The Court’s decision not to review a challenge by a Native American group to the Washington Redskins mascot leads Monday’s coverage. The Wall Street Journal, USA Today, NPR, and the hometown Washington Post all report on the Court’s denial of cert. in Harjo v. Pro-Football Inc.
On Sunday, L. Gordon Crovitz had an op-ed about Bilski v. Kappos in the The Wall Street Journal.
The Newark Star-Ledger’s editorial board is calling for eminent domain reform in New Jersey, citing Kelo v. New London as the main reason for reform.
The New York Times has two opinion pieces on last week’s oral arguments in Graham v. Florida and Sullivan v. Florida.
The Los Angeles Times has a piece on the slow pace of confirmations for President Obama’s judicial nominations.
Chicago Public Radio has a short podcast and piece on former Illinois Governor Rod Blagojevich’s attempts to delay his corruption trial. Next month the Supreme Court will hear arguments in a challenge to the “honest services fraud statute,” which Blagojevich has also been charged with violating. Blagojevich’s lawyers are asking for a delay pending the Court decision.
Finally, Jess Bravin of The Wall Street Journal reports that Justice Sonia Sotomayor will not be posing for Annie Leibowitz and Vogue because of her busy schedule.
The discussion of Monday’s arguments in Graham v. Florida and Sullivan v. Florida has continued through the end of the week. At Concurring Opinions, Alex Kreit comments on the arguments, highlighting in particular Chief Justice Roberts’s interest in the role that a juvenile offender’s age could play in Eighth Amendment proportionality review. Kreit speculates that the Chief Justice’s proposal “might provide an avenue for a majority of the Court to come together” on the issue of juvenile life without parole, but cautions that the Justices could still diverge even after agreeing on the basic premise of proportionality. US News & World Report continues its coverage of Graham and Sullivan as well. Gerry Shih, writing for the Bay Area blog of the New York Times, explores the cases’ potential implications for a new San Francisco ordinance banning officials from reporting undocumented juvenile offenders to federal immigration authorities.
On Tuesday, the Court heard oral arguments in Kucana v. Holder. My earlier preview of the case is available here. Check the Kucana v. Holder (08-911) SCOTUSwiki page for additional updates.
During oral argument on Tuesday in Kucana v. Holder, the Justices challenged all three arguing attorneys on issues ranging from Congressional intent to statutory interpretation. Although it was unclear whether the Court was inclined to accept Kucana’s contention that courts have jurisdiction to review decisions by the Board of Immigration Appeals denying motions to reopen immigration proceedings, it seems that the case could be decided on the minutiae of statutory text or on the legislative history behind IIRIRA.
Below, Stanford Law School’s Sina Kian recaps yesterday’s oral argument in Hertz Corporation v. Friend. Sina’s earlier preview of the case is available here. Check the Hertz Corporation v. Friend (08-1107) SCOTUSwiki page for additional updates.
Yesterday the Court heard oral arguments in Hertz Corp. v. Friend. The case arose from a dispute over diversity jurisdiction, and the question presented was simple, or at least simple to state: how should courts determine a nationwide corporation’s “principal place of business”?
Justice Sotomayor—the most active Justice during this argument—set the tone by acknowledging that any rule was susceptible to reductio ad absurdum arguments: “the problem with every test is that you can find an exception that makes the application ridiculous.” Throughout the argument, several Justices voiced preliminary agreement that any rule should operate as a rebuttable presumption. But that left the question: what should be the default rule?
The Court heard oral argument yesterday in Hertz Corporation v. Friend, which considers the standard to be used to determine a corporation’s citizenship for the purposes of diversity jurisdiction. At the National Law Journal, Tony Mauro reports that most of the justices seemed to favor some version of a standard that would focus on where a corporation has its headquarters, although some justices expressed concern that large companies might abuse the standard by strategically calculating where to locate their headquarters.
