Today’s opinion by Justice Ginsburg in New Jersey v. Delaware (Orig. 134) is now available here. Justice Stevens filed an opinion concurring in part and dissenting in part. Justice Scalia filed a dissenting opinion in which Justice Alito joined. Justice Breyer took no part in the consideration or decision of the case.
A copy of today’s orders list – including grants of certiorari in two cases — is now available here. As they become available, all available certiorari-stage filings will be posted after the jump.
FURTHER UPDATED 11:45 a.m.
This update includes, in the concluding paragraphs of the post, a report on an order issued on Sunday by Justice Anthony M. Kennedy in a California parole case.
The Supreme Court refused on Monday to hear the Justice Department appeal seeking to restore the FBI’s full authority to search the offices of members of Congress under investigation for crime. The denial of review came as the Court agreed to hear two new cases — one on city government power to limit the kinds of monuments placed in city parks. The other case tests state power to block local governments from deducting fees from their workers’ paychecks to finance political activities.
In the only decision on the merits Monday, the Court ruled that Delaware and New Jersey share the legal authority to control construction of riverside projects along the Delaware River. It thus rejected New Jersey’s claim to exclusive jurisdiction over projects that jut out from New Jersey’s shore into the river. The decision in New Jersey v. Delaware (134 Original) upheld most of a recommendation by a Special Master that the Court rule that the two states shared regulatory authority over such projects. The dispute arose over plans to build a large natural gas loading facility for supertankers along the Delaware River. The vote was 6-2, with Justice John Paul Stevens in the majority on part of the case and in dissent on another part. Justice Stephen G. Breyer did not take part. The main opinion was written by Justice Ruth Bader Ginsburg.
The Court’s denial of review in U.S. v. Rayburn House Office Building Room 2113 (07-8160) left intact a ruling by the D.C. Circuit Court that gives members of the House and Senate some protection under the Constitution’s Speech or Debate Clause against criminal searches — even with a warrant — of their legislative offices. The specific search at issue involved the office of Rep. William Jefferson, Louisiana Democrat, who has since been charged with bribery and other federal crimes. The Justice Department appeal argued that the Circuit Court’s decision would seriously hamper probes of corruption and criminal conduct by lawmakers. The congressman’s trial in federal court in Alexandria, VA, has been delayed while he pursues an appeal in the Fourth Circuit Court on a pre-trial issue.
The newly granted case on monuments on public property — Pleasant Grove City v. Summum (06-665) — will return the Court to the thorny issue of government control of expressive displays in city parks and other public places. The case grows out of a dispute between a city in Utah and a religious sect, Summum, that sought to place in a city park — along with other monuments, including one dedicated to the Ten Commandments — a monument to the tenets of Summum’s faith, the “Seven Aphorisms.”
The other granted case, Ysura v. Pocatello Education Association (07-869), tests a Ninth Circuit Court ruling that the First Amendment bars the Idaho legislature from denying payroll deductions by local governments for political activities. The Idaho law at issue barred payroll deductions to pay for political activities by labor unions. The law was challenged by labor unions representing workers for school districts, cities and counties in Idaho.
The two new cases will be argued in the Term starting Oct. 6.
At 10 a.m., the Court is expected to release one or more opinions, as well as orders from the Justices’ private conference last Friday. We will post copies of both as soon as they become available.
No oral arguments are scheduled this week.
On Monday, the Court is expected to release one or more opinions, as well as orders from the Justices’ private conference last Friday.
No petitioners’ merits briefs are due this week. The respondent’s merits brief is due Friday in Meacham v. Knolls Atomic Power Laboratory (06-1505). (Link directs to case page on SCOTUSwiki.)
The Justices are scheduled to hold a private conference at 10 a.m. If any orders are released this afternoon, we will post them promptly. To view our list of petitions to watch at today’s conference, click here.
This post is part of our Discussion Board regarding the Court’s decision in Medellin v. Texas. The following entry is by Kent Scheidegger of the Criminal Justice Legal Foundation. He filed an amicus brief in support of Texas, on behalf of that organization and Randy and Sandra Ertman. This entry is cross-posted at the blog “Crime & Consequences” here.
Despite all the wailing and gnashing of teeth over the Supreme Court’s decision in Medellin v. Texas, the holding is not all that remarkable. It has long been established that not all treaties are self-executing, and the Court held that the ones at issue here are not based on their own language. Where adherence to a treaty is contrary to a statute, the President cannot override the statute unilaterally, but legislation is required. Far from making America a rogue nation, placement of the responsibility for treaty compliance in the political branches and not the judiciary is quite common in the world.
