Yesterday, Robert Barnes hosted a discussion of the Court’s decision in Ledbetter v. Goodyear Tire Co.; the transcript is available here. NPR’s Nina Totenberg had this audio segment on “Morning Edition” yesterday; Tony Mauro reports here for the Legal Times; and Richard Thompson Ford has this piece at Slate.

The latest Supreme Court Memo from Linda Greenhouse discussing Justice Ginsburg’s two oral dissents this Term is available here in today’s New York Times; Ann Althouse has these thoughts on Greenhouse’s column at Althouse.

This editorial, also in today’s New York Times, encourages Congress to undo the Ledbetter decision and states that “in addition to interpreting the statute unreasonably and ignoring the relevant precedents, the majority blinded itself to the realities of the workplace.” The Washington Post ran this editorial urging Congress to “move quickly to strike an appropriate balance” between employees’ and employers’ concerns.

At the BLT, Mauro has this post on the death of the petitioner, Mario Claiborne, who’s sentencing case is pending before the Court; Doug Berman reports here at Sentencing Law and Policy.

In today’s Washington Times, Suzanne Fields has this op-ed discussing Justice O’Connor’s endeavor to improve civics education.

Lastly, Steve Vladeck has this post at Concurring Opinions discussing the significance of the Court’s decision in Watters v. Wachovia Bank.

In the wake of the Supreme Court’s refusal on April 30 to hear the appeals of two Guantanamo Bay detainees now facing war crimes trials, the D.C. Circuit Court has ruled that it has no authority to stop those trials from opening next Monday. In a brief order on Wednesday, a three-judge panel denied a plea to postpone the trial of a young Canadian detainee. “This court is without jurisdiction to grant the requested relief,” the order read.

The order, issued in Khadr v. Gates (07-1156), accepted in full the Bush Administration’s argument that Congress has taken away the power of the federal courts to take any action involving the war crimes “military commissions,” at least until after a trial is over and a guilty verdict reached on the charges. Attorneys for Omar Khadr, a 20-year-old who has been held by the U.S. military since he was 15, had argued that the Circuit Court clearly had the power to put off a commission trial until it could rule on whether a detainee had been validly classified as an “enemy combatant.” Only a prisoner given that designation by the military can be tried for war crimes, under federal law.

The Circuit Court’s only explanation of its finding that it had no jurisdiction to delay a war crimes proceeding was a citation to 10 U.S.C. 950-j-b. That is the provision in the new Military Commissions Act passed by Congress last fall specifying that no federal court (including the Supreme Court) may consider any claim about “the prosecution, trial, or judgment of a military commission” — with the one exception that the D.C. Circuit may review an actual conviction that results.

Khadr was one of two detainees facing war crimes trials who had asked the Supreme Court to allow them to continue with their habeas challenge to the commission process. The other was Salim Ahmed Hamdan. The Supreme Court, over three Justices’ dissents, declined to hear that case (Hamdan/Khadr v. Gates, 06-1169).

Hamdan’s case is returning to the D.C. Circuit, with the two sides ordered to file briefs there by June 9 on what should happen next with that case. Khadr’s attorneys on May 23 filed a petition for review in the D.C. Circuit, under the Detainee Treatment Act of 2005, seeking to challenge the military panel (Combatant Status Review Tribunal) that found him to be an “enemy combatant.” Simultaneously, his attorneys asked the Circuit Court to postpone his war crimes trial until the Circuit Court concluded whether he was properly classified as a “combatant.” That is the request the three judges denied Wednesday.

Both Khadr and Hamdan are scheduled to be arraigned — that is, given a chance to offer a plea — before military commissions at Guantanamo Bay, the U.S. military prison in Cuba, on Monday. An American Civil Liberties Union observer, Jameel Jaffer, will be relating what he sees and hears at those proceedings on a blog — http://blog.aclu.org. Hamdan is charged with a terrorist conspiracy and with providing support to terrorist activity. Khadr is charged with murder, attempted murder, conspiracy, material support of terrorism, and espionage. He is accused of killing an American soldier with a grenade in Afghanistan in 2002, when he was 15.

