The latest edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference of May 15. 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 May 8, visit our archives here on SCOTUSwiki.

Conference of May 15, 2008

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Docket: 07-639
Case name: Dong v. Department of Justice
Issue: Whether fiancés of individuals forced to undergo an abortion or sterilization are entitled to “refugee” status.

• Opinion below (2nd Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

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Docket: 07-1024
Case name: Screen Actors Guild v. Metoyer
Issue: Whether, under 42 USC 1981, an employer can assert a “mixed motive” defense to an employment discrimination claim – e.g., that the action in question was also supported by a legitimate, non-discriminatory reason.

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition

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Docket: 07-1029
Case name: Forbes v. United States
Issue: Whether, during a defendant’s third trial, a district court may exclude prosecutors’ statements during two previous trials that a government witness had received immunity from prosecution, if the court found the statements were in fact mistaken.

• Opinion below (2nd Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

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Docket: 07-1056
Case name: Royal v. Durison
Issue: Whether a prisoner who files a 1983 suit following his release must satisfy the favorable termination rule of Heck v. Humphrey (1994).

• Opinion below (3rd Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

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With the conclusion of the April sitting, a new StatPack is available for download here. The cover page lists the remaining dates when the Court will sit publicly in order to release Orders and opinions between now and the conclusion of the Term; for convenience, that list is reproduced after the jump.

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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.

On Tuesday, May 6 at noon, the Cato Institute will hold a book forum entitled “The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom.” It will feature the book’s authors, Robert A. Levy, a Senior Fellow in Constitutional Studies at the Cato Institute, and William Mellor, President and General Counsel of the Institute for Justice. There will be comments by Lyle Denniston of this blog, and it will be moderated by Roger Pilon, also of the Cato Institute. The event is free for those who register, which can be done online here.

For those interested who cannot attend, it will also be streamed live online via Cato.org.

The following analysis was written by Richard Samp, Chief Counsel of the Washington Legal Foundation in Washington, DC. (Disclosure: the Washington Legal Foundation filed an amicus brief in this case in support of Respondents, urging the Court to uphold Indiana’s Voter ID Law.)

Disputes over election reform issues have had a highly partisan tone for the past several decades, dating back at least to adoption of the NVRA (the “motor-voter” law) in 1993. The partisan bickering only intensified following the 2000 Presidential election, from which the two major political parties drew diametrically opposed conclusions regarding what was wrong with American election laws.

The partisan rancor is unlikely to subside any time soon in Congress or in the state legislatures. But with its decision Monday, the Supreme Court signaled that the federal courts should step back and not attempt to referee election reform disputes in the absence of evidence that a challenged state voting law either serves no relevant and legitimate state interests or imposes particularly severe and recurring burdens on the voting rights of identifiable classes of voters. The opinions of both Justice Stevens and Justice Scalia cautioned against any detailed scrutiny of the evidence supporting a State’s determination that measures are necessary to protect the integrity and reliability of the electoral process. So long as the State’s asserted bases for its voting regulation - here, an interest in preventing voter fraud and maintaining public confidence in elections - are relevant to its interest in protecting the integrity and reliability of elections, the Court signaled that it is very unlikely to second-guess the need for such regulation. Democrats argued that voter impersonation is rare and that voter ID requirements, by making voting a more onerous task, actually tend to undermine public confidence in elections; Republicans submitted evidence that, they asserted, demonstrated the precise opposite. The Court made clear that such factual disputes should be decided by legislatures, not courts. The court exhibited the same hands-off attitude that it has exhibited toward redistricting disputes in recent years.

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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.

UPDATE Tuesday 12:05 p.m.

The Supreme Court will consider this motion and the response at its Conference on Thursday, May 15, according to the Court’s electronic docket.

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 Lawyers for Virginia death-row inmate Christopher Scott Emmett told the Supreme Court on Tuesday that the state follows a “unique and uniquely dangerous” method of execution by lethal injection.  In opposing a request by the state for the Court to lift an order blocking Emmett’s execution, the inmate’s lawyers called the Virginia protocol
“far more dangerous” than the Kentucky version the Supreme Court upheld in Baze v. Rees (07-5439) on April 16.  The opposition to the state’s motion can be found here.  (The case is docketed as 07A304, Emmett v. Johnson.)

