This week, I am back to posting primarily legal scholarship about the Supreme Court and the cases decided this past Term. As I think I have noted before, I sometimes post papers with which I disagree because I think they will be of interest to our readership. I rarely note disagreement in the academic round-up (often because of space limitations and the format), but do note such disagreement in longer posts that I write about individual pieces or cases.

Michael Dorf (Columbia Law School) has a new essay posted on the Harvard Law and Policy website, see here, which asks the following question: “Does Federal Executive Branch Experience Explain Why Some Republican Justices ‘Evolve’ and Others Don’t?” The piece is quite short, but enlightening. As Dorf points out, all of the Justices appointed by Republicans without executive branch experience in recent years have turned out to be more liberal than those with such experience. In the former category are Justices Blackmun, Powell, Stevens, O’Connor, Kennedy and Souter. In the latter category are Chief Justices Burger, Rehnquist, and Roberts, as well as Justices Scalia, Thomas and Alito. I wonder whether the hypothesis holds true for the circuit and district courts as well? My hypothesis is that it would not, but it is an area that warrants further empirical examination.

Virginia Law Review’s In Brief has posted a new case comment by Justin Weinstein-Tull (Yale Law School student) that examines the Court’s recent decision in Gonzales v. Carhart, see here. Although Weinstein-Tull laments the Court’s result in Gonzales, he notes that in potentially expanding the scope of Congressional power, the Court’s result “is promising for future civil rights legislation.”

Scott Baker (University of North Carolina Law School) has posted a new article on SSRN entitled “Should We Pay Federal Circuit Judges More?,” see here. As Baker notes, Chief Justice Roberts has stated that the most difficult issue facing the federal judiciary is low judicial salaries. The author finds that low judicial salaries do not impact votes in controversial cases, the speed of case disposition, or citation practices to outside circuit authority. The article does find, however, that lower judicial salaries do lead to slightly fewer dissents and slightly stronger opinions, as measured by out of circuit citations. The author essentially concludes that judicial pay is largely irrelevant to the functioning of the circuit courts. I query whether the same would be true for Supreme Court Justices?

The Washington Post has a particularly detailed article on Chief Justice John Roberts’ seizure yesterday, including information on his prior episode and interviews with neurologists.

Louis Fisher and David Gray Adler exhort Americans to remember that the Supreme Court’s decisions do not necessarily confer “finality or supremacy.” Instead, they argue, contributions to constitutional law must come from “Congress, the executive branch, the 50 states with their own constitutions and the people themselves.”

Rick Hasen at Election Law has posted an abstract for and a link to his paper on the sharp pendulum swing that the Court has seen “away from Supreme Court deference to campaign finance regulation toward perhaps the greatest period of deregulation” since before the 1974 amendments to the Federal Election Campaign Act.

Warren Watson outcries the implications of Morse v. Frederick for student speech rights and details some lawmakers’ efforts to pass laws that ensure free-expression rights to student journalists.

In the Christian Science Monitor, Lilly Ledbetter, the plaintiff in Ledbetter v. Goodyear, offers her take on the case and exhorts Congress to pass the Lilly Ledbetter Fair Pay Act.

Chief Justice John G. Roberts, Jr., left a medical center in Rockport, Maine, at 1l:15 Tuesday morning, and returned to his summer home. An Associated Press online video showed the smiling Roberts walking at a rapid pace out of the Penobscot Bay Medical Center, waving once to onlookers, then getting into a sport utility vehicle.

The Supreme Court public information office said there would be no further information on his recovery from a seizure on Monday afternoon when he fell on a dock near his vacation home close to the village of Port Clyde. Kathleen L. Arberg, the Court’s public information officer, said the Chief Justice would continue with his vacation.

Presidential Press Secretary Tony Snow told reporters who cover the White House that President Bush had talked with Roberts by telephone Tuesday morning, and that Roberts had said he was doing fine. Snow added that the Chief Justice “sounded like he was in great spirits.”

The following commentary is by Goodwin Liu, a law professor at UC Berkeley specializing in constitutional law, education policy, and the Supreme Court.

As the dust settles from the Supreme Court’s decision limiting the use of race in school assignment, one thing is clear: the legacy of Brown v. Board of Education as a symbol of America’s commitment to racial integration hangs by a thread. Were it not for Justice Kennedy’s controlling opinion, which said it is “profoundly mistaken” to suggest that we “must accept the status quo of racial isolation in schools,” the Court would have all but extinguished the promise and original meaning of Brown.

For supporters of civil rights, the Court’s decision is a disappointment. But it should not be a surprise-and not merely because of the conservative make-up of the current Court. Throughout its history, the Court has often failed to advance civil rights, while ironically the political branches of the federal government, provoked by the Court’s failures, have delivered many of our most significant civil rights gains. In this historical pattern lies an important lesson for the future of school integration.

