The AP’s Mark Sherman reports here on the Court’s unanimous decision today in Worton v. Bockting, holding that a cross-examination rule is not retroactive; Jeannie Shawl of the Jurist has this post; the Volokh Conspiracy’s Orin Kerr has this post; at Sentencing Law & Policy, Doug Berman weighs in here.

David G. Savage of the LA Times has this article on today’s argument in Hein v. Freedom From Religion Foundation; AP writer Frederic J. Frommer reports here; Greg Stohr of Bloomberg has this recap. In the USA Today, Joan Biskupic has this preview of the case.

In today’s New York Times, Linda Greenhouse has this article on yesterday’s argument in Winkelman.

At Law.com, Dahlia Lithwick reports here for the New American Lawyer about the justices’ increased media exposure.

Columnist Derrick Z. Jackson has this editorial on the Claiborne sentencing case in today’s Boston Globe (via How Appealing).

Finally, AP writer Mark Sherman also has this report on Guantanamo detainees’ request for an expedited ruling from the Supreme Court.

Federal taxpayers who contend that the government is using their money to promote religion probably can still gather outside the federal courts, and go in with lawsuits to challenge that spending. But it may well be harder for them to win once they get inside the courthouse, or so it seemed after the Supreme Court on Wednesday went through an hour of oral argument in Hein v. Freedom from Religion Foundation (06-157).

Only at the very end of the argument, with Solicitor General Paul D. Clement at the podium, was it even intimated that the Court should consider throwing out entirely the four-decades-old precedent in Flast v. Cohen, the key ruling that authorized taxpayer lawsuits to curb federal spending that promotes religion despite a general ban on taxpayer claims of improper government spending. Clement said that, if it came down to sticking with Flast’s “logic” or sticking with constitutional limits on access to the couorts, “I think it’s an easy choice. You don’t abandon the basic requirements of Article III that distinguish the Judiciary from the political branches of government.”

No Justice, however, appeared to have thought that was the only choice the Court would have in deciding the Hein case — a case testing whether taxpayers, in their role only as taxpayers, should be allowed to sue the White House for setting up regional “faith-based” conferences that allegedly give religious organizations the idea that they will be more favored than secular groups in getting federal funds for their social programs.

But the tenor of the argument perhaps did justify some worry for Clement about where the Court might be heading, assuming Flast stays on the books. There appeared to be no clearcut support on the bench for leaving the Executive Branch entirely free from taxpayer lawsuits claiming misuse of public funds to aid religion (although Chief Justice John G. Roberts, Jr., at times seemed tempted by such a total exemption, since there might be other ways to bring a lawsuit than through a taxpayer’s challenge).

Read the rest of this entry »

The transcript in Hein v. Freedom From Religion Foundation, Inc. is now available here.

The Supreme Court will take up at its Friday Conference a plea by two Guantanamo Bay detainees to consider their appeal on an expedited basis, according to the Court’s electronic docket. The combined petition of Salim Ahmed Hamdan and Omar Khadr has been docketed as 06-1169 (Hamdan, et al., v. Gates, et al.)

Under the Court’s normal schedule, a response by the government to the petition for review would not be due until March 29.

If the Court does agree to expedite the case, and the federal government responds by March 21 to the petition, as Hamdan and Khadr’s lawyers have suggested, the Court will be asked to consider this and other coming appeals in detainee cases together at its scheduled Conference on March 30.

UPDATE to 11:45 a.m.: Today’s decision in Whorton v. Bockting (05-595) can be downloaded here; it was the only opinion released by the Court.

The Supreme Court ruled unanimously on Wednesday that its major ruling on the Confrontation Clause in Crawford v. Washington is not to be applied retroactively, to cases that were final before that ruling came down on March 8, 2004.

