It was another busy day at the Court, with orders (including a cert. grant in Medellin II and a Hamdan denial) and five opinions:

Lyle recently added this post on the Court’s ruling in EC Term of Years Trust v. IRS and this analysis of today’s decision in Microsoft Corp. v. AT&T Corp. Lyle also has this commentary on the Hamdan denial and this analysis of the Scott v. Harris decision. This blog’s earlier coverage of Medellin, in which the Court granted review this morning, can be found here.

Dennis Crouch of the Patently-O blog has these comments on today’s patent decisions; Lawrence Ebert has this post analyzing the KSR ruling; Joshua Sarnoff weighs in here; Solveig Singleton posts her thoughts here; and Michael Barclay has this analysis.

Lyle has this post on the orders list and this initial coverage of today’s opinions in, inter alia, KSR v. Teleflex and Scott v. Harris;
I have this summary of today’s opinion in United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority;
Jason provides links to today’s opinions and orders list here;
Gretchen collects news coverage of the opinions and orders here;
Marty has this post speculating that the Chief is writing in the Seattle and Louisville schools cases; and this post regarding the Court’s use of a videotape in Scott v. Harris (SCOTUS meets the TV show Cops!).

Drawing a clear line between the right to sue to challenge an erroneous federal tax levy, and the right to claim a tax refund, the Supreme Court declared unanimously on Monday that the two have separate filing deadlines for valid reasons, and must be treated independently. The ruling came in EC Term of Years Trust v. IRS (05-1541).

If a taxpayer is notified of an Internal Revenue Service levy, but the taxpayer insists that someone else actually owes the taxes due, the lawsuit challenging that wrongful levy must be filed within nine months, under federal tax law. That is the only remedy for that kind of mistake by IRS, and the taxpayer who fails to meet the nine-month deadline cannot later try to get a refund by a separate claim, Justice David H. Souter wrote (in an opinion orally announced for him by Chief Justice John Gl Roberts, Jr.)

Congress specifically tailored the tax law provision for third-party claims of wrongful levy, and to allow them to pursue a refund would permit them to “effortlessly evade the levy statute’s 9-month limitations period thought essential to the government’s tax collection.” A tax refund claim can be made for up to two years administratively, and up to two more by lawsuit, the Court noted.

The shorter span for pursuing a claim of wrongful levy was necessary, as Congress saw it, to allow the quick resolution of such controversies so the government can then go after the property of the taxpayer who actually owns the property to correct its mistake, the Court said. “The demand for greater haste when a third party congtests a levy is no accident,” Souter’s opinion said. “We simply cannot reconcile the 9-month limitations period for a wrongful levy clailm…with the notion that the same challenge would be open…for up to four years,” it added.

The ruling was a defeat for a Texas couple, Elmer and Dorothy Cullers, who set up a trust — EC Terms of Years Trust. In 1991, IRS assessed the trust for improper income tax deductions during the 1980s. That was based on an assumption that the couple had transferred assets to the trust to evade taxes. It filed a lien, but the trust denied any obligation. Still, it put $3 million in a bank account to cover any liability. IRS issued a notice of levy for the funds.

A year later, the trust and other trusts created by the couple sued, claiming that the levy was wrong. But they had waited almost a year after the levy to sue, and their claim was thrown out for missing the nine-month deadline. The trust then sought administratively and in court to get a refund, but that, too, was rejected. District Court and the Fifth Circuit ruled that the shorter time period applied, because that was the only method of recovery the trust could pursue for the erroneous levy.

The Ninth Circuit, by contrast, had ruled that the remedy for third parties was not the sole method of challenging a levy.

Monday’s ruling settled the conflict by ruling as the Fifth Circuit had.

Clearing the way for wider worldwide distribution of computer software code, and saving Microsoft Corp. millions of dollars in patent damages, the Supreme Court ruled on Monday that it is not illegal to send Windows code abroad for copying and installing in foreign-made computers, even if the code incorporates a part of someone else’s patented invention.

If the owner of that invention wants to protect it from being copied overseas, the Court indicated, there are only two options: get a foreign patent, or get Congress to change U.S. law on exporting patented items. If current law is to be revised to take in the new realities of the software business, that is for Congress to do, Justice Ruth Bader Ginsburg wrote for the Court.

The ruling narrowed the scope of a 1984 law — passed by Congress in reaction to an earlier Supreme Court ruling. The decision also curbed what has been described as an ongoing effort by the Federal Circuit Court to stretch U.S. patent laws to reach international commerce in computer software. The ruling came in the case of Microsoft Corp. v. AT&T Corp. (05-1056); the vote was 7-1 with Chief Justice John G. Roberts, Jr., not taking part. Justice John Paul Stevens was the lone dissenter.

At issue in the case is Microsoft’s steady line of international business in its Windows operating code — the basic “brains” of most of the world’s personal computers, laptops and data devices. The company writes the Windows code onto master disks to be sent abroad and copied, or else sends the code abroad by encrypted electronic transmission to be copied. The foreign computer-makers use copies of the code to install in their computers, all sold abroad. In both modes of overseas shipment, the Windows code incorporates a part of an AT&T patented invention for making synthetic speech sound more human (the digitally simulated speech is created by a code, which is a 1981 invention of Bell Laboratories scientists Bishnu Atal and Joel Remde).

AT&T sued Microsoft for infringing on its patent by sending Windows abroad for copying. Microsoft agrees that installation of Windows software in U.S. made or sold computers does infringe on the AT&T patent, but it argued that U.S. patent law does not reach its shipments of Windows abroad; it also argued that a 1984 amendment to U.S. patent law does not apply. The two companies have made a deal on what their dispute was worth in dollar terms, but have not disclosed anything other than that it runs into the hundreds of millions of dollars overall.

