At the WSJ Law Blog this morning, Ashby Jones previews McDonald v. City of Chicago, in which the Court will examine the constitutionality of a Chicago gun-control ordinance and, more generally, the Second Amendment’s applicability to the states.  The petitioners, in a brief filed this week, rely on the Fourteenth Amendment’s Privileges or Immunities clause to argue that the right to bear arms is a “privilege” that the states cannot abridge; however, Jones notes that the petitioners’ originalist reading could “open the door advocating for the existence of other rights that have yet to be acknowledged by the Court.”

The Philadelphia Inquirer’s Samuel Buell discusses Supreme Court precedent for the possible use of an “outrageous government conduct” defense by accused 9/11 mastermind Khalid Sheikh Mohammed and his alleged co-conspirators.  The defense, which dates back to a 1952 opinion by Justice Felix Frankfurter, has been used in the past to dismiss prosecutions, and Buell speculates that if Mohammed asserts a similar defense, a federal court  could only avoid dismissing the prosecution against him “by eliminating the outrageous-misconduct defense – that is, ruling that it no longer exists.”  Thus, suggests Buell, Mohammed’s case seems destined for the Court – perhaps even before he can be tried.

Read the rest of this entry »

Below, Elisabeth Oppenheimer of Stanford Law School previews Stop the Beach Renourishment v. Florida Department of Environmental Protection (08-1151), which will be heard by the Supreme Court on Wednesday, December 2.  Check the Stop the Beach Renourishment SCOTUSwiki page for additional updates.

On Wednesday, December 2, the Court will hear oral argument in No. 08-1151, Stop the Beach Renourishment v. Florida Department of Environmental Protection.  The case presents the Court with an opportunity to develop new law on a question that has long attracted attention from scholars and, occasionally, the justices themselves: whether a judicial decision can ever constitute a government taking. Justice Potter Stewart first broached this possibility in 1967 in his concurring opinion in Hughes v. Washington, a case involving a state supreme court decision that had the effect of depriving the petitioner of property.  In Justice Stewart’s view, if the state court property decision “arguably conform[ed] to reasonable expectations,” the Supreme Court could not review it.  But, he said, if the decision was “a sudden change in state law, unpredictable in terms of the relevant precedents,” a federal takings question was presented.

Read the rest of this entry »

For those that use empirical data to study the Supreme Court, the new Supreme Court Database is now live at supremecourtdatabase.org.  The biggest advantage to the new version of the Database is that it is now more user-friendly and accessible to those who study the Court, but may not have empirical background or training.   I have not made use of the new online version of the Database yet, but I am told that it is quite remarkable.  Right now, the Database has case and justice-centered data for the period from 1953-2008, but Andrew Martin (one of the lead investigators on the project) tells me that the investigators have already begun to code data from the Court’s first decision in 1792 and the goal is to have the backdating completed within the next four to five years.   Unlike prior versions, the new Database also has a tutorial feature, see here, permitting those who have never used it to experiment with the data.  From all accounts, this will be an excellent resource for media, scholars, and the general public in the years to come.  For earlier coverage of the database, see here.

Read the rest of this entry »

This edition of “Petitions to Watch” features cases up for consideration at the Justices’ next private conference on Tuesday, November 24.  As always, it lists the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted.  Links to all previous editions are available in our SCOTUSwiki archive.

Read the rest of this entry »

Linda Greenhouse has an article in the Charleston Law Review’s Supreme Court Preview issue (starting at page 37) in which she assesses Justice Breyer’s jurisprudence on the Court, at the presumed midpoint of his tenure there.  Greenhouse writes that Breyer is the “quintessential Enlightenment Supreme Court Justice,” someone who “believes in evidence and in expertise and in the power of both facts and experts to persuade.”

In an essay for the Yale Law Journal Online, Aaron Zelinsky traces the history of the judge-umpire analogy, which was originally aimed at trial court judges and was meant to be rejected because of the umpire’s passivity.  The essay argues that “the appropriate analog for a Justice of the Supreme Court is not an umpire, but the Commissioner of Major League Baseball.”

Read the rest of this entry »

The American Civil Liberties Union on Wednesday urged the Supreme Court to leave undisturbed a lower court ruling that limits the government’s power to keep secret photos or documents that reveal official wrongdoing.  Thus, the ACLU argued in a new brief, the Court should deny a Pentagon request to vacate that lower court opinion.

Read the rest of this entry »

Roll Call (subscription only) has an editorial by Simon Lazarus in which he argues that Congress is pushing back against recent Court decisions that encroach on Congress’s domain.  Lazarus cites four examples of legislation Congress introduced to reverse the Court’s decisions and a fiery reproach of the Court’s conservatives from Senator John McCain.

On the heels of yesterday’s news that the victorious firefighters in Ricci v. DeStefano are suing in federal district court for promotions based on the test upheld by the Court in June, Connecticut Employment Law Blog reports that black firefighters are trying to intervene in the case.  Concurring Opinions provides an extensive explanation of both the disparate impact arguments at play in the new firefighter case, Briscoe v. City of New Haven, and how those arguments differ from those made in Ricci.

