Thanks to Tom for that informative post below on the Incredible Shrinking Docket. I’ll bite on the “normative” question: Is there anything the Court ought to be doing differently? Obviously, its docket has been shrinkng in the post-Justice-White era, and even though the new Chief Justice hinted at his confirmation hearing that he might be more receptive to a more generous cert.-grant practice (am I remembering that correctly?), the trend is headed decidedly in the opposite direction.

Tom, and others with an extensive cert. practice, might understandably be reluctant to address the question publicly, but to the extent Court-watchers and practitioners are able and willing, I’d be curious to hear whether there are any particular categories of cases — defined by subject-matter, reasons-for-grant, or otherwise — to which the Court is being insufficiently attentive. Are there a bunch of obvious cert.-worthy cases out there that the Court is inexplicably denying? If so, do they fit any pattern? Does anyone think the Court is getting the balance just about right?

One often hears complaints, for instance, that the Court doesn’t resolve enough circuit splits on statutory questions in commercial cases. But I’ve also heard from other close followers that those complaints are unfounded — that a great deal of money in a handful of cases might turn on certain minor doctrinal ambiguities, but that the questions presented don’t have especially broad importance and/or that the “circuit splits” are incredibly arcane or narrow (to the extent it’s fair to make such topic-based generalizations at all).

What do you all think?

A couple of preliminary notes about this post: Like a similar post I wrote earlier in the Term, this one is very “inside baseball” on the Court’s docket. In addition, the post shouldn’t be misunderstood as a criticism of the Court’s approach to granting cases. I don’t really view that as the role of the bar, or the blog. Rather, the post takes the Court’s approach as a given, and notes the consequences that follow from it that the Court will have to address, in turn.

* * * * *

When the Justices meet in Conference tomorrow to consider petitions for certiorari, they will be on the cusp of the greatest shortfall in filling the Court’s docket in recent memory, and likely in its modern history.

I previously discussed the timetable between granting petitions and argument in those cases in this post.

The Court returned from its summer recess in something of a docket crunch, and its pace of granting cases slowed considerably from there. By this point last Term, the Court had granted 26 cases (10 from the “Long Conference,” plus 16 more in the first 6 Conferences of the Term). But this Term, the number is only 18 (9 from the long conference, but only a total of 9 in the six succeeding Conferences).

In fairness, during the same period during the October Term 2004, the Court granted certiorari in 18 cases, which collectively filled only 18.5 hours of argument. But the Court’s docket was considerably fuller that Term, and the failure to take many cases did not make it impossible to fill the argument calendar. The Court granted 8 cases in the OT2004 long Conference, and (because the docket already had a substantial number of granted cases) the new grants were argued between January and March 2005. During the first six conferences after the long Conference in OT2004, the Court then granted 10 cases, all of which were set for argument in the ordinary course in late February or March 2005. This Term, by contrast, the cases granted during the long Conference will be argued in December or January because those sittings were not full. Those granted between the long Conference and this point will all be argued in January and (presumably) early in the February sitting (which has not yet been set).

This Term, the Court currently needs four hours of argument (likely, four new cases) to fill its February calendar. Cases granted tomorrow can be slotted into that sitting only if they are expedited. The standard briefing schedule calls for 122 days (115 days of briefing, plus seven days between the filing of the reply brief and the argument). But there are only 88 days between tomorrow and the first open date in the February calendar (Feb. 27), which means cutting a month from the briefing schedule.

Read the rest of this entry »

Recaps and analyses of yesterday’s oral argument in Mass. v. EPA abound. Here is Dahlia Lithwick writing at Slate, and here she is again, this time discussing the case on NPR; Nina Totenberg also had a piece on NPR that can be found here. Linda Greenhouse of the New York Times has her story here, and Tony Mauro of Legal Times focuses on the role of Justice Kennedy in the case here. David Savage of the L.A. Times has his thoughts here, while Jess Bravin and Mark Anderson discuss both of yesterday’s cases here.

At the Washington Post, Tomoeh Murakami Tse discusses Watters v. Wachovia here.

Ruth Marcus, also of the Washington Post, has a discussion of the voluntary school integration cases that will be argued this Monday here.

Finally, at Above the Law, David Lat agrees with Dahlia Lithwick, who earlier this week wrote that the Court should release same-day audio of every argument.

The following argument recap was written by Brian Love of the Stanford Supreme Court Litigation Clinic. His preview of this case, including links to all the briefs, can be found here. Lyle Denniston also posted an analysis of oral argument here.