In an opinion by Justice Samuel A. Alito, Jr., in Whorton v. Bockting (05-595), the Court found that the decision limiting out-of-court statements as criminal evidence was a new rule and was not a “watershed rule” so it does not apply to earlier cases. The Crawford decision overruled an earlier Court decision (Ohio v. Roberts, 1980), and laid down the rule that a statement made out of court by a witness who cannot or does not appear at the trial cannot be admitted in the trial unless the accused had a prior opportunity to cross-examine that witness.

Because the Court ruled against retroactivity, the individual involved in the case, Marvin Bockting of Las Vegas, will not be allowed to use the Crawford ruling to challenge in federal court his conviction in state court based on the use at his child sexual assault trial of out-of-court statements made by his six-year-old step-daughter.

The Court used a formula laid down in the 1989 decision in Teague v. Lane for deciding when a Court decision on criminal law is to be applied in federal habeas proceedings to state convictions that had become final previously. The Court did not address a separate question posed by the state of Nevada in its appeal — that is, whether the Antiterrorism and Effective Death Penalty Act of 1996 imposing new restrictions on habeas rights does, in fact, incorporate the Teague v. Lane exceptions to non-retroactivity. Since the Court did not find either exception applied here, it had no reason to decide that issue.

Justice Alito’s opinion for the Court essentially had four parts: first, it applied the Teague v. Lane mode of analysis, second, it found that Crawford created a new rule of criminal law and thus did not apply an old rule, third, it ruled that the new rule was procedural and not substantive, and, fourth, because it could not qualify as a rule that implicated the fundamental fairness and accuracy of the criminal trial, it could not be retroactive. Thus, the Crawford rule applies only to new cases or to those that were still pending on direct review when that decision came down in 2004.

The Court noted that, since Teague in 1989, it had rejected every claim that a new rule satisfied this final requirement regarding fairness and accuracy. A new rule meets that test, the Court noted, only if it is necesssary to prevent a risk of an inaccurate conviction, and only if it alters the understanding of bedrock requirements for fairness. Crawford, it found, meets neither test.

It compared the impact of that ruling on criminal trials with the one precedent that the Court has said was necessary to prevent an inaccurate conviction — the right of a poor person facing criminal charges to a free lawyer, laid down in the 1963 decision of Gideon v. Wainwright.

“The Crawford rule is in no way comparable to the Gideon rule,” Alito wrote. “The Crawford rule is much more limited in scope, and the relationship of that rule to the accuracy of the factfinding process is far less direct and profound.” While it may improve accuracy of fact-finding in some cases, he added, it will not significantly do so. Alito also said that Crawford does not involve a change in the understanding of “bedrock” constitutional rights, as did the Gideon precedent.

The following argument recap is by Erik Zimmerman of the Stanford Supreme Court Litigation Clinic. His preview of this case can be found here.

On Monday, the Court heard argument in EC Term of Years Trust v. United States (No. 05-1541). The question in that case is whether a party entitled to challenge an IRS levy under § 7426 of the tax code may, after the time to challenge the levy has expired, seek a refund of the levied taxes under § 1346, which provides a general cause of action for recovering wrongfully paid taxes and has a much longer statute of limitations than § 7426. The IRS in EC Term of Years Trust levied against the property of a trust to collect taxes allegedly owed by the creators of the trust. The trust failed to bring a challenge under § 7426 within that section’s nine-month statute of limitations, so it brought a challenge under § 1346 instead. The Fifth Circuit held that § 7426 is the exclusive means for challenging a levy, and that an action could not be brought under § 1346 after § 7426’s statutory deadline had passed.

The argument in EC Term of Years lasted only 44 minutes (as opposed to the usual hour), and the justices’ questions suggested that the opinion may require a similarly short devotion of time. While individual justices showed some skepticism toward the United States’ position, the Court seemed largely to have decided to affirm the Fifth Circuit’s holding on the straightforward principle that the existence of a specific remedy under § 7426 precludes a taxpayer’s resort to the more general remedy of § 1346.

