NOTE TO READERS: Although the Chief Justice’s annual report was not to be published before 12:01 a.m. Tuesday, it appears that an Associated Press report has appeared before 9 p.m. Monday. Because that report has been picked up by at least some newspapers’ online editions, and by an online re-publisher, this blog is releasing its story a few minutes before the requested release time.

Chief Justice John G. Roberts, Jr., disclosed on Tuesday that he has asked the federal courts’ administrative arm to suggest new ways to improve ”communication and cooperation” with the other two branches of the U.S. government.  In his year-end report on the federal judiciary, the Chief Justice said: “The separate branches may not always agree on matters of mutual interest, but each should strive, through respectful exchange of insights and ideas, to know and appreciate where the others stand.” (The text of the annual report can be found here.  It was released early Tuesday as the new year opened.)

Roberts did not suggest any specific incident or cause for pondering new ways to improve the ties between the courts, the Executive and Congress.   But he mentioned the assignment to the Administrative Office of U.S. Courts to explore that issue as the first item on a list of initiatives he said he would continue from the work of the late Chief Justice William H. Rehnquist.

The new Chief Justice also put in his annual pitch for increased salaries for federal judges, with a more optimistic note than in recent years. “Over the past year,” he said,”congressional leaders and a wide range of groups that value a capable and independent Judiciary have made progress on this matter.”

He noted that the House Judiciary Committee has approved a pay raise, to “restore judicial pay to the same level that judges would have received if Congress had granted them the same cost-of-living adjustments that other federal employees have received since 1989.”

While the new measure would not be a “full restoration” of the pay differential, the Chief Justice said it would be “a significant one.” He urged the Senate and the full Congress to complete the salary increase legislation promptly in the new year.

The annual report includes an appendix providing data on the business of the federal courts — including a 12 percent drop, the second declilne in two years, in the newly filed caseloads of the federal courts of appeals.  The report said that criminal appeals and federal prisioner challengers were down because of the Supreme Court’s 2005 ruling in U.S. v. Booker, making the federal sentencing guideline system advisory rather than mandatory.  The report also said there have been fewer appeals from immigration rulings.

I would like to wish all of our readers a happy new year, and specially thank those of you who have contributed with questions or comments on our “ask the author” and academic roundup series. I would also like to say how much I appreciate those of you who have sent along your most recent articles as I have really enjoyed reading and sharing them with our readers. Finally, I would like to thank my co-bloggers for allowing me to participate in this blog, which I have enjoyed tremendously. Now on to the articles:

I have posted a new piece on SSRN entitled “Understanding the New Politics of Judicial Appointments,” which will appear in a spring issue of the Texas Law Review. This piece, which is part of a two-part series I am writing on judicial appointments, is a product of what I consider to be a hole in the literature on appointments. Most articles on the subject are quick to make normative recommendations on how to improve the judicial appointments process (i.e., eliminate confirmation hearings, force nominees to answer the questions posed to them, etc.), but almost nobody has attempted to figure out why the process has changed so much over the past couple of decades. With the exception of some work by Michael Gerhardt, that is true with respect to both political scientists and law professors. In fact, just this weekend on C-Span’s America and the Courts, NPR’s Nina Totenberg asserted that the process, especially with respect to Supreme Court appointments, has clearly changed, but she could not really identify the reasons behind the transformation. In this piece, I attempt to identify three categories of factors that have contributed to an increasingly politicized appointment process, including what I call judicial, external and structural factors. I hope to do a short series of posts about my findings following the conclusion of the January sitting, but in the meantime you can download the paper here.

For those closely watching the D.C. guns case, Nelson Lund (George Mason University School of Law) has posted “D.C.’s Handgun Ban and the Constitutional Right to Arms: One Hard Question” on SSRN, see here. As an initial matter, Professor Lund thinks that it “is more likely than not” that the Court will affirm the D.C. Circuit opinion, though he does not think that such as result is “inevitable.” In addition, he addresses the one question that he thinks was otherwise “not adequately refuted” in Judge Silberman’s opinion: whether the Second Amendment protects the private possession of weapons only to the extent necessary to preserve in civilian hands a stock of weapons suitable for use while serving in the militia. For a variety of reasons, including the “grammatical structure of the provision” and “the public records of the founding period,” Professor Lund concludes that the Second Amendment protects the right of citizens generally to keep arms for self-defense purposes. Although there are a lot of Second Amendment articles out there, Professor Lund does a nice job of writing a short and readable article with a view towards addressing a question that will surely be important in the disposition of the Heller case.

Finally, the Stanford Law Review has posted the final version of Rick Hasen’s (Loyola Law School-Los Angeles) article entitled “The Untimely Death of Bush v. Gore,” see here. Of particular interest, Part III of the article addresses Judge Posner’s opinion in Crawford v. Marion County Election Board, which the Court will hear on January 9, 2008. Aside from having a very helpful election law blog, see here, Rick is one of the most knowledgeable election law scholars out there.

The latest edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference of January 11, 2008. As always, the list reflects the petitions on the Court’s ‘paid’ docket that Tom has deemed to have a reasonable chance of being granted.

Issues raised in the current list of petitions include whether employees may be fired for cooperating with internal sexual harassment investigations, whether the “Millionaire’s Amendment” to campaign finance laws is unconstitutional, whether terminally ill patients have a constitutional right to potentially life-saving medication, and whether employees may waive past claims under the Family Medical Leave Act. For the full list of petitions on our watch list, continue reading after the jump.