On Tuesday, the Court heard argument in KSR v. Teleflex. (No. 04-1350), considering the question whether the Federal Circuit’s teaching-suggestion-motivation test for determining whether an invention is “obvious” is the proper standard under 35 U.S.C. § 103(a).

James W. Dabney of Fried, Frank, Harris, Shriver, & Jacobson, L.L.P., arguing for petitioner, opened by characterizing the patent claim at issue – claim 4 of U.S. Patent No. 6,237,565 (the Engelgau patent) – as an overly broad grant of rights that was issued in error. Justice Ginsburg kicked off the Court’s questioning, eventually asking whether petitioner’s arguments would hold up under the Federal Circuit’s most recent decisions on obviousness – In re Kahn, Alza Corp. v. Mylan Labs., Inc., and Dystar Textilfarben GmbH v. C.H. Patrick Co. – which seem to relax the teaching-suggestion-motivation test. Dabney responded that the Federal Circuit had merely adopted “escape devices” to what otherwise remains a rigid requirement of an explicit teaching, suggestion, or motivation. He explained that even in light of these new decisions, the test fails to result in quick and predictable decisions. Chief Justice Roberts posed the next challenge, asking whether, as the Federal Circuit claims, the teaching-suggestion-motivation test is necessary to combat hindsight bias. Dabney characterized such hindsight concerns as a “frontal assault” on the Patent Act and Supreme Court precedent, suggesting that the “secondary considerations” laid out by the Court in Graham v. John Deere Co. were sufficient to take care of any hindsight that might arise.

Read the rest of this entry »

The case of Hamdan v. Rumsfeld is now pending in U.S. District Court in Washington (docket 04-1519) following the Supreme Court’s ruling in Salim Ahmed Hamdan’s favor last June.

UPDATE: 2 p.m. Thursday
U.S. District Judge James Robertson gave the Justice Department a week of added time to file its reply brief in the Hamdan case. The order also expanded the allowed length to 45 pages. The reply brief will explain the government’s rationale for its motion to dismiss the case under the new Military Commissions Act of 2006. The judge’s order made no mention of the Department’s request for a stay of the case. The request for additional time and an expanded length was made as an alternative to the stay request.

The Justice Department, in a move to head off a new ruling in the military tribunal case of Salim Ahmed Hamdan, asked a federal judge on Wednesday to put the case on hold until after the D.C. Circuit Court rules on long-pending cases on detainee rights. If the judge does not stay the case, the Department said, it needed more time to file a reply to Hamdan’s brief on his right to continue his challenge to his detention and potential prosecution for war crimes. The government’s reply otherwise is due on Friday of this week.

The D.C. Circuit is weighing two packets of cases filed by detainees at the U.S. military prison camp at Guantanamo Bay, Cuba. After the latest round of briefing, those cases could be decided at any time.

In its motion on Wednesday seeking delay in Hamdan’s case, the Justice Department told U.S. District Judge James Robertson in Washington, D.C., that the Circuit Court cases involve similar issues — including the constitutionality of the new law passed by Congress seeking to strip courts from considering any habeas pleas by detainees. “The petitioners in those appeals,” the Department said, “raised a number of arguments similar to those raised” by Hamdan in District Court.

But it also noted that Hamdan had raised additional constitutional challenges in his District Court filings, and it said it had not had time to prepare a full response. So, if the case is not stayed, the Department asked for an additional two weeks — until Dec. 15 — to file their response.

On Thursday, Hamdan’s lawyers urged Judge Robertson not to stay the case, saying that the government has had sufficient notice and adequate time to get its brief done under an order issued by Judge Roberson on Oct. 27. Moreover, the attorneys said, “Hamdan would be incarcerated potentially for additional time” if the case were stayed. The government cannot show it will suffer any hardship if the case goes forward, Hamdan’s opposition argued. They also accused the Justice Department of engaging in “dilatory conduct” in waiting to file their latest plea shortly before the government brief was due.

(All detainees at Guantanamo Bay have their detention reviewed by the military’s Combat Status Review Tribunal. That procedure was set up in the wake of the Supreme Court’s decisions in 2004, in Rasul v. Bush and Hamdi v. Rumsfeld, giving detainees some right to challenge their detention. A new, largely critical study of the performance of these tribunals can be found here It is by an attorney for two of the detainees, Seton Hall professor Mark Denbeaux, and by attorney Joshua Denbeaux, with assistance from Seton Hall law students.)

No oral arguments are scheduled and no non-capital orders or opinions are expected today.

The following argument recap was written by David Moskowitz of the Stanford Supreme Court Litigation Clinic. His preview of this argument can be found here.