Read the rest of this entry »

Beginning at 10 AM eastern, the Court is expected to release at least one opinion on the merits; we will bring you coverage as they are released. The Court will then hear one hour of oral argument in Hein v. Freedom From Religion (preview here).

A transcript should be available sometime this afternoon.

Attempting to draw the Supreme Court back into the legal side of the “war on terror,” two men being held captive by the U.S. military on Tuesday urged the Justices to restore the right to challenge their detention and criminal prosecution. Salim Ahmed Hamdan, a Yemeni national, and Omar Khadr, a Canadian national, filed a combined appeal of two lower court rulings concluding that the detainees have lost that right. The petition can be found here.

“As the War on Terror enters its sixth year,” the appeal argues, “this Court’s guidance is needed on whether the judiciary can be summarily removed from its traditional role in safeguarding liberty and preserving the balance of power.” The lower courts, it adds, have created “a legal black hole (at the Guantanamo Bay, Cuba, military prison camp) exempt from the Great Writ.”

Earlier Tuesday, lawyers for these two detainees asked the Court to expedite this case so that it could be decided in the current Term. It is late enough in the Term that the case otherwise would not be heard until the Fall. That motion to expedite is discussed in this post.

The new case is Hamdan v. Gates/Khadr v. Bush, not yet assigned a docket number. The two men do not directly contest the government’s power to take them prisoner or to put them on trial for alleged war crimes; rather, at this point they are seeking the chance to go forward with such challenges in lower courts.

They claim that, if the writ of habeas corpus is not available to them, those ultimate war powers questions may never be answered for foreign nationals taken prisoner overseas and held by the U.S. military at Guantanamo Bay. They argue that they would be left with only a limited chance to have the D.C. Circuit Court review the outcomes of military detention hearings or military “commission” trials on war crimes charges, with no review of the facts behind detention or of prison conditions.

“The scope of habeas jurisdiction is a matter of profound national and international importance,” the appeal says. “The writ’s importance is at its apogee when it is the only means available to stop an illegal trial where a man’s life is at stake.” Moreover, they contend that “access to the federal courts via habeas is determinative of a further essential question: whether the political branches can circumvent the Constitution and decisions of this Court to institute criminal prosecutions before military tribunals, summary proceedings regarded with the utmost suspicion by our Founders.”

As in a wide array of other “war on terrorism” cases, including those that previously reached the Supreme Court, a central issue the Court would have to confront in this new case will be the scope and continued force of a 1950 ruling – Johnson v. Eisentrager – closing U.S. courts to German citizens convicted of war crimes and held overseas. The Eisentrager ruling has been a mainstay of Bush Administration legal arguments in many terrorism cases.

Read the rest of this entry »

The AP has this article on today’s argument in Winkelman. In the National Law Journal, Marcia Coyle reports here at Law.com on Hein v. Freedom From Religion, which will be heard before the Court tomorrow. At the Justice Talking blog, Doug Kmiec of Pepperdine Law also also has his thoughts on Hein here.

In today’s Washington Post, Robert Barnes reports here on yesterday’s argument in Scott v. Harris and the justices’ reaction to the videotape of the police chase in question; USA Today’s Joan Biskupic has this article; the AP reports here; Tony Mauro of the Legal Times has this article at Law.com; David G. Savage of the LA Times reports here; and Linda Greenhouse has this article on the case, which examines the use of deadly police force, in the New York Times.

Also in today’s New York Times, Greenhouse reports here on the Court’s decision not to hear the Berger sentencing case; James Vicini of Reuters has this article on the Court’s refusal to hear the case; and Doug Berman continues the discussion here at the Sentencing Law and Policy.

Joseph Goldstein of the New York Sun has this article on the special education tuition appeal that the Court agreed to hear yesterday. At the First Amendment Center, Tony Mauro reports here on another case the Court agreed to hear yesterday considering the constitutionality of the Washington “Top 2″ primary (via Election Law Blog).

