On April 24, the Supreme Court asked for the views of the Solicitor General in the matter Microsoft v. AT&T (05-1056), an important IP case dealing with patents on software code. The government has just filed this amicus brief supporting a cert. grant (Microsoft’s petition can be found here). The case is discussed here by Dennis Crouch at the Patently-O blog.

The questions presented are:

In certain circumstances, Section 271(f) of the Patent Act prohibits the “suppl[y] * * * from the United States * * * [of] all or a substantial portion of the components of a patented invention * * * in such manner as to actively induce the combination of such components outside of the United States,” as well as the “suppl[y] * * * from the United States [of] any component of a patented invention that is especially made or especially adapted for use in the invention.” 35 U.S.C. 271(f )(1) and (2). For purposes of that statute, the questions presented are:

1. Whether software object code can be a component of a patented invention; and, if so,
2. Whether copies of software object code are “supplie[d]” from the United States when those copies are created overseas by replicating a separate master version supplied from the United States.

The case will be considered during the October 27 Conference.

Term previews galore:

Edward Lazarus of Akin Gump highlights Justice Kennedy’s role on the Court in an article here at Findlaw.

James Vicini of Reuters highlights the term’s abortion and race cases here.

At the WSJ Law Blog, Peter Lattman mentions a panel discussion about the Court taking place tonight at the New School in New York. That panel, featuring Joan Biskupic, Jeff Rosen, Sandy Levinson, and Stephen Wermiel, will be webcast live at 7:30 EDT tonight (9/28) at this page.

The ACSblog continues its Supreme Court preview series with this post about Ledbetter v. Goodyear, an employment discrimination case in which Howe & Russell represent the petitioner, and this entry about the school diversity cases.

NPR’s Talk of the Nation had a term preview this afternoon, and guests included David Savage, Paul Beard, and our own Tom Goldstein. The audio will be available at this web page after 6 PM eastern time tonight.

Moving away from term previews, Rick Hasen of the Election Law Blog has this post about two important cases in election law that may make their way up to the Supreme Court.

Bruce Peabody wonders in the Christian Science Monitor about the fate of the pending bipartisan bill that tries to force the Court to televise oral argument sessions.

Rick Garnett asks at PrawfsBlawg, “Is ‘Independence’ the New ‘Activism?’”

Finally, the Seattle Times ran this editorial about the union fees cases granted on Tuesday. If you would like to follow that matter closely, the Evergreen Freedom Foundation has launched a blog devoted exclusively to developments in those two consolidated cases. The Teachers v. Union blog can be found here.

Salim Ahmed Hamdan, the Guantanamo Bay detainee whose case led to what may be the most important Supreme Court decision in history on war powers, has a chance to make even more history. His case could bring the primary challenge to the new war-on-terrorism legislation that Congress may enact soon, perhaps by the end of the day Thursday. Hamdan’s case, indeed, is already well advanced and could be unfolding further before a judge who has previously displayed deep skepticism about the Bush Administration’s handling of detainees at the military prison camp in Cuba — Judge James Robertson of U.S. District Court in Washington, D.C.

It was Robertsoin who in November 2004 struck down President Bush’s initial move to create war crimes tribunals (”military commissions”). A significant part of the judge’s earlier ruling was sustained by the Supreme Court in voiding the existing tribunals in Hamdan’s case last June 29 (Hamdan v. Rumsfeld, 05-184).

Robertson was assured of a continuing role last week, when the D.C. Circuit Court summarily returned Hamdan’s case to District Court, “for further proceedings.” (The order is available via Pacer on the Circuit Court website, docket 04-5393.)

The Circuit Court gave no explanation. Its action was something of a surprise, because that Court had been confronting competing proposals on what to do with the case in the wake of the Supreme Court decision, and had been expected to decide that question in the first instance. The Justice Department had argued that the Circuit Court itself should go ahead and resolve any issues lingering from Hamdan’s first case, and to do so under the narrower review terms of the Detainee Treatment Act passed last year. Hamdan’s lawyers, however, had argued that the case should be returned to Judge Robertson’s Court so that Hamdan could pursue a challenge to his original detention, his confinement at Guantanamo Bay, and other challenges not yet resolved by Robertson. (The two sides’ arguments are summarized in this earlier post.)

Instead of resolving that dispute itself, the Circuit Court simply opted to send the case back to District Court without any instructions on the scope of continuing review. Its two-sentence order, issued last Friday, remanded the case and vacated the Court’s own July 15, 2005, decision (which had upheld the commissions in a ruling that the Supreme Court reversed in June). That appeared to leave Judge Robertson with considerable discretion as to how to conduct the case from here on.

Now, either with an amended complaint, or with a new round of briefing in District Court, Hamdan’s case would have a strong chance of becoming an early vehicle for testing a number of the key provisions of the “Military Commissions Act of 2006.” That is the post-Hamdan bill crafted by the White House and several Senate Republicans; it was passed by the House on Wednesday by a 253-168 vote, and is due for further consideration in the Senate Thursday. Passage there is assured, and so is President Bush’s signature.

