Stanford student Patrick Nemeroff offers this summary of Monday’s decision in Rothgery v. Gillespie County.

On Monday, the Supreme Court ruled 8-1 in Rothgery v. Gillespie County that a defendant’s Sixth Amendment right to counsel attached after his initial appearance before a magistrate where he was informed of the charges against him, the Fourth Amendment probable-cause determination was made, and bail was set. The Court relied heavily on its 1986 ruling in Michigan v. Jackson and its 1977 ruling in Brewer v. Williams to hold that Texas’s article 15.17 hearing initiated adversarial proceedings against Rothgery, thus marking the point of attachment and obligating the state to appoint counsel within a reasonable time once a request for assistance has been made. In holding that the hearing alone was sufficient to initiate adversarial proceedings, the Court rejected the Fifth Circuit’s “prosecutorial awareness” test on which respondent Gillespie County had relied. In a narrowly written opinion, however, the Court declined to address the logical next question: what constitutes a reasonable time for appointment of counsel once the right has attached and the request has been made.

Justice Souter, writing for the majority, answered the question presented by concluding that Jackson and Brewer directly control. In both cases, Souter explained, the Court held that the right to counsel attaches upon a defendant’s initial appearance before a judicial officer at which the defendant is informed of the charges against him and has restrictions imposed upon his liberty. Those holdings reject formalistic distinctions among types of hearings and therefore require the conclusion that Rothgery’s Sixth Amendment right attached upon his initial appearance. The Court’s more recent 1991 ruling in McNeil v. Wisconsin supports this conclusion, as does the practice of forty-three states and the federal government of appointing counsel before, at, or just after the initial appearance.

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The Supreme Court refused on Monday, amid a flurry of orders, to reopen the heated controversy over the power of government to seize private property for a new economic development project, but owners of property appeared to have picked up a potential new ally on the Court. Justice Samual A. Alito, Jr., was the only member of the Court to note that he would have granted review of a significant Second Circuit Court ruling on property rights in the face of a massive new project in the Prospect Heights section of Brooklyn, N.Y.

The Court as a whole turned down an appeal by a group of homeowners and business operators who are likely to lose their property to the 22-acre development near the rail yards for the Long Island Railroad. That development, planned by a group headed by developer Bruce Ratner, is the Atlantic Yards Arena and Development Project; it will provide a new home for the New Jersey Nets professional basketball team (which Ratner owns), plus 16 high-rise office and aprtment towers, and a 180-room hotel. The failed appeal by property owners involves about 20 percent of the development site. (Their appeal to the Supreme Court came in Goldstein, et al., v. Pataki, et al., 07-1247).

Because the Court simply denied review of the Second Circuit decision, it set no new precedent. But the case had been closely watched for the Court’s reaction to the one of the first significant sequels to arise in the controversy that spread rapidly across the country following its much-disputed 2005 ruling in Kelo v. New London, allowing private property to be taken for economic redevelopment by private organizations. Justice Alito was not on the Court for Kelo; his predecessor, now-retired Justice Sandra Day O’Connor, wrote the main dissent. Justices Antonin Scalia and Clarence Thomas also dissented; they did not reveal their votes Monday in the Goldstein case. Chief Justice John G. Roberts, Jr., also not on the Court for Kelo, did not reveal his vote Monday (his predecesssor, the late Chief Justice William H. Rehnquist, dissented in rhe 2005 decision).

Meanwhile, the Court on Monday added seven new cases to its decision docket for the new Term that opens on Monday, Oct. 6.

One of the most highly visible cases was an appeal by U.S. Navy leaders, asking the Justices to strike down a federal judge’s order that would require the Navy to take steps to protect whales off the coast of California by strictly limiting its use of submarine-detecting sonar transmissions during training exercises. The judge’s order has been put on hold pending the Navy’s appeal in Winter (Navy Secretary), et al., v. Natural Resources Defense Council, et al. (07-1239).

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The Court issued decisions in three cases today and granted certiorari in an additional seven cases for next term.

A copy of today’s orders list is available here.

Today’s opinion by Justice Breyer in Sprint Communications v. APCC Services (07-552) is available here. Chief Justice Roberts filed a dissenting opinion in which Justices Scalia, Thomas and Alito joined.

