The Supreme Court on Friday released the third and final list of summer orders on pending matters. There were no grants of review in any new cases. The next orders, probably including grants, are expected on Sept. 24 or 25 after the opening Conference of the new Term.

Friday’s Orders List can be found here. UPDATE: Later in the day, the Court issued a revised Orders List. The only change was the notation that Chief Justice John G. Roberts, Jr., had not taken part in the order denying the stay application in Scherer v . Merck & Co., 07A26.

Among the issues the Justices were to consider during the Summer recess was a plea by lawyers for Guantanamo detainee Salim Ahmed Hamdan for permission to file a rehearing petition in 06-1169 (Hamdan v. Gates) after the time for such a filing had passed. The Court took no action on that motion Friday. Hamdan also has filed a new petition for review (Hamdan v. Gates. 07-15), and has asked for expedited action on that petition. Those matters are now scheduled for consideration at the Sept. 24 Conference, according to the Court’s electronic docket.

It is conceivable the Court may take no action on Hamdan’s cases until it decides the granted detainee cases, Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196). Hamdan’s lawyers have filed an amicus brief in those cases, seeking to explain to the Court how his situation differs from those of the Boumediene/Al Odah detainees. That brief also argues that “this Court should resolve Boumediene in a manner that protects Hamdan’s pre-trial access…to the [habeas] writ.” Unlike most other Guantanamo detainees, Hamdan faces potential war crimes charges before a military commission.

Both his lawyers and Justice Department lawyers moved quickly on his new appeals, perhaps to have them argued along with Boumediene/Al Odah. That appears less and less likely as time passes with no action by the Justices.

UPDATED 6:45 p.m.

The Supreme Court on Wednesday released the calendar of oral arguments for the November sitting (which actually begins on Oct. 29). It can be downloaded here. On two of the six days, the Court will hear only a single case each. On other days, there will be two arguments.

Here are the scheduled dates, with a summary of issues involved:
Mon., Oct. 29
06-1265 — Klein & Co. v. Board of Trade – commodity commission merchants’ right to sue for losses in trading
06-9130 — Ali v. Federal Bureau of Prisons – right to sue for loss of inmate’s personal property

Tue., Oct. 30
06-694 — U.S. v. Williams – constitutionality of federal law against Internet-based child pornography
06-6911 – Logan v. U.S. – definition of predicate offenses for sentencing of “armed career criminal”

Wed., Oct. 31
06-8273 — Danforth v. Minnesota – limits on state courts’ authority to expand retroactivity of Supreme Court criminal procedure rulings

Mon., Nov. 5
06-1287 — CSX Transportation v. Georgia Board of Equalization – valuation of railroad property for state tax purposes
06-666 — Kentucky Department of Revenue v. Davis – state power to tax residents’ interest income on other states’ bonds, if home-state bond interest is exempt

Tue., Nov. 6
06-1164 — John R. Sand & Gravel v. U.S. — time limits for filings claims against the U.S. government in the Court of Federal Claims
06-1322 — Federal Express v. Holowecki – scope of right to sue for age discrimination on the job; mode of filing initial discrimination charge

Wed., Nov. 7
06-989 — Hall Street Associates v. Mattel – contracting parties’ right to expand scope of judicial review of arbitration awards

On Friday the Solicitor General filed this amicus brief expressing the government’s view that cert. should be granted in No. 06-937, Quanta Computer, Inc. v. LG Electronics, Inc. The petition, which was filed by Maureen Mahoney of Latham & Watkins, presents the question whether “a patentee’s federal patent rights are exhausted by a licensee’s authorized sale of an essential component that has no reasonable use other than in practicing the patented invention, when the patentee has purported to retain in its licensing agreement the right to pursue patent infringement claims against those who purchase the component from the licensee and use it for its only reasonable use.”

