NOTE TO READERS: This post is another in a series exploring the meaning and scope of prior Supreme Court rulings — here, the June 16, 1969, decision in Powell v. McCormack (395 U.S. 486).

Analysis

Twice in recent days, the Democrats in the U.S. Senate have said, with unqualified confidence, that they have the power to refuse to accept “anyone appointed by [Illinois] Gov. [Rod] Blagojevich” to take the Senate seat vacated by President-elect Barack Obama.  The claim has been widely discussed, with many observers saying, with complete confidence, that the Senate has no such power.  That conclusion appears to rest mainly on one precedent: the Supreme Court’s decision in Powell v. McCormack in 1969.

The Senate’s Democratic leaders have yet to spell out all of the reasons why they disagree, including the full dimensions of the power they claim to bar a Blagojevich nominee — aside from an unexplained reference to “our Constitutional authority under Article I, Section 5.”

But one thing is already very clear: the Senate’s Democratic leadership is drawing a sharp distinction between its power to judge the qualifications of any Senate nominee, and its power to judge the validity of the process by which that nominee was selected.  The Supreme Court decision in the Powell case bears directly on the former, but maybe not — or, at least, not so directly — on the latter.

No one doubts that former Illinois Attorney General Roland W. Burris — Gov. Blagojevich’s choice — has the qualifications that the Constitution demands of a Senator: at least 30 years old (Burris had his 71st birthday last Aug. 3), a citizen of the U.S. for at least nine years (Burris was born in Centralia, Ill., no doubt is a citizen by birth and has never renounced that citizenship), and be a resident of the state he would represent (Burris is a life-long Illinoisan).  Those are the only qualifications specified in Article I, Section 3 of the Constitution.

But the Senate’s leaders say that is not the issue.  In their statement on Tuesday, they said: “This is not about Mr. Burris; it is about the integrity of a governor accused of attempting to sell this United States Senate seat.” (The leadership statement, and a separate statement by President-elect Obama supporting their position, can be read here.)

Read the rest of this entry »

Praising the federal courts for doing their work with only a “tiny share of the federal budget,” Chief Justice John G. Roberts, Jr., protested on Wednesday that Congress has awarded its own members and “every other federal employee” a cost-of-living pay raise this year — but left out the judges.

In his year-end report on the federal judiciary, the Chief Justice said Congress’ inaction on repeated pay raises for judges was a “bad situation” made worse by denying the judges the same treatment provided others working for the federal government.  The failure to act, he said, “vividly illustrates why judges’ salaries have declined in real terms over the past twenty years.”

Just as members of Congress face pressing problems, especially during the economic downturn, judges, too, confront “issues of momentous importance” to those involved in court casses and to the broader community, the report declared.  In fact, Roberts added, legal issues that come before the judges are growing ever more complex.  That only emphasizes the need to attract “the finest legal minds” to the bench.

The Chief Justice conceded that “many are tired of hearing it, and Iknow I am tired of saying it,” but he said he had to renew his plea for pay raises for judges to keep pace with inflation.

Much of the annual report was devoted to details of how the federal courts are saving public funds in a time of budgetary squeezes.

Today we filed this reply brief in No. 08-645, Abbott v. Abbott, which will be on the January 16 conference.  At issue in the case is whether a “ne exeat” right, which requires consent from one parent before the other parent may remove the child from his country of habitual residence, is a “right of custody” for purposes of the Hague Convention governing international child abduction.  In addition to our co-counsel, Adair Dyer, team members included Stanford law students JP Schnapper-Casteras and David Schwartz.  The Permanent Bureau of the Hague Conference on Private International Law – which is responsible for monitoring the implementation of the Convention – filed an amicus brief supporting our petition.  The respondent in the case is represented by Stephen Kinnaird of Paul Hastings; her brief in opposition is available here.  The cert. petition is here.

The second case argued on December 10, 2008, AT&T v. Hulteen, stemmed from a decision out of the Ninth Circuit in favor of Noreen Hulteen and three other women who were denied full service credit for pregnancy leaves taken from AT&T between 1968 and 1976.  When the company calculated their pension benefits decades later, the women and the union who represent them sued under the Pregnancy Discrimination Act (PDA). 