The pattern goes all the way back to Dred Scott, the infamous 1856 case declaring that black people could not be citizens of the nation or any state. After the Civil War, Congress crafted the Fourteenth Amendment to undo the Court’s decision and, as part of that amendment, assigned Congress the authority to enforce the new principles of liberty and equal citizenship.

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UPDATE: At 6:40 p.m., the Supreme Court issued the following statement:

“Chief Justice John G. Roberts, Jr., took a fall about 2 p.m. today near his summer home in Maine after suffering what doctors describe as a benign idiopathic seizure. He experienced minor scrapes in the fall. The Chief Justice is fully recovered from the incident. He was taken by ambulance to Penobscot Bay Medical Center in Rockport, Maine, where he underwent a thorough neurological evaluation, which revealed no cause for concern. He will remain overnight at the medical center as a precaution. The Chief Justice experienced a similar event in 1993.

“The Chief Justice is 52 years old and was appointed to the Court in 2005.”

* * * * * * * * * *

UPDATED to 5:20 p.m. Supreme Court spokeswoman Kathleen Arberg said that the Chief Justice remained at the hospital at this hour, and that he was “conscious and alert.” She confirmed that he was taken for examination to the Penobscot Bay Medical Center in Rockport after a fall on a dock on Hupper Island at around 2 p.m. As of this time, Ms Arberg said, Roberts has not been admitted to the hospital.

* * * * * * * * * * * * *

Chief Justice John G. Roberts, Jr., fell at his vacation home on an island just off the coast of Maine at mid-afternoon Monday, and was taken by ambulance to a hospital in the area “as a precaution,” the Supreme Court disclosed. There were no immediate details on whether he was injured, or how severely, or about the circumstances of his fall, according to Kathleen L. Arberg, the Court’s public information officer. Roberts is 52.

His summer home, bought in the late spring of 2006, is on a 2-acre plot on Hupper Island, about 2 kilometers off the coast from a point near Port Clyde, Maine. Port Clyde is described locally as “a fishing village located on St. George Peninsula, which is a point of land between the towns of Thomaston and Rockland.” Roberts’ home there is about 225 feet from shore with a water view across Muscongus Bay toward the mainland, according to a news wire account in June 2006. That report said the island had 20 to 30 homes.

An initial report Monday indicated that the Chief Justice was taken to Penobscot Bay Medical Center in Rockport, Maine, within 15 miles of Port Clyde. A public information representative at the Center said at 4 p.m. Monday that she could not confirm “at this time” that the Chief Justice was a patient.

One news account said that Roberts was taken by private boat from his home to the mainland, and transported to Rockport by ambulance.

The D.C. Circuit Court on Monday afternoon temporarily blocked the federal government from transferring a Guantanamo Bay detainee to his home country, Algeria. The order involved Ahmed Belbacha, who has contended in court papers that he fears he will face torture or other abuse from “radical Islamist groups” if returned to Algeria, because he previously served in the Algerian military and worked for a government-owned company there.

The Circuit Court stressed that it was not deciding the transfer issue, but was barring his removal “to give the court sufficient opportunity to consider the merits of the motion to stay.” Its action, it added, “should not be considered in any way as a ruling on the merits of that motion.” It ordered the government to file a reply by 4 p.m. Tuesday.

U.S. District Judge Rosemary M. Collyer had refused to prevent the transfer on Friday, concluding that her court had lost jurisdiction over such cases under the court-stripping provisions of the Military Commissions Act of 2006. She also relied upon the Circuit Court’s Feb. 20 ruling upholding those provisions — a ruling that the Supreme Court has agreed to review at its next Term.

The Fourth Circuit Court on Monday ordered lawyers for Ali Saleh Kahlah Al-Marri to respond by Aug. 15 to the Bush Administration’s request for en banc review of the Circuit Court ruling rejecting the President’s authority to order the capture and detention within the U.S. of a civilian foreign national. In a brief order, the Circuit Court clerk notified lawyers that the Court had sought an answer. The order can be found here.

While barring seizure and detention of civilians within the U.S., the Circuit Court limited its decision to those who are in the country legally and have established connections here.

Under federal court rules, a petition for en banc review ordinarily will not be granted unless a response is sought by the court.

An earlier post discussing the government’s rehearing request can be found here.

A recent poll, conducted by the Washington Post and ABC News, finds that an increasing number of Americans believe that the Supreme Court has become “too conservative.” Read the Post article on the survey here and the ABC News story on it here. The ABC article also offers a PDF with the full questionnaire and results.

Tony Mauro of the Legal Times examines the anxiety present in all sides of the D.C. gun case surrounding a potential Supreme Court decision. An editorial in the LA Times argues that “clarity” on the meaning of the Second Amendment may “come at the cost of public safety.”

CNSNews.com summarizes some of the conservative reaction to Jean Edward Smith’s Thursday New York Times article, in which he suggested that a democratic president ought to raise the number of Supreme Court justices.

