Chief Justice John G. Roberts, Jr., continuing the efforts of his two predecessors to persuade the public and Congress that federal judges need better pay, made that campaign the single focus of his annual end-of-year report Monday morning. “I am going to discuss only one issue — in an effort to increase even more the chances that people will take notice,” Roberts said in calling for “a substantial salary increase” The usual laundry list of statistics about the federal courts’ work showed up in an appendix. The full report can be found here.

Roberts made both constitutional and statistical arguments to bolster his lament over “the failure to raise judiical pay.”

The issue, he said, “has now reached the level of a constitutional crisis.” He argued that “inadequate compensation directly threatens the viability of life tenure, and if tenure in office is made uncertain, the strength and independence judges need to uphold the rule of law — even when it is unpopular to do so — will be seriously eroded.” After decades of “congressional inaction,” he said, many judges are leaving the bench to return to private law practice — 17 in the last two years, 38 in the past six. There will also be a decline in the quality of persons willing to accept a lifetime appointment, the Chief Justice said. The judiciary, he said, threatens to be dominated by judges who are so wealthy they can afford to be indifferent to the salary level, or people for whim a judicial salary is a pay raise.

Statistically, the Chief Justice cited three comparisons. First, he said, in 1969, federal district judges made 21 percent more than the dean at the Harvard Law School and 43 percent more than its senior law professors. Today, the judges are paid about half what the deans and senior professor at top schools are paid, he said. (”We do not even talk about comparisons with the practicing bar anymore,” he said sadly, given that first-year law graduates in some cities will make more in the first year than experienced federal judges.

Second, the Chief Justice siad the average U.S. workers’ wages have risen 17.8 percent in real terms (adjusted for inflation) since 1969, while federal judicial pay has declined 23.9 percent.

Third, Roberts noted a significant chance in where federal judges come from — especially trial judges. In the 1950s, roughly 65 percent came from the practicing bar, with 35 percent from the public sector. Today, roughly 60 percent come from the public sector and less than 40 percent from private practice. That, he said, “changes the nature of the federal judiciary.”

The appendix to Roberts’ report contains some interesting details about the impact on the lower federal courts of the Court’s major decisions on criminal sentencing, U.S. v. Booker and Blakely v. Washington.

(NOTE: The Supreme Court, in issuing the Chief Justice’s year-end report, had specified that the report was not to be released publicly until 12:01 a.m. Tuesday. The Washington Post’s website, however, broke that embargo well over an hour before the release time, and this has been picked up on the Internet. This blog felt that it could no longer observe the release time, and thus this report has appeared about 20 minutes early.)

Further to my previous posts on the state of the Court’s docket, there have been a couple of developments.

First, the Court issued the February argument calendar. The calendar includes three days with only a single argument. Two cases that were initially subject to highly expedited briefing schedules – presumably so that they could be argued in that sitting – were not included in the calendar (Nos. 06-219, 06-278). The Court then granted extensions in those cases for the parties to file their merits briefs.

Second, the Court has not yet issued the March argument calendar. Thus far, there are seven granted cases that are available to be argued in that sitting: Nos. 05-1157, 06-219, 06-278, 06-313, 06-480, 06-5247, and 06-5306. So, the Court could have issued a March argument calendar that included basically once case per day.

Here is what I infer from those developments.

First, in mid-December, the Justices changed course on their approach to the docket, having realized relatively late how significant the shortfall in cases would be – i.e., that merely expediting cases granted in January and February would not permit them to fill the argument calendars for March and April. (That scenario is played out in this post.) That is the most plausible explanation for the Court’s decision not to set all the highly expedited cases for argument in February but rather to roll them over into the March calendar. Otherwise, at this point, the Court would not even have one case per day available for the March sitting.

Second, the Court has not yet settled on the March calendar. Instead, it appears that the Court is going to consider setting some cases granted on the next Conference (January 5, 2007) for argument in the March sitting. That is the most plausible explanation for the fact that it has not yet released the March argument calendar. Intuitively, for reasons of public perception, the Court will want to minimize the number of argument days in which it hears argument in only one case.

The Court’s thinking on that question is likely to be heavily influenced by the number of cases that the January conferences will produce for the April sitting. If it seems likely that there will be roughly twelve cases granted in January (i.e., roughly enough needed to fill April with two arguments per day), and if it also seems that one or more of the cases granted on January 5 could be greatly expedited, then the Court will probably move that case or cases up. The most likely candidate would be a case in which the Solicitor General represents the petitioner, because the Court has greater confidence in the government’s ability to produce excellent briefs on an exceedingly expedited basis. The only petition that fits that description is No. 06-549, EPA v. Defenders of Wildlife.

For what it is worth, my current sense of the January conferences is that — unlike the November conferences — they have a large number of plausible cert. candidates. So there is some prospect that one or more cases granted on January 5 will be argued in March and will be subject to a briefing schedule in which the petitioner’s merits brief is due approximately on February 2.

