Terri Peretti (Santa Clara University) and Alan Rozzi (Santa Clara University) have posted “Modern Departures from the U.S. Supreme Court: Party, Pensions, or Power” on SSRN, see here.  Consistent with the majority of empirical studies to date, Peretti and Rozzi find that modern departures from the Court do not show a tendency for Justices to strategically retire in order to ensure an ideologically-desirable successor.  In other words, the model does not show that Justices consider the partisan affiliation of the President or the Senate majority in making retirement decisions.  Instead, among other things, the Justices are predictably “influenced in their retirement decisions by their sense of importance and utility on the Court, a critical component of the self-esteem, prestige, and professional satisfaction they naturally seek to safeguard and enhance.”  This is a really interesting study.

Matthew L.M. Fletcher (Michigan State University College of Law) has posted “Factbound and Splitless: Certiorari and Indian Law” on SSRN, see here.  This article engages in an empirical study of 162 certiorari petitions that were filed in Indian Law cases between 1986 and 1994.  To my knowledge, this is the first attempt to systematically analyze certiorari petitions in tribal cases.  Professor Fletcher concludes that petitions brought by tribes during the period studied were often denied by the Court as factbound and splitless, while state and local governments received much more favorable treatment at the certiorari stage in tribal cases.  Although I must confess that I do not agree with some of the conclusions reached in this paper, Fletcher’s article is thought-provoking and interesting.

As Lyle notes below, today we filed a cert petition in the case of the “Cuban Five.”  We did the petition together with our Winter Term Clinic at Harvard Law School.  The team was Douglas Brayley, Dalie Jimenez, Mike McGinley, and Sarah Miller.  At Akin, Won Shin and Chris Egleson worked with me.

A high-profile U.S. criminal prosecution of intelligence agents of the Cuban government, at a trial in the midst of the large community of Cuban-Americans in Miami, reached the Supreme Court on Friday as the center of a broad new test of the right to a fair trial.  The fate of the so-called “Cuban 5″ has drawn widespread interest — and  considerable  protest – around the globe since the trial of the case opened in Miami nearly eight years ago.  (The petition to review Eleventh Circuit Court rulings in the case is available here.  The appendix to the petition is available here.  The most recent Circuit Court decision at issue is here.)

The Constitution’s Sixth Amendment guarantees a fair trial by an impartial jury.  The new case of Campa, et al., v. U.S., asks the Court to clarify the standard for judging when that right has been violated — an issue the Justices have not ruled upon since 1984 (in Patton v. Yount).

Directly at issue is the constitutionality of the standard the Eleventh Circuit uses to weigh pleas to change the site of a trial because of strong community sentiment — a trial will not be moved, that Circuit has held, unless a fair trial is “virtually impossible” in the place where it is scheduled to go forward.

The petition by the “Cuban Five” — two U.S. citizens, and three others, all of whom were living in Miami when arrested on federal charges in 1998 — argues that the Eleventh Circuit’s standard is the minority view among federal and state courts, and that the majority among those courts apply a more easily-met gauge: whether it is “reasonably likely” that a fair trial can be held.

The petition also challenges the Eleventh Circuit view that, in judging whether publicity about a case threatens to undermine a trial’s fairness, a court may look only at evidence of community attitudes on the guilt of those on trial, and thus cannot consider the rampant and vociferous anti-Castro sentiment prevailed in Miami. The latter evidence, the Circuit Court said, was legally irrelevant.

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Stanford student Scott Noveck discusses oral argument in Kansas v. Ventris.  Scott’s earlier discussion of the case is available here, on SCOTUSwiki.

Kansas Solicitor General Stephen R. McAllister led off with a brief oral argument that saw only sparse questioning from the justices.  McAllister began with two  main points.  First, he argued that any voluntary statement by the defendant should be admissible for impeachment in order to prevent the defendant from engaging in perjury, even if the statement was made in the absence of counsel.  Second, McAllister asserted that statements obtained in violation of the Sixth Amendment right to counsel should be treated identically to evidence obtained in violation of similar provisions in the Fourth and Fifth Amendments, which the Court has permitted the prosecution to use for impeachment but not for its case in chief.

McAllister faced an initial question from Justice Scalia concerning the question of when exactly the Sixth Amendment violation occurs.  Does the violation arise as soon as the police solicit the uncounseled statement, or not until that statement is introduced at trial?  McAllister indicated that this is a question that the Court has not previously answered, but that it is “unnecessary” to address that issue to resolve this case.  He also engaged in a brief exchange with Justice Ginsburg over whether the police could have a jailhouse snitch “affirmatively elicit” statements from the defendant, or if the police may only listen for information without actively soliciting it.  McAllister responded that the police would not be allowed to affirmatively elicit this information.  McAllister received no questions from the other justices.

