme Court’s ruling is here. Scroll down to Feb. 21.)

At this stage, the case involved only one remaining constitutional issue: do voters in Colorado have an individual right as voters, under the U.S. Constitution, to vote in congressional districts that have been drawn up by the state legislature, not by a state court.

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Today we are announcing the beginning of a new, periodic feature. It’s called “Ask the Author,” and it will allow us to conduct substantive discussions via e-mail with the people behind new books and articles that relate to the Supreme Court.

Our premiere installment should be a good one, as our first guest will be Jeffrey Rosen, the legal affairs editor of The New Republic and a professor of law at George Washington University Law School. His new book is The Most Democratic Branch: How the Courts Serve America, which you can find on Amazon here.

The goal for this feature is for a variety of people to submit their thoughts and participate in the discussion, so please e-mail potential questions to jharrow [at] akingump.com or post questions as comments on this page; I’ll be sending the first batch off to Jeff on Thursday afternoon and post his responses on Monday. After that, he is willing to answer a few more questions in another response that will go up at the end of next week.

Of course, if you want to participate and are not familiar with the new book (though you are free to ask Jeff about anything he’s written), I’ve posted a brief summary of it and links to a few reviews after the jump.

Finally, I must note that Jeff deserves an official SCOTUSblog note of congratulations, both for being the inaugural participant in this feature and for becoming the proud father of two-week-old twin boys. He’s been nice enough to schedule his baby-feeding times around our questioning, so hopefully we can make it worth his while.

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In what is probably the last filing as the D.C. Circuit Court prepares to decide the legal fate of Guantanamo Bay detainees, the Justice Department on Tuesday mounted a new argument in response to a new thrust by the prisoners’ lawyers. The Department argued to the three-judge panel that the 9/11 Resolution passed by Congress soon after the 2001 terrorist attacks in no way grants the detainees any rights under the Geneva Convention. The reply brief can be found here.

The Circuit Court is weighing two packets of cases filed by detainees at Guantanamo who have not been charged with any crime. It is considering whether they have any legal rights to assert against their detention, what those rights — if any — are, and in what court they may press them.

That Court has held two hearings and had three rounds of briefing in those cases. It asked the two sides for briefs in the third round on the impact of the Supreme Court’s June 29 decision in Hamdan v. Rumsfeld – a case that dealt with the procedures for trying detainees for war crimes before U.S. “military commissions.” The Hamdan decision did not deal directly with issues involving detainees not facing trials.

The latest round of briefs largely contained now-familiar legal arguments. But they also feature a new change that had not figured in these cases before: the Geneva Convention question.

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Howard Bashman has a new “On Appeal” column at law.com that features a detailed look at the arguments in the October sitting. It can be read here.

Ilya Somin has this op-ed in Legal Times about the status of eminent domain in the wake of Kelo and the recent decision of the Ohio Supreme Court, Norwood v. Horney.

Finally, how familiar is the general public with the Supreme Court and our government in general? A new Zogby poll finds that “three quarters of Americans can correctly identify two of Snow White’s seven dwarfs while only a quarter can name two Supreme Court Justices.” Moreover, “twice as many people (23 percent) were able to identify the most recent winner of the television talent show ‘American Idol,’ Taylor Hicks, as were able to name the Supreme Court Justice confirmed in January 2006, Samuel Alito (11 percent).” You can find the ABC News piece with further results here.

UPDATE 8 p.m. President Bush signed into law on Monday the federal “taking” bill discussed below. The White House issued no statement on the signing.

Five weeks after Supreme Court Justice Anthony M. Kennedy temporarily blocked the removal of a Christian cross from city property in San Diego, this much-litigated dispute has taken a new turn. It has become a federal constitutional controversy for the first time in the 17-year history of challenges to the 43-foot monument atop Mt. Soledad. The dispute, which has reached the Supreme Court three times, appears headed back again.

The dispute under the First Amendment’s establishment of religion clause has just begun in U.S. District Court in San Diego (Trunk, et al., v. San Diego, et al., docket 06-1597), in an attempt by two military veterans who are atheists to stop the federal government from taking “immediate possession” of the cross and surrounding property as the “Mt. Soledad Veterans Memorial.” Congress completed passage of that taking-with-compensation measure on Aug. 1, and President Bush was scheduled to sign it into law on Monday.

The Trunk case, which also involves veteran Philip K. Paulson (who has been battling the cross in court since 1989, largely successfully), was filed eight days after the bill was passed. Last Friday, U.S. District Judge Barry Ted Moskowitz refused to block the transfer to the federal government, but scheduled a hearing on the challenge for next month. (The transcript of the Friday proceeding, with the judge giving his reasons on the record, is not available, but San Diego news outlets have reported that the judge had said the cross would remain temporarily on Mt. Soledad because of earlier litigation continuing in the Ninth Circuit Court, so there was no need for immediate action.)

In asking the judge to forbid the transfer, the two veterans contended that “the city is trying to save the cross by transferring the cross and the land under it to another public entity, which makes little or no sense. A cross that is unconstitutional on public property is unconstitutional whether on municipal or federal property.” The takeover by the federal government would clearly violate the Establishment Clause, both in the act of transfer and in the presence of the cross on federal land, the veterans contend.

Congress has made two moves to preserve the cross and the setting. Last year, it passed what is now Public Law 108-447, designating the site as the Mt. Soledad Veterans Memorial, and provided for the government to accept a donation of the site by the city. The existence of that law was one of the factors that led Justice Kennedy to delay a judge’s order to remove the cross from city property, while legal proceedings unfold.

But, with the continuing court dispute, and the city under court order not to donate the site, the supporters of the cross persuaded Congress this summer to take the further step of seizing the land for federal public use, with the amount of compensation to be worked out in negotiations over the next year (H.R. 5683). The bill would take immediate effect with presidential approval.

The President’s approval is a foregone conclusion. In July, the White House issued a statement saying “the Administration strongly supports passage of H.R. 5683,” and complained about “activist” courts. It said: “Judicial activism should not stand in the way of the people…The people of San Diego have clearly expressed their desire to keep the Mt. Soledad Veterans Memorial in its present form….The Administration supports the important goal of preserving the integrity of war memorials.” (The text of the statement can be found here.)

The Supreme Court twice denied review — in 1994 and 2003 — of lower court rulings finding the presence of the cross on city property violated the California state constitution.

(Thanks to Howard Bashman of How Appealing blog for an alert to news stories on the new developments in the case.)