In a highly unusual order, two judges of the D.C. Circuit Court appeared to have narrowed a major gun control ruling, and in doing so gave their view on a central argument the District of Columbia government has made in its Supreme Court appeal seeking to enforce its flat ban on handguns in Washington, D.C. The District does not ban rifles or shotguns. The judges’ comments came as the Circuit Court turned down a request by gun rights advocates that it bar the local government from enforcing a requirement that rifles and shotguns kept in the home be disassembled or have trigger locks engaged. The Court’s order was issued Tuesday but has not been widely noted. It may complicate the further briefing in the Supreme Court on the city’s appeal (07-290) and in a cross-appeal by D.C. residents (07-335).

Both sides in the hotly disputed lawsuit over the D.C. gun possession law have understood the Circuit Court’s March 9 ruling as having struck down not only the ban on possession of any handgun, but also the disassemble-or-lock provision of the law both as it applied to handguns and to rifles and shotguns.

When D.C. opponents of the city gun law returned to the Circuit Court on Sept. 12, they interpreted the Court’s decision as having struck down Code Sec. 7-2502.07 — the disassemble-or-lock section — because that provision “bans the home possession of all functional firearms — handguns, rifles and shotguns.” Saying that the D.C. government had told the Supreme Court in its petition (07-290) that the section did not reach rifles and shotguns that were used for self-defense, the opponents read that as a concession that the section was invalid, and could not be enforced. Thus, the request urged the Circuit Court to block that provision as it applied to rifles and shotguns, giving city residents acccess in their homes to guns that would work. The city government opposed that request, saying it made no such concession.

The Circuit Court, in its Tuesday order, commented that “our opinion does not specifically address the constitutionality of that statute as it applies to shotguns and rifles,” because it had found that only one D.C. resident — Dick Heller — was entitled to bring the lawsuit, and he had “complained solely about the restrictions on ownership and use of a handgun.”

The order, signed by Senior Judge Laurence H. Silberman, the author of the March 9 ruling, and Circuit Judge Thomas Griffifth, who joined Silberman, went on to say that the D.C. government had advanced in the Supreme Court an argument “not presented in our court” — that the District’s ban on handguns can be justified so long as rifles and shotguns can be utilized in the home for self protection.” (In fact, the local government’s petition states that the question raised in its appeal this way: “Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns.” Phrased that way, the question appeared to narrow the claim the District was making for its law, suggesting it would be valid as long as long guns remained available.)

If the Supreme Court reaches that argument, and upholds the handgun ban only because “long guns were permitted,” the Circuit Court said in its order, then the Justices would have to confront the question of whether the disassemble-or-lock provision would have to be struck down because a disassembled or locked rifle or shotgun might be “virtually useless to face an unexpected threat” in the home. A footnote continued with a further analysis of the characteristics of rifles and shotguns when used in tight quarters.

Circuit Judge Karen LeCraft Henderson, who had dissented from the March 9 ruling, went along with denying the gun rights advocates’ request to bar the assemble-and-lock provision. but indicated she did not join the remainder of the order with its commentary.

(The Circuit Court order can be found by those with PACER accounts on the Court’s website under docket 04-7041, Parker v. District of Columbia, entry dated Sept. 25, 2007.)

With the help of Howard Bashman of How Appealing and Eugene Volokh of Volokh Conspiracy, we can now provide the full text of the order:

“”BEFORE Henderson [Footnote 1] and Griffith, Circuit Judges, and Wilberman, Senior Circuit Judge.

“ORDER
“Upon consideration of appellants’ motion to lift stay of mandate and the opposition thereto, it is
“ORDERED that appellalnts’ motion to lift (partially) our stay of mandate be denied.

“Appellants’ contention is that appellees’ petition for certiorari concedes the unconstitutionality of D.C. Code Section 7-2507.02 as it requires the disassembling of shotguns and rifles or the placement of trigger locks, making such arms practically useless for self defense [Footnote 2]. Therefore, appellants argue, our mandate holding this provision unconstitutional should issue. But our opinion does not specifically address the constitutionality of that statute as it applies to shotguns and rifles because the only plaintiff we concluded had standing under our precedent was Dick Heller, who complained solely about the restrictions on ownership and use of a handgun. Parker, 478 F.3d 370, 373-76 (D.C. Cir. 2007). At least one other plaintiff (Gillian St. Lawrence) did address Section 7-2507.02 as it applied to shotguns but she did not have the same injury as Heller -– the denial of a license. Id. To be sure, as our opinion suggested, the Supreme Court may well disagree with Seegars, 396 F.3d 1248 (D.C. Cir. 2005), and conclude that all the plaintiffs have standing.

“In any event, the District’s petition for certiorari makes an alternative argument not presented in our court -– that the District’s ban on handguns can be justified so long as rifles and shotguns can be utilized in the home for self protection. The Supreme Court, if it should reach that argument -– and conclude it was constitutional to ban handguns in the home if long guns were permitted -– would necessarily be obliged to consider the impact of Section 7-2507.02, since a disassembly or trigger lock requirement might render a shotgun or rifle virtually useless to face an unexpected threat.[Footnote 3]

“[Footnote 1] Judge Henderson concurs in the denial of the motion.
“[Foonote 2] Appellants’ motion does not mention the other provisions we held unconstitutional with regard to handgun possession — D.C. Code Sections 22-4504 and 22-4506 — nor does the District in its opposition.
“[Foonote 3] The District of Columbia Council never contemplated the specific use of a rifle or shotgun in that situation. Had the Council contemplated such, it would, perforce, have had to consider the danger posed by a rifle’s range and a shotgun’s pellet spread, as well as the difficulty one would have handling such long weapons in enclosed spaces -– particularly by smaller individuals. Appellees’ brief at 17 did suggest that any gun (including a pre-1976 legal handgun) might be used in self defense in a “true emergency,” otherwise described as “genuine imminent danger.” But the Code does not allow for such, nor did the District ever specify how one would define the circumstances under which one could assemble or unlock a rifle or shotgun to face a “true emergency” (professionals might well be amused at such a hypothetical). The truth is that neither the Code nor the District, in this litigation, ever suggested that a rifle or shotgun, as opposed to a handgun, could be legally employed in self defense.”