AT&T argued, and the Federal Circuit agreed, that the code for Windows software includes one component of AT&T’s digital speech invention. By sending a single copy of Windows abroad, the Circuit Court held, Microsoft intended it to be copied overseas, and thus the shipping and the copying were illegal under the 1984 law.

But the Supreme Court ruled that software code cannot be a component, since it really is only an abstraction until it is written onto something physical, like a CD-ROM. If it cannot be a component standing alone, Ginsburg wrote, it cannot be a combination that includes someone else’s invention; it is like a blueprint, giving instructions. And, if it is sent abroad only as code via a disk or electronic transmission, the copy made from it abroad is not a component supplied from the U.S., according to the ruling.

The step that occurs in a foreign computer maker’s factory — copying Windows code and then installing it into a computer to be sold abroad — does not trigger a violation of U.S. law, because the foreign-made copies are not shipped from the U.S., the Court explained. “The extra step is what renders the software a usable, combinable part of a computer; easy or not, the copy-producing step is essential,” it added. “In sum, a copy of Windows, not Windows in the abstract, qualifies as a ‘component’ ” under the 1984 law, the ruling concluded.

Thus, the foreign-made copies satisfy neither the “component” provision of the 1984 law, or the “supplied from the U.S.” requirement, the Court ruled.

By a vote of six to three, the Court today in No. 05-1345, United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority, added the latest chapter to its trash – I mean, Commerce Clause – jurisprudence, upholding municipal ordinances that required trash haulers to deliver their trash to a publicly operated processing site. In so doing, the Court – at least in the view of Justice Alito, who filed a dissent – created an exception to the dormant Commerce Clause for state and local regulations that discriminate in favor of publicly owned entities.

Even beyond the holding itself, the decision is interesting just for the relatively unusual line-up of justices: Chief Justice Roberts wrote the opinion of the Court (except for one part, which served as the plurality opinion) and was joined in full by Justices Souter, Ginsburg, and Breyer. Justice Scalia concurred in part, writing separately to reiterate that, in his view, “the so-called ‘negative’ Commerce Clause is an unjustified judicial invention, not to be expanded beyond its existing domain.” Justice Thomas concurred in the judgment; he would throw out both the baby (the challenge to the ordinances) and the bathwater (“the Court’s negative Commerce Clause jurisprudence”). Justice Alito (can’t call me “Scalito” today) authored a dissent that was joined by both Justice Stevens and Justice Kennedy.

Read the rest of this entry »

This morning, the Supreme Court granted cert. in Medellin v. Texas, which raises a major question about the limits of executive power. Lyle Denniston has written extensively about the case of Jose Ernesto Medellin, a Mexican national convicted of murder and facing execution in Texas.

In September of 2005, Lyle had this post discussing the aftermath of the Supreme Court’s May 2005 decision in Medellin v. Dretke. Last November, he reported here on the ruling of Texas’ highest state criminal court that the President did not have the authority to direct the state courts to obey a World Court ruling on the rights of foreign nationals arrested and prosecuted in the U.S.

In January, Lyle had this report after Medellin’s lawyers filed a new appeal to revisit the issue. He discussed the Goverment’s amicus brief in this case here in March. And prior to the April 20 private Conference, Lyle provided additional background and context here.

Additionally, the April 16 edition of Conference Call in the Legal Times (column archive here; subscription req’d) features Medellin v. Texas.

All of the filings in this case, as well as in the earlier appeal to the Supreme Court, can be found at this link.

A simple conclusion of law now confronts lawyers for some 385 foreign nationals still being held captive by the U.S. military at Guantanamo Bay, Cuba: A foreigner “without property or presence in this country has no constitutional rights, under the due process clause or otherwise.” That is the way the D.C. Circuit Court summed up in a ruling on Feb. 20 in two packets of detainees cases — a ruling that the Supreme Court has now twice refused to review (once on April 2, again on Monday). Until a point arrives at which the Supreme Court might become ready to review that conclusion, it is binding and it will shape ongoing contests in lower courts in coming months, even though those contests focus mainly on questions of federal statutory not constitutional law.

Having no constitutional rights, of course, is not the same as having no rights at all. Congress has recently passed two laws — the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 — that control the legal destiny of the Guantanamo detainees, and each of them provides at least some measure of judicial review of detainees’ claims. But the absence of any enforceable rights under the Constitution is likely to have an influence at least on the atmospherics of the continuing legal contests, reminding judges that they are operating mainly in a realm of presidential and congressional discretion.

The Supreme Court’s actual and potential role as the ultimate constitutional arbiter of the “war on terrorism” has been in the background as it put itself into the midst of the controversy over detainees’ legal rights in 2004, and as it remained involved since then. But on Monday, the Court made it clear, in denying review of the latest detainees’ appeal without comment, that it is putting itself and its constitutional authority on the sidelines, at least for the time being. Right now, it appears that the only thing that would draw the Court back into the fray anytime soon would be a split in the Circuit Courts; the Fourth Circuit Court in Richmond, Va., is weighing a case involving some of the same issues the D.C. Circuit Court decided and the Supreme Court refused to review this month. What the Fourth Circuit will do is, of course, unknown, but it could act soon.

