In a case almost certainly headed to the Supreme Court this summer or fall, a three-judge federal court in Washington, D.C., on Friday upheld Congress’ 25-year extension of a key provision of the Voting Rights Act originally passed in 1965 and repeatedly extended since then.

The specific law at issue applies to states and local government entities with a past history of racial discrimination in voting, and bars them from making any current changes in election laws without first getting approval by the Justice Department or a three-judge federal court in Washington.  The current extension, adopted in 2006, extends those requirements until 2032.  The law is Section 5 of the 1965 Voting Rights Law.

One of the most eagerly awaited voting rights rulngs in years, the decision came in the case of Northwest Austin Municipal Utility District No. One v. Mukasey (District Court docket 06-1384) — a case that produced a huge paper record.  The ruling can be downloaded here. The 121-page opinion was written by Circuit Judge David S. Tatel. Added to it is a 15-page appendix providing examples of resistance to racial equality in voting in nine states during the period 1982-2005.

Under the law, any challenges to the law must be heard by a three-judge District Court, with any appeals directly to the Supreme Court, bypassing a Circuit Court.  Joining Judge Tatel in Friday’s ruling were District Judges Paul L. Friedman and Emmet G. Sullivan.  Because the controversy over the 2006 extension has been so intense, and has drawn such wide interest, it is most likely that the Texas utility district that filed the challenge will appeal it to the Supreme Court. 

Once a formal notice of appeal is filed, the district would have 60 days to file an appeal in the Supreme Court — although that time limit can be extended.  Because the case involves a direct appeal to the Supreme Court, it will take five votes to decide it; this is not the kind of case that can be denied review simply because it lacks four Justices’ votes to hear it, as with a certiorari petition.

The constitutional conclusions the Court drew were two — one based on the Fifteenth Amendment, the other on the Fourteenth.

First, it upheld the law by applying the standard laid down by the Supreme Court in South Carolinz v. Katzenbach in 1966, upholding the original version of the law — that is, did Congress have a rational basis for passing the extension to enforce the Fifteenth Amendment ban on racial discrimination in voting.  Second, it upheld the law by applying the stricter standard articulated by the Supreme Court in the 1997 decision in City of Boerne v. Flores, requiring Congress, when exercising its power to enforce the Fourteenth Amendment guarantee of legal equality, to provide a remedy that is “congruent and proportional” to the problem being confronted — here, continuing race bias in voting. The Court found the provisions were sufficiently closely tailored to that problem.

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Earlier this afternoon, we filed this reply to the brief in opposition in Baker v. Chisom (07-1082), a civil rights case involving pleading standards under 42 U.S.C. 1983. To access previous filings in the case, click here for our list of petitions to watch at the June 12 conference.

Thomas Haymore discusses the opinion in Riley v. Kennedy (07-77) below. Please note that Thomas was on the Stanford Supreme Court clinic team that worked on the case on behalf of the appellees.

With a “preclearance” mechanism requiring Justice Department approval before a state may “enact or seek to administer” any changes in “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting,” Section 5 of the Voting Rights Act has generated its fair share of public debate and legal challenge. In a carefully worded and consciously narrow opinion, the Court this week in Riley v. Kennedy, by a 7-2 vote, carved out an exemption from § 5 coverage, although the technicalities of the fact-specific ruling limit the reach of the opinion.