Arguing on behalf of petitioner, Carter Phillips tried to persuade the justices that while the women’s claims were actionable when the credit was originally denied, any claim was now stale.  To require AT&T to credit the women, decades later, for their absences would upset the “competitive seniority” amongst employees.  Justice Ginsburg seemed unconvinced, suggesting that absent a felt application of their loss in seniority, there was “nothing to be done” in the time immediately following the leave.  Mr. Phillips emphasized that both Congress and the Supreme Court’s prior decisions have “consistently recognized” the rights of all members of the plan.  Phillips faced questions from Justices Ginsburg, Breyer, and Souter when he rejected respondents’ merits briefing classification of the benefits plan as facially discriminatory.  Since AT&T immediately changed its plan after the PDA was passed to henceforth credit pregnancy leaves like other temporary disability leaves, he argued that the plan must be in complete compliance and cannot be facially discriminatory.  Read the rest of this entry »

U.S. District Judge Richard J. Leon ruled on Tuesday that two Guantanam Bay detainees — nationals of Yemen and Tunisia — must remain prisoners of the U.S. military, finding that the government has proved that each is an “enemy combatant.”  In the most significant of the two separate rulings, the judge concluded that the government does not have to prove that a detainee uses arms against U.S. forces or against forces of its coalition partners, in order to fit the judge’s definition of an enemy associated with Al Qaeda or Taliban.

The ruling against the Yemeni captive, Moath Hamza Ahmed Al Alwi, can be found here.  The ruling against the Tunisian prisoner, Hisham Sliti, can be found here.

In both cases, Judge Leon appeared to have relied quite heavily on secret evidence provided by the government and discussed by the judge in separate classified versions of his Tuesday rulings. The judge found that the government had proved to him that the two individuals had traveled to Afghanistan to fight with Taliban forces or to carry on activities, including military training, with Al Qaeda associates or Taliban forces.

It was in Al Alwi’s case that Judge Leon made his ruling that the government need not prove that a detainee actually used arms against U.S. or coalition forces in order to be classified as an “enemy combatant” — the designation that determines the government’s continued authority to prolong detention at Guantanamo Bay.

Al Alwi, the judge ruled, had “close ties to Taliban and al Qaeda forces” before the U.S. attacked Afghanistan following the Sept. 11, 2001, terrorist attacks on the U.,S., and continued to serve with a Taliban unit after the U.S. began bombing targets in Afghanistan in October 2001.

The judge specifically declined to rule on government claims that Al Alwi had served as a bodyguard for Al Qaeda leader Usama Bin Laden, or that he had received military training at a camp closely tied to Al Qaeda.  Both of those accusations, the judge said, were based on statements the government obtained from other, unnamed detainees at Guantanamo.  The judge said he need not try to assess the reliability of these statements, because the government’s other evidence against Al Alwi had “considerable weight.”

Judge Leon, who has been moving more rapidly than his District Court colleagues in holding full trials of detainee habeas cases on his calendar, has now ruled on the fate of eight detainees.  He has ordered the release of five, and approved the continued detention of three.  Lawyers for an Algerian native against whom Leon had ruled in November — Belkacem Bensayah — on Tuesday formally notified the judge that they are appealing his decision to the D.C. Circuit Court.

Another judge has ordered the release of 13 detainees, but the government no longer contends that they are enemies.  Their fate, however, now awaits a ruling by the D.C. Circuit Court on an appeal by the government.

Setting the stage for an appeal to the Supreme Court, the Fourth Circuit Court on Monday refused to delay the corruption trial of Rep. William J. Jefferson, a nine-term Democratic member of the House who lost his seat this year.  His lawyers sought a 90-day delay so they could pursue a petition to the Supreme Court that will seek to test a grand jury’s power to examine evidence about a member of Congress’ slegislative activity as the jurors weigh possible criminal charges.

Jefferson has 90 days from Dec. 12 — when an en banc rehearing request was denied by the Circuit Court — to ask the Supreme Court to hear his case.  Federal prosecutors have indicated they are eager to get the trial started, since the indictment against Jefferson came down more than 18 months ago.  Prosecutors argued to the Circuit Court that the congressman “has had a full and fair opportunity” to test in court his claim that his constitutional right not to be questioned elsewhere about legislative activity was violated — a “Speech or Debate Clause” challenge.

