With the February sitting concluded, the blog now revives its tradition of providing statistics on the Court’s docket and decisions. (All statistics compilations since OT95 can be found on SCOTUSWiki here.) This month’s mini “StatPack” includes the Opinion Authors by Sitting chart and the Circuit Scorecard and is available for download here. (Updated: The original document erroneously listed Justice Stevens as the author of Pleasant Grove v. Summum.  Justice Alito authored the opinion, meaning that only Justice Scalia has not written a November opinion.)

30 cases have been decided of the 79 consolidated cases scheduled for argument. The next StatPack will compare this term’s docket to OT07, but one immediate standout from the Circuit Scorecard is the continued presence of the 9th Circuit, taking up 20.3% of the docket with 16 cases; last year, 10 of 71 cases, or 14%, came from the 9th Circuit.

Also notable is that all of the October sitting arguments have been decided except for Arizona v. Gant (07-542),  on the scope of the Fourth Amendment in car searches. All of the Justices have written at least one opinion from October, with the Chief Justice and Justices Souter and Ginsburg writing two each. The only outstanding cases from the November sitting are FCC v. Fox Television Stations (07-582), on “fleeting expletives,” and Melendez-Diaz v. Massachusetts (07-591), on a defendant’s right to cross-examine forensic analysis. Justice Scalia has not yet written an opinion from the November sitting; Justices Stevens, Thomas, and Breyer have each written two from November.

The next StatPack will include a Justice Agreement chart and a cert grant trend chart. Please e-mail kmoore [at] akingump [dot] com with comments on what other analysis would be helpful.

Analysis

Justice John Paul Stevens provided this assessment of the Supreme Court’s new review of the constitutionality of placing religious monuments on government property: “…the effect of today’s decision will be limited.”  In fact, in the 15 weeks between the Court’s hearing on Nov. 12 in Pleasant Grove City v. Summum (07-665) and the final decision Wednesday, one thing remained absolutely unchanged: the real dispute here was not about free speech, but about church-state relations.  But that was not even argued.

At the oral argument, Chief Justice John G. Roberts, Jr., told a lawyer for the small Utah city defending  its policy on a Ten Commandments monument in a city park: “You’re just picking your poison, aren’t you?  I mean, the more you say that the monument is government speech, to get out of the Free Speech Clause, the more it seems to me you’re walking into a trip under the Establishment Clause.”

When the decision emerged, the Court was unanimous, at least in votes cast: government policy on placement of permanent markets in a public park is, constitutionally speaking, a form of government speech so there is no Free Speech Clause issue when a Ten Commandments monument is accepted but a monument to a different religion is excluded.  The First Amendment clause protecting free speech only limits government regulation of private speech, and does not curb what the government can say, the Court said in the main opinion written by Justice Samuel A. Alito, Jr.

There was some quibbling among the Justices on that score, but not one of them voted against the victory the Court handed to Pleasant Grove City, Utah.  But that may well not be a complete victory, and it certainly did not put an end to a constitutional controversy. Three Justices suggested quite plainly that, if the city is perceived as embracing the Christian dogma that is behind the Ten Commandments, the First Amendment’s Establishment Clause may come into play.   But two Justices said there simply won’t be an Establishment Clause problem down the road.  And that debate surely will go on.

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The Court has released the opinion in Pleasant Grove City, UT v. Summum (07-665). The decision below, which held for the religious organization, is reversed and remanded in a 9-0 opinion written by Justice Alito. Four concurring opinions were written by Justices Stevens, Scalia, Breyer and Souter. The opinion is available here.

The Court has also released the opinion in Pacific Bell Telephone Co.,dba AT&T California v. linkLine Communications (07-512). The decision below, which held for linkLine, is reversed and remanded in a 9-0 opinion written by Chief Justice Roberts. Justice Breyer filed an opinion concurring only in the judgment. The opinion is available here.

Without dissent, the Supreme Court ruled on Wednesday that governments may accept permanent religious monuments in public parks without violating the rights of others who are denied a chance to have a different religious icon sharing park space.  Justice Samuel A. Alito, Jr., wrote for the Court in Pleasant Grove City v. Summum (07-665).  Such a monument, whether government financed or privately donated, must be considered “government speech,” conveying a message that it wishes to get out about “esthetics, history, and local culture.”  Four Justices filed concurring opinions, representing the views of six Justices, thus requiring their views to be taken into account in determining just when governments may put up such monuments on public property.

