Analysis
The Supreme Court has a few ways of recognizing — one might say “creating” — new constitutional rights, but it has one that it has not used for 30 years.  When that technique was last used, John Paul Stevens was the junior Justice, he was just days away from his 59th birthday, and he was already, in his fourth year, marking a distinctive path of his own as a member of the Court.  The decision handed down on that April day in 1979 was Burch v. Louisiana.

It is not really one of the great cases (it takes up only a handful of pages in the United States Reports).  But Burch, by scholarly reckoning, marked the last time the Supreme Court told the states that they would have to obey a part of the Bill of Rights, originally added to the Constitution in 1791 to restrain the powers of the national government. (Burch said the states would violate the Sixth Amendment right to a jury, made applicable to the states via the Fourteenth Amendment, if they allowed a jury of no more than six members to decide on a guilty verdict without being unanimous.  The basic right to a jury in a criminal case had been extended to the states 11 years earlier, in the 1968 decision in Duncan v. Louisiana.  Burch expanded that a little.)

On Wednesday, the Court embarked on what is, for every Justice except Stevens, an entirely new constitutional adventure: deciding whether another part of the Bill of Rights is to be broadened so that it curbs state, county and city laws, and not just those enacted at the federal level.  (Because the Court’s vote to hear a case is secret, there is no way, yet, to know how Stevens — now the senior Associate Justice, and now 89 years old — voted on the question. It took a minimum of four votes to grant review.)
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Taking on a major new constitutional dispute over gun rights, the Supreme Court agreed on Wednesday to decide whether to apply the Second Amendment to state, county, and city government laws.  In another major case among ten new grants, the Court said it will rule on the constitutionality of one of the government’s most-used legal weapons in the “war on terrorism” — a law that outlaws “material support” to terrorist groups.

The Court had three cases from which to choose on the Second Amendment issue — two cases involving a Chicago gun ban, and one case on a New York ban on a martial-arts weapon.  It chose one of the Chicago cases — McDonald v. Chicago (08-1521) — a case brought to it by Alan Gura, the Alexandria, VA., lawyer who won the 2008 decision for the first time recognizing a constitutional right to have a gun for personal use, at least in self-defense in the home (District of Columbia v. Heller).  A second appeal on the Chicago dispute had been filed by the National Rifle Association (NRA v. Chicago, 08-1497).  Presumably, the Court will hold onto that case until it decides McDonald; the same is likely for the New York case, Maloney v. Rice (08-1592) — a case in which Justice Sonia Sotomayor had participated when she was a judge on the Second Circuit Court.

The Court, while agreeing to return to its monitoring of legal issues stirred up by government anti-terrorism efforts, did not take any immediate action on the basic question of federal judges’ power to decide the fate of detainees held at the U.S. military prison camp at Guantanamo Bay, Cuba.  It had examined anew a case left over from the prior Term — Kiyemba v. Obama (08-1234) — but the case was not on the grant list released Wednesday morning.  The next opportunity for the Court to announce some response to that case will come on Monday, when the new Term formally opens. The specific issue in the case is whether a federal judge may order the release into the U.S. of a detainee no longer considered to be an “enemy.” Read the rest of this entry »

The Court has granted certiorari in the following 10 cases. The full order list is available here.

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Yesterday, the Court held its annual “long conference,” in which the Justices discussed which of last summer’s cert. petitions it will hear this term.  Kent Scheidegger of Crime and Consequences has previewed the conference, highlighting a number of SCOTUSblog’s “Petitions to Watch.”

One of the petitions considered on Tuesday addresses the issue of whether federal judges have the power to release detainees into the United States.  That issue is examined in a Washington Post editorial, which argues that the Court should take up the case, Kiyemba v. Obama, so that it can make a definitive determination on the prospects of freedom for some 17 Uighur detainees.  The Bush Administration ordered the Uighurs freed years ago, but they cannot be returned to China, where they face the threat of torture, and as of now, it is unclear whether they can be released into the U.S.  A decision to take the case, the editorial asserts, would “determine how much power federal judges have to deliver real and meaningful freedom.” Another article in the Post criticizes President Obama’s decision not to go to Congress to establish standards on these issues “delegates a profound and difficult policymaking exercise to the judiciary and, ultimately, to a single man on the Supreme Court,” suggesting that the Court’s potential ruling in Kiyemba or a similar case will be a deciding factor in the development of detention policy.