If the congressman’s lawyers do not seek and obtain a delay from the Supreme Court, his trial in a federal court in Virginia might start before the Supreme Court could act on his case.

Read the rest of this entry »

No oral arguments are scheduled and no non-capital orders are expected to be issued from the Court this week. The Justices will next convene for their private conference on January 9. Oral arguments will resume January 12.

Merits briefs are due for the petitioners on Monday in Caperton v. A.T. Massey Coal Company, Inc., et al. (08-22), Abuelhawa v. United States (08-192) and Dean v. United States (08-5274). No merits briefs are due for respondents this week.

NOTE: The following is an update of a post published on Dec. 17.  The earlier post, found here, anticipated that events would develop more slowly than has actually occurred.  Since the order discussed below was issued, the former detainees’ counsel has sought a 20-day extension of the briefing schedule, but that has been opposed by the Justice Department.

——————-

The D.C. Circuit Court, moving with unexpected speed, has ordered new briefs to be filed in a major test case on the constitutional rights of detainees at Gautanamo Bay, Cuba.  The Circuit panel is following up on action taken by the Supreme Court in the case of Rasul, et al., v. Myers, et al. (Supreme Court docket 08-235, Circuit docket 06-5209). The schedule the three-judge panel set would have the new round of briefing completed just before the new Obama Administration takes office. That would mean the Bush Administration would have the last word on the government’s legal position — unless, of course, it chooses to consult with the transition team for President-elect Obama.

The Rasul case provides a fundamental test of whether the prisoners at Guantanamo have any constitutional or statutory rights other than the right to contest their continued detention — the only right they explicitly won in the Supreme Court’s Boumediene v. Bush decision last June.

On Dec. 15, the Supreme Court, citing its Boumediene ruling, issued an order requiring the Circuit Court to reconsider its earlier ruling in the Rasul case rejecting all of the claims of four Britons that they were tortured and suffered religious discrimination when they were being held at Guantanamo Bay.  The Supreme Court has not yet put that order formally into effect, but it did notify the Circuit Court by letter the next day of the action.

Six days later, without waiting for the formal mandate of the Justices to reach it, and without waiting for lawyers involved to make any move, the Circuit Court panel acting on its own motion issued a call for new briefs.  The order can be found here.  The Justice Department and the Britons’ lawyers are to file initial briefs simultaneously by Jan. 6, and reply briefs ten days later — thus completing the briefing by Jan. 16, four days before inauguration day for Barack Obama.

Because the Supreme Court in Boumediene explicitly noted that it was not ruling on any “claims of unlawful conditions of treatment or confinement,” the Circuit Court presumably is not bound to change its earlier ruling.   In fact, the phrasing of the panel’s briefing order made it appear that it might well feel bound to rule just as it had before.

Read the rest of this entry »

This edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference on January 9. As always, the list contains the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted. (Thanks to Kristina Moore for assistance in collecting the filings for the list.) To access previous editions of Petitions to Watch, visit our archives on SCOTUSwiki.

Issues on our current list include the extent of Iraq’s sovereign immunity in federal court, allegations of copyright infringement stemming from on-demand television services, and the constitutionality of the Child Online Protection Act and Section 5 of the Voting Rights Act. For the full list of petitions, continue reading after the jump.

Read the rest of this entry »

No oral arguments are scheduled and no non-capital orders are expected to be issued from the Court this week. The Justices will next convene for their private conference on January 9. Oral arguments will resume January 12.

Merits briefs for the petitioner are due Monday in Arthur Andersen LLP, et al. v. Carlisle, et al. (08-146) and Wednesday in District Attorney’s Office for the Third Judicial District, et al. v. Osborne (08-6). Merits briefs for the respondent are due Monday in Boyle v. United States (07-1309). (Links above direct to case pages on SCOTUSwiki.)

The DePaul Law Review just published the results of an empirical study about the influence of Supreme Court clerks conducted by Todd Peppers and Chris Zorn, see here.  The results of this paper were extensively discussed in a recent article by the New York Times Supreme Court reporter, Adam Liptak, see here.  You may recall that Todd Peppers, a political scientist at Roanoke College, previously published an excellent book about the history of Supreme Court clerks entitled “Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk,” see here, which I reviewed in the course of releasing my own results of a study of the influence of law clerks on the certiorari process, see here.  The bottom line of the Peppers and Zorn paper is that the ideology of law clerks exert an additional influence on the Justices’ decisions on the merits beyond the selection effects created by Justices selecting like-minded law clerks.  The Peppers and Zorn paper is well worth a read.

