The Supreme Court next Wednesday will hold a one-hour hearing on the legal rights of the prisoners at Guantanamo Bay, Cuba. This will be the Court’s fourth full-scale review of legal questions arising out of the Bush Administration’s policy against terrorism, and the continuing legal controversy has grown increasingly complex.

In that light, David H. Remes of Washington’s Covington & Burling, who represents some of the detainees, has prepared the attached chronologies to put next week’s hearing into context. It provides details of the histories of current and prior Supreme Court cases on the subject, satellite cases brought by the prisoners under the Detainee Treatment Act, and a combined chronology. A helpful glossary of abbreviations is at the beginning. Note that some important events appear in more than one chronology.

We have also updated the Boumediene SCOTUSwiki page with Lyle Denniston’s thorough argument preview that discusses the arguments raised by the parties at both the cert. stage and the merits stage. That argument preview is here. Finally, as previously noted, the Court will be releasing same-day audio of oral argument on Wednesday. We will link to the audio stream as soon as it is available.

In a move with potential consequences for the pending case Dada v. Mukasey (06-1181), the Justice Department earlier today published a proposed regulation that, if adopted, would resolve the precise question at issue - i.e. whether the time in which a noncitizen must leave the country under an order of voluntary departure should automatically toll upon the filing of a motion to reopen removal proceedings. In September, the Supreme Court granted certiorari to resolve a split between four circuits (the 3rd, 8th, 9th and 11th) that found the deadline should toll and three circuits (the 1st, 4th and 5th) that found it should not. Under the proposed rule, whose entry in the Federal Register discusses the split and grant of certiorari in Dada (see here), any voluntary departure order would simply terminate upon the filing of a motion to reopen or petition for judicial review.

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This edition of “Ask the Author” features a conversation with Richard Lazarus about his new article entitled, “Advocacy Matters Before and Within the Supreme Court: Transforming the Court by Transforming the Bar,” see here. Lazarus’s piece, which is forthcoming in the Georgetown Law Journal, is a very informative analysis of the role of the Supreme Court bar in shaping the work of the Court. Some of our readers may already be familiar with Lazarus as he is the co-director of the Supreme Court Institute at Georgetown Law Center, see here, which also runs a moot court program for counsel appearing before the Supreme Court. For Part I of the interview, click here, and for Part II, click here.

You argue that the Court’s recent interest in business cases is largely a product of the advocacy of the elite Supreme Court bar. I might counter, however, that that bar has been dominant for the past decade or so, but the Court’s interest in business cases has really grown over the past two Terms. Is it possible that the appointments of Roberts and Alito, rather than the priorities and advocacy of the Supreme Court bar, have been the impetus for much of the renewed interest in business cases?

I think the growth in the Court’s interest in business law is not just something that has happened in the past two Terms, but something that has been gradually growing as the Bar’s influence has been growing. Persuading the Justices that an area of law is of sufficient interest is also something that can require multiple years of effort, including several years of cert denials, until the Court begins to appreciate the numbers of cases and the depth of interest. The Bar has also become far more effective, as it has grown, in using amicus briefs to support its cert petitions.

But, with this said, I don’t question that the new members of the Court, especially the new Chief Justice, have made a difference. The Chief would naturally be more open to concluding that business issues are important having represented those interests as an advocate before the Court and having made some of those same arguments.

But, to me, that possibility does not diminish the significance of the Bar. Just the opposite. It underscores it. The Bar’s rise in prominence has led to the ultimate impact on the Court as one of the Bar’s most accomplished advocates before the Court has now become an advocate within the Court. The President stressed Roberts’ skill as an advocate in nominating him to the Court. After all, he had been a judge for relatively short time, while he had been a widely celebrated Supreme Court advocate for many years.

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On Wednesday, we filed this brief on behalf of the Office of the United Nations High Commissioner for Refugees as Amicus Curiae in support of the Petitioner in the case of Ali v. Achim, 06-1346. No argument date has been set, but the case will likely be argued in the February sitting.