Khadr’s stay motion can be found here. The government’s opposition to the stay is here, and Khadr’s reply is here.

UPDATE, 2 p.m. Michael Dwyer, assistant federal public defender in St. Louis, formally notified the Supreme Court on Thursday that Mario Claiborne had died. Dwyer’s “suggestion of death” said that he had learned on Wednesday “that Petitioner Mario Claiborne died in St. Louis, Missouri, on May 30, 2007. Counsel does not know the exact cause of death and has not yet received official notice of Claiborne’s death from any governmental source. Petitioner’s mother confirmed his death to counsel. When Petitioner’s counsel receives a death certificate, he will file it with the Court.”

A 23-year-old St. Louis man identified by police there as Mario Claiborne was shot dead in an incident on city streets Tuesday, according to a story in the St. Louis Post-Dispatch newspaper. The federal public defender’s office in St. Louis indicated that this is the same individual whose case testing U.S. Sentencing Guidelines has been awaiting a decision by the Supreme Court. That office would not give details because attorneys who had worked on the case were unavailable.

The case of Claiborne v. U.S. (docket 06-5618) was heard by the Court on Feb. 20, along with a second Guidelines case (Rita v. U.S., 06-5754). The cases were heard in tandem because they both test what sentence under the Guideline may be treated as “reasonable” when challenged on appeal. The Clairborne appeal asks whether a sentence below the Guideline range is presumed to be reasonable, while the Rita case asks whether a sentence within a Guideline range is presumed to be reasonable.

Under Supreme Court Rule 35, when a party to a case has died, a personal representative may be named if the legal interests would survive the death. That would not be possible in a case involving a convicted and sentenced individual, who has the sole legal interest in the outcome. Thus, it would appear that the Claiborne case would simply be dismissed by the Court, leaving that aspect of the Guidelines reasonableness inquiry unsettled — unless the coming decision in the Rita case goes beyond the single issue presented there.

Claiborne was given a 15-month prison sentence for a cocaine possession crime, and that was below the minimum Guideline range of 37 months. The Eighth Circuit Court ordered a new sentencing, finding that a below-range sentence was unreasonable. Claiborne had been released pending the new sentencing.

If the deceased individual in St. Louis is, in fact, the same person as in the Court case, the Court is expected to be notified promptly of the death. Either side in the case may do so.

In a prior post, we described some of the comments made by some experienced Supreme Court practitioners on proposed revisions to the Court’s rules at a forum hosted by the Georgetown Supreme Court Institute. This post continues that report, addressing revisions relating to the time limits for filing merits and cert-stage amicus briefs.

Deadlines for Merits Briefs
Under the new rules, petitioners still have 45 days after cert. is granted to file their opening brief. The time for the respondent’s brief has been reduced by 5 days (from 35 to 30). More substantially, the time for filing a reply brief has been reduced by 10 days (from 35 to 25).

Initially, there was also some discussion about whether any changes to the briefing schedule were needed in the first place. It was widely believed that the Court’s recent difficulties in filling its argument calendar are to blame – the Court has been required to expedite briefing in a number of cases this Term to fill empty argument slots in upcoming sittings. But some wondered whether it made sense to accelerate the briefing schedule in all cases to deal with that occasional problem.

Not surprisingly, it was the reduction in the time for the reply brief that caused the greatest comment and concern among practitioners. That reaction varied. Some noted that even under the Court’s proposed revision, parties still have more time to file reply briefs than is allowed in the courts of appeals (14 days). Some also noted that the number of issues that must be briefed in the Supreme Court is generally smaller than that in the courts of appeals, reducing the need for an extended briefing period.

Others, however, felt that the reduction in time was unfortunate, for many of the same reasons a number of people gave in favor of extending the page limits for reply briefs. They noted that petitioners’ counsel increasingly must use the reply brief to respond to an expanding number of amicus briefs filed in support of respondent, briefs that are getting longer and less overlapping. They also noted that in the Supreme Court – unlike the courts of appeals – counsel is often preparing for oral argument during the same time period in which the reply brief is being written (while the Supreme Court generally sets cases for argument a few weeks after briefing is completed, parties in the lower courts often wait for up to a year between briefing and argument).