From Professor Rory Little at UC Hastings College of the Law:

I recently produced these Summaries of the Supreme Court’s Term, Criminal Cases, for the ABA’s Annual Meeting panel of the same name. (Note: Readers should feel free to reproduce the summaries, with attribution.) I do this panel every year for the Criminal Justice Section. We had some great panelists: U.S. District Judge Jeffrey White (who is handling the BALCO steroids contempt case); white-collar defense attorney Cristina Arguedas; well-known habeas and appellate litigator Dennis Riordan, and former federal prosecutor Haywood Gilliam of Bingham McCutcheon. The detailed “Summaries” of the 32 decisions I counted as “criminal law or related” present the facts and legal background of each case, as well as an account of every separate opinion issued by the Justices in each case. A list of cases in which cert. has been granted for the coming Term, and a chart of “Who Wrote What” showing the authors of all the various separate opinions, appear at the end of the Summaries.

A very brief overview: In sheer number, the habeas/capital cases dominated the Court’s criminal docket this past Term. In addition, Apprendi fallout continues (see Cunningham and Rita); and the Fourth Amendment provided, as always, entertaining (see Rettele and Scott v. Harris with the first-ever decision with a video weblink appendix) and nuanced (see Brendlin) facts. And a little-noticed decision in a Bivens/extortion lawsuit (Wilkie v. Robbins) might be said to provide the most interesting theoretical issues to chew on: why CAN the federal government engage in a lengthy campaign of harrassment, using some unlawful as well as lawful tactics, to pressure a land-owner to grant an easement, and not run afoul of federal constitutional or statutory provisions? Justice Souter explains his answer; Justice Ginsburg was unconvinced and cites Marbury v. Madison in support.

Commentary UPDATED 6 p.m.

Smart, seasoned, energetic advocate of some of the Bush Administration’s most controversial legal positions — an apt description of U.S. Solicitor General Paul D. Clement, who takes over temporarily as Attorney General, and also of Deputy Solicitor Gregory G. Garre, who seems likely to assume at least temporarily the duties of Solicitor General. And, if as seems a real prospect, those two are nominated by President Bush to hold those positions in their own right, controversy almost surely would accompany them to the U.S. Senate but both, in the end, would probably be confirmed. Neither has stirred up the kind of unrelenting criticism that has dogged the now-resigned Attorney General, Alberto R. Gonzales: they are, in a phrase, Bush policy loyalists without the taint of Democratic hostility.

For the Solicitor General’s office, and thus for the Administration’s stance before the Supreme Court, the changes — at least for the time being — in the leadership of that office would mean little, if any, change in substance. Clement and Garre have been a team, and they would continue to be with Clement at the head of the entire Department. Clement is a slightly more animated advocate, and Garre is somewhat more deferential at the bar, but the substance of what they have been saying to the Court about government policy is indistinguishable. Moreover, much of the professional work of that office is done with special competence by long-term lawyers on the staff — such as, for but one example, Michael R. Dreeben.

Even if Clement’s assumption of Gonzales’ office turns out to be only temporary, it certainly will last weeks and probably months into the new Supreme Court Term. The Democratic-controlled Senate would not move with dispatch on any nominee to succeed Gonzales; the progressive interest groups that have a pile of grievances against the Administration would no doubt emerge as at least visible, if not vociferous, challengers even of Clement. A nomination process for Clement would have to be a political show, no matter how it might come out in the end. However, Clement goes in with one advantage that Gonzales never enjoyed: he is thoroughly accustomed to verbal combat, on important public stages, and is considerably more articulate than Gonzales has been. Clement also does not have the personal identification with George Bush that has become such a liability for Gonzales.

That very lack of identification may help Clement with his most important challenge: creating a new image of an independent and professional Justice Department, a condition necessary to restore flagging morale in the career ranks there. The White House could help, too, by loosening its partisan grip on the Justice Department, a gesture that might well be more attainable with the imminent departure from the White House of its most committed partisan, Karl Rove.

Clement has been involved at a fundamental level in defending President Bush’s “war-on-terrorism” initiatives in the federal courts. Lately, Garre has been joining in that effort — as, for example, in defending the warrantless global wiretapping, purportedly to gather foreign intelligence. But those efforts for the most part have been performed in the courts, as legal advocates, and not behind the scenes as core policymakers in the way that Gonzales has been since 9/11.

In more recent weeks, however, Clement has been an architect of — or at least a cheerleader for — the claims of “executive privilege” that have been coming out of the Bush White House in the wake of aggressive Democratic oversight in Congress. He surely would have to defend that before the Senate Judiciary Committee if nominated to be Attorney General.