Today’s opinion by Justice Ginsburg in Greenlaw v. United States (07-330) is available here. Justice Alito filed a dissenting opinion in which Justice Stevens joined and in which Justice Breyer joined in part.

Today’s opinion by Justice Souter in Rothgery v. Gillespie County (07-440) is available here. Chief Justice Roberts filed a concurring opinion in which Justice Scalia joined. Justice Thomas filed a dissenting opinion.

Summaries of the issues and all available certiorari-stage filings in today’s granted cases are available after the jump.

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A new StatPack is available here.

As the StatPack indicates, there are now ten cases to be decided before the Court recesses for the summer, including three of the highest profile cases of the year – DC v. Heller (Second Amendment), Kennedy v. Louisiana (death penalty for child rape) and Exxon v. Baker (punitive damages over Exxon Valdez oil spill). We wanted to give those readers awaiting these decisions a quick primer on what to expect over the next week.

The timing of opinions.  There is only one decision day next week on the Court’s official calendar: Monday, June 23, when the Court’s public session will begin at 10 am eastern.  However, as the Court has done for the past two weeks, it’s certain that the Court will sit on one or more additional days later in the week.  Based on past practice, if the Court holds one additional opinion day, it will likely be the Thursday (June 26) as it did last Term.  If it holds two additional opinion days (which is more likely, given that ten opinions remain), the added days will likely be Wednesday (June 25) and Thursday (as it did in the 2005 Term).

(Of course, the Court isn’t required to finish by June 26, but it has concluded the Term before July every year for the last decade.  Monday June 30 is also a possible last day, but is unlikely because the Court internally plans on finishing each Term during the fourth week of June.)

After the jump, I discuss the basics of how we predict which Justices will author which opinions and our current sense on that issue.

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A transcript of today’s oral argument in Republic of the Philippines v. Pimentel (06-1204) is now available here.

A transcript of today’s oral argument in Rothgery v. Gillespie County (07-440) is now available here.

At 10 a.m., the Court is scheduled to hear argument in Republic of the Philippines v. Pimentel (06-1204), involving a dispute over assets of former Philippine President Ferdinand Marcos. Charles A. Rothfeld of Washington, D.C., and Edwin S. Kneedler of the Solicitor General’s office will argue for the petitioner, and Robert A. Swift of Philadelphia will argue for the respondent. (For more on Kneedler, whose argument today marks his one-hundredth before the Court, see Marty’s post here.)

At 11 a.m., the Court is scheduled to hear argument in Rothgery v. Gillespie County (07-440), involving the point in criminal proceedings that triggers the right to counsel. Danielle Spinelli of Washington, D.C., will argue for the petitioner, and Gregory S. Coleman of Austin, Tex., will argue for the respondent.

In advance of the arguments, the Court is expected to release orders from the Justices’ private conference last Friday.

On Monday, the Court is scheduled to hear argument in Republic of the Philippines v. Pimentel (06-1204), involving a dispute over assets of former Philippine President Ferdinand Marcos, and Rothgery v. Gillespie County (07-440), involving the point in criminal proceedings that triggers the right to counsel. In advance of the argument, the Justices are expected to release orders from their private conference last Friday.

On Tuesday, the Court is scheduled to hear argument in District of Columbia v. Heller (07-290), involving a Second Amendment challenge to the District’s firearms regulations. The argument is scheduled to last 75 minutes, and will be rebroadcast on CSPAN shortly after its conclusion.

On Wednesday, the Court is scheduled to hear argument in Richlin Security Service v. Chertoff (06-1717), involving the rate at which paralegal services should be compensated for prevailing parties awarded attorneys’ fees, and Chamber of Commerce v. Brown (06-939), involving whether states may bar employers from using public money to influence the outcome of union organizing campaigns.

On Friday, the Justices are scheduled to hold a private conference. To view our list of petitions to watch, click here.

No petitioners’ merits briefs are due this week. Respondents’ merits briefs are due Wednesday in in Davis v. FEC (07-320), Taylor v. Sturgell (07-371), Engquist v. Oregon Dept. of Agriculture (07-474), and Giles v. California (07-6053).

(All case links above direct to case pages on SCOTUSwiki.)