At the BLT, Marcia Coyle describes Justice Alito’s separate opinion concurring in the Court’s summary disposition of Bobby v. Van Hook, which reversed the lower court’s relief granted to a capital defendant because it relied on the guidelines of the American Bar Association to decide the definition of adequate counsel, as “curious.” Justice Alito criticized the ABA as “’a private group with limited membership’ and added that its views do not necessarily reflect the views of the bar as a whole.”
Monday’s oral arguments in Bilski, Graham, and Sullivan remain in the limelight. Coverage appears below the jump.
Analysis
It took less than two minutes Monday for the high-stakes patent case in the Supreme Court to descend to the level of questioning whether “Lorenzo Jones” could get a patent on one of his hare-brained inventions, if Bernard Bilski and Rand Warsaw could get one on their theory about managing business risk. “Jones,” an old-time radio figure who thought his creations in a garage would bring him fame and fortune, made an appearance in the first question, by Justice Antonin Scalia.
Scalia also suggested the seeming absurdity of a patent for Dale Carnegie’s influential 1936 book, How to Win Friends and Influence People. But it was the “Lorenzo Jones” comment that set the tone for the entire argument in Bilski, et al., v. Kappos (08-964). It would take a most inventive analyst to find a way in the argument for the risk-management idea under review to fit into the Patent Act’s coverage. The idea had no defenders whatsoever on the bench
The largest question left unanswered when the one-hour argument was over was whether the Court would go forward and issue a major new ruling interpreting patent law, when the practical result here seemed so evident. Lawyers and judges have invested heavy resources in the Bilski case, and it does raise a fundamental question that may well need answering. But, when there may well be no formulation of patent law that would salvage the Bilski-Warsaw creation, why bother?
The Supreme Court on Monday refused to delay the execution in Virginia Tuesday night of John Allen Muhammad for a murder that was part of a sniper shooting rampage in the Washinton area seven years ago. The Court also refused to hear an appeal filed by Muhammad’s lawyers. The order is here.
Three Justices filed a separate statement saying the case “highlights once again the perversity of executing inmates before their appeals process has been fully concluded.” Justices John Paul Stevens wrote the statement, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor. The statement, however, pointedly added that those Justices did not dissent from the Court’s refusal to hear Muhammad’s legal claims.
Muhammad is scheduled to be executed at 9 p.m. Tuesday.
Analysis
Chief Justice John G. Roberts, Jr., made a strong — and repeated — effort on Monday to recruit a majority of the Supreme Court in favor of giving juveniles more chance to use their age to challenge life-without-parole prison terms, as an alternative to a flat constitutional bar against ever imposing that sentence. With a number of Justices wondering where to draw an age line if the categorical approach were used, the Chief Justice’s initiative seemed to have a good chance of gaining adherents as the Court heard Graham v. Florida (08-7412) and Sullivan v. Florida (08-7621).
Lawyers for the two youths, who committed non-homicide crimes at age 16 and 13, sought to persuade the Court that the only way to deal constitutionally with no-release sentences for minor offenders was to declare all such sentences forbidden. While there was much sympathy evident among some — not all — of the Justices for treating juveniles differently, it did not appear that there was a clearcut majority for taking away altogether the life-without-parole option even in cases where the victim of a youth’s crime did not die.
Below, Stanford Law School’s Brian Goldman recaps Tuesday’s oral argument in Hemi Group v. City of New York. Brian’s earlier preview of the case is available here. Check the Hemi Group v. City of New York (08-969) SCOTUSwiki page for additional updates.
At oral argument on November 3 in Hemi Group v. City of New York, the Court wrestled with the case’s two primary questions: First, do unassessed taxes fit within RICO’s definition of “property,” such that treble damages can be sought when a civil defendant commits a predicate act that deprives a local government of the ability to collect taxes? Second, were the defendant’s actions here – running an internet cigarette business that advertised products as “tax free” to customers in high tobacco tax jurisdictions, and then failing to comply with federal law requiring that sales be reported to purchasers’ states to facilitate tax collection – a proximate cause of the City’s loss?
The Court heard oral argument yesterday in Pottawattamie County v. McGhee (08-1065). For background on the case, see my earlier preview. Check the case page on SCOTUSwiki for updates.