So the ball is squarely in Congress’s court. The United States, of course, should live up to its treaty commitments. What would a congressional implementation of International Court of Justice’s decision in Avena look like? It should go as far as our treaty obligations require and not a nanometer further. Read the rest of this entry »
As we turn to the Term’s final month of arguments, I thought I would write a short update on the cases in which we’re involved.
Akin (either alone or with the Stanford Supreme Court Litigation Clinic) is currently counsel to a party in twelve merits cases.
The Akin-only cases are Lopez-Torres (NY elections; successfully argued by N.Y. partner Andy Rossman); Clintwood Elkhorn (Export Clause; Pattie Millett argued - pending); Heller (gun rights; co-counsel to the District of Columbia, and Walter Dellinger argued - pending); and APCC Services (standing; we are lead counsel, and Carter Phillips will argue in April). We filed the cert. petition in three of those cases; in the fourth, cert was granted over our opposition.
Among the cases we are litigating with the Stanford Clinic for this Term, I am principally responsible for Moore (4th Amendment; I argued - pending). Other instructors have the lead role in Riley (voting rights; Pam Karlan argued - pending); Burgess (drug sentencing; Jeff Fisher argued - pending); Crawford (voting rights; co-counsel to the petitioners - pending); and Greenlaw (appellate procedure; Amy Howe will argue in April).
The Stanford Clinic separately represents a party in two other merits cases this Term in which Akin is not participating: Meacham (ADEA; Kevin Russell will argue in April); and Kennedy (death penalty; Jeff Fisher will argue in April).
We have three additional merits cases for next Term that we are litigating with the Clinic: Jimenez (AEDPA procedure; I will argue); Herring (4th Amendment); and Melendez-Diaz (Confrontation).
(The case names above link to their respective pages on SCOTUSwiki, which include all filings.)
We have a variety of cert. petitions pending. In commercial cases, Akin represents the petitioners in Progress Energy (07-539) (filings here) (FMLA; pending before the Solicitor General); Centerior (07-961) (petition here) (federal jurisdiction; awaiting brief in opposition); Tyson Foods (07-1014) (petitioner here) (FLSA; awaiting brief in opposition); and Radian Guaranty (07-834) (Fair Credit Reporting Act; pending).
In non-commercial cases, with the Stanford Clinic, we represent the petitioners in Cone (07-1114) (petition here) (death penalty; awaiting brief in opposition) and Baker (07-1082) (petition here) (civil rights pleading; awaiting brief in opposition). Two additional petitions are in the late stages of drafting.
Without Akin’s involvement, the Stanford Clinic separately represents the respondent in Hulteen (filings here) (pregnancy discrimination; pending before the Solicitor General).
We also represent a putative intervenor (the Catawba River Water Supply Project) in an original action, South Carolina v. North Carolina.
The Stanford Clinic has been very fortunate in assembling a merits docket. The Clinic currently has ten active merits cases. All but one of those will be argued by one of the instructors, all five of whom will argue. The cases came to the Clinic in diverse ways: in five, we filed the cert petition; in two, review was granted over our opposition; and in three, we were brought in by the petitioner after cert was granted. The final category includes two cases (Burgess and Jimenez) in which the petitioners impressively got cert granted pro se.
The latest edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference of April 11. 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. To access previous editions of Petitions to Watch, including the list for the upcoming conference of March 28, visit our archives here on SCOTUSwiki.
Issues raises in the current list of petitions include defendants’ rights to appeal competency determinations, courts’ jurisdiction to review denials of continuances in immigration proceedings, and immunity from civil liability for district attorney supervisors following wrongful convictions. For the full list of petitions on our watch list, continue reading after the jump.
No oral arguments are scheduled and no non-capital orders are expected to be issued from the Court today. If any orders are issued in pending cases, we will post them promptly.
A new edition of this Term’s StatPack is here. Note that we have not included a case list in this download, but the SCOTUSwiki case indices have been updated to reflect the latest opinions and grants; OT07 is here, and OT08 is here.
One additional item of curiosity this week: on Monday, the Court granted cert. in Pearson v. Callahan, which included the following directive: “In addition to the questions presented by the petition, the parties are directed to brief and argue the following question: ‘Whether the Court’s decision in Saucier v. Katz, 533 U. S. 194 (2001) should be overruled?’” One reader emailed us to ask an interesting question: when was the last time the Court sua sponte (i.e. on its own) ordered the parties to address specifically whether it should overrule one of its precedents?
