NOTE: The legal controversies arising out of the war-on-terrorism often lead to important tests of major Supreme Court precedents. The decision discussed here examines the scope of the Court’s 1971 decision in Bivens v. Six Unknown Federal Narcotics Agents, allowing money damage claims against federal officials for violating individuals’ constitutional rights.

A federal appeals court, in a major victory for federal officials in pursuing individuals suspected of terrorism, ruled on Monday that foreign nationals may not sue U.S. government officers for money damages for capturing them and sending them to foreign countries where they were tortured.

The decision by the Second Circuit Court in New York City, in a high-profile case seen as a significant legal test of the U.S. program of “special rendition,” also barred a claim specific to this case that U.S. officials seriously mistreated the detained individual while he remained in this country before being sent abroad involuntarily.

In both aspects of its rulings, the Circuit Court found it unnecessary to rule on the federal government’s claim that the case could not go forward in court because it would intrude on the “state secrets privilege” against disclosing classsified information. 

Still, one of the key reasons the Court blocked a damages remedy was its concern that “adjudication of the claim at issue would necessarily intrude on the implementation of national security policies and interfere with our country’s relations with foreign powers.”  In this case, it said, a court would have to probe the actions not only of the U.S. government, but of the governments of Canada, Jordan and Syria.

The decision, dividing the Circuit Court 2 to 1, came in the case of Arar v. Ashcroft, et al. (Circuit docket 06-4216).  The opinion, along with the dissent, can be downloaded here. (The complete file is 104 pages.)

The damages lawsuit was filed by Maher Arar, a citizen both of Canada and of Syria and a resident of Ottawa, was traveling through the U.S. en route to Montreal on Sept. 26, 2002, when he was taken into custody at JFK Airport in the Queens borough of New York City. He was detained, apparently, on tips from Canadian officials that Arar had ties to the Al Qaeda terrorist network — a claim he has repeatedly denied.

After being interrogated by FBI agents, in harsh conditions, he contends, he was sent involuntarily to Syria — where he was born — over his objection that he would be tortured. He was flown to Amman, Jordan, and then taken to Syria, where he asserted he was held for ten months with repeated beatings and other forms of torture, until released to Canadian officials in December 2003. He later said that Syria interrogators were mainly interested in his associations with a man he regarded as a casual acquaintance.

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In the first attempt to get the Supreme Court to clarify the rights of crime victims under a 2004 federal law, lawyers for 12 victims of an explosion three years ago at an oil refinery in Texas have asked the Supreme Court to delay a federal judge’s action on a plea agreement that would settle federal criminal charges against a large oil company. The victims contend that the plea deal is too lenient, and that it was worked out without any input from the victims — a claimed violation of the Crime Victims’ Rights Act.

At this stage, the victims are asking the Court to block a Fifth Circuit Court ruling that limits their right to challenge denials of rights under that Act; their lawyers are preparing an appeal to the Supreme Court on that point, and want a delay until that is decided.   The application for a stay (Dean, et al., v. U.S. District Court, 08A3) can be downloaded here.  BP Products North America Inc. filed an opposition to the stay request, arguing that the 2004 law does not allow for stays.

If a stay is not issued, the victims’ lawyers argued, the plea deal could be ratified by a federal judge, forever scuttling their rights to have taken part in discussions of what such a bargain should include, before it takes effect.

Under BP Products’ plea agreement, it would pay a $50 million fine and plead guilty to violations of the Clean Air Act for failing to maintain equipment at the refinery and failing to warn those working near the site of potential fire, explosion or other hazards.

Aside from the criminal case, some 4,000 civil damage claims have been filed in federal and state courts; about half of those have been settled for more than $1.6 billion.

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While the Supreme Court’s opinions this Term produced sweeping rulings on the death penalty and on the rights of enemy combatants, the criminal law docket in OT07 was all about the details. Of the 24 cases on criminal law, 12 involved sentencing guidelines or felony definitions, and seven cases dealt with strictly procedural issues. (Here is a visual breakdown of the cases.)