The ruling turned solely on the Constitution’s Free Speech Clause. A religious sect, the Summum, contended that its free speech rights were violated when the city of Pleasant Grove City, Utah., accepted a Ten Commandments monument in its public park but refused to accept a monument displaying tenets of the Summum faith.  The “Seven Aphorisms” of that faith represent what believers view as the contents of the original tablets handed down by God to Moses on Mount Sinai.

Justice Alito’s opinion noted that, when acceptance of a Ten Commandments or other religious monument is treated as conveying the message of the government, the free speech clause does not apply, since that clause only restricts government regulation of private speech.  Even if the government speaks through a display provided by some private person or group, the opinion added, that does not take away from its character as government speech.

Alito added that the government, however, is not free to utter a message that violates the Constitution’s ban on official “establishment” of religion.  That, however, was not at issue in the Summum case at this point.

In a second ruling Wednesday, also without dissent, the Court ruled that a claim of “price squeeze” may not be pursued under the Sherman Act’s anti-monopoly section, if the targeted company that sells at both wholesale and retail but has no duty under antitrust principles to deal with others at the wholesale level, where it has a monopoly.  A “price squeeze” involves selling at high prices in its wholesale sales and low prices at retail to undercut rival retail sellers. Chief Justice John G. Roberts, Jr., wrote for the Court in Pacific Bell, et al., v. linkLine Communications (07-512).  Four Justices joined in only the result, not the Roberts opinion.  The ruling was a victory for several West Coast affiliates of AT&T Corp. that together provide telephone lines used for DSL connections to the Internet.

The Court has now finished releasing opinions for the day.

Analysis

If a case does not fit within a constitutional pigeonhole, is there no other way to define it so that a legal dispute can be decided?  That was the lingering question Wednesday as the Supreme Court tried to hack its way through a thicket of constitutional labels, with the legal fate of monuments donated by private groups and placed in government-owned parks hanging in the balance.  The case of Pleasant Grove City v. Summum (07-665) seems to have much to do with “public forum,” “limited public forum,” “government speech,” “private speech,” and “viewpoint discrimination,” among other categories. But the Court’s members seemed unpersuaded that any of them is just right for this case.  The Justices weren’t even sure which part of the First Amendment is really at issue — free speech, or church-state separation.

Justice Anthony M. Kennedy spoke disparagingly, saying “this case is an example of the tyranny of labels.”  He also wondered somewhat forlornly: “Does the law always require us to adopt an all-or-nothing position?….Do we have to decide this case that it’s all or nothing?”  Justice Stephen G. Breyer, on the same theme, asked: “Are we bound in these cases to apply what I think of as an artificial kind of conceptual framework or are we free to ask what seems to me to be at the heart of the matter?”

Justice David H. Souter suggested that “the tough issue here” is that “there is in fact a mixture, that it is government [speech] and private [speech]…We haven’t had this kind of a challenge before.”

Part — perhaps most — of the Court’s difficulty in pursuing a flexible basis for deciding the case was that standing before the Court were three lawyers each of whom argued for a simple, mainly label-driven outcome.  One said mere acceptance of a monument, whatever its message, turns it into “government speech.” One said the choice of monuments is simply what “government as curator” does, as in selecting paintings for a museum. And one said that a public park is a “public forum,” so monuments can’t be accepted or rejected for display there on the basis of what they say.

Although the Court did not appear convinced that it could rely on such simplicity, Justice Antonin Scalia provided a reminder that some ground of decision had to be found.  “We need a clear rule here,” he said. “We can’t expect the courts or the cities for that matter to investigate in every case what the degree of the Government’s involvement [is].”  (It was plain that Justice Scalia, for himself at least, would be content with a decision that government may explicitly embrace a religious monument without fretting about either part of the First Amendment.)

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The transcript of today’s argument in Pleasant Grove City, UT v. Summum (07-665) is now available here.