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The Solicitor General has recently filed the following briefs:

Petition Stage Invitation :

• No. 08-998: Hamilton v. Lanning (supporting certiorari; other cert. filings here)

Merits Stage Amicus :

• No. 08-661: American Needle v. National Football League et al. (supporting petitioner; all case filings here)
• No. 08-1200: Jerman v. Carlisle (supporting petitioner; all case filings here)  [Note: Howe & Russell represents the petitioner]

Today’s Supreme Court grants cert. in about half as many cases as it did in the 1980s.  In his Sidebar piece, Adam Liptak of The New York Times attempts to explain this mysterious shrinking docket.  Among the proffered explanations: Justices Ginsburg, Thomas, and Souter agree to hear far fewer cases than their predecessors, Justices White, Marshall, and Brennan; the growth of the controversial cert. pool practice in the early 1990s gives more power to younger law clerks who “seek out and destroy undeserving petitions”; and the Solicitor General’s office, normally very persuasive in asking the Court to review a case, has been submitting approximately half as many requests in recent years.  Of course, opinions differ as to whether the Court is shirking its duty to decide tough constitutional questions or properly deferring to lower courts and the legislature.

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This is the fifth and final edition of  “Petitions to Watch”  featuring cases up for consideration at the Justices’ opening conference of September 29.  Included in today’s post are cases in which the Solicitor General has filed invitation briefs or letters since the end of last Term. 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.   Links to previous editions are available in our archives on SCOTUSwiki. [Note: There are a number of petitions in which the respondent is proceeding in forma pauperis and we don't yet have an electronic copy of the brief in opposition. If you are counsel in any of these cases or otherwise have a copy,  I'd appreciate your emailing it to me.]

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The Supreme Court on Monday released the oral argument calendar for the session that begins Monday, Nov. 30, and ends Wednesday, Dec. 9.  The calendar can be downloaded here.

Here are the scheduled arguments, day by day, with a brief summary of the issues involved:

Mon., Nov. 30:

Graham County Soil & Water Conservation Dist. v. U.S. ex rel. Wilson (08-304) – scope of right to sue to recover false claims against the federal government

Merck & Co., Inc., et al. v. Richard Reynolds, et al. (08-905)– deadline for filing securities fraud lawsuit

Tuesday, Dec. 1:

Milavetz, Gallop, & Milavetz, P.A., et al. v. United States ; United States v. Milavetz, Gallop, & Milavetz, P.A., et al. (08-1119 and 08-1225) — Congress’ power to bar attorneys from advising debtors to take on more debt before filing for bankruptcy

United Student Aid Funds, Inc. v. Espinosa (08-1134) — standard for forgiving student loan debt in bankruptcy

Wednesday, Dec. 2:

Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, et al. (08-1151) — limits on state authority to restore storm-eroded beaches or lakefronts

Monday, Dec. 7:

Free Enterprise Fund and Beckstead and Watts, LLP v. Public Company Accounting Oversight Board, et al. (08-861)– constitutionality of Sarbanes-Oxley Act’s creation of accounting review board

Florida v. Powell (08-1175)– police duty to expand “Miranda warnings” before questioning suspect

Tuesday, Dec. 8:

Black, et al. v. United States (08-876)– application of “honest services” fraud law to private conduct

Weyhrauch v. United States (08-1196) — proof needed in state official’s “honest services” fraud trial

Wednesday, Dec. 9:

Stolt-Nielsen S.A., et al. v. AnimalFeeds International Corp. (08-1198) — scope of right to arbitrate as class action

Here’s a piece of Supreme Court minutiae that has always befuddled me.  As most know, the Court’s term officially begins the first Monday in October and ends the day before the first Monday of the next October.  So when the Court takes the bench on October 5 this year, it will commence the October 2009 Term, which will run until October 3, 2010 (the day before the first Monday in October 2010).

So far, so good.  Here’s the mystery: although the new term won’t start for another week yet, the Clerk’s office has been assigning cert. petitions 2009 docket numbers since June 30.  (Every petition gets a docket number in the form of “08-100” where the first two digits designate the term, and the final digits are sequentially assigned as cases get docketed, the paid petitions starting at 1 and the pauper petitions starting at 5000).  So docket number 09-1 was assigned on June 30, months before the official start of the 09 Term.  To add to the mystery, the Court still treated the oral arguments in Citizens United v. FEC, No. 08-205 (argued on September 9) as part of the 2008 Term. 