Just over half of the decisions went in favor of criminal rights. Big wins for the accused included the ability of federal judges to depart from the federal sentencing guidelines in crack cocaine cases (Kimbrough and Gall), and of state courts to retroactively apply Supreme Court decisions to criminals seeking post-conviction relief even where federal judges cannot (Danforth).The Court gave wins to both prosecutors and defense attorneys.

While the Court ruled Kentucky’s protocol for lethal injections constitutionally sound (Baze), it barred states from applying the death penalty to convicted child rapists (Kennedy).The Armed Career Criminal Act played a central role in several cases and the Court came down with two different definitions of weapons “use” during a felony: receiving a gun in exchange for drugs doesn’t count (Watson), but having explosives on one’s person while committing a felony, even if unrelated to the crime in question, does (Ressam). Read the rest of this entry »

In a significant rebuff of Pentagon policy on detainees, the D.C. Circuit Court has ruled that individuals cannot be labeled as enemies of the U.S. based on “bare assertions” not supported by “independent sources” that would make the claims reliable.  Explaining a decision that it had reached on June 20, but released Monday only in a heavily edited form to protect secrets, the Circuit Court was sharply critical of the information contained in a handful of intelligence documents used to justify keeping a Chinese national imprisoned at Guantanamo Bay, Cuba.

In deciding — in the first case of its kind — that the detention of Huzaifa Parhat was not supported by that evidence, the Circuit Court declined to rule on broader issues that lurked in the case on the President’s authority to order the detention of foreign nationals during the war-on-terrorism, either under the 9/11 Resolution that Congress passed after the 2001 terrorist attacks, or under the President’s constitutional powers as commander-in-chief.

“Because we conclude that the evidence…is insufficient to categorize Parhat as an enemy combatant under the Department of Defense’s definition, we do not reach the other issues disputed by the parties,” the three-judge panel said.

The decision, in redacted form, can be downloaded here.

While the ruling finds that Parhat is entitled to be released or transferred out of Guantanamo, and does so on the basis of questionable intelligence documents, it is unclear whether the ruling portends similar outcomes for other detainees challenging their imprisonment.  The fate of some 270 prisoners at Guantanamo may depend on the specific evidence, case by case, that the Pentagon assembled to support enemy combatant findings.

At the same time, however, the new decision was a clear demonstration that the civilian courts would analyze closely the claimed bases for enemy designations, and would be skeptical of any evidence that was not backed up with evident support for its reliability.  That may signal trouble in other cases, unless the Pentagon’s investigators went further in those than they did in building their case against Parhat.

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Last Thursday marked the end of the Supreme Court’s October Term 2007, and once again, Court-watchers are looking to describe the overall theme of the term. Last year, with fully a third of opinions splitting 5-4 — and a vast majority of those splits coming along ideological lines —  the new divisiveness of the Court provided the major story. This year, a seeming lack of that similar divisiveness has become the prevailing story line, with various commentators attributing it to liberal capitulation, Chief Justice John Roberts crafting narrow, moderate opinions which could attract bipartisan majorities, the Court retreating from political posturing to a more lawyerly role and even simply that the cases this term have not been as ideologically fraught as those of last year. This post attempts to analyze the situation: was OT 2007 really less contentious than OT 2006?

One way of measuring dissent is to look at “average dissenting votes”: total dissenting votes divided by total opinions. Under this metric, the level of divisiveness produced by two 7-2 decisions is the same as that produced by one 9-0 decision and one 5-4 decision — four dissenting votes over two cases. Using this approach, the dissention rate of OT 2007 was 1.85, higher in fact than OT 2006. Opinions in 2007 involved, therefore, the most dissent in at least the past dozen years. (See a graph of average dissenting votes from OT95 to OT07 here.)

At first blush, this high dissention rate seems like a very surprising number; after all, opinions decided over four dissenting votes declined from 24 last term (33% of the Court’s opinions) to 14, or 20%, of opinions this term (this includes Warner-Lambert and Tom F., both affirmed by an equally divided Court, which is itself a relatively rare occurrence). However, a couple of phenomena can help to explain this discrepancy.