Excerpted below is Stanford student Patrick Nemeroff’s preview of Monday’s argument in Rothgery v. Gillespie County. Find the full text here, at SCOTUSwiki.

In Rothgery v. Gillespie County, No. 07-0440, the Court will consider when exactly adversarial proceedings have been initiated against an individual for purposes of triggering his Sixth Amendment right to appointed counsel. The petitioner, Walter Rothgery, maintains that his Sixth Amendment rights were violated when he was arrested and brought before a magistrate who informed him of the accusation against him, found probable cause, and sent him to jail pending the posting of bail or the disposition of charges, but when respondent Gillespie County failed to appoint counsel for him until after he was indicted.

No oral arguments are scheduled and no non-capital orders are expected to be issued from the Court this week. If any orders are issued in pending cases, we will post them promptly.

The Justices are scheduled to hold a private conference on Friday, orders from which could be released the same day and the following Tuesday, Feb. 19.

By Thursday, the Solicitor General is expected to file a petition for certiorari in Bismullah v. Gates, challenging a D.C. Circuit Court ruling last July 20 laying down the procedures to be followed — and the government’s information-filing requirements — in the Circuit Court’s review of detention of prisoners at Guantanamo Bay under the Detainee Treatment Act of 2005. The Solicitor General also plans to seek a stay of the Circuit Court ruling, if the Circuit Court refuses a stay this week.

Petitioners’ merits briefs are due Thursday in Irizarry v. United States (06-7517), Bridge v. Phoenix Bond & Indemnity (07-210), Greenlaw v. United States (07-330), Kennedy v. Louisiana (07-343), Plains Commerce Bank v. Long Family Land & Cattle (07-411), and Sprint Communications v. APCC Services (07-552).

Respondents’ merits briefs are due Monday in Richlin Security Service v. Chertoff (06-1717), Tuesday in Chamber of Commerce v. Brown (06-939), Wednesday in Riley v. Kennedy (07-77) and United States v. Clintwood Elkhorn Mining Company (07-308), and Friday in Rothgery v. Gillespie County (07-440).

Petitioners’ reply briefs are due Wednesday in Allison Engine v. United States (07-214), and Friday in Cuellar v. United States (06-1456).

Amicus briefs in support of the respondent are due Monday in District of Columbia v. Heller (07-290). For a list of amicus briefs filed thus far in support of the respondent, click here.

The Supreme Court, releasing Tuesday its calendar of oral argument for the session beginning March 17, set Tuesday, March 18, as the day for oral argument in the Second Amendment case — a test of what the Constitution means when it guarantesd a “right to keep and bear arms.” The argument is the only one scheduled for that day; the case is District of Columbia v. Heller (07-290). The March calendar includes a total of 12 cases, with one day to include three cases — Monday, March 24. The morning arguments are at 10 and 11 a.m.; the afternoon argument will begin at 1 p.m.

A link to the argument calendar is available here. Following are the cases, with a brief summary of the issues involved:

Mon., March 17

No. 06-1204, Republic of the Philippines v. Pimentel - on whether courts must dismiss interpleader actions involving foreign countries entitled to sovereign immunity.

No. 07-440, Rothgery v. Gillespie County - on whether criminal defendants brought before a magistrate have a Sixth Amendment right to counsel.

Tues., March 18

No. 07-290, District of Columbia v. Heller – on the constitutionality of the District’s firearms laws.

Wed., March 19

No. 06-1717, Richlin Security Service v. Chertoff - on the rate at which paralegal services should be compensated in the awarding of attorneys’ fees.

No. 06-939, Chamber of Commerce v. Brown - on whether the National Labor Relations Act preempts a pro-union California law.

Mon., March 24

No. 06-11429, Burgess v. United States - on enhanced federal sentences based on prior state convictions for possession of cocaine.

No. 07-308, United States v. Clintwood Elkhorn Mining Company - on whether a company may seek a tax refund directly under the Export Clause of the Constitution.

No. 07-77, Riley v. Kennedy - on whether a voting-related Alabama judicial decision must receive Justice Department pre-clearance before going into effect.

Tues., March 25

Nos. 06-1666, Munaf v. Geren, and 07-394, Geren v. Omar – on whether courts have jurisdiction to hear habeas petitions filed by U.S. citizens held by the U.S.-led coalition in Iraq.