Senator Charles Schmuer spoke on the confirmation hearings for Chief Justice Roberts and Justice Alito at the American Constitution Society’s National Convention, reports the Society’s blog. Read a transcript of his speech or watch the video.

The Supreme Court on Monday released the argument calendar for its opening sitting beginning on Oct. 1, the first day of the new Term. Several key cases among those granted review will be heard in this session — two Sentencing Guidelines cases, a major case on third-party liability for securities fraud, a significant test of presidential power in implementing treaties, and two election law cases. The calendar can be downloaded here.

Here are the scheduled arguments, day by day (click the docket numbers for the formal statement of the Questions Presented):

Monday, Oct. 1
Washington State Grange v. Washington State Republican Party (06-713, and a companion case, 06-730), on the constitutionality of limits on party identification on primary election ballots; consolidated for 1 hour of argument.
New York City Board of Education v. Tom F., 06-637, parents’ right to tuition reimbursement for their disabled child’s schooling.

Tuesday, Oct. 2:
Gall v. U.S. (06-7949), reasonableness of a federal sentence that is below the Sentencing Guidelines’ range..
Kimbrough v. U.S. (06-6330), reasonableness of the heavier sentences imposed for crack vs. powder cocaine crimes.

Wednesday, Oct. 3:
New York Board of Elections v. Torres (06-766), validity of selection of state judicial candidates by party convention instead of by election.
United States v. Santos (06-1005), definition of “proceeds” under federal money-laundering law.

Monday, Oct. 8
No arguments; legal holiday (Columbus Day).

Tuesday, Oct. 9
Watson v. U.S. (06-571), definition of “use” of firearm for enhanced sentence.
Stoneridge Investment v. Scientific-Atlanta (06-43), liability of third-party entities for securities fraud scheme.

Wednesday, Oct. 10:
Medellin v. Texas (06-984), President’s power to require U.S. states, under the Vienna consular convention, to allow foreign nationals to contest their convictions and sentences in state court, to satisfy World Court decisions.

UPDATE: The Orders Lists can be found here.

The Supreme Court on Monday issued the first of its summer Orders Lists, consisting mainly of denials of rehearing. The only argued case denied rehearing was Schriro v. Landrigan (05-1575). On May 14 by a 5-4 vote, the Court ruled that a death row inmate in Arizona, Jeffrey Landrigan, was not entitled to an evidentiary hearing on his claim that his lawyer was ineffective in failing to put on mitigating evidence at the capital sentencing proceeding, even though Landrigan had objected to putting on such evidence.

Thus, the Court took no action on rehearing pleas in Hamdan v. Gates (06-1169), a challenge to the war crimes military commissions, and Rita v. U.S. (06-5754), a Sentencing Guidelines case.

The Court will have additional summer orders on Aug. 20 and 31.

Tomorrow the Court is expected to issue its first orders of the summer. Among the matters that may be included are actions on rehearing petitions, perhaps including those in Hamdan v. Gates (No. 06-1169), a war crimes commission case, and Rita v. U.S. (No. 06-5754), a Sentencing Guidelines case. We’ll provide coverage and a link to the orders list as soon as it becomes available.

It may also be a busy week for detainee-related litigation in other courts: further developments are expected in the D.C. Circuit Court on review of military orders to continue detention of captives at Guantanamo Bay, Cuba, especially in Paracha v. Gates (06-1038) and Bismullah v. Gates (06-1197), as well as in the U.S. Court of Military Commission Review in the war crimes case of Khadr v. Gates (CMCR docket 07-1). It’s also possible that the Fourth Circuit may act on the federal government’s request for rehearing en banc in the case of Al-Marri v. Wright (Circuit docket 06-7427), a case involving a foreign national captured inside the U.S. and detained as an “enemy combatant.”

Finally, merits briefs will come in in three of next Term’s cases: No. 06-1287, CSX Transportation v. Georgia State Board of Equalization (petitioner’s brief due 7/30); No. 06-6911, Logan v. US (respondent’s brief due 7/30); and No. 06-1164, John R. Sand & Gravel Co. v. US (petitioner’s brief due 8/3),

Documents disclosed by the Pentagon on Friday brought further into the open a controversy over the authority of the judges on the new military appeals court that is preparing to review its first case in a war crimes prosecution. The Navy captain who has been serving as the “deputy chief judge” of the U.S. Court of Military Commissions Review indicated that he had sought an answer from higher Pentagon officials about the status of his appointment, but had received no answer. (UPDATE: He got an answer on Wednesday, when prosecutors filed a document fully defending the composition of the Court; see below. There is a delay in public access to documents filed in that Court, under a policy adopted by the Court’s clerk.)

Navy Captain John W. Rolph has been facing a challenge from lawyers for Omar Ahmed Khadr, the first detainee involved in a case before the CMCR (U.S. v. Khadr, docket 07-1), who argued on June 19 that Rolph had no authority to make appointments to the Court’s reviewing panels and that his own position as “deputy chief judge” or “acting chief judge” was in legal doubt. (The Khadr challenge was discussed in this earlier post.)

