The transcript of today’s argument in Danforth v. Minnesota (06-8273) is now available here.

(NOTE: For a fuller discussion of the legal issues at stake and the factual background of the case, look here at SCOTUSwiki.)

It was far from the biggest case of the Term, and well over half of the spectator and lawyer seats were empty, but those who did show up for Danforth v. Minnesota on Wednesday were treated to a lively and wide-ranging inquiry into just what it is that the Supreme Court does when it finds that a new constitutional right exists. As if conducting an oral exam in basic constitutional law, the Justices explored whether a right that they announce was, in fact, always there though previously undiscovered, or whether it simply emerged as a brand-new product of the judicial imagination. Curiously, some of the Justices who believe that the Constitution means only what it did in the beginning (the “originalist” persuasion) were arguing that the Court certainly can and does create new constitutional meaning, while some of those who believe in a “living Constitution” (it changes with the times) were suggesting that a new right is simply an old right that always was. It was, for a time, purely “metaphysical,” as Justice Stephen G. Breyer suggested unapologetically. But it could have real-world consequences for individuals accused or convicted of crime.

The exchanges — it actually was a debate — among the Justices came so swift and came with such energy that one of the arguing lawyers was left simply silent at the podium for a noticeable spell — only to have the silence turned into a humorous moment when Chief Justice John G. Roberts, Jr., quipped: “I think you’re handling these questions very well.”

The Danforth case is what non-lawyers would think of as a case about a legal technicality. Put in lay language, the issue is this: if the Supreme Court recognizes a new right, but says some people do not get to benefit from it, can state courts say, “Oh, yes, they do”? Put as lawyers would, the issue is: if the Supreme Court recognizes a new rule of criminal procedure, but says it will not apply retroactively, are state courts free to say that — at least in our state — it will apply to cases that were final before the ruling came down? It is, in short, all about retroactivity doctrine, and how it works.

The Justices who were most visibly troubled by the prospect of saying that state courts could go off on their own on making new constitutional rules of criminal law retroactive in their own jurisdictions appeared to regard this as nothing less than an assault on the antique dogma of Marbury v. Madison, that it is the power and duty of the Supreme Court to say what the Constitution means. “You’re now creating a regime,” Justice Anthony M. Kennedy total state public defender Benjamin J. Butler of Minneapolis, “in which state courts are reaching questions that we said ought not to be reached.” (Kennedy’s skepticism, by the way, may turn out to be the decisive sentiment: there were indications that the Court may well divide closely on the outcome, with Kennedy perhaps holding the conclusive “swing” vote.)

For those Justices who were most attracted to the idea of letting state courts give criminal defendants the benefit of new constitutional rules that would help their challenges, it appeared that what was at stake was whether the Supreme Court is turned loose to “make” new law whenever it chooses. Justice John Paul Stevens told state prosecutor Patrick C. Diamond of Minneapolis that his argument in effect embraced “the notion that we can make up a new rule of law at will,” which “strikes me as a very dramatic departure from what I understand the rule of law to require.”

In terms of precedent, the argument focused mainly upon what the Court meant in its 1989 decision in Teague v. Lane, laying down a set of guidelines on when a “new” rule of constitutional procedure could or could not be applied retroactively by federal habeas courts to prior state convictions. Basically, the restrictions on retroactivity that the Court mandated are so strict that the Justices have never since found a “new” rule that they applied to earlier cases. The Court on Wednesday debated whether Teague was a decision about “rights” or only about “remedies,” whether it was both because a remedy is part of the “substance” of the right, whether it was a constitutionally grounded ruling or merely an interpretation of federal habeas statutes, whether it involved no more than a gesture of respect and “comity” toward state courts or was a directive that the states had no choice but to follow. At the end of the one-hour hearing, there was no visible consensus on what Teague now means, or on the legal authority that the Court had to make the ruling.

Although there were sustained moments when it appeared that the Justices were only talking among themselves, often correcting or contradicting each other, the two lawyers at the lectern did have some highlight moments of their own. Public defender Butler’s most effective thrust, it appeared, was the argument that the Court has not really laid down a hard-and-fast, clear line between retroactive and nonretroactive rules of criminal law, because the dividing lines it has defined always mean that some retroactivity exists but it will be fortuitous, state-by-state, so a goal of uniformity is illusory. The point really stimulated the interest of Justices like Breyer, Stevens and David H. Souter. Prosecutor Diamond’s best moment was arguing that “the constitutional design itself” mandates that, when the Supreme Court speaks, states are not free, as a matter of federal constitutional authority, to go further. The mere phrase “constitutional design” is fondly embraced by Justices like Kennedy and Roberts.