The Bush Administration, from the beginning of the federal courts’ engagement with the detainees, has held steadily to the argument that the detainees have no constitutional rights and thus have only so much protection as Congress was willing to provide to them. That core argument has never been upheld explicitly by the Supreme Court, but it has now prevailed in the D.C. Circuit Court — the appeals court that, from here on, will play the central role among lower courts in defining the law as it applies to detainees. Although the Supreme Court has twice overruled that Court on detainee matters (in 2004 and 2006), it has now signaled to that Court that it may proceed as the judge of detainee rights.

It is possible to read the Justices’ simple order on Monday as sending no signals whatsoever, at least not intentionally. Whether detainees or their lawyers can take any heart from that, however, is far from clear.

Read the rest of this entry »

The following commentary is from Michael Barclay of Wilson Sonsini Goodrich & Rosati. The views expressed in this posting are those of the individual author, and do not necessarily reflect the views of his law firm or any of his clients.

This decision makes it far easier to invalidate patents based on obviousness. Thus, this is the most important patent case of the last 20 years, and perhaps since the passage of the 1952 Patent Act. Virtually every litigated patent case includes an assertion of obviousness – and ones that might not have included that defense up until now are more likely to do so. The PTO examines every patent application for obviousness. KSR v. Teleflex will thus have an enormous impact on both the prosecution and litigation aspects of patent practice.

The Supreme Court continues to take a close look at the Federal Circuit’s jurisprudence and how the Court of Appeals for the Federal Circuit (CAFC) interprets the Patent Act or other relevant statutes. In eBay v. MercExchange, decided in May 2006, the Court unanimously reversed the CAFC’s reading of 35 U.S.C. Section 283, where the CAFC had engrafted a “general rule” requiring permanent injunctions in favor of a victorious patent owner, even though the language of the statute said no such thing. In Medimmune v. Genentech, decided in January 2007, by an 8-1 vote, the Court reversed the CAFC’s reading of Article III’s case or controversy requirement, and of the declaratory judgment statute. In Microsoft v. AT&T, decided the same day as KSR v. Teleflex, the Court reversed the Federal Circuit’s reading of 35 U.S.C. Section 271(f) by a 7-1 vote.

Read the rest of this entry »

Though two Justices tried hard in separate opinions to ease the impact of the Supreme Court’s rulng Monday on high-speed police chases, the fact remains that the main opinion had the unqualified support of six Justices and did lay down a hard-and-fast constitutional rule. Here is how the Court phrases the rule it established: “A police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.” Given the inherent dangerousness of most high-speed chases, this flat rule — the “Scott v . Harris” rule, as it may come to be known — appears to validate as “reasonable” any intentional police tactic of ending the chase by causing a wreck. The only apparent limitation on the choice of any specific tactic is the option that police have to adopt, or not to adopt, it.

Justice Stephen G. Breyer, in his concurrence, caught the essence of the new rule, by describing it both as “a per se rule” and as “too absolute.” Still, he sought to argue that the Fourth Amendment rule should depend upon the very specific facts of each high-speed chase. Justice Ruth Bader Ginsburg, in her concurrence, said “I do not read today’s decision as articulating a mechanical, per se rule.” But none of the five other Justices who comprised the real majority signed onto that assessment.

There is much in Justice Antonin Scalia’s main opinion about how the facts of this case look on close examination, and especially how those facts emerged in a videotape made from the dashboard of one of the pursuing police cruisers. But the articulation of the facts appears, in this instance, to serve only to justify a conclusion that the officer involved was entitled to summary judgment without any further exploration of facts at a trial. Justice John Paul Stevens in dissent suggests that the Court has engaged in an “unprecedented departure from our well-settled standard of review” of facts as found by lower courts, by setting itself up as a panel of “eight jurors on this Court.” That description, however valid, does not do away with the reality that this decision is a constitutional holdingmore than it is an essay about facts, and very likely will be applied by lower courts beyond its specific factual setting.

When Scott v. Harris, a Fourth Amendment decision, is read together with a 1998 decision in Sacramento County v. Lewis (finding no due process violation by an officer in a high-speed chase resulting in an accident unless the officer set out explicitly to harm the fleeing suspect), it is now quite clear that police discretion about use of “deadly force” will be the controlling legal factor in future high-speed chase cases.

Read the rest of this entry »

The author of this blog is Solveig Singleton, a lawyer and senior adjunct fellow with the Progress and Freedom Foundation and commentator on ipcentral.info. My colleague James. V. Delong and I authored an amicus brief in KSR hoping for a tighter standard of non-obviousness for patents.

My take on KSR: Right result, proper caution–yet utterly frustrating.

In a nutshell, a unanimous Court overturns the appellate decision on the ground that the test of “obviousness” used below misunderstood the proper use of prior art in considering the validity of a combination patent; and, more generally, the Court of Appeals was too rigid and did not allow the fact finder recourse to common sense. The Court recognized the risk that too many inventions would seem “obvious” by hindsight, but said only that the appellate court took the wrong approach to the problem.

For a rationale, the Court drew on recent studies noted in the briefs (including PFF’s own) to note that, “in many fields it may be that there is little discussion of obvious techniques or combinations, and it often may be the case that market demand, rather than scienfitic literature, will drive design trends. Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may, in the case of patents combining previously known elements, deprive prior inventions of their value or utility.” (p. 15.)

Much of the Court’s discussion is specific to patents that combine older elements, speaking of “the need for caution in granting a patent based on the combination of elements found in the prior art” (p. 11).

Read the rest of this entry »

Joshua Sarnoff, Assistant Director of the Glushko-Samuelson Intellectual Property Law Clinic and a Practitioner-in-Residence at the Washington College of Law, American University, filed an amicus brief in support of Petitioner KSR Int’l. Co.