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The Court has recessed for the summer. The opening conference for next term is scheduled for September 29, and oral arguments will resume October 6.

On Tuesday, the American Constitution Society and the Federalist Society will host separate panels reviewing the recently completed term. For more information on the events, which will take at the National Press Club in Washington, click here.

The petitioner’s merits brief is due Monday in Van de Kamp v. Goldstein (07-854). No respondents’ merits briefs are due this week. (Link directs to case page on SCOTUSwiki.)

Lawyers for the Pentagon and for detainees now held at Guantanamo Bay have already engaged in a debate — at least in summary form — over the meaning of the Supreme Court’s June 12 ruling in Boumediene v. Bush (06-1195).  In short, the military lawyers contend that the detainees are now protected by only a single constitutional right, while the prisoners’ attorneys claim at least nine.

Mainly by coincidence, the constitutional dispute is playing out in the Pentagon’s war crimes case against a Yemeni national, Salim Ahmed Hamdan.  He is the same detainee who won an earlier Supreme Court decision that the detainees had some legal right to challenge their detention — rights that Congress then moved to sharply curtail, an effort that the Supreme Court partly overturned in Boumediene.

The new phase of the constitutional disagreement will unfold in July when Hamdan’s trial resumes on charges of providing support to the Al Qaeda terrorist network in Afghanistan.  Hamdan’s trial before a military commission was postponed on May 16 by the presiding judge, to await the Court’s ruling in Boumediene.

Under a ruling Thursday by the judge, Navy Captain Keith J. Allred, Hamdan’s defense lawyers are to file their motions making constitutional claims by July 2, and, depending on how those motions fare, the trial could start on July 21 — the first criminal trial growing out of the “war on terrorism.”

Allred rejected the plea of the detainees’ defense team to delay the trial until Sept. 22 to give them more time to prepare their constitutional claims in the wake of the Supreme Court decision.  The motion for a continuance summarized what at least some of those claims will be.  The Pentagon’s opposition filing gave its view of the very limited scope of Boumediene.   The judge said that the time up to July 2 will give the defense enough time to prepare their constitutional motions.

The judge’s ruling can be downloaded here.  (Attached to the two-page ruling are the defense motion for continuance and the prosecutors’ response.  Thanks to Howard Bashman of How Appealing blog for providing a link to the Miami Herald file on these papers.)

The defense, in its motion filed one week after Boumediene was decided, argued: “Boumediene was decided in a manner sharply adverse to the Government, rejecting numerous positions advanced, and authorities relied upon, by the Government in this case….The Boumediene holding that substantive and structural constitutional protections extend to Guantanamo has major implications for this case.”

The motion asserted that “a large array of constitutional rights and protections now must be considered, affecting all aspects of the substantive and procedural law that must be applied in this case.” It indicated that the defense team would offer, “at a minimum,” motions to apply nine specifically enumerated constitutional rights.

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The National Rifle Association on Friday began its courthouse campaign to extend the Second Amendment in order to restrict gun control laws in San Francisco, Chicago and three Chicago suburbs.  As noted in a press release, the Association sought in all five lawsuits to have the Second Amendment incorporated into the Fourteenth Amendment, so that it would apply other than to the federal government.  The lawsuits followed by one day the Supreme Court’s ruling in District of Columbia v. Heller (07-290), declaring an individual right to have a gun in a home for self-defense.

The press release provides a link to the California case (Guy Montag Doe, et al., v. San Francisco Housing Authority, et al., District Court Northern Division docket 08-3112).  That lawsuit challenges a local law and lease provisions barring guns by residents of public housing in the city.

The Association did not provide a link to the lawsuits challenging handgun bans in Chicago and the suburban communities of Evanston, Morton Grove, and Oak Park.

On Thursday, a lawsuit was filed by others to challenge the Chicago handgun law, as described in this post.