Read the rest of this entry »

Posing a major test of the sweeping scope of the government’s most-used legal weapon against “terrorism,” six groups and two individuals urged the Supreme Court on Monday to pare down key provisions of the USA Patriot Act.  The government interprets those provisions so broadly, the new merits brief argued, that it would be a crime for anyone linked to a group labeled “terrorist” to teach English, lobby in Congress or the United Nations, or advocate benign help for such a group “on television or in the print press” — all presumably legal activities.

The Court on Sept. 30 agreed to hear two separate cases on the validity of the Patriot Act’s ban of “material support” to a group designated by the government as “terrorist.”  While the cases raise separate legal questions, the two sides agreed — with the Court’s permission — to have each side address all of the dispute in each’s brief on the merits. (The joint motion to revise the briefing schedule is here; it was granted Nov. 2.)  The Humanitarian Law Project, plus others on its side, filed the opening brief in both cases Monday; the government’s merits brief is due Dec. 22, and all briefing is to be completed by Feb. 12.  The cases will be argued together, in late February or in March.  (Holder v. Humanitarian Law Project, et al., 08-1498, and Humanitarian Law Project, et al., v. Holder, 09-89).

Read the rest of this entry »

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.

Read the rest of this entry »

UPDATE Tuesday a.m.  The National Rifle Association on Monday filed a brief supporting the Chicagoans’ challenge.  It can be downloaded here.  The NRA has been pursuing a similar challenge (pending petition, 08-1497).  It is in the McDonald case as a respondent supporting the petitioners.  The following post has also been updated, including a change in the date for filing the city of Chicago’s merits brief.

—————————-

With a strong plea to revive the Constitution’s ill-fated Privileges or Immunities Clause, lawyers for four Chicagoans told the Supreme Court on Monday that history shows clearly that the Second Amendment’s protection of personal gun rights applies to state and local laws as fully as to those at the federal level.  The brief is dominated by a wide-ranging survey of the meaning and origins of the  privileges clause of the Fourteenth Amendment, only seven pages of the 73-page brief are devoted to another provision of that Amendment: the Due Process Clause.  (The Court presumably is more familiar with the Due Process Clause, repeatedly litigated for decades even as the Privileges or Immunities Clause has lain largely dormant.)

In a bold thrust, the attorneys for the challengers to Chicago’s strict handgun ban asked the Court to strike down three of its prior rulings: the Slaughterhouse Cases in 1873 — the ruling that made the privileges clause a nullity — and two decisions limiting the Second Amendment to a restriction only on federal laws: U.S. v. Cruikshank in 1876 and Presser v. Illinois in 1886.  “Faced with a clear conflict between precedent and the Constitution, this Court should uphold the Constitution,” the brief argued. Read the rest of this entry »

The Court has granted certiorari in one case, Magwood v. Culliver (09-158), and invited the Solicitor General to file a brief expressing the views of the United States in Holy See v. John Doe (09-1).  The Court also issued a summary judgment in the case Wong v. Belmontes (08-1263), reversing and remanding the judgment of the 9th Circuit; the opinion is per curiam.

[Disclosure: Lawyers associated with Akin Gump and Howe & Russell represent the petitioner in Magwood.]

The full order list is here.  Details and briefs for the cases acted on are below the jump.

Read the rest of this entry »

The Supreme Court agreed on Monday to rule on a state prison inmate’s right to challenge in federal court when a new sentence has been imposed.  The key issue is whether such a challenge is barred when it could have been pursued in an earlier habeas plea. The Court thus granted review of the first question in Magwood v. Culliver (09-158).  In addition, the Court asked for the federal government’s views on an appeal by the Vatican, testing whether it is immune to damages lawsuits in U.S. courts for the sexual abuse of minors by priests in the U.S.  That case was Holy See v. John Doe (09-1).

In a summary decision, the Court ruled that a defense attorney had not provided inadequate legal assistance to a California death row inmate in a murder case by carefully composing the offering of favorable evidence so as not to provide an opening for prosecutors to bring in evidence of an earlier brutal murder.  The unsigned ruling in Wong v. Belmontes (08-1263) apparently will reinstate the death penalty against Fernando Belmontes, Jr., for a bludgeoning murder and a robbery in which the killer obtained $100 and used it to buy beer and drugs to consume that same night. The “Per Curiam” ruling — decided without formal briefing or oral argument — was tightly confined to the specific facts of the case, and did not appear to provide any new legal standard on the effectiveness of criminal trial lawyers’ work.

Read the rest of this entry »

The Court will not hear any oral arguments this week.  Orders are expected this morning at 10 a.m. from the Justices’ private conference on Friday.  SCOTUSblog’s list of Petitions to Watch from this conference is here.

The schedule of merits briefs due this week is below the jump.

Read the rest of this entry »

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 Obama Administration on Friday evening urged the Supreme Court to turn aside a test case by four former Guantanamo Bay detainees, and to do so without ruling on their claims of torture and religious discrimination by U.S. agents there.  It is clear, Solicitor General Elena Kagan argued in the new filing, that the detainees had no legal basis for their claims at the time they were at Guantanamo — between early 2002 and March 2004.  Thus, she contended, the officials sued are immune from the lawsuit.

Read the rest of this entry »