The state filed its request five days ago.  A post discussing that motion can be read here. The state argued that the Supreme Court stay should be lifted, so that Virginia could go ahead and set an execution date for Emmett for the murder of a co-worker in Danville, Va., in 2001. Emmett should have to ask lower courts for any further stay, the state contended.

In response, Emmett’s counsel said the Fourth Circuit Court was moving rapidly to consider his challenge to the state’s execution method, with new briefs on the impact of the Baze decision due on Friday of this week and a hearing set for May 14.

“Virginia now seeks to cut off review of Emmett’s claims just as the Fourth Circuit prepares to consider them,” the opposition brief asserted.  Virginia will suffer no harm if the Supreme Court’s stay remains in place, the brief added.

On the merits of Virginia’s lethal injection protocol, Emmett’s counsel cited what they said were two facets that indicate that procedure may fail the constitutional standard the Supreme Court spelled out in the Baze rulinig: a lethal drug procedure may not pose “a substantial risk of serious harm” to the inmate.

First, the brief conended, when an inmate in Virginia takes longer than expected to die, prison officials inject more of the second and third drugs in the three-drug sequence (the drugs that paralyze the individual and then cause the heart to stop), but do not inject more of the first drug (the one that causes unconsciousness).  The injection of more of these other drugs “happens routinely” in the state, the brief said, citing its occurrence in ten executions.

Second, the brief said, the Virginia procedure involves injection of the second and third drugs “within a minute” after the first drug is administered — an insufficient time to assure that the inmate is completely unconscious.

The challenges to these two defects, the brief contended, should be allowed to go forward without Emmett and his counsel having to pursue a new stay in lower courts after an execution date has been set.

The following post by Loyola (Calif.) Law School Professor Rick Hasen originally appeared on on Election Law Blog, and is also available here. (Disclosure: Prof. Hasen filed this pro bono amicus brief on his own behalf supporting the challengers to the law in this case.)

Today’s much anticipated decision in Crawford v. Marion County Election Board is a significant win for those who support stricter voter identification laws, even if they support such laws for partisan purposes. It will encourage further litigation, because it relegates challenges to laws imposing onerous burdens on a small group of voters to “as applied” challenges, but those challenges will be difficult to win. The lack of a majority opinion, moreover, injects some uncertainty into the appropriate standard for reviewing other challenges to onerous election laws. The Court’s specific split in this case will blunt charges that this is a politicized 5-4 decision — and it is significant that the Court, once again, has failed to cite to its opinion in Bush v. Gore. More on each of these points below.

1. The Controlling Standard from Justice Stevens’ Opinion. The Court split into three camps on the constitutionality of Indiana’s voter identification law (four camps if you count the nuanced differences between Justice Souter’s and Justice Breyer’s dissenting opinions). The controlling opinion is that of Justice Stevens, joined by Chief Justice Roberts and Justice Kennedy. In a nutshell, the approach boils down to this: under the balancing approach of earlier cases (which the opinion says comes from cases such as Anderson and Burdick), a state needs to come forward with merely plausible non-discriminatory interests to justify an election law. The evidence need not be strong. Indeed, though Justice Stevens says that there is evidence of fraud to justify a voter identification requirement, the actual evidence he cites in the footnotes is incredibly thin — either reaching back to 1868 (footnote 11) or a single case of impersonation voter fraud found in a recent gubernatorial election in Washington state (fn. 12). Moreover, Justice Stevens says an interest in preserving voter confidence can justify such laws as well, ignoring undisputed evidence such laws are not at all likely to instill voter confidence (and could in fact do the opposite). Nor does it matter if the motivation in passing the law is completely partisan. The law is to be upheld unless “such considerations had provided the only justification for a photo identification requirement.” So those with partisan motive need only find a nonpartisan pretext for such laws. Once the state has posited its neutral reasons for such a law, the law is to be upheld if it doesn’t impose serious burdens on most voters. For those voters who do face serious burdens, they must bring an “as applied” challenge where they present specific evidence applied to them as to why the law is onerous. This channelling of election law cases into as applied challenges — part of a recent trend of the Court — is going to make it tough for a lot of plaintiffs who are burdened, and is in sharp contrast with the Court’s approach in earlier cases, such as the Harper case striking down the poll tax for everyone, not just poor voters. The evidence in as-applied challenges must be specific and tested in litigation; as Justice Stevens says responding to Justice Souter’s dissent: “Supposition based on extensive Internet research is not an adequate substitute for admissible evidence subject to cross-examination in constitutional adjudication.”

