Amicus briefs on the reargument of Citizens United v. Federal Election Commission (08-205) were due to be filed today. Electronic copies of these briefs can be found on the FEC’s web site here and on the Citizens United SCOTUSWiki page, organized by supported party.
If you are a recent college graduate looking for substantial involvement with Supreme Court, appellate, and litigation practices, Akin Gump is currently accepting applications for the position of Appellate Practice Coordinator/ Assistant to Tom Goldstein in the Washington, DC office. See this job description for details about the position’s qualifications and responsibilities and how to apply.
We’ll take applications through next week, ending Friday, August 7. Hiring decisions will be made immediately and the job will begin immediately thereafter.
In addition to assisting Tom and the Akin Gump litigation practice, you’ll work closely with our SCOTUSBlog team, including veteran reporter Lyle Denniston, who has been covering the Supreme Court since 1958.
Please do not hesitate to contact Brian Sagona (whose position you’ll be taking) or me with any questions—our e-mails are linked on the sidebar.
On Thursday, the Court issued an order in Kucana v. Holder (08-911) inviting Amanda Leiter, a professor at Catholic University’s Columbus School of Law and former clerk to Justice John Paul Stevens, to argue in support of the judgment below. The Solicitor General’s respondent’s brief agreed with the petitioner that the Seventh Circuit’s holding in the immigration case was wrongly decided. Tony Mauro at The Blog of Legal Times has a post explaining the Court’s order and the government’s brief here. Filings in the case, including the three amicus briefs for the petitioner, can be found on SCOTUSWiki.
The chance that the Supreme Court might feel a need to resolve the most important question left open by last year’s ruling on gun rights under the Second Amendment may now have diminished. The conflict among lower courts that had made review seem a good deal more likely has now vanished, at least temporarily.
Without a conflict, the Supreme Court may wish to wait for the issue to percolate further in lower courts. The issue also roiled the nomination hearings for Justice-designate Sonia Sotomayor, perhaps raising the sensitivity of the issue to the point that the Court might be reluctant to take it on when the lower courts are not in disagreement on it.
On Wednesday, the Ninth Circuit Court voted to review en banc a three-judge panel decision in April, extending the Second Amendment right to have a gun for personal self-defense so that it would restrict or nullify state, county and city gun control laws. The effect of that order, of course, was to vacate the panel decision. Thus, the disagreement between that panel and the Second and Seventh Circuits no longer exists — at least until the Ninth Circuit, or some other Circuit Court, weighs in on the issue.
The Ninth Circuit will rehear the issue during the week of Sept. 21, before an 11-judge en banc Court. It is by no means certain that the majority will take the same view as the three-judge panel had in April. At the same time, the vote to reconsider the issue does not necessarily mean that the full Court will rule the other way; it does signal, though, that members of the Court deem the issue sufficiently important to have it tested before a larger court.
In a rare move, the Fifth Circuit Court on Thursday sent to the Supreme Court, with a plea for an answer, a legal question on the time allowed for federal prosecution of an old kidnapping case. The answer, the Circuit Court said, could shut down federal prosecutions of perhaps two dozen old “cold cases” involving civil rights violations.
Because the Circuit Court, sitting en banc, had divided 9-9 on the issue, it could not itself give a definitive answer. Thus, the full Circuit Court, by a 12-6 vote, opted to “certify” the question to the Supreme Court directly — a procedure that is allowed by federal law and Supreme Court Rules, but seldom is used.
The question will go to the Court (with no obligation to respond) in a highly visible civil rights case. It involves a reputed Ku Klux Klansman, James Ford Seale, who was convicted of kidnapping two black teenagers and dumping them — perhaps still alive — into the Mississippi River. The two 19-year-olds, Charles Eddie Moore and Henry Hezekiah Doe, were drowned. Seale, now 73, is serving three life sentences for the crime.
The question submitted to the Justices is one on definition of a statute of limitations. It asks whether, for a kidnapping that occurred in 1964, time ran out for prosecution five years later, or whether there was no time limit at all, so the actual prosecution was not too late even though it did not begin until 2007, 43 years after the crime.