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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.

Regular orders relating to today’s Conference are scheduled to be released Monday at 10 AM eastern.

In today’s New York Times, Linda Greenhouse reports here on the Ledbetter ruling, making it more difficult for workers to sue employers for pay discrimination; Paul Secunda has these thoughts at the Workplace Prof Blog. Aaron Streett’s latest Supreme Court Update, discussing yesterday’s opinion and orders, is available here at Baker Botts. At the TaxProf Blog, Paul Caron has this post on the Court’s decision to grant certiorari in CSX Transportation, Inc. v. Georgia Board of Equalization.

At the Harvard Law School Corporate Governance Blog, University of Denver Law Professor J. Robert Brown Jr. has this analysis of the recusals in the Stoneridge grant and the implications for the Court’s consideration of the Fifth Circuit’s Enron litigation.

Rick Hasen discusses the Sanchez v. City of Modesto appellate court case, in which the Modesto City Council has decided to file a cert. petition to the High Court, here at the Election Law Blog.

In the current issue of the New England Journal of Medicine, there are several articles discussing the Supreme Court’s April Gonzales v. Carhart ruling, including: this article from George J. Annas discussing the constitutional law of reproductive liberty and the Court’s recent Carhart decision; this perspective by R. Alta Charo entitled “The Partial Death of Abortion Rights”; this perspective from Michael F. Greene describing “the intimidating environment surrounding pregnancy terminations” as a result of the ruling; and this editorial by Jeffrey M. Drazen stating that “the Supreme Court has sanctioned the intrusion of legislation into the day-to-day practice of medicine.”

The blogosphere has been treated in recent days to a group of law professors of varying ideological preferences pronouncing it within Congress’ constitutional powers (some even said “well within”) to compel the Supreme Court to allow television coverage of oral arguments. Despite diligent searching, none of those academics has located a precedent that settles the matter, although a few cases have been mentioned suggestively. There is a brand-new lower court precedent, though, that makes the point that inter-branch modesty remains a virtue — that is, there is a public good in avoiding meddling in another branch’s inner workings.

The ruling came in Public Citizen v. U.S. District Court, released on Tuesday by the D.C. Circuit Court in Washington (docket 06-5232). It has to do with the avoidance of judicial meddline with legislative prerogative, and thus is not directly on point in the current debate about Congress’ power to tell the Justices how to run their public sessions. But there is a constitutional principle here, and that may well have some relevance.

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On Friday the SG’s office filed this brief recommending that the Court deny cert. in No. 06-457, Rowe v. New Hampshire Motor Transport Association. The SG’s brief in Rowe is also, in all likelihood, the last invitation brief that will be filed this Term; although we had previously indicated (in this post) that we expected a brief in No. 06-415, Selig v. Pediatric Specialty Care, last Friday was — as we understand it — the last day for the SG to file a brief and (if the normal timelines are followed) still have the case considered before the Court’s summer recess, and the Court’s electronic docket does not indicate that any such brief was filed. (Thanks to J.C. Andre for pointing this out.)

If (as we now expect) the brief in Rowe is indeed the last SG brief for the Term, the final score is six recommended denials and just one recommended grant (in No. 06-856, LaRue v. DeWolff, Boberg & Associates, which we discussed here). Although the Court normally accords substantial weight to the SG’s recommendations — and it would thus seem likely that this group of CVSG cases would not be a significant source of new cases for the Court’s OT2007 docket — the Court’s need for cases could change the calculus considerably.

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The latest edition of “Conference Call” in Legal Times (column archive here; subscription req’d) featured petitions to watch for the Justices’ Conference of 5/31. The SCOTUSblog supplement, containing downloadable versions of the highlighted petitions (and, thanks to the continuing assistance of those involved in the cases, a great many other cert. stage filings), can now be found here.