Read the rest of this entry »

More news articles about yesterday’s grants:

Charles Lane of the Washington Post discusses the union fees grants here.
Linda Greenhouse of the New York Times also discusses those cases here.
Tony Mauro weighs in on the WEA cases here at the First Amendment Center.

David Savage of the LA Times highlights the grant in the deportation case, Gonzales v. Duenas-Alvarez, here.

Dahlia Lithwick offered her thoughts on the important cases of the coming Term on NPR’s “Day to Day.” The discussion can be heard here.

The Wall Street Journal ran an op-ed by Justice O’Connor called “The Threat to Judicial Independence” that can be read here. Andrew Cohen responds to that op-ed here at his Bench Conference blog.

To complete our coverage of today’s grants handed down by the Court, we are now making available every brief that has been filed in all of the cases added to the Court’s docket earlier today - cert. petitions, briefs in opposition (BIOs), reply briefs, even amici filings. For Supreme Court watchers or those with a rooting interest in any of the cases before the Court, the three months since the Court was last in session must have felt very long indeed; we hope, though, that the 44 documents that you can now download from these 9 cases should more than quench your thirst for Supreme Court material until the new Term officially begins on Monday.

If you missed any of our earlier coverage of today’s grants, you can read Lyle’s post from the Courthouse here, you can download a list of the questions presented from this post, and today’s relevant news articles and blog posts are collected here in today’s round-up.

You’ll be able to download the documents after the jump.

Read the rest of this entry »

[Update] Scott Nelson has a post here at the new Consumer Law and Policy Blog discussing the cases granted dealing with the FCPA

Here is an AP wire story regarding the cert. grant in the credit reporting cases.

Here is the AP wire story about the grant in Schriro v. Landrigan, the Arizona death penalty case.

An AP story by Mark Sherman about the grants in the labor union fees cases can be read here.

The grant in the Duenas-Alvarez case about deportion is briefly discussed here.

In news not related to today’s grants, Tony Mauro discusses the decision by Justice Alito and the Chief Justice to join the cert. pool.

The ACSBlog continues its Supreme Court preview series with this post about the global warming case, Mass. v. EPA.

Jeff Rosen has this piece in the New York Times Magazine about the upcoming school diversity cases.

Doug Berman at Sentencing Law and Policy considers good post-Booker vehicles for the Supreme Court here.

Finally, today marks twenty years since Antonin Scalia has been on the bench as an Associate Justice of the Supreme Court. Michael Dimino wishes him a happy anniversary here, at PrawfsBlawg.

We have compiled a list of the questions presented in all granted cases; the list can be downloaded here.

Continue checking back with us this afternoon as we make available the complete set of Supreme Court filings in the cases granted today.

UPDATE: The Supreme Court, in a later order, set up expedited briefing schedules in 05-1272, Rockwell International v. U.S., and 05-1629, Gonzales v. Duenas-Alvarez (05-1629). This means that those cases will be scheduled for oral argument in December; the other new grants will be heard, probably, in January. (For the precise briefing schedule, see page 3 of today’s order here.)

The Supreme Court agreed on Tuesday to decide whether states may bar a labor union from using non-union workers’ dues for political activities if those workers have not explicitly consented. The issue arises in two cases that will be heard together: Davenport v. Washington Education Association (05-1589) and Washington v. Washington Education Association (05-1657). A Washington state law forbade unions to use “agency shop fees paid by non-members to influence elections “unless affirmatively authorized by the individual.” The state Supreme Court struck down the law as a violation of union’s First Amendment rights in a case filed by a teachers union.The outcome may affect the laws of some 14 states that would be vulnerable under the state Supreme Court’s rationale.

[UPDATE: The complete orders list can now be found here].

The Court, setting the stage to open its new Term next Monday, added a total of nine new cases to its docket for decision in coming months. Those cases were selected from the 1,900 that had stacked up since the Court’s last Conference in June. Indications are that, later today, some of these will be put on expedited briefing schedules, for argument in December; the Court has four slots still open in its December calendar.

In an important business case, the Court agreed to decide what proof is required to show that a violation of the federal truth-in-lending law was willful. Under the Fair Credit Reporting Act, a finding of a willful violation entitles a consumer either to actual damages or statutory damages of $100 to $1,000 per violation, plus punitive damages. A mere negligent violation, by contrast, results only in actual damages. The issue before the Court is whether a violation is willful if it resulted from reckless disregard of consumer rights under the Act, or whether there must be proof the credit entity actually knew it was acting illegally. The Court consolidated two cases for review on the issue: Safeco Insurance v. Burr (06-84) and Geico General Insurance v. Edo (06-100).

Among the cases granted was one filed by the federal government, testing whether an alien living in the U.S. can be deported after being found guilty of a crime that could include a verdict of aiding and abetting (Gonzales v. Duenas-Alvarez, 05-1629).