The Court, of course, will have the last word, in a decision that will not come until late winter, at the earliest.

At 10 a.m, the Court is scheduled to hear oral argument in Danforth v. Minnesota (06-8273), examining state courts’ authority to expand the retroactivity of Supreme Court criminal procedure rulings. Benjamin J. Butler of the Minnesota Public Defender’s office will argue for the petitioner, and Patrick C. Diamond of the Deputy County Attorney’s office in Minneapolis will argue for the respondent.

We will posts a link to the argument transcript as soon as it becomes available.

Happy Halloween.

Final update 8:01 p.m.

Over the dissents of two Justices, the Supreme Court on Tuesday postponed the execution of Mississippi death row inmate Earl Wesley Berry. Justices Samuel A. Alito, Jr., and Antonin Scalia noted that they would have denied the application to put off the execution, scheduled for 6 p.m. in Mississippi.  The delay order (found here) came about 15 minutes before Berry was to be put to death by lethal injection in the state penitentiary at Parchman, Miss.

Like some of the Court’s other recent orders refusing to clear the way for executions, this new one is expected to stir greater speculation that the Court — as a more or less regular practice — will now block planned use of the lethal injection protocol in use by 36 states, even if the Justices do not declare a “moratorium” in any formal legal sense. The Court, though, is expected to continue to issue orders a single case at a time, whatever larger implications outside observers may read into its actions.  The language the Court used in the Berry order was identical to what it routinely says when it is delaying the effect of a lower court ruling to give itself time to consider whether to hear the underlying appeal.

 The Court has allowed only one execution to go forward since announcing on Sept. 25 that it would rule this Term on the constitutionality of the three-drug protocol now in common use.  It has blocked three planned executions, either by issuing stays itself or by refusing to lift a stay issued by a lower court. (The Court on Monday had found that it had no jurisdiction to consider an earlier stay application in Berry’s case. That case had reached the Court through the state courts; the new order came in a case arising from the federal courts, arriving at the Supreme Court later.)

The one execution to occur since Sept. 25, of Michael W. Richard in Texas, occurred in the evening of the day the Court announced it would rule this Term on the constitutionality of the protocol.  (That review will come in the case of Baze v. Rees, 07-5439, a Kentucky case. It will be argued either in January or February.)

The Berry case had been considered a significant test of the Court’s willingness to continue to issue stays, since Earl Berry had taken so long to file his constitutional challenge to the protocol.  The Fifth Circuit Court, like the Mississippi Supreme Court, had concluded that Berry was not entitled even to a ruling on his constitutional claim, because he had been tardy in filing it. The state has noted that it has used the lethal injection method since 1984, so that method was the standard protocol for all of the 19 years that Berry has been on death row for a 1987 murder of a woman he abducted as she left Sunday choir practice at a church in Houston, Miss.

The Court has said several times in recent years — in fact, as recently as June of last year in Hill v. McDonough – that lower courts should take into account the last-minute nature of challenges to execution methods in considering whether to grant a delay.  The state of Mississippi had relied heavily upon those statements in arguing that Berry’s execution should go ahead as planned.

Some lower courts or state officials have interpreted the Supreme Court’s grant of review in the Baze case as an indication that they should delay executions by the lethal injection protocol. Others, like the Fifth Circuit in Berry’s case, have disagreed, saying that the grant of a petition for certiorari by the Justices in one case does not change the law so it does not directly affect others.

The Court on Tuesday did not delay Berry’s execution indefinitely. It said the order was to remain in effect pending its action on a newly-filed petition for review, filed Monday (Berry v. Epps, docket 07-7348). If it decides to deny review of that appeal, the order said, “this stay will terminate automatically.”  But, if review is granted, the stay will remain in effect until a final ruling in the case, according to the order.  Among the questions raised in the petition, Berry’s counsel are asking the Court to spell out whether executions may be allowed to go forward solely because of the late filing of a challenge to the method.  It argues that lower courts are split on their power to dismiss a ”last-minute” challenge over an issue that is currently pending before the Supreme Court. The petition also raises issues parallel to those in the Baze case from Kentucky, on whether the current three-drug protocol risks unnecessary pain and suffering for the inmate, and thus is cruel and unusual punishment under the Constitution’s Eighth Amendment.