Analysis

Eighteen years ago, Justice Antonin Scalia complained that a Supreme Court decision he did not join carried an Orwellian message, abhorrent to the Constitution.  He wrote, sarcastically: “Attention all citizens. To assure the fairness of elections by preventing disproportionate expression of the views of any single powerful group, your Government has decided that the following associations of persons shall be prohibited from speaking or writing in support of any candidate: ___.”  Such a proclamation, he said, violated the “absolutely central truth of the First Amendment: that government cannot be trusted to assure, through censorship, the ‘fairness’ of political debate.”

With Justice Scalia now in the majority, the Court has just provided someting of an echo of that 1990 sentiment. “It is a dangerous business,” Justice Samuel A. Alito, Jr., wrote for a majority on Thursday, “for Congress to use the election laws to influence the voters’ choices….The Constitution…confers upon voters, not Congress, the power to choose the Members of the House of Representatives.” Thus, Congress may not legislate to “level electoral opportunities.”

What Scalia denounced — in a colorful dissent — in Austin v. Michigan Chamber of Commerce in 1990, Alito has now led a majority to condemn in dispassionate terms in Davis v. Federal Election Commission.  In Davis, the Court said in the clearest terms yet that it is unconstitutional for Congress to try to level the playing field in campaign finance.

If Congress passes campaign finance controls, and can show clearly that it did so to stop corruption or the appearance of corruption, that is all that it can do, the Court made clear.  Whenever Congress seeks to go beyond corruption-correction, in order to promote “fairness” in politics, or equal political opportunity for the candidates, it exceeds its constitutional reach, it now seems plain.

It is difficult to say, at this point, just how far that limiting principle will go to undo campaign finance laws and regulations from here on. 

There is no doubt that Congress has believed, for years, that it can constitutionally adjust the campaign money system to try to reduce the influence of wealth — individual wealth, the treasure in corporate or union coffers, the wealth of activist organizations.

And, in passing what is called the “Millionaire’s Amendment” in 2002 to govern races for Congress, the lawmakers definitely believed they had the authority to promote equality of spending by giving some opponents of wealthy candidates a chance to raise money up to the level where they could compete, equally or close to that. This was the reverse of putting caps on campaign outlays: it lifted the caps for one side, to promote equality.

But both of those assumptions may not have survived the Davis decision, striking down the “Millionaire’s Amendment” on First Amendment grounds.  For the first time, the Court has said explicitly that, even if wealth imbalances candidate competition, Congress cannot cure that by authorizing what amounts to a subsidy for the lesser-financed candidate.

Its explanation for why that is a First Amendment violation is an argument never before advanced: that a candidate with the “natural advantage” of access to more money has a constitutional right to bar Congress from intervening to enable a would-be rival to mount  tougher competition. Shifting the “advantage” that way, the Court appeared to indicate, is a kind of forbidden tax or penalty levied on the political speech of the better-financed contender.

Some election-law experts immediately detected in those notions a threat to long-standing federal curbs on spending by Big Business or Big Labor.  The theory those experts offered was that, if wealth-equalization is not a valid basis for restricting campaign finance activity, corporations and labor unions perhaps could not validly be restricted from engaging in political speech through their unequal assets.  Does it not diminish their political speech, it was suggested, for Congress to say they can buy too much speech?  Justice Alito did say, explicitly, that spending large sums on politics is the constitutional equivalent of “robustly” exercising First Amendment rights.

And, some of those experts added, does it not substitute legislative choices for those of voters if Congress or state legislatures doled out public funds to finance campaigns in lieu of private wealth?

The Alito opinion in Davis provides no more than hints, some only between the lines, that such major shifts in constitutional understandings about campaign finance restrictions will follow from this new opinion.  The opinion and its internal logic were crafted to hew rather closely to the vices the majority found in the “Millionaire’s Amendment.”

But it was enough of a departure from conventional wisdom that lawyers looking for new ways to lift financial restraints on political utterances have reason to think it worth a try to extend that logic.

Yesterday spawned a level of intense online interest in a Supreme Court decision like we at SCOTUSblog have never seen before.  We thought we’d let you know a few of our statistics just to give you an idea of how significant this decision was.