Read the rest of this entry »

The Justices are scheduled to hold their first private conference of 2008 on Friday, orders from which could be released as soon as the following Monday, Jan. 7. Click here to view our list of petitions to watch at the conference.

Exxon Mobil Corp. and three affiliated companies, including a natural gas subsidiary in Indonesia, on Thursday asked Chief Justice John G. Roberts, Jr., to order a delay in current District Court proceedings in a case that is also pending on the Supreme Court’s docket.  The case is Exxon Mobil, et al., v. John Doe, et al. (Supreme Court docket 07-81), on which the Justices sought the views of the U.S. government on Nov. 13; the U.S. Solicitor General has not yet responded to that invitation.  The case has not yet been scheduled for Conference.

The papers filed in the stay application (docket 07A546) were not available during this weekend.  But it is apparent that they involve a ruling by Senior U.S. District Judge Louis F. Oberdorfer on Dec. 19, refusing to stay what the judge called “limited discovery.”  The underlying case is a lawsuit by a group of villagers in Indonesia’s Aceh province, claiming that Exxon used soldiers of the Indonesian military to guard an Exxon natural gas plant in the province, and those soldiers engaged in atrocities against the villagers.

Exxon Mobil and its affiliates are seeking to delay any further proceedings in District Court until after the Supreme Court hears from the government, and then decides whether to hear the companies’ pending appeal.

But Judge Oberdorfer, in a decision Dec. 19 (in Doe, et al., v. Exxon Mobil, et al., docket  01-1357), noted that Exxon’s lawyers had told him in May 2006 that the U.S. and Indonesian governments were both “comfortable with” a process of limited discovery regarding the villagers’ legal claims.

In allowing some pre-trial evidence-gathering, Judge Oberdorfer had ruled that common law tort claims could go forward, but that he would exercise firm control over discovery, keeping it focused within the U.S. so as to avoid probing into Indonesian internal matters. The case as of now is scheduled to go to trial beginning next June 27.  The villagers’ lawyers have said recently that only “a handful of depositions remain to be taken,” all of U.S. citizens living in the U.S. “Due to careful management by [the District] Court, there has been no discernable intrusion upon Indonesian sovereignty or impact on the interests of the United States,” they contended.

Judge Oberdorfer also noted this month in denying a stay that he and the D.C. Circuit had previously denied three prior stay requests by Exxon. While the fourth request was keyed to the specific incident of the Justices’ request for the government’s views on the pending Supreme Court case, the judge said that the oil company and its affiliates had not shown “irreparable injury” if limited discovery went ahead.

“There has been no change in the potential harm to [Exxon] since the Court of Appeals denied their last of three earlier stay requests; the only difference now is that the Supreme Court is interested in the Solicitor General’s views regarding the certiorari petition. Defendants cite no authority, nor has this court discovered any, supporting the apparent assertion that any burden threatened by ongoing discovery and trial proceedings would, ‘presto,’ escalate to the ‘irreparable’ category once a party simply moved to stay those proceedings by terming them ‘nonjusticiable.’ “  (Exxon claims that the lawsuit is barred by the “political question” doctrine.)

Moreover, Judge Oberdorfer said, in balancing the equities, that the ”injuries and deaths of kin allegedly suffered” by the villagers, as well as the six-year time span of their lawsuit to date, are “plainly stronger” than any claim that Exxon has for harm from discovery.

 While the Solicitor General has yet to tell the Supreme Court of the government’s current view of the lawsuit, the U.S. State Department did tell Judge Oberdorfer in July 2002 that “adjudication of this lawsuit would in fact risk a potentially serious adverse impact on significant interests of the United States, including interests related directly to the on-going struggle against international terrorism.”

(It is unclear, without having the stay papers at hand, whether Exxon has also been denied a stay by the D.C. Circuit, although that seems likely to have occurred. The Circuit Court, in a 2-1 ruling last January, decided that it had no jurisdiction over Exxon’s pre-trial appeal. That is the decision being challenged in Exxon’s pending petition at the Court.)

Jody Freeman (Harvard Law School) and Adrian Vermeule (Harvard Law School) have posted “Massachusetts v. EPA: From Politics to Expertise” on SSRN, see here. Freeman and Vermeule advance a very interesting thesis about the holding in Massachusetts v. EPA: that the case is part of a broader concern by members of the majority that administrative expertise is becoming increasingly politicized, particularly under the Bush administration. Accordingly, they argue that MA v. EPA is not just another environmental case, but is instead best categorized with cases such as Gonzales v. Oregon and Hamdan v. Rumsfeld. Freeman and Vermeule see decisions such as MA v. EPA as attempts to protect administrative expertise from political interference. The paper also contains some interesting discussion about the impact of MA v. EPA on the Chevron doctrine, which would be interesting for administrative law experts. I am usually skeptical of one-size-fits-all theses for cases arising in diverse areas of the law, but Freeman and Vermeule do make a persuasive case.