In a death penalty case with significant potential for affecting the relationship between criminal defendants and their defense lawyers, the Court will hear an Arizona appeal testing whether defense counsel has a duty to develop and offer evidence favorable to the client, when the client actively opposes any such maneuver. (Schriro v. Landrigan, 05-1575)

The Court also took on an important case on the right of individuals to recover, on behalf of the federal government, federal funds that were misspent by a private firm or contractor of public employee — the “qui tam” provision of the False Claims Act. The order granted review to spell out the meaning of the phrase “original source” in the Act. A person bringing a qui tam claim must be the original source of the information about the misspent funds. In granting review of the case, however, the Supreme Court chose not to address a claim that the qui tam provision itself is unconstitutional. The case is Rockwell International v. U.S. ex rel. Stone (05-1272) Justice Stephen G. Breyer took no part in the order.

Stepping into a governmental spat on the island of Guam, the Court agreed to decide a dispute between the territory’s governor and its attorney general over staying within a borrowing limit. The Court, however, added a procedural issue that may prevent it from reaching the substance of the officials’ dispute. (Moylan v. Camacho, 06-116).

The Court granted review of the federal Education Secretary’s authority to write a formula on subsidizing local school districts that serve a nearby military base on Indian reservation. The case tests whether the Secretary is bound by a formula enacted by Congress (Zuni Public School District v. U.S. Department of Education, 05-1508).

In an environmental dispute, the Court said it would return to the question of local governments’ authority to control the disposal of solid wastes. The case tests whether it violates the Commerce Clause for a local “flow-control” ordinance to require delivery of all solid wastes to a publicly owned local facility. (United Haulers Associationi v. Oneida-Herkimer Solid Waste Management Authority, 05-1345).

In a jurisdictional case, the Court will review whether a U.S. District Court must first find that it has jurisdiction over a lawsuit, before it may dismiss a lawsuit because it was filed in an inconvenient forum. (Sinochem International v. Malaysia International Shipping Corp., 06-102).

The docket numbers of today’s grants are (with links to the petitions or the questions presented where available):

05-1345
05-1508
05-1575
05-1589, 05-1657 (consol.)
05-1629
06-84, 06-100 (consol.)
06-102
06-116
05-1272

Tom’s list of cases that he thought had a reasonable chance going in to today can be found here.

The AP has this story about the union fee grants.

The AP also has this story about the grants dealing with the Fair Credit Reporting Act.

Tony Mauro has this story at the Legal Times previewing the upcoming Term.

Over the weekend, David Savage of the LA Times wondered, “Is the Chief Justice Really a Judicial Activist?” At the Volokh Conspiracy, Orin Kerr comments on this op-ed, while Ilya Somin offered further thoughts on the question.

At the ACSBlog, Pamela Harris of O’Melveny and Myers and Dawn Johnsen of Indiana Law School look ahead to the two abortion cases already on the docket.

You can listen to Liane Hansen’s interview with Walter Dellinger about Hamdan v. Rumsfeld here at NPR.org.

Finally, over at 3L Epiphany, Ian Best asks: “Where is the Hudson v. Michigan Blog?”

Pfizer, Inc. has aked the Supreme Court to conclude that Apotex v. Pfizer, a high-profile case in the fight over pharmaceutical patents now pending before the Supreme Court, is moot. An electronic copy of the mootness suggesiton can be downloaded here, and the original petition, brief in opposition, and reply brief can be found at this post on the Orange Book Blog.

The case gained added prominence when, on May 15 of this year, the Supreme Court asked for the views of the Solicitor General. That amicus brief has not been filed.

The Court will consider whether to accept the suggestion of mootness, which Apotex opposes, during its Conference on October 6.

In certain previous Terms, Tom has identified the group of cert. petitions that had a reasonable chance of being granted cert. for a column called “Conference Call” that ran in the Legal Times and other American Lawyer Media publications. “Conference Call” typically featured a detailed analysis of one petition of particular interest, along with a summary of the questions presented in all of the other noteworthy petitions. This Term will see the return of the regular publication of that column. “Conference Call” will run in the Legal Times (and other ALM publications) on the Monday before each Conference; grants and denials in these cases are typically announced on the next day that the Court is in session following the Conference. This Term’s first “Conference Call” appeared today in the Legal Times, and it can be found online here [registration req’d].

“Conference Call” in print will be similar to what it has been in past years, but this Term will see additional information regarding cert. petitions on SCOTUSblog. For instance, we will begin having the full-text of each noteworthy cert. petition available electronically for download so that you may find out more detail about any cases of particular interest; in fact, last week, we made the list of noteworthy petitions on the opening Conference list available (click here). (One side note regarding this feature: in order to help us post these cert. petitions as quickly as possible, if you are involved in the submission of a paid cert. petition to the Supreme Court, sending it electronically to jharrow [at] akingump.com as it is filed would be much appreciated.)