No. 07-455, United States v. Ressam - on whether federal sentencing law requires explosives to be carried in relation to the underlying felony.

Wed., March 26

No. 07-208, Indiana v. Edwards - on whether the Sixth Amendment grants a defendant found competent to stand trial the right to represent himself in a criminal proceeding.

No. 07-312, Florida Dept. of Revenue v. Piccadilly Cafeterias – on whether states may tax a court-ordered transfer of property from a chapter 11 bankruptcy estate to a third-party purchaser of the bankrupt party’s assets.

On Monday, the Court is scheduled to hear argument in Virginia v. Moore (06-1082), asking whether prosecutors may introduce evidence seized during an arrest made in violation of state law, and in Preston v. Ferrer (06-1463), asking whether the Federal Arbitration Act and Buckeye Check Cashing v. Cardegna (2006) preempt the voiding of an interstate arbitration agreement made pursuant to the California Talent Agencies Act.

In advance of the argument, the Justices are scheduled to release the remaining orders from their private conference last Friday.

On Tuesday, the Court is scheduled to hear argument in United States v. Rodriquez (06-1646), asking whether, for purposes of the Armed Career Criminal Act, courts must look only at the maximum sentence under state law for a particular drug offense or may also take sentencing enhancements based on prior convictions into account, and in Begay v. United States (06-11543), asking whether a conviction for driving under the influence counts as a “violent felony” under the ACCA.

On Wednesday, the Court is scheduled to hear argument in Quanta v. LG Electronics (06-937), asking whether LG’s patents rights were exhausted by a license agreement with Intel, who subsequently sold the licensed product to Quanta, and in Meadwestvaco v. Ill. Dept. of Revenue (06-1413), asking whether an Illinois court’s standard for determining whether the state may tax the sale of a business by a non-domiciliary violates Court precedent and the Due Process and Commerce Clauses.

On Friday, the Justices are scheduled to hold a private conference, orders from which could be released as soon as that afternoon. To view our list of petitions to watch at the conference, click here.

In granted cases, petitioners’ briefs are due Monday in Riley v. Kennedy (07-77), and Thursday in Republic of the Philippines v. Pimentel (06-1204), United States v. Clintwood Elkhorn Mining Company (07-308) and Rothgery v. Gillespie County (Tex.) (07-440). The respondent’s brief is due Wednesday in Cuellar v. United States (06-1456).

A copy of today’s orders – including grants of certiorari in Republic of the Philippines, et al. v. Pimentel, et al. (06-1204), United States v. Clintwood Elkhorn Mining Company (07-308) and Rothgery v. Gillespie County (Tex.) (07-440) – is now available here.

To read the lower court opinions and all available certiorari-stage filings in the above-listed cases, visit the petitions to watch list for the November 30 conference (here).

UPDATED 11:48 a.m.

The Supreme Court agreed on Monday to further clarify when a suspect taken into custody by police has a right to a lawyer. The question is whether that right sets in when an individual has been taken before a magistrate, who finds reason to believe a crime has been committed and sends the individual to jail, or whether it only attaches when a prosecutor prepares to or makes a charge.

The case of Rothgery v. Gillespie County, Texas (07-440) was one of three newly granted cases. The other two cases involve an appeal by the Philippine government in a dispute over control of the assets of the late president, Ferdinand E. Marcos, and an appeal by the federal government over the right to sue the government for a tax refund in a constitutional lawsuit, if the taxpayer has failed to first pursue a tax refund claim with the Internal Revenue Service and then filed a refund claim in federal court.

Among a number of significant cases denied review, the Court chose not to hear a new appeal by a Washington State congressman, Rep. James A. McDermott, in a long-running legal battle over his disclosure to the media of the audiotape of a conversation among House Republican leaders discussing strategy for dealing with an ethics scandal. As a result of the Court’s denial of review of McDermott v. Boehner (07-439), Rep. McDermott now faces the payment to Rep. Boehner of $10,000 in damages and $50,000 in punitive damages. The issue of liability for attorneys’ fees and costs, which have recently been estimated at perhaps $880,000 or more, is now pending in U.S. District Court. Chief Justice John G. Roberts, Jr., took no part in the Supreme Court’s order denying review of the new appeal. He was a member of the D.C. Circuit in an earlier stage of the case, when Rep. McDermott sought initial en banc review after the case returned from its first trip to the Supreme Court.