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Update Friday p.m.  The case has now been docketed as 08-964.  Unless the time for a response is extended, it is due on March 2.

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Not since 1981 has the Supreme Court undertaken to spell out the kinds of inventions that are eligible for patent rights — the exclusive rights to produce or use an invented device or process, or to license it to others for a royalty fee.  Much has changed since then in the world of commerce, not least the digital revolution.  On Wednesday, the Court was asked to bring the law up to date — an effort that, it is clear, could be highly controversial, depending upon what path patent law modernization might take.

The new case is Bilski, et al., v. Doll (not yet assigned a docket number) — a case that has generated hot and even worldwide controversy since two inventors in 1997 filed an application for a patent on a new method of conducting business.  In much-simplified form, the method devised by Bernard L. Bilski and Rand A. Warsaw provides ways to hedge against the business risks that come with the inevitable rise and fall of prices for commodities.  (The petition filed Wednesday is available in a link contained within this press release.  The link includes the lower court decision at issue; it is a large file.)

On the one side of this controversy in its largest sense are those — like Bilski and Warsaw themselves — who argue that patents must be available to encourage innovation in devising new ways to conduct business in the global information-based economy, including encouragement for new ways of digitizing business methods. 

On the other side are consumer advocacy groups and free-market devotees who worry that patent monopolies could tie up methods of creative thought processes, including teaching, judging, creative writing, making medical judgments, or picking juries (some current, real examples of claims).

There is also the possibility, or so it is argued, that the validity of thousands of existing patents may now be in question under a new test of patent eligibility that is at the center of the new case.  That is a test devised by the Federal Circuit Court of Appeals, in a 9-3 en banc decision last October rejecting patents on all of the Bilski-Warsaw claims.

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 UPDATE Thursday p.m.   President Obama signed the legislation into law on Thursday.  A White House statement about the signing is here.  During the ceremony, the President said that Lilly Ledbetter “lost more than $200,000 in salary, and even more in pension and Social Security benefits — losses that she still feels today.”  Ms Ledbetter also spoke, praising the new law even while noting that “I will never see a cent from my case.”

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Rewriting a law to overcome a narrowing by the Supreme Court, Congress on Wednesday finished passage of a bill that will make it illegal each time an employer writes a paycheck that gives some workers less than others, because of race, sex, disability, religion or national origin.  The so-called “Lilly Ledbetter Fair Pay Act of 2009″ has been assured of approval by President Obama, and, when signed into law, will apply to bias claims that were in court as of May 28, 2007, or after that date.  The text of the new law, Senate bill 181, in final form, can be found here.

The bill is a direct response to the Supreme Court’s 5-4 decision on May 29, 2007, in Ledbetter v. Goodyear Tire & Rubber Co. (docket 05-1074).  The Court’s ruling can be found here.

In that decision, the Court interpreted Title VII of the Civil Rights Act of 1964 to mean that a violation of that law through biased pay scales occurs only when the pay policy is instituted, and thus there is no new violation each time a paycheck is issued to implement that policy.  That significantly shortemed the time when a worker could bring a Title VII bias claim, and could mean that, if a worker did not learn of the discrimination until some time later, beyond the filing deadlines under the law, the claim would have to fail.

That is, theCourt said, if a biased pay scale goes unchallenged within 180 days, “current effects alone cannot breathe life” into a claim filed beyond that period, even if the worker’s discovery of the differential is belated.

The new law, because it would apply to cases still pending that were filed the day before the Court’s ruling, or thereafter, it has the specific effect of overturning the Ledbetter decision.  It cannot alter any case that has been finally decided, however. Congress had the authority to overturn the Ledbetter ruling because that was based only on the Court’s reading of a statute, and not a constitutional provision.

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Today Howe & Russell, in conjunction with our winter term Harvard Supreme Court Litigation Clinic, is filing this amicus brief on behalf of Constitutional Law Scholars in Al-Marri v. Spagone, No. 08-368. 

The case concerns the President’s authority to detain individuals lawfully within the United States without trial on suspicion of conspiracy to engage in terrorism. 

