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.

Read the rest of this entry »

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.

Read the rest of this entry »

The Supreme Court will hear oral argument at 1 p.m. today in Beard v. Kindler (08-992). The briefs and other filings in the case are available here on ScotusWiki.

Beard v. Kindler is a capital case with an unusual twist: the defendant appealing his sentence, Joseph Kindler, escaped twice from prison.  A Pennsylvania state court held, and the state supreme court agreed, that Kindler waived his right to appeal when he fled.  But the Third Circuit disagreed and affirmed the district court’s grant of habeas relief.

In Beard, the Court will consider when state courts have resolved an inmate’s claims on “adequate grounds” such that federal courts may not review that inmate’s habeas claims.  In particular, the Court will consider whether a state procedural default rule like Pennsylvania’s is “inadequate” solely because it is discretionary.

Read the rest of this entry »

Tuesday’s orders are still dominating the news and blog headlines.  At USA Today, Joan Biskupic reports on the cert. grant in Kiyemba v. Obama (08-1234), noting that the case represents the first time the Obama administration will come before the Court on the issue of Guantánamo Bay detention policy and also pointing out that Kiyemba will “test the strength” of the Court’s 2008 ruling in Boumediene v. Bush.  Andy Worthington at the Huffington Post also covers Kiyemba, detailing the legal background at issue in the case, and a Washington Post editorial urges the Obama administration to craft a political remedy for the Uighur detainees’ plight before the Court resolves the issue – “possibly in a manner that could reach well beyond these cases.”

Read the rest of this entry »

At Balkinization, Barry Friedman analyzes the Court’s docket for the new Term and notes that business and criminal cases have dominated the Court’s recent cert. grants.  Observing that these cases are less likely than some others to divide the Justices on ideological grounds, he hypothesizes that this Term’s docket may result from “defensive denials” – that is, the practice by which a Justice votes to deny a petition for certiorari when her interpretation of the case is likely to be overruled on the merits.  Because Justices on the current Court are sometimes wary of their colleagues’ positions on ideologically controversial issues, Friedman reasons, some may be unlikely to grant cert. in cases addressing those concerns.

Read the rest of this entry »

Tuesday’s cert. grant in the case of former Enron executive Jeffrey Skilling continues to dominate the headlines.  Greg Burns of the Chicago Tribune comments on the grant, arguing that the decision to review Skilling’s conviction sets the stage for a decrease in fraud prosecutions under a widely used law prohibiting executives and government officials from depriving their clients and constituents of the “right to honest services.”  However, Burns points out that the Court’s decision not to consolidate Skilling’s case with two other “honest services” cases, Weyhrauch v. United States and Black v. United States, suggests that the “honest services” statute might not be thrown out altogether.   The piece also suggests that the outcome of the cases may have implications for the indictment of former Illinois Governor Rod Blagojevich. 

Read the rest of this entry »

At oral argument in Padilla v. Commonwealth of Kentucky (08-651) on Tuesday, the Court considered whether the Sixth Amendment provides a remedy to defendants who have been misadvised by their attorneys.  Arguing on Mr. Padilla’s behalf, Stephen Kinnaird asserted that his client is entitled to relief because any advice given to a defendant by his attorney with regard to a guilty plea affects criminal liability, and therefore must meet competency standards.   Although the Justices expressed reservations concerning the precedent that might be set by such a decision, pressing him to draw a line between “the consequences that count and those that don’t,” Mr. Kinnaird assured them that the use of the Strickland test can address these contextual concerns.  Mr. Kinnaird also emphasized the importance of Strickland’s prejudice prong, asserting both that it was met in this case because Mr. Padilla had a reasonable chance of succeeding at trial and that the application of such a standard in similar cases would prevent courts from becoming overwhelmed by challenges to guilty pleas.  However, the Justices did express concern that such a ruling would place a burden on courts to inquire into the circumstances of every guilty plea.

Read the rest of this entry »

The grant of certiorari in Skilling v. United States yesterday is dominating news and blog headlines.

As the New York Times reports, former Enron CEO Jeffrey Skilling is challenging his conviction under the federal law banning “honest services fraud,” or an attempt to “deprive another of the intangible right of honest services.”  Skilling claims the law is unconstitutionally vague, unless it is interpreted to mean that the defendant intended to derive private gain at the expense of his employer.  The government has conceded that Skilling’s actions to inflate Enron profits did not advance his private interests.  Yet Bloomberg points out the government’s claim that, for Skilling, “a victory on the honest services issue would leave intact his convictions on other securities fraud and conspiracy counts.”