The following summary was written by Shannen Naegel, a tax associate at Akin Gump’s office in Washington, DC.

The Supreme Court on Tuesday agreed to consider whether intent to make a return of capital is required for funds diverted and distributed to a shareholder of a corporation without earnings and profits to qualify as non-taxable return of capital in the context of a criminal trial for tax evasion.

In Boulware, the founder, chairman, and president of Hawaiian Isles Enterprises (HIE), a closely held corporation selling tobacco products, coffee, bottled water, and other goods, was charged with tax evasion and tax fraud in connection with his failure to report funds diverted from HIE. Boulware was convicted on multiple counts, but the Ninth Circuit reversed on the ground that the trial court erroneously excluded evidence of a Hawaii state court’s adjudication of property rights of some of the diverted funds from HIE. The taxpayer was also the majority shareholder of HIE; the other shareholder was a trust for the benefit of his son.

On retrial, Boulware was convicted on all counts. In his second appeal to the Ninth Circuit, Boulware argued, in part, that the funds he received from HIE were non-taxable returns of capital rather than income. The Ninth Circuit held that Boulware did not provide sufficient evidence that the funds were intended as a return of capital at the time of distribution to sustain a return-of-capital defense under the Ninth Circuit case, U.S. v. Miller, 545 F.2d 1204 (1976). In Miller, the Ninth Circuit ruled that where the government establishes a prima facie case that a defendant received and failed to report corporate funds, the burden shifts to the defendant to establish that the funds were intended to be a non-taxable return of capital.

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Under the Immigration and Nationality Act, the government may permit aliens who are otherwise eligible for deportation to instead depart the country voluntarily, often within a period of 60 days. Meanwhile, under a separate provision of the INA, aliens may also seek to reopen their removal proceedings within 90 days of a final deportation order – so long as they remain inside the country while the motion is under consideration. On Tuesday, the Supreme Court grated certiorari in Dada v. Keisler (06-1181) to resolve a question that has divided the courts of appeal about these somewhat conflicting provisions: whether the filing of a motion to reopen removal proceedings automatically tolls the period in which aliens granted voluntary departure must leave the country.

The case – one of 17 granted on Tuesday – involves Samson Dada, a Nigerian citizen who entered the country in mid-1998 on a temporary visa for artists and entertainers. Dada overstayed the visa but married a U.S. citizen the following year, making him eligible for permanent residence under INA section 245(a). Dada’s wife failed to provide required documentation when filing his green card petition, however, and in 2004 the government found Dada removable. An immigration judge granted Dada’s request for voluntary departure, which began running once the Board of Immigration Appeals affirmed the removal order in November 2005. Before the window to leave the country closed, Dada filed a motion to reopen his removal proceedings. In so doing, he asked that the voluntary departure order be withdrawn, to avoid the 10-year bar on future re-entry that accompanies a failure to leave the country within the allotted time. The BIA denied both requests, and Dada appealed to the Fifth Circuit. At the time of Dada’s appeal, the Third, Eighth and Ninth Circuits had held the filing a motion to reopen automatically tolled the voluntary departure window. (The Eleventh Circuit reached the same conclusion after the appeal.) The Fifth Circuit held otherwise and, because Dada’s voluntary departure period had expired, found him subject to the 10-year bar on future re-entry.

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The hearing list, which lists counsel who will represent the parties at oral argument, can be found here.

No non-capital orders are expected to be issued today from the Court. The October Term 2007 is scheduled to begin Monday, Oct. 1.

Bottom side briefs are due today in John R. Sand & Gravel Company v. United States (06-1164).

The Denver University Law Review has just published a new sentencing survey on the Supreme Court’s decision last Term in Rita v. United States, see here. With the Court’s continued interest in sentencing matters, as evidenced by the Court’s consideration of Kimbrough and Gall next week, the articles in this issue are quite timely. Contributors include, among others, Judge Jeffrey Sutton (6th Circuit), Judge Nancy Gertner (D. Mass.), Judge Lynn Adelman (D. Wisc.), and Douglas Berman (Moritz College of Law-Ohio State University). The issue includes a top-notch group of contributors and I recommend taking a look at it if you are interested in the upcoming sentencing cases.

Arthur Hellman (University of Pittsburgh School of Law) has posted on SSRN a new article entitled “The Regulation of Judicial Ethics in the Federal System: A Peek Behind Closed Doors,” see here. Although the article talks more generally about ethics for federal judges, there are two components of it that have a substantial Supreme Court focus. First, the article discusses the recent controversies over the decisions of Justices Scalia (in the Cheney case) and Breyer (Booker and Fanfan) not to recuse themselves. Second, the article includes a lengthy discussion of a committee chaired by Justice Breyer that considered the operation of a 1980 Act setting forth the procedures for handling complaints against federal judges and taking action in cases involving judicial misconduct. Hellman always does great work.

Chris Bonneau (University of Pittsburgh), Thomas Hammond (Michigan State), Forrest Maltzman (George Washington University), and Paul Wahlbeck (George Washington University) have just posted on SSRN a new article entitled “Agenda Control, the Median Justice, and the Majority Opinion on the U.S. Supreme Court,” see here. Although this paper relies on data from the Burger Court (which is slightly less interesting and germane than Rehnquist Court data), the authors challenge the hypothesis that the median justice alone controls the content of majority opinions. Although it may seem intuitive, the paper concludes empirically that the writer of the majority opinion in fact exercises more influence than the median Justice in determining the content of majority opinions. I really like this paper because it is short, accessible for non-quantitative folks, and has quite a bit of interesting new information. The final paragraph in the paper about the impact of judicial appointments is especially thought-provoking.

(NOTE TO READERS: The lower court decision discussed below, found by locating the opinion in 06-1760 at this link, contains explicit language that some readers will find not to their taste. The blog, in a gesture of modesty and delicacy, will avoid repeating those words, substituting a euphemism.)

UPDATE: The Justice Department application described here can be found at this link.)