Understanding the Court’s holding requires a refresher of the background of the case, already outlined above, but reproduced in brief in this paragraph. Riley involved two decisions of the Alabama Supreme Court, Stokes v. Noonan (1988) and Riley v. Kennedy (2005), dealing with the Mobile County Commission. When § 5 went into effect on November 1, 1964, the Mobile County Commission filled midterm vacancies through gubernatorial appointment. A 1985 precleared local law purported to change this practice to require a special election instead, but a voter challenged this law when a seat became open in 1987. Although the trial court upheld the local law and an election was held that year, the Alabama Supreme Court in Stokes held the law unconstitutional and the special election invalid. (The Governor at the time avoided any crisis by appointing the same person who had won the special election.) In 2004, the state legislature passed, and had precleared, a law permitting local laws to authorize special elections for midterm vacancies instead of gubernatorial appointment. When the next vacancy occurred in 2005, the current Governor moved to appoint his choice to fill the vacancy, but the appellants in this case brought suit in state court, charging that the 2004 Act had revived the 1985 local law. Again, although the trial court agreed with the plaintiffs, the Alabama Supreme Court in Riley denied relief, and the Governor appointed Juan Chastang to the commission. Subsequently appellants brought the instant suit in federal district court, which ruled in their favor. The court held that because the special election practice had been implemented, changing back to gubernatorial appointment would require DOJ preclearance, which was never obtained. Therefore, special election would remain the practice even under the 2004 law. The district court also gave the Governor an opportunity to seek preclearance for gubernatorial appointment. When that was denied, the district court ordered the post on the Commission vacated and ordered a special election, which Chastang lost in a landslide.

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Oral arguments have concluded for the term. If any orders are issued today in pending cases, we will post them promptly.

Departing U.S. Solicitor General Paul D. Clement will join the Georgetown University Law Center in June as a visiting professor and senior fellow at the Center’s Supreme Court Institute.  Clement’s last day at the Justice Department is Monday.  The Georgetown announcement can be found here.

  This post continues a discussion of Tuesday’s decisions in CBOCS v. Humphries, and Gomez-Perez v. Potter, that I started here. 

III.         Gomez-Perez and the Meaning of Silence

The plaintiff in Gomez-Perez alleged that after she complained about age discrimination at a federal agency, she was subject to various forms of retaliation.  She challenged that retaliation under the Age Discrimination in Employment Act (ADEA).  As originally enacted, the ADEA applied only to private employers and included a list of prohibited conduct, including retaliation.  In 1974, Congress amended the statute to cover federal employees as well.  But rather than simply subjecting federal employers to the existing list of prohibited conduct, Congress enacted an entirely separate, and more broadly worded provision that provides that “[a]ll personnel actions affecting [federal] employees … who are at least 40 years of age … shall be made free from any discrimination based on age.”  Congress did not include a separate provision prohibiting retaliation.  Thus, the same basic question arose as in the CBOCS case: did the prohibition against age discrimination include within it protection against retaliation?

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A new StatPack is available, and it can be downloaded here.

Additionally, we periodically write posts (see here for the latest one) with updates on the state of the docket, and with four Conferences to go until the Summer Recess, it’s time for another rundown of the Court’s caseload for OT08.

After granting cases at a rate substantially above its usual pace, the Court has essentially turned off the spigot, as over the last five Conferences, only one case has been granted and placed on the docket for OT08. By contrast, over the previous five conferences (which spanned seven weeks as opposed to only five), the Court granted 16 cases. Still, with 28 cases on the docket already for OT08, the Court remains on track to increase the number of cases it hears next Term over this one, and by a not insignificant amount. As can be seen on the grant chart in the new StatPack, the pace this Term is still above our “steady-rate” line for achieving 78 grants over the course of a year.

Moreover, as the chart reveals, the Court tends to increase the rate at which it accepts cases during the month of June. There are three principle reasons for this: the maneuvering, in several significant cases, of counsel who desire to have their cases considered before the Summer Recess; the pragmatic need of the Court to fill its October, November, and December argument docket before departing for the Summer; and the Solicitor General’s regular practice of submitting outstanding invitation briefs to the Court in May, just in time for the petitions to be considered and acted upon before the Summer Recess. Indeed, this Term could see an especially large bump in grants due to this last group of cases. In thirteen briefs submitted by the Solicitor General, the U.S. has recommended outright grants in four cases (Harbison, Amschwand, Hulteen, and Pac Bell). If past is prologue, the Court may also grant review in some cases where the SG recommends denial.

Though no one can predict the exact number of grants from this group - the Court is not bound by the recommendation of the Solicitor General, after all - these thirteen cases will likely prove to be far more fruitful for the Court than last spring’s bunch, when the SG submitted only seven briefs and recommended a grant in only one of those. Ultimately, the Court added to its docket not only the recommended grant (LaRue) but also two others in which a denial was recommended (Rowe and Riegel). Given this year’s submissions, it’s a fair bet that more than three grants will emerge from the new batch of CVSG’s. Thus, along with any other non-CVSG grants before the summer, it’s quite likely that the court will slightly overshoot the thirty-two argument slots on the docket for this October, November, and December (assuming two arguments per day). If so, it will be the first time the Court has done so since 2005.