In its unanimous decision in KSR Int’l. Co v. Teleflex Inc., No. 04-1350 (April 30, 2007), the Supreme Court expressly overruled the Court of Appeals for the Federal Circuit’s “teaching-suggestion-motivation” (“TSM”) test for finding a claimed invention obvious and reaffirmed the Court’s precedents (in light of the 1952 enactment of Section 103 and its holding in Graham v. John Deere Co. of Kansas City, 383 U.S. 1 (1966)) regarding the obviousness of patents “based on the combination of elements found in the prior art” where there the combination “does no more than yield predictable results.” Slip op. at 11-12. The Court’s decision has therefore called into question the validity of hundreds of thousands of claims in issued patents, and will likely lead to a dramatic change to the method by which the Patent Office, the courts, and the bar conduct their obviousness analyses.

Nevertheless, the Supreme Court’s opinion appears self-consciously narrow and provides little additional guidance for how to apply the Graham approach. The Court’s decision leaves unclear whether the party with the burden of proving obviousness must demonstrate that “there was an apparent reason to combine the known elements in the fashion claimed by the patent at issue,” or only that the claim at issue if patented would reflect an “advance[] that would occur in the ordinary course without real innovation[, which] retards progress and may, in the case of patents combining previously known elements, deprive inventions of their value or utility.” Slip op. at 14, 15. As the Court noted, “as progress beginning from higher levels of achievement is expected in the normal course, the results of ordinary innovation are not the subject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts.” Slip op. at 24. Although the Court recited the Constitutional language, it did not expressly hold that obviousness is a constitutional requirement. Further, the Court left to later case law any consideration of the extent to which the Court of Appeals’ more recent statements regarding the flexibility of its TSM test is consistent with Graham and the Supreme Court’s earlier precedents. Slip op. at 18.

Read the rest of this entry »

This analysis of the Court’s decision is from Lawrence Ebert, a New Jersey patent lawyer whose blog IPBiz covers intellectual property news.

At page 11 of the Supreme Court’s opinion in KSR v. Teleflex, Justice Kennedy writes: “We begin by rejecting the rigid approach of the Court of Appeals.” In this, Justice Kennedy is treating the matter as a combination of known elements case, and notes that the combination of old elements is likely to be obvious when it (the combination) does no more than yield predictable results. Kennedy brings up previous cases, first the Adams battery case from 1966, then the asphalt case from 1969, and finally the Sakraida case from 1976. At page 13, one has discussion of “the predictable use of prior art elements according to their established functions.”

Kennedy notes that “To facilitate review, this analysis should be made explicit,” citing to the CAFC, 441 F.3d 977, BUT Kennedy also notes “a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” At page 15, Kennedy writes: “Helpful insights, however, need not become rigid and mandatory formulas; and when it so applied, the teaching-suggestion-motivation (TSM) test is incompatible with our precedents.” Kennedy speaks of an “overemphasis on the importance of published articles and the explicit content of issued patents.” Kennedy directly addresses concerns put forth by the IT community: “In many fields it may be that there is little discussion of obvious techniques or combinations, and it often may be the case that market demand, rather than scientific literature, will drive design trends. Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may, in the case of patents combining previously known elements, deprive prior inventions of their value or utility.” [Think about that sentence for a moment. Think about how it might be applied in the Thomson / WARF stem cell matter.] Kennedy concludes this section of the opinion with the statement: “But when a court transforms a general principle into a rigid rule that limits the obviousness inquiry, as the Court of Appeals did here, it errs.”

The opinion gets interesting at page 16, at the point wherein the Court identifies specific errors of the Court of Appeals for the Federal Circuit. Keep in mind, the CAFC KSR opinion was NOT precedential, and only found that the district court had not written down a reason to combine the references.

Read the rest of this entry »

The Supreme Court, in a major victory for Microsoft Corp., ruled by a 7-1 vote on Monday that U.S. patent law does not bar foreign making of copies of digital code to be installed in computers made and sold abroad. Current patent law does not reach that far, Justice Ruth Bader Ginsburg wrote for the Court. If patent law is to be adjusted to account for “the realities of software distribution,” that is up to Congress, the Court said. Justice John Paul Stevens was the lone dissenter; Chief Justice John G. Roberts, Jr., took no part in the ruling. The case was Microsoft Corp. v. AT&T (05-1056).

In a second ruling on patent law, the Court decided unanimously that the Federal Circuit Court had been wrong in taking a narrow view of when an invention is “obvious” and thus cannot be patented. The ruling favored a Canadian company in a dispute over an adjustable accelerator pedal for cars and trucks. The Court in an opinion by Justice Anthony M. Kennedy concluded that the claimed invention by Teleflex, Inc., was obvious. The case was KSR International v. Teleflex (04-1350).

In an 8-1 decision, the Court ruled that police do not act unconstitutionally when they try to stop a suspect fleeing at high speed by ramming the suspect’s car from the rear, forcing it to crash. The car chase that led to the bumping and crash, Justice Antonin Scalia wrote for the Court, posed “a substantial and immediate risk of serious physical injury to others.” Thus, the attempt to terminate the chase by forcing the car off the road was “reasonable” under the Fourth Amendment. Justice Stevens dissented alone; he took a step that is somewhat unusual for him, reciting orally from the bench his reasons for disagreeing with his colleagues. The case was Scott v. Harris (05-1631).