Hits.  In five and a half years, we’ve never had more than 100,000 hits on SCOTUSblog.  Yesterday, though, we had our first 100,000 hit day.  And then our first 200,000 hit and 300,000 hit day.  By the end of the day, we had over 370,000 hits, and 240,000 nominally “unique” visitors (though, as Tom mentioned, that’s an imperfect count because it counts repeatedly the many people whose computers don’t accept cookies).  We’re still amazed that our servers held up.

LiveBlog.  According to our LiveBlog software provider, Coveritlive - who offer a terrific (and free) product, by the way - we had about 20,000 LiveBlog viewers during the hour and eighteen minutes that we had the LiveBlog open, including 10,000 unique viewers who stayed for more than five minutes.  Over 6,000 people have replayed the LiveBlog since we ended it.

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In a newly filed lawsuit in federal court in Chicago, two gun rights organizations and four individuals asked that the Second Amendment be extended to block strict gun laws at the state and local level.  “The Second Amendment right,” the complaint contended, “is incorporated as against the states and their political subdivisions pursuant to the Due Process Clause of the Fourteenth Amendment.”

The case, McDonald, et al., v. City of Chicago, et al. (District docket 08-3645), was filed in U.S. District Court in Chicago to challenge a city ordinance that bars registration of handguns with only a few exceptions, and that limits registration of other guns. The case was assigned to Senior District Judge Milton I. Shadur.  The complaint can be read here.

Because this is only a complaint to start a case, there is no full-scale argument defending the notion that the Amendment — now protecting an individual right to have a handgun for self-defense at home — applies to state and local government.  The Supreme Court, in finding an individual right by its ruling Thursday in District of Columbia v. Heller (07-290), said it was not deciding whether the Amendment went beyond federal laws (or laws of the federal capital in Washington, D.C.).  That is what the new lawsuit raises directly.

“The Second Amendment right to keep and bear arms is a privilege and immunity of United States citizenship which, pursuant to the Fourteenth Amendment, states and their political subdivisions may not violate,” the complaint argues. “Handguns, as a class of weapons, are ‘arms’ whose possession by law-abiding adult citizens is protected by the Second Amendment right to keep and bear arms.”

Joining in the lawsuit is the Second Amendment Foundation, an advocacy group, and the Illinois State Rifle Association. The individuals in the case are Otis McDonald, a Chicago resident who says he lives in a high-crime neighborhood and has been threatened by drug dealers; Adam Orlov, who lives in Chicago and is a former police officer in Evanston, Ill., and Colleen and David Lawson, Chicago residents who say their home has been targeted by burglars.

The following post was authored by David Kopel of the Independence Institute, who filed an amicus brief in Heller in support of the respondents on behalf of the International Law Enforcement Educators and Trainers Association and others.

The first thing that should be said about Heller is that it was a well-lawyered case on both sides. What a contrast to United States v. Miller — which, as detailed in a law review article cited by the Scalia majority, was apparently a collusive test case, in which the passive defense attorney and a compliant federal district judge did the bidding of the U.S. Attorney to bring the weakest possible Second Amendment case before the Court, and then to ensure that only the U.S. Attorney’s side even presented a brief. (Frye, The Peculiar Story of United States v. Miller, 3 N. Y. U. J. L. & Liberty 48 (2008).)

Alan Morrison’s opening brief for D.C. did about the best job possible with the available materials in arguing against the Standard Model of the Second Amendment. His supplemental argument that the Second Amendment, even under the Standard Model, does not apply to the District of Columbia was a long shot that, ultimately, did not work; but it was worth trying, given the uphill fight that D.C. faced in defeating the Standard Model or in getting a Court majority to declare a handgun ban valid.

Carl Bogus’s historical brief also did a fine job of assembling historical materials, and arguing against the Standard Model. The brief was obviously an important resource for Justice Stevens’ dissent.

Although I don’t agree with some of the claims in Alan’s and Carl’s commentaries here on Scotusblog, today isn’t the day to continue those arguments; the various briefs filed on both sides provide plenty of material thereon.