After Monday’s argument in Bell Atlantic Corp. v. Twombly (No. 05-1126), it remained unclear how the Court will decide this important antitrust case. The question presented was whether a complaint states a claim under Section 1 of the Sherman Act if it alleges that the defendants engaged in parallel conduct and adds a bald assertion that the defendants were participants in a “conspiracy,” without any allegations that, if later proved true, would establish the existence of a conspiracy under the applicable legal standard.

Throughout argument, the Justices were searching for a standard that would require plaintiffs to plead more than simple parallel conduct to survive a motion to dismiss for failure to state a claim under Section 1, but would at the same time not require them to plead specific facts of the conspiracy that they are unlikely to have without discovery. The difficulty in finding such a standard was evidenced by petitioners’ original agreement to a question from Justice Stevens that pleading an oral agreement not to compete (as opposed to just an agreement) was enough to state a claim. At the urging of Justice Scalia, however, petitioners later withdrew that response.

Read the rest of this entry »

Yesterday, several members of the New York office of Akin Gump, led by Andrew Rossman, along with Carter Philips of Sidley Austin, filed this cert. petition in New York State Board of Elections v. Lopez Torres.

In an unrelated case, Tom Goldstein is counsel of record on this newly-filed Reply Brief in the case of Gilmore v. Gonzales (No. 06-211; petition here, brief in opposition here). On the brief with him are Thomas Burke and Rochelle Wilcox of Davis Wright Tremaine, and James P. Harrison, an attorney in Sacramento. The case will be considered at the Justices’ January 5 Conference.

The following argument recap was written by Rae Woods of the Stanford Supreme Court Litigation Clinic. Her preview of this case is here.

On Monday, the Supreme Court heard argument in Ledbetter v. Goodyear Tire and Rubber Co. (No. 05-1074). The question presented in Ledbetter is whether and under what circumstances a plaintiff may bring an action under Title VII of the Civil Rights Act of 1964 alleging illegal pay discrimination when the disparate pay is received during the statutory limitations period, but is the result of intentionally discriminatory pay decisions that occurred outside the limitations period. Petitioner Lilly M. Ledbetter contends that the statutory time period for bringing a claim begins anew each time the employee receives a paycheck based on an prior discriminatory decision, while respondent Goodyear Tire and Rubber Company argues that the statutory time period ends 180 days after the original intentionally discriminatory pay decision is made.

Kevin Russell of Howe & Russell argued on behalf of petitioner. Justices Kennedy and Scalia began by asking Mr. Russell why pay decisions should be treated differently than promotion decisions. Justice Scalia viewed the underlying message for both decisions to be the same: “you’re not going to be moved up to a higher pay level.” Mr. Russell responded that promotions are distinguishable because an employee knows immediately that someone was chosen over her and can determine whether sex discrimination played a role in the decision, while it is difficult for an employee to know how her pay compares to that of her colleagues. Justice Ginsburg, who strongly supported petitioner during the argument, also added, “you really don’t have an effective [disparate pay] claim unless it builds up to the point where there is a noticeable disparity.”

Justice Breyer revealed his apparent support for petitioner early through questions intended to clarify that Ledbetter’s back-pay damages would still be limited by the statute to two years. As he put it, “it isn’t going to open up tremendous liability for fifteen or twenty years” of wrongful acts.

Read the rest of this entry »

The Court has just posted the transcript in Mass. v. EPA here.

UPDATE: Watters v. Wachovia can now be found here.

The Supreme Court’s first public discussion of global warming was, in large part, an inquiry into the opportunity — or lack of it — to bring a lawsuit to try to force the government to promptly address the problem (the “standing” issue). And, it seemed clear that the deciding vote on that question probably lies with the Court’s key centrist Justice, Anthony M. Kennedy. (The transcript of the hearing can be found here.)

In the argument in Massachusetts, et al., v. Environmental Protection Agency, et al. (05-1120), Kennedy asked only a few questions, and made only a few comments, but in the process left the impression that he is strongly tempted to allow states, cities and environmental groups to complain in court about the government’s response to the globally menacing problem of climate change.

It was not at all clear, however, how he — or the Court — would decide such a challenge in the end. There might be a majority, though, for returning the issue to the D.C. Circuit Court for another look at EPA’s rationale for refusing to regulate any pollutants that may contribute to climate change.

