The Supreme Court will hear oral argument on Caperton, et al., v. A.T. Massey Coal Co., et al. (08-322) at 10 a.m. on Tuesday.  Theodore B. Olson of Gibson, Dunn & Crutcher in Washington will argue for Hugh Caperton and the Harman group of companies.  Andrew L. Frey of Mayer Brown in New York will argue for the Massey company.

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Amid reports of a recent “explosion” in campaign spending on state elections for judges, the Supreme Court explores how far the Constitution goes to set controls on judges who have taken hefty donations. The issue of when due process requires disqualification of such a judge is at the heart of the case of Caperton, et al., v. A.T. Massey Coal Co., et al.

Background

Across the nation, three-fourths of the states — 38 — choose judges for their state courts by popular election, either in the first round, or in a retention election for a sitting judge.  The Supreme Court is not now second-guessing that approach, although a rising chorus of reform advocacy groups questions whether the system has gone awry because of the potential influence of donations to cover the ever-climbing cost of judicial elections.  The particular object of concern are contributions from lawyers and parties who have cases before state courts.  Contributions from such sources, former Justice Sandra Day O’Connor has written, “threaten the integrity of judicial selection and compromise the public perception of judicial decisions.”

Figures supplied to the Court by reform groups seek to tell the story. Judicial elections began growing more expensive in the late 1990s, and, since then, the total money raised has ballooned, as illustrated by data that funds raised by candidates for seats on states supreme courts in the years 2000-2007 drawfed the total for the entire decade of the 1990s — $168 million compared to $86 million.  And further data show that, most of the time, the judicial candidate who raises the most money wins the election.

The Constitution does not put any ceilings on the money that anyone can give to a state judicial candidate. But, for a long time, the Constitution’s promise of ”due process” has been understood to require a judge to step aside from a case in which his or her impartiality is open to significant question.  The Court, however, has never spelled out exactly when a refusal to “recuse” violates due process.

Some constitutional debate continues to go on over whether disqualification is required when there is an “appearance” of bias, or is required only when there is proof of “actual” bias.  It does appear that, at least when a judge has a direct personal or financial stake in the outcome of a case, the Constitution is clear: he or she cannot sit on that case — even if there is no proof that the judge would actually vote to protect that interest. That is a mandate that traces back to English common law.

But the more difficult issue is how to judge whether a particular influence will cause a judge to be biased, or at least to appear to be biased, thus forcing disqualification.  In modern terms, legislatures have been passing laws to deal with perceptions, or demonstrations, of bias.   The question now, then, is whether the Constitution, too, imposes some variation of a bias standard for judicial disqualification.

The lower courts, it has been argued, are split on the bias question.  A number of those courts have held that due process prohibits both actual bias and the appearance of bias on the part of a judge.  But others have said that disqualification is required only when there is actual bias.  And still others have held that due process does not invariably required recusal of a judge for an appearance of bias; those courts suggest that circumstances may show “a presumption” or “a reasonable probability” of bias.

That three-way division, apparently, is what has now persuaded the Supreme Court to step in to examine just what due process does require. In the new case, a justice of the West Virginia Supreme Court of Appeals (now its chief justice) refused to step aside when challenged over campaign donations; he  concluded there was no proof of “actual” bias.  That, he argued, was the constitutional due process standard.

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The Obama Administration asked the Supreme Court on Friday afternoon to end the case of an individual captured and held in the U.S. as a terrorism suspect, but did not tell the Court that it is abandoning the claim that it has power to do so.  Instead, it argued that the planned release of Ali Saleh Kahlah Al-Marri from a military jail, for criminal prosecution in civilian court, means there is no longer any live controversy over his detention.

Simultaneously, the Solicitor General’s office asked the Court to approve Al-Marri’s release into civilian custody, even though it argued that the Court’s permission to do that was not necessary.  These developments followed the public release Friday morning of a two-count criminal indictment of Al-Marri (see this post).

Indicating that it probably will act swiftly on the two requests, the Court asked Al-Marri’s lawyers to respond to both by the end of the day on Tuesday, with any government reply due on Wednesday.  That could mean the Justices could respond as soon as it has those filings, or else  consider it in their private Conference next Friday.