The Justice Department has notified the Supreme Court that it will be filing an appeal seeking to restore the government’s power to penalize licensed broadcasters for airing “fleeting expletives” — especially, “the F-Word,” even if it is uttered only a single time during a broadcast and even if it is used to provide emphasis or exaggeration rather than to describe a sex act. U.S. Solicitor General Paul D. Clement disclosed that plan in an application filed Monday, seeking more time to prepare the petition (Application 07A155). The deadline for the filing is now set at Nov. 1, under an order issued on Monday by Justice Ruth Bader Ginsburg.

At issue in the appeal will be a 2-1 decision by the Second Circuit Court on June 4, finding a switch in policy by the Federal Communications Commission dating to 2003 to be arbitrary, but giving the FCC a chance to provide an “adequate explanation” for the shift. The majority, however, opined that it was doubtful that the FCC could find a rationale that would “adequately respond to the constitutional and statutory challenges raised by” broadcasters, but nevertheless said it should have the chance to try. “We can decide this case on this narrow ground,” the majority said.

The policy, challenged in the Circuit Court by Fox Television Stations, Inc., and other broadcasters, is sometimes referred to as the “Golden Globes” policy because it was first pronounced in the FCC’s reaction to a comment by a popular musician, Bono, when NBC-TV broadcast live the Golden Globe Awards on Jan. 19, 2003. Accepting an award, Bono suggested that the event was “really, really…brilliant” — with the ellipsis here filled by a variant of “the F-Word” to say just how “brilliant” he thought it was.

That policy replaced a policy in place for nearly three decades before that, sometimes referred to as the “fleeting expletives” policy. That now-discarded approach by the FCC said the agency would not treat as indecent, and thus not a violation of federal law, if a “patently offensive” word such as “the F-Word” was uttered on the air in only a “fleeting and isolated” way. That was the policy that had gradually developed at the Commission following the Supreme Court’s 1978 decision in FCC v. Pacifica Foundation, ruling that the FCC did have the authority under federal law to regulate broadcast speech that was “indecent” but not obscene. Later in 1978, the FCC issued an opinion saying that it was “the repetitive occurrence” of indecent words that would run afoul of federal law.

In its switch to the “Golden Globes” policy, the Commission found that any use of any variant of “the F-Word” necessarily had sexual connotations, so fell within the scope of indecency when defined as “patently offensive” through descriptions on the air of “sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience.” Said the FCC at that time: “The ‘F-Word’ is one of the most vulgar, graphic, and explicit descriptions of sexual activity in the English language.” It cast aside all prior rulings based on the “fleeting expletive” approach.

Although broadcasters asked the agency to reconsider its new policy, the agency took no action on those requests, but continued to apply the new approach to broadcasts that contained even one use of the prohibited word. It was these later applications of the single-use ban that led to the case in the Second Circuit.

Specifically, the Circuit Court’s ruling in Fox Television Stations, Inc., et al., v. FCC, involved Commission findings of indecent and profane utterances in two instances. Both involved Fox’s broadcast of the Billboard Music Awards, in 2002 and 2003. In 2002, the singer/actress Cher used the prohibited word in an acceptance speech. In 2003, actress Nicole Richie, who was helping to present the awards, used a variant of it, along with a reference to “cow —–.” In response to Ms Richie’s use of the epithet, the FCC ruled that any use on the air of that word, too, would be unlawful.

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Can the counsel for a federal criminal defendant waive that defendant’s constitutional right to have an Article III judge, or must the defendant himself explicitly agree? This is the question presented in Gonzalez v. United States, one of the seventeen new cases in which cert. was granted Tuesday.

In December 2004, petitioner Homero Gonzalez was indicted on conspiracy and drug charges arising from his role in a major drug-trafficking operation. In January 2005, petitioner and his attorney were in court to begin jury selection for his trial. Before jury selection began, a magistrate judge asked the prosecutor and petitioner’s attorney to “approach the bench.” She then asked the two attorneys whether the parties would consent to having her preside over the jury selection; both attorneys agreed. The record shows that at no time did Gonzalez – who does not speak English – consent to have a non-Article III judge preside over jury selection; it also shows that Gonzalez was never informed by the judge that his attorney had consented.

On appeal, Gonzalez – now represented by new counsel – argued that “the magistrate judge’s presiding over jury selection was improper because the record did not reflect [his] knowing and voluntary consent” to the substitution. The Fifth Circuit acknowledged an Eleventh Circuit decision, United States v. Maragh, which held that the “‘defendant’s personal consent is required for the delegation of jury selection to be constitutionally valid,’” but it ultimately agreed with several other circuits that personal consent is not required. Certain rights are so fundamental that they must be waived by the defendant personally, the Fifth Circuit explained, but Gonzalez had not provided any proof that “the right to have an Article III judge conduct voir dire” was one of them.

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Even before the Justices have decided whether to hear a case, the U.S. Chamber of Commerce is willing to step in and state its interest—more willing, in fact, than any other organization.

A review of certiorari-stage amicus curiae briefs (i.e., amicus briefs filed at the petition stage, before the Justices grant cert.) filed between May 19, 2004 and August 15, 2007 shows that the Chamber of Commerce filed 55 such briefs, about 17 per year. Over the three-and-a-quarter years studied, 986 parties filed cert.-stage amicus briefs, averaging 1.666 briefs per party. Of those 986 amici, 259 filed 2 or more, and 118 filed 3 or more. Not every party was included in the count, as we were most interested in the impact of private groups and advocacy organizations pushing cert. petitions; those excluded from the count are listed at the bottom of this post.

The top sixteen parties each filed 8 or more briefs, and a list of those groups, along with the success rates of the cases in which they filed (up to Tuesday’s orders list), is here. The success rate is calculated as a percentage of the party-supported petitions that were either granted or denied. (Note that only amicus briefs in support of a petition are considered here; the Washington Legal Foundation filed as an amicus in opposition to the petition in Padilla v. Hanft (05-533) and was not counted in that instance.) Petitions supported by these top sixteen groups included many of the Court’s most high-profile cases over the last few years, such as US v. Booker, MGM v. Grokster, PICS v. Seattle Schools, and Rumsfeld v. FAIR.