Previous editions of “Petitions to Watch” can be accessed via the “Term Tracker” link.

UPDATE June 4: The case has now been docketed as 06-1613.

UPDATE Thursday p.m.
The Constitution Project on Thursday released a report urging Congress to narrow the “state secrets” privilege that is at issue in the petition for review discussed in this post. The Project calls for new “statutory language to clarify that judges, not the executive branch, have the final say about whether disputed evidence is subject to the state secrets privilege.” The full report is available at this link.

UPDATE 5:05 p.m.
After some delay, the petition is now available for downloading; the link is below.

Lawyers for a German citizen who has sued to challenge the government’s secret program of overseas detention and interrogation of individuals it suspects have terrorist ties asked the Supreme Court on Wednesday to clarify and limit the so-called “state secrets” privilege. The Court has not ruled direclty on the scope of that evidentiary limitation since the 1953 case of U.S. v. Reynolds. If the Reynolds precedent now allows the government to shut down a lawsuit over secret operations before any evidence is even offered, that ruling should be reconsidered and narrowed, the appeal in El-Masri v. U.S. argues. The new petition, filed by the American Civil Liberties Union, can be downloaded at this site. The case has not yet been assigned a docket number.

The case involves Khaled El-Masri, who lives near Neu Ulm, Germany. He has been a carpenter and car salesman, but since late December 2003 has been caught up in an international diplomatic and legal controversy over the Central Intelligence Agency’s “extraordinary rendition” program, and the part he involuntarily played in that activity. His lawsuit aimed at U.S. officials has been thrown out before it could proceed after the federal government invoked the “state secrets” privilege to stop it. Besides pursuing his lawsuit, El-Masri has asked the U.S. government for an apology “because I am an innocent man who has never been charged with any crime.”

The petition raises this question: “Whether the Court of Appeals [Fourth Circuit] erred in affirmed the pleading-stage dismissal, on the basis of the evidentiary state secrets privilege, of a suit seeking compensation for petitioner’s unlawful abduction, arbitrary detention, and torture by agents of the United States?”

Since the Reynolds decision 54 years ago, the petition argues, “the privilege has become nmoored from its evidentiary origins. No longer is the privilege invoked solely with respect to discrete and allegedly secret evidence; rather, the government now routinely invokes the privilege at the pleading stage, before any evidentiary disputes have arisen. Indeed, Reynolds’ instruction that courts are to weigh a plaintiff’s showing of need for particular evidence in determining how deeply to probe the government’s claim of privilege is rendered wholly meaningless when the privilege is invoked before any request for evidence has been made.”

The privilege is being invoked much more frequently by the government than in the past, the petition says. The result, it adds, is that the government “seeks effectively to transform it from an evidentiary privilege into an immunity doctrine, thereby neutralizing constitutional constraints on executive powers….In particular, since Sept. 11, 2001, the government has invoked the privilege frequently in cases that present serious and plausible allegations of grave executive misconduct” — including, of course, El-Masri’s case.

“Mr. El Masri’s case,” according to the petition, “provides a compelling example of the lower courts’ acquiescence in the government’s expansion of the privilege beyond its evidentiary foundation. In this case, the government sought outright dismissal of Mr. El-Masri’s claims by invoking an evidentiary privilege before any evidence had even been requested. Indeed, the government’s arguments were not evidentiary: the government did not, because it could not, invoke the privilege with respect to specific evidence.” So, it simply relied on former CIA Director George Tenet’s speculation about what might be offered, and the argument that no allegation could be confirmed or denied without harming national security. “Nothing in Reynolds emotely sanctions such a practice,” the appeal contends.

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No oral arguments are scheduled and no non-capital orders or opinions are expected to be issued today from the Supreme Court. The next day for orders and opinions is June 4.

You can now download an updated edition of the “Stat Pack” here.

If you have any suggestions for what other information should be included each week, email me here.

In No. 06-1164, John R. Sand & Gravel Co. v. United States, in which cert. was granted today, the Court will consider whether the Tucker Act’s six-year statute of limitations is jurisdictional (and thus may not be waived by the parties).