Based on our searches of various databases, the last time this happened (and the only time in recent history) was 1991 in a case called Payne v. Tennessee. In an order reported at 498 U.S. 1080, the Court amended its grant of a few days earlier to add a question about overruling two of its then-recent capital case precedents, Booth v. Maryland and South Carolina v. Gathers. In its ultimate opinion, the Court did indeed overrule those two 5-4 decisions by a vote of 6-3, leading Justice Marshall to write a dissent noting that “Neither the law nor the facts supporting Booth and Gathers underwent any change in the last four years. Only the personnel of this Court did.”
The transcript of today’s argument in Indiana v. Edwards (07-208) is now available here.
The transcript of today’s argument in Florida Dept. of Revenue v. Piccadilly Cafeterias (07-312) is now available here.
With Justice Antonin Scalia energetically and repeatedly making the case for a simple rule, the Supreme Court on Wednesday showed a reluctance to add a new layer of complexity to criminal trials when a person with a significant mental defect wants to act as his own defense lawyer. The core issue in Indiana v. Edwards (07-208) is whether states are constitutionally free to require that accused individuals have a higher level of mental capacity to represent themselves than is required for them simply to be put on trial with a lawyer at their side. As the lawyer for the state pressed for a two-level standard, most of the Court reacted with skepticism, first, about how to define a workable two-level test, and, second, about how that would complicate actual trials. Underlying much of the oral argument was a deep perplexity over how to conduct fair trials for persons with sub-standard mental capacity.
Scalia would come to dominate the argument, as he took the somewhat heroic position that those who represent themselves “bring it on themselves” if they botch the job, but at the same time suggesting that, in cases of actual trial disruption by a defendant who was making “a farce” of the proceeding, the trial judge should be free to act to prohibit that. Some members of the Court worried about whether such intervention by a trial judge would come too late, after “the damage had been done,” as Justices Stephen G. Breyer and David H. Souter put it. But it was far from clear that the answer the majority of the Court would embrace was a brand new constitutional rule on mental competency to self-represent.
Indiana’s solicitor general, Thomas M. Fisher, from early in his presentation, appeared to have difficulty winning support for the specific higher-level competency standard he was proposing: self-representation can be denied, before trial, “where the defendant cannot communicate coherently.” Justice Scalia promptly labeled that “a really vague test,” and other Justices soon suggested that it might turn out to exclude self-representation by those who have speech impediments on language deficiencies. Justice Anthony M. Kennedy suggested that what Indiana was arguing might lead to “more inefficiencies in the trial process.” And Justice Samuel A. Alito, Jr., expressed concern that a new rule on competency “is going to result in the denial of self-representation in a great number of cases.”
The Court, however, did not appear to be in agreement over when the trial judge would be allowed to make a finding that a person was not capable of defending himself: before trial, early in the trial, or after the proceedings had run for a time. While Justice Scalia vigorously objected to such a denial coming any time before trial, others — such as Justice Ruth Bader Ginsburg — indicated that, if pre-trial proceedings clearly showed an individual acting as his own lawyer would put on “gibberish” instead of any kind of real defense, a denial of self-representation might come then.
Kevin had this to say about yesterday’s argument in the consolidated cases of Munaf v. Geren (06-1666) and Geren v. Omar (07-394).
I wanted to add a few additional thoughts about the Munaf/Omar argument yesterday, specifically with respect to the jurisdictional question. As Lyle notes in his post, counsel for the detainees allowed himself to be whipsawed a bit by some of the Justices, but that reflects in part the great difficulty of the case – all the Justices seem to recognize that important lines have to be drawn in this case, different Justices seemed to indicate very different views about where those lines should be drawn (even among Justices whom one might ordinarily assume share the same basic outlook), and the text of the relevant statute isn’t very helpful in making the kinds of distinctions the Justices seem to feel must be drawn to balance the historic liberty-protecting office of the writ with the important interests in allowing the executive great leeway in a time and place of war.
To briefly reiterate, the detainees in this case are American citizens captured in
Both filed habeas petitions in the
On its face, the statute does not distinguish between citizens and non-citizens, between those detained or held in custody abroad or at home, between detention in the course of an armed conflict or detention during a period of tranquility, or between the various capacities in which the
Stanford student Anna Neill’s recap of oral argument in Republic of the Philippines v. Pimentel is now available on SCOTUSwiki. Read her latest entry here.
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