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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

The transcripts for today’s arguments in both Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co. and KSR v. Teleflex have just been posted here.

If the world of invention is made up more of practical tinkerers than of dreamers with iconoclastic imaginations, then the Supreme Court may be on the way to creating patent law to fit that world better. And that might well be a world in which fewer patents are issued because there are fewer really new machines and processes that would be found worthy of a legal monopoly. Those seemed to be some of the implications as the Supreme Court on Tuesday agonized in public over why the legal word “obvious” should not be given an obvious meaning, in the case of KSR International v. Teleflex, Inc. (04-1350).

Although there is much that is arcane in patent law, Justice Stephen G. Breyer made it all seem very homely with a single hypothetical that not only set the tone for the entire one-hour hearing, but may have spelled doom for a legal regime that allows more patents to be issued for arfguably less innovation. Breyer wondered why a patent should be granted if a garage door had an elecronic opener at ground level that was eaten up by raccoons, leading a tinkerer to think simply of raising the device to a higher point, out of reach. Why isn’t that an obvious solution, undeserving of patent exclusivity, Breyer wondered.

What Breyer and his colleagues were driving at was the very fundamental issue of what amounts to true invention. The law bars a patent if an innovation is merely an “obvious” outgrowth of what inventors had thought of before. The aim, of course, is to reserve patents for real flashes of genius.

But, for a couple of decades, the Federal Circuit Court — the specialized appeals court for the patent system — has made it harder to challenge a patent on grounds that it was “obvious.” It has declined to find obviousness unless there is proof that those skilled in the field would have taken the prior art to the new level because of some “teaching, suggestion, or motivation” to do so. Absent those kinds of driving impulses, that Court has indicated, the new level was not obvious and therefore qualified as patentable.

Throughout Tuesday’s hearing, the Justices had difficulty understanding the Federal Circuit’s formulation — especially the part about “motivation.” Justice Antonin Scalia described it variously as “gobbledygook,” “meaningless,” “irrational,” or “imponderable.” Chief Justice John G. Roberts, Jr., mused that it was simply “jargon that lawyers can bandy back and forth,” making more business for the patent bar. And several members of the Court seemed skeptical about the phrasing because, since the Court granted review in this case, the Federal Circuit has undertaken either to modify the phrasing, or at least to spell it out further.

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The specter of the planet rapidly and disastrously heating up, and the question of what to do about it, hang over the argument in Massachusetts, et al., v. Environmental Protection Agency, et al. (05-1120) at 10 a.m. Wednesday in the Supreme Court. It would be no surprise, however, if the Justices were to decide the case on a less dramatic basis. Before the Court ever reached the “global warming” problem, it could be stopped by a maze of procedural issues, as well as by a bold challenge to the judiciary’s power to take on the problem.

At issue in the case is the decision by the EPA, the government’s regulator of pollution and other threats to human life and the environment, that it not only lacks the authority to regulate a major source of “global warming,” but also that it would not do so even if it could. A panel of the D.C. Circuit Court split three ways in deciding the case, giving the Justices three options on how to approach it. One judge assumed that EPA had the authority, but was justified in declining to use it; another found that the challengers had no right to make the challenge, and the third concluded that the challenge was a proper one that should succeed. The end result was that EPA won, even if untidily.

Arguing on Wednesday for the 12 states, three cities, and assorted other entities challenging EPA will be James R. Milkey of Boston, an assistant state attorney general for Massachusetts. Representing the EPA, along with four of its allies in the case, will be Deputy U.S. Solicitor General Gregory G. Garre.

Because there may be no more challenging environmental and energy issue now than global climate change, this case has been viewed widely as a breakthrough opportunity to force a significant and immediate response by a federal government that has seemed to critics to be unpersuaded that global warming is a genuine threat. But, as briefing in the case was completed, it also became a potentially historic case on the use of judicial power to compel the political branches to deal with a phenomenon that affects the entire globe.

At its core, the case is about the Clean Air Act: what the language of the Act means, and what Congress intended by that language. Equally fundamental is the question of who can assume the role of enforcement of the Act’s mandate to protect the nation’s air quality against harmful pollutants.

The potential stakes can be seen in a couple of statements in opposing amicus briefs filed in the case.

A group of environmental and conservation groups opened their brief with this alarming assertion: “Global warming is causing sea levels to rise, glaciers and mountain snowpacks to shrink, summer and fall river flows to decline, wildfires to increase, hurricanes to intensify, summer heat waves and droughts to become more severe and prolonged, and widespread adverse impacts to agricultural productivity, recreational and commercial fishing, forestry, and human health and safety, particularly among the elderly and infirm.”

But a coalition formed to litigate the carbon dioxide aspect of the controversy, the CO-2 Litigation Group, argued that Massachusetts and the other challengers “claim that a few isolated words in the Clean Air Act unambiguously authorize a massive new type of regulatory program never even mentioned by Congress.” And a group of conservative law professors, led by Robert H. Bork, argued in their brief that the case was “part of a multi-faceted effort to draw the federal courts into one of the most important and controversial foreign policy and political battles of our time….Petitioners seek to remake U.S. climate change policy through litigation in the federal courts.”

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Beginning at 10 AM eastern, the Court will hear one hour of oral argument in Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co. (preview here) followed by one hour of argument in KSR v. Teleflex (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 Brian Love of the Stanford Supreme Court Litigation Clinic.

