The Supreme Court has just issued an order staying the execution in the case of James Callahan, which we wrote about earlier here. No dissents were recorded. The full text of the order can be found after the jump

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The Oregon Supreme Court has issued its ruling in the case of Williams v. Philip Morris, on remand from last Term’s punitive damages decision.  Oregon’s highest court has reinstated a  $79.5 million dollar verdict against the company.  For more details, see this comprehensive post by Howard Bashman at “How Appealing.”

On Friday, February 22, The Catholic University Law Review is sponsoring a symposium with the goal of “Reflecting on Justice O’Connor’s Jurisprudence Relating to Race and Education.”  Along with a wide variety of participants (including SCOTUSblog contributor Patricia Millett), the introductory speaker will be General William K. Suter, the Clerk of the Supreme Court, and the keynote will be delivered by Jonathan R. Alger, Vice President and General Counsel of Rutgers University.

More details and registration information can be found here.

Following yesterday’s release of the April argument calendar, it’s now possible to more fully examine one tangential effect of the docket crunch at Court - namely, the widely varying amounts of time attorneys receive following a grant of certiorari to brief their cases and prepare for oral argument. As Jason noted previously (see here), the Justices will hear 70 oral arguments by term’s end, a modern low for the Court. In spite of this relatively light caseload (or, in some respects, because of it), many attorneys this term have or will receive much less time than usual to brief their cases in advance of argument.

The greatest impact, not surprisingly, falls on attorneys scheduled to argue in the April sitting. From the date certiorari was granted, counsel in three cases will have only 96 days between grant and argument, while the group as a whole will enjoy an average of 101 days. By comparison, attorneys who argued cases during the Court’s first sitting in October enjoyed an average of 181 days between grant and argument, and all counsel appearing during the November and December sittings had at least five months to brief and prepare. Not including the one Original suit argued in November, the average period between grant and argument over the course of the entire term was 136 days. (The full results and analysis appear after the jump.)

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

UPDATE 5:45 p.m.

Attorneys for Alabama death row inmate James Callahan urged the Supreme Court Wednesday afternoon to delay his scheduled execution on Thursday evening, argung that a federal appeals court had relied on a novel theory of time limits in clearing the way for the execution to occur.  His application (Callahan v. Allen, 07A630) can be downloaded here.  The case may test whether the Court is willing to continue to block executions until it rules on the lethal injection protocol for execution in a pending Kentucky case.

The execution should be put off, the application argued, to give Callahan a chance to file a regular appeal from the Eleventh Circuit Court ruling and give the Court a chance to consider it outside the pressured time just hours before the execution was to go foward. In lifting a stay of his execution, the Circuit Court, according to the application, used a theory of a statute of limitations that the state did not raise and that was not even before the Circuit Court at all.

The coming petition for review, the application said, will raise three issues: the claimed error by the Circuit Court in finding that a two-year period for challenging a method of execution starts to run at the end of direct review not when an actual method of execution will apply, the availability of a limitations defense to the state when a method of execution is being challenged in a civil rights case, and whether a limitation can ever run on such a civil rights claim that is not ready for review because the method of execution remains uncertain.

The lower courts are divided on those limitations issues in lethal injection cases, according to the application. In fact, some of those issues are now pending before the Supreme Court in an Ohio case, Cooey v. Strickland (docket 07-6234).  The Court considered that case and a companion case (Biros v. Strickland, 07-6243) in November, but apparently has put both on hold while it explores constitutional issues surrounding lethal injection.

Presumably, the state will be given a chance to respond to Callahan’s stay request before the Court acts.  Because Justice Clarence Thomas is the Circuit Justice for cases from Alabama, he presumably will get the application first; it will be up to him to act alone or to share it with his colleagues.

* * * * * * * * * *

Three weeks after the Supreme Court held a hearing on constitutional issues surrounding the lethal injection method of execution for murder, the Justices are expected to be asked later Wednesday whether to keep intact an informal but functional bar to such executions until a ruling is issued in the test case.  Alabama legal sources said that attorneys for James Callahan, facing execution in that state at 6 p.m. Thursday, were preparing an application seeking to postpone the execution.