The Supreme Court building will be closed on Tuesday, as part of the presidentially ordered National Day of Mourning for former President Gerald R. Ford, Chief Justice John G. Roberts, Jr., announced Friday. The announcement of the closing can be found here.

Under the Court’s Rule 1.3, the Clerk’s office is open for filings from 9 a.m. to 5 p.m. unless the building is ordered closed by the Chief Justice. Thus, the office will not be open to accept papers for filing on Tuesday.

The Court’s Rule 30.1 provides that, on a day on which the Court building is officially closed by order, that day will not count if it is the final day in a required filing period. Thus, if Tuesday is the final day for a specific filing, the final day will go over to the end of Wednesday, when the Court building will again be open.

This post is part 3 in our discussion with Professor David Stras of the University of Minnesota Law School (part 1 is here, part 2 here). Professor Stras has written extensively on issues surrounding the Supreme Court; in this entry, we discuss his paper advocating a revival of circuit riding for Supreme Court Justices, “Why Supreme Court Justices Should Ride Circuit Again,” which can be found here.

In what circumstances could a proposal to re-institute circuit-riding be enacted? How could your proposed bill gain political legs, especially considering that it’s unlikely to be supported by the Justices?

The practice of circuit riding could be reinstituted through the ordinary legislative process, and requires no constitutional amendment. In the thinly-reasoned opinion of Stuart v. Laird, 5 U.S. 299 (1802), the Court held that a far more onerous form of circuit riding, which required the Justices to perform circuit duties for six months or more per year, passed constitutional muster because of the “practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction.” As I state in the paper, the Court was wrong on its sparse reasoning, but ultimately reached the correct holding. A far less onerous form of circuit riding consisting of just one week of required circuit duties per year would surely pass constitutional scrutiny under the holding of Stuart and the Court’s more recent Appointments Clause jurisprudence.

Read the rest of this entry »

The D.C. Circuit Court on Friday barred a group of retired federal judges from filing a friend-of-court brief supporting war-on-terrorism detainees’ challenge to the new Military Commissions Act of 2006. In a brief order, two of the three judges on the Circuit panel indicated that they thought the ex-judges may have skirted the code of judicial conduct in filing the brief using their former title as judges. The third member of the panel would have accepted the brief. The order and dissenting opinion can be found at this link.

This was the only ruling by the Circuit Court Friday morning in two packets of detainee cases; its release may be a hint that the cases are to be decided soon. The panel is considering a government plea to dismiss the cases, based on its argument that Congress has taken away the power of every federal court to hear habeas challenges by any foreign nationals now being held by the military or in U.S. custody anywhere in the world. If the Court finds that it retains jurisdiction, as the detainees argue, it presumably will then rule on the merits of their challenge to prolonged detention. The lead case in the proceedings is Boumediene v. Bush (Circuit docket 05-5062).

The former judges’ brief was filed on Nov. 1 by seven retired federal judges, arguing that the new Military Commissions Act is unconstitutional because it would allow the military to use evidence obtained by torture or “inhumane treatment” in detention proceedings, and the courts would not be able to review the legality of such evidence. An earlier post discussing the brief, with a link to the brief itself, can be found here. The seven are former Circuit Judges Shirley M. Hufstedler (Ninth Circuit), Nathaniel R. Jones (Sixth Circuit), Timothy K. Lewis (Third Circuit), Abner Mikva (D.C. Circuit) and Patricia M. Wald (D.C. Circuit) and former federal District Judges George N. Leighton (Illinois) and Frank J. McGarr (Illinois).

Circuit Judges David B. Sentelle and A. Raymond Randolph signed the order denying an unopposed motion for leave to file the ex-judges’ brief. It cited an advisory opinion (No. 72) of the Committee on Codes of Conduct of the U.S. Judicial Conference stating that “Judges should insure that the title ‘judge’ is not used in the courtroom or in papers involved in litigation before them to designate a former judge, unless the designation is necessary to describe accurately a person’s status at a time pertinent to the lawsuit.” Thus, the majority ordered the Court’s clerk to return the lodged brief to the former judges.

Circuit Judge Judith W. Rogers dissented, in a three-page opinion. She argued that the former judges’ brief satisfied federal rules of appellate procedure dealing with unopposed motions to file amicus briefs. She concluded that the ex-judges had met the requirement of having an interest in the case by saying that they were retired federal judges who have “dedicated their professional careers to our judicial system,” and that the life-long detention of individuals based on credible evidence that they were tortured “challenges the integrity” of the judicial system.

Rogers noted that former judges can be of aid to the courts, and cited the filings of such amici in the Supreme Court’s decisions in 2005 in U.S. v. Booker and in 2006 in Hamdan v. Rumsfeld.