Last Monday, four days after that challenge was filed, Captain Rolph issued a “disclosure” concerning the challenge. (This document can be found here.) He said that, on July 11, he had inquired whether Defense Secretary Robert Gates had approved in writing the appointment of Rolph as deputy chief judge and the other members of the CMCR. He noted that the Military Commissions Act of 2006 required the Secretary to make those appointments — a point that Khadr’s lawyers also had made in their challenge. “If it is not too much trouble,” Rolph said, quoting from an e-mail he had sent, “it would be useful for the CMCR to have that documentation in hand for the Court’s historical record, and in case subsequent validation of our appointments is required.”

Rolph added that he had “received a reply on the same day” from the Pentagon’s Office of General Councel “stating that they were working on the issue.” But, he said, he “did not receive any guidance or further documentation.”

On Wednesday, Khadr’s lawyers sought further disclosures, asking for complete copies of the e-mails Rolph had quoted from or paraphrased in his disclosure document. “Absent complete disclosure, it will be impossible for the parties to have a ‘fair opportunity to explore the impact’ of the communications and to develop an appropriate record for reivew…, including the precise identity of the official with whom the communications occurred.” (The request can be fouund here.)

In challenging Captain Rolph, Khadr’s counsel had argued that, under military regulations, only the CMCR’s Chief Judge could select from among the judges on the Court the ones who will sit on its three-member review panels, but that Rolph, who made the appointments in Khadr’s case as Acting Chief Judge, did not yet have a legal appointment to that post. Rolph included himself on the Khadr panel.. The challenging document also contended that Defense Secretary Gates had not named the 12 Court members and had not legally delegated that task to a subordinate, Deputy Secretary Gordon England, who did name those members.

Meanwhile, on Friday, the prosecution in Khadr’s case answered the challenge. (The brief argung for a denial of the challenge can be found here.) Prosecutors noted that Secretary Gates had issued a general delegation of shared authority to Deputy Secretary England last February. allowing him to exercise all of the authority that the Secretary is given by law. The fact that the Military Commissions Act itself does not specify that the Deputy Secretary is authorized to make the CMCR appointments in place of the Secretary is of no consequence, in view of the general delegation, the prosecutors contended.

“It is well established that the Secretary of Defense may delegate any authority he has under the law, except where the law specifically prohibits such a delegation,” prosecutors added. “The appointment of the CMCR was entirely proper.”

The prosecution document also defended the action of Judge Rolph in assigning the members of the panel — including himself — to review Khadr’s case. He made the appointments in the absence of the Chief Judge, and Rolph’s designation as Acting Chief Judge was validly made by Deputy Secretary England, the prosecutors said. They urged the Court to deny the challenge outright, and to continue with the previously set briefing schedule.

The issue before the CMCR in Khadr’s case is whether a military commission judge was wrong in dismissing war crimes charges against the 20-year-old Canadian who is now being held at Guantanamo Bay, Cuba. The prosecution is appealing; it filed a supplemental brief on the merits on Monday; Khadr’s lawyers are to file a response brief by Aug. 13 and any prosecution reply brief is due Aug. 17. Khadr’s lawyers had asked that the briefing schedule be suspended until the challenge to the CMCR appointments had been resolved.

Brent Kendall of the Daily Journal offers this article on Justice Thomas’ jurisprudence and his noteworthy opinions this term, highlighting the importance of history for Justice Thomas’ decisions.

The 9th Circuit is wary of the “repeated efforts” to split the circuit, reports Pamela MacLean of The National Law Journal. The Circuit has been criticized for its high number of “extreme” decisions eventually reversed by the Supreme Court.

The DailyWrit has this post on Senator Arlen Specter’s recent announcement that he wants to reexamine Chief Justice Roberts’ and Justice Alito’s confirmation testimony. “Regardless of what he ‘finds,’” writes the DailyWrit, “there isn’t a whole lot a Senator can do to a Supreme Court Justice save for pushing for impeachment.”

Justice Kennedy will speak at the opening of the Salzburg Academy on Media and Global Change in Salzburg, Austria. Read the press release detailing the new University of Maryland initiative, here.

A detainee at the center of a sharp new controversy over Pentagon decisions seeking to justify holding Guatnanamo Bay prisoners has filed an appeal in the Supreme Court, asking for an “original” habeas writ. The case involves Abdul Hamid Al-Ghizzawi, whom the military is holding on the basis of an accusation that he was a member of Libyan Islamic Fighting Group, a group that has had its assets frozen by U.S. authorities for terrorist acts against the Libyan government.. (The petition for the writ has not yet been cleared by security officials for public access, and does not yet have an assigned docket number. For now, a motion for leave to file under seal has been docketed as 07M5. When a public version becomes available, it will be posted on this blog.)