The only votes on Tuesday’s order that were publicly recorded were those of Justices Alito and Scalia in dissent. It is not necessarily so, however, that all of the other seven Justices favored the stay.  It would have taken the votes of five Justices either to grant or deny the stay.

The transcript of today’s argument in United States v. Williams (06-694) is now available here.

The transcript of today’s argument in Logan v. United States (06-6911) is now available here.

This post by Lyle links to this Order of the Court denying Earl Berry’s petition for certiorari and application for a stay of a decision of the Mississippi Supreme Court. I thought it was worth pausing on this sentence in the Court’s Order: “The judgment of the Mississippi Supreme Court relies upon an adequate and independent state ground that deprives the Court of jurisdiction.”

It is quite unusual for the Court to explain its denial of a stay. The logical explanation is that the Justices, recognizing that they will be receiving a large number of Baze-related stay applications, want to avoid the confusion (for both litigants and lower courts) that might otherwise arise from Orders granting some and denying others without comment.
This seems to me a very beneficial practice.

Driven by an obvious worry that child pornography is spreading rapidly on the Internet, and seeming to sense that some day, somehow they should uphold a law to deal with it, Supreme Court Justices did some public brainstorming Tuesday about how to write an opinion that would do just that. After spending about 20 minutes musing over hypotheticals that might suggest Congress went too far in 2003 in writing a new criminal law against Internet pornography that depicts real or computer-drawn children engaging in sex acts, the Justices then turned about and went so far in the other direction as to suggest they may want to curtail the First Amendment in order to save the law. Some of them actually toyed with the idea of casting aside the long-standing doctrine that an individual who may well have violated a law governing expression should be able to complain that it is unconstitutional because it might inhibit someone else’s free speech — the “overbreadth doctrine.”

This was the decidedly two-sided shape of the hearing on United States v. Williams (06-694) — an indication that it could take months of deliberation before the Court decides which way to go in the final ruling. Illustrating the cross-currents during the one-hour session, Solicitor General Paul D. Clement appeared to be beleaguered during the first portion, reaching for conciliatory suggestions as to how the law might be understood to have less sweep, while his adversary, Coral Gables, Fla., attorney Richard J. Diaz, was pressured unrelentingly in the second half, leading him to concede that maybe the law — though still problematic — did not reach as far as he had complained. It was not as if the Justices were being even-handed; rather, they sounded as if they were warming to the law’s validity the longer they talked about it.

The case addresses the latest attempt by Congress — several times frustrated by past defeats in court on the issue — to pass a child porn law that might survive constitutional scrutiny even though it might reach some expression that otherwise would be shielded by the First Amendment. This version goes by the name “PROTECT Act” — short for “Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act.” It was enacted four years ago, one year after the Supreme Court had struck down a 1996 version.

The new law criminalized pandering in child pornography, barring the promotion, presentation, distribution or solicitation of any material that is shown in a way to reflect the belief — or cause someone else to believe — that the actual or purported material does contain child pornography, even if it actually does not. Convicted under the law, Floridian Michael Williams was caught — in an undercover operation — offering on the Internet sexually explicit images of him and his daughter, and other images of children engaging in sex acts. He was sentenced to five years in prison. The Eleventh Circuit struck down the pandering part of his conviction, finding that that part of the PROTECT Act violated the First Amendment because it was overbroad and vague. The government has appealed, seeking to revive those clauses.

Read the rest of this entry »

At 10 a.m, the Court is scheduled to hear oral argument in United States v. Williams (06-694), asking whether a federal ban on pandering material believed to be child pornography is unconstitutional. Solicitor General Paul Clement will argue for the petitioner, and Richard J. Diaz of Coral Gables, Fla., will argue for the respondent.

At 11 a.m, the Court is scheduled to hear oral argument in Logan v. United States (06-6911), asking whether the Armed Career Criminal Act exempts state convictions for which civil rights were not originally revoked. Richard A. Coad of Madison, Wisc., will argue for the petitioner, and Daryl Joseffer will argue for the respondent.

We will posts links to the argument transcripts as soon as they become available.

The Supreme Court, continuing its practice of acting on one case at a time as death-row inmates seek to block execution by lethal injection, ruled on Monday that it did not have the authority to review a challenge in a Mississippi case that came up from state courts. But, almost simultaneously, the Court was asked to postpone the same execution in a case reaching it from lower federal courts.

The flurry of activity involving Mississippi death row inmate Earl Wesley Berry left in doubt whether his execution with the use of a three-chemical formula would occur as now scheduled, at 6 p.m. Tuesday.   The execution protocol is apparently the same as one that the Justices have indicated they will review this Term in the Kentucky case of Baze v. Rees (07-5439), involving a claim that the method as now employed in 36 states is an unconstitutional form of “cruel and unusual punishment” under the Eighth Amendment.