Lee Strang (Michigan State University College of Law) and Bryce Poole (U.S. Air Force JAG) have posted “The Historical (In) Accuracy of Justice Brandeis’ Claim in Burnet v. Coronado Oil & Gas Co., that the Supreme Court’s Historical Practice was to Give Constitutional Precedent Less Deference than Statutory Precedent” on SSRN, see here. I always enjoy reading, and pointing out to SCOTUSblog readers, papers that challenge conventional wisdom, and Strang and Poole do a nice job of showing that the Court’s practice of giving less deference to constitutional precedents than to statutory precedents relies on an historical inaccuracy in Brandeis’s Burnet dissent. Brandeis’s articulation of that two-tiered formula for deference was flawed, according to the authors, because the Court traditionally looked to six other factors in determining whether to respect precedent and treated both constitutional and statutory precedents similarly in applying those factors. The authors also hypothesize, quite interestingly, that Brandeis’s flawed articulation of the two-tiered stare decisis formula fit neatly within his progressive ideals and thus made it easier for him (and others on the Court) to vote to implement a New Deal agenda by overturning precedents that were an obstacle to that agenda. Despite its (very) lengthy title, I highly recommend giving this article a read.

Catherine Sharkey (NYU School of Law) has posted “Federalism in Action: FDA Regulatory Preemption in State versus Federal Courts,” see here. Before discussing the specifics of this article, the issues analyzed in this article are undoubtedly hot: the Court is still considering Riegel v. Medtronic from its December sitting and there is a pending cert petition in Wyeth v. Levine, case number 06-1249, in which the Solicitor General just filed a brief at the invitation of the Court. In this Essay, Professor Sharkey explores how state and federal courts have reacted differently to the increasingly aggressive actions of federal regulatory agencies, particularly the FDA, in the preemption area. She also highlights how efforts have moved from the failed effort of implementing a regulatory compliance defense at the state level to the “blunter” instrument of federal preemption in recent years. For those interested in Riegel and Wyeth, this is an interesting article.

The Supreme Court on Friday dismissed the case Klein & Co. Futures v. New York City Board of Trade (06-1265), which was being deliberated after an argument on Oct. 29.  The case, granted review last May 21, sought to test whether futures commission merchants have a right to sue for losses they claim to have suffered in futures trading.  The Commodity Exchange Act provides an express private right of action for actual losses in trading on a commodity futures market.

The case was dismissed under the Court’s Rule 46.1, which provides for such action when both sides in a pending case notify the Court’s Clerk in writing that they agree on dismissal.  The Clerk carries out the dismissal without referring the matter to the Court.  Ordinarily, Rule 46 dismissals result from agreements by the parties to settle the underlying dispute.

By agreement of the parties, the case of Ali v. Achim, et al. (06-1346) has been dismissed by the Supreme Court.  Granted review on Sept. 25, the case involved the question whether a criminal conviction must  be an “aggravated felony” to qualify as the kind of crime that bars a convicted alien from remaining in the U.S.

With so many people picking up iPhones over the holidays, we wanted to interrupt our regular posts to show you what Tom keeps on his iPhone…

Happy Holidays!

The federal government has recommended the Court grant certiorari (see here) in No. 06-1505, Meacham v. Knolls Atomic Power Lab, et al., limited to the question asking whether, under the Court’s 2005 decision in Smith v. City of Jackson, an employee alleging disparate impact under the ADEA has the burden of persuasion in establishing “reasonable factors other than age.”

The Bush Administration, expressing fear that a lower court ruling on the constitutional rights of members of Congress will hamper probes of corruption and criminal conduct by lawmakers, has asked the Supreme Court to limit the scope of the Constitution’s “Speech of Debate Clause.” In a case arising out of the investigation and prosecution of Rep. William J. Jefferson, Louisiana Democrat, the Justice Department filed an appeal on Wednesday (U.S. v. Rayburn House Office Building, docket 07-816).  The petition and appendix can be downloaded here.

(U.S. Solicitor General Paul D. Clement is disqualified from any role in the appeal; earlier, he had served as a temporary custodian of records seized in an FBI raid on Rep. Jefferson’s Capitol Hill office in the Rayburn Building.  The appeal was filed by Gregory G. Garre, a deputy, as acting solicitor general for the case.)

The appeal challenges a ruling by the D.C. Circuit on Aug. 3.  A post on this blog describing the decision can be found here.

The petition raises this question: “Whether the Speech or Debate Clause provides a non-disclosure privilege that bars Executive Branch agents from executing a judicially issued warrant in a Member’s office to search for non-legislative records of criminal activity.”

The Circuit Court’s decision allowing Members whose offices are about to be searched to assert a speech-or-debate privilege,  the appeal argued, “means that law enforcement agents would have to depend on the target of a search, perhaps assisted by others, to segregate documents he views as privileged from those he views as unprivileged, before the government could conduct its search.  That procedure ignores separation of powers concerns and practical realities concerning the risk of destruction of evidence, and introduces intractable practical problems.”

Because of the timing of filing the petition at the Court, it is doubtful that the case can be granted and heard during the current Term — unless, of course, it were significantly expedited.

The Justice Department has told the D.C. Circuit Court that it has no power to rule that a Guantanamo Bay detainee has been illegally tortured or otherwise coerced into making statements that may have been used to keep him imprisoned.  If the Circuit Court finds that any such evidence was considered by a military Combatant Status Review Tribunal in deciding whether to prolong captivity, its only option is to send the issue back to the Pentagon “for appropriate action” — perhaps a new CSRT proceeding.