Al-Ghizzawi has a habeas challenge to his detention pending in U.S. District Court in Washington (docket 05-2378), a challenge to his designation as an “enemy combatant” pending in D.C. Circuit Court (docket 07-1089), and a separate appeal dealing with issues surrounding his physical illness pending at the Circuit Court (docket 06-5394).

His detention case was one of two that have become highly visible examples of what are called “do-overs” in the Pentagon system for processing Guantanamo detainees. That process is conducted by “Combatant Status Review Tribunals.” Detainee lawyers have complained in court that, if such a CSRT panel clears a Guantanamo prisoner, it is routine for the Pentagon to order a new CSRT review, to establish a basis for a combatant designation. Al-Ghizzawi is one of several individuals known to have been involved in “do-overs.” Another is Anwar Hassan, who already has an appeal pending in the Supreme Court (In re Ali, 06-1194) seeking an original habeas writ.

The original three-member military panel that examined the case against Al-Ghizzawi, found that “there was no credible evidence supporting the allegation,” according to a member of that panel. The member was an Army Reserve lieutenant colonel, Stephen E. Abraham. Since Colonel Abraham surfaced in filings in detainee cases in the Supreme Court and D.C. Circuit Court as a critic on the inside of the CSRT process, Pentagon and Justice Department officials have undertaken a campaign to challenge his complaints about that process.

Colonel Abraham did not mention Al-Ghizzawi’s name in a statement given under oath that was supplied to the Supreme Court in pending habeas cases. But, in an appearance before the House Armed Services Committee on Thursday, the Reserve intelligence officer named the detainne and reiterated what he recalled had happened in the one CSRT panel on which Abraham had sat.

That was panel No. 23. Abraham said that, “on the basis of the paucity and weakness of the information provided both during and after the CSRT hearing” for Al-Ghizzawi, the CSRT members “determined that there was no factual basis for concluding that the individual should be classified as an enemy combatant.” The colonel added: “All of us found the information presented to lack substance.” After filing its report, the CSRT was told by Pentagon officials to reconsider; it came to the same conclusion again, Abraham testified. The colonel told the lawmakers that he later learned that Al-Ghizzawi and Hassan, who had been cleared by panel No. 18, were put before a new CSRT panel, No. 32, and both were then found to be “enemy combatants.”

(Colonel Abraham’s statement Thursday before the House committee has been circulated in Washington. According to news accounts, he delivered it at a hearing at which the Pentagon official in charge of the CSRT process, retired Admiral James M. McGarrah, also testified. News stories quoted McGarrah as telling the committee that Colonel Abraham had been a part of only “a very narrow piece” of the CSRT process. The Reserve officer, McGarrah said, was only one of many working on CSRT matters, and spent most of his time “helping us build the database” for CSRT hearings.)

The D.C. Circuit Court has put a stop to any further efforts to dismiss Guantanamo Bay detainees’ habeas cases in federal District Courts in Washington, recalling the mandates that would implement its Feb. 20 decision nullifying all detainee habeas rights. The mandates had been issued June 27 in the two cases that the Supreme Court has now agreed to hear at its next Term — Boumediene v. Bush (Circuit docket 05-5062, Supreme Court docket 06-1195) and Al Odah v. U.S. (Circuit 05-5064, Supreme Court 06-1196).

At the request of detainees’ lawyers, and over the opposition of the Justice Department, the Circuit Court by a 2-1 vote issued parallel orders on Thursday recalling both mandates and directing that the mandates be returned to it by the District Court’s clerk. That had the practical effect of putting all habeas cases that have not yet been dismissed on hold, presumably as long as the Supreme Court review process takes. Circuit Judge David B. Sentelle indicated he would have denied the motion to recall. Voting for the motion were Circuit Judges Judith W. Rogers and Thomas B. Griffith.

The orders can be found here and here.

Two days after the Circuit Court had issued the mandates in the two packets of cases, the Supreme Court, in a surprise move, changed its mind and agreed to review the Circuit Court decision. That led detainees counsel to ask the Circuit Court to pull back its orders, leading to Thursday’s response.

The ripple effects of the Supreme Court’s June 29 grant have continued through lower courts. Two District Court judges had turned down Justice Department requests to dismiss cases before them, and the D.C. Circuit put on hold any further action in a war crimes commission case, Hamdan v. Gates (which is also pending now in the Supreme Court). UPDATE Friday p.m. A third District Court judge, Paul L. Friedman, on Friday denied “without prejudice” the government’s motions to dismiss in several habeas cases before him, citing the Supreme Court’s grant of review in Boumediene and Al Odah.

With the Supreme Court scheduled to take up the basic question of legal rights for detainees at its Term starting Oct. 1, the government’s attempt to get the benefit of Congress’ court-stripping provisions in the Military Commissions Act of 2006 has been stalled, likely for several months.

The only Guantanamo detainee cases moving forward now in lower courts are the D.C. Circuit’s review of the military orders finding prisoners to be “enemy combatants,” leading to their continued detention at the U.S. military prison at the U.S. naval base in Cuba.