There are four more Conferences before the summer, and our list of petitions to watch for tomorrow’s Conference can be found here, June 5 here, and June 12 here. The list for the final Conference will be posted next week. (UPDATE: the list for the June 19 conference is now here.)

The Justices are scheduled to hold a private conference this morning, orders from which are expected to be released on Monday. To view our list of petitions to watch at today’s conference, click here.

I don’t really know of anyone (with the possible exception of defendants and their lawyers in particular cases) who thinks that it should be legal for someone to retaliate against an individual who seeks to enforce their federal civil rights.  Congress often expressly proscribes such conduct in modern civil rights (and other) statutes.  But sometimes it doesn’t.  And it didn’t do so in some of the seminal civil rights statutes passed in the wake of the Civil War.  Why not?  In all honesty, it is probably (at least with respect to modern statutes) because Congress didn’t think about it.  But that nonetheless leaves courts with a tricky question - do the statutes not mentioning retaliation nonetheless proscribe it? 

The Court confronted that question in two cases decided yesterday: CBOCS v. Humphries, No. 06-1431, which construed the Civil War-era 42 U.S.C. § 1981, and Gomez-Perez v. Potter, No. 06-1321. which interpreted the federal-sector provision of the Age Discrimination in Employment Act, passed in 1974.  (Disclosure: I consulted with respondent’s counsel in CBOCS).

Because the decisions are closely related, I am going to discuss them together.  To keep the post manageable, however, I’ll start with an introduction to both cases and walk through CBOCS in this post.  Then I will finish the discussion of Gomez-Perez and a couple of general observations in a separate post.

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The latest edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference of June 12. 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 lists for the upcoming conferences of May 29 and June 5, visit our archives here on SCOTUSwiki.

Conference of June 12, 2008

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Docket: 07-81
Name: Exxon Mobil v. Doe
Issue: Whether the collateral order doctrine permits an immediate appeal of a denial of a motion to dismiss on political question grounds, where the State Department has expressed concern the litigation could adversely impact U.S. interests abroad.

• Opinion below (D.C. Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Brief amicus curiae of the United States (recommending denial of certiorari)

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Docket: 07-539
Case name: Progress Energy, Inc. v. Taylor
Issue: Whether Department of Labor regulations preclude employees from waiving past claims, as opposed to future claims, under the Family Medical Leave Act. (Disclosure: Akin Gump represents the petitioner.)

• Opinion below (4th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Amicus brief of the Chamber of Commerce (in support of the petitioner)
• Amicus brief of the Equal Employment Advisory Council (in support of the petitioner)
• Amicus brief of the North Carolina Retail Merchants Association (in support of the petitioner)
• Amicus brief of the Society for Human Resource Management (in support of the petitioner)
• Amicus brief of the Association of Corporate Counsel (in support of the petitioner)
• Brief amicus curiae of the United States (recommending denial of certiorari)
• Supplemental brief for the petitioner

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Docket: 07-962
Case name: Cavel International, Inc. v. Madigan
Issue: Whether an Illinois law barring the possession, sale, importation or exportation of horse meat for human consumption violates the foreign commerce clause.

• Opinion below (7th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Brief amicus curiae of Kingdom of Belgium (in support of petitioner)
• Brief amicus curiae of Livestock Marketing Association (in support of petitioner)
• Brief amici curiae of The American Quarter Horse Association (in support of petitioner)

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Docket: 07-984 and 07-990
Case name: Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, et al. and Alaska v. Southeast Alaska Conservation Council, et al.
Issue: Whether the U.S. Army Corps of Engineers may not issue a permit for discharge of fill material otherwise subject to effluent limitations under Sections 301 or 306 of the Clean Water Act.