The oral argument in Pottawattamie County v. McGhee was an exercise in drawing lines – between policemen and prosecutors, investigation and prosecution, and torts of constitutional and non-constitutional varieties. The main line at issue in the case circumscribes acts that carry immunity for prosecutors. The Court seemed inclined to draw it based on the incentives created for prosecutors and potential litigants.
Justice Stevens depicted the petitioners’ view of immunity as “a strange proposition” – and Deputy Solicitor General Neal Katyal, arguing for the United States and the petitioners, agreed it “seems a little odd.” The idea everyone found so strange was that the closer an officer is to a wrongful conviction, the more immune she is for it. Two hypotheticals Justices Ginsburg and Kennedy posed to Stephen Sanders – also arguing for the prosecutors – zeroed in on that strangeness: Could a policeman be held liable for fabricating evidence? Or could a prosecutor from another case? Sanders was forced to admit that both the policeman and the second prosecutor could be held liable, though the prosecutor of the case himself could not.
Princeton University’s Program in Law and Public Affairs is hosting a panel discussion next Wednesday titled “Full Court Press: The Supreme Court, the Media and Public Understanding.” The program will focus on issues of public understanding of the Court raised by Justice Sotomayor’s confirmation process over the summer. The panel will feature Emily Bazelon and Dahlia Lithwick of Slate, Adam Liptak of The New York Times, and Jeffrey Toobin of CNN.
Coverage of yesterday’s arguments in Pottawattamie County v. McGhee and Wood v. Allen appears after the jump.
An earlier preview of the case is available here. Check the Beard v. Kindler (08-992) SCOTUSwiki page for additional updates.
It became clear during the Beard v. Kindler oral argument on Monday, November 2, that the question presented in the petition for certiorari – whether a state procedural default rule is inadequate solely because it is discretionary – was not actually in dispute. Everyone – including the respondent and the Court – agreed that discretionary rules can be adequate. Justice Kennedy summed it up in his blunt statement to the Commonwealth’s lawyer, Ronald Eisenberg: “I don’t think the question you presented is really that squarely before us.”
Analysis
Sometimes, the Supreme Court seems not so concerned about the case actually before it, as it is about the next case: where might a decision in the first case lead in the future? In lawyers’ shorthand, is the Court about to put a legal issue on a logical “slippery slope”? Will dire consequences occur if a ruling’s reasoning runs too far? The Justices found themselves looking down slippery slopes on Monday, as they heard argument in an important case pitting state sovereignty against federal court authority, the Shady Grove Orthopedic case (08-1008).
One version of unwanted consequences, emerging from comments both from the bench and from a lawyer for Shady Grove Orthopedic Associates, was that the Court risked encouraging states to cut off entirely the right of consumers to join together to pursue their legal claims in class-action lawsuits in federal court. A different version, also emanating from both the bench and a lawyer for Allstate Insurance Co., was that the Court risked overturning, by implication, an array of existing state laws defining what remedies consumers may seek for wrongs that are defined by state law.
Discussion is already turning to this morning’s orders, which we covered and analyzed earlier. At the Wall Street Journal, Dow Jones Newswire’s Kristina Peterson addresses the Court’s denial of cert. in a drug-patent dispute between generic drug manufacturer Apotex Corp. and patent-holders Sanofi-Aventis and Bristol-Myers Squibb, while the Associated Press has coverage of the Court’s decision not to hear an appeal to stop the release of documents relating to sexual abuse lawsuits against Roman Catholic priests in Connecticut. The AP also reports that the Court will address the legality of decisions made by only two members of the National Labor Relations Board, and the Wall Street Journal has an article on the Court’s decision to let stand a government fee imposed against Daewoo Engineering and Construction Co.; the company was found to have failed to submit a fully accurate claim for government funding. (Disclosure: Akin Gump represented the petitioner in the case.) The Court also let stand a ruling permitting prosecutors to charge a Ku Klux Klan member with kidnapping more than 40 years after the alleged crime took place, according to the AP.
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