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Today’s opinion in Crawford v. Marion County Election Bd. (07-21) is now available here. Justice Stevens announced the judgment of the Court and delivered an opinion in which Chief Justice Roberts and Justice Kennedy joined. Justice Scalia filed an opinion concurring in the judgment in which Justices Thomas and Alito joined. Justice Souter filed a dissenting opinion in which Justice Ginsburg joined. Justice Breyer also filed a dissenting opinion.

A copy of today’s orders list is now available here.

The Supreme Court, voting 6-3, on Monday rejected a constitutional challenge to Indiana’s law requiring voters to show a government-issued photo ID before they may cast a ballot.  Three Justices said the evidence offered against the requirement in Indiana did not support a challenge to the law as written — that is, a “facial” challenge – and three others said the law only imposed a minimal and justified burden on voters. Three Justices dissented.  The decision means that the law will be enforced without a legal cloud over it in the presidential primary election in Indiana on May 6.  About half of the states have such laws.

The decision, in the case of Crawford v. Marion County Election Board (07-21) and a companion case, was the only ruling of the day.  The Court also issued new orders, but granted review of no new cases. The Court took no action on a major new case testing whether U.S. and foreign business firms may be sued for an alleged role in the apartheid policies of South Africa (American Isuzu Motors, et al., v. Ntsebeza, et al. (07-919). At issue is a Second Circuit Court ruling allowing that massive lawsuit to go forward in District Court.

The voter ID ruling may turn out to be a significant victory for Republicans at election time, since the requirement for proof of identification is likely to fall most heavily on voters long  assumed to be identified with the Democrats — particularly, minority and poor voters.  The GOP for years has been actively pursuing a campaign against what it calls “voter fraud,” and the Court’s ruling Monday appears to validate that effort, at least in part.  The main opinion said states have a valid interest in preventing voting by those not entitled to do so, even if there is no specific proof of that kind of fraud in the state.

While the Court’s main opinion said it was “fair to infer that partisan considerations may have played a significant role” in enacting the photo ID law, it went on to say that that law was neutral in its application and was adequately supported by the justifications the state had offered.

Putting together the three votes of Justices who found the paate rticulart  challenge to Indiana’s law wanting on the evidence, with the votes of the three dissenters, means, however, that a majority of the Court has not barred all future challenges to voter ID laws, provided future cases seek to test such laws as they were actually applied in a specific election.  Still, the plurality opinion that announced the Court’s judgment – written by Justice John Paul Stevens — probably means that any such “as-applied” challenges would not be easy to make.

Stevens’ opinion was joined by Chief Justice John G. Roberts, Jr., and Justice Anthony M. Kennedy.  Justice Antonin Scalia wrote a separate opinion, joined by Justices Samuel A. Alito, Jr., and Clarence Thomas, finding no discrimination in the law since all voters are treated alike. Justice David H. Souter wrote one of the dissenting opinions, joined by Justice Ruth Bader Ginsburg.  Justtice Stephen G. Breyer dissented alone.

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At 10 a.m., the Court is scheduled to release one or more opinions, as well as orders from the Justices’ private conference last Friday. We will provide links to both as soon as they are available.

On Monday, the Court is scheduled to release one or more opinions, as well as orders from the Justices’ private conference last Friday.

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

No merits briefs are due at the Court this week.

The Justices are scheduled to hold a private conference at 10 a.m., orders from which are expected to be released the following Monday. If any orders are released this afternoon, we will post them promptly. Click here to view our list of petitions to watch at today’s conference.

The MetLife v. Glenn (06-923) wiki page has been updated to include Stanford student Barbara Thomas’s recap of oral argument. MetLife was the first case argued yesterday.

The following argument recap is by Tobias Zimmerman, an attorney at Akin Gump in Washington, DC. Tobias participated in the case in the lower courts, and Akin Gump also served as co-counsel to the Petitioners in this case.

The Court heard argument on Monday in Sprint Communications Co. LP v. APCC Services, Inc. Our summary of the issues in the case can be found here at SCOTUSwiki.