In May 2002, petitioner John R. Sand & Gravel Co. filed a lawsuit against the United States in the Court of Claims, alleging that the EPA’s remediation work at a landfill effected a physical taking of its lease to mine sand and gravel at the site. The United States responded that JRS&G’s claims were time-barred. The Court of Claims agreed in part and entered judgment for the government on the remaining claims. On appeal, although the government did not challenge the timeliness of JRS&G’s remaining claims, an amicus raised the issue in its brief. Addressing the issue, the Federal Circuit held that the Tucker Act’s six-year statute of limitations is jurisdictional and cannot be waived. The court of appeals explained that the statute of limitations is “a condition that must be met for a waiver of sovereign immunity in a suit for money damages against the United States.” Because JRS&G’s takings claim accrued in February 1994, the court continued, it was time-barred and the Court of Federal Claims lacked jurisdiction to consider it.

After its petition for rehearing was denied, JRS&G sought certiorari. Today the Court agreed to review the jurisdictional question; the case is expected to be argued in the fall.

David G. Savage of the LA Times reports here on the Supreme Court’s 5-4 decision in Ledbetter v. Goodyear, “a victory for employers”; Bloomberg’s Greg Stohr reports here; James Vicini of Reuters has this article on the ruling, which puts a six-month limit on pay discrimination lawsuits; at MarketWatch, Mark H. Anderson reports here.

The AP’s Mark Sherman has this story on the decision, which broke along ideological lines; here at NPR, Dahlia Lithwick discusses the ruling with Alex Cohen on “Day to Day”; CNN Supreme Court Producer Bill Mears reports here on the ruling and Justice Ginsburg’s “sharply worded” dissent; in the New York Times, David Stout has this article discussing the Court’s opinion and noting that Justice Ginsburg “read part of her dissent aloud (itself an unmistakable sign of anger)”; the Washington Post’s Robert Barnes has this article discussing the Court’s ruling; Joan Biskupic reports here in the USA Today.

Scott Lemieux weighs in here at Tapped, the group blog of The American Prospect; Frank Steinberg has this post at the New Jersey Employment Law Blog; and the ACSBlog has this post. Ross Runkel discusses today’s opinion here at Law Memo.

The Associated Press reports here on today’s grants in three business-related disputes; Doug Berman has this post discussing today’s action and a notable cert. denial in the Washington v. VanDelft sentencing case.

In yesterday’s New York Times, Linda Greenhouse’s latest “Supreme Court Memo” column, available here, discussed statutory cases before the Supreme Court, Hackworth v. Progressive Casualty Insurance Company (a particular statutory case involving the Family and Medical Leave Act), and what these types of cases say about the Court’s “ordinary life.”

Peter Lattman has this post at the WSJ.com Law Blog on commencement addresses delivered over the weekend by Justice Roberts and Justice Alito. The AP reports here on Justice Alito’s graduation address at Seton Hall University School of Law.

In today’s Washington Post, Robert Barnes has this article on the interest in predicting the outcomes and authors of forthcoming Supreme Court opinions.

The latest Supreme Court Update from Aaron Streett of Baker Botts, analyzing last week’s opinions and orders, is available here.

At the Securities Law Prof Blog, Barbara Black has this post on the “intense lobbying campaign to persuade the SEC to file an amicus brief” in Stoneridge v. Scientific-Atlanta and the Enron case, Regents of the University of California v. Merrill Lynch; Kara Scannell of the Wall Street Journal reports here on whether the SEC will back shareholders in these cases; and Peter Lattman has this post at the WSJ.com Law Blog.

On Sunday, this editorial in the New York Times praised bills addressing enforcement of the Clean Water Act, which was muddled by a June 2006 Supreme Court decision.

Lastly, at the Boston ERISA & Insurance Litigation Blog, Stephen D. Rosenberg has this post discussing the Solicitor General’s brief in LaRue v. DeWolff, Boberg & Associates.