Along with the complete petitions in all cases that Tom has selected as reasonable candidates for cert., we are also going to make available scans of the cover page and questions presented for every paid petition that is filed with the Court starting with 06-1 and updated on a rolling basis (pro se petitions will not be included). The first set, featuring petitions from 06-1 to 06-219, is now available by clicking here.

We hope that the regular publication of the “Conference Call” column, the availability of complete petitions in every case with a reasonable chance of a cert. grant, and a scan of every paid petition’s “Questions Presented” page will allow you to keep track of the goings-on at the Supreme Court more closely than was previously available anywhere other than 1 First Street.

The Supreme Court decided the war-on-terrorism military commission case (Hamdan v. Rumsfeld, 05-184) on June 29. Sometime in the next week or two, Congress is expected to vote on a bill crafted by the White House and key Senate Republicans in reaction to Hamdan.

The Supreme Court’s Hamdan v. Rumsfeld decision left at least two constitutional questions lingering, finding no need to respond to them. Both are now lurking in the background as Congress prepares to consider legislation that would narrow the rights of terrorism suspects being held at the military prison at Guantanamo Bay, Cuba — a dozen or two facing war crimes charges, hundreds facing no charges.

The first question is whether Congress has the authority, under its control of federal court jurisdiction, to deny the Supreme Court an opportunity to hear a habeas challenge to detention and to potential trial of Guantanamo detainees on war crimes charges. More specifically, the question is whether a detainee could pursue an “original writ of habeas” directly in the Court, even if Congress passed the pending compromise White House-Senate Republican post-Hamdan bill (introduced last week as S. 3930 and as part of S. 3929, a sweeping bill that also includes new restrictions on court review of foreign intelligence wiretapping that reaches Americans using the telephone or Internet connections in the U.S.)

The second question is whether Congress can suspend the writ of habeas corpus altogether, by simply denying any judge — including any Supreme Court Justice — the authority to hear any habeas case brought by a detainee captured since the terrorist attacks of September 11, 2001.

Both questions were put before the Court in Hamdan, but the Court concluded “we find it unnecessary to reach either of these arguments” (made by Salim Ahmed Hamdan’s lawyers). It interpreted the Detainee Treatment Act, by its own language, as not taking away the courts’ authority (including the Supreme Court’’s authority) to decide the Hamdan case, since it was pending before the DTA was passed late last year. The Court did note, though (in footnote15), that interpreting a law to “entirely preclude review of a pure question of law by any court would give rise to substantial constitutional questions.”

It appears that that is exactly what S. 3930 (and Title I of S. 3929) would do. Section 6, “Habeas Corpus Matters,” strikes out the language of the DTA upon which the Supreme Court found the Hamdan case to be still within its reach, and presumably, still within reach of the lower courts in Washington, D.C.

In place of that version, the new bll states: “No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed on or behalf of an alien detained by the United States who (A) is currently in United States custody; and (B) has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” The provision goes on to say that “any other action” brought by a detainee would have to be brought in the D.C. Circuit Court, but that would be open to a narrower range of issues than a normal habeas petition. (Note that these provisions are not limited to detainees now at Guantanamo.)

To make explicit that previously pending cases (including, presumably, Hamdan’s continuing case), the White House-GOP leadership bill includes a new effective date provision, reading: “The amendments made…shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending or or after the date of the amendment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.”

That would seem clearly to apply to hundreds of pending habeas cases by detainees, now awaiting a decision in a packet of two appeals in the D.C. Circuit, and in the continuing consideration of the Hamdan case in the wake of the Supreme Court ruling. Thus, if Congress passes the bill as presently written, the D.C. Circuit presumably would be the first to resolve the issue, although it is conceivable that some detainees’ counsel would attempt to bring a new habeas challenge in District Court to test the new provisions, and perhaps an original habeas in the Supreme Court for a more direct test.

The timing of Senate and House consideration of the new measure is not fixed at this point, but it is understood to be imminent.

This is a highly technical post about the Court’s calendar, not for the faint of heart or those with a life.

Prior to departing for the summer recess, the Court had granted certiorari in 31 cases — accounting for 29 hours of argument time — for the October 2006 Term. Here is the list.

The October, November, and December sittings include 16 argument days, which is 32 hours of argument under the Court’s usual schedule. By default, the Court’s schedule therefore would require 3 hours of additional argument in order to fill the December calendar.

The Court, however, added an extra hour of argument to October. So, there are now 4 hours available in December.

As the Court’s September 25 “long conference” at the conclusion of the summer recess approaches, the question arises whether the Court intends to use cases from that Conference to fill the December calendar.

If past is prologue, the answer to that question is “probably not.” The Court has not in its modern practice attempted to grant cases at the end of September that will be argued in the December sitting.

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Shifting gears from the practice pointers that have been the subjects of our first two podcasts, today’s episode features an interview with a woman whose voice will be instantly recognizable to long-time listeners of NPR: Nina Totenberg.