In a fourth ruling, the Court decided that if a taxpayer could have sued to challenge an erroneous federal tax levy, but fails to do so on time, may not later sue for a refund. The unanimous ruling came in EC Terms of Trust v. U.S. (05-1541).

In the fifth and final ruling of the day, the Court divided 6-3 in deciding that a local government does not violate the Constitution when it requires all solid waste generated in the community to be processed at a publicly owned facility, so long as the ordinance treats private businesses the same whether they are local or out-of-state. The widely splintered ruling, announced by the Chief Justice, came in United Haulers Association v. Oneida-Herkimer Solid Waste Management (05-1345).

The Court has now recessed until May 14, which will be the next opportunity for rulings on the merits. Its next private Conference will be on Thursday, May 10; now that all hearings have been concluded, the Court is switching its Conference day from Friday to Thursday.

By Dennis Crouch

Today’s two patent decisions came-out as expected — both cases make patents less valuable. Because of KSR, patents will be more difficult to enforce and easier to invalidate. The AT&T case cuts in-half the value of many of today’s most valuable software patents.

I had expected that the KSR decision would operate something like a sledge-hammer and entirely shift the focus of obviousness analysis. Instead, the opinion appears to simply refine the particulars of how prior-art can be combined and when a “combination patent” will be seen as obvious. Inventions that introduce the world to entirely new concepts and elements will continue to be more valuable. Of course, those types of inventions are often more difficult to achieve than ones that simply recombine a set of well-known parts.

There is some hope that the KSR decision will eventually result in a restoration of respect and pride in the US patent system — concepts that have been missing for a number of years. This decision may result in fewer patents issued by the USPTO — If the stars align, that new generation of heartier patents just might help lead us to a new level of innovation.

UPDATED 11:36 a.m.

The Supreme Court on Monday denied review of the latest Guantanamo Bay appeal, involving two prisoners who face war crimes trials before “military commissions.” Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter voted to hear the joint appeal of Salim Ahmed Hamdan and Omar Ahmed Khadr, but it takes the votes of four to grant review. The case was Hamdan v. Gates/Khadr v. Bush (06-1169).

The Court’s action came in a two-sentence order, with no opinion. The three Justices who wanted to hear the case were the same three who voted on April 2 to hear two packets of detainee cases involving individuals who do not face criminal charges — Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196). The denial of review in those cases, in contrast to Monday’s action, brought an opinion by two Justices (John Paul Stevens and Anthony M. Kennedy) suggesting that the Court wanted the detainees to try first to get some legal relief in the D.C. Circuit Court. Although nothing was written on Monday, that same approach may have been at work again. It seems likely that Justice Stevens, too, would have voted to hear the Hamdan/Khadr petition, had he had some confidence that, on the merits, Justice Kennedy would be in favor of some relief for the detainees as he was last Term when Hamdan’s case first came to the Court.

Hamdan’s part of the new case was an attempt to bypass the Circuit Court, to get direct Supreme Court review of a District Court ruling against him. Khadr’s part of the case was an attempt to get the Court to review the same Circuit Court ruling that the Justices had denied early in the month in the other cases. Both sought to challenge the constitutionality of Congress’ move last year to cut off all habeas challenges by war-on-terrorism captives.

The Justices granted review Monday in only one case — the appeal by Mexican national Jose Ernesto Medellin, now on death row in Texas. His appeal raises a major question about presidential power to direct state courts to obey a World Court ruling on the rights of foreign nationals arrested and prosecuted in the U.S. Medellin’s appeal on the question of presidential authority is supported by the Bush Administration. The case is Medellin v. Texas (06-984).

The Court took no action Monday on the case of Doe v. Kamehameha Schools (06-1202), a significant test case on whether private schools violate federal law by using race preferences in admitting students as a way to remedy imbalances in educational performance. The Court has examined that case at three separate Conferences without acting. Presumably, it will be up for discussion again in May.

Among a number of test cases that the Court declined on Monday to hear was a dispute between a same-sex couple who joined in a civil union but have since split up over rights of visitation to their daughter — a controversy that has engaged state courts in both Vermont and Virginia. The appeal by the biological mother of the child came before proceedings had been completed in either state’s courts. The case is Miller-Jenkins v. Miller-Jenkins (06-1110). Advocacy groups that oppose same-sex marriage or civil unions had sought to turn the appeal into a test of a state’s authority to refuse under the federal Defense of Marriage Act to respect any parental rights recognized for a same-sex partner in another state.

Here were the issues denied review in other significant cases:
** Would the Court clarify the constitutional test for judging a state legislature’s move to undo labor union contracts entered by cities or other political subdivisions of the state in order to ease budget pressures on city government. (Buffalo Teachers Federation et al. v. Tobe, et al. (06-1168).
** It is unconstitutional for a city government to use its power to condemn private property for public use, if that alters the terms of contracts private firms entered so as to aid a private developer in pursuing another private project. The case was an attempt to get the Court to clarify further its major ruling on the “public use” issue in eminent domain, Kelo v. New London in 2005. The new case was Kaufmann’s, et al., v. Syracuse (06-1159).
** Did the federal government have the authority to adopt a new rule exempting a wide variety of changes in power plant and other factories’ equipment from pre-installation air pollution review. The D.C. Circuit Court struck down a 2003 Environmental Protection Agency rule allowing such exemptions. Chief Justice Roberts took no part in the consideration that led to denial of review of EPA v. New York (06-736) and Utility Air Regulatory Group v. New York (06-750).
** Did the Federal Energy Regulatory Commission have any authority to set rates on purchases of energy that may intrude on state regulation of retail electricity rates. The D.C. Circuit upheld a formula used by the Commission for power purchases by electric generating firms when they are using the electricity to power their own stations. (Niagara Mohawk v. FERC, 06-1010, and New York v. FERC, 06-1011).
** If a state is sued in its own courts, and the state then transfers the case to federal court for trial, can the state then claim 11th Amendment immunity to the lawsuit. The 5th Circuit Court said no, but there is a split in the Circuit Courts on the issue. The denied case was Texas v. Meyers (06-462).