The petitioner in the case, Ahmed Ali, is a Somali national who was admitted to the U.S. as a refugee. While living in the U.S., Ali was sentenced to 11 months in prison for battery. The government then initiated proceedings to remove him to Somalia based on his conviction. For more details, the petitioner’s merits brief can be found here; the full questions presented (as printed in the petitioner’s brief) are after the jump.

Our brief on behalf of the Office of the UN High Commissioner for Refugees argues that U.S. law incorporates important international principles of non-refoulement - that is, the protection that refugees have from being sent back to a country in which they will be persecuted - which provide that the government not remove petitioner for this type of crime. Drawing on the fifty years of experience supervising refugees around the globe that the UNHCR has, the brief interprets the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees (both of which the U.S. is a party to) as compelling an inquiry into whether Petitioner committed a crime that was “exceptionally grave” and whether he poses a “danger to the community” before attempting to remove him to his home country. In this case, the UNHCR argues, neither of these factors applies, and so Mr. Ali should not be returned to Somalia, where he would face a “high risk of persecution” because of his status as a member of a minority clan.

Tom is Counsel of Record, with Elizabeth Dallam and Pamela Goldberg of the UNHCR and Amy Howe of Howe & Russell also on the brief.

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The Justices are scheduled to hold a private conference today, orders from which are expected to be released on Monday. Click here to see our list of “petitions to watch.”

The University of Pennsylvania Law Review Penumbra currently features an online debate between Professors Bradley Smith (Capital University Law School) and Edward Foley (Moritz College of Law-Ohio State University) on voter identification requirements and Crawford v. Marion County Election Board, see here.  The first sentence of the debate sets the stage by quoting SCOTUSblog’s own Lyle Denniston on the importance of the Crawford case.  The debate is well worth reading, particularly for those interested in election law issues.

Bradford Mank (University of Cincinnati College of Law) has posted “Should States have Greater Standing Rights than Ordinary Citizens: Massachusetts v. EPA’s New Standing Test for States” on SSRN, see here.   Professor Mank discusses the impact of the Court’s loosening of the standing requirements for states in the Massachusetts v. EPA decision that the Court decided last Term.  As you may remember, I previously highlighted a paper co-authored by Professors Kathryn Watts (University of Washington School of Law) and Amy Wildermuth (University of Utah-SJ Quinney College of Law) on the non-jurisdictional aspects of the decision in a June academic round-up, see here.

Timothy O’Neill (John Marshall Law School) has posted an interesting new essay on SSRN entitled, “The Stepford Justices: The Need for Experiential Diversity on the Roberts Court,” see here.  Among other things, the essay analyzes the present experiential homogeneity on the Supreme Court–that is, all nine Justices have previously served on the United States Courts of Appeals–and traces it back to the failed nomination of Robert Bork.  O’Neill argues that it is particularly disturbing that none of the current Justices have any prior legislative experience, given that the Court decides the constitutionality of state and federal legislation.  O’Neill is correct that the current batch of Justices is a highly homogeneous group by historical standards.

This edition of “Ask the Author” features a conversation with Richard Lazarus about his new article entitled, “Advocacy Matters Before and Within the Supreme Court: Transforming the Court by Transforming the Bar,” see here. Lazarus’s piece, which is forthcoming in the Georgetown Law Journal, is a very informative analysis of the role of the Supreme Court bar in shaping the work of the Court. Some of our readers may already be familiar with Lazarus as he is the co-director of the Supreme Court Institute at Georgetown Law Center, see here, which also runs a moot court program for counsel appearing before the Supreme Court. For Part I of the interview, click here.

Do you think that the centralization of the Supreme Court bar has contributed to the decline in the plenary docket? In particular, might it explain the decline in the paid portion of the certiorari docket? If so, why?

Great question. Like others, I am intrigued by the decline in the paid portion of the docket. It seems so counterintuitive in light of the increase in the lower court docket and the rise in the Bar as well. In my article, I discuss both how the Bar has managed to increase despite the shrinking of the plenary docket and how it might have even contributed to the decrease in the number of paid petitions being filed. I have a high degree of confidence in the points I make with regard to the former, especially how a shrinking docket has promoted the expert Bar’s dominance, but not in my latter claim, which is far more speculative and tenuous. This is probably the part of my article in which I am least confident.