The dissenting judge also cited an opinion by Supreme Court Justice Samuel A. Alito, Jr., when he was a member of the Third Circuit Court in 2002, saying that a restrictive policy on granting leave to file briefs may result in “disparate treatment” and can “convey an unfortunate message about the openness of the court.”

The Supreme Court is in recess until its Conference on Friday, Jan. 5.

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

For more than a quarter of a century, the Supreme Court and the courts that review Texas death penalty cases have been carrying on a not-always-cordial exchange over the jury’s role in weighing evidence that defense lawyers offer to try to head off capital punishment in that state. After four prior decisions on the subject, the Court agreed in October to step back into the controversy to try once more to resolve it. The Court has scheduled back-to-back hearings on the new cases for Jan. 17. Now, a series of developments in the Fifth Circuit Court is complicating this new review. (Thanks to Howard Bashman of How Appealing blog for alerts to these developments.)

Lawyers for two Texas death row inmates have asked the Supreme Court not to go forward with review of their appeals, but instead to return them to the Fifth Circuit to weigh a separate, recently decided case that was a major victory for such inmates. The state of Texas, however, is resisting that request, and has told the Court it will be filing its own appeal to challenge the latest Circuit Court ruling. The Justices are due to consider at Conference on Jan. 5 what to do about the presently pending cases, according to the electronic docket. The cases are Brewer v. Quarterman (05-11287) and Abdul-Kabir (formerly Ted Calvin Cole) v. Quarterman (05-11284). These developments apparently have not yet affected a third case raising similar issues, but reaching the Court from a Texas state court, not the Fifth Circuit; that case, Smith v. Texas (05-11304), is also scheduled to be heard Jan. 17.

In a Term when the Court has granted fewer cases for review, the potential disposal of the two Texas cases could make the docket even lighter.

In all three pending cases, defense lawyers are contending that the lower courts have not followed Supreme Court precedent on procedures that are necessary to make sure that jurors in Texas give “full effect” to mitigating factors in deciding for or against death sentences — under a regime that existed in the state until 1991. The appeals argue that the Supreme Court has left no doubt that trial judges must go to extra lengths to assure that such favorable evidence as mental impairment or youthful immaturity gets considered by the jury.

But, in moving to vacate the Brewer and Abdul-Kabir cases, the attorney for both, Robert C. Owen of the Capital Punishment Center at the University of Texas Law School, has told the Court of the Fifth Circuit’s 9-7 en banc ruling on Dec. 11 in the case of Nelson v. Quarterman (Fifth Circuit docket 02-11096). Owen argued in his motions to vacate that “the en banc court in Nelson has decisively changed course, rejecting the prior, stunted Fifth Circuit reading [of the key Supreme Court precedent] in favor of this Court’s own approach” in more recent precedents. The Circuit Court, the motion added, has repudiated the position that both Brewer and Abdu-Kabir have been challenging. “The need for this Court’s intervention no longer exists,” Owen contended. The tension between the Supreme Court and the Fifth Circuit, he said, “has been resolved.” (Identical arguments were made in the two cases.)

The state, however, argued that the Nelson decision is flawed, failing to take account of the Supreme Court’s more recent ruling on the controversy. And, the state contended, the Nelson ruling is limited to its facts, and involves a different kind of mitigating evidence. Moreover, the Nelson ruling itself is going to be challenged in a new petition to the Court by the state, according to its lawyer, Edward L. Marshall, deputy chief of the state’s Postconviction Litigation Division in the state attorney general’s office. Nothing would be gained by sending the Brewer and Abdul-Kabir cases back to the Fifth Circuit, Marshall said.

Meanwhile, a sideline controversy has developed over whether Brewer’s appeal to the Supreme Court was procedurally flawed, because the Fifth Circuit may not have taken final action on it before the appeal was filed. Owen vigorously contended, in the new Brewer petition, that the case was properly filed in the Supreme Court. The Fifth Circuit, in an order on Dec. 27 that produced a sharp dissent, sought to make the Brewer case final so as to avoid interfering with Supreme Court review. The dissenting judge contended that the Circuit Court had no authority to act, since the case is now before the Supreme Court.

The state followed up on the Circuit Court’s Dec. 27 order with a letter notifying the Supreme Court of it, and arguing that it showed there was no conflict between the earlier panel ruling in Brewer and the new en banc decision in Nelson

It can help to sort all this out to examine all the papers filed in the Supreme Court this month on the matter. (How Appealing blog has provided links to the Fifth Circuit Court’s Dec. 27 order and to the Nelson ruling.) Here are links to the new Supreme Court filings::

The Brewer motion to vacate is here. The state’s response is here. And the Brewer reply is here.

The Abdul-Kabir motion to vacate is here. The state’s response is here. And the Abdul-Kabir reply is here.