At the WSJ.com Law Blog, Ben Winograd has this post on Jean-Claude André, the lawyer who represented the Winkelmans, parents of a 9-year-old autistic boy, at the Court this morning. Tony Mauro has this post at The BLT: The Blog of the Legal Times on Justice Breyer’s newest accessory. Finally, Steve Jakubowski has this post on the Marrama decision at the Bankruptcy Litigation Blog.

UPDATE: Also at The BLT, T.R. Goldman has this post about an interview with Jan Crawford Greenburg in which she speculates on future Bush appointments to the Supreme Court, should the opportunity arise.

The transcript in Winkelman is now available here.

Two Guatanamo Bay detainees, both facing war crimes charges before U.S. military “commissions,” on Tuesday asked the Supreme Court to put their joint appeal on a fast track for decision in the current Term. The motion to expedite involves the first two rulings by federal courts on Congress’ move last year to strip the federal courts of any authority to hear habeas challenges by prisoners at the military prison camp at Guantanamo Bay, Cuba. The motion can be found here. The petition for review is expected to be filed shortly, and will be posted when it is available.

Putting the court-stripping issue before the Court in the new case are Salim Ahmed Hamdan, a Yemeni national who was the detainee in last Term’s decision in Hamdan v. Rumsfeld nullifying a White House version of new military commissions, and Omar Khadr, a Canadian national. On Feb. 2, the Pentagon notified both of them (along with an Australian, David Hicks) of new charges they will face at war crimes trials. President Bush recently authorized the startup of the new trials at the Cuba camp, but none has yet begun.

The new appeal is a combined effort by the two detainees, seeking speedy review of two separate court rulings. Hamdan is challenging a ruling last Dec. 13 by U.S. District Judge James Robertson, dismissing Hamdan’s habeas challenge and finding the federal courts lost jurisdiction over all such claims when Congress passed the Military Commissions Act of 2006 last Fall. Robertson also rejected a constitutional challenge to the Act’s court-stripping provision. Ordinarily, Hamdan’s initial appeal would go to the D.C. Circuit, but he is asking the Supreme Court to step in now to hear his case. The Court has no specific rule on how many votes among Justices it would take to bypass the Circuit Court, but the common understanding is that five Justices must support the maneuver. It would take a similar majority to expedite the case for review.

Khadr is challenging the ruling Feb. 20 by the D.C. Circuit Court, ordering the dismissal of scores of Guantanamo detainee cases in the District Courts, and finding no constitutional violation in Congress’ move to scuttle those cases. Khadr was one of a sizeable number of detainees involved in two packets of cases before the D.C. Circuit.

Lawyers for other detainees are expected to file their own petition for review in the Supreme Court, within a matter of days — that is, by no later than Monday. While Khadr is facing war crimes charges, as is Hamdan, almost all of the other detainees involved in the D.C. Circuit case have not been charged with any crime, and are seeking to challenge their continued imprisonment and their designation by the military as “enemy combatants.” The Hamdan/Khadr motion argued that differences in their case from the other detainees’ coming appeals make their case “logical and necessary companions to this Court’s consideration” of the other detainee challenges.

The motion told the Court that, in those other detainee appeals, the detainees’ lawyers and the Justice Department have agreed to have those cases expedited before the Court. The Justice Department has refused to support expedited review of Hamdan’s appeal.

The new motion asks the Court to order briefing so that the government would respond to the coming appeal by March 21 — the same schedule, according to the motion, that the two sides have agreed to follow in the other detainee cases. The cases “are so closely related” that they should be heard on the same schedule, the motion argued. The motion did not suggest a hearing date, but lawyers are hoping the Court will schedule the cases for argument in May.

Read the rest of this entry »

Another skirmish in America’s culture war reaches the Supreme Court on Wednesday, in a case that some are trying to turn into a fundamental reexamination of the meaning of the Constitution’s Establishment Clause. The Justice Department does not join in that effort, but it is advocating a bold position on its own, urging the Court to bar any taxpayer from filing any lawsuit to challenge the way the Executive Branch spends public money. These provocative maneuvers seem sure to enliven the Justices’ interest as they hear Hein v. Freedom From Religion Foundation for an hour Wednesday, starting shortly after 10 a.m.