There was no recorded dissent in the Supreme Court as the Justices denied a stay of execution (application 07A334) and denied on jurisdictional grounds a petition (07-7275) to review a Mississippi Supreme Court ruling. Because that state court decision was based upon “an adequate and independent state ground,” the Justices were deprived of authority to hear it, the order said.  The order can be found here.

In a decision Oct. 11 refusing to postpone Berry’s execution, the state Supreme Court said his challenge to the protocol was “procedurally barred” under state law. It said the fact that the Supreme Court was pondering the constitutionality of lethal injection was not a change in the law that cleared the way for Berry to pursue his new challenge. The state court also noted tht it had upheld the three-drug procedure in 2005. While defense lawyers had not raised the constitutional issue at Berry’s trial, it probably would not have changed its mind had the lawyer raised it, the state court declared.

Berry’s newest challenge at the Supreme Court involves a Fifth Circuit Court decision last Friday, refusing to delay the execution on federal constitutional grounds.  It noted that Circuit precedent, dating from 2004 and bearing directly on the lethal injection method, made clear that “death-sentenced inmates may not wait until execution is imminent before filing an action to enjoin a state’s method of carrying it out.”

On Monday, Berry’s attorneys filed a stay application (07A367) in the Supreme Court, pending the Justices’ action on a newly filed petition for certiorari (07-7348) to review the Fifth Circuit decision.  The stay request argued that the Fifth Circuit was wrong in relying solely on the issue of whether the challenge was filed in time.  If the Justices agreed to review that ruling, the petition said, they will be asked to “provide guidance to the lower courts as to when a federal court may dismiss a ‘last minute’ lawsuit,” especially since there is now a split among federal appeals courts on how to treat lawsuits raising issues that are currently before the Justices in the Baze v. Rees case.

Because the Court is reviewing the Baze case, his lawyers contended, “there is a reasonable probability” that review also will be granted in his case, too. “This Court has recently granted and affirmed stays in the wake of its grant of certiorari in Baze,” they contended.

The District Court and the Fifth Circuit, his application notes, refused to address the merits of his challenge solely because they found his lawyers had been “dilatory” in pursuing it.  Those courts, it added, “appear to apply an absolute bar to constitutional challenges to methods of execution raised when execution is ‘imminent.’”  At most, his lawyers asserted, undue delay in filing a challenge is only one factor to be considered in deciding whether to delay a scheduled execution.

The stay application can be found here.

Christopher Schatz and Noah Horst recently published an article entitled “Will Justice Delay be Justice Denied? Crisis Jurisprudence, The Guantanamo Detainees, and the Imperiled Role of Habeas Corpus in Curbing Abusive Government Detention” in the Lewis & Clark Law Review, see here. The title of the article probably tells you what position the authors take but the piece does contain an extensive analysis of the issues that the Court will be confronting in Boumadiene and Al-Odah. This article chiefly tackles the timely question of whether it is constitutional for Congress to eliminate habeas corpus jurisdiction for aliens held in military detention facilities outside the United States. It dedicates less attention to whether the Combatant Status Review Tribunals (CSRTs) are an adequate substitute for the writ of habeas corpus.

Unfortunately, I cannot find a publicly available link to this article, but the newest issue of the Political Research Quarterly contains a fascinating article about what factors impact the Supreme Court’s attention to legal issues. The article is by C. Scott Peters (University of Northern Iowa) and it is entitled, “Getting Attention: The Effect of Legal Mobilizations on the U.S. Supreme Court’s Attention to Issues.” The abstract of the article can be found here. According to Peters, the Court’s attention to issues–or its agenda–is set by some combination of prior decisions of the Court as well as the debates taking place actively in law reviews. I do find it hard to believe that the Court’s docket is influenced by the number of law review articles on a particular topic, which makes me skeptical of Peters’s results, though it is true that several members of the Court are former academics.

Last but certainly not least, Richard Lazarus (Georgetown University Law Center) has posted on SSRN a new article entitled, “Advocacy Matters Before and Within the Supreme Court: Transforming the Court by Transferring the Bar” on SSRN, see here. In just about a week, Richard’s piece has been downloaded over 300 times from SSRN and has been the subject of an article by Tony Mauro in the Legal Times, see here. Lazarus examines the influence that the elite Supreme Court bar is having on the size and shape of the docket as well as its influence on the direction of Supreme Court doctrine. It is a really excellent paper. Realizing that a single reference to it during the academic round-up does not do the paper justice, we will have Richard on SCOTUSblog very soon for an “ask the author” series. Please feel free to send me questions for Richard in advance of the series.