In today’s Fourth Amendment decision about running a fleeing car off the road, there is a factual dispute about exactly what happened, and the Court notes that because the case is in a summary judgment posture, ordinarily it would accept the plainitiff’s version of the facts for purposes of the motion — except that in this case, there’s a videotape of the event, and the Court concludes that the videotape contradicts the version of the facts assumed by the plaintiff and the court of appeals. Justice Stevens argues that the videotape is sufficiently ambiguous such that a jury should be able to determine whether the deadly force it depicts was reasonable or not, but the Court isn’t buying it:

“We are happy to allow the videotape to speak for itself,” writes Justice Scalia — and then he provides a URL citation (http://www.supremecourtus.gov/opinions/video/scott_v_harris.rmvb) for an upload of the videotape to the Supreme Court’s own website!

And Justice Breyer, concurring, writes: “Because watching the video footage of the car chase made a difference to my own view of the case, I suggest that the interested reader take advantage of the link in the Court’’s opinion, ante, at 5, n. 5, and watch it.” (It’s just short of sixteen minutes long.)

I assume this is a first. And I’m fairly confident the Court has never before written anything like the bolded sentence in this passage:

When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment. That was the case here with regard to the factual issue whether respondent was driving in such fashion as to endanger human life. Respondent’s version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.

Justice Stevens has some fairly harsh words for his colleagues:

Relying on a de novo review of a videotape of a portion of a nighttime chase on a lightly traveled road in Georgia where no pedestrians or other “bystanders” were present, buttressed by uninformed speculation about the possible consequences of discontinuing the chase, eight of the jurors on this Court [!!] reach a verdict that differs from the views of the judges on both the District Court and the Court of Appeals who are surely more familiar with the hazards of driving on Georgia roads than we are.

This is my favorite part — Justice Stevens’s suggestion that his colleagues are simply too young to have a proper understanding of exactly what it is that they’re watching:

I can only conclude that my colleagues were unduly frightened by two or three images on the tape that looked like bursts of lightning or explosions, but were in fact merely the headlights of vehicles zooming by in the opposite lane. Had they learned to drive when most high-speed driving took place on two-lane roads rather than on super-highways — —when split-second judgments about the risk of passing a slowpoke in the face of oncoming traffic were routine— — they might well have reacted to the videotape more dispassionately.

Putting aside the disputed interpretation of the video in this particular case, what’ s more important is that it is only a matter of time, I think — perhaps decades, perhaps not so long — before legislatures begin to require that many more police activities, including most importantly interrogations, must be videotaped. And this will, I predict, have a profound impact on constitutional jurisprudence, and, more importantly, on police practices.

The AP’s Pete Yost has this article reporting that the Court ruled in favor of Microsoft, limiting the reach of U.S. patents abroad; Peter Kaplan of Reuters reports here on the opinion in Microsoft Corp. v. AT&T (No. 05-1056).

Greg Stohr of Bloomberg has this article on the Court’s opinion in KSR v. Teleflex (No. 04-1350), which puts new restrictions on patent rights.

The AP’s Mark Sherman reports here on the Supreme Court’s decision in Scott v. Harris (No. 05-1631) protecting police officers from lawsuits resulting from high-speed car chases.

Reuters has this report on the Court’s decision to deny review of a Bush administration appeal defending its rule permitting factories and power plants to upgrade equipment without installing up-to-date pollution controls; Greg Stohr of Bloomberg reports here on the refusal to hear EPA v. New York (No. 06-736) and Utility Air Regulatory Group v. New York (No. 06- 750).

The AP has this article on the Court’s decision to deny review of Hamdan v. Gates/Khadr v. Bush (No. 06-1169), the latest Guantanamo Bay appeal.

James Vicini reports here on the Court’s decision to hear the Medillin (No. 06-984) capital case for Reuters; Bloomberg’s Greg Stohr has this article on the case of a Mexican national facing the death penalty in Texas; and Mark Sherman reports here for the Associated Press.

Today’s Order List is here. There were five opinions today:

The opinion in KSR v. Teleflex is here.
Microsoft v. AT&T is here.
United Hauler’s is here.
Scott v. Harris is here. The Court has also posted a video along with its decision here (Real Video).
EC Term of Years Trust is here.

With Justice Kennedy’s opinion today in KSR, it is now likely and unsurprising, but by no means certain, that the Chief Justice is writing the lead opinion(s) in the Seattle and Louisville equal protection cases. If, by some small chance, Justice Alito is voting with the more liberal wing of the Court, then there’s a chance that Justice Stevens would have assigned the opinion(s) to him. Justice Souter also has not yet written from the November/December sitting; but I think it’s unlikely that he was assigned the opinion(s) in the school cases.

There is also a chance that the two school cases could come out different ways — in particular, that the Louisville plan could be upheld while the Seattle plan is invalidated. If so, there’s still a chance that another Justice — probably Justice Kennedy — would write one of the two opinions.

The Court is scheduled to issue regular orders at 10 AM eastern and is also likely to release one or more opinions at that time. We will have coverage of both as soon as possible after they are made public.

