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.