The case has the disarming appearance of being merely a controversy over “standing” — that is, who has the right to sue in federal courts to attack what they consider a government action that injures them? And, even more narrowly, it is about “taxpayer standing” — when can a taxpayer show enough potential injury from the use of public funds to be allowed to sue for a remedy?

But the briefs in the case have elevated it to a possible reexamination, going back to the Founding era, of the separation of powers of the national government, and what the original generation meant in barring government from “esatblishment” of religion as part of the First Amendment. Both sides invoke James Madison and Thomas Jefferson, and move on from there to canvass both antique and modern conceptions of government aid to religion.

Overhanging the case are fundamental constitutional questions about one of the most controversial of President Bush’s domestic programs — the White House’s eager steering of federal funds to “faith-based organizations” to pay for their social programs. While there is no way the core constitutionality of the “faith-based initiative” will be resolved in the Hein case, the outcome could well advance — or stifle — the effort to raise that issue.

The case will have seasoned and respected advocates at the podium — Solicitor General Paul Clement appearing first, representing Jay F. Hein, director of the White House Office of Faith-Based and Community Initiatives, and Andrew J. Pincus of Washington’s Mayer, Brown, Rowe & Maw, representing the Freedom From Religion Foundation, Inc., a “separationist” group, and three of its members. They won in lower courts the right as taxpayers to challenge the White House’s use of public funds in staging regional “faith-based” conferences to encourage religious groups to seek public funding.

The Seventh Circuit ruled in January of last year that, as long as some congressional appropriations are being used to fund conferences that are claimed to be religiously motivated, the taxpayers had a right to sue. The case has not yet gone to trial because the Solicitor General took the “taxpayer standing” issue to the Supreme Court. The Justices agreed on Dec. 1 to hear it.

Read the rest of this entry »

Beginning at 10 AM eastern, the Court will hear one hour of oral argument in Winkelman v. Parma City School District (preview here). According to the Court’s opinion line, no opinions are expected to be issued today.

A transcript should be available sometime this afternoon.

Last week, this cert. petition (with appendix) was filed in the case of Zoltek Corp. v. U.S.; it has been docketed as 06-1155. Dean Monco of Wood Philips in Chicago is counsel of record; with him on the brief are Erik Jaffe of Erik Jaffe, P.C.; Garry Grossman of Schiff Hardin; and John Mortimer and Bert Bertoglio, also of Wood Philips.

The full question presented can be found after the jump.

Read the rest of this entry »

The following argument preview is by Molly Cutler of the Stanford Supreme Court Litigation Clinic.

On February 27, 2007, the Court will hear Winkelman v. Parma City School District, which asks whether the non-lawyer parents of a disabled child can appear pro se in federal court either on their own behalf or on behalf of the child in a lawsuit under the Individuals with Disabilities Education Act (IDEA).

Jean-Claude Andre of Los Angeles will argue on behalf of the petitioners. Assistant to the Solicitor General David Salmons will argue on behalf of the United States as amicus in support of petitioners. Pierre Bergeron of Cincinnati, Ohio will argue on behalf of the respondent school district. The parties’ briefs are available here; the brief of the United States is available here.

The IDEA provides federal grants to states to assist in the education of disabled children. A state participating in the program must ensure that each child receives a “free appropriate public education,” including special education and other services necessary to meet that child’s needs, by developing an individualized education program (IEP) for each disabled child in collaboration with parents or guardians. Under the statute, parents have the right to challenge an IEP in an administrative due process hearing and a right to appeal the findings of such a hearing to the state educational agency. After exhausting administrative remedies, “any party aggrieved” by the findings of the administrative proceedings has the right to bring a civil action in federal court.

Read the rest of this entry »