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New York Times op-ed contributor Jean Edward Smith suggests to embattled liberals that perhaps the solution to the Supreme Court’s new political agenda is to resort to political measures and stack the Court. Over at Slate, Emily Bazelon offers her take on the Court’s state of affairs and what ought to be done to curb the Roberts Court’s conservative swing.

An op-ed appears in the LA Times today revisiting Ted Kennedy’s opinion piece in the Post last year in which he charged Chief Justice Roberts and Justice Alito with having deceived the Senate in their confirmation hearings. “So was he right all along?” Michael McGough ponders here.

A bill was reintroduced yesterday by California Representative Susan Davis that would “grant all service members access to the U.S. Supreme Court,” reports this article in the San Diego Union-Tribune. Read a copy of the bill, Equal Justice for Our Military Act of 2007, here.

Balkinization agrees with points made in Doug Kendall’s and Jim Ryan’s New Republic essay, “How Liberals Can Take Back the Court,” and suggests that “if liberals think that the current generation of conservative judges have hijacked the Constitution…they should call for a return to first principles, to the best interpretation of the Constitution’s original meaning and underlying values.”

The Legal Times Blog had this post on Senator Arlen Specter’s statement that he wants to reexamine Chief Justice Roberts’ and Justice Alito’s confirmation testimony.

Lawyers for a Guantanamo Bay detainee whose designation as an “enemy combatant” is the first to be reviewed by the D.C. Circuit Court asked that court on Thursday to delay the case and set a new briefing and argument schedule. It would be premature to go ahead on the present schedule, the motion argued, until lawyers on both sides have had a chance to take account of the Circuit Court’s ruling last Friday on review procedures it will follow in scores of Detainee Treatment Act cases. That decision, in Bismullah v. Gates (06-1197) and Parhat v. Gates (06-1397) significantly expanded the information the Circuit Court intends to examine as it passes upon military decisions to continue holding Guaratanamo prisoners.

The motion was filed in Paracha v. Gates (Circuit docket 06-1038), which is now in the early stages of a briefing schedule and has been scheduled for a hearing by the Circuit Court on Sept. 17. The brief for Saifullah Paracha, a Pakistani citizen who has a permanent U.S. resident visa, was filed on July 16 (a post describing that brief can be found here), four days before the Bismullah ruling.

Rejecting the Justice Department argument that, in Detainee Treatment Act cases, the Circuit Court should only review the record that was placed before the military’s Combatant Status Review Tribunals, the Bismullah decision said that all government information about a detainee must be made available to the Circuit Court.

In arguing for a new round of briefing and to withdraw the opening brief, attorneys for Paracha said that the Bismullah decision “sufficiently refocuses the issues to be addressed in this case” so as to make the initial brief “obsolete.” The motion also informed the court that the Justice Department “may soon seek clarification” of its duty to provide information about CSRTs.

Thus, Paracha’s counsel argued, “it would be premature, inefficient, and wasteful for the parties to brief and argue this case” before the government has produced the necessary information. It thus called for a withdrawal of the existing briefing schedule, withdrawal of the opening Paracha brief, and arranging for new briefing after both sides notify the court that the government had provided “substantially complete” information about Paracha’s case. (The new motion can be found here.)
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Attorneys for a nationwide management consulting firm involved in a case the Supreme Court is scheduled to hear at its next Term have urged the Justices to dismiss the case as moot. In a motion filed on Monday, counsel for DeWolff, Boberg & Associates Inc. said that the individual who took the case to the Supreme Court has withdrawn all of his funds from his pension plan account, leaving him “with no legally cognizable interest in the outcome of the case.” The motion, re-filed with redactions to protect privacy interests, can be found here. The individual involved has a right to respond.

The case is LaRue v. DeWolff, Boberg & Associates, et al. (docket 06-856). The Court agreed on June 18 to hear the case after seeking the views of the U.S. Solicitor General, who urged the Court to hear and decide both issues raised by James LaRue, a Texan who worked for DeWolff Boberg until 2001.

Thomas P. Gies, a Washington attorney for DeWolff Boberg, told the Court that, in assembling materials for a merits brief in the case, his office “discovered that on July 22, 2006, while the case was still pending before the Fourth Circuit,” LaRue withdraw all of his funds from his account.

In LaRue’s petition, filed last Nov. 6, he raised two issues: whether the Employee Retirement Income Security Act allows a pension plan participant to sue a plan manager or administrator to recover losses that the worker suffered in a personal pension account because of actions by the plan operator, and whether ERISA allows monetary relief, in the form of a court-ordered payback, as a remedy for alleged wrongs by a plan operator. (The formal statement of the Questions Presented can be found at this link.)

The Fourth Circuit Court ruled on June 19 last year that LaRue could not assert a claim under ERISA because recovery must benefit the plan as a whole, not a particular plan participant.