Notably, the list of top amici is dominated by pro-business and anti-regulatory groups—such groups hold over half the slots in the top sixteen. The prevalence of these groups may result from their having an enhanced financial ability to pay for many cert.-stage briefs as compared to other groups; the businesses and industries they comprise and represent may also be more eager to jump in at the petition stage when their bottom lines are at stake (as opposed to an ideological group); and it’s possible, too, that these groups want to get as many cases as they can before a Supreme Court that is being increasingly viewed as business-friendly (e.g., see here). As a corollary, the absence of liberal or left-leaning groups is striking (with the National Association of Criminal Defense Lawyers as a narrowly-focused exception). The American Civil Liberties Union, for instance, tallied just two cert.-stage amicus briefs during this time.

A full quarter of the sweet sixteen are regionally-named legal foundations. Ranking third, fourth, seventh, and eighth overall in numbers of cert.-stage amicus briefs filed, the Washington Legal Foundation filed 26 briefs, the Pacific Legal Foundation filed 25, the New England Legal Foundation filed 11, and the Mountain States Legal Foundation filed 10. Their success rates were relatively high, ranging from about 18% (New England) to 39% (Washington). The Washington Legal Foundation, in fact, edged out the National Association of Home Builders (36%) to have the highest grant percentage of the top sixteen.

The only two groups in the top sixteen to be completely shut out were the Reporters Committee for Freedom of the Press (9 briefs in cases denied cert.) and the Society of Professional Journalists (8 briefs). Additionally, the Associated Press filed seven cert.-stage amicus briefs in cases that were all denied. These three groups, along with many other media organizations, often file amicus briefs together, so these are not 24 distinct denials, but rather just nine. Even so, since May 2004, these media groups hold the distinction of putting the most effort into pushing petitions while having no success.

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Six years ago, in Buckman v. Plaintiffs’ Legal Committee, the Supreme Court held that state-law claims alleging that the manufacturer of orthopedic bone screws made fraudulent representations to the Food and Drug Administration (“FDA”) were impliedly preempted by the Federal Food, Drug, and Cosmetic Act. On Tuesday, the Court granted certiorari in No. 06-1498, Warner-Lambert Co. v. Kent, to clarify the scope of its holding in Buckman: specifically, whether a state product liability statute that creates a general “safe harbor” from liability for FDA-approved drugs but carves out an exception for cases in which the approval was obtained through fraud is also preempted.

Under Michigan law, an FDA-approved drug cannot be deemed defective or unreasonably dangerous for product liability purposes unless the approval was obtained through fraud. Pursuant to this state statute, the respondents – all Michigan citizens – filed suit in Michigan state court, alleging that they were injured by Rezulin, a diabetes drug approved by the FDA but ultimately withdrawn from the market by Warner-Lambert. The case was removed to federal district court in Michigan and then subsequently transferred to the Southern District of New York by the Judicial Panel on Multidistrict Litigation. Warner-Lambert moved for judgment on the pleadings, arguing that under Buckman the claims were impliedly preempted, and the district court agreed.

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No non-capital orders are expected to be issued today from the Court. The October Term 2007 is scheduled to begin Monday, Oct. 1.

The last two Round-Ups have only included articles that directly pertain to Tuesday’s grant announcements. Consequently, this one pulls together other Supreme Court news and commentary from the first half of the week.

Talk about Jeffrey Toobin’s book only continues. Tuesday’s Christian Science Monitor included a review by Warren Richey, which quotes some particularly pithy tidbits on the Justices. In case anyone missed it, David Margolick’s Sunday Times Book Review comments on what he sees as Toobin’s big advantage: his “outsider” status. Emily Bazelon and Dahlia Lithwick talk about all the talk in their “Nine Ways to Read The Nine.”

Marcia Coyle for the National Law Journal predicts that the coming term will “stand out in court history books.”

Kenneth Jost talks about October’s big business case, Stoneridge Investment Partners v. Scientific-Atlanta for the CQ Weekly.

Joseph Goldstein details the two New York cases in the Court this coming term, one on New York’s system of selecting state judges and one on private school tuition reimbursement for students with disabilities. On that same second case, Mark Walsh for Education Week writes that a decision in Board of Education of the City School District of the City of New York v. Tom F. could “rein in” the placement of children with learning disabilities into private schools (subscription req’d).

Greg Stohr considers for Bloomberg News whether Justice Thomas’ reputation on the Court exceeds his influence.

Robert A. Levy, one of the attorneys representing the residents in the DC gun case, comments on the District’s arguments in its cert. petition, here in the Legal Times.

Adam Liptak’s New York Times article, published before long conference grants were announced on Tuesday, discusses the rampant “fear,” but few facts, in the partisan debate over voter IDs.

Seeking to head off another round in the lower courts before the dispute goes on to the Supreme Court, lawyers for Guantanamo Bay detainees argued that the D.C. Circuit Court has no need to re-examine the procedures it has laid down for civilian review of the prisoners’ challenges to their long-term military captivity. The Bush Administration has asked for rehearing en banc of a July 20 Circuit Court panel decision on Detainee Treatment Act procedures, and told detainees’ lawyers to respond. The opposition motion, filed Wednesday, can be found here. The combined cases are Bismullah v. Gates (06-1197) and Parhat v. Gates (06-1397).

To the Administration claim that providing full information about each detainees’ status would pose major burdens, the detainees’ counsel countered that it was Congress that imposed the requirement for court review of that information, and the Circuit Court “lacks the power to excuse the government from the burden of judicial review.” Citing constitutional separation of powers doctrine, the detainees’ brief said that “if a problem exists at all, it is for Congress, not the Court, to address.”

And to the Administration claim, bolstered by strong statements from the top rank of intelligence officials, that forced disclosure of much of the information about detainees would imperil national security, the detainees’ lawyers responded that the Circuit Court has already adopted a “protective order” that will assure confidentiality where needed. “There is no basis for en banc review, certainly not before the Court’s safeguards have even to be tested,” the brief asserted. Moreover, it added, detainees’ lawyers already have higher security clearances than some of the civilian contractors who helped compile information for use against detainees.

The government has told the Circuit Court that, if rehearing is denied, it would then take this controversy on to the Supreme Court, seeking expedited review.