The brief — filed on behalf of Professors Bruce Ackerman, Erwin Chemerinsky, Richard A. Epstein, Richard H. Fallon, Pamela S. Karlan, Geoffrey R. Stone, Kathleen M. Sullivan, and Laurence H. Tribe — argues that the President lacks the authority to detain such individuals as enemy combatants without congressional authorization and that before confronting the serious constitutional questions surrounding the extension of the enemy combatant exception to the “war on terror,” the Court should require a clear statement from Congress.  Doing so, the brief asserts, not only enforces a constitutional presumption in favor of liberty and against executive detention outside the criminal justice process, but also encourages a useful interbranch dialogue over whether, and how, traditional principles should be modified in light of the new circumstances arising from the modern threat of terrorism.

The brief was written with Harvard Law students David Kessler, Logan Steiner, and Elisabeth Theodore.

Stanford student JP Schnapper-Casteras discusses oral argument in Boyle v. US (No. 07-1309).  JP’s earlier work on the case is available on SCOTUSwiki, here.

On Wednesday, January 14, the Supreme Court considered whether an enterprise requires the existence of an ascertainable structure under the Racketeer Influenced and Corrupt Organizations Act (RICO).

Arguing for the petitioner, Marc Fernich began by stating that juries must be instructed that “enterprise” requires a structure separate from the commission of the predicate acts to properly separate elements of a RICO offense, consider each distinctly, and give the term “enterprise” independent meaning. Almost immediately, Justice Ginsburg asked whether Boyle was arguing that the jury instruction was erroneous or instead that prosecutors lacked sufficient evidence to go to the jury in the first place. Mr. Fernich responded that his focus was on the jury instruction, and that he made and preserved an objection on that issue. Justice Alito inquired as to the specific location of the faulty instruction, and Mr. Fernich reiterated his broad objection to the district court’s failure to require the jury to find an entity with a structure separate and apart from the pattern of racketeering.

Justice Scalia asked if a hypothetical group of bank robbers with various roles would constitute an enterprise under petitioner’s definition. Mr. Fernich answered that it would not because there was no ongoing decisional apparatus or continuing directional mechanism. Chief Justice Roberts later asked whether this answer would change if Justice Scalia’s hypothetical group committed more than one crime. Mr. Fernich answered that it would still not, although a properly instructed jury might still find structure on those facts.

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Stanford student Daniel Matro discusses last Wednesday’s oral argument in Corley v. US (07-10441).

On Wednesday, the Court debated the fate of the McNabb-Mallory rule in light of Congress’s 1968 enactment of 18 U.S.C. § 3501 and the Court’s Miranda jurisprudence.  The Court grappled, as the briefs did, with how to read § 3501(a) and § 3501(c) together: the former seems to make voluntariness the sole non-constitutional criterion for admissibility of confessions in federal prosecutions, while the latter arguably suggests that even voluntary confessions might be excluded if made more than six hours after arrest and the delay was unreasonable.

Assistant Federal Defender David McColgin, arguing for petitioner Corley, sought to convince the Court that § 3501(c) carves out a six-hour safe harbor from the existing McNabb-Mallory rule and leaves the rule otherwise intact.  Congress, he argued, “structured the statute on the foundation of McNabb-Mallory,” and therefore the “time limitation” provision in § 3501(c) must be read as a signal of Congress’s intent to limit, not eliminate the rule.  Justice Alito pointed out that there is a difference in saying that § 3501(c) codified the supervisory rule adopted by the Court in McNabb-Mallory and saying that it created an exception to this rule to the extent that the rule remains in place.  Justice Kennedy completed the thought, suggesting the possibility that § 3501(c) creates a six-hour safe harbor, but beyond that safe harbor leaves the Court “free to reexamine its supervisory rule in light of what Congress has provided in (a) and (b) of the statute.”  It is “a little bit odd,” he said, to think that Congress would build a statute around a supervisory rule while taking away the Court’s authority to reconsider the supervisory rule.

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No oral arguments are scheduled and no non-capital orders are expected to be issued from the Court today. The Court is in a four-week recess. Oral arguments resume on February 23.

Analysis

The Supreme Court settled two issues of workers’ benefits law on Monday, giving mostly clear directions to employee plan managers on how they are to deal with the consequences of divorce of a worker.  In general, the Court said, an administrator must simply ”look at the plan documents and records conforming to them” to find out who is to be paid the benefits; there is no need, it added, to go to court for the answer.

