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: 07-1029
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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Docket: 07-1089
Case name: Smith v. Barrow
Issue: Whether a parental rights claim of a teacher denied a promotion for choosing to educate her children in a competing private school is subject to rational basis or heightened scrutiny.

• Opinion below (5th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Amicus brief of the Texas Association of School Boards Legal Assistance Fund (in support of petitioner)
• Amicus brief of International Municipal Lawyers Association (in support of the petitioner)

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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.