(Howard Bashman of How Appealing blog alerted us to this unusual plea by the Circuit Court, and provided this link to the Circuit order in Seale v. U.S., Circuit docket 07-60732).
The Supreme Court, under its Rule 19, does not have to answer questions submitted to it in this way. The procedure is to put the question before the Court for a preliminary review of whether to call for briefs or argument, or to dismiss it without an answer. The Court’s Rule then goes on to spell out what happens if briefing is ordered.
The dissenting judges on the Fifth Circuit, arguing that the issue was not worth either the Circuit Court’s or the Supreme Court’s time, noted that the Supreme Court had responded to a certified question of law only four times in more than 60 years. “The likelihood of the Court’s accepting certification, based on past usage, is virtually nil,” the six dissenters argued.
The Supreme Court has not yet received the Circuit Court plea. There is no timetable for acting on it.
UPDATE 3:05 p.m. Judge Huvelle has now issued an order carrying out her ruling from the bench Thursday morning. It can be found here.
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A federal judge, ruling for the first time that the U.S. government must release a detainee who once faced terrorism charges, on Thursday told officials to free a young Guantanamo prisoner by Aug. 21 or 22 so that he can return to his home country, Afghanistan. U.S. District Judge Ellen Segal Huvelle conceded that the Justice Department still had the option of prosecuting Mohammed Jawad for some crime, but nevertheless cautioned that such a case would face serious obstacles.
Meanwhile, Jawad’s lawyers disclosed that they would meet with Justice Department officials on Friday to try to head off a criminal case. “We hope to persuade them to give up on the [criminal] investigation, and conclude that prosecution is not warranted,” Air Force Major David Frakt, one of Jawad’s counsel, told reporters outside the U.S. courthouse after the judge ruled.
Judge Huvelle, during a 32-minute hearing before she ruled, was more conciliatory toward government lawyers than she had been in prior courtroom encounters, and granted officials all of the time they asked to make the arrangements they said were necessary for Jawad’s actual release. She also refused a plea by Jawad’s lawyers that she lay down a series of commands to the military on how it should go about freeing Jawad, including whether to order that he not be shackled or hooded while being flown homeward. The judge said she doubted she had the authority to issue such orders, although she said she would require that Jawad be treated “humanely” during the transfer.
The hearing drew a full audience at the courthouse, apparently in anticipation of a significant confrontation between the judge and government lawyers, who had earlier drawn her wrath over some of their tactics. Because the case also offered a close look at how federal judges are handling detention cases in the face of considerable government resistance, the hearing also had something of a dramatic air to it. Adding to the drama, U.S. District Judge Emmet G. Sullivan, who like Judge Huvelle has engaged in some tense jousting with government lawyers in detainee cases, took a seat as a spectator in the jury box, perhaps as a gesture of solidarity with the judge.
In a formal order expected to be issued later Thursday, Judge Huvelle said, the government will be given seven days to prepare a report to Congress that is now required before any Guantanamo detainee is to be freed. Then, 15 days after that, the government must complete plans for Jawad’s transfer out of Guantanamo, the judge indicated.
By Aug. 24, a written report is due on Jawad’s status, the judge said. “By then, I hope he’s en route to Afghanistan,” she commented.
Below, Jonathan Vukicevich previews Smith v. Spisak, one of the three cases to be heard by the Supreme Court on Tuesday, October 13. Jon is a rising third year at Washington College of Law and a summer associate at Akin Gump. Check the Smith v. Spisak SCOTUSwiki page throughout the summer for additional updates and newly filed briefs.
Argument Preview
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that a federal court may grant a state prisoner’s habeas petition if the state court adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law.” In Smith v. Spisak, the Court will consider whether the Sixth Circuit exceeded the limitations of AEDPA when it concluded that the Ohio Supreme Court had incorrectly rejected Spisak’s jury instruction and ineffective assistance of counsel claims.