Along the way toward that ruling, the Court made these two rulings, both resolving conflicts that had built up in lower courts over spousal rights once divorce has occurred: first, the Court made clear that a former spouse can give up the right to benefits by agreeing to do so as part of a divorce decree; but, second, the ultimate question of whether the ex-spouse was entitled to the benefits is to be decided by the specific terms of the plan — in short, what the documents say.

The Court, however, did leave open for the future a related question: if an ex-spouse is handed the benefits by a plan manager, might they still have to be surrendered, once the payout was completed?  A footnote indicated that the Court on Monday was only resolving how federal benefit law applied to the initial distribution of plan payments, not their subsequent fate.

The case of Kennedy v. Plan Administrator for DuPont Savings and Investment Plan (07-636) was another in the Court’s ongoing attempts to sort out the sometimes vexing language of the Employee Retirement Income Security Act.  Although that law has been in effect for 34 years, not a Term of the Court seems to go by without a new test of what it actually means.

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Amy Howe discusses today’s opinion in No. 07-1059, United States v. Eurodif, S.A. et al, together with No. 07-1078, USEC Inc. et al. v. Eurodif S.A. et al. [Note: As an associate at Steptoe & Johnson from 1998-2000, Amy represented USEC in several proceedings but was not involved in the federal court proceedings in this case.]

For eight years, the antidumping proceedings against Eurodif, a French uranium enricher, revolved largely around a single question:  whether SWU contracts – whereby a domestic buyer provides Eurodif with cash and unenriched uranium in exchange for receiving a specified quantity of low enriched uranium – are sales of goods subject to the antidumping laws or, alternatively, sales of services that are exempt from the antidumping laws.  On Monday, January 26, 2009, the Court disposed of this question with just over six pages of analysis:  because, in the Court’s view, the Department of Commerce had reasonably determined that the SWU contracts were sales of goods, it reversed the Federal Circuit’s decision to the contrary.  In so doing, the Court likely did not break any significant new ground in either administrative law generally or antidumping law specifically; however, as the Court hints in the closing paragraphs of its opinion, a decision in Eurodif’s favor might have had significant effects on Commerce’s ability to enforce antidumping laws.

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Today the Court also issued  a per curiam opinion in Nelson v. US, on sentencing guidelines. The ruling below, which held for the United States, is reversed and remanded. The opinion can be found here. Justice Breyer concurred in the judgment, joined by Justice Alito.

A discussion of the case’s significance can be found at the Sentencing Law and Policy blog here.

Analysis

In opinions so spare that the Supreme Court did not labor long to produce them, the Justices on Monday unanimously expanded the control that police can exercise at the scene of roadside traffic stops, and, again without dissent, pushed up the chain-of-command in prosecutors’ offices the protection of total immunity to liability for decisions made in preparing criminal cases for trial.  The first ruling was an enlargement of “stop and frisk” authority, the second was a reinterpretation of when prosecutors’ supervisors do administrative tasks.

The Court has returned often to the constitutional environment that prevails along the nation’s streets and highways when police officers see a traffic violation in progress, and decide to pull over the offending vehicle.  In a series of rulings, dating back nearly four decades, it has slowly built up a complex array of Fourth Amendment concepts, most of which have added to the officers’ authority “to control the scene,” as the Court put it again on Monday in further expanding that power.

That expansion has been based, in large part, on the Court’s concern that there is a considerable risk that any traffic stop could quickly escalate into “a violent encounter,” because more crime may actually be afoot than merely a violation of traffic laws, and driver or passengers may want to prevent its detection.  That was the rationale the Court used again in deciding Arizona v. Johnson (07-1122).

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Today’s unanimous decision in Crawford v. Metropolitan Gov’t of Nashville and Davidson County, No. 06-1595, is another in a series of recent cases in which the Court has turned away requests to narrowly construe anti-retaliation provisions, generally by large margins. 

The case arose when an employer, investigating rumors of sexual harassment by a supervisor, asked the petitioner, Vicky Crawford, whether she’d witnessed any inappropriate behavior.  In fact she had, and she proceeded to tell the employer about a series of harassing acts by the supervisor toward herself.  The employer did nothing to discipline the supervisor and, instead, fired Crawford and two other employees who also reported being harassed by the supervisor. Crawford filed suit under Title VII’s anti-retaliation provision, which prohibits an employer from terminating a worker because she “has opposed any practice made an unlawful employment practice by this subchapter.”

The question before the Supreme Court was whether simply disclosing an act of harassment in answer to a question constitutes “oppos[ing]” an unlawful practice, or whether – as the court of appeals had held – opposition within the meaning of the provisions requires something more assertive. 

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