CSRTs are the military panels that decide whether a detainee is an “enemy combatant.” If such a finding is made, the detainee must remain at Guantanamo until further review is made.  Federal regulations governing CSRTs require them to determine whether any evidence obtained from the individual resulted from coercion.

Its argument against Circuit Court power to make formal declarations of illegal torture of detainees was a highlight of the government’s brief, filed Thursday, urging the Circuit Court to turn aside two new legal claims by Majid Khan, one of the so-called “high-value” detainees now being held at Guantanamo who had been held overseas in secret Central Intelligence Agency operations.  Khan’s lawyers from the Center for Constitutional Rights, reacting to the disclosure that the CIA had destroyed videotapes of the aggressive interrogation techniques used on other terrorist suspects, had asked the Circuit Court to issue a formal declaration that he had been tortured illegally.  They also sought a court order requiring the government not to destroy any evidence bearing on torture or other forms of illegal coercion of Khan, so that Khan’s lawyers might use such evidence in challenging the CSRT conclusion that he is an “enemy combatant” and thus must remain at Guantanamo.

The new brief along with its attachments can be found here.

Among the attachments was a copy of a Pentagon memo, dated Thursday, by the acting general counsel, Daniel J. Dell’Orto, notifying all levels of the Defense Department that they must preserve all documents and records relating to any prisoner ever held by the military at Guantanamo Bay.  The directive also applies, the memo said, to any detainees who arrived at Guantanamo after August 2005 and “to any detainees who may arrive at Guantanamo in the future.”

The Justice Department cited that memo as one justification for its argument that there is no need for the Circuit Court to issue any evidence-preservation order in Khan’s case.  The document also had attached a sworn statement by the CIA director, Michael V. Hayden, also dated Thursday, ordering the preservation of all documents, information and evidence relating toi any Guantanamo detainee, plus “any detainee held by the CIA”; it noted that the order “is a continuing obligation that applies to future as well as past and present deadlines.”

“The relevant agencies are taking concerted action and are firmly committed to retaining any evidence relating to the treatment of [Khan] while in CIA custody,” the new brief said.

Khan’s lawyers had argued that the CSRT that found him to be an “enemy combatant” had relied upon statements obtained from him while held by the CIA.  The government brief disputed that, saying that the record of his CSRT proceeding, when produced for the Circuit Court, “will reveal that the CSRT was not presented with any statements made by [Khan], or any other detainees, while in CIA custody.”

Lawyers for a man who came to the U.S. eight years ago as a refugee from Somalia notified the Supreme Court on Friday that his case, granted review by the Court on Sept. 25, has been settled, and will now be voluntarily dismissed.  The case is Ali v. Achim, et al. (06-1346); the motion for voluntary dismissal can be found here.

Ahmed Ali was convicted in Wisconsin of “substantial battery” and, as a result, was ordered to be deported in 2002. His request for asylum or delay of the deportation order was denied by immigration officials.  His appeal raised issues about whether a criminal conviction must be an “aggravated felony” to qualify as the kind of crime that bars a convicted alien from remaining in the U.S  The petition also asked the Court to spell out the scope of federal appeals courts’ authority to review immigration officials’ determinations about what constitutes such a crime.

The Justice Department, continuing the post-argument dispute over the history of habeas corpus as it may affect the Court’s coming decision on detainees legal rights, told the Justices on Thursday that the detainees — if their cases were controlled by the circumstances in 1789 — would not have any chance to challenge the government’s reasons for keeping them imprisoned.  In a supplement brief the government asked permission to file, U.S. Solicitor General countered a similar brief that detainees’ lawyers had filed on Dec. 10.  The Court held a hearing Dec. 5 on the detainees’ cases (Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196), and is now deliberating over its decision.

The new government brief can be downloaded here.  The Court has said that the scope of habeas rights at the current time depends in part upon their meaning in past history, especially in 1789.  At that time, Clement argued in the new brief, there was a common-law rule that a confined individual seeking release “was not permitted to controvert the facts” the government had cited for the confinement.  That rule, along with geographic limits that the government argues restrict habeas rights, would have kept today’s detainees from “obtaining anything like the review” they will receive if they challenge their detention in the D.C. Circuit Court under the Detainee Treatment Act.

Clement also used the supplemental U.S. brief to respond briefly to points that detainees’ counsel had made during oral argument.

The following column of mine ran in the Daily Journal papers on Thursday.

Pepperdine Law professor (and Mitt Romney adviser) Doug Kmiec predicts in a recent Wall Street Journal op-ed (“Justice Clinton?” Dec. 15, 2007, available here) that, if elected, Hillary Clinton may appoint husband Bill to the Supreme Court. It’s a provocative notion - one spouse appointing another to the high court. But while Kmiec is among our most insightful legal thinkers, this particular idea has zero chance of coming true.

Kmiec begins from a solid premise: The next president is likely to make several Supreme Court appointments. Justice John Paul Stevens is already 87, making it actuarially unlikely that he could serve until the next election in 2012. Justice David Souter is two decades younger, but of all the justices, he is reported to be the most enthusiastic about leaving, having never viewed his seat as a lifetime commitment. Justice Ruth Bader Ginsburg is 74 and appears to be in great health, but she seems likely to retire under a Democratic administration, so as not to risk a conservative successor.