At the heart of this controversy are the roles of two institutions — Combatant Status Review Tribunals, set up by the Pentagon to review whether detainees should be designated as “enemy combatants” and thus could not be released from custody, and the D.C. Circuit, given the assignment by Congress to review detainees’ challenges to CSRT decisions. The government wants the D.C. Circuit’s role to be significantly narrower than the Circuit Court has now decreed, and especially wants to be requried only to supply for judicial review what was actually put before the CSRTs to make their findings about detainee status.

The government has suggested that the Circuit Court’s July 20 mandate, requiring disclosure to the Court and, to some degree, to detainees’ lawyers, of all government information bearing upon a given detainee, is based on a flawed perception that the data is all kept in one easily reached file box when in fact it is spread widely over many federal agencies. The detainees retorted on Wednesday with their own metaphor: “The government and [the intelligence officials] act as though the Court has ordered a search of the Library of Congress, book by book, as if there were no card catalogue.” In fact, the detainees’ counsel said, there are many paper files at Guantanamo Bay, and there are other sites that detainees’ counsel have pointed out to help the government search. The government, the lawyers argued, “simply advocates a rule that would ensure that the Court never learns” of what the government has about detainees.

The Circuit Court has ten active judges now. It would take the votes of at least six of them to grant rehearing en banc. The Circuit Court could act on the government request at any time; the government does not have a right to reply to the detainees’ answer.

In another development on detainees, lawyers for a group that may include as many as 40 prisoners asked U.S. District Judge Ricardo M. Urbina on Wednesday to reconsider his ruling last week ordering the dismissal of all of those habeas cases. In the motion, detainees’ counsel argued that the Supreme Court’s agreement to hear two detainee cases has put everything on hold, and that Judge Urbina thus lacks jurisdiction to dismiss the cases. The motion can be found here.

Among other reasons the detainees’ lawyers want those cases kept intact for the time being is that their dismissal may scuttle court orders giving the lawyers access to their clients at Guantanamo Bay.

David Savage and Henry Weinstein’s piece in the LA Times today focuses on the High Court’s decision to hear a challenge to the most common chemical combination used in lethal injections. A ruling in favor of the petitioners, Savage and Weinstein write, “would not prohibit lethal injections” but could force officials to use “new or different chemicals.” Linda Greenhouse writes in her NY Times piece that, while Baze v. Rees is pending, judges are “certain to be asked to bar” such lethal injection executions.

Greenhouse’s detailed article on the voter ID cases includes their history in the lower courts.

James Oliphant of the Chicago Tribune discusses these two big cases coming out of the long conference and comments that both “could have an impact on next year’s races.”

No non-capital orders are expected to be issued today from the Court. The October Term 2007 is scheduled to begin Monday, Oct. 1.

Update: Linked below are more articles published on two of the cases granted today.

Tony Mauro has an “Online Extra” for the Legal Times that includes information on the consolidated Indiana Voter ID cases (Crawford v. Marion City Election Board and Indiana Democratic Party v. Rokita) and Baze v. Rees, which questions the constitutionality of execution by lethal injection. Mauro also notes that only nine cases were granted from the long conference last year, and he speculates that perhaps the Court’s higher number this year (seventeen) may be in response “to a summer’s worth of questioning and commentary about its shrinking docket.” Slate’s Dahlia Lithwick speaks with Alex Cohen on NPR about those two very controversial cases — Baze v. Rees and the Indiana Voter ID cases. Robert Barnes has this article on the two cases for the Washington Post.

For CBS News, Andrew Cohen posts his predictions for Baze v. Rees, guessing that “the Court next spring will declare invalid the lethal injection procedures Kentucky and certain other states employ when they execute capital defendants” by a 5-4 vote, with Justice Kennedy writing the majority opinion.

David Savage reports on the Voter ID case here.

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Some 216 years after the Fourth Amendment was written into the Constitution, a new issue over its meaning is now before the Supreme Court. In criminal law, few Amendments have as much nuance in their acquired meaning, with refinement upon refinement in arrest, search and seizure powers coming often, seemingly with each new Term of the Court. Frequently, a new twist involves what police may do when they stop a car along the road. The latest Fourth Amendment question, also growing out of a roadside stop, is whether a violation of state law governing police arrests finds a remedy in the national Constitution. That is the issue in Virginia v. Moore (06-1082), granted Monday with oral argument likely in January or February. (Click the following links to read the petition, brief in opposition and reply.)

The state of Virginia’s appeal has drawn the support of 13 other states and Puerto Rico, arguing that the Virginia Supreme Court ruling converting a violation of state arrest law into a Fourth Amendment violation intrudes upon states’ rights. “The melding of state-law regulations into federal constitutional rights,” those other states’ brief argued, “undermines the benefits of both: On the one hand, it mandates a uniform remedy for a broad spectrum of state statutory violations; on the other, it allows state laws to create variations in federal constitutional protections.”

What attracted the Justices’ attention to the case, aside from their abiding fascination with Fourth Amendment intricacy, very likely was the fact that the specific question has divided the federal and state courts.

According to papers filed in the Brown case, a minority of courts that have addressed the issue, including Virginia’s highest court, have ruled that when state arrest law is violated, the federal Constitution provides a remedy in the suppression of any evidence that resulted from the arrest and a related search. A majority of courts, by contrast, have concluded that, if an officer has had probable cause to make an arrest, that satisfies the Fourth Amendment, even if some provision of state law was violated in the process.

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The first edition of the StatPack for OT07 is now available here, and it is updated with information about all the cases set for argument so far this Term, including today’s 17 grants that emerged from the Long Conference. With no cases yet decided, the download includes the case list, including summaries of each case granted; the grant chart by Conference; and the Circuit Scorecard.

Turning to the docket: with none of today’s granted cases sufficiently expedited to be argued during the December sitting, the Court has only seven cases with which to fill out the fall’s argument calendar. This means that the Court will hear nine cases in the October sitting (including one day with only one argument; see here), ten cases in the November sitting (including two days with only one argument; see here), and seven in the December sitting. Since there are six days scheduled for argument during that sitting, either several days of argument will be canceled or all but one day will have only one argument. The amount of open space on the December calendar also raises the possibility that the now-consolidated cases dealing with Guantanamo detainees, Boumediene and Al-Odah, could be afforded two hours of oral argument. Additionally, Dan Schweitzer of NAAG points out that an original case (New Jersey v. Delaware) will be sufficiently briefed by the end of September so that it, too, may come for oral argument during the December sitting.