At oral argument, the Court grappled with standing and the unique procedural vehicle employed by respondents in asserting claims for payphone compensation on behalf of more than 1400 individual payphone owners. Carter Phillips, representing petitioners Sprint et al., faced lively questioning by Justice Ginsburg, who appeared unconvinced by petitioners’ claim that respondents’ agreement to account for all of the proceeds to the assigning payphone owners made the case materially different from one in which an assignee is entitled to retain a portion of any winnings. After Mr. Phillips sought to describe some of the practical problems created by having 1400 absent plaintiffs, Justice Ginsburg pointed out that “you would have the same problems” in a case in which an assignee indisputably has Article III standing because he is entitled to retain a portion of any recovery. Mr. Phillips agreed, but noted that the practical difficulties petitioners identify really only go to the question of prudential standing - not to the issue of constitutional standing under Article III.

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In an early test of the Supreme Court’s willingness to let a number of states begin setting execution dates for death-row inmates, after an informal moratorium, Virginia officials on Wednesday asked permission to go forward with plans to use the lethal injection method in the case of Christopher Scott Emmett.  The state’s motion to vacate an existing stay can be found here.

Since the Court on April 16 ruled in a Kentucky case, Baze v. Rees (07-5439), that the lethal injection method is not unconstitutional at least as used in that state, it has not acted on any formal plea by a state for a chance to resume executions although it has denied review of inmate appeals from seven states.  A number of states have begun setting new execution dates in pending cases.

Emmett’s execution has been blocked by a Supreme Court order issued last Oct. 17, at a time when the Court was staying scheduled executions while it considered the Baze case. Emmett was sentenced to death in 2001 for murdering a co-worker in Danville, Va., and then robbing the victim of $100.

 Virginia’s attorney general argued that the Court’s stay should now be lifted, and any further delay should be considered, if at all, only by lower courts.  The Fourth Circuit Court has not ruled finally on Emmett’s latest challenge to Virginia’s execution procedure.  In fact, the Circuit Court last week  asked both sides to file new briefs by May 2 on the impact of the ruling by the Justices in Baze. A hearing in the Circuit Court is now set for May 14 in Richmond, VA (Emmett v Johnson, Circuit docket 07-18).

When the Justices imposed the stay in October, they did so “pending final disposition of the appeal” by the Circuit Court, or until “further order” of the Supreme Court. At the time, Emmett was asking the Supreme Court to bypass the Circuit Court so he could have his case reviewed directly by the Justices.

The new motion by the state noted that the Supreme Court, in Baze, had laid down strict new limits on when stays would be granted in any state using a lethal injection protocol.  “At the very least,” the state contended, “the Fourth Circuit should be required to make this determination, especially in a case from Virginia which employs lethal injection procedures virtually identical to those of Kentucky.”

While the Justices’ stay remains in effect, the state said, it “is unable even to set an execution date” that would then permit the Fourth Circuit to consider any stay request Emmett’s counsel then made.  “It therefore is essential that this Court vacate Emmett’s ‘Baze‘ stay,” the state argued.

Its motion was filed with Chief Justice John G. Roberts, Jr., who is Circuit Justice for the Fourth Circuit. He has the option of acting alone or of sharing the issue with his colleagues.  Emmett’s defense lawyer is expected to file shortly a response to the stay motion.

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.

The transcript of today’s argument in MetLife v. Glenn (06-923) is now available here.

The transcript of today’s argument in Meacham v. Knolls Atomic Power Laboratory (06-1505) is now available here.

The latest edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference of May 8. 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 April 25, visit our archives here on SCOTUSwiki.

Issues raised in the current list of petitions include asylum eligibility for Chinese spouses in traditional marriages, antitrust implications arising from the master tobacco settlement, the impact of failing to mention post-release supervision in a plea agreement, and whether Chicago violated the First Amendment rights of religious groups surrounding O’Hare International Airport.

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Today’s 9-0 opinion by Justice Scalia in Virginia v. Moore (06-1082) is now available here. Justice Ginsburg filed an opinion concurring in the judgment.

In the only decision of the day, the Supreme Court ruled unanimously on Wednesday that police do not act unconstitutionally if they conduct a search following an arrest, even if the arrest violated a state law. The ruling, written by Justice Antonin Scalia, came in Virginia v. Moore (06-1082) involving the discovery of crack cocaine in a search of a driver who had been stopped for driving on a suspended license.

So long as the police had probable cause to make the arrest, the Court said, it makes no difference that a state law barred police from making an arrest when the crime involved was only a misdemeanor traffic offense. “An arrest based on probable cause serves interests that have long been seen as sufficient to justify the seizure” of evidence after the arrest, the opinion added.