Nina has been covering the Supreme Court and legal affairs for NPR since she joined that organization in 1975. In her interview with Tom, Nina talks about how the Court has changed over those thirty years, how she operates on days when the Court issues an important decision, and how Justice Ginsburg may be feeling now that she is the sole female Justice. The episode, available for direct download here, is 15 minutes long and weighs in at 7 MB.

To automatically receive the newest episodes of the podcast, you can subscribe to our feed in iTunes from the new link at the top of the homepage, next to the RSS feed, or by clicking here; to use other podcasting or RSS software, you can subscribe to the podcast’s XML feed directly here.

Previous podcasts are available here and here.

This is another in a continuing series of posts on the impact of Supreme Court precedents on later disputes. The precedents at issue in this case are Buckley v. Valeo (1976), Weiss v. U.S. (1994), Ryder v. U.S. (1995) and Edmond v U.S. (1997).

The highest court in the military judiciary, the U.S. Court of Appeals for the Armed Forces, on Wednesday barred a U.S. senator from sitting on a military appeals court that decides criminal cases. By a vote of 4-1, the Court found unconstitutional the dual role of Lindsey O. Graham as a senator (Republican from South Carolina) and as a reserve officer sitting on the Air Force Court of Criminal Appeals.

The decision in Lane v. U.S. (CAAF docket 05-260) can be found here. The decision is subject to a potential appeal by the federal government to the Supreme Court.

The special court’s ruling overturns a decision by the Air Force court upholding the criminal conviction of Airman First Class Charles M. Lane. The Airman had been convicted of illegal use of cocaine, and was sentenced at a military trial to jailing for 135 days, reduction to the lowest pay grade, and bad-conduct discharge. Sen. Graham, in his role as an officer in the Air Force Standby Reserve, was a judge on the Criminal Appeals Court that rejected Lane’s appeal. Lane had tried unsuccessfully to disqualify the senator as a judge. (The Airman did not challenge Graham’s service in the military or his status in the Standby Reserve, and Wednesday’s ruling did not deal with those issues, confining itself to his status as a military appeals judge.)

Chief Judge H.F.Gierke wrote the 17-page decision, joined by Judges James E. Baker, Andrew S. Effron and Charles E. Erdmann. Dissenting in a 14-page opinion was Judge Susan J. Crawford.

The majority relied upon the Constitution’s “incompatibility clause” in Article I, ” saying that “no person holding any office under the United States shall be a member of either House during his continuance in service.” It also relied upon separation-of-power principles, primarily as discussed by the Supreme Court in Buckley v. Valeo (1976) and three Supreme Court precedents from the 1990s dealing with appointments to military courts..

Read the rest of this entry »

Two attorney profiles up at Law.com today may be of interest. The first is by Tony Mauro and can be found here; it is a profile of Roy Englert, Jr., the counsel of record in the case of Northwest Airlines v. Spirit Airlines that was filed out of time. Lyle previously covered the details of this case here and here.

The second, which is by Jon Bringardner and can be found here, is a profile of James Dabney, the IP specialist who is arguing on behalf of KSR in the upcoming patent case KSR v. Teleflex (Disclosure: Tom Goldstein represents the respondent in this matter). Orin Kerr comments on the article here at the Volkh Conspiracy.

Washingtonpost.com carries a Reuters story with more information about the letter from 15 senators urging an appeal by the Justice Department in a key tobacco case. Lyle previously discussed the issue here.

Finally, the Public Radio program “Justice Talking” recently aired a show focusing on the future of the Roberts Court; panelists include Joan Biskupic, Richard Epstein, and Kathleen Sullivan. You can stream the program, download it, or read the transcript via this link.

The Justice Department on Wednesday urged the Supreme Court to clarify when a non-lawyer parent of a disabled child may file a lawsuit, without a lawyer, to enforce the child’s rights under the Individuals with Disabilities Education Act (IDEA). The Court had asked for the government’s views in an order last May 15. The complete brief filed by the Solicitor General is available here.

Filing in the case of Winkelman, et al., v. Parma City School District (docket 05-983), U.S. Solicitor General Paul D. Clement said “the Court should grant the petition…and decide to what extent, if any, parents of children with disabilities may proceed pro se in a federal court action pursuant to IDEA. As several courts of appeals…have expressly acknowledged, the circuits are divided on that question.”

Clement went on to argue that the Sixth Circuit Court ruling at issue in the case, barring parents from pursuing pro se lawsuits, “is inconsistent with the plain language, structure, and purposes of IDEA….The ability of parents to proceed pro se in federal court may facilitate the accomplishment of Congress’s goals in enacting IDEA.” Clement added that 2004 amendments to the Act “reaffirm that Congress intended to permit parents to proceed pro se in IDEA actions.”