Still, with today’s deluge of grants, the 43 cases the Court now has agreed to hear put it five grants ahead of last Term’s pace, so a return to a more traditional two-argument-per-day schedule may be in the offing for the remainder of the Term. However, careful readers of today’s Order List will note that all 17 granted cases have been expedited, with briefing to conclude by December 28. That would make all 17 cases briefed and ready to be argued in January, if the Court so desired. The last time the Court’s docket overflowed in a similar manner – with 16 cases granted in January of 2007 – the Court did indeed schedule afternoon arguments for four days during the April sitting, rather than letting the extra cases roll over to the next Term.

It’s not known yet whether the Court will set all 17 of today’s granted cases for argument in January, and hence will continue to have some sittings featuring more than the traditional two-arguments-per-day and some sittings with fewer, or whether the Court will use today’s overflow to help re-establish the previous norm by holding several off until February. When additional argument calendars are released, we will post them as soon as possible.

Voting will be under way in the 2008 primary elections when the Supreme Court considers and decides a pair of cases granted review on Monday, but the general election will still be in the offing, and the political world will maintain a longer-term interest in the outcome. Few cases the Court might have agreed to hear would be likely to have as much real-world political impact as the newly granted cases of Crawford v. Marion County Election Board (07-21) and Indiana Democratic Party v. Rokita (07-25), involving an Indiana voting requirement law that is said to be among the most demanding in the nation. (Click the following links to read the petition in 07-21, the petition in 07-25, the brief in opposition in both cases, the supplemental brief in opposition in both cases, the reply in 07-21 and the reply in 07-25.)

The Justices will be deciding on the constitutionality of an increasing popular form of balloting restriction: requiring those who show up at the polls to vote to first show a photo ID, such as a driver’s license or a passport. In perhaps half of the states and in the federal government, such identification requirements have been written into law in varying forms — defended by their sponsors as necessary checks upon voting fraud, assailed by their critics as cynical efforts to keep poor and minority (and likely Democratic) voters away from the polls. In fact, voter fraud is a concern often expressed most vigorously by Republicans — and it has been an issue as Washington pondered the firings of some federal prosecutors for supposedly going easy on election fraud.

The Court may not pay much attention, openly, to the potential partisan effect of the decision they will announce, perhaps in late spring. But they very likely will be looking to counsel on both sides to offer at least argument, if not evidence, to give practical substance to two opposing propositions: that few attempts are made to pose as someone else in order to skew voting in any given election (that is, the claim that voter fraud is not a real problem), and that few people really are discouraged from voting by ID requirements at the polls (that is, the argument that most people have IDs so requiring them is not a big deal).

Among the three judges on the Seventh Circuit Court, the two-judge majority who voted to uphold the Indiana law were little impressed with the claim that a photo ID command imposes a burden on potential voters (suggesting that “the vast majority of adults have such identification”), while the dissenting judge was not persuaded that voter fraud was prevalent (dismissing that argument as a “fig leaf of respectability providing the motive behind this law” and noting that no one in the history of Indiana has ever been charged with voter fraud).

Some states have long required voters to identify themselves at the polls, but no state had a mandatory requirement to produce a photo ID issued by a government agency and still valid, until Indiana and Georgia passed such laws in 2005. Indiana’s law, which went into effect July 1, 2005, requires those who seek to vote to product a state or federally issued photo ID; if the voter does not have one, a provisional ballot may be cast, with the voter under an obligation to produce a photo ID within 10 days after the election in order to have the vote count; a poor person may file an affidavit swearing that they were the ones who had voted or that they were too poor to obtain a photo ID for a fee.

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Not since March 17, 1879, has the Supreme Court faced a constitutional test over a method of carrying out the death penalty. On that day, in Wilkerson v. Utah, it upheld a court’s order that one Wallace Wilkerson be taken to a place within the Utah Territory “and that you there be publicly shot until you are dead” — that is, by firing squad. (NOTE: See the Comment below for a suggestion that the Court has ruled on a constitutional challenge to an execution method more recently than 1879 — In re Kemmler, in 1890, involving the electric chair.)

In a 13-line order released on Tuesday morning, the Court opted to return to that question — this time, apparently, to lay down a legal standard on when it could violate the Eighth Amendment to execute a convicted individual by using a three-chemical combination — a specific protocol now in use in 36 states. (Among the 38 states that retain the death penalty, only New Jersey uses a different lethal injection protocol, and Nebraska executes only by the electric chair.)

The grant of review in Baze v. Rees (07-543) instantly converted the new Term into a time for high-profile exploration of the most significant unresolved issue on capital punishment — assuming that states will still be allowed to have the death penalty. (Click the following links to read the petition, brief in opposition and reply.) The Court, of course, will not be ruling on whether lethal injection as such is unconstitutional, and certainly not on whether the death penalty in any form is always unconstitutional, but rather will decide the standard for determining whether a particular chemical combination causes too much pain and suffering to be allowed. Still, the fact that the case will be pending may well shut down executions across the country. As Ohio State professor Douglas A. Berman said Tuesday on his Sentencing Law and Policy blog, “This is huge news which could (and probably should) lead to a de facto moratorium on all lethal injection executions nationwide until the Supreme Court issues a ruling.”

The issue at stake is one that the Supreme Court has repeatedly passed up. In decisions in 2004 and 2006, it had ruled that inmates facing execution by lethal drugs could file civil lawsuits to challenge the method in their state, but it had not returned to the issue to judge the outcome in any such case. Three and perhaps four Justices have expressed an interest in the issue, but no review was forthcoming. Since then, according to the petition in the newly granted case, “at least half of the death-sentenced inmates facing an imminent execution have challenged various aspects of the lethal injection process, placing pressure on the lower courts and this Court to resolve this complex issue under the shadow of an execution date.”