So, would a President Hillary Clinton turn to Bill to fill one of those seats? Kmiec claims to think she might, in order to “solve [her] dilemma of what to do with her husband.” And he sees two parallels with another former president who sat on the court - William Howard Taft: Both were law professors and share a warm, gregarious personality.”

Kmiec’s palpable disdain for Bill Clinton - and perhaps the desire to stir up the conservative legal establishment - has gotten the best of him here. In the eyes of most of the country, Hillary Clinton would not need to hide Bill out if the way - he is more popular than she is. It is also hard to imagine a job for which he could be less well-suited - cloistered away in a marble palace, when his strengths lie in personal human contact.

Read the rest of this entry »

Earlier today, lawyers filed the reply brief (available here) in No. 06-1181, Dada v. Muskasey, arguing among other things that a recent Justice Department regulation “undercuts” the government’s interpretation of the statute at issue and offers the Court an alternative way to resolve the underlying circuit split.

The question presented asks whether the time during which noncitizens must leave the country under an order of voluntary departure should automatically toll if they subsequently seek to reopen their removal proceedings. Four circuits have held that the deadline should toll, while three circuits have held that it should not. Under the proposed regulation (available here), an order of voluntary departure would simply terminate upon the filing of a motion to reopen or petition for judicial review.

In Friday’s filing, lawyers for Nigerian native Samson T. Dada argue that the regulation “apparently rejects the Government’s view that Congress intended that the voluntary departure bargain requires the forfeiture of motions to reopen.” The Justices, the brief says, can “interpret that statute consistent with the solution in the proposed rule: to permit an alien granted voluntary departure to withdraw the voluntary departure request and instead be subject to a final order of removal. Such an alien would be placed in the same position as other aliens (such as criminal aliens and others who are not eligible for voluntary departure) and could await a ruling on his motion to reopen without being subject to additional penalties.”

The merits brief for petitioner Dada is available here, and for respondent Michael Mukasey here. An amicus brief from the American Immigration Lawyers Association is available here.

UPDATE Saturday a.m.   The transcript of Friday’s hearing can be found here.

A federal judge in Washington, D.C., reacted skeptically Friday to a request to make a sweeping inquiry into whether government agencies have mishandled or destroyed evidence that may bear upon whether detainees at Guantanamo Bay, Cuba, have been tortured or otherwise abused.  But U.S. District Judge Henry H.  Kennedy Jr. gave no clear hint of whether he might do something short of a broad probe of the Central Intelligence Agency’s public admission that it has destroyed two videotapes of harsh interrogation techniques on two Al-Qaeda terrorism suspects.

Whether the judge does anything immediately may be influenced by two promises he sought and received from a Justice Department lawyer: that the government’s internal probe of the tapes destruction will include an inquiry into whether any court orders to preserve such evidence have been violated, and that, if such a violation turns up, the judge will be told so that he can decide whether to pursue it as a judicial matter in addition to any possible criminal prosecution that the Department might pursue.

The Justice Department lawyer, Joseph Jody Hunt, also made a point of assuring the judge that the government was not questioning his jurisdiction to probe whether there had been a violation of the judge’s own evidence-preservation order, issued on June 10, 2005, before the CIA destroyed the videotapes.  Hunt continued to argue, though, that Kennedy has no jurisdiction to provide any relief to Guantanamo Bay detainees on their challenge to continued detention — a point that the judge at least temporarily seemed to concede, although he noted that the issue was under review now by the Supreme Court in the Boumediene v. Bush cases (06-1195 and 06-1196).

During a 55-minute hearing at the U.S. Courthouse at the foot of Capitol Hill in Washington, Judge Kennedy showed some displeasure that lawyers for Guantanamo detainees were now asking him to make a broader inquiry than they had originally proposed on Dec. 9 after first learning of the destruction of the CIA tapes.  “What you are seeking,” the judge told detainees’ lawyer David H. Remes, “is something fundamentally different from your motion filed on Dec. 9.”  The judge indicated that he had called Friday’s hearing only on the original plea, to start an inquiry into whether his 2005 preservation order had been violated.

In later filings since the Dec. 9 motion was offered, detainees’ counsel had sought a broader inquiry, into whether the destruction of the CIA tapes indicated that the government may have generally been irresponsible about preserving evidence that the detainees would need in court to challenge their continued imprisonment.  Remes said he thought those later filings had put the government on notice that the detainees were seeking more than they had originally asked.

But Remes also sought to assure the judge that, even if the judge were to go beyond his own preservation order and its possible violation, the detainees’ counsel would be seeking only “an extremely modest” overall inquiry that would not necessarily require that government officials in on the tapes destruction, or who gave legal advice about it, be summoned to court to testify and be questioned.

The judge stressed at the opening of the hearing that he had not yet ruled on whether he would make any kind of inquiry into the videotapes’ destruction, and agreed to hold the session just to find out what such an inquiry would seek to accomplish, and what it would entail.

Government lawyer Hunt urged the judge, as the Department had earlier in a court filing responding to the detainees’ motion, not to go ahead with any inquiry.  Hunt said that might influence how potential witnesses reacted when summoned to testify in the government’s internal criminal investigation and might damage that probe.

The judge showed some sympathy for the need at this point to defer to the government’s own probe.   He asked Remes: “Why should the court not permit the Department of Justice to do this?…The Department of Justice has said it will investigate. Why shouldn’t the court permit the Department of Justice to do that? It is the law-enforcing agency.”  He said that a violation of his court order “is like a crime; some say it is a crime.”