The Sixth Circuit decision was stayed last December 2 by Justice John Paul Stevens. The Cleveland, Ohio, Bar Association has temporarily dropped an unauthorized practice of law complaint against another Ohio couple, under pressure from the Ohio Supreme Court. The Association has also threatened a similar prosecution of the couple involved in the Supreme Court appeal, Jeff and Sandee Winkelman.

Thanks to Jean-Claude Andre, who represents the petitioners, we have recevied electronic copies of essentially all of the relevant Supreme Court filings in this case. The original cert. petition in this matter can be downloaded here, the brief in opposition here, and the petitioner’s reply here. The petitioners also filed supplemental briefs; the first is available here and the second is available here.

Two amicus briefs supporting a cert. grant have also been filed at this stage. The one on behalf of the Autism Society of America, et al. can be found here, and the one on behalf of Parent Attorneys and Advocates, Inc., et al. can be found here.

Fourteen U.S. Senators — 13 Democrats and an Independent — urged the Justice Department on Wednesday to pursue a new appeal in the massive government case against the tobacco industry, perhaps setting the stage ultimately for Supreme Court review of the government’s power to force a surrender of corporate profits as a remedy for a RICO anti-racketeering violation. The senators were seeking to put pressure on Attorney General Alberto O. Gonzales to try to regain that authority.

As of Wednesday afternoon, the Department apparently had not filed a notice of appeal in U.S. District Court. Under federal rules, it has until Sept. 25 to do so, unless it seeks and obtains permission for an extension of time. (Correction: The blog has been informed that the government’s 60-day period for filing a notice of appeal has not yet begun to run, because the industry has filed post-trial motions that delay the start of that period. We regret the error.) Six separate appeals have been filed by tobacco companies (Circuit dockets 06-5267 through 06-5272).

Last year, the government did appeal to the Supreme Court with the specific aim of regaining wide authority to fashion RICO remedies. It asked the Court to decide whether a federal judge’s power to issue appropriate orders to remedy violations of the RICO law “encompasses the remedial authority to order disgorgement of illegally-obtained proceeds” (docket 05-92) The Court denied that appeal without comment last October 17. It did so after the industry argued that the case was premature, since the industry had not been found to have violated RICO in the government case. “The most efficient and orderly manner of proceeding,” the industry told the Court then, “is to permit the District Court to issue its final judgment and then allow for appellate review in the ordinary course.”

On August 17, however, U.S. District Judge Gladys Kessler, bringing to an end the government’s seven-year lawsuit, ruled that the industry had violated RICO by a decades-long campaign to deceive smokers about the health hazards of smoking. Kessler noted, in her opinion, that she was not able to impose “a number of significant remedies proposed by the government” because of a 2005 ruling by the D.C. Circuit Court. The Circuit Court had ruled, she noted, that RICO only allows “forward-looking remedies,” and thus barred such backward-looking alternatives as disgorgement of ill-gotten gains.

The judge also said that the Circuit Court ruling kept her from considering a government plea for a comprehensive smoking cessation program, and a marketing program to counter the industry’s appeals to the youth market.

It was that Circuit Court ruling, of course, that the Supreme Court refused to review last October. Now that Kessler has issued a final decision, it appears that the scope of remedies under RICO would now be open for a new appeal. Although the D.C. Circuit would be bound by its prior decision (unless it agreed to hear that question en banc), the issue would be an open one for the Supreme Court since its prior denial of review did not constitute approval of the Circuit Court ruling.

The 14 Senators, in their letter to Gonzales on Wednesday, argued that the prior Circuit Court ruling “drastically limited the ability of the trial court to impose effective remedies for the tobacco industry’s gross violations of the racketeering statute. It is imperative that the Justice Department pursue every available avenue of appeal to overturn this misguided Court of Appeals decision.”

An earlier post describing the government’s appeal to the Supreme Court can be found here.

A news release describing the senators’ letter to Gonzales, and the text of the letter, can be found here.

UPDATE: Clarence E. Hill was executed Wednesday evening at a state prison in Starke, Fla. He was pronounced dead at 6:12 p.m., according to news reports.

Dividing 5-4, the Supreme Court on Wednesday refused to delay the execution in Florida of Clarence E. Hill, thus clearing the way for the state to carry out the sentence around 6 p.m. this evening. The Court issued no opinion. The brief order noted that Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens would have granted a stay.

The Court acted on Hill’s stay application alone (06-A-301), and thus took no action on his pending cert petition, Hill v. McDonough (06-6545). If the execution goes forward under a death warrant signed by Florida Gov. Jeb Bush, that will moot Hill’s appeal since that seeks an opportunity to challenge the method of lethal injection.

By denying the stay request, the Court leaves Hill without a remedy that the Court last June had ruled he could pursue: a civil rights challenge to the lethal injection protocol used in Florida. At the time the Court issued that ruling, it was aware that he had filed his delay request shortly before an execution was scheduled — the very issue that has now led the Eleventh Circuit Court to refuse to delay the execution further, after concluding that defense lawyers had engaged in delaying tactics.