In passing, it should be noted that President Bush does not have to make a new nomination for either the Attorney General or Solicitor General positions, and, with only 17 months left in the Bush Presidency, it may be tempting to try to avoid a fight over such nominations. The two could serve in an Acting capacity, as others in those offices have done previously — sometimes, expressly to avoid a fight in the Senate.

Would Clement be interested in the Attorney General’s job? The answer is very likely a fervent “yes.” He has achieved almost all of what a Solicitor General might have hoped for in his quite distinguished tenure in that seat, and it would be a definite boost for his professional future to have served as Attorney General. There has been talk, of course, that the President may want to reward Clement for his government service by nominating him for a federal judgeship. While Clement might be able to win Senate confirmation for a judgeship, as the Bush Presidency winds down, there will be less and less incentive for the Democratic Senate to fill many seats on the federal bench. That remains a possibility, though, if the President should decide not to nominate Clement for Attorney General by opting for a different candidate.

No one who follows the work of the Solicitor General’s office in the Supreme Court should have any doubt about Gregory Garre’s ability to carry on that job successfully. He had served in that office previously, headed the appellate practice group at a major law firm, and then returned to be the principal political Deputy to Clement. Examining even in a cursory way the issues that the Court will be reviewing in government cases in the Term that opens Oct. 1, one cannot discern a single case in which Garre might advocate a position different from what Clement had embraced. The transition would, in all likelihood, be smooth, indeed.

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According to reports, current Solicitor General Paul Clement will replace Alberto Gonzales as Acting Attorney General when Gonzales leaves his post on September 17; CNBC is also reporting here that he is a frontrunner to be nominated by President Bush as Gonzales’s official replacement.

More analysis on what this development means for both the Department of Justice and the Office of the Solicitor General will follow. In the meantime, a lengthy profile of General Clement, written in January by Tony Mauro, can be found here.

The Court will issue its third and final round of summer orders on Friday. The blog will post anything of interest that appears on the Orders List.

Top side briefs are due today in Riegel v. Medtronic (06-179). No bottom side briefs are due this week.

Lawyers for detainees at Guantanamo Bay filed merits briefs today in Boumediene v. Bush (06-1195) and Al Odah v. United States (06-1196).

The brief in Boumediene is here, and click here and here to read the petitioners’ briefs in Al Odah. The Justice Department’s briefs in both cases are due October 9.

One amicus brief filed today in support of the petitioners came from Salim Hamdan, available here. The Court has yet to take action on his two pending appeals, 06-1169 (rehearing petition) and 07-15 (cert before judgment).

At least 20 other amicus briefs were filed in support of the petitioners, with still another filed in support of reversal. They are listed and linked after the jump. See Marty’s post below for his inital reaction to one of the amicus filings.

Read the rest of this entry »

Today is the deadline for top-side briefs in the detainee cases. Mayer, Brown is very helpfully posting links to all of them here. [UPDATE: The brief in Boumediene is here. Note that the Boumediene case is not limited to the habeas question. The second question presented (”[w]hether Petitioners’ indefinite military imprisonment as ‘enemy combatants’ is unlawful, requiring the grant of habeas relief”) is directed at the issue of identifying the category of persons who Congress has authorized the military to indefinitely detain.]

Having only glanced at them quickly, this amicus brief stood out as particularly noteworthy: It’s filed on behalf of specialists in Israeli law, and it discusses the procedures and substantive rules that Israel uses in its detention practices. (The Israeli courts and legislature have considered these questions in considerable depth.) Particularly noteworthy is the discussion on pages 17-18 concerning the category of persons who are subject to military detention in Israel. The “substantive” issue of who Congress has authorized the U.S. military to detain indefinitely is the important second question presented in the Boumediene case (distinct from the question of whether petitioners have habeas rights and whether the MCA/DTA scheme is an adequate substitute for habeas)

The U.S. Court of Military Commission Review, the tribunal set up by Congress to hear appeals in war crimes prosecutions, will hold its first hearing on its first case on Friday. The Court will borrow a courtroom from the U.S. Court of Appeals-Federal Circuit for its 10 a.m. hearing in U.S. v. Khadr (docket 07-001).