The speculation about the post-Heller scope of permissible gun controls is interesting, and both sides of the debate will use the same words of the majority’s language to argue for or against bans on various classes of guns, such as small handguns, big .50 caliber rifles, and so on. Whatever the results of those arguments, it does seem clear at least one type of gun ban is going to have a very tough time passing judicial review.

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The following post was written by Daniel L. Schmutter, an attorney in West Orange, New Jersey. He filed an amicus brief on behalf of Jews for the Preservation of Firearms Ownership in support of the respondent.

Having submitted an amicus curiae brief on the side of Respondent Heller, I cannot help but conclude that today’s decision represents a substantial victory for American gun owners. Yet, to read the press releases of various anti-gun interest groups and government officials, you would think that the other side won today.

This is because the majority opinion clearly provides room for the survival of gun laws which do not offend the fundamental self defense purpose of the Second Amendment. Thus, as with other rules of law, the real meat and potatoes, so to speak, will be found in the many lawsuits to come. Accordingly, the anti-gun groups have already taken up the gauntlet and broadly asserted that today’s decision affirms the validity of “reasonable” efforts by governments to control crime. Well, not so fast.

What the decision does recognize is that the right to keep and bear arms is not absolute. So far that’s nothing controversial. Notwithstanding the fact that some folks would have liked a decision that swept away gun laws en masse, I doubt that anyone seriously following this issue expected that there was any likelihood of that. Instead, those watching this issue were keenly interested in the scope of the right and the standard of review to be applied. Well, we got some information on both of those.

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Winding down the 2007-08 Term, the Supreme Court agreed on Friday to add two more cases to its decision docket for the next Term: a test case on dumping fill dirt into waterways, and a case on a defense lawyer’s duty to put forth the only argument available to aid the client.  The Court also agreed to schedule argument in October, rather than later, on a newly granted case on the Navy’s authority to use sonar in its training exercises.

The new case on protecting waterways is actually a pair of appeals, consolidated for one hour of oral argument: Coeur Alaska v. Southeast Alaska Conservation Council (07-984) and Alaska v. Southeast Alaska Conservation Council (07-990).  The issue is whether the Army Corps of Engineers has the authority to issue permits for dumping dredge or fill dirt into waterways, without satisfying all of the pollution restrictions enforced by the Environmental Protection Agency.  The Justice Department had urged the Court not to hear the appeals, arguing that there is no conflict on the issue in lower courts. But, it added, if the Court did grant review, it would support the challenge to the Ninth Circuit Court decision barring the dumping of 4.5 million tons of dirt left over from gold-mining operations into a lake near Juneau, Alaska.

The other case the Court accepted is Knowles (Warden) v. Mirzayance (07-1315) — a case that was before the Justices last year.  It involves an appeal by California officials, arguing that the Ninth Circuit Court refused to follow the mandate of the Supreme Court to defer to state court findings in this murder case.  In the case, the defense lawyer advised Alexandre Mirzayance to withdraw an insanity plea — advice that the Circuit Court found violated standards of professional conduct because it was the only realistic defense point.  The Supreme Court’s coming decision either could clarify that point, or it could be limited to a reaction to how the Circuit Court responded to the Justices’ 2007 order requiring a new look at the issue.

The newly granted cases are likely to be heard during the Court’s January sitting. To read the certiorari filings in the cases, click here.

Another case that was likely headed for argument at that time was the Navy’s appeal in Winter (Secretary of Navy) v. Natural Resources Defense Council (07-1239).  But the Navy asked that the argument be moved up to the session that begins Oct. 6 — the first of the new Term — because of complications (including possible mootness) if heard later.  The Court granted that motion, but did not immediately announce how it was rearranging the October calendar.

The Court is now in its summer recess.  As usual, it announced that it would be issuing some orders in pending cases during the recess — on July 28, Aug. 18 and Sept. 5. These orders are usually routine matters, not grants or denials of review of new cases.