Turned down last week by Chief Justice John G. Roberts, Jr., in one effort to gain time to test their legal rights in lower courts, Guantanamo Bay detainees late Friday sought to draw the full Court back into the controversy. They filed two petitions for rehearing, one in each of the two cases in which the Court had denied review April 2, and simultaneously asked the Court not to act on the new filings until after the detainees complete appeals in the D.C. Circuit Court. Friday was the deadline for seeking rehearing of the orders denying review.

The petiton for rehearing in Boumedienev. Bush (06-1195) can be found here. Relying on the arguments in that filing, a separate rehearing petition was filed in Al Odah v. U.S.; it can be found here. The motion to defer consideration is here.

In addition, as required under the Court’s Rule 44, the detainees’ lawyers filed certificates saying the rehearing requests were filed in “good faith” and not for delay, and that the request was based on “intervening circumstances of a substantial and controlling effect and other substantial grounds not previously presented.”

Rehearing peititons go to the full Court, and can be granted only by a majority of the Court. No response to such a petition is allowed, unless the Court asks for it, but ordinarily rehearing will not be granted until the other side is invited to respond, according to the Rules. Last Thursday, the Chief Justice turned down two pleas — to suspend the order denyhing review of the two appeals, and extending for four months the deadline to seek rehearing. After that ruling by Roberts, the detainees’ only other optiion was to promptly seek rehearing.

Lawyers for the detainees, whose legal fate has only recently drawn the interest of major news organizations, have been maneuvering for more than three weeks to set up a new chance to challenge the constitutionality of the action by Congress last year to scuttle all habeas challenges by war-on-terrorism captives, leaving them only with limited review before the D.C. Circuit Court of their detention based only on military evidence. The core of the strategy is to try to keep the detainees’ original habeas challenges alive on a temporary basis, until a new test of Congress’ authority to wipe out habeas pleas can be set up for a return to the Supreme Court..

Another principal aim of the legal strategy is to try to keep in place protective orders (issued in the original habeas cases) that preserve lawyers’ access to the detainees and to information to defend their clients in military proceedings and before the D.C. Circuit in the status reviews.

The rehearing petition along with deferral of consideration of that petition, the Boumediene group argued, “will preserve the best vehicle” for returning to the Court to challenge Congress’ authority to strip courts of habeas jurisdiction — the main issue the Court declined to answer, at this time, in its April 2 refusal to hear the two detainee appeals.

“It would be a substantial waste of judicial resources — as well as a profound deprivation of [detainees’] right to speedy habeas review of executive detention that has already lasted more than five years — to force [detainees] to re-file an original habeas action in the district court and once again pursue every issue that has already been exhaustively litigated in this case,” the petition contended.

Terminating the Supreme Court’s involvement with the cases now, by acting on and denying the rehearing petition, “is likely to strip [detainees] of their ability to communicate meaningfully with counsel, as well as result in the destruction of critical classified materials that are essential to [their] pursuit of relief,” the petition said.

In asking for deferral of the rehearing question, the detainees sought to have the Court put the matter on hold until after the D.C. Circuit Court resolves the limited challenges the detainees are allowed to make under the Detainee Treatment Act of 2005. The scope of that review, the petition said, and the relief open to detainees, will be clarified by decisions in the court of appeals expected “over the course of the next Term. Those decisions are highly likely to remove any obstacle” to Supreme Court review of the important questions raised in the two petitions for certiorari, the filing argued.

Asserting that the rehearing request satisfies the requirements of Rule 44, those circumstances will soon arise, according to detainees’ counsel. “The pursuit of DTA remedies in the coming months by petitioners and other detainees constitutes an ‘intervening circumstance of a substantial or controlling effect’ and will also give rise to ‘other substantial grounds not previously presented,” according to the petition.

The lawyers promised to “assiduously prepare” their new DTA challenges, and press them “vigorously in pursuit of an expeditious resolution.”

The government, on the other side of the cases, could be asked for a response fairly soon, although there is no certainty of that. If asked, the government presumably would resist the requests. The government has a strong interest in getting all existing habeas cases dismissed, to move on to the DTA review at the Circuit Court level. It also is seeking, at the Circuit Court, a new “protective order” that would limit lawyers’ access to detainees, among other restrictions. The Circuit Court will hold a hearing on those issues on May 15.

The AP’s Mark Sherman has this midterm review of the Supreme Court reporting on the Chief Justice’s recent dissent in the Texas capital cases, Kennedy’s voting record and the Court’s interest in the death penalty.

At Deliberations, Anne Reed has this post about the lack of clarity surrounding death penalty instructions for jurors, as exhibited by the Court’s opinions on Wednesday. Here, Doug Berman of Sentencing Law and Policy discusses Chief Justice Roberts’s dissent in the death penalty rulings. Capital Defense Weekly offers this background on Texas death penalty law.

Caitlin E. Borgman of the Reproductive Rights Prof Blog discusses the aftermath of the Gonzales v. Carhart decision here, referring to this article by Judy Peres in today’s Chicago Tribune. NPR’s Julie Rovner has this audio segment on “Morning Edition” reporting that the Court’s ruling has energized the abortion debate on Capitol Hill. At Part-Time Pundit, John Bambenek has this post analyzing the merits of the Court’s ruling. And University of Chicago Law School Professor Rick Garnett has this op-ed, entitled “Carhart, Casey, and the Supreme Court’s Catholics,” at Jurist.

The Associated Press has this article on the Chief Justice’s decision to deny two requests by Guantanamo Bay detainees to prevent the dismissal of their cases.