Remes replied that the detainees were not asking the judge to “compete” with either the government’s internal investigation, or the planned inquiry by several congressional committees. Those investigations, he said, were limited to the destruction of two videotapes and possibly one audiotape, but the court inquiry the detainees want would be broader in order ”to protect the integrity” of its orders and “the integrity of the judicial system.”

The judge at the close gave no indication when he would rule.

As many of my prior academic round-ups have intimated, some of the most interesting work on the Supreme Court is being done by political scientists.  In fact, if anything, political scientists focus more on judicial decision-making at the Supreme Court than with respect to any other level of the federal judiciary, perhaps because political or ideological behavior is most apparent with respect to Supreme Court decisions.  With that in mind, SSRN has started a new political science network that has numerous journals relating to all aspects of that discipline.  Of particular interest to Court-watchers is a new “political institutions” journal that has a sub-heading of “law and courts,” see here, to which I highly recommend a subscription.  Of the top 10 all-time papers in that journal, six directly relate to Supreme Court decision-making and they are papers that are not usually found on Westlaw or Lexis.  Now on to the newest papers:

Anna Harvey (NYU Law School) and Barry Friedman (NYU Law School) have posted “Pulling Punches: Congressional Constraints on the Supreme Court’s Constitutional Rulings, 1987-2000″ on SSRN, see here.  This paper was actually published at the end of last year in the Legislative Studies Quarterly, but the fact that is a year old does not undermine its importance.  One of the most difficult questions in judicial decision-making is whether the Court is constrained in either its statutory or constitutional decisions by Congress, which possesses both direct (i.e., overturning a statutory decision) and indirect means (i.e., the power to fund the courts and to set the jurisdiction of the lower federal courts) of influencing the Court’s decisions.  Though the paper is quite rich and I am oversimplifying it greatly here, the gist of the paper is that the authors find evidence that the Court is in fact restrained by Congressional preferences in its constitutional decisions.  In particular, they link the Rehnquist Court’s increasing propensity to overturn congressional legislation in the mid-1990s to the ideological changes brought about by the 1994 elections, which led to a Republican-dominated Congress.

Matthew Mitchell (George Mason University) has posted a new paper on SSRN entitled “Supreme Court Justices and Supreme Court Nominations: Do Nomination Battles Affect the Decisions of Sitting Justices,” see here.  Although other researchers have found with varying degrees of success that some Justices strategically retire when a President of the same party is in office, this paper curiously finds that upon an announced vacancy, liberal Justices are more likely to join the conservative wing of the Court in judicial decisions.  The results seem to be relatively robust in this paper, but I have a hard time figuring out why.  One plausible hypothesis, though I would need to think about this more, is that the paper’s data is limited to voting from 1953-2006, and Republican presidents have had far more Supreme Court appointments (17- 8 by my count) than Democratic presidents during that period.   Thus, perhaps the Court’s more liberal members are attempting to avoid politically-controversial decisions in order to not give a reason to the appointing president to nominate an ardently conservative justice to correct such decisions.  The author theorizes that perhaps the jurisprudence of liberal justices is more flexible, but that does not necessarily explain why the jurisprudence of the liberal justices does not stay the same or even turn more liberal during vacancies.  This paper is both interesting and perplexing.

The Supreme Court on Friday released the argument calendar for its February sitting, beginning Tuesday, Feb. 19 — a session in which it will hear only seven cases. (The calendar can be downloaded here.)

Here is the calendar, with a brief notation on issues at stake:

Mon., Feb. 18:

No arguments; legal holiday

Tues., Feb. 19:

Gomez-Perez v. Potter, 06-1321 — federal employee protection against retaliation for complaining about age bias in the workplace

Morgan-Stanley Capital Group v. Public Utility District 1 (06-1457) and Calpine Energy Services v. Public Utility District 1 (06-1462) — federal regulators’ power to undo wholesale electric power sales contracts (Consolidated, 1 hour for argument)

Wed., Feb. 20:

CBOCS West v. Humphries (06-1431) — does Section 1981 of federal civil right law cover claims of retaliation in the workplace based on race

Mon., Feb. 25:

Cuellar v. U.S. (06-1456) — definition of concealing crime proceeds under federal money-laundering law

Warner-Lambert Co. v. Kent (06-1498) — federal preemption of state law-based claim of fraud on a federal agency regarding drug approval

Tues., Feb. 26:

Allison Engine Co. v. U.S. (07-214)– proof needed to show false claim in federal contracting

Wed., Feb. 27:

Exxon Shipping Co. v. Baker (07-219) — duty to pay punitive damages for ship spilling of oil in Alaska; maritime law issues

The Supreme Court announced Thursday that it will promptly release the audiotape of the oral argument on Monday, Jan. 7, in Baze v. Rees (07-5439) — the Kentucky case testing the constitutionality of the three-drug protocol for execution by lethal injection.  The case also involves the question of a constitutional standard for judging the validity of such a protocol.

The argument is scheduled for 10 a.m., the first case to be heard in the January sitting. “The audio recording will be released shortly after the conclusion of the argument,” according to the Court’s press release. That would mean somewhere soon after 11 a.m. The argument is scheduled for one hour, and, because a second case will be argued that morning, the Baze hearing should not run much beyond 11.