The state’s letter to the Court regarding both cases is here

The Supreme Court’s response to all of this may be known on Friday, Jan. 5, or the following Monday, Jan. 8..

The Supreme Court is in recess until its Conference on Friday, Jan. 5.

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

Gerald R. Ford’s legacy, now being reassessed in the wake of his death Tuesday night, will be measured many ways. Of course, much is being made of his decision as President to pardon former President Richard M. Nixon for the crimes of the Watergate scandal; historians may well mark that as his most consequential act. But the time has not yet arrived for historians to make their judgment about another impact of his public service — his influence on the Supreme Court. That is history that is still being made.

His one appointee to the Supreme Court, Justice John Paul Stevens, this month completed his 31st year on the Court and remains a dominant figure — perhaps the most important voice there on the grave constitutional issues still unfolding on presidential powers in wartime. At age 86, Stevens shows no signs of tiring of the Court’s work, or of thinking seriously about retirement. (Stevens did not mention Ford’s role in his appointment in a statement on Wednesday honoring Ford; that statement can be found here.) To Ford’s credit, the selection of Stevens for the Court was widely regarded at the time as a choice made primarily upon merit, rather than political advantage — an example that subsequent presidents have not routinely followed.

Ford’s reputation for kindly, gracious gestures — a model that all presidents should want to emulate — can be seen in his warm letter to Justice William O Douglas when Douglas retired from the Court in 1975 — creating the vacancy that Stevens would fill. Ford’s letter to Douglas can be found here. The letter is all the more remarkable in that it was written just five years after Ford, as the House Republican leader, had led an unsuccessful and arguably misguided effort in Congress to impeach Douglas for ties to a foundation that was funded in part by money from gambling casinos.

Ford’s effort to remove Douglas from the Court was widely interpreted as a blatant political maneuver to retaliate for the Senate’s rejection of two Richard Nixon nominees to the Supreme Court. As a result, that episode is not considered one of Ford’s high moments of public service; it has added a modest measure of instability to the concept of life tenure on the Court, when a Justice becomes a political target.

But Ford also made lasting history in that campaign: he gave the nation, and history, an open-ended definition of what constitutes misbehavior in federal office that could justify impeachment. In a speech on the House floor on April 15, 1970, Ford asked the question: “What, then, is an impeachable offense?” His response: “The only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body [the Senate] considers to be sufficiently serious to require removal of the accused from office.” (The text of that speech can be found at the website of the Ford Presidential Library, here, under Selected Documents/Pre-Presidential Speeches.)

Depending upon how a particular majority in a particular House of Representatives would use that definition, it may well be an invitation to mischief. With no objective standards to guide political judgment, the impeachment power could, in a given circumstance, turn out to be reckless. It has become, perhaps as a direct result of Ford’s formulation, an inexpensive political gesture for members of Congress to call for the impeachment of Supreme Court Justices whose decisions do not meet with political favor. That, too, is part of the Ford legacy.

********
Joseph Thai, an associate professor at the University of Oklahoma College of Law, writes the following:

I thought you (and perhaps your readers) might be interested in a letter President Ford wrote last year to Dean Treanor of Fordham law school, which was presented to Justice Stevens by the Dean and former law clerks at the conference on Stevens’ jurisprudence celebrating his 30th year on the Court. Notably, in the letter, President Ford writes: “I am prepared to allow history’s judgment of my term in office to rest (if necessary, exclusively) on my nomination 30 years ago of Justice John Paul Stevens to the U.S. Supreme Court.”

The letter can be found at http://law.fordham.edu/newsfiles/news-ford.pdf

And more background on the letter can be found at http://law.fordham.edu/ihtml/news-2details.ihtml?id=612&nid=199

******

Further regarding the Ford letter, see this story by Jess Bravin of The Wall Street Journal:

http://blogs.wsj.com/washwire/2006/12/27/ford-and-the-court/

This post is part 2 in our discussion with Professor David Stras of the University of Minnesota Law School (part 1 is here). Professor Stras has written extensively on issues surrounding the Supreme Court; in this entry, we discuss his paper about life tenure, “An Empirical Analysis of Life Tenure: A Response to Professors Calabresi & Lindgren,” which can be found here.

First, I think it would be worthwhile for you to briefly explain a bit about the context of this paper: why is there controversy about whether the average length of the Justices has been going up recently? Can you explain to an audience that may not be overly familiar with statistics why a question that seems so straightforward can be so complex?