After years of head-scratching, we finally just asked.  The Court’s Public Information Office informs us that this is a hold-over from the past.  Years ago, when the Court handed down its final decisions for the term, usually in late June, it would “adjourn” for the Term.  At that point, the Clerk’s office started numbering new petitions with docket numbers for the new term.  Perhaps the thinking was that the docket numbers should reflect that the Court would not be back in session to review the petitions until the new Term. 

In more recent times (we’re not exactly sure when the transition took place), the Court changed practice so that it now formally remains in session over the summer, but is simply on “recess” from the date of the last opinion until the official end of the term the day before the first Monday in October.  This is a more accurate description of what is going on, as the Court still rules on emergency motions over the summer, issues one or more orders lists on housekeeping matters (like dispensing with appendices and sharing oral argument), and will meet tomorrow to vote on petitions that accumulated over the summer.  And this year, the Court heard re-argument in a case, which was therefore considered part of the ongoing October 2008 Term.

Nonetheless, the Clerk’s office has continued the tradition of starting to assign the new Term’s docket numbers as soon as the Court has handed down its last opinions in June. 

So there you have it.  Unless Dan Brown comes up with a better explanation (probably involving numerology and freemasonry), that will have to do.

As the Justices will hold their first private conference this Tuesday, the Supreme Court press corps turns its focus to the upcoming docket. Tony Mauro writes in the National Law Journal on the dominance of business cases in OT09 : more than half of the 45 docketed cases address business issues. His article focuses specifically on how former intellectual property lawyer and current Associate Justice Sonia Sotomayor may vote in cases ranging from patents (Bilski), antitrust (American Needle), or mutual funds (Jones). BusinessWeek also has a preview of OT09 business cases.

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This is the fourth edition of  “Petitions to Watch”  featuring cases up for consideration at the Justices’ opening conference of September 29.  We’ll have one final post tomorrow; included in today’s post are the Second Amendment incorporation petitions out of the Second and Seventh Circuits. 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.   Links to previous editions are available in our archives on SCOTUSwiki.

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This is the third edition of  “Petitions to Watch”  featuring cases up for consideration at the Justices’ opening conference of September 29. Because of the great number of petitions to be considered on the summer list, we’ll have multiple installations leading up to the “long conference.” 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.   Links to previous editions are also available in our archives on SCOTUSwiki.
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Analysis

Of the 38 decisions so far by federal judges implementing the Supreme Court’s mandate in Boumediene v. Bush to test the legality of Guantanamo Bay detentions, the most critical assessment of government evidence has just emerged, in Al Rabiah v. U.S. (District Court docket 02-828).  Decided on Sept. 17, but just released Friday in an unclassified version, the 65-page ruling by Judge Colleen Kollar-Kotelly is measured in tone but sweeping in impact.  Despite heavy deletions, blacking out many details, what remains is a withering denunciation of military and intelligence data.  (The opinion can be read here.)

Fully half of the document consists of a detailed examination of a series of confessions given by the detainee, a Kuwaiti national named Fouad Mahmoud Al Rabiah, with the judge ultimately concluding that the government interrogators themselves decided that the admissions were not to be believed.  “Al Rabiah’s interrogators ultimately extracted confessions from him, but they never believed his confessions,” the opinion noted.

Kollar-Kotelly summed up:  ”Far from providing the Court with credible and reliable evidenced as the basis for Al Rabiah’s continued detention, the Government asks this Court to simply accept the same confessions that the Government’s own interrogators did not credit, and to ignore the assessment of [a government intelligence analyst at Guantanamo "that Al Rabiah should not have been detained"].

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UPDATE Friday a.m.  The Supreme Court issued this statement Friday morning:  “Justice Ginsburg was released from Washington Hospital Center this morning and plans to be at work at the Court this afternoon.”  Further update Friday 4:10 p.m.: Justice Ginsburg returned to work in her chambers in early afternoon, the Court said.

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Supreme Court Justice Ruth Bader Ginsburg was hospitalized Thursday evening after “feeling ill in her chambers earlier in the day,” the Court announced.  An hour after receiving an injection in response to an iron deficiency, “she felt faint, developed light headedness and fatigue,” the statement added.  She was expected to remain at Washington Hospital Center overnight, Court aides said.

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Justice Ruth Bader Ginsburg was hospitalized yesterday evening after she reportedly “developed light headedness and fatigue” while working in her chambers at the Court.  The New York Times and the Washington Post both characterized the Justice’s hospitalization at the Washington Hospital Center as “a precaution.”  Ginsburg has indicated that she plans to stay on the Court for several years to come, and has kept up an active schedule of work and speaking engagements.  The Court’s official statement  is available here.

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