Finally, Adam Liptak of the New York Times had this article about where the Supreme Court is headed in last Sunday’s “Week in Review”.

The Second Circuit Court has asked the two sides in one of the three test cases on the constitutionality of the first federal abortion ban to file new briefs on what is to be done with that case. In an order dated Wednesday (text available on Howard Bashman’s How Appealing blog , the Circuit Court panel split 2-1 in calling for supplemental briefs on the impact of the Supreme Court’s April 18 ruling in Gonzales v. Carhart (05=380) and a companion case) upholding the federal “Partial-Birth Abortion Ban Act” of 2003.

The majority said it was “following our usual practice of allowing the parties to present their views following a relevant Supreme Court decision.” The dissenter, Circuit Judge Chester J. Straub, said “the only path available” to the Circuit Court was to wipe out its earlier ruling striking down the federal law and to send the case back to District Court for an order upholding the law “pursuant to Carhart.” Said Judge Straub: “I believe that Carhart requires this result….There simply is no remedy available much less one requiring the further expression of views in the context of this case.”

The Second Circuit’s decision in the case of National Abortion Federation, et al., v. Gonzales (Circuit docket 04-5201) was not before the Supreme Court in Carhar. In its original 2-1 ruling on in January 2006, the Circuit Court had found the 2003 Act unconstitutional; Judge Straub dissented, arguing it was a valid exercise of Congress’ power. The Circuit Court, however, had ordered further briefing on a remedy, then stayed that order pending the Supreme Court ruling. The Act before the Circuit Court, of course, was the same one at issue before the Supreme Court.

A speculative thought from this post’s author:
One issue that was not decided by the Supreme Court — it was not raised by the parties, although amici did so — was whether the 2003 Act was a valid use of Congress’ power under the Commerce Clause, since the Act involved federal regulation of medical practice. Justice Anthony M. Kennedy’s majority opinion said the Act was passed “under the Commerce Clause” (slip opinion at p. 36), but Justices Clarence Thomas and Antonin Scalia said in a concurring opinion that the validity of such Commerce Clause regulation was not before the Court. Once the case in the Second Circuit goes back to District Court, as presumably it will, it is possible that that issue could be raised directly. It has become clear for some time, however, that abortion rights groups have not been willing to challenge Congress under the Commerce Clause, because they do not want to undercut a future plea for federal legislation seeking to protect women’s rights or minority rights. William and Mary law professor Neal Devins discusses this strategic consideration in a just-released article in the St. John’s Journal of Legal Commentary; here is a link to the issue; from that link, one can access a PDF version of Professor Devins’ article.

(Thanks to Howard Bashman for flagging the Circuit Court order.)

The public defender for a Minnesota prison inmate told the Supreme Court on Thursday that judges in “no fewer than 15 states” have reached conflicting conclusions about whether state courts are free under state law to make retroactive criminal law decisions by the Supreme Court, that the Court has held are not retroactive in federal cases. The filing of this supplemental reply (it can be found here) sets the stage for the Court to act on the case of Danforth v. Minnesota (06-8273).

The Court itself has never explicitly answered the question that the Danforth case raises — an issue that the Court found sufficiently interesting as to ask the state for a full response on it. The state insisted that the Court has already made clear that the retroactivity of its criminal law decisions is a federal question, so the Court’s refusal to make such a decision apply to early cases is binding on the state courts.

Answering that contention, the public defender for Stephen Danforth commented: “If the question presented was as settled as [the state] claims it to be, it is hard to imagine that courts in so many states would have gotten the law so wrong.” Danforth is seeking to take advantage, under Minnesota law, of the Supreme Court’s 2004 decision in Crawford v. Washington limiting use at trial of pre-trial testimony not subjected to cross examination. The Supreme Court has ruled, in Whorton v. Bockting, that Crawford is not retroactive in federal habeas cases under the analytical approach laid down in 1989 in Teague v. Lane..

(An earlier post discussing the Court’s interest in this case can be found here and a report on Minnesota’s response is here.)

The following entry is by Sarah Rispin, an associate in Akin Gump’s DC office who participated in this case as counsel for the United Conference of Mayors, which submitted an amicus brief supporting respondent. Her preview of this can be found here.

The Court heard argument on Monday in United States v. Atlantic Research, the second of two highly anticipated environmental cases this term (after Massachusetts v. EPA). The issue presented was whether Section 107(a) of the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) provides a right of contribution to land owners who remediate contaminated land before they are the subject of a federal or state enforcement action. (The Court had interpreted the right of contribution from section 113(f) to be so limited two terms ago, in Cooper Services v. Aviall Systems.) Deputy Solicitor General Thomas Hungar argued for the United States, Thomas Armstrong of Von Briesen & Roper argued on behalf of Atlantic Research, and Washington State Deputy Solicitor General Jay Geck argued on behalf of Washington, forty additional states, Washington D.C., and Puerto Rico, who had filed as amici.

As in the briefs, argument centered on the liability provisions of Section 107, from which a contribution right has been implied (although it is not explicit). That section provides that potentially responsible parties (PRPs) shall be responsible for: “all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan; [and] any other necessary costs of response incurred by any other person consistent with the national contingency plan[.]”

Read the rest of this entry »

The Court is holding a private Conference today to discuss new and pending cases. Our list of “Petitions to Watch” for this Conference can be found here.

If any orders are issued this afternoon, we will post them promptly. Regular orders relating to today’s Conference are scheduled to be released Monday at 10 AM eastern.