In the past three years, a number of academics, commentators, and editorial page writers have proposed various measures to limit the tenure of Supreme Court Justices. The proposals range from limiting the tenure of Justices to a fixed number of years (most commonly eighteen years) to creating a mandatory retirement age for Justices at age seventy or seventy-five. Vital to these proposals is an empirical claim that members of the Court are staying far too long in recent years and that the practical meaning of life tenure has changed since the Founding. Lengthy tenures, many academics claim, have resulted in less democratic accountability for the Court due to the relative rarity of appointments in recent years. The most comprehensive empirical study was undertaken by Professors Steve Calabresi and Jim Lindgren of Northwestern University Law School. Using periods of thirty years to graphically display the average tenure of Justices, they found that the increase in tenure between the period of 1971 and 2006 was both “astonishing” and “unprecedented.” Calabresi and Lindgren’s claims have been discussed in newspapers as wide-ranging as the New York Times and the Wall Street Journal, and have been mentioned by scholars of every political persuasion.

The calls for reform of life tenure have largely gained traction because of the eye-popping 26.1 years that Supreme Court Justices have purportedly served since 1971. We demonstrate in the paper that Calabresi & Lindgren’s claims of a sizeable increase in average tenure are largely a result of their methodological assumptions. We do not deny that tenure is increasing, but we dispute the claim that it is rising in a dramatic and unprecedented fashion. Measuring a statistic as straightforward as average tenure is anything but easy. A researcher has to make a number of decisions about how to measure the data. The most important assumption is when to measure the data—at the beginning of a Justice’s Term, at the midpoint of her career, at the time of retirement, or at some point in between? We found that, when that single assumption is changed and tenure is no longer measured on the date of retirement, Calabresi and Lindgren’s claim of a dramatic and unprecedented trend in average tenure falls apart. One reason for that is that a number of long-serving members of the Court, such as Justices Black and Douglas, are moved from the period spanning 1971 to 2006 into an earlier period. Likewise, changing the period lengths from thirty (30) years to fifteen (15) or forty (40) years also undermines the robustness of their claim, which means that their study suffers from a periodization problem. If the trend was robust, as Calabresi and Lindgren claim, then it should survive the simple changes we make in their underlying assumptions.

Read the rest of this entry »

The Supreme Court is in recess until its Conference on Friday, Jan. 5.

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

Yes, the docket is sparser than ever, but this Term and last have already been major Terms for environmental cases, and we might not have seen the end of it yet. My colleague Richard Lazarus writes to note that in the past several weeks the Solicitor General has petitioned in four environmental cases, and acquiesced to certiroari in a fifth case. [UPDATE: Make that two acquiescences — thanks to Jean-Claude Andre for the tip.] [FURTHER UPDATE: Three and counting — the latest is in a case that raises the same CERCLA issue as in Atlantic Research, below.] [REVISION: OK, as it turns out, PG&E is not an acquiescence, although listed as such on the SG’s webstie. See details below.] If the Court were to grant in all or most of these half-dozen cases, a very significant percentage of its docket this Term would involve environmental law.

These are the cases, with links to the SG petitions and acquiescences:

1. No. 06-344, Mineral County, Montana v. Ecology Center, Inc. [acquiescence]

[To be considered in conference next Friday, Jan. 5, 2007]

QUESTION PRESENTED:

Whether the court of appeals failed to apply the proper standard of review under the Administrative Procedure Act in evaluating whether the Forest Service had complied with the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., and the National Forest Management Act of 1976, 16 U.S.C. 1600 et seq.

2. No. 06-466, PG&E Co. v. San Luis Obispo Mothers for Peace [acquiescence — NOT]

[Briefs in opposition filed Dec. 15, 2006]

[UPDATE: This is listed as an acquiescence on the SG’s website. But in fact it’s not, although the SG agrees with petitioner that the court of appeals erred. Here’s what the SG writes:

The court of appeals’ unprecedented holding that NEPA requires analysis of the environmental effects of potential terrorist attacks is wrong, and the court’s refusal to apply the “reasonably close causal relationship” test conflicts with decisions of this Court. The federal respondents did not file their own petition for a writ of certiorari, however, because there is no square circuit conflict and it is unclear at this time how burdensome the court of appeals’ decision will be, given that the Ninth Circuit did not specify how much analysis it expects the agency to undertake on remand. At a minimum, however, the court’s erroneous decision may require NRC to undertake time-consuming procedures and will lead to further litigation, which will risk delaying important licensing decisions. Moreover, the issue will recur in other NRC licensing proceedings subject to review by the Ninth Circuit, and will affect at least some other agencies as well. The federal respondents recommend denying review at this time, recognizing that the issue may warrant this Court’s review in the future if a circuit split develops or the Ninth Circuit imposes burdensome requirements in other cases.

QUESTIONS PRESENTED:

1. Whether the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., requires the Nuclear Re gulatory Commission to consider, as part of its review of a proposed federal action, the environmental impact of a potential terrorist attack.

2. Whether the Commission must consider such an impact even if the risk is not sufficiently quantifiable to be meaningful or to assist agency decision making under NEPA.