The Court said the audio recording would be available to the public through the National Archives, and referred inquiries on that access to Charles DeArman of the National Archives at telephone 301-837-1649 or Mark Meader at 301-837-1970.

Press inquiries about the audiotape should be directed to the Court’s public information office, 202-479-3211.

The Justice Department has urged the Supreme Court to allow the lower courts to continue to explore– without the Justices’ involvement — whether to apply the Sixth Amendment right to confront one’s accusers to sentencing hearings, including those involving the death penalty. In a brief filed Dec. 13 in Fields v. U.S. (07-6395), U.S. Solicitor General Paul D. Clement argued that there is not yet “a sufficiently developed split [among lower courts] to warrant this Court’s review at this time….Further consideration of this issue in the lower courts is warranted…”  In the meantime, it argued that the right of confrontation does not apply at sentencing proceedings.

The case involves Sherman Lamont Fields, convicted of murder and other federal charges based on crimes he committed after escaping from federal custody in Waco, Texas, six years ago.  (The government brief can be downloaded here. A post on this blog discussing Fields’ petition can be found here; the post includes links to Fields’ petition, filed Sept. 4, and to the Fifth Circuit Court decision at issue.  Fields’ reply brief, filed Thursday, can be downloaded here.)

Fields’ appeal does not ask the Court to apply the right of confrontation to all criminal sentencing, but only to those proceedings that involve a potential death sentence.  The Court has long drawn a distinction between limits on evidence at the guilt phase, and the far more relaxed admission of evidence at sentencing proceedings in general. Fields contends that the law of sentencing has evolved to the point that, at least for death sentencing, more rigorous constitutional limits should apply to the evidence allowed

The Confrontation Clause issue Fields raises tests the scope of two Supreme Court rulings — the 1949 decision in Williams v. New York. finding that the Clause does not apply at sentencing, and the 2004 decision in Crawford v. Washington, barring the use as evidence of testimonial statements that had not been subjected to cross-examination.

Fields’ petition contended that, at least for death sentencing hearings, the jury should be allowed to hear only facts that have been tested through confrontation with the witnesses — the Crawford principle,  and thus testimony at Fiields’ sentencing (that he had previously been violent and would be dangerous in the future) should not have been allowed because it had not been subjected to cross-examination.

The government opposition relied upon the Williams decision, and a variety of more recent lower court rulings that have declined to apply the Clause to sentencing.  But it also drew a distinction between the use of untested testimonial evidence when a jury is deciding whether a given murder defendant is eligible for a potential death sentence, and when it is choosing whether to actually impose that sentence. 

The challenged evidence in Fields’ case, it said, was offered only on the second point.  The sentence-selection phase, it added, “involves a broad inquiry into all evidence relevant to the ultimate decision of what penalty to impose.”  No federal appeals court, the brief noted, “has held that the Confrontation Clause bars testimonial hearsay from the selection phase” of a federal death penalty proceeding.  The ruling in Fields’ case, it added, is the first such ruling in a federal appeals court to face the issue squarely.

One of the other reasons the government offered for leaving the issue to percolate in lower courts is that the Court’s 2002 ruling in Ring v. Arizona was said to be reshaping the issue of applying Sixth Amendment rights to death sentencing. Ring requires jurors to apply a reasonable doubt standard when it decides on the existence of a fact that would be necessary to make a murder defendant eligible for the death penalty. Lower courts need time to consider the impact of the Ring ruling on capital sentencing generally, the government asserted. (Fields’ petition also raised a Ring question, testing whether the reasonable doubt standard applied when jurors weigh whether aggravating factors outweigh mitigating factors.)

The government response also contended that procedural aspects of this particular case make it “an inadequate vehicle” on the Confrontation Clause question.

Fields’ reply, filed at the Court Thursday, argued that “there is a genuine and widespread conflict right now over the issue of whether a capital defendant should have the right to confront and cross-eamine adverse witnesses at the penalty phrase.  The conflict is sufficient to demontrate a need for guidance that calls on this Court to take up and resolve the question in this case.”

It went on to argue that Fields’ case is “ideally suited’ to raise the issue.  The confrontation violations at his sentencing hearing were “manifestly harmful.,” it argued.

A military judge at Guantanamo Bay, Cuba, ruled on Wednesday that a Yemeni national, Salim Ahmed Hamdan, is not a prisoner of war, but rather is an “unlawful enemy combatant” and may be tried on war crimes trials by a military commission.  The judge also ruled that Hamdan has no constitutional rights, under D.C. Circuit Court precedent, and thus may not challenge his trial based on constitutional claims. (That precedent is now under review by the Supreme Court in Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196.)

The ten-page decision by the military judge, Navy Captain Keith J. Allred, was released Thursday by the Pentagon. The text can be downloaded here.  Hamdan’s defense lawyers, in a statement, noted their disappointment, and suggested that some parts of Judge Allred’s rulings in the Hamdan case may aid the legal challenges of other Guantanamo detainees. That statement is here.

Under the Military Commissions Act of 2006, Guantanamo prisoners may be tried for war crimes before military commissions if they are found to be “alien unlawful enemy combatants.” Judge Allred concluded that Hamdan met the definition for that status spelled out in MCA, based on the judge’s finding that Hamdan drove a vehicle to and toward a battlefield in Afghanistant where U.S. forces were engaged in 2001, and the vehicle contained surface-to-air missiles “that could only be used against the United States and its co-belligerents.”  That made him an active participant in hostilies against U.,S. forces.