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The latest edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference of November 30. As always, the list reflects the petitions on the Court’s ‘paid’ docket that Tom has deemed to have a reasonable chance of being granted.

Conference of November 30, 2007
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Docket: 06-1204
Case name: Republic of the Philippines, et al. v. Pimentel, et al.
Issue: Whether, under Federal Rules of Civil Procedure 19(a) and (b), a court must dismiss an interpleader action involving a foreign country that has successfully claimed sovereign immunity.

• Opinion below (Ninth Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Amicus brief of the United States (in support of the petitioner)

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Docket: 07-101
Case name: Finlayson-Green v. Keisler
Issue: Whether the 180-day deadline to file a motion to reopen an in absentia removal order is jurisdictional or, alternatively, may be tolled based on ineffective assistance of counsel.

• Opinion below (Eleventh Circuit)
• Petition for certiorari
• Brief in opposition

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Docket: 07-137
Case name: Baranowski v. Hart
Issue: Whether a Texas prison regulation requiring the presence of a Rabbi or prison-approved outside volunteer to lead Sabbath services constitutes a “substantial burden” under the Religious Land Use and Institutionalized Persons Act.

• Opinion below (Fifth Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

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Docket: 07-261
Case name: Life Partners v. Morrison
Issue: Whether viatical settlements, involving the sale of life insurance policies to third parties, constitute the “business of insurance” under the McCarran-Ferguson Act and are thus insulated from challenge under the Dormant Commerce Clause.

• Opinion below (Fourth Circuit)
• Petition for certiorari
• Brief in opposition (Morrison in his official capacity)
• Brief in opposition (State of Virginia)
• Petitioner’s reply
• Amicus brief of 60/Plus Association (in support of petitioner)

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Docket: 07-266
Case name: Perfect 10, Inc., v. CCBill LLC, et al.
Issue: Whether trademark and right of publicity claims filed under state law fall within the immunity exception of the Communications Decency Act.

• Opinion below (Ninth Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
  
• Amicus brief of the Screen Actors Guild (in support of the petitioner)
• Amicus brief of CMG Worldwide, Inc. (in support of the petitioner)

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Docket: 07-284
Case name: Maryland v. Paulino
Issue: Whether the Fourth Amendment permits police to search for drugs hidden between a suspect’s buttocks cheeks during an arrest.

• Opinion below (Court of Appeals of Maryland)
• Petition for certiorari
• Brief in opposition
• Amicus brief of Oklahoma, et al. (in support of the petitioner)

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Docket: 07-308
Case name: United States v. Clintwood Elkhorn Mining Company
Issue: Whether a coal company that did not meet the Tucker Act statute of limitations may seek a tax refund (with interest) directly under the Export Clause of the Constitution. (Disclosure: Akin Gump represents the respondent.)

• Opinion below (Federal Circuit)
• Petition for certiorari
• Brief in opposition

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Docket: 07-420
Case name: Village of Glendale v. Pagan
Issue: Whether the First Amendment requires municipalities to justify ordinances barring placement of “For Sale” signs in car windows by presenting evidence beyond their own belief in the need for regulation.

• Opinion below (Sixth Circuit)
• Petition for certiorari
• Brief in opposition

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Docket: 07-439
Case name: McDermott v. Boehner
Issue: Whether, after Bartnicki v. Vopper (2001), the First Amendment prohibits application of the federal wiretapping statute to a U.S. Representative who played an illegally recorded conversation involving other members of Congress to the news media.

• Opinion below (D.C. Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Amicus brief of Representatives Howard Berman, Barney Frank, Zoe Lofgren and George Miller (in support of the petitioner)

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Docket: 07-440
Case name: Rothgery v. Gillespie County (Tex.)
Issue: Whether the Sixth Amendment right to counsel attaches to defendants brought before a magistrate and jailed pending posting of bond if prosecutors were not involved in the arrest or court appearance.

• Opinion below (Fifth Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Amicus brief of 22 law professors (in support of the petitioner)

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