Without an opinion from the Court, however, it is unclear whether the Court majority actually agreed with the Eleventh Circuit on its rationale. The practical result, though, was that the Eleventh Circuit denial of a stay stands, and the execution may now proceed.

It would have taken the votes of five Justices to grant a stay. An earlier post on HIll’s plea to the Court can be found here, containing links to the application and the petition for review.

At Sentencing Law and Policy, Doug Berman wonders if Florida will execute Clarence Hill today.

Andrew Cohen has this column on WashingtonPost.com called “Chaos in Sentencing.”

The Seattle Post-Intelligencer has this article highlighting the pending cert. petition in Washington v. Washington Education Association (05-1657). That case is on Tom’s list of petitions with a reasonable chance of being granted, and its full-text can be downloaded here.

Linda Greenhouse at the New York Times covers the changes in the way that courts will identify judicial conflicts of interest announced at a conference led by Chief Justice Roberts. Lyle discussed these new regulations yesterday here.

Finally, Eugene Volokh has these thoughts on the Supreme Court’s previously defined “right to intimate association” in the wake of a lower court ruling which, citing to this right, forced the College of Staten Island to officially recognize the fraternity AEPi on its campus.

Rick Hasen at Election Law blog has posted links to a new petition for review in the Supreme Court, raising issues about equal access to voting in the wake of Bush v. Gore. Rick’s post can be found here.

The U.S. Judicial Conference, policymaking arm of the federal courts, on Tuesday adopted a strict new system to control the kinds of privately-funded educational seminars that federal judges may attend, and limit the expenses they may get reimbursed for attending such events. The policy applies only to lower court judges, because the Conference does not have any authority over the Supreme Court. The press release and links to the policy document involved can be found here

U.S. District Judge Thomas F.Hogan of Washington, D.C., who chairs the Conference executive committee, told reporters at the Supreme Court following the Conference’s semi-annual meeting there that the new policy was “in some respects a response to criticism” leveled at judges for attending expense-paid seminars conducted by groups that might have an interest in influencing the courts.

The policy bars any federal judge from accepting travel, food, lodging, reimbursement or anything that constitutes a gift from any non-governmental source sponsoring an educational seminar unless the judge determines that the sponsoring organization has publicly disclosed details about its program, what was discussed or presented, and every source of support for the program, “financial or otherwise.” That information must be sent to the Administrative Office of U.S. Courts, which will make it available to all judges. The policy applies to any such organization that intends to cover any more of a judge’s expenses of attendance than the $350 minimum that judges must now report on their annual financial disclosure forms.

Each judge, within 30 days after attending such a program, must file a report with that judge’s court’s clerk about the program.

The Judicial Conference, in a second action designed to aid judges in meeting their ethical duties, voted to require all federal courts to use new computer software that will identify cases in which judges may have a financial conflict of interest and should disqualify themselves. This mandatory conflict-checking policy will provide “an efficient and effective supplement” to the judge’s own review of potential conflicts lurking in cases that come before that judge’s court, the Conference said in a news release.

Judge Hogan told reporters that the Conference has been working on this issue for more than a year, and thus was not responding to controversies that arose in the recent Senate Judiciary Committee hearings on the Supreme Court nomination of Justice Samuel A. Alito, Jr., about his recusal practices on the Third Circuit Court.

After a two-year study, a federal courts committee headed by Supreme Court Justice Stephen G. Breyer reported on Tuesday that the lower federal courts have acted properly in dealing with most complaints about misconduct, ethical lapses or disabilities among U.S. District or Court of Appeals judges, but that the record was not as positive in “high-visibility cases.”

Named in May 2004 by the late Chief Justice William H. Rehnquist and supported by new Chief Justice John G. Roberts, Jr., the Judicial Conduct and Disability Act Study Committee explored the implementation of a 1980 federal law designed to deal with complaints that fall short of impeachable offenses — misconduct or failure to recuse from cases in which the judge had an alleged interest or conflict — and with problems over judges’ disability.

The final report, available on the Supreme Court’s web site as the first entry after clicking on “Public Information,” does not deal with any complaints about Supreme Court Justices. Discussing the report with media reporters, Justice Breyer said that “the Supreme Court was outside our scope; we kept pretty much to that scope.”

For lower court judges, the report concludes that “the chief circuit judges and judicial councils have properly implemented the Act in respect to the vast majority of the complaints filed.” But, in a second major conclusion, it found that in “high-visibility cases,” totaling 17 over a five-year period, the handling of five was “problematic.” It said it considered that “the mishandling of five such cases out of 17 — an error rate of close to 30 percent — far too high.: Those kinds of cases, it said, are important because of publicity surrounding them, perhaps leading the public “to form a view of the judiciary’s handling of all cases upon the basis of these few.” Moreover, it said, the mishandling of those cases might discourage others from complaining.