Background
In 1983, a jury convicted Frank Spisak of murdering three people. At the sentencing phase of Spisak’s trial, the jury was instructed (among other things) that “[i]f all twelve members of the jury find by proof beyond a reasonable doubt that the aggravating circumstances in each separate count outweighs the mitigating factors, then you must return that finding to the court.” The jury recommended a sentence of death, which the trial court accepted.
Spisak’s direct appeals were unsuccessful. In 1997, Spisak sought federal habeas relief, which the district court denied. On appeal, the Sixth Circuit reversed and vacated Spisak’s death sentence on the grounds that (1) Spisak’s trial counsel rendered ineffective assistance, and (2) the jury instructions violated Mills v. Maryland by requiring unanimity in the finding that the aggravating circumstances outweighed the mitigating factors present in Spisak’s case.
The State filed a petition for certiorari in which it argued that the Sixth Circuit’s decision contravened AEDPA. The Court granted cert., vacated the decision below, and remanded the case to the Sixth Circuit for reconsideration in light of two recent Supreme Court cases interpreting the scope of AEDPA, Carey v. Musladin and Schriro v. Landrigan. On remand, the Sixth Circuit held that neither case required reversal of its prior decision and reinstated its original opinion.
The State filed a second petition for certiorari, which the Supreme Court granted on February 23, 2009.
Averting for now a possible constitutional showdown, the Obama Administration urged a federal judge on Wednesday to order the release — within a few weeks — of a young Afghan detainee at Guantanamo Bay, with a transfer to the Afghan government. It asked for more time to notify Congress, and time to arrange the transfer. In a new filing in U.S. District Court, along with a proposed court order, the Administration said it was not contesting the judge’s power to order the release of Mohammed Jawad.
The filings were made in U.S. District Court in Washington under a deadline set by District Judge Ellen Segal Huvelle.
Specifically, the government asked for seven days to notify Congress of its plan to release Jawad, with an assessment of any risks from that move, and then another 15 days to carry out the transfer. An immediate release, as demanded by Jawad’s lawyers, is not feasible, the government said, because of the practical problems in arranging an overseas flight in a military aircraft. It may take up to 20 days to arrange such a flight, it said.
The new memorandum explaining the government’s position leaves uncertain whether Jawad will have to face criminal prosecution, before his departure. The document mentions the continuing Justice Department investigation of possible war crimes charges, but does not say explicitly whether that would be resolved before Jawad is sent to Afghanistan.
The document, though, does urge Judge Huvelle not to make any findings “that touch on the subject matter of that investigation.” The government contends it has “newly available evidence” that Jawad was involved in a grenade-throwing incident in Afghanistan in 2002 that injured two U.S. servicemen there. Jawad’s lawyers had asked the judge to make a formal finding that the government had not shown it had any basis for continuing to hold him.
The memorandum expressly disclaimed any authority by the government to “detain an individual to pursue a criminal investigation.” Still, it appeared that, in preparing a report required by Congress for the release of any Guantanamo detainee, including a risk assessment, the Justice Department will make up its mind whether it is, in fact, going to start a criminal case against Jawad. It is unclear how that could go forward after Jawad was sent to Afghanistan.
Presumably, that is an issue that Judge Huvelle and the lawyers may cover at a hearing in her courtroom Thursday morning. The judge previously had concluded that the government case for holding Jawad any further — he has been a prisoner for seven years after being captured as a teenager – was “riddled with holes.” She also has warned the government not to try to take Jawad’s habeas case away from her at the last minute.
Analysis
As Justice Antonin Scalia was preparing the Supreme Court’s opinion last year declaring a personal constitutional right to have a gun for self-defense, he may have needed to put in a cautionary word to hold his five-Justice majority — an indication to make the decision seem somewhat less sweeping. That could account for this statement in District of Columbia v. Heller: “…nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons…”
But, a lower federal court judge has now suggested that the Court perhaps should not have gone that far. Tenth Circuit Judge Timothy M. Tymkovich, in an opinion issued Tuesday, expressed “concern that the dictum inhibits lower courts from exploring the contours of Heller and its application to firearms restrictions….I…wonder whether Second Amendment law would have been better served if the regulations Heller addressed in dicta had been left to later cases.”