• Opinion below (9th Circuit)
• Petition for certiorari (Coeur)
• Petition for certiorari (Alaska)
• Brief of respondent Goldbelt, Inc. in support
• Brief of federal respondents in opposition
• Brief of respondent Southeast Alaska Conservation Council, et al. in opposition
• Petitioner’s reply (Coeur)
• Petitioner’s reply (Alaska)
• Brief amici curiae of National Mining Association, et al. (in support of the petition)
• Brief amicus curiae of Mountain States Legal Foundation (in support of the petition)
• Brief amici curiae of Pacific Legal Foundation, et al. (in support of the petition)

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Docket: 07-1015 and 07-1150
Case name: Ashcroft v. Iqbal, et al. and Sawyer, et al. v. Iqbal
Issue: Whether current and former federal officials, including FBI Director Robert Mueller and former Attorney General John Ashcroft, are entitled to qualified immunity against allegations they knew of or condoned racial and religious discrimination against individuals detained in the wake of the September 11 attacks.

• Opinion below (2nd Circuit)
• Petition for certiorari (Federal government)
• Petition for certiorari (Sawyer, former Bureau of Prisons officials)
• Brief in opposition
• Petitioner’s reply (Ashcroft)
• Petitioner’s reply (Sawyer)
• Brief amici curiae of former Attorney General William P. Barr, et al. (in support of the petition)

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Docket: 07-1075
Case name: Dupuy, et al. v. McEwen
Issue: Whether the “safety plans” followed by the Illinois Department of Children and Family Services upon receiving allegations of child abuse violate parents’ Due Process rights under the 14th Amendment.

• Opinion below (7th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Brief amici curiae of Chicago Coalition for the Homeless, et al. (in support of the petitioner)
• Brief amicus curiae of Illinois State Bar Association (in support of the petitioner)
• Brief amici curiae of American Coalition for Fathers and Children, et al. (in support of the petitioner)
• Brief amici curiae of Psychoanalytic Association, et al. (in support of the petitioner)
• Brief amici curiae of Cato Institute, et al. (in support of the petitioner)

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Docket: 07-1082
Case name: Baker v. Chisom
Issue: Whether, under 42 USC 1983, a complaint not naming the capacity in which a defendant is sued must be construed to name him in his official capacity, notwithstanding the course of proceedings establishing a contrary intent. (Disclosure: Akin Gump represents the petitioner)

• Opinion below (8th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

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Docket: 07-1175
Case name: Burke, et al. v. Brookline School District
Issue: Whether parents of a child identified as disabled under the IDEA can recover compensatory damages under the Americans with Disabilities Act or Rehabilitation Act for alleged retaliation.

• Opinion below (1st Circuit)
• Petition for certiorari
• Brief in opposition

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Docket: 07-1209
Case name: Peake v. Sanders
Issue: Whether courts must presume the failure of the Department of Veterans’ Affairs to give notice to benefits’ claimants to be prejudicial.

• Opinion below (Federal Circuit)
• Petition for certiorari
• Brief in opposition (respondent Woodrow F. Sanders)
• Brief in opposition (respondent Patricia D. Simmons)
• Petitioner’s reply

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Docket: 07-1315
Case name: Knowles v. Mirzayance
Issue: Whether the defendant’s lawyer’s recommendation to withdraw an insanity plea constituted ineffective assistance of counsel for purposes of federal habeas law.

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

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Oral arguments have concluded for the term. If any orders are issued today in pending cases, we will post them promptly.

UPDATE Tuesday night

Virginia Gov. Tim Kaine turned down a request for clemency, allowing the execution of Kevin Green to proceed.  A statement by the governor can be found here.

The Supreme Court early Tuesday evening refused to delay the execution in Virginia of Kevin Green.  Simultaneously, the Court denied review of a new appeal by Green, raising issues about the time allowed for filing a habeas challenge.  The Court’s order, along with a dissent by Justice John Paul Stevens, joined by Justice Ruth Bader Ginsburg, can be found here.

Since the Court’s ruling in Baze v. Rees (07-5439) on April 16, clearing the way for the resumption of executions, the Justices have stayed only one scheduled execution — in the case of Edward Nathaniel Bell, another death-row inmate in Virginia.  The Court granted review of Bell’s appeal (Bell v. Kelly, 07-1223) on May 12; the key issue in that case is whether federal courts, in hearing challenges by state prisoners, must defer to state court findings even if the state court did not consider the evidence at issue.