Chief Justice Roberts, joining Breyer in a discussion with media reporters, said he was “impressed with the thoroughness and the comprehensiveness” of the report. He said he had asked the U.S. Judicial Conference to have its committees take up the report’s recommendations (there were no suggestions for new legislation).

Justice Breyer told reporters that in judging how well lower courts had dealt with complaints, his committee had used “very tough but not impossible standards.” In finding a 2 percent error rate in the overall handling of complaints reviewed by the committee, Breyer said many were simple errors of not “dotting every i or crossing every t….Our conclusion of a 2 percent error rate does not suggest a serious problem.” The conclusion of the committee, he said, did not suggest that the entire system for handling complaints was riddled with problems.

Breyer was asked about the report’s omission of the identities of any of the judges in the 17 high visibility cases the panel considered He said that the underlying law requires anonymity, and noted that the names of judges were redacted in all of the files that the committee studied.

In looking at the 17 high visibility cases, Breyer added, it was “important to reduce” the error rate of nearly 30 percent. The panel’s recommendations seek to do so, he said, and noted as an example a suggestion that chief judges may wish to transfer some complaints to other circuits for initial investigation — presumably, to avoid sensitive problems in investigating a court’s own members.

Next Monday morning, the Supreme Court Institute at the Georgetown University Law Center is convening a press briefing on the leading cases of the upcoming Term.

Here’s a description of the program:

Welcome: Professor Richard Lazarus, Co-Director, Supreme Court Institute, Georgetown University Law Center

Introduction: Professor Susan Low Bloch, Georgetown University Law Center

Professor Randy Barnett, Georgetown University Law Center
Topic: Birth and End of Life Decisions
Cases: Gonzales v. Carhart
Gonzales v. Planned Parenthood

Professor Barnett will discuss the two cases that raise the question of whether the federal Partial Birth Abortion Act of 2003 is constitutional. Both lower courts struck down the federal statute on its face. These cases are especially significant because in 2000 the Court in Stenberg v. Carhart struck down a state statute that prohibited what the state law defined as “partial birth abortion” by a five to four vote, and Justice O’Connor supplied the fifth vote for the majority. Chief Justice Roberts and Justice Alito have since joined the Court.

Professor James Forman, Georgetown University Law Center
Topic: Equal Protection and Educational Placement
Cases: Parents Involved in Community Schools v. Seattle School District #1
Meredith v. Jefferson County Bd. of Education

Professor Forman will comment on the two cases that concern the constitutionality of public schools using race as a factor in assigning students to specific public schools. Both lower federal courts of appeals upheld the school district assignment policies. These cases provide the Roberts Court with its first opportunity to consider the use of race in public education in general and, particularly, to consider the applicability of the Court’s recent decisions in Gruter v. Bollinger and Gratz v. Bollinger, both of which were sharply divided, outside the context of higher education and admissions.

Professor Lisa Heinzerling, Georgetown University Law Center
Topic: Environmental Law
Cases: Massachusetts v. Environmental Protection Agency
Environmental Defense v. Duke Energy Corp.

Professor Heinzerling will discuss the two environmental law cases scheduled for argument this fall. Both cases raise questions of statutory interpretation under the federal Clean Air Act and, significantly, the Court granted review in both cases over the opposition of the federal government. Indeed, the Court’s grant in Environmental Defense v. Duke Energy, represents the first time that the Court has granted certiorari in response to an exclusive request of an environmental group in 35 years. It is, however, the Massachusetts v. EPA case that is likely to garner the greatest public attention, injecting the Court into the controversy concerning the Bush administration’s policies regarding global climate change, particularly its decision not to regulate carbon dioxide emissions.

Professor Jay Thomas, Georgetown University Law Center
Topic: Patent Law
Cases: KSR International Co. v. Teleflex, Inc.
MedImmune v. Genentech

Professor Thomas will focus on the two patent cases now before the Court. These cases represent the latest in a series of patent law cases that the Court has granted in recent years, defying the Court’s longstanding tradition of steering away from patent law. Both cases are potentially significant, but it is KSR International Co. v. Teleflex Inc., that is generating the most attention. It concerns one of the most fundamental issues of patent law, the meaning of “obviousness” in determining whether a claimed invention is patentable, and the Court’s ruling could accordingly have significant implications for patents.

Professor Michael Gottesman, Georgetown University Law Center
Topic: Torts
Cases: Philip Morris USA v. Williams
Norfolk Southern Railway Co. v. Sorrell

Professor Gottesman will discuss the two tort law cases that will be argued this October and November. Both cases arise out of efforts by advocates of tort reform to persuade the Justices to embrace statutory and constitutional limits on tort liability and remedies. Philip Morris USA v. Williams concerns the applicability of constitutional limits on the award of punitive damages imposed on tobacco companies. Norfolk Southern Railway v. Sorrell is the latest in a series of cases that the Court has granted at the request of railroads to limit their tort liability under the Federal Employer Liability Act.