The judge’s comments came in a concurring opinion as a three-judge panel decided a case involving an individual convicted of being a felon who illegally had a gun — a specific crime that the Heller dictum would seem to have left unaffected by the Second Amendment declaration of a personal right of self-defense with a gun.
The ruling came in McCane v. U.S. (Circuit docket 08-6235), found here. (Thanks to Howard Bashman of How Appealing blog for the alert to Judge Tymkovich’s opinion and to the case.)
Lawyers involved in the case said Wednesday that they plan a further challenge to the Circuit’s ruling, either by asking for en banc review by the Circuit, or taking the case on to the Supreme Court — a choice they have not yet made. Aside from the Second Amendment point, the lawyers are troubled by another part of the McCane opinion, apparently expanding the so-called “good-faith” exception to the “exclusionary rule” to excuse a constitutional violation by police. (See the discussion near the end of this post.)
Judge Tymkovich noted that six other Circuit Courts have rejected constitutional challenges to the federal law making it a crime for a felon to possess a gun. “Almost all these decisions cursorily cite the Heller dictum, and almost all are unpublished,” he wrote.
That, he indicated, appears to be the consequence of the Supreme Court’s having chosen to drop into its opinion a comment on gun restrictions not at issue in Heller. “Rather than seriously wrestling with how to apply this new Second Amendment rule,” Tymkovich commented, “courts will continue to simply reference the applicable Heller dictum and move on.” Perhaps, he added, that is what the Supreme Court intended with its “clear direction,” even in dicta.
Still, the judge lamented this development, saying that the volunteered qualification in Heller “short-circuits at least some of the analysis and refinement that would otherwise take place in the lower courts.”
Urging a federal judge to order the immediate release of a young prisoner from Guantanamo Bay, his lawyers warned on Tuesday of a constitutional confrontation if the Obama Administration resists such an order.
In the new filing by attorneys for Mohammed Jawad, an Afghan national, they argued: “Any assertion by the Executive that this Court somehow lacks the power to order his release and return to Afghanistan would raise serious separation of powers concerns…” (The filing was accompanied by a declaration by a military lawyer for Jawad discussing the Afghan government’s plan to arrange to pick up the prisoner at Guantanamo; that government has asked for his return.)
Within minutes after those documents were sent to U.S. District Court Judge Ellen Segal Huvelle, she gave government officials a little more than 24 hours to inform her “how they propose to resolve this case.” She set a status conference in her courtroom for Thursday morning. (Her order is here.)
Depending upon how government officials react in the next few days, the Jawad case could turn into a major test of what the Supreme Court meant when, 13 months ago, it ruled that Guantanamo detainees have a constitutional right to pursue habeas challenges and, perhaps, to gain their actual release. Congress recently has taken steps to curb any such releases, but Jawad’s lawyers contended on Tuesday that those legislative actions “cannot have altered [Judge Huvelle's] authority to order the most central of habeas remedies: [Jawad's] immediate release.”
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By a vote of 13-6, the Judiciary Committee voted to send the nomination of Judge Sonia Sotomayor to the full Senate. In the two-hour commitee session, Senators reiterated their points from the four days of hearings and also looked to future of Supreme Court nominations.
The six Republican senators who voted against Judge Sotomayor each referenced his concern with her speeches and law review articles, but conceded that her bench record placed her in the mainstream of judicial philosophy. The minority committee members said they believed Judge Sotomayor had rejected President Obama’s “radical empathy standard” for Justices. Sen. Tom Coburn, Okla., said that he could not “vote for her because she wouldn’t defend what she said;” he would rather she had stood by her statements and proved why she will be an impartial judge. Sen. Charles Grassley, Iowa, was the only Senator to express regret that he had voted to confirm retired Justice David H. Souter in 1990.