Solicitor General Paul D. Clement, in urging the Court to decide the two questions, said they were “important and recurring” issues regarding civil enforcement of ERISA.

DeWolff Boberg’s dismissal motion, however, noted that neither of the two legal claims involves a live controversy, because of LaRue’s withdrawal from the plan. The ERISA provision at issue in the first question raised allows a lawsuit by “a participant, beneficiary, or fiduciary,” the motion said. There is no legal basis, the motion contended, for allowing a former participant in a defined contribution plan to bring a lawsuit under that section to recover damages measured by lost profits. The Supreme Court, it noted, has not addressed the issue.

The provision at issue in the second legal claim, according to the motion, also makes that issue moot. The claim LaRue made under that section, it noted, was that he was only seeking to have the plan reflect what would have been his interest in it. Now that he is a former plan participant, the motion contended, he has no legally cognizable interest in a recovery by the plan.

The Supreme Court, it added, “has recognized that when a petitioner voluntarily changes his status…while litigation is pending, that change may render the matter moot by eliminating the petitioner’s legally cognizable interest in his claim.”

Although recommending that the case be dismissed, the motion did suggest that the Court “may wish to consider” deciding now another question that LaRue did not raise in his petition — that is, whether a worker who is no longer a particpant in an ERISA plan has a right to sue for damages measured by lost value in his plan. That is an issue on which the lower courts are divided, the motion said.

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The D.C. Circuit Court has put off any action on an appeal by detainee Salim Ahmed Hamdan, until after the Supreme Court decides other Guantanamo prisoners’ cases next Term. In a one-paragraph order issued Tuesday, the Circuit Court, acting on its own, deferred a petition for initial en banc review of Hamdan v. Gates (Circuit docket 07-5042), “pending further order of the court.”

Hamdan has an appeal pending there, along with his two requests pending at the Supreme Court seeking review by the Justices ahead of review in the Circuit Court (Supreme Court dockets 06-1169, rehearing request, and 07-15, new petition for review). Attorneys for Hamdan notified the Supreme Court on Wednesday of the Circuit Court deferral in this letter, with the Circuit Court order attached. Hamdan’s challenge is based on arguments that he has a legal right to challenge the military commission that is schedule to try him on war crimes charges, and to pursue that challenge in a habeas case despite Congress’ move to scuttle all detainee habeas claims.

The Circuit Court told both sides to file motions to govern further proceedings 30 days after the Supreme Court decides the cases of Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196), granted review by the Justices on June 29.

When the Justice Department on July 20 urged the Supreme Court not to hear Hamdan’s new appeal, it argued that the Court should await a decision by the D.C. Circuit in the case pending there. The issues Hamdan raises both at the Circuit Court and in the Supreme Court, the government brief said, “would benefit from the normal decisional process that a case undergoes before receiving plenary review by this Court.” In the wake of the Circuit Court’s deferral of the Hamdan appeal there, it appears that there would be nothing for the Supreme Court to review until some time after the Supreme Court decides Boumediene and Al Odah.

Hamdan’s counsel has contended that the Justices should go ahead and grant review of his new case, on a schedule parallel to that being followed in Boumediene and Al Odah.

We thought it would be useful to look back at the blog’s Petitions to Watch feature and corresponding “Conference Call” column for Legal Times. All of the petitions we featured – along with the several hundred cert. documents filed in many of the cases – can be found at this webpage.

It was obviously a slow term. The Court granted only 56 cases in the 12 months between July of 2006 and June of 2007; according to statistics from the Harvard Law Review, that’s the lowest number of paid grants over any year in the Court’s modern history. For more on OT06’s record-low docket, see this post.

While we don’t yet have an exact count of how many paid cases were considered over the past 12 months, it looks to be roughly 1600-1700 cases; that means that somewhere in the neighborhood of 3% of the paid cases the Court considered were granted. Tom flagged 47 of those, or about 84%, as potential grants. (Two didn’t make it onto the published lists as a result of logistical snafus.) Nineteen paid cases were CVSG’d in the same time span; we had 15 on the list, for 79%.

An additional 14 pauper cases were granted this Term. While we don’t track those cases as part of our regular coverage – it’s logistically next-to-impossible given the volume – we did try to spotlight a number that looked like they were going to be seriously considered.

Ultimately, we featured 223 petitions – about 13% of the paid cases. As noted, 47 were granted, for a grant rate of 21%, while another 15 (7%) were sent to the SG. 16 additional cases were held, GVR’d, settled, withdrawn, or not denied for any reason – another 7%. Finally, 143 of our 223 cases were eventually denied (64%).

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Pamela A. MacLean reports here that, while speaking at the closing session of the Circuit’s conference in Honolulu, Justice Stevens called the 9th Circuit’s 90 percent reversal rate by the Supreme Court “misleading.” Here at Concurring Opinions, Daniel J. Solove continues the discussion on the Court’s reversal rates and wonders why there are so few reversals each term that resulted from “significant departures from Supreme Court precedent.”