The transcript of today’s argument in Klein & Co. v. Board of Trade (06-1265) is now available here.

The transcript of today’s argument in Ali v. Federal Bureau of Prisons (06-9130) is now available here.

The following is by Amy Howe, partner at Howe & Russell.

Earlier this week, a team that included Kevin Russell, Pam Karlan, and the Stanford Supreme Court Litigation Clinic filed this Motion to Dismiss or Affirm in No. 07-77, Riley v. Kennedy.  At issue in the case is whether Section 5 of the Voting Rights Act required Alabama to obtain preclearance of its plan to fill vacancies on a county commission through gubernatorial appointments rather than special elections.  During the 1980s, Alabama had obtained preclearance of a state law mandating that vacancies be filled through special elections, but the Alabama Supreme Court later invalidated the law and ordered the county to return to the prior practice of filling vacancies through gubernatorial appointments – a practice for which the state did not obtain preclearance.  Edward Still of Birmingham is counsel of record in the case; Cecil Gardner and Sam Heldman of the Gardner Firm in Mobile and DC, respectively, are also counsel in the case. 

Today’s orders list, including grants of certiorari in Allison Engine v. United States (07-214) and Exxon v. Baker (07-219), is now available here.

Last updated 1:50 p.m.

The Supreme Court agreed on Monday to rule on the legality of the $2.5 billion punitive damages award against Exxon Mobil Corp. and its shipping subsidiary for the massive oil spill in Alaska’s Prince William Sound in 1989 — an incident that has sparked a 13-year courtroom battle over money damages. The Court limited its review to issues involving maritime law, declining to hear a claim that the verdict was excessive under the Constitution’s Due Process Clause. The Court also refused to hear a cross-appeal, seeking to reinstate an earlier $5 billion damages award.

Click on the following links to read the petition for certiorari, brief in opposition, and petitioner’s reply, as well as amicus briefs (all supporting the petitioner) from the American Waterways Operators, International Association of Independent Tanker Owners, American Petroleum Institute, Chamber of Commerce, American Institute of Marine Underwriters, Keystone Shipping, American Commercial Lines, Washington Legal Foundation, International Association of Drilling Contractors, Transportation Institute, International Chamber of Shipping, Maritime Law Association, and a group of professors.

In a second grant, the Court said it would decide whether the Federal False Claims Act applies only to claims of misspent funds when those claims are presented to a federal government agency, or whether it also covers claims submitted to a federal contractor if the claim ultimately will be paid with federal money. The case is Allison Engine v. U.S. ex rel. Sanders (07-214). Click on the following links to read the petition for certiorari and brief in opposition, as well as an amicus brief from the Chamber of Commerce.  This is an appeal by a group of four defense subcontractors who supplied generators to power a class of Navy guided missile destroyers — the Arleigh Burke Class.  The lower courts are split on the question at stake.

That and the Exxon case were the only ones granted.

In agreeing to hear the Exxon appeal, the Court indicated it would decide whether the company should be freed of any punitive damages award on the theory that it was based solely upon judge-made maritime law in contradiction of decades of legal history — an issue that the appeal says has divided the lower courts. Also included in the grant will be the difference between the Clean Air Act, in which Congress specified penalties for maritime conduct but did not include punitive damages, and the ruling in this case awarding punitive damages based on federal maritime law. Further, the case raises the issue of whether, if maritime law does govern, this specific award is too high because it is said to be “larger than the total of all punitive damages awards affirmed by all federal appellate courts in our history.” That was the third of three questions Exxon had raised in its petition, but the appeal also included in that question a test of whether a verdict of that size was unconstitutional; it is that latter point that the Court did not agree to hear. The appeal is Exxon Shipping Co., et al., v. Baker, et al. (07-219).

The case does raise the prospect that the Court could split 4-4, thus upholding the verdict, because Justice Samuel A. Alito, Jr., is recused from the case, according to the Court’s grant order.  Alito’s past financial disclosure statements have indicated he owns a sizeable amount of Exxon Mobil stock, according to Bloomberg News.