The Court has not permitted an execution to occur since shortly after it agreed to examine the lethal injection method in an order on Sept. 25.

U.S. District Judge W. Keith Watkins of Montgomery on Dec. 14 barred Callahan’s execution, concluding that it “would be a waste of judicial resources” if the Court were to go ahead and rule on the constitutionality of Alabama’s version of the three-drug execution protocol until the Supreme Court has ruled in the case of Baze v. Kentucky (07-5439) — argued Jan. 7 in the Supreme Court. Thus, Judge Watkins opted for a stay. While he said that Callahan might prevail in a challenge to Alabama’s method under one theory, the judge was reluctant to decide the pending challenge on that basis while the Baze decision is awaited. That was the key factor in his decision to postpone the scheduled execution. The judge’s 10-page opinion can be downloaded here. 

On Tuesday, however, the 11th Circuit Court, in a 2-1 ruling, lifted Judge Watkins’ order, clearing the way for the Thursday execution to proceed.  Without examining Callahan’s challenge to Alabama’s execution formula, the majority found that he had filed his challenge too late.  Callahan, the majority said, shoujld have begun his challenge before July 31, 2004 — two years after he first selected lethal injection as the method of his execution. “In light of the fact Callahan’s complaint was filed more than two years beyond the limitations period, the district court abused its discretion by entering a stay of execution. We now vacate that decision.”  The Circuit Court’s 24-page opinion (which includes the dissent) can be downloaded here.

Callahan was sentenced to death in 1982 for the murder of a Jacksonville State University student, Rebecca Suzanne Howell, after kidnapping her at a landromat in Jacksonville, Ala.  She was raped and murdered, and her body was dumped in Tallaseehatchee Creek.  His conviction and death sentence became final on Oct. 1, 1990.

 After other challenges in his case failed, he filed a civil rights lawsuit Oct. 11, 2006, claiming that Alabama’s lethal injection method of execution was unconstitutional under the Eighth Amendment.  The trial of that lawsuit was due to begin in September of last year, but the state began a new review of the protocol.  Judge Watkins, who also noted that the Supreme Court had agreed to hear the Baze case, decided to postpone the trial.

The state issued a revised protocol last Oct. 26, and the state Supreme Court then set Callahan’s execution for Jan. 31.  That was when Callahan began pursuing a delay.

The Supreme Court today released the argument calendar for its April sitting, beginning Monday, April 14. (The calendar is available here.) The Justices scheduled Kennedy v. Louisiana (07-343), involving the constitutionality of Louisiana’s death penalty law for child rape, for argument on April 16.

Below is the full schedule, with brief descriptions of the issues involved:

Monday, April 14

No. 07-411, Plains Commerce Bank v. Long Family Land & Cattle (on tribal courts’ authority to resolve certain civil suits)

No. 07-210, Bridge v. Phoenix Bond & Indemnity (on causation requirements for civil RICO actions)

Tuesday, April 15

No. 07-330, Greenlaw v. United States (on circuits courts’ power to enhance criminal sentences sua sponte)

No. 06-7517, Irizarry v. United States (on notice to parties before departing from sentencing guidelines)

Wednesday, April 16

No. 07-343: Kennedy v. Louisiana (on the constitutionality of the death penalty for child rape)

No. 07-371, Taylor v. Sturgell (on res judicata and the theory of “virtual representation”)

Monday, April 21

No. 07-552, Sprint Communications v. APCC Services (on standing to sue of plaintiffs assigned rights to pursue legal claims)

No. 07-474, Engquist v. Oregon Dept. of Agriculture (on “class of one” equal protection theory in public employment)

Tuesday, April 22

No. 07-320, Davis v. FEC (on constitutionality of the “Millionaire’s Amendment” to campaign finance laws)