Allred did not reach other arguments that Pentagon prosecutors had offered to justify Hamdan’s eligibility for trial — that he was a personal driver and bodyguard for Osama bin-Ladin, continued to work for bin-Ladin after learning that bin-Ladin had directed attacks against U.S. forces and the 9/11 attacks, and drove bin-Ladin around Afghanistan after 9/11 in an effort to help him avoid detection and punishment.

Those arguments, the judge said, “may well provide grist for the debates of future generations of Law of Armed Conflict Scholars.”  But Allred said they were not addressed, since Hamdan met the definition without them.

The judge went on to rule that Hamdan was not a “lawful enemy combatant,” either under any definition of that status spelled out in MCA, or under the Geneva Conventions.  Further, the judge rejected a defense argument that Hamdan should be treated as a prisoner of war — a status that would have barred his trial before a military commission.  He does not meet any of the definitions of POW under the Geneva Convention, the judge ruled.  (An earlier post discussing the Geneva Convention issue in Hamdan’s case is here.)

The judge’s ruling appeared to have been made by him acting as the military commission over which he presides. Only his signature was attached.

News stories out of Guantanamo Bay about the judge’s ruling said that Hamdan’s commission trial is now set for March 3, but that defense lawyers plan to seek a postponement until late May.

In dealing with constitutional challenges raised by Hamdan’s defense team, Judge Allred first ruled that the D.C. Circuit — the federal civilian court that has review power over final verdicts in military commission cases — had ruled in the Boumediene v. Bush cases last Feb. 20 that Guantanamo detainees have no constitutional rights of any kind.

The judge, however, went on to discuss two of the three constitutional claims, and rejected them — the claim that the MCA was an unconstitutional “ex post facto” law because it added punishment to earlier military rulings on Guantanamo detention, and the claim that the MCA was an invalid “bill of attainder” with Congress labeling the detainees as unlawful enemy combatants. Judge Allred ruled that the commission’s independent ruling that Hamdan qualified for unlawful status, and thus for trial, had cured either of those alleged constitutional flaws.

Abu Zubaydah, the Guantanamo Bay detainee who is at the center of the controversy over the destruction of Central Intelligence Agency videotapes of aggressive interrogation tactics, is asking the D.C. Circuit Court to review his continued detention at the U.S. military prison in Cuba.  Zubaydah, whose formal name is Zayn al-Abidin Muhammad Husayn, was questioned extensively by U.S. agents at secret overseas locations but hundreds of hours of videotapes of those sessions have been destroyed by the CIA, reportedly in November 2005. That incident has stirred up a major controversy in the courts and Congress.

His petition for review under the Detainee Treatment Act — with an alternative request for a habeas writ to challenge his detention — was filed on Monday. The documents were cleared by a court security officer and released Wednesday. (The petition in Husayn v. Gates, Circuit docket 07-1520, can be downloaded here.  A separate declaration by attorney George Brent Mickum IV can be found here.)

Zubaydah is one of 14 so-called “high-value” terrorist suspects who were held at secret CIA sites overseas until transferred to Guantanamo in September 2006.  He was captured in Pakistan on March 28, 2002. According to his attorneys in one of the new filings in D.C. Circuit Court, after he was turned over to U.S. forces, Zubaydah “was subjected to various methods of torture, including waterboarding, by the Central Intelligence Agency.”

HIs attorneys say that Zubaydah “has been held virtually incommunicado in military custody for nearly six years.”  A military Combatant Status Review Tribunal on Dec. 11 ruled that he was an “enemy combatant” — a decision that his petition argues was invalid because it did not follow the standards and procedures set for CSRT proceedings.

Zubaydah has not yet filed a habeas challenge in U.S. District Court, but his attorneys noted in thier DTA petition that he reseves “his constitutional right” to pursue such relief.

Yesterday, the Solicitor General filed this invitation brief in the case of Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn. (06-1595), recommending that cert. be granted.  The case will be considered at the Court’s January 18 Conference.

The Question Presented is:

Whether, or to what extent, Title VII’s anti-retaliation provision, Section 704(a) of the 1964 Civil Rights Act, 42 U.S.C. 2000e-3(a), protects an employee from being dismissed because she cooperated with her employer’s internal investigation of sexual harassment.

Seeking an extension of the Supreme Court’s ruling on the rights of juveniles in Roper v. Simmons (2005), lawyers for a South Carolinian who committed a double murder at age 12 are challenging the youth’s prison sentence of 30 years without a chance for parole. The petition in Pittman v. South Carolina was filed on Monday. (A docket number has not yet been assigned.)

Prepared by the Supreme Court Clinic at the University of Texas Law School, the petition tests whether it is cruel and unusual punishment under the Eighth Amendment to punish a youth so severely, given the circumstances of immaturity and the rarity of such a sentence. The petition and the South Carolina Supreme Court ruling can be downloaded from links provided on this site.

In the Roper decision, the Court ruled that it is cruel and unusual punishment to impose a death sentence on an individual who committed a murder while still a juvenile.  The Pittman petition seeks to extend the principles of that decision to prison sentences for youths.

(Thanks to Howard Bashman of How Appealing blog for a link to the site for these documents, and for his diligent coverage of the case.)