On Tuesday, November 28, the Court will hear argument in KSR International Co. v. Teleflex, Inc. (No. 04-1350). The question presented in this case is 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. will argue for petitioner KSR International, and Tom Hungar, Deputy Solicitor General, will argue on behalf of the United States as an amicus in support of petitioner. Thomas C. Goldstein of Akin, Gump, Strauss, Hauer, & Feld, L.L.P. will argue on behalf of respondents Teleflex. The complete briefs are available via this post.

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Workplace Prof Blog has some early thoughts on today’s argument in Ledbetter here.

That post mentions an article at FindLaw by Joanna Grossman and Deborah Brake about the same case which can be found here (an earlier installment of their column that is also about Ledbetter can be found here).

At the Election Law Blog, Rick Hasen highlights two election law-related cert. petitions here.

Joseph Brunner of the University of Cincinnati will have this comment in a forthcoming issue of that school’s law review about the voluntary school integration cases that will be argued next week.

Howard Bashman of How Appealing links to three news articles about today’s orders here.

Finally, Todd Zywicki, in this post on the Volokh Conspiracy, mentions an AEI program about Watters v. Wachovia, which will be argued on Wednesday, 11/29. The program will likely be on C-SPAN tomorrow at 2 PM eastern.

Today’s transcripts in both Ledbetter v. Goodyear and Bell Atlantic v. Twombly are available here.

The following argument preview was written by Fred Smith of the Stanford Supreme Court Litigation Clinic.

In Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., the Supreme Court outlined the elements a plaintiff must prove when alleging that the defendant engaged in predatory selling practices, in violation of Section 2 of the Sherman Antitrust Act. Specifically, the plaintiff must show that the defendant (1) sold its product at prices too low to cover its expenses; and (2) had a dangerous probability of eventually recouping its losses. Yet, the Brooke Group Court did not state whether this test applies in the context of predatory buying (i.e., bidding), when a plaintiff alleges that a defendant has paid too much for raw materials (“inputs”).

On Tuesday, the Supreme Court will hear arguments in Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., Inc. The question in this case is whether the Brooke Group standard applies when a plaintiff alleges that a defendant has engaged in predatory bidding. Or, put another way, may the plaintiff prove an anti-competitive scheme by showing that the defendant paid more for inputs than “necessary,” such that competitors cannot purchase inputs at a fair price.

Andrew Pincus of Mayer, Brown, Rowe & Maw will argue on behalf of petitioner Weyerhaeuser. He will divide his time with Assistant to the Solicitor General Kannon K. Shanmugam, who will argue on behalf of the United States as amicus curiae in support of petitioner. Michael Haglund of Portland’s Haglund, Kelley, Horngren, Jones & Wilde will argue on behalf of respondent Ross-Simmons Hardwood Lumber Co. The parties’ briefs are available here. The United States’s amicus brief is available here.

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UPDATE: Tuesday Nov. 28, P.M.:
Senator Fumo’s redacted petition was filed as In re Grand Jury (06-727). The petition names U.S. District Judge Legrome D. Davis as the judge the senator sought to remove as supervising judge of the federal grand jury. Judge Davis denied the recusal motion, and the Third Circuit Court affirmed that denial.

Pennsylvania state senator’s running feud with the judge in charge of a federal grand jury probe of the senator reached the Supreme Court Monday, as the Justices allowed the filing of a partially sealed appeal. In a brief order (docket 06M48), the Court permitted Sen. Vincent J. Fumo, a Democrat, to file a public and a sealed version of his appeal.

The motion to file under seal said that the senator had unsuccessfully sought the recusal of the supervising judge of a grand jury sitting in Philadelphia. His challenge to the unnamed judge, the motion said, “demonstrated a clear and indisputable record of a 15-year-long history of a bitter, personal and very public conflict between Senator Fumo and the Supervising Judge.”

That judge, the motion added, refused on July 13 to recuse, and the Third Circuit Court on Aug. 24 denied a writ of mandamus to force the judge off the case.

Although the motion did not disclose what the jury is investigating, local news accounts have said that Fumo was the target of an inquiry into solicitation of contributions to a South Philadelphia charity, the Citizens’ Alliance. Local stories have suggested that Fumo believes he and his aides believe there is a sustained campaign to “bring him down.” In June, two of the senator’s aides were indicted on charges of deleting evidence during the investigation.

Under the Supreme Court’s order Monday, Fumo’s lawyers will be allowed to file a public copy of their petition and, under seal, a redacted copy with full details of the controversy. The public petition is not yet available.

The Supreme Court will release on a same-day basis the audiotapes of the oral arguments next Monday, Dec. 4, in the two cases on the use of race in assignment of students to public schools. The Court’s press release can be found here. The cases test whether the Supreme Court’s ruling allowing some use of race in college admissions decisions apply to the K-12 public schools.

The Court will be hearing Parents Involved v. Seattle School District (05-908) at 10 a.m. Monday, and a case from Louisville, Ky., Meredith v. Jefferson County Board of Education (05-915) at 11 a.m. The audiotapes of each will be made available for public rebroadcast shortly after the conclusion of each of the arguments, the Court said.

This is the second time this Term that the Court has promptly released the audiotapes of arguments. It did so earlier in two abortion cases.

As is now the regular practice, the Court will be releasing on its website the written transcripts of all oral arguments, within about two hours after the conclusion of each argument.