The transcript of today’s argument in Bell v. Kelly (07-1223) is now available here.

At 10 a.m, the Court will hear argument in Pleasant Grove City, UT v. Summum (07-665), on whether donated monuments displayed in public parks qualify as private speech, thus requiring municipalities to display monuments from all other donors. Jay Sekulow of Washington, D.C., Deputy Solicitor General Daryl Joseffer will argue for the petitioner, and Pamela Harris of Washington, D.C., will argue for the respondent.

At 11 a.m, the Court will hear argument in Bell v. Kelly (07-1223), on whether the deferential standard in the federal habeas statute should be applied to claims a state court did not consider. Richard Bress of Washington, D.C., will argue for the petitioner, and Katherine Burnett of the Virginia Attorney General’s office will argue for the respondent.

We will post links to transcripts of the arguments as soon as they are available.

At 10 a.m. Wednesday, the Supreme Court will hear argument on the constitutional status of monuments placed in public parks by private groups or individiuals, in the case of Pleasant Grove City, et al., v. Summum (07-665).  The Utah city will be represented by Jay Alan Sekulow of the American Center for Law and Justice, dividing time with Deputy U.S. Solicitor General Daryl Joseffer for the United States as amicus.  Pamela Harris of O’Melveny & Myers will represent the religious group, Summum.  The following material was prepared, in significant part, by Troy D. Cahill and Steven C. Wu of Akin Gump. Links to the documents filed in the case can be found on ScotusWiki at this link.

NOTE TO READERS: The background and petition stage mateials here were published previously in 2007 as a copyrighted work of ALM Properties Inc.  Updated factual information has been added.  (Disclosure: Akin Gump is co-counsel for the City.)

Background

In September 2003, the mayor of Pleasant Grove City, Utah, received an unusual letter from Summum “Corky” Ra, the leader of a little-known religious organization based in Salt Lake City. As he had done in other towns in Utah, Ra sought permission to erect a monument to the “Seven Aphorisms of Summum” in a city park, alongside a depiction of the Ten Commandments that had been donated to the city more than three decades prior.

After city officials denied his request, Ra filed a suit alleging a violation of the free speech clause of the First Amendment. The U.S. Court of Appeals for the 10th Circuit eventually agreed, finding the park to be a traditional public forum and the Ten Commandments monument to constitute the private speech of the original donor.

The case could impact whether municipalities around the country will continue to display donated monuments on public property. 

Founded in Salt Lake City in 1975, the Summum faith believes Moses originally descended from Mount Sinai, not with the Ten Commandments, but with a set of seven principles – or aphorisms – that he revealed to only a select few. Over the last decade, leaders of the faith have sought to erect monuments of the aphorisms in numerous Utah towns alongside displays of the Ten Commandments donated by private organizations.

Pleasant Grove denied the Summum’s request, citing a city requirement that permanent displays in the park either be directly related to city history or be donated by a group with longstanding community ties. (The Ten Commandments monument was donated by the Fraternal Order of Eagles.)

In the suit, the Summum contended the city violated its free speech rights by excluding its monument while allowing the Ten Commandments monument to be displayed in the park. After the district court denied the Summum’s request for a preliminary injunction, the 10th Circuit reversed with instructions to grant a preliminary injunction allowing the Summum to erect its monument in Pioneer Park.

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On Monday, the Court will release orders from the Justices’ private conference last Friday. We will provide a link to the orders list as soon as it is available. Following the release of orders, the Court will hear argument in:

• Chambers v. United States (06-11206), on whether failure to report to prison is a “violent felony” under the Armed Career Criminals Act.
• United States v. Hayes (07-608), on whether federal gun laws require a domestic relationship between an attacker and victim to qualify as a misdemeanor crime of “domestic violence.”
• Melendez-Diaz v. Massachusetts (07-591), on whether the Confrontation Clause gives criminal defendants a right to cross-examine forensic analysts who prepare laboratory reports for use in their prosecution.

On Tuesday, the Court will be closed in observance of Veterans’ Day.