The one Republican senator to vote for Judge Sotomayor, Sen. Lindsey Graham, S.C., said that “this empathy idea makes us all Dr. Phils.” But Sen. Graham also demonstrated some empathy, stating that he understood the perspective of his Democratic colleagues who had voted for Chief Justice John G. Roberts in 2005. He said he was voting for a person he would not have chosen, but recognized is well-qualified. Sen. Graham maintained the candor he showed during the hearings and said that Judge Sotomayor’s nomination is not a major shift in the balance of power on the Court: she can be “no worse than Souter” in the Republican point of view.
Throughout the hearings, broad discussion of legal theory and the direction of the Court were rare, but percolated below the Senators’ questioning on specific precedents. Sen. John Cornyn, Tex. said he thought the hearings process showed a consensus that “original intent, not foreign law” is the proper mode of Constitutional interpretation and approached an agreement with the Hamiltonian vision of the Judiciary outlined in Federalist 78. Sen. Sheldon Whitehouse, R.I., said that his Republican colleagues are entitled to their point of view on the law, but “resists the effort to define that as a judicial norm against which any other view is to be seen as an abberation.” He sharply stated that he believes the Repubilcan “definition of justice in America is just plain wrong, both as history and as justice.”
Looking ahead to future vacancies on the Court, Sen. Charles Schumer, N.Y., said this process has shown that Republican colleagues will never support anyone nominated by President Obama, no matter how moderate her record. There was a bipartisan call for reform of the advise and consent process, as Senators agreed that the hearings in recent years have become “theater” in which the nominee avoids making any candid statement about her views. Sen. Herb Kohl, D-Wisc., recommended that before future hearings, a bipartisan group should be assembled of Judiciary committee members, members of the bar, constitutional scholars, and members of the media to draft questions on which the committee can expect specific answers from the nominee.
Video of the session can be seen here.
Sen. Charles Grassley, R-Iowa, announced in a press release that he will vote against Judge Sonia Sotomayor’s nomination to the Supreme Court. Sen. Tom Coburn, Okla., is the only Republican member of the Senate Judiciary Committee to not yet announce his intended vote at tomorrow’s meeting. Sen. Lindsey Graham, S.C., is the only Republican member of the committee to say he will vote for Judge Sotomayor.
Sen. Grassley’s statement said: “At her confirmation hearing, I asked specific questions about the property rights of private citizens afforded by the Fifth Amendment. My colleagues asked detailed questions about the now famous Ricci case, the right to privacy and the Second Amendment right to bear arms. I was not convinced that Judge Sotomayor understands the rights given to Americans under the Constitution, or that she will refrain from expanding or restricting those rights based on her personal preferences. I am not certain that Judge Sotomayor won’t allow those personal beliefs and preferences to dictate the outcome of cases before her. There’s no question that nominees have become quite adept at dodging our questions, but her lack of clear and direct answers to simple questions regarding the Constitution were troubling. Some of her answers were so at odds with statements she has made over the years, that it was difficult to reconcile them.”
Sen. Jeff Sessions, Ala., the ranking Republican on the Senate Judiciary Committee, said in an editorial in USA Today that he would vote against the confirmation of Judge Sonia Sotomayor to the Supreme Court. Citing her decisions in Didden v. Port Chester (property rights), Maloney v. Cuomo (Second Amendment), and Ricci v. DeStefano (the New Haven firefighter case), he stated he does not “believe that Judge Sotomayor has the deep-rooted convictions necessary to resist the siren call of judicial activism.”
Senators Charles Grassley, Iowa, and Tom Coburn, Okla., are the only Republican members of the committee who have not announced how they will vote. A committee vote on Judge Sotomayor’s nomination is scheduled for tomorrow at 10 a.m.
The Supreme Court on Monday released the first of its orders during the summer recess. Among other actions noted, the list shows that the Court has modified the briefing schedule in two groups of consolidated cases: Mac’s Shell Service v. Shell Oil (08-240) with Shell Oil v. Mac’s Shell Service (08-372), and Milavetz Gallop v. U.S. (08-1119) with U.S. v. Milavetz Gallop (08-1225).
The list can be found here. Further orders are expected on Aug. 17.
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