What makes this case different, according to attorneys for the two men filing the appeal, Ralph Baze and Thomas C. Bowling, is that the two do not face an impending execution so “this case is not one of those last minute attempts to stave off an execution. Nonetheless, the large number of these types of cases percolating throughout the state and federal courts (both under execution warrant and not) indicates the importance of this Court taking this case to articulate the proper legal standard for determining whether a method of execution (or a portion of it) is cruel and unusual punishment [under the Eighth Amendment].”

The petition sums up the historic gap since the Wilkerson ruling in 1879 this way: “Although nearly 1,100 executions have been carried out since the beginning of 1977, this Court has addressed the constitutionality of a method of execution so long ago that the Bill of Rights had yet to be applied to the states, the right to counsel for indigent defendants was an aberration at best, the concept that the Eighth Amendment involved the evolving standards of decency had yet to be articulated, and anyone who was alive then would be at least 128 years old.”

That recital may have attracted the Justices’ attention, but it seems more likely that the fact that this case did not involve an early execution date may well have been more persuasive. It surely was clear, among the Justices, that the issue would continue to return in prisoner appeals. Indeed, the latest case on the question, Taylor v. Crawford (07-303), just arrived on Sept. 5. The Baze case had been filed July 11.

Since 1976, when the Supreme Court reinstated the death penalty as a constitutional matter, the overwhelming majority of executions have been carried out with lethal drugs — 927 executions, compared to 154 by the electric chair, 11 by the gas chamber, three by hanging and two by firing squad — according to data provided by the Death Penalty Information Center in its current summary.

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FINAL UPDATE 5:30 PM: All petitions and briefs in opposition have now been added.

The Supreme Court on Tuesday agreed to add 17 new cases to its new Term’s decision docket, including a pair of appeals on the constitutionality of requiring voters to show a photo ID before they may vote (Crawford v. Marion County Election Board, 07-21, and Indiana Democratic Party v. Rokita, 07-25). The Court also agreed to decide the constitutionality of execution by lethal drugs when the chemical protocol poses a risk of pain and suffering (Baze v. Rees, 07-5439).

In another order Tuesday, the Court denied a motion to dismiss a previously granted case — LaRue v. DeWolff, Boberg & Associates (06-856). The case involves the right of a pension plan participant to sue the plan manager to recover losses that worker suffered in a pension account. The motion to dismiss claimed that the individual involved had cashed-out his account, so there remained no live issue. The complete orders list is here.

Below you will find a complete list of the cases granted, including descriptions of the issues involved, links to the Court’s electronic docket and, where available, PDFs of the petitions, briefs in opposition and replies. (The Court rephrased the questions it will decide in three of the granted cases: 06-1181, 06-1509 and 06-11612; the questions the Court composed are shown in the orders for each case.)

• Quanta Computer v. LG Electronics (06-937) (definition of the exhaustion of patent rights when licensee sells products containing the patent): docket, petition, brief in opposition, reply.

• Kentucky Retirement Sys. V. EEOC (06-1037) (age bias in disability benefits packages): docket, petition, brief in opposition, reply.

• Virginia v. Moore (06-1082) (lawfulness of search following arrest that violates state law): docket, petition, brief in opposition, reply.

• Dada v. Keisler (06-1181) (postponement of agreement for alien to voluntarily leave U.S.): docket, petition, brief in opposition, reply.

• Gomez-Perez v. Potter (06-1321) (federal employees protection against retaliation for complaining about age bias in workplace): docket, petition, brief in opposition, reply.

• Ali v. Achim (06-1346) (definition of aggravated felony for deportation purposes): docket, petition, brief in opposition, reply.

• Meadwestvaco v. Illinois Dept. of Revenue (06-1413) (tax on sale of investment in LexisNexis): docket, petition, brief in opposition, reply.

• CBOCS West v. Humphries (06-1431) (race retaliation claim under Sec. 1981 of civil rights law): docket, petition, brief in opposition, reply.

• Morgan Stanley Capital Group v. Public Utility Dist.1 (06-1457) and Calpine Energy Services v. Public Utility Dist.1 (06-1462) (federal regulators’ power to take an energy crisis into account in reviewing electric power sale contracts): docket, docket, petition, petition, brief in opposition, reply, reply.

• Preston v. Ferrer (06-1463) (preemption of arbitration agreement): docket, petition, brief in opposition, reply.

• Warner-Lambert v. Kent (06-1498) (preemption of claim of fraud on a federal agency): docket, petition, brief in opposition, reply.

• Boulware v. United States (06-1509) (taxation on diversion of corporate funds to shareholder): docket, petition, brief in opposition, reply.

• United States v. Rodriquez (06-1646) (crimes that qualify for enhanced sentence under armed career criminal law; specific issue involves state drug crime conviction): docket, petition, brief in opposition, reply.

• Begay v. United States (06-11543) (whether felony drunk driving is a violent felony for purposes of enhanced sentencing under armed career criminal law): docket, petition, brief in opposition.

• Gonzalez v. United States (06-11612) (waiver of right to Art. III judge to preside over jury selection when counsel agreed to have a U.S. magistrate instead): docket, petition, brief in opposition.

• Crawford v. Marion City Election Board (07-21) and Indiana Democratic Party v. Rokita (07-25) (constitutionality of requiring voters to show a photo ID before they may vote): docket, docket, petition, petition, brief in opposition, supplemental brief in opposition, reply, reply.

• Baze v. Rees (07-5439) (constitutionality of execution by lethal drugs when the chemical protocol poses a risk of pain and suffering): docket, petition, supplemental brief to the petition, brief in opposition, reply.

(NOTE: This post was originally filed by Lyle Denniston, but has been made more useful by the efforts of Ben Winograd in providing access to the filings in each of the granted cases.)

The Court is scheduled to release orders at 10 a.m. Eastern of cases granted at yesterday’s conference. We will provide coverage as soon as the list becomes available.

A special military appeals court ruled on Monday that judges who preside over “military commissions” have the power to decide on their own who is an “unlawful enemy combatant” and thus can be tried on charges of war crimes. Deciding its first case in a way that gives the Pentagon a major — but not a complete — legal victory, a three-judge panel of the U.S. Court of Military Commission Review set the stage for a new review of the status of a 20-year-old Canadian, Omar Ahmed Khadr. If, as seems likely, a judge or a military commission concludes that he is an illegal combatant, that would revive charges that he killed a U.S. serviceman in Afghanistan fighting in 2002, along with other terrorism-related charges.