On Wednesday, the Court will hear argument in:

• Pleasant Grove City, UT v. Summum (07-665), on whether donated monuments displayed in public parks qualify as private speech, thus requiring municipalities to display monuments from all other donors.
• Bell v. Kelly (07-1223), on whether the deferential standard in the federal habeas statute should be applied to claims a state court did not consider.

On Friday, the Justices will hold a private conference, orders from which are expected to be released the following Monday. To view our list of petitions to watch at Friday’s conference, click here.

On Monday, both sides in Kennedy v. DuPont Savings Plan Administrator (07-636) are to file supplemental briefs on the role of plan documents in interpreting the scope of ERISA benefits. A post discussing the Court’s call for added briefs can be read here.  The case was argued on Oct. 7.

No petitioners’ merits briefs are due this week.  The respondent’s brief is due Wednesday in Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran v. Elahi (07-615).

The Supreme Court issued its second round of summer recess orders Monday, but no action was taken on a plea by the state of Louisiana to reconsider the June 25 decision in Kennedy v. Louisiana (07-343), striking down the death penalty for the crime of raping a child.  Although the Court could act at any time, the next scheduled release of summer orders will be on Friday, Sept. 5.

Monday’s orders can be found here.

Among the orders the Court did release on Monday, it refused to rehear its rulings in companion cases on June 12, barring U.S. courts from stopping the American military in Iraq from releasing two U.S. citizens to Iraqi authorities to answer for crimes allegedly committed in that country.  The decision came in Munaf v. Geren (06-1666), together with Geren v. Omar (07-394).  As is customary, there was no explanation for the denial.

In other orders, the Court allowed the federal government to take part in oral argument in three cases.  Acting Solicitor General Gregory G. Garre had sought permission for a lawyer from his office to join in the hearings Oct. 6 in Altria Group v. Good, et al. (07-562), on Oct. 14 in Pearson v. Callahan (07-751), and on Nov. 12 in Pleasant Grove City v. Summum (07-665).

The Altria Group case involves the right of individual smokers to sue tobacco companies under state law over the marketing of so-called “light” cigarettes.  The Altria appeal argues that such lawsuits are barred expressly by federal law, or at least by implication drawn from the Federal Trade Commission’s actions. The FTC and the Justice Department in the government brief address only the implied preemption argument, asserting that the Commission’s actions do not bar such lawsuits.

The Pearson case is a test of police authority to search a house without a warrant, if they enter right after an undercover agent has gone in.  In granting review, the Court asked the lawyers to argue whether it should overrule its 2001 decision in Saucier v. Katz, laying down a method for analyzing whether officials accused of violating someone’s constitutional rights have limited immunity to lawsuits for their actions. The two-step inquiry first asks whether a constitutional right is at stake, and, if so, whether it was clearly established at the time of the incident involved.  The U.S. government, in its brief in the case, urged the Court to relax the requirement that the constitutional question be answered first, allowing lower courts to focus, at least in some cases, on whether an arguable right exsisted clearly at the time. That brief also argued that there was no Fourth Amendment violation in the police entry without a warrant under the circumstances here.

In the Pleasant Grove City case, the issue is the scope of the right of a private group to display a permanent religious monument on government property, including a public park, if the government entity responsible has accepted other objects donated by other private individuals or groups.  The U.S. government brief filed in the case argued that what is at stake is “government speech,” so the First Amendment does not require the acceptance of monuments that convey messages that the government entity does not embrace.

The Court is in recess for the summer. The opening conference for next term will take place September 29. Oral arguments will resume October 6.

Petitioners’ merits briefs are due Monday in Knowles v. Mirzayance (07-1315), Wednesday in Philip Morris USA, Inc. v. Williams (07-1216), and Thursday in Haywood v. Drown (07-10374). Respondents’ merits briefs are due Monday in Bartlett v. Strickland (07-689) and Friday in Negusie v. Mukasey (07-499) and Pleasant Grove City, UT v. Summum (07-665).

The Supreme Court on Monday released the schedule of oral arguments for the sitting beginning Monday, Nov. 3.  The calendar can be found here.  On three of the five days on the calendar, the Court will hear three cases each; morning arguments begin at 10 a.m., afternoon at 1 p.m. Four of the highly visible cases granted for the new Term are to be heard during this session: tests of states’ power to regulate drug labeling, the government’s authority to ban vulgar words on radio and television, the use of crime lab reports in criminal trials, and the placement of religious monuments in public parks.  Although Tuesday, Nov. 4, is election day, the Court will hold hearings.