Read the rest of this entry »

The transcripts of oral arguments are here for Padilla v. Kentucky (08-651), here for Smith v. Spisak (08-724), and here for South Carolina v. North Carolina (138 Original).

Adam Liptak at NYT previews Black v. United States and Weyhrauch v. United States, the “honest services” cases that the Court will hear this term.  The “honest services” law is intended to ensure that officeholders and employees act solely in the best interests of their constituents and employers, but prosecutors have invoked it to address public policy problems that are not necessarily illegal – for example, a system that distributes jobs based on nepotism.  The government contends that such laws are critical to protecting intangible qualities, such as candor or loyalty; opponents believe it allows prosecutors too much discretion to pursue those whom they simply don’t like or with whom they disagree.

Read the rest of this entry »

The Court will hear oral arguments in three cases.

In Padilla v. Kentucky (08-651), it will consider whether the Sixth Amendment’s guarantee of legal counsel is met by a defense lawyer who misrepresents the deportation consequences of a guilty plea to his noncitizen client.  Anna Christensen of Howe & Russell (along with David Owens of Stanford) previewed the argument yesterday on SCOTUSblog.

In the first capital case to be argued this term, Smith v. Spisak (08-724), the Court will consider jury unanimity as an issue in finding mitigating evidence in a capital case.  John Vukicevich, a law student at Washington College of Law, discusses the petitioner’s and respondent’s briefs at the SCOTUSwiki case page linked above.

The final argument, in South Carolina v. North Carolina (138 Original), the Court will consider whether non-parties may join lawsuits originally between two states.  SCOTUSblog’s Lyle Denniston analyzed the issue this spring, when the Court ordered a hearing on the question.

On Tuesday, October 13, the Court will hear arguments in No. 08-651, Padilla v. Commonwealth of Kentucky.  At issue in the case is whether a criminal defendant’s guilty plea can be set aside because his defense counsel affirmatively misadvised him with regard to the deportation consequences of the plea, and whether such misadvice constitutes ineffective assistance of counsel under the Sixth Amendment.

Stanford student David Owens has previously written on the background and certiorari‑stage briefs in the case at SCOTUSwiki; you can read his discussion here.

In his brief on the merits, Padilla argues that the Court’s decision should be governed by the two-pronged test outlined in Strickland v. Washington, which establishes a two-pronged test for assessing Sixth Amendment ineffective-assistance claims:  (1) did counsel’s performance “f[a]ll below an objective standard of reasonableness”; and, if so, (2) was the defendant prejudiced by his counsel’s deficient performance.  The first prong’s “objective standard of reasonableness,” Padilla argues, “turns on whether counsel was professionally competent, not whether he was right,” and can therefore be governed by “prevailing professional norms” such as ABA standards.  And his “counsel’s objectively unreasonable performance prejudiced him,” he explains, because it resulted in his making a guilty plea that he would not otherwise have made.

Read the rest of this entry »

Oral arguments continue tomorrow, after a Court holiday today for Columbus Day.  On Tuesday the Court will release orders from the Justices’ private conference last Friday.

The argument schedule for this week is as follows (links direct to our sister site, SCOTUSWiki.com):

Tues., Oct. 13:

Padilla v. Kentucky (08-651) — effect of defense lawyer’s wrong advice on consequences of a guilty plea
Smith v. Spisak (08-724) — unanimity of jury as an issue in finding mitigating evidence in a capital case
South Carolina v. North Carolina (138 Original) — participation of non-parties in Original cases

Wed., Oct. 14:

Alvarez v. Smith (08-351) — right to court hearing to challenge forfeiture for a drug crime
Perdue v. Kenny A. (08-970) — right of attorneys who win a case to receive higher fees

No private conference is scheduled for this week.

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.

Read the rest of this entry »

The October issue of the ABA Journal Magazine is out and brimming with commentary on the Court.  The Magazine likens the modern confirmation process of Court nominees to a “kabuki dance,” because Senators ask useless but inflammatory questions for the cameras and the candidates are too tight-lipped to reveal a good sense of their judicial philosophy.  The article traces this trend back to Justice Ginsburg’s confirmation, which occurred soon after the confirmation hearings of Clarence Thomas and Robert Bork, whose character and conservative judicial philosophies were viciously attacked.  Four authors propose reforms to the process: David Stras suggests that nominees be required to analyze five previous Court decisions, Stephen Carter wants to focus on nominees’ professional qualifications rather than disqualifications, Seth Rosenthal proposes a courtroom setup in which litigators ask questions, and Richard Davis is ready to dispense with hearings altogether for elections.

Read the rest of this entry »