Khadr had been charged by the Pentagon in April 2007, some two years and nine months after he had been found to be an “enemy combatant” by a military panel — formally, a Combatant Status Review Tribunal. But, last June 4, a military judge in Guantanamo Bay, Cuba, where Khadr is being held, threw out all of the charges. The judge, Army Col. Peter E. Brownback, was the presiding officer of a military commission set up to try Khadr.

The judge found that the only individuals who can be tried before military commissions are those found to be “unlawful enemy combatants”; it was not enough, the judge concluded, for the CSRT to have found Khadr simply to be an “enemy combatant.” Moreover, the judge added, neither he nor the military commission itself could decide on their own that Khadr’s status was that of an “unlawful” combatant. Since the commission had no jurisdiction, Khadr could not be tried, according to the judge. (A second judge also threw out war crimes charges against a Yemeni national, Salim Ahmed Hamdan; the Pentagon has not appealed that ruling, but it is likely to be overturned on the basis of Monday’s decision by the CMCR.)

Judge Brownback’s main conclusion threatened the prospect that the military might have to conduct new CSRT proceedings, perhaps in more than 550 cases of Guantanamo prisoners.

But the Pentagon was spared any new round of review in the CSRTs by the CMCR conclusion that Judge Brownback did have jurisdiction to decide on Khadr’s status, and thus to proceed to try him. Its ruling came after an appeal filed by the Pentagon. Significantly, in other parts of its ruling (discussed below), the appeals court stripped the CSRTs of some of the authority that the Pentagon had claimed they had.

The ruling can be downloaded here. In a second decision released Monday, the CMCR concluded that its three members were validly appointed, so they had authority to decide the case. (That separate ruling is here.)

The Pentagon did not win on all points at issue, however. The appeals court rejected the Pentagon argument that there was no legal difference between a finding of an “enemy combatant” by a CSRT and an “unlawful enemy combatant.” The former can be captured and held during a conflict, but cannot be charged with crimes, it ruled. Only an “unlawful enemy combatant” may be charged, it concluded, citing “the well recognized body of customary international law.”

The appeals court also upheld Judge Brownback’s conclusion that the CSRT finding of “enemy combatant” was not sufficient to set up a trial before a commission. It thus rejected the Pentagon conclusion that prior statements by President Bush and other high officials were sufficient to turn anyone accused of ties to the Al Qaeda terrorist network or to the Taliban into an “unlawful enemy combatant.” Congress, in creating war crimes commissions in the Military Commissions Act of 2006, spoke clearly on the subject, CMCR concluded.

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The local government of Washington, D.C., on Monday urged the D.C. Circuit Court not to “interfere” with the Supreme Court’s coming action on the city’s gun control law, arguing that an existing order temporarily allowing enforcement of that law should be left intact. City officials were responding to a request by a local resident to allow him and others living in the capital city to have immediate access to rifles and shotguns in functioning condition, for self-defense use.

The opposition brief can be found here

The Supreme Court has not yet acted upon the city government’s appeal (District of Columbia v. Heller, 07-290), seeking to overturn a Circuit Court ruling last March that the handgun ban — one of the strictest gun control laws in the nation — violates the Second Amendment. Attorneys for local resident Dick Anthony Heller, who had successfully challenged the pistol ban, have until Oct. 5 to reply to the city appeal, but are expected to file before that date.

In the meantime, Heller’s attorneys took the unusual step of asking the Circuit Court to put into effect immediately a part of the local gun ordinance that requires owners of rifles and shotguns kept at home to be disassembled or have a trigger lock in place. Contending that the city had conceded that that part of the law could not be enforced if rifles and shotguns were used for self-defense, Heller’s counsel said the Circuit Court should partially lift a stay of its ruling while Supreme Court action was awaited. An earlier post discussing this request in the Circuit Court can be found here.

Responding Monday, city officials said that they had made no concession that the disassembly-or-lock provision was invalid. And, they contended, if the Supreme Court were to side with the District’s constitutional position, that part of the local law, too, would be upheld. Once again, though, officials noted that they do not contend that legally owned rifles and shotguns kept at home could not be used in self-defense. But they said that situation should not be compelled by the Second Amendment, as they said the Circuit Court had ruled.

To partially lift the temporary stay of enforcement on the gun law, officials told the Circuit Court, would be to split the case — with part of it going forward in lower federal courts, while the Supreme Court was considering the city’s pending appeal on the constitutional question. Federal court rules, they asserted, seek to prevent “such inefficient and undesirable proceedings.”

The stay issued by the Circuit Court, putting off the effect of its ruling against the local law, “should continue until the Supreme Court has disposed of this case,” the brief said.

As a practical matter, the city brief added, there is only a “distinctly remote” chance that Heller would have to use a rifle or shotgun to defend himself at home, and there is no likelihood that he would be prosecuted while the case is pending before the Supreme Court. No one has ever been prosecuted in the city for using a lawful weapon in self-defense, it noted.

Heller, the city added on another point, had agreed earlier to the stay of the Circuit Court ruling, to await the outcome of Supreme Court action. “The material circumstances have not changed,” the city said. “As a consequence, neither should the status quo.”

The Court today will hold the traditional September “long” conference, at which the Justices will consider the hundreds of cert petitions filed over the summer. (Click here for our post on “petitions to watch.”) On Tuesday morning, the Court will release an orders list consisting of any cases granted during today’s conference. Any other orders will be released the following week.

Wednesday is the deadline for detainees’ lawyers to respond to the government’s rehearing en banc request in Bismullah v. Gates and Parhat v. Gates, the Detainee Treatment Act cases on the D.C. Circuit’s scope of review of decisions of Combatant Status Review Tribunals at Guantanamo Bay. If en banc review is denied, the government has said it will appeal to the Supreme Court on an expedited basis.

On Thursday or Friday, David Stras will post an Academic Round-Up on the blog.

No top side briefs are due this week. Bottom side briefs are due today in Federal Express v. Holowecki (06-1322) and Ali v. Federal Bureau of Prisons (06-9130), and Friday in John R. Sand & Gravel Company v. United States (06-1164).