In particular, my article suggests that the rise of the Bar may have prompted a decline in the paid docket in two ways: (1) by increasing the number of times when members of the expert Bar counsel clients against filing a petition by providing them with a candid and honest assessment that the case has absolutely no chance of being reviewed; and (2) by raising the price of getting a top notch petition filed – our experts don’t come cheap – and thereby discouraging those who can’t afford that price from purchasing what the market price now suggests is truly a lesser (cheaper) product. I am confident that both of those possibilities sometimes happen and as a result, some petitions are not filed that might otherwise be filed.

Where I am nonetheless plainly on thin ice is by suggesting that this happens enough to overcome pressures from other sources that promote the filing of more paid petitions. I am, however, a strong proponent of legal scholarship floating provocative ideas, even at the risk of their being shot down. Sometimes, they aren’t and further support is offered by others. But even when that does not happen, the resulting discussion is usually valuable and grist for the academic mill.

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No oral arguments are scheduled and no non-capital orders are expected today from the Court.

A massive group of lawsuits, seeking upwards of $400 billion in damages from corporations located in the U.S., Canada and Europe, is on its way to the Supreme Court, surrounded by an intriguing question: has the Court already indicated that the case should not proceed? One federal judge has drawn that conclusion, but others have said that conclusion is premature.

The case is about the harms done by decades of apartheid in South Africa; it was brought in federal court in this country as part of a worldwide movement to hold someone accountable for human rights abuses; closely parallel lawsuits have been pursued — not very successfully — over the wrongs done by slavery in this country. The Second Circuit Court has allowed the apartheid case to move forward — though perhaps not to a full-scale trial on the merits — in the face of vigorous objections by the government of South Africa, with fervent backing from the U.S. government, and opposition, of course, from the businesses involved.

Lawyers for the corporations have begun preparing an appeal to the Supreme Court; the government of South Africa is not a party and thus has no right to appeal. The petition is due at the Court no later than Jan. 10. Preparing the case is complicated, because there are perhaps four dozen companies involved, and coordinating among the clients the arguments to be made may be difficult. The attorneys have not yet decided whether to ask the Justices to postpone the Second Circuit’s Oct. 12 ruling; the Circuit Court itself, in a 2-1 ruling on Nov. 9, refused to stay its decision. The judge in dissent urged lawyers to rush the case on to the Supreme Court, so that it might be decided this Term.

The dissenting judge, U.S. District Judge Edward R. Korman of Brooklyn (sitting on the Circuit Court by special assignment), said the Supreme Court had already telegraphed its skepticism about this case and thus had indicated it may well agree to hear the companies’ appeal seeking to head off further development of the case. Judge Korman was citing a highly unusual footnote in the Court’s June 2004 decision in Sosa v. Alvarez-Machain (docket 03-339). The main ruling of Oct. 12 and Judge Korman’s dissent can be found here, and Tuesday’s opinion explaining its Nov. 9 denial of a stay, with Korman again dissenting, is here. The lead case is Khulumani v. Barclay Nat’l Bank (Circuit docket 05-2141).  The litigation had been dismissed by a U.S. District judge five months after the Supreme Court’s Sosa decision, relying heavily upon that ruling. But the Second Circuit has now revived the lawsuit, insisting it was not ruling on the merits of any part of it.

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This edition of “Ask the Author” features a conversation with Richard Lazarus about his new article entitled, “Advocacy Matters Before and Within the Supreme Court: Transforming the Court by Transforming the Bar,” see here. Lazarus’s piece, which is forthcoming in the Georgetown Law Journal, is a very informative analysis of the role of the Supreme Court bar in shaping the work of the Court. Some of our readers may already be familiar with Lazarus as he is the co-director of the Supreme Court Institute at Georgetown Law Center, see here, which also runs a moot court program for counsel appearing before the Supreme Court. For Part II of the interview, click here.

What was your motivation for studying the influence of experienced advocates before the Supreme Court? Was your data consistent with your expectations prior to commencing the project?