This month’s issue of the Virginia Law Review contains an article by Amanda Frost entitled “Overvaluing Uniformity,” which analyzes the question of whether federal courts overvalue uniformity, see here.  Of particular interest to SCOTUSblog readers, Professor Frost spends quite a bit of time on pages 1631-1639 of the article analyzing the Supreme Court’s substantial emphasis on uniformity in setting its agenda through the certiorari process.  On an even more fundamental level, Frost dedicates considerable attention to the theoretical justifications for emphasizing uniformity, ultimately concluding that the uniformity rationale is not nearly as compelling as some of the other reasons underlying federal court review, such as ensuring the supremacy of federal law and the availability of a neutral forum for litigants.

No oral arguments are scheduled and no non-capital orders are expected to be issued from the Court today. The Justices will next convene for their private conference on January 9. Oral arguments will resume January 12.

UPDATE Friday morning

The transcript of the news briefing Thursday has now been made available by the Pentagon on its website, and can be found here.  The briefing deals with other topics, too, but the discussion of the Guantanamo closing issue begins about three-fourths of the way into the transcript, with the comment by Mr. Morrell: “Somebody, I think, asked me sort of what the status was within this building in terms of…contingency planning for the closure of Gitmo.” The transcript itself is copyrighted by a private entity.

———————

In a move with a potentially major impact on the federal courts, the Pentagon announced Thursday that Defense Secretary Robert Gates — who will continue to hold that post in the new Obama Administration — has ordered staff aides to draw up a plan for closing the military detention facility at Guantanamo Bay, Cuba. 

That facility is at the center of ongoing disputes at all levels of the federal courts over the Bush Administration’s detention policy.  Closure of the prison at Guantanamo could mean wholesale changes in the law as it applies to detainees there.  It could lead to new legislation on the issue.

The new plan was announced by the Pentagon’s press secretary, Geoff Morrell, at a press conference.  The transcript is not yet available, but extensive quotations from Morrell are included in this report by the Voice of America.

Morrell was quoted as saying: “Fundamentally, the motivation for the secretary in this respect is not just the fact that he believes closure is the right thing, but that the president-elect has made it perfectly clear throughout the course of the campaign that he wishes to address this issue early on in his administration.  And so the secretary wants to be prepared to assist him in trying to figure out a solution to this thorny problem.”

No oral arguments are scheduled and no non-capital orders are expected to be issued from the Court today. The Justices will next convene for their private conference on January 9. Oral arguments will resume January 12.

Analysis

Taking on a task newly assigned to it by the Supreme Court, the D.C. Circuit Court in the next few weeks will be faced with answering a constitutional question of historic dimensions: what part of the Constitution extends to Guantanamo Bay, and to the foreign nationals held prisoner there?  This is a crucial test of what the Supreme Court meant in its June 12 ruling in Boumediene v. Bush.

Here is how that inquiry is likely to proceed:  on about Jan. 9 (unless the Court shortens the time), the Justices will formally put into effect the order they issued on Monday to the Circuit Court to look again at the Boumediene ruling.  The specific task will be to apply that ruling to the claims of four Britons that they were tortured and suffered religious discrimination at Guantanamo when they were there.

The first step by the Circuit Court is likely to be a call for new written briefs on that issue, on a timetable that may run at least into February.  The Circuit Court may then hold a hearing on it, before beginning deliberating on a decision.

This timetable has a special significance because it means that the new review will take place after Barack Obama has become President, and it will be his Justice Department that will file the government’s views in the case.  Whether the new administration will abandon the Bush Administration restrictive view on the rights of Guatanamo detainees is ucnertain at this point, but it seems a fair prospect.

The Britons lost their case in the D.C. Circuit last Jan. 11,  They appealed that rulng to the Supreme Court (Rasul, et al., v. Myers, et al., 08-235).  They asked the Supreme Court to take on the case itself, and apply its Boumediene decision to it.  As an alternative, they suggested that the Justices return the case to the Circuit Court for another look under Boumediene. The Justices took the second option.

Read the rest of this entry »