Among its orders Friday, the Court took its first actions on cases on gun rights following its Second Amendment decision Thursday: it denied review of an appeal by a firearms manufacturer, Michael J. Kelly, Sr.., who argued that Congress violated the Second Amendment by making it a crime to make, transfer or possess a semi-automatic assault weapon (Kelly v. U.S., 07-776), and it refused to hear an appeal by five Washington, D.C., residents who had wanted to take part in the challenge to the city’s ban on handgun possession (Parker, et al., v. District of Columbia, 07-335).

While the Court did not explain those denials, the law challenged in the Kelly case had lapsed on Sept. 13, 2004, and the “standing” issue in the Parker case lost most of its significance when the Court on Thursday struck down the handgun ban in District of Columbia v. Heller (07-290).

Among the other cases denied Friday was an appeal in a workers’ benefits case that the U.S. Solicitor General, asked by the Court for the government’s views, had recommended granting review. The case was Amschwand v. Spherion Corp. (07-841), asking whether the ERISA law’s grant of a right to pursue an injunction when a benefits plan manager violates a duty under the law includes a right to sue for the dollar amount of the amount of benefits lost.  The Fifth Circuit had barred this type of remedy, and the Solicitor General argued that it was wrong in doing so. The Court did not explain its refusal to hear the case.

A copy of today’s orders list — including grants of certiorari in two cases — is now available here. All available filings in the granted cases are available after the jump.

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Not surprisingly, yesterday’s decision in DC v. Heller (07-290) has generated a lot of interest in both the media and legal blog communities. Below, we’ve linked to a number of the substantive articles and posts currently available.

Nina Totenberg’s coverage on NPR can be accessed here.

Lyle’s broadcast report for WBUR’s Here and Now program is available here.

The Washington Post’s in-depth coverage includes Robert Barnes’ summary of the decision and its implications, as well as this article by Dan Balz and Keith Richburg. Today’s Post also includes a piece on community reaction within the District, as well as this poll indicating that 70% of its readers agree with yesterday’s decision (as of 9:00 am). Monica Hesse offers this recap of the “duel” between yesterday’s majority opinion and dissent authors. Op-Ed columnist Colbert I. King offers this opinion piece, and columnist Marc Fisher provides his take in Raw Fisher.

In the New York Times, Andy Liptak provides this article, which includes a graphic representation of current gun laws across the nation. Linda Greenhouse’s article on the historic decision is here. The NYT also has this piece by Anahad O’Connor on the outrage expressed by the gun-control supporters.

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The following post was written by Richard Samp of the Washington Legal Foundation, who filed an amicus brief in in support of Exxon Shipping.

By recusing himself from this case, Justice Alito may have done a tremendous favor to appellate lawyers seeking guidance regarding limitations on punitive damages awards.  Had he participated and had he (as many believe likely) provided a fifth vote for the view that maritime law bars punitive awards in cases of this sort, the Court’s opinion would have been limited to a discussion of an issue that is of interest only to the maritime industry.  Instead, we have an opinion that lawyers on both sides of the punitive damages issue will be citing for many years to come.  This comment focuses on the practical implications of today’s decision rather than its actual holding.

First, there is little reason to believe that Justice Souter’s discussion of 1:1 ratios (of punitive damages to compensatory damages) is limited to maritime law cases.  Rather, his opinion suggests that the ratio applies in any federal-question case in which Congress has not spoken to the issue of appropriate limits on punitive damages.  And it turns out that Congress has only rarely addressed that issue (e.g., the 2:1 ratio mandated in antitrust and RICO cases; the $300,000 cap on punitive damages in Title VII cases).  Unless there is evidence in the statutory text or history suggesting that Congress did not wish courts to impose limits on punitive damages awardable under a federal statute, today’s decision is a mandate to federal judges to engage in similar federal common law rulemaking.  Certainly, there is no such evidence in 42 USC 1983 (or in Bivens suits alleging a violation of constitutional rights under federal law), so cases raising federal constitutional claims are likely to be affected dramatically by today’s decision.

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The Court has recessed for the summer. At 10 a.m., the Clerk will release final orders in pending cases. We will provide coverage of any developments.