Four Justices — Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens — said enough to suggest that they would favor “standing” to challenge EPA. Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Antonin Scalia revealed themselves to be unpersuaded that those who are complaining have shown either that they face “imminent” injury from EPA’s decision, or that EPA could do anything about global warming even if it did act. Justice Clarence Thomas might be expected to share their reaction, although he said nothing. Thus, a 4-4 vote among those eight would turn over the conclusion, at least on “standing,” to Kennedy.

In assessing Kennedy’s role on Wednesday, it may be helpful to go back to a separate opinion he wrote in 1992, in one of the Court’s most important test cases on who has “standing” to bring a lawsuit in the federal courts. That was the case of Lujan v. Defenders of Wildlife. While the Court, in an opinion by Justice Antonin Scalia, sought to put tight limits on “standing,” Kennedy’s concurrence was more generous about showing a linkage between government action and private harm, and about opening the courts for more sweeping challenges to public policy.

In the Massachusetts case, Kennedy suggested that the Court could not bypass the larger question of whether global warming is a problem, in order to assess who might be harmed by it, “because there’s no injury if there’s not global warming.” And he at least implied that the risk from climate change was great enough that perhaps it should take less evidence to show that a federal agency should act to deal with the risk — and thus redress the harm from global warming. He also raised the possibility that states might have some special right to sue, over the prospect of having large acreages of their coastal land submerged by rising seas.

Read the rest of this entry »

Updated 3:20 PM

Previews and editorials about today’s argument in Mass. v. EPA: Nina Totenberg has a story at NPR here. Felicity Barringer has a preview in the New York Times here. USA Today’s editorial page supports the view of the petitioning states here; Johnathan Adler has the opposing view in an op-ed in the same paper here. At the Volokh conspiracy, Adler also highlights a panel discussion of the case at Georgetown today at 12:15 eastern (it will be televised on C-SPAN). UPDATE 3:20 PM: David Rivkin and Lee Casey, Jr. also had this op-ed in today’s Wall Street Journal about the case.

KSR recaps: The L.A. Times has one here, Tony Mauro of the Legal Times has his take here, and Linda Greenhouse of the New York Times has her thoughts here.

At How Appealing, Howard Bashman links to several Weyerhaeuser recaps here.

The New York Times editorial page discusses the Supreme Court’s denial of its application for stay here.

At Slate, Dahlia Lithwick has a column about the Supreme Court’s policy of occasionally releasing same-day audio here.

Finally, Jack Balkin of Balkinization has a lengthy blog post about the right to abortion as he sees it outlined in Roe and Casey here.

Beginning at 10 AM eastern, the Court will hear one hour of oral argument in Massachusetts v. EPA (preview here) followed by one hour of argument in Watters v. Wachovia Bank (preview here). Transcripts of both arguments should be available sometime this afternoon.

No opinions are expected today from the Court.

The following argument preview was written by Jennifer Liu of the Stanford Supreme Court Litigation Clinic.

On Wednesday, November 29, the Court will hear argument in Watters v. Wachovia Bank (No. 05-1342). Wachovia Bank presents two questions for the Court’s review, both involving 12 C.F.R. § 7.4006, an interpretive regulation promulgated by the Comptroller of the Currency that extends federal preemption of state law to state-chartered nonbank operating subsidiaries of national banks. The first question, one of administrative law, asks whether the regulation is entitled to Chevron deference. The second question asks whether the regulation, in treating the operating subsidiary as the equivalent of a national bank, intrudes on state sovereignty in violation of the Tenth Amendment.

Michigan Assistant Attorney General E. John Blanchard will argue the case on behalf of petitioner. Robert Long of Covington & Burling will argue on behalf of respondents. He will share his time with Sri Srinivasan, Assistant to the Solicitor General, who will argue on behalf of the United States as an amicus in support of respondents. The briefs are available here.

Read the rest of this entry »

Mark Anderson of the WSJ reports about today’s argument in KSR v. Teleflex here at the Wall Street Journal. Earlier, Jess Bravin of the same publication previewed the case here and Peter Lattman of the WSJ’s Law Blog previewed it here. Tony Mauro also previewed KSR here at Law.com.

Pete Yost of the AP recaps today’s argument in Weyerhaeuser here.

Mark Sherman of the AP recapped yesterday’s argument in Ledbetter v. Goodyear here, and Linda Greenhouse of the New York Times has her article about that argument here. Meanwhile, in today’s Wall Street Journal, Jess Bravin recapped yesterday’s other argument, Bell Atlantic v. Twombly, here.

Finally, looking ahead to tomorrow’s argument in Massachusetts v. EPA, the New York Times ran this editorial sharing its views on the case. Jonathan Adler at the Volokh Conspiracy reacts to the Times here.