With 45 minutes each for prosecutors and defense counsel, the Court will be exploring three issues. The key one is whether a military judge correctly dismissed all charges against the young Canadian detainee, Omar Ahmed Khadr, because of a flaw in the Combatant Status Review Tribunals for Guantanamo Bay prisoners. (The Court’s order setting the hearing and the issues can be found here.)

The other issues involve claims by the defense counsel that the Court itself is not a proper tribunal because of the mode of appointment of the judges, and that the judges named to the panel in Khadr’s case were not validly appointed. The three military officers serving as judges on this first panel were reappointed by the Court’s new Chief Judge, former U.S. Attorney General Griffin B. Bell on Aug. 20. That may have mooted the third issue.

The Fourth Circuit Court on Wednesday agreed to reconsider the question of the President’s power to order the capture inside the U.S., and the prolonged detention afterward in a military prison, of a civilian suspected of terrorist ties. A majority of the Circuit Court’s judges voted to grant en banc review of Al-Marri v. Wright (Circuit docket 06-7427). The rehearing order can be found here.

The Bush Administration had sought en banc review of the June 11 decision by a three-judge Cicuit panel declaring that President Bush did not have the authority to order the military to seize and indefinitely detain a civilian who was legally in the U.S. and who was seized at his home in this country, so long as the individual had established ties to the U.S. The panel split 2-1 in the ruling. The case involves a Qatari national, Ali Saleh Kahlah Al-Marri. In seeking review of the case by the full Circuit Court, the Administration had argued that the ruling posed “an immediate and potentially grave threat” to national security.

The Circuit Court did not disclose how its members had voted on the en banc question, saying only that a majority had voted when polled to reconsider the case. The order said a hearing will be held at the Fourth Circuit’s Oct. 31 session.

The Fourth Circuit decision that is now vacated was discussed in this post.

David Strauss (University of Chicago Law School) has recently written an excellent, very short essay responding to the Epstein, et al. piece on ideological drift, which I highlighted in the August 8 round-up, see here. The Strauss paper can be downloaded here on the Northwestern Law Review’s Colloquy website. I like Professor Strauss’s piece because it highlights one of the key limitations of the Martin-Quinn scores: it is a general measure of ideology and it does not account directly for Justices’ positions on individual issues. For example, Roosevelt appointed both Hugo Black and Felix Frankfurter, both of whom were supportive of the New Deal, but who later took divergent positions on key issues such as free speech and reapportionment. Ideology did, and should have, mattered a great deal to Roosevelt, who cared more about the future of the New Deal than other ideological issues that would later emerge in the 1950s and 1960s. I enjoyed this very fine piece.

The final version of my co-authored piece with Ryan W. Scott, entitled “An Empirical Analysis of Life Tenure: A Response to Professors Calabresi and Lindgren” is available for download on SSRN, see here, and will soon be in print in the Harvard Journal of Law and Public Policy. Even though it is short and somewhat technical, I am particularly proud of this paper because we took an issue that had become conventional wisdom–that the meaning of life tenure has changed in a dramatic and unprecedented fashion because Justices are serving longer than ever before–and debunked it empirically. Although length of tenure on the Supreme Court has indeed increased, we argue that the change is neither unprecedented (length of tenure reached similar heights in the early 1800s) nor dramatic. I enjoyed working on this paper quite a bit.

Jeff Yates and Andrew Whitford (both of the University of Georgia) have started a new blog entitled “Voir Dire,” see here. Both Yates and Whitford have written papers dealing with law and courts, including the Supreme Court, and their work is very good. For those of you who have an interest in the work being done by political scientists in the area of law and courts, Voir Dire would be an excellent blog to bookmark. In fact, one of their first posts on August 17 was about preference change in the Supreme Court, an issue that I have written about in a number of academic round-ups.

Now that one burning question has been answered concerning the upcoming Stoneridge case — on Wednesday Solicitor General Clement filed an amicus brief in support of the companies — Tony Mauro discusses the next big question: “how many justices will participate and rule in the case?”

Last week in the Round-Up, we linked to an article discussing a recent Quinnipiac University survey on public approval ratings of the Supreme Court and Congress. Read that post here and the now the original survey results here.