In the circumstance that confronted David Lee Moore of Portsmouth, Va., in 2003, police were supposed to give him only a ticket. But, instead, they arrested him, took him to a hotel where they conducted a personal search of Moore, finding about 16 grams of cocaine in a jacket pocket and $516 in cash in a pants pocket. The evidence was used to convict Moore of possession of cocaine with intent to distribute it. He was sentenced to five years in prison, with 18 months of the sentence suspended.

The Court noted that, with its policy on ticketing only after a traffic offense, “Virginia chooses to protect individual privacy and dignity more than the Fourth Amendment requires.” But, it added, that choice does not make a resulting search invalid under the federal Constitution.

“Moore would allow Virginia to accord enhanced protection only on pain of accompanying that protection with federal remedies for Fourth Amendment violations, which often include the exclusionary rule. States unwilling to lose control over the remedy would have to abandon restrictions on arrest altogether. This is an odd consequence of a provision designed to protect against searches and seizures,” Scalia wrote.

The opinion was joined by all of the members of the Court except Justice Ruth Bader Ginsburg. She supported the result only, saying she would read the historical record differently.

At 10 a.m., the Court is scheduled to hear argument in MetLife v. Glenn (06-923), involving conflicts of interest for ERISA plan administrators. Amy K. Posner of Ling Island City, N.Y., will argue for the petitioner, and E. Joshua Rosenkranz of New York and Nicole A. Saharasky of the Solicitor General’s office will argue for the respondent.

At 11 a.m., the Court is scheduled to hear argument in Meacham v. Knolls Atomic Power Laboratory (06-1505), involving burdens of proof in disparate impact age discrimination claims. Kevin K. Russell (pictured at right) of Washington, D.C., and Daryl Joseffer of the Solicitor General’s office will argue for the petitioner, and Seth P. Waxman of Washington, D.C., will argue for the respondent.

In advance of the argument, the Justices may issue one or more opinions.

Analysis

As long ago as 1879, the Supreme Court made clear that an individual cannot benefit, in a criminal trial, from his own misconduct. That is an adage, the Court said then in Reynolds v. U.S., that dates back at least to 1666 in English history. So, the Court concluded in Reynolds, if an individual accused of crime voluntarily keeps away from the trial a witness against him, he has no constitutional objection if the evidence the witness would have given on the stand is brought in by some other means.

That has a ring of common sense and conventional morality about it even today, as Chief Justice John G. Roberts, Jr., intimated when he remarked on Tuesday: “We usually, under our system, don’t try to give benefits to murderers.”

But, contrary to widespread expectations, it could turn out that the old adage does not apply to the murder case of Giles v. California (07-6053), a case the Justices heard on Tuesday. The strong impression from the argument was that the Court might well refuse to apply the principle in all cases, whenever the accused caused a witness not to appear.

The “benefit” that Dwayne Giles’ attorney was seeking in the case is the exclusion of evidence against him by his former girlfriend, whom he murdered — the crime for which he was on trial. At that trial, the prosecution put on the testimony of a Los Angeles police officer who had interviewed Brenda Avie, the former girlfriend, three weeks before she was shot dead. Ms Avie told the officer that Giles had assaulted her and threatened to kill her. The testimony was offered to show a Giles’ propensity to be violent. The California Supreme Court, contributing to a lower courts conflict on the issue, concluded that there was no need to prove that Giles specifically intended to silence Avie in order to find that he had surrendered his right to face his accuser’s evidence.

The use of her statement, in her absence, violated his right to challenge her evidence, Giles’ lawyers contended, relying upon the Supreme Court’s 2004 decision in Crawford v. Washington. The absence of a chance to cross-examine, the claim was, undercut his claim that he shot her in self-defense. Her statement, Los Angeles attorney Marilyn G. Burkhardt told the Court Tuesday, “obviously was highly prejudicial because it indicated to the jury that he was planning to kill her.”

The hearing ranged widely over what common law principles were regarding the old adage, and whether the Confrontation Clause, when put in the Constitution in 1791, accepted that as an exception to the right to face one’s accusers.

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Scott Novak’s preview of the argument tomorrow in No. 06-1505, Meacham v. Knolls Atomic Power Laboratory, is now available here. Scott was part of the Stanford team who worked for petitioners.

A recap of oral argument in No. 07-371, Taylor v. Sturgell, by Stanford student Menaka Kalaskar can be found here.

Finally, Andrew Dawson has updated the Engquist v. Oregon Dept. of Agriculture, No. 07-474, page to include his recap of oral argument.