The fall-out from the Louisville and Seattle school cases continues, reports this Reuters article. In the wake of the Parents Involved decision, Louisville students and school administrators discuss ways to move forward with school placement plans.

Gregory L. Germain offers his take on the Department of Revenue v. Davis, a case scheduled for next term centering on whether “Kentucky violated the Commerce Clause by exempting in-state municipal bond interest from taxation as income.”

In their piece for The New Republic, Douglas T. Kendall and James E. Ryan suggest that liberal politicians and scholars need to shift their rhetoric around the Supreme Court and “embrace the Constitution rather than run from it.”

The Politico reports that Senator Arlen Specter, the ranking Republican on the Judiciary Committee, said on Tuesday that he will “personally re-examine” the testimony of Chief Justice Roberts and Justice Alito “to determine if their reversal of several long-standing opinions conflicts with promises they made to senators” in their confirmation hearings. The American Constitution Society blog has a similar posting, and Eric Turkewitz posts his thoughts on the proposed probe here.

Lawyers for Salim Ahmed Hamdan, facing war crimes charges before a military commission, on Tuesday filed the concluding papers in his new appeal seeking to have the case reviewed along with next Term’s review of two other detainee cases. With the filing of two reply briefs, and with the earlier waiver of the usual ten-day delay between filings and submission to the Court, Hamdan’s counsel has made the papers available for early action by the Justices, if they wish — even though the Court is in summer recess. The first chance for orders in the case will come next Monday, July 30, when the Court issues its initial round of orders during the recess. Other orders will emerge on Aug. 20 and 31.

Hamdan’s case challenges the government’s authority to try him for war crimes before the new trial tribunals established by the Military Commissions Act of 2006. The other detainee cases challenge the government’s authority to continue to hold detainees who have not been charged with any crimes. Hamdan’s counsel contends that the cases are different from each other in some respects, but complementary, so Court review of his case, too, is necessary to put the full array of detainee challenges before the Justices.

The attorneys had told the Court that, if it agrees to hear Hamdan’s new plea, they will follow the briefing schedule that the Court already has set for the other detainee cases (Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196) — that is, opening brief by petitioners due Aug. 24, government brief in opposition due Oct. 9.

Counsel for Hamdan and the government have agreed to expedition on his two alternative requests — that is, “two procedural vehicles from which the Court may choose,” as Hamdan’s lawyers have put it. Thus, the Court has been asked either to grant review of a new petition (07-15) to hear Hamdan’s claims before the D.C. Circuit rules on them in an appeal now pending there, or grant rehearing of the Justices’ denial on April 30 of an earlier Hamdan petition before judgment by the Circuit Court (06-1169) and proceed to review that case. The latter request can be pursued only if the Court were to give permission to file the rehearing request, because it was filed late.

Tuesday’s filings included this reply brief in 07-15 and this reply brief on the question of rehearing in 06-1169. (The U.S. Solicitor General has opposed both maneuvers, although Hamdan’s filing on Tuesday argued that the government’s opposition on the rehearing issue was itself filed late and should not be considered by the Court.)

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Paul E. Peterson offers these suggestions to Wall Street Journal readers about achieving the goal of integration in the wake of the Parents’ Involved decision (subscription req’d).

Justice Talking presents this recording of a discussion among Supreme Court reporters and scholars, including Jan Crawford Greenburg, Richard Garnett and Geoffrey Stone, in which they “analyze the significant decisions of this term, and tell us how the addition of two conservative Justices has affected the year’s cases.”

The American Enterprise Institute offers this essay on cases last term pertaining to liability reform, like Philip Morris v. Williams, and concludes with a section entitled “Looking toward October Term 2007.”

The DailyWrit serves up a summary of a handful of the cases on next term’s docket, including Boumediene v. Bush and Al-Odah v. US, Kimbrough v. US and Danford v. Minnesota.

The Washington Post reports here that, in a speech to the National Governors Association, former Justice O’Connor spoke out against the rising tide of “attacks” on judicial independence.

The Pentagon has just added a new online page to provide documents and materials from the new military appeals court that was created to hear appeals in war crimes cases before military commissions — the U.S. Court of Military Commission Review. Here is the link.

The Pentagon website www.defenselink.mil has a page for Detainee Affairs. Through that page, one finds a Military Commission page. On that page, the line “United States Court of Military Comission Review” has been added. Clicking on that line, or going directly to the address linked above, reaches the CMCR’s page. It provides links to the rules of practice, and to materials filed in the only case so far before that court, that of Omar Ahmed Khadr (CMCR docket 1).

Briefs filed in the Khadr case, and other future cases, will not appear immediately on Defenselink when they are filed. The Clerk of the CMCR has adopted a practice of holding the briefs for two days to allow the other side to suggest redactions or to plan to file other motions. The briefs then will be available for posting on Defenselink. For example, a prosecution supplemental brief filed on Monday is not yet available, as of midday Tuesday.