3. No. 06-549, EPA v. Defenders of Wildlife

[Reply Brief here, filed Dec. 11, 2006.]

QUESTION PRESENTED:

Whether Section 7(a)(2) of the Endangered Species Act of 1973, 16 U.S.C. 1536(a)(2), which requires each federal agency to insure that its actions do not jeopardize the continued existence of a listed species or modify its critical habitat, overrides statutory mandates or constraints placed on an agency’s discretion by other Acts of Congress.

4. No. 06-562, U.S. v. Atlantic Research Corp.

[Response requested; due Jan. 8, 2007. The same issue is raised in No. 06-726, E.I. DuPont de Nemours & Co. v. U.S. The SG has acquiesced in DuPont, and has suggested that it might be “ripe” for the Court’s consideration before Atlantic Research, in case the Court wishes only to grant only one of the petitions rather than both.]

QUESTION PRESENTED:

Whether a party that is potentially responsible for the cost of cleaning up property contaminated by hazardous substances under the Comprehensive Environ mental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601 et seq., but that does not satisfy the requirements for bringing an action for con tribution under Section 113(f) of CERCLA, 42 U.S.C. 9613(f), may bring an action against another potentially responsible party under Section 107(a), 42 U.S.C. 9607(a).

5. No. 06-736, EPA v. New York

[Briefs in opposition filed Dec. 18, 2006]

QUESTION PRESENTED:

Whether the court of appeals erred in invalidating an EPA rule [respecting the “new source review” program] on the ground that the phrase “any physical change” in the definition of “modification” in Section 111(a)(4) of the Clean Air Act, 42 U.S.C. 7411(a)(4), unambiguously requires EPA to adopt the broadest meaning of the phrase.

6. No. 06-797, U.S. Forest Service v. Earth Island Institute

[One brief in opposition filed Dec. 20, 2006; others due Feb. 9, 2007]

QUESTION PRESENTED:

In this action under the Administrative Procedure Act, respondents challenge two projects adopted by the Forest Service to restore portions of the Eldorado National Forest that were severely damaged by fire. The court of appeals ordered entry of a preliminary injunction barring the Forest Service from proceeding with those projects.

The question presented is whether the court of appeals erred in ordering a preliminary injunction, including by:

a. Relying on declarations filed by respondents in the district court, rather than confining its review to the administrative record, in determining that respondents had shown a likelihood of success on the merits;

b. Holding that respondents could satisfy the “irreparable injury” prong of the test for obtaining a preliminary injunction by showing only a “possibility” of such injury; and

c. Discounting competing interests in the use of Forest lands under multiple use principles, and the Forest Service’s balance of those competing uses, in weighing the balance of harms and the public interest.

The Supreme Court is in recess until its Conference on Friday, Jan. 5.

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

In today’s LA Times, David G. Savage has this article on the federal court decision in the Wisconsin Right to Life v. FEC case, overturning a key segment of the campaign finance law that prohibited issue advertisements paid for by corporations, unions, and special interest groups. The New York Times has this report on the ruling, which sets the stage for the Supreme Court to reconsider the McCain-Feingold Act of 2002 and Carol D. Leonnig has this article in the Washington Post.

Rick Hasen of Election Law Blog has his thoughts on the Wisconsin Right to Life v. FEC decision in this post. Additional reactions can be found here from Bob Bauer at the Campaign Finance Law Guide; in this post from Brad Smith at the Center for Competitive Politics; and in this statement from J. Gerald Hebert, Campaign Legal Center Director of Litigation.

In addition, on Wednesday, Howard Bashman of How Appealing filed this cert petition on grandparent visitation rights along with the University of Virginia Supreme Court Litigation Clinic.

This post is part 1 in our discussion with Professor David Stras of the University of Minnesota Law School. Professor Stras has written extensively on issues surrounding the Supreme Court; in this entry, we discuss his new paper, “The Supreme Court’s Gatekeepers: The Role of Law Clerks in the Certiorari Process,” which can be found here. Professor Stras will be back to discuss two of his other papers (see our original post here), but he also invites further questions about the issue of the Court’s docket and the influence of law clerks in shaping it. Leave any comments or questions as comments to this post or e-mail me here and Professor Stras will do his best to follow-up.

Let’s begin by talking about this Term, since there has been much discussion about the shortfall on the docket. While we obviously do not have access to the cert. pool memos, your evidence seems to show that the number of grants is typically about 30% higher than the number of grant recommendations. Might this be the case this term as well? If so, what does your evidence from previous terms tell you about why the pool may be increasingly stingy about granting cases?