No. 07-6053, Giles v. California (on Confrontation Clause rights against witnesses the defendant himself has made unavailable for trial)

Wednesday, April 23

No. 06-923, MetLife v. Glenn (on conflicts of interest for ERISA administrators)

No. 06-1505, Meacham v. Knolls Atomic Power Laboratory (on the burden of persuasion under the ADEA)

In a prior academic round-up, I noted an article by Catherine Sharkey (New York University School of Law), see here, addressing some of the questions at issue in the two FDA preemption issues before the Court this Term, Riegel v. Medtronic and Levine v. Wyeth. Professor Sharkey has now posted a much longer piece on SSRN entitled “Products Liability Preemption: An Institutional Approach,” which addresses many of those same issues, see here. The new article more broadly addresses federal preemption in product liability cases, but contains a substantial discussion of FDA preemption on pages 41-55. She notes the important role that agency positions have played in products liability preemption cases and proposes an “agency reference model” to fill the doctrinal gap in the Court’s jurisprudence in the area.

The Northwestern Law Review Colloquy has continued its series on the recently decided case of Bowles v. Russell. The Colloquy had published two previous pieces on the Bowles case in prior months, including one by Professor Scott Dodson (University of Arkansas School of Law), see here, and one by Elizabeth Burch (Cumberland School of Law), see here. Both pieces were previously discussed in these two academic round-ups, see here and here. As I noted previously, the Court held in Bowles that the statutory time limitation for filing a notice of appeal is jurisdictional. In one of the new pieces available on the Colloquy, E. King Poor (Quarles and Brady LLP) argues, contrary to Burch and Dodson, that Bowles was correctly decided based, among other things, on the history of the jurisdictionality doctrine in federal court, see here. Perry Dane (Rutgers School of Law-Camden), on the other hand, argues that even with the jurisdictional classification of the rule in Bowles, nothing in the history of jurisdictionality doctrine requires the draconian application and inequitable consequences that resulted in that case, see here.

In light of the clear theme in today’s academic round-up on the Court’s pending and recently decided cases, I would like to highlight a series of “podcasts” put together by the Federalist Society on many of the leading cases of this and last Term. I mention this series in the academic round-up because the commentators in these podcasts are usually law professors who have some expertise in the subject matter. The three cases that have been most recently highlighted in the series are Quanta Computer v. LG Electronics (Chris Holman-UMKC School of Law), Stoneridge Investment v. Scientific-Atlanta (Stephen Bainbridge-UCLA Law School), and Virginia v. Moore (Orin Kerr-George Washington University Law School), but there are commentaries on a number of other cases available. All of the podcasts in the series can be accessed here. If anyone knows of any other similar series out there, such as by ACS, please let me know so that I can post links in a future academic round-up.

UPDATE: In response to my question regarding whether any other informative podcasts exist about the Supreme Court, one of our readers pointed to the Cato Institute, which does daily podcasts that sometimes feature commentary about various Supreme Court cases or the Court’s business more generally. On January 21 and 24, Ilya Shapiro commented on the state of the Supreme Court’s docket and the Stoneridge case, respectively, see here. Ilya is also the new editor-in-chief of the Cato Institute’s Supreme Court Review, which I highlighted in a prior academic round-up, see here. This year’s issue of the Review was outstanding.

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

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

As we near the midway point of October Term 2007, we thought it worthwhile to review the accuracy of our regular feature, “Petitions to Watch” (PTW). As readers of this blog know, in advance of each conference we publish a list of all petitions on the Court’s ‘paid’ docket that Tom has deemed to have at least a reasonable chance of being granted. While the number of petitions on the watch list varies from conference to conference, PTW over the course of a term features the roughly 15% of paid petitions deemed to be most likely candidates for certiorari. While PTW’s main goal is to anticipate every case the Justices will grant, it also hopes to include as few petitions as possible that are eventually denied.