The research for this article originated in an article I was researching on the 14 Supreme Court cases concerned with the National Environmental Policy Act (NEPA), because I have long been intrigued by the fact that environmentalists have not been the petitioner in any of the cases, the government has won every time, and the environmentalists have not even obtained a single vote from a Justice since 1976. To try to discover what happened, I reviewed all the jurisdictional and merits briefs and oral argument transcripts filed in not only those cases but in the far greater number of cases in which the Court denied review. I also read the available papers of Justices Blackmun, Brennan, Douglas, and Powell pertaining to all of these cases, including pool memos, bench memos, argument notes, draft opinions. What I discovered was what a big difference good advocacy made in those cases, including advocacy made by advocates before the Court, knowing what arguments to press and which ones to discard, and by Justices acting as advocates within the Court, especially Rehnquist who was especially effective and Douglas who was especially ineffective.

That research prompted me to switch gears in mid-stream and to consider whether the rise of the modern Supreme Court Bar was similarly having an impact on the Court’s docket and its decisionmaking. For the NEPA cases, the expert advocates before the Court were primarily the SG’s Office representing federal agencies. What I wanted to consider was whether the rise of a modern private sector expert Supreme Court Bar in the past couple decades meant that the Bar’s clients were experiencing disproportionate success. My expectation was that they were enjoying such success based on my observations of the outstanding quality of the work of their counsel. And, I expected that the impact would be potentially far greater at the cert stage than on the merits.

I was surprised therefore not by the conclusions that I ended up drawing after closer examination of the data, but on the extent of the impact. I did not fully appreciate the extent to which the Bar had grown and was dominating advocacy before the Court. And, I far underestimated their success at the cert stage. Also surprising to me was how the Bar’s dominance seemed to be dramatically increasing even as I studied it during the past couple years.

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New briefs filed after the Supreme Court had heard argument in a significant case on federal judges’ power to second-guess arbitrators’ awards have opened up a new layer of dispute, potentially complicating the Court’s coming decision. The new controversy resulted from the Court’s Nov. 16 order adding three new legal issues for lawyers to address in post-hearing briefs in Hall Street Associates v. Mattel, Inc. (06-989).

Mattel, which wants its original victory in arbitration to be made final, argued that the case must rise or fall on the meaning of the Federal Arbitration Act — a law that strictly limits judicial review of arbitration awards. But Hall Street Associates, which took the case to the Supreme Court in hopes of having the award in favor of Mattel undone, argued that federal judges have at least two other sources of authority allowing them to move beyond the FAA’s tight curb on their review powers.

During the Court’s hearing on the case on Nov. 7, an issue arose over whether the case was only about the FAA. The Court then followed up the hearing with an order for further briefing on whether there were other sources of law that bore on federal judges’ powers to react to arbitration awards, whether the two sides in this dispute had relied upon that authority in agreeing to arbitration, and whether Hall Street Associates had waived any such authority. Read the rest of this entry »

The transcript of today’s argument in Rowe v. New Hampshire Motor Transport Assn. (06-457) is now available here.

At 10 a.m, the Court is scheduled to hear argument in Rowe v. New Hampshire Motor Transport Assn. (06-457), asking whether the Federal Aviation Administration Authorization Act preempts a Maine state law meant to block the delivery of tobacco purchased over the Internet to teenagers. Paul Stern of the Maine Attorney General’s office will argue for the petitioner, and Beth Brinkmann of Washington, D.C., and Douglas Hallward-Driemeier of the Solicitor General’s office will argue for the respondent. Click here for more on the case at SCOTUSwiki.

We will post a copy of the argument transcript as soon as it becomes available.

The transcript of today’s argument in Knight v. Commissioner of Internal Revenue (06-1286) is now available here.

The transcript of today’s argument in New Jersey v. Delaware (134 Original) is now available here.

The Supreme Court will release promptly the audiotape of the oral argument on Wednesday, Dec. 5, in the two cases testing the legal rights of detainees at Guantanamo Bay, Cuba (Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196).  The hearing is to begin at 10 a.m.; the tape will be made available for media and public access shortly after the argument concludes — that is, sometime soon after 11 a.m.  The Court’s press release discussing access can be found here.

 As usual, the written transcript of the argument will be available by early afternoon.  It will be posted on this site when available.