The shortfall in the current docket has received a lot of attention in the press, and for good reason. Over the past five or six years, the number of plenary cases on the docket has reached its lowest level in about 150 years, or since before the Civil War. Without seeing the numbers from the current pool, which will not be available until one of the current Justices publicly releases their papers, it is difficult to say whether this Term’s cert pool follows the trends that I identified in the Review Essay. I was surprised, however, by the remarkable consistency between the number of grant recommendations made by the cert pool and the number of cases granted certiorari by the Supreme Court—which yielded a ratio every year of approximately 70%. Because of that consistency, I would not be at all surprised if the current pool fell within that historical ratio.

The reasons for this stinginess, I believe, are due to the perverse institutional incentives created by the cert pool itself. First, writing for eight of the nine Justices naturally makes law clerks more cautious in their recommendations because it is difficult to go out on a limb and recommend a grant when you are writing for practically the entire Court. A deny recommendation, which was by far the most common suggestion in the pool memos that I reviewed, is subject to far less scrutiny than a recommendation to grant. Moreover, most law clerks are less than five years out of law school with relatively little practical experience (although that is changing in some chambers), so that lack of experience usually yields caution in the review of cert petitions. Second, a deny recommendation avoids the institutional embarrassment for a law clerk who recommended that the Court grant a case that turned out to be dismissed as improvidently granted on a jurisdictional, vehicle problem, or other related ground. Because each slot on the Court’s plenary docket is valuable in light of how few cases are granted certiorari, a law clerk has incentive to avoid a recommendation that eventually forces the Court to essentially waste one of those prized slots. Finally, the fact that the Court’s docket has been declining in recent years surely sends a signal to the law clerks that they should not recommend a grant too often, even if the message is implicit and unintentional on the part of the Justices. As I state in the Review Essay, the behavior of law clerks is surely a product of the norms of the institution to which they belong.

Read the rest of this entry »

In today’s episode of the SCOTUSblog podcast, Tom has a conversation with Professor Charles Fried of Harvard Law School about his new book, Modern Liberty and the Limits of Government. Professor Fried, a former Solicitor General of the United States, also discussed the concept of liberty recently with Justice Breyer in a program that can be seen here.

The podcast, available for direct download here, is approximately 12 minutes long and weighs in at 2.9 MB.

To automatically receive the newest episodes of the podcast, you can subscribe to our feed in iTunes by clicking here (or simply search for “SCOTUSblog” in the iTunes Store); to use other podcasting or RSS software, you can subscribe to the podcast’s XML feed directly here.

Previous podcasts are also available by clicking the “Multimedia” tab.

Jonathan Hafetz, writing at the Huffington Post, weighs in on detainees’ habeas corpus rights here. Also in the Huffington Post, Jayne Lyn Stahl discusses the role the Supreme Court plays in keeping executive branch power in balance in this article.

Seth Rosenthal of Slate has this piece on judicial activism.

Tony Mauro of the Legal Times has this article on the school integration cases.

In the Washington Post, Robert Barnes covers Justice Scalia’s speech last week to the Northern Virginia Technology Council in this article.

Finally, Vikram David Amar has this essay on the Supreme Court’s Carey v. Musladin ruling at FindLaw.

On Monday, the top-side briefs in the Rita and Claiborne federal sentencing cases were filed, and Paul Kamenar of the Washington Legal Foundation sent us his organization’s amicus filing; it can be downloaded here.

In addition, Doug Berman of Sentencing Law and Policy points out that the New York Council of Defense Lawyers has set up this web page featuring all of the top-side filings. The cases are set for argument on Tuesday, February 20.

On Friday, the we filed the attached Amicus Brief of The Ohio Coalition for the Education of Children With Disabilities and the Autism Society of Ohio in the case of Winkelman v. Parma City School District (05-983), which is set for argument on Tuesday, February 27. Tom Goldstein is counsel of record, and those who had a substantial part in the drafting of the brief include Brian Love, Melanie Wachtell, and Jameson Jones of the Stanford Supreme Court Litigation Clinic and Eric Zagrans of Zagrans Guffey.

The question presented is:

Whether, and if so, under what circumstances, nonlawyer parents of a disabled child may prosecute an Individuals with Disabilities in Education Act, 20 U.S.C. § 1400 et seq., case pro se in federal court.

The cert. filings in this case were collected in this post.

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

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

UPDATE: Tuesday, 11:30 AM - The in-chambers opinion of the Chief Justice can now be found here.

Chief Justice John G. Roberts, Jr., refused on Monday to delay the planned auction of nearly 450 historic documents from the Civil War. He found that the state of South Carolina, which claims it owns those papers, had not met the standard for “extraordinary relief” — that is, a stay of a Fourth Circuit Court ruling that will permit the sale to proceed. He did not say specifically what was lacking in the stay application (Stroup, et al., v. Willcox, et al., docket 06A592).

Roberts also was critical of the litigating strategy of the state. He said that the request for a stay “is certainly undermined when the central argument pressed was only mentioned [by the state] in passing in the court below.” In seeking help from the Supreme Court, the Chief Justice noted, the state relied “almost exclusively on the Court of Appeals’ failure to certify to the Supreme Court of South Carolina contested questions of state property law.” That suggestion, he said, was noted when the case was in the Circuit Court only as an option if the Circuit Court “wants guidance” from the state court.