An editorial in Newsday argues that questions remain following the Padilla verdict that must be answered by the Supreme Court.

The Associated Press reports that Justice Alito “refused to grant a delay in the appeals court decision” of a case over disputed ownership of blood and tissue samples.

Saying that the two sides are “at loggerheads” over how much information the D.C. Circuit Court will need to judge decisions by the military to keep detainees at Guantanamo Bay, the Justice Department on Monday asked for more time to sort out what it is prepared to hand over. In a motion for a temporary stay (download here), the Department strongly hinted that it will be asking the Circuit Court to rehear and to narrow its July 20 decision expanding the government’s obligation to produce documents about detainees.

The Circuit Court’s July ruling came in the combined cases of Bismullah v. Gates (06-1197) and Parhat v. Gates (06-1397), chosen as the vehicle for laying down basic ground rules on how panels of the Circuit Court will proceed as they review the work of military “Combatant Status Review Tribunals.” Those are the entities set up by the Pentagon to decide whether a given detainee is an “enemy combantant” and thus must remain in confinement at Guantanamo Bay. Under a 2005 law (the Detainee Treatment Act), the Circuit Court becomes the first civilian court to judge the legality of detention decisions by the Bush Administration’s Pentagon. The first test case under DTA is Paracha v. Gates (06-1038).

It was in the Paracha case that the government filed its stay request on Monday. It said it will decide by a Sept. 13 deadline whether to seek rehearing in the Bismullah/Parhat case. But Sept. 13 is also the current deadline for the government to hand over to lawyers for Saifullah Paracha the much more expansive file of information that the Bismullah/Parhat ruling seems to require.

So, the motion sought a 30-day delay beyond Sept. 13 — that is, until Oct. 13 — if the governmen were to decide against seeking rehearing of Bismullah/Parhat. If it does go for rehearing, the Department asked for a delay to continue until 30 days after the Circuit Court acts on the rehearing request. But, the motion argued, in no event should it have to produce its file of information earlier than 30 days beyond Sept. 13.

Ever since the Bismullah/Parhat case came down, a chasm has been growing between government counsel and detainee lawyers over how far the government should be required to search in a vast database of often-classified material to locate and produce information that bears upon the status of individual Guantanamo detainees. The Bismullah/Parhat decision appeared to lean toward the detainee lawyers’ side of that information gulf, but that ruling did not answer all of the specifics that are now arising over the government’s obligation.

Behind the disagreement over a record for judicial review lies an even more important dispute — one that has constitutional implications. The government contends that the Circuit Court’s task under DTA is only a narrow one, essentially to determine whether the CSRTs followed their own procedures. It has argued against a full-scale review of detainee information. At the same time, however, it has argued that the DTA process is an adequate substitute for habeas challenges by detainees. The detainees’ lawyers, however, argue that the DTA process is far from an adequate substitute for habeas; only if DTA review is comprehensive, even sweeping, those lawyers have argued, might it be a constitutional substitute for the habeas rights that Congress took away from detainees in the Military Commissions Act of 2006. This is a constitutional debate, by the way, that is going to play out before the Supreme Court next Term, when it rules on detainees’ legal rights and on the validity of the scuttling of habeas review for detainees (in the consolidated cases of Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196.

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In an order released this afternoon, the Court permitted three former members of the Securities and Exchange Commission, as well the chairmen of two House committees, to file late amicus briefs in support of the petitioner in Stoneridge Investment v. Scientific-Atlanta, et al. (06-43). The order can be found here.

To read the brief submitted by former SEC chairmen William H. Donaldson and Arthur Levitt Jr. and former SEC member Harvey J. Goldschmid, click here. To read the brief offered by Democratic Reps. John Conyers, Jr., of Michigan (Judiciary Committee) and Barney Frank of Massachusetts (Financial Services Committee), click here.

The original deadline to file amicus briefs in support of the petitioner was June 11. For prior coverage of the late amicus filings, as well a further description of the case, click here.

With the two new filings permitted today, 30 total amicus briefs now have been filed with the Court in Stoneridge — 15 for the petitioner and 15 for the respondent.