Since the start of the term, beginning with the “long conference” in late September, the Justices have granted certiorari in 45 cases (though three were dismissed before argument) from the Court’s paid docket. Of those 45 cases, 37 were featured in PTW following their original distribution to conference, for an ‘accuracy’ rate of 82.2%. (Note: one petition, No. 07-110, Arave v. Hoffman, was selected but mistakenly left off the published list.) After accounting for an additional two petitions featured following the government’s submission of an invitation brief, the rate climbs to 86.7%. These figures are almost identical to those of OT06, when PTW flagged 84% of the eventual grants.

To put the figures in perspective, the only cases granted since the start of the term that did not appear in PTW were MeadWestvaco v. Ill. Dept. of Revenue (06-1413), Preston v. Ferrer (06-1643), Boulware v. United States (06-1509), Crawford v. Marion County Election Bd. (07-21) and Indiana Democratic Party v. Rokita (07-25) (consolidated), Plains Commerce Bank v. Long Family Land & Cattle (07-411), and Engquist v. Oregon Department of Agriculture, (07-474).

As for the other measurement of success - overinclusiveness - PTW’s performance in the first half of OT07 is also nearly identical to the previous term. Since the start of the term, PTW has listed 160 petitions as having a reasonable chance of being granted. Of those, 34 were granted plenary review, while an additional four were either GVR’d or summarily reversed, for combined rate of 23.1%. Of the remaining petitions, 106 were denied (66.3%), four were CVSG’d (2.5%), two were dismissed (1.25%), and eleven remain outstanding (6.9%).

As the numbers suggest, between two-thirds and three-quarters of all petitions featured in PTW will eventually be denied. But by comparison, the aforementioned grant rate of petitions we do feature (23.1%) dwarfs the rate of those we do not. Between the end of June and mid-November, for example, the Court received more than 660 paid petitions for certiorari. Of the more than 570 that did not appear in PTW, only three were granted - for a success rate of 0.53%. In sum, while petitions featured in PTW are far from guaranteed of being accepted, those left off the list remain - statistically speaking - very unlikely to be granted.

According to the Supreme Court’s public information office, the writs of certiorari as to Calpine Energy Services, L.P., were dismissed today in case No. 06-1462 pursuant to Rule 46. Going forward, the name of the case has been changed to American Electric Power Service Corporation, et al. v. Public Utility District No. 1 of Snohomish County, Wash., et al.

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

No oral arguments are scheduled and no non-capital orders are expected to be issued from the Court this week.

No merits briefs are due this week.

Reply briefs, if any, to the supplemental briefs filed in Dada v. Mukasey (06-1181) are due by 2 p.m. Friday.

The Supreme Court’s move into the center of one of the nation’s most hotly contested culture wars — over gun rights and the Second Amendment — is already historic in itself, and probably will become more so as it proceeds to a decision. But the case could be historic for another reason: it has a prominent place on an agenda for some fundamental shifts in American constitutional dogma. The gun case (District of Columbia v. Heller, 07-290) thus might be seen as an opening shot in a constitutional revolution.

The rise over the past couple of decades of a professionally gifted cadre of litigators, highly motivated to advance conservative causes, has brought serious questioning of long-held understandings or assumptions about the Nation’s fundamental law. This, one might say, is the constitutional legacy of the “Reagan revolution.”

It is a far more ambitious project than may be widely recognized. If it ultimately were to succeed, Congress’ power to spend under the General Welfare Clause would be severely curtailed, economic populism — freedom, especially, for small merchants from pesky government rules — would have a new birth, the bundle of ownership rights in property would expand markedly, the power at all levels of government to intervene to advance progressive social causes would be shrunken considerably — just as a few examples.

This project is soon to have its own manifesto: a new book co-authored by two prominent figures in the libertarian community, one of whom, Robert A. Levy, happens to be the prime mover behind the challenge to the D.C. handgun control law. Levy, a senior constitutional fellow at the Cato Institute, is joined here by William “Chip” Mellor, president and general counsel of the Institute for Justice.

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