Here are the scheduled cases, with summaries of the issues at stake:

Mon., Nov. 3

Wyeth v. Levine (06-1249) — federal preemption of state drug labeling law

Ysursa v. Pocatello Education Association (07-869) — state legislative control of county and city payroll policies

Carcieri v. Kempthorne (07-526) — federal power to set aside land for Indian tribes’ use

Tues., Nov. 4

FCC v. Fox Television Stations (07-582) — scope of federal law on use of single or fleeting use of “indecent” words on radio and TV

U.S. v. Eurodif (07-1059) and USEC v. Eurodif (07-1078) — federal power to impose “anti-dumping” fees on imports (cases consolidated for one hour of argument)

Jimenez v. Quarterman (07-6894) — clarification of one-year filing deadline for habeas petitions

Wed., Nov. 5

Negusie v. Mukasey (07-499) — availability of asylum in U.S. for individual who formerly was a prison guard abroad

Van de Kamp v. Goldstein (07-854) — legal immunity for supervisors of prosecutors at the trial level

Mon., Nov. 10

Chambers v. U.S. (06-11206) — failure to report to jail as “violent felony” under federal armed career criminal law

U.S. v. Hayes (07-608) — ban on gun possession after conviction for domestic violence

Melendez-Diaz v. Massachusetts (07-591) — right to confront at trial a forensic expert who prepared a crime lab report offered as evidence

Tues., Nov. 11 (legal holiday; no arguments)

Wed., Nov. 12

Pleasant Grove City v. Summum (07-665) — right to display religious monument on government property, including public park

Bell v. Kelly (07-1223) — scope of federal court duty in habeas to defer to state court findings

The following post is by Steven Wu, an associate at Akin Gump. Steven worked on the brief discussed in this entry.

On Monday, the city of Pleasant Grove, Utah, filed this opening brief with the Supreme Court in the case of Pleasant Grove City v. Summum, No. 07-665. The issue in the case is whether the city violated a private group’s free speech rights when it refused to display the group’s proposed monument in a public park that already contained other privately donated but government owned monuments. (Disclosure: Akin Gump is co-counsel for the City.)

A longer description of the background to the case may be found here. To summarize: Summum is a church founded in 1975 by Claude “Corky” Nowell, a.k.a. Summum Bonum Amon Ra. Among other beliefs, Summum holds that the Old Testament’s Ten Commandments are an incomplete expression of nature’s laws. A full expression, Summum believes, should also include the Seven Aphorisms of Summum.

In 2003, Summum sent a letter to the mayor of Pleasant Grove City — a small town that was one of the earliest Mormon settlements in Utah — seeking permission to erect a monument containing the Seven Aphorisms alongside an existing monument of the Ten Commandments in the city’s Pioneer Park. The Ten Commandments monument had been donated to the city by the Fraternal Order of Eagles several decades ago. In addition to the Ten Commandments monument, Pioneer Park contains a number of other buildings, monuments, plaques, and memorials that portray and commemorate the city’s Mormon pioneer and civic heritage.

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On Monday, the Court is expected to release at least one opinion, as well as orders from the Justices’ private conference last Thursday.

On Thursday, the Court is scheduled to hold a private conference, orders from which are expected to be issued the following Monday, June 23. To view our list of petitions to watch at Thursday’s conference, click here. In advance of the conference, the Justices may issue opinions as well.

Petitioners’ briefs are due Monday in Negusie v. Mukasey (07-499), Melendez-Diaz v. Massachusetts (07-591), and Pleasant Grove City, UT v. Summum (07-665) and Tuesday in Jimenez v. Quarterman (07-6984). The respondent’s merits brief is due Friday in Summers, et al. v. Earth Island Institute, et al. (07-463).

(Links above direct to case pages on SCOTUSwiki.)

A copy of today’s orders list – including grants of certiorari in two cases — is now available here. As they become available, all available certiorari-stage filings will be posted after the jump.

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