The second case growing out of the 1989 accident, a plea by individuals who had sued Exxon and its shipping unit, had sought reinstatement of a full $5 billion damages award, originally assessed by a District judge and upheld by the Ninth Circuit Court, but later cut in half by the Circuit Court. That cross-appeal was Baker, et al., v. Exxon Mobile Corp., et al. (07-276). Justice Alito also did not take part in the unexplained order denying review.

Exxon Mobil, in a news release discussing the Court’s action, said that it had already spent more than $3.5 billion in “compensatory payments, cleanup payments, settlements and fines.” Thus, it said, the case “has never been about compensating people for actual damages.”  The ship’s captain at the time of the incident, Joseph Hazelwood, was later convicted of negligently spilling the oil, but was found not guilty of operating the ship while drunk. Exxon Mobil claims that he violated company policy in leaving the bridge of the Exxon Valdez before she went aground on Bligh Reef, spilling 11 million gallons (about 258,000 barrels) of oil.

The case before the Justices does not involve any claims for the environmental damage; that was resolved in earlier actions by the federal and Alaska state governments.  Exxon Mobil also has paid off other private interests with $300 million in settlement payments.  The Ninth Circuit’s decision to cut in half the $5 billion verdict was based, in part, upon that Court’s conclusion that it bore only a 5 to 1 ratio of the $500 million in estimated economic harms. The spilling of the oil was found not to have been intentional.  The award of punitive damages was made in a case involving a class of 32,677 commercial fishermen, private landowners and Native Americans.

Because the case was proceeding in federal court, the normal basis for punitive damages — state tort law — did not apply. Thus, the claim for damages was based upon the assertion of a maritime tort under federal law that is fashioned largely by court decisions, rather than by federal statute.

Among other actions taken Monday, the Court, in an unusual order, with seven of the nine Justices not taking part, summarily upheld a D.C. Circuit Court ruling that those Justices had immunity to a civil damages claim of $75,000 by a Washington, D.C., attorney who has challenged the Court for an earlier refusal to hear his case. Since those seven members of the Court were directly sued, they were recused; under federal law, when the Court does not have a quorum (six Justices minimum), the effect is to affirm the lower court ruling. The attorney, Montgomery Blair Sibley, had sued the Justices after they had denied review of a case involving a domestic relations and child custody dispute.   In Monday’s order, no Justice made any comment on the merits of the Circuit Court ruling being affirmed. The case was Sibley v. Breyer, et al. (07-6522).

Among the cases on which review was denied Monday were these:

** The constitutionality of a state business profits tax that treats dividends paid to U.S. companies by foreign subsidiaries differently, based upon whether those foreign units do business within the state. The case was General Electric v. Commissioner, New Hampshire Department of Revenue Administration (06-1210). The U.S. Solicitor General, asked by the Court for the government’s views on the case, urged a denial.

** A test of whether a worker suing for discrimination in the workplace must show that every non-discriminatory reason the management gave for its action was merely a pretext for bias. The appeal sought a ruling that it should be sufficient if a worker is able to discount one such reason as a pretext. Crawford v. Fairburn, GA (07-233).

** A claim that it violates the Fifth Amendment privilege against self-incrimination if prosecutors use a suspect’s silence before being given Miranda warnings, as evidence of guilt. Salinas v. U.S. (07-36).

** An appeal seeking to reinstate a lawsuit by private individuals in the U.S. and Canada seeking to recover one of Vincent van Gogh’s late paintings, ultimately acquired by Hollywood actress Elizabeth Taylor. The descendants of a German woman who acquired the painting in 1907 claimed that the work was looted by the Nazis. The Ninth Circuit rejected the lawsuit, which had been based on Holocaust property-recovery law, on the theory that the law did not create the remedy of private lawsuits. The case was Orkin, et al., v. Taylor (07-216).

This morning, the Court is expected to release orders from the Justices’ private conference last Friday. We will provide coverage as soon as the list is made available.

At 10 a.m, the Court is scheduled to hear oral argument in Klein & Co. v. Board of Trade (06-1265), asking whether commodities’ merchants may sue a board of trade for failing to enforce its rules. Drew Days III of Washington, D.C., and Malcolm Stewart of the Solicitor General’s office will argue for the petitioner, and Andrew Pincus of Washington, D.C., will argue for the respondent.

At 11 a.m, the Court is scheduled to hear oral argument in Ali v. Federal Bureau of Prisons (06-9130), asking whether the United States waived sovereign immunity with respect to suits for losses of prison inmates’ personal property. Jean-Claude Andre of Los Angeles will argue for the petitioner, and Kannon Shanmugam will argue for the respondent.

We will posts links to the argument transcripts as soon as they become available.