In Virginia, Kevin Green was convicted of murder and sentenced to death for the 1998 shooting death of Patricia L. Vaughn at the grocery store she and her husband owned in Brunswick County, VA.  Green had previously been a customer at the store, mainly to cash his payroll checks from a nearby lumber company.

In his new appeal (Green v. Johnson, 07-10988), Green contended that his defense lawyers had improperly failed to appeal the robbery portions of his guilty verdict, even while appealing the murder conviction. They won a new trial on the murder count, but not on the robbery count, and this, Green contended, allowed the jury to learn about the robbery conviction — information that he argued increased the chances of his being convicted anew of murder and sentenced to death.  He was denied a chance to raise this issue in his first federal habeas petition; that petition was denied by the Fourth Circuit Court, leading to Green’s new appeal.

Justice Stevens’ dissent complained that the state of Virginia planned to execute Green before the Court had a full opportunity to review his legal claims.  As he has before, Stevens argued that the Court should follow the regular practice of staying all executions that are scheduled before the Court had time to review the denial of a first habeas petition.

Green’s stay application was 07A913.   In denying that application and the petition for certiorari, the Court provided no explanation.  Green’s stay request was filed with Chief Justice John G. Roberts, Jr., Circuit Justice for the Circuit that includes Virginia.  Roberts referred the matter to the full Court.

Green’s execution was scheduled for 9 p.m. Tuesday.

 The next scheduled execution is in Texas, where Derrick Sonnier is to die next Tuesday, followed by Curtis Osborne in Georgia on Wednesday. At present, eight executions, including Sonnier’s and Osborne’s, are due in June — three in Texas, two in Virginia, and one each in Georgia, South Carolina and Oklahoma.

As we noted on Friday, the SG’s office filed a brief recommending a GVR in No. 07-615, Ministry of Defense v. Elahi. Guest blogger Luisa Caro has more on the background of the case, the cert. papers, and the SG’s brief (available here).

Ministry of Defense v. Elahi, No. 07-615, involves the interplay between the Foreign Sovereign Immunities Act (FSIA), the Victims of Trafficking and Violence Protection Act of 2000 (”VTVPA”), and the Terrorism Risk Insurance Act of 2002 (”TRIA”). Moreover, the case touches upon three separate litigations involving the government of Iran.

The Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran (”MOD”) entered into agreements with a California-based contractor for the sale and servicing of equipment for the Iranian Air Force in 1977. For reasons that are disputed, the delivery of the equipment did not take place. The MOD pursued international arbitration and was awarded $2.8 million against the contractor, Cubic Defense Systems. In 1998, the MOD filed a petition in the U.S. District Court for the Southern District of California seeking to confirm the award.

Separately, Iran brought claims against the United States before the Iran-U.S. Claims Tribunal in The Hague for failure to restore certain frozen Iranian assets. The Tribunal was constituted by the Algiers Accords signed January 1981, whereby Iran released the hostages at the U.S. Embassy in Tehran and the U.S. committed “to restore the financial position of Iran, in so far as possible, to that which existed prior to November 14, 1979.”

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Today’s opinion by Justice Alito in Gomez-Perez v. Potter (06-1321) is now available here. Chief Justice Roberts filed a dissenting opinion in which Justices Scalia and Thomas joined as to all but Part I. Justice Thomas filed a dissenting opinion in which Justice Scalia joined.

Today’s opinion by Justice Breyer in CBOCS West v. Humphries (06-1431) is now available here. Justice Thomas filed a dissenting opinion in which Justice Scalia joined.

Today’s opinion by Justice Ginsburg in Riley v. Kennedy (07-77) is now available here. Justice Stevens filed a dissenting opinion in which Justice Souter joined.

A copy of today’s orders list is now available here. The Court granted no new cases for review. The Court called for the view of the Solicitor General in United States in Iraq v. Beaty, et al. (07-1090), the certiorari-stage filings for which are available after the jump.

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