The two-paragraph opinion by Roberts is not a good omen for the state when it files its planned petition for review of the Fourth Circuit decision.

An earlier post on this dispute can be found here.

The drop in the volume of cases accepted for review this Term shows up clearly in the Supreme Court’s calendar of hearings for February, released Monday by the Court. Five days of argument are scheduled, but on only two of those days will the normal allotment of two cases be heard, and one of those pairs of cases involves related issues on federal criminal sentencing. On each of the other three days, a single case will be heard. Here is the calendar.

Day by day, these are the cases and the issues they raise:

Monday, Feb. 19
Legal holiday, no arguments

Tuesday, Feb. 20

06-5754 — Rita v. U.S. — whether a federal sentence within the Sentencng Guideline range is presumed to be reasonable.
06-5618 — Claiborne v. U.S. — whether a federal sentence below the Guideline range is presumed to be unreasonable.

Wednesday, Feb. 21
05-1056 — Microsoft Corp. v. AT&T Corp. — does U.S. patent law forbid foreign computer manufacturers from making copies of patented software code for installation in foreign-made computers.

Monday, Feb. 26
05-1541 – EC Term of Years Trust v. U.S.. — when may a property owner sue for a federal tax refund when taxes have been wrongly levied against the property.
05-1631 — Scott v. Harris – do police act unconstiutitonally if they ram a fleeing suspect’s car during a high-speed chase, causing an accident and serious injury.

Tuesday, Feb. 27
05-983 — Winkelman v. Parma City School District – do parents who are not attorneys have a right to represent themselves or their disabled child in a federal court case over public education benefits for the child.

Wednesday, Feb. 28
06-157 — Hein v. Freedom From Religion Foundation – may taxpayers sue to challenge a White House-sponsored program of extending federal financial aid to religious groups, when that is financed out of general federal funds, not funds earmarked for the purpose by Congress.

Even as the federal courts are reviewing Congress’ move to strip them of authority to hear challenges to military detention of foreign nationals in the war on terrorism, Congress is likely to be considering whether to undo what it has just done. The two leaders of the Senate Judiciary Committee are planning to move ahead with a bill to restore all of the habeas rights that detainees had before Congress adopted the Military Commissions Act of 2006 in October.

Two, and perhaps three, federal courts will be at work early in the new year trying to decipher the new Act’s court-stripping provisions. Even if the D.C. Circuit Court has decided two packets of cases on the issue by that time, it could have before it a new appeal on the same question in the case of Salem Ahmed Hamdan. The Fourth Circuit Court will be holding a heairng on Feb. 1 addressing the same question. Conceivably, the Supreme Court might be drawn into this new controversy soon, either in an appeal from the D.C. Circuit or perhaps a direct appeal in the Hamdan case.

It is unlikely that any of this judicial activity will be put on hold to see what Congress does with the proposal to restore habeas rights for the detainees. But Sen. Patrick Leahy, the Vermont Democrat who is scheduled to become Judiciary Committee chairman, and Sen. Arlen Specter, the Pennsylvaia Republican who is due to leave the chairmanship, have announced plans to move ahead with thier new bill, S. 4081, titled “To restore habeas corpus for those detained by the United States.” The text of the bill can be found here, and statements by the two senators when they jointly introduced the measure can be found here.

Of course, all pending bills expired when Congress recessed last week, but the Leahy-Specter bill will be offered again in January. The measure would appear to have a good chance of passage, at least in the Senate: when Specter attempted to head off the court-stripping wprovision in the just-ended session, his move failed by a 51-48 vote. The Senate’s membership, of course, has changed markedly after the November election.

President Bush would be strongly likely to veto any habeas restoration bill that reached his desk in the new Congress. And there almost certainly would not be enough votes in Congress to override a veto, even with Democrats in control.

Even so, the maneuvering indicates that the question of habeas rights is not likely to be resolved finally, any time soon.

At ACSBlog, Martin Magnusson discusses last week’s argument in the Rockwell case here.

In this post at PrawfsBlawg, Jeremy Blumenthal highlights this new paper by Peter Hook called “Visualizing the Topic Space of the United States Supreme Court.”

Deepak Chopra, writing at the Huntington Post, adds his voice to the discussion about school integration here.

In the Evans-Novak Political Report, Robert Novak speculates here about what might happen if there is a Supreme Court vacancy in the next two years (scroll down to “Bush Administration” section; via Bench Memos).

Kenneth Jost of CQ Weekly discusses here the legal status of Christmas displays.

Finally, Emily Bazelon of Slate has her thoughts about recent developments in the detainee cases here.