The motion to end the case is here, and the application to approve Al-Marri’s transfer (08A755) is here.

The Administration’s motion suggested two alternatives to the Court: dismiss the case for lack of jurisdiction because the specific legal dispute will end with Al-Marri’s release by the military — a move that apparently would leave the detention power unaltered because it would leave intact a Fourth Circuit Court decision upholding that authority — or vacate the Fourth Circuit’s decision, essentially taking it off the books, and end the case as “moot” or as a matter of “equitable discretion” (a phrase not further explained).

Al-Marri’s lawyers had noted earlier in the day that, despite Al-Marri’s indictment, the Administration had not yet renounced “the asserted authority to imprison legal residents and U.S. citizens without a charge.”  In the government’s new filings in the Court, there was no indication that it would do so.

In response to the filings, Al-Marri’s lead lawyer, Jonathan Hafetz of the American Civil Liberties Union, commented: “The administration has failed to renounce the government’s power to designate legal residents and American citizens as enemy combatants and detain them indefinitely without charge. Its response underscores why the Supreme Court must make clear that the government does not have this power under our laws and Constitution.”

The new document made two points: first, it said that the government had made “a change in policy as to” Al-Marri, and thus there is only a “hypothetical contigency” that he might in the future be detained again by the military, and, second, it said that “different circumstances” would exist in the future and contended that “there is no guarantee that future detention would be implemented in the same manner or based on the same authority.”

The second point did seem to imply that detention policy could change at some point, and that appeared to be related to a statement later in the document saying that there can be no certainty that the issues over detention policy raised in Al-Marri’s case “will arise again in the future,” noting that the President “has ordered a comprehensive review of all military detention policies worldwide.”

The government cautioned the Court against deciding the presidential power questions, calling them “extremely sensitive constitutional issues.”  It added: “Caution is particularly appropriate here because upon [Al-Marri's] release and transfer, there will be no remaining individuals detained as enemy combatants on United States soil.”  Thus, it went on, a ruling in Al-Marri’s case would not provide “guidance to any other” individuals in Al-Marri’s situation.

“Adjudication of the important and sensitive questions surrounding military detention should be addressed only if necessary, in the context of a live case involving concrete circumstances,” the motion concluded.

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Erica Goldberg discusses Tuesday’s argument in Carlsbad Technology.

The Court engaged in a lively discussion during the February 24 oral argument in Carlsbad Technology, Inc. v. HIF Bio, Inc., as they debated how to resolve the jurisdictional dilemma presented. The Justices were perplexed by the possibility that a proper textual reading of the remand statute, 28 U.S.C. § 1447, prohibits appellate review of critical decisions like remands based on lack of subject-matter jurisdiction, but could nonetheless allow review of discretionary remands based on refusal to exercise supplemental jurisdiction.

This potential anomaly arose after the Court’s decision in Thermtron Products, Inc. v. Hermansdorfer, limited the applicability of § 1447(d), which prohibits appellate review of remand orders, to the types of remands enumerated in § 1447(c). Because § 1447(c) mentions only defects and lack of subject-matter jurisdiction, the discretionary decision to refuse supplemental jurisdiction would be reviewable unless it is considered a dismissal for lack of subject-matter jurisdiction, as HIF Bio contends.

Justice Ginsburg began the questioning of Carlsbad’s attorney, Glenn Rhodes, by noting “something odd” about Carlsbad’s interpretation of § 1447(c) – namely, that appellate courts cannot review the “fundamental” decision that a complaint lacks subject-matter jurisdiction but can review discretionary refusals to exercise supplemental jurisdiction. “Why would a court of appeals overturn such a [discretionary] decision?” she wondered.

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This edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference on March 6. 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. To access previous editions of Petitions to Watch, visit our archives on SCOTUSwiki.

Docket: 08-586
Title: Jones, et al., v. Harris Associates
Issue: Whether the Seventh Circuit contravened the Investment Company Act in holding that a shareholder’s claim that the fund’s investment adviser charged an excessive fee is not cognizable under Section 36(b), unless the shareholder can show that the adviser misled the fund’s directors who approved the fee.

• Opinion below (7th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Brief amici curiae of AARP and Consumer Federation of America (in support of petitioner)
• Brief amici curiae of Law Professors (in support of petitioner)

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Docket: 08-648
Title: Brewer, Arizona Secretary of State, v. Ralph Nader, et al
Issue: Whether Arizona’s state residence requirement for petition circulators and a pre-primary filing deadline for independent candidates impose severe burdens on First and Fourteenth Amendments rights unjustifiable by a State’s interests in the integrity of the petition process.

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Brief amici curiae States of Montana, Alabama, Alaska, Colorado, Delaware, Florida, Idaho, Michigan, New Hampshire, Ohio, Oklahoma, South Dakota and Wyoming (in support of petitioner)

A federal grand jury in Peoria, Ill., has charged a Qatari national held in the U.S. with terrorism crimes, and the Justice Department said Friday it will ask the Supreme Court to dismiss the prisoner’s pending appeal, now set for a hearing April 27.  The two-page indictment, unsealed Friday, can be found here. It makes two charges against Ali Saleh Kahlah Al-Marri, held for more than five years in a U.S. Navy brig in South Carolina. A Justice Department news release is here.  The American Civil Liberties Union, which represents Al-Marri, issued this press release.

In the pending Supreme Court case, Al-Marri challenges the President’s authority to seize and hold without charges an individual lawfully living in the U.S. (Al-Marri v. Spagone, 08-368). Al-Marri is the only individual being held inside the U.S. as an “enemy combatant,” under a designation by former President Bush.

The Department said the Solicitor General’s office would move, probably later Friday, to have Al-Marri’s petition dismissed in the wake of the indictment. But Jonathan Hafetz, Al-Marri’s lead lawyer, said: “Despite this indictment, the Obama administration has yet to renounce the government’s asserted authority to imprison legal residents and U.S. citizens without charge or gtrial. We will continue to pursue Mr. Al-Marri’s case before the Supreme Court to make sure that no American citizen or lawful resident will ever again be subjected to such treatment.”

Andrew Savage, another of Al-Marri’s lawyers, said that “we are pleased that after more than seven years of detention, Mr. Al-Marri will finally have his day in court.  Mr. Al-Marri is reviewing the charges and will respond in court.”

The two-count indictment, returned Thursday and made public Friday, charged Al-Marri with providing “material support” to the Al-Qaeda terrorist network and with a conspiracy to provide such support.  It said specifically that the type of support he is accused of providing was “personnel.” That was not further explained.  If convicted of both charges, the Justice Department said, Al-Marri could face a maximum sentence of 15 years in prison on each count.

Shortly after President Obama took office last month, he ordered a review of Al-Marri’s case.  After obtaining the indictment, the President ordered the Pentagon to transfer Al-Marri from the Navy brig in Charleston to the Justice Department, for placement in a civilian prison.  The transfer would take place, the Department said, after the Supreme Court acted on the planned government motion to dismiss.  (The President’s transfer order is here.)

Stanford Law School student John Dalton previews one of the cases to be heard by the Court next week.

18 U.S.C. § 924(c)(1)(A)(iii) provides that if an individual possesses a firearm during the commission of a “crime of violence or drug trafficking crime,” and “if the firearm is discharged” then the individual shall “be sentenced to a[n] [additional] term of imprisonment of not less than 10 years.” On March 4, in No. 08-5274, Dean v. United States, the Court will consider whether this sentencing enhancement applies to accidental discharges.

This case arose from petitioner Christopher Dean’s armed robbery of an AmSouth bank in Georgia in 2004. By his own confession, Dean entered the bank with a mask on and a pistol in his right hand. As he was removing the money from the head teller’s station, the gun discharged in his right hand and shot a hole in the teller partition. When the gun discharged, Dean cursed, as if the discharge was accidental. Immediately after the discharge, Dean fled the scene with a little less than $4000.

Dean and his brother-in-law (as co-conspirator) were arrested for the armed robbery. At trial, the jury convicted both men of conspiring to interfere with interstate commerce and aiding and abetting the other in the discharge of a pistol during the robbery in violation of 18 U.S.C. § 924(c)(1)(A)(iii). Dean received 100 months in prison for the armed robbery, along with the additional mandatory minimum of 120 months under 18 U.S.C. § 924(c)(1)(A)(iii).

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The Justices are scheduled to hold a private conference this morning, any grants from which could be announced this afternoon. We will provide coverage of any developments. To view our list of petitions to watch at Friday’s conference, click here.

One question raised by Lyle’s post below – noting news reports that the Administration may shortly charge detainee Ali Saleh Kahlah al-Marri in a civilian court – is whether this move will in fact allow the Administration to avoid taking a position on the merits of al-Marri’s constitutional and other claims in the Supreme Court.  [Disclosure: we filed an amicus brief supporting al-Marri].

Presumably, if charges are filed, the Government will move to dismiss the case as moot.  But it also seems apparent (from his lawyers’ press release) that al-Marri will oppose the dismissal, presumably on the ground that there remains a risk that he will be moved back into military custody (as, after all, happened the last time the Government charged him with a crime).  The dissenting votes from the denial of Padilla’s cert. petition may indicate that at least some Justices will think such arguments are serious. 

Of course, if five Justices agree with the Government’s motion, then the case will be dismissed.  But the big question is whether that will happen before the Government is required to file its brief on the merits on March 23.  There are only two conference days after tomorrow before the Government’s brief on the merits is due – March 6, and March 20.  Given the need to give al-Marri time to respond, it seems most likely that the Court would consider any motion to dismiss at the latter conference, giving the Government a few days to file its brief if the motion were denied. 

But there is a real possibility that the Court would not rule on the motion at the conference.  Instead, the Court could hold the motion over to decide along with the merits (if necessary) after oral argument.  That would force the Government to file a brief on the merits, something it presumably very much wants to avoid.

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  At oral argument yesterday in Hawaii v. Office of Hawaiian Affairs, the petitioner’s counsel was in the enviable position of spending most of his argument debating just how big his victory in the case should be.  Respondent’s counsel, in turn, conceded that to the extent the lower court decided the case on the basis that petitioner claimed it did, then the decision was wrong and should be vacated.

Every now and again, by the time a case has gone through the crucible of Supreme Court merits briefing, it becomes obvious to counsel for the respondent that there is no reasonable chance of successfully defending the decision below, at least on the grounds upon which it was decided (or appeared to be decided).  The Hawaii case was one such instance.  Coincidentally, just before that argument began, the Court issued its decision in another such case, AT&T v. linkLine, No. 07-512.

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The American Civil Liberties Union, citing news stories, reported Thursday that the Justice Department will shortly file terrorism charges and hold a trial in civilian court of a Qatari national, Ali Saleh Kahlah Al-Marri — the only detainee taken prisoner in the U.S. and still being held in this country.  The ACLU, which represents Al-Marri, issued a news release, found here.  A Washington Post story on the development is here. Other news organizations have similar accounts.

The Supreme Court on Dec. 5 agreed to hear Al-Marri’s challenge to the President’s authority to detain an individual inside the U.S. (Al-Marri v. Spagone, 08-368).  His lawyers contend that neither federal law nor the Constitution gives the President that authority.  The Court has scheduled oral argument in the case for April 27.  The Justice Department’s brief is due March 23 — a date the Department sought to allow time for officials to review Al-Marri’s case, as President Obama ordered on Jan. 22.

However, if criminal charges are filed, that could lead the Administration to take Al-Marri out of a Navy brig in Charleston, S.C., and put him in a civilian jail, and thus perhaps putting an end to his attempt to gain his release through a habeas petition.  The ACLU, in its announcement Thursday, indicated that it would try to persuade the Justices to go ahead and decide the case.

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Lawyers for 20 detainees at Guantanamo Bay who have been ordered released complained directly to President Obama on Thursday that the men are still being held without any reliable prospect of freedom, and that at least two of them continue to be mistreated. In the letter, the lawyers urged the President to “immediately restore liberty to these men.”

A federal judge ordered 17 of the prisoners released last October, and a different judge ordered the release of the other three in November or January.  The Pentagon has said that it has not found a place for the 17 who are members of a persecuted Chinese Muslim minority — the Uighurs — who cannot safely be sent home to China.  It has not explained why the other three remain at Guantanamo.

Their lawyers asked the President to order that the 20 be moved to “communal living facilities” at Guantanamo, that they not be mistreated, and that an investigation be made into the claims of mistreatment.

Earlier, lawyers for the 17 Uighurs asked the new Attorney General, Eric Holder, to help secure the men’s release into the U.S., but that overture has not yet produced a result.

In another development on the new Administration’s detention policy, the Pentagon announced that it was suspending the process of reviewing — once a year — the status of each individual held at Guantanamo, to determine whether to release or transfer the individudal, or continue his confineement.

This process was set up in June 2004.  It is being suspended, the Pentagon, in order to avoid duplicating the review of each detainee’s status that President Obama ordered last month.  Attorney General Eric Holder is heading a group doing those new review.  The Pentagon said that, once this new layer of review is completed, it would decide whether to resume the annual reviews by three-member military panels.

The annual review process is separate from the Pentagon’s initial process for deciding whether to hold a detainee: the system of Combatant Status Review Tribunals.  Those tribunals decided whether to designate a prisoner as an “enemy combatant” — the legal status that determines that an individual should be held at Guantanamo as an initial matter.

I

The transcript for Hawaii, et al. v. Office of Hawaiian Affairs, et al. (07-1372) is available here.

The transcript for Flores-Figueroa v. United States (08-108) is available here.

Last week, Howe & Russell, in conjunction with the Stanford Law School Supreme Court Clinic and local counsel, filed a supplemental brief in AT&T v. Hulteen addressing the effect of the Lilly Ledbetter Fair Pay Act. Kevin’s post on our brief is here.

In response, AT&T on Monday filed this opposition to respondents’ motion to file a supplemental brief after argument.

Analysis

Justice John Paul Stevens provided this assessment of the Supreme Court’s new review of the constitutionality of placing religious monuments on government property: “…the effect of today’s decision will be limited.”  In fact, in the 15 weeks between the Court’s hearing on Nov. 12 in Pleasant Grove City v. Summum (07-665) and the final decision Wednesday, one thing remained absolutely unchanged: the real dispute here was not about free speech, but about church-state relations.  But that was not even argued.

At the oral argument, Chief Justice John G. Roberts, Jr., told a lawyer for the small Utah city defending  its policy on a Ten Commandments monument in a city park: “You’re just picking your poison, aren’t you?  I mean, the more you say that the monument is government speech, to get out of the Free Speech Clause, the more it seems to me you’re walking into a trip under the Establishment Clause.”

When the decision emerged, the Court was unanimous, at least in votes cast: government policy on placement of permanent markets in a public park is, constitutionally speaking, a form of government speech so there is no Free Speech Clause issue when a Ten Commandments monument is accepted but a monument to a different religion is excluded.  The First Amendment clause protecting free speech only limits government regulation of private speech, and does not curb what the government can say, the Court said in the main opinion written by Justice Samuel A. Alito, Jr.

There was some quibbling among the Justices on that score, but not one of them voted against the victory the Court handed to Pleasant Grove City, Utah.  But that may well not be a complete victory, and it certainly did not put an end to a constitutional controversy. Three Justices suggested quite plainly that, if the city is perceived as embracing the Christian dogma that is behind the Ten Commandments, the First Amendment’s Establishment Clause may come into play.   But two Justices said there simply won’t be an Establishment Clause problem down the road.  And that debate surely will go on.

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The Court has released the opinion in Pleasant Grove City, UT v. Summum (07-665). The decision below, which held for the religious organization, is reversed and remanded in a 9-0 opinion written by Justice Alito. Four concurring opinions were written by Justices Stevens, Scalia, Breyer and Souter. The opinion is available here.

The Court has also released the opinion in Pacific Bell Telephone Co.,dba AT&T California v. linkLine Communications (07-512). The decision below, which held for linkLine, is reversed and remanded in a 9-0 opinion written by Chief Justice Roberts. Justice